R. v. Murray, 2023 NSSC 62

SUPREME COURT OF Nova Scotia Citation: R. v. Murray , 2023 NSSC 62 Date: 20230216 Docket: PtH . No. 511560 Registry: Port Hawkesbury Between: His Majesty the King Appellant v. Jeremy Nathan Murray Respondent Restriction on Publication: s.486.4 & 486.5 – Any information that will identify the complainant, victim or witness shall not be published in any document or broadcast or transmitted in any way. Decision on

Summary Conviction Appeal Judge: The Honourable Justice Robin Gogan Heard: November 15, 2022, in Port Hawkesbury, Nova Scotia Supplemental Appeal Book Filed: February 8, 2023 Written Decision: February 15, 2023 Counsel: Constance McIsaac, for the Appellant Jeanne Sumbu, for the Respondent By the Court: [ 1 ] This is a

Summary Conviction Appeal by the Crown. It involves the sentence imposed upon Jeremy Nathan Murray for sexual assault. [ 2 ] On July 29, 2021, following trial, the Honourable Judge Michael B. Sherar found Murray guilty of sexual assault contrary to s. 271 of the Criminal Code . He found that Murray had placed his penis inside the complainant’s mouth without her consent. On November 26, 2021, Murray was sentenced to 90-days intermittent custody.

A period of probation was also ordered, beginning during the intermittent sentence, and continuing for two years following its conclusion. [ 3 ] The Crown appeals the sentence, saying it is demonstrably unfit for a major sexual assault and is not grounded with sufficient reasons. Murray asks that the appeal be dismissed. [ 4 ] In the following reasons, I will explain why I would allow the appeal and impose a different sentence but decline to reincarcerate Murray. Decision Under Review [ 5 ] Before going further, a review of the decision under appeal is required for context.

There is no appeal from Murray’s conviction and no issue taken with the findings made at trial. The parties agreed that sexual activity had taken place. The main issue was consent. The trial judge considered the evidence, including an agreed statement of facts, and found that the sexual activity was not consensual. He accepted the following facts: She says he walks behind her, locks the door as they go through the porch into the archway, and then he proceeds to pull her hair. In his mind, he says they are going to finish off what they were doing before and that she was doing so willfully … and she agreed to it.

There were no words to that effect. She says that he pulled her down and then she pulled away, she ran towards the picture window where they

could be seen from the outside. He has his pants down by this time and is pulling her head down with both hands. She has her hands on his hands and is able to push herself away from him … push back away from him. He continues to proceed. They are back to the couch, they are both sitting on the couch and … by that time he’s got his shirt off as well as his pants down around his ankles. At all times, (the complainant) says that Mr. Murray has, except for that time in front of the window, he has one hand on her head and then he’s pulling her head down to his penis.

He gets his penis around her face then in her mouth. She’s saying no each and every time he attempts to do so.

He breaks off, she pushes away, he breaks off, he goes to the bathroom and ejaculates, wipes himself up, and the tissue he wipes himself off with is found in the garbage later by police and identified that he’s the maker of the semen as a result of the ejaculate being found on the tissue paper. … When she contacted 911 immediately or within very short order after the event had taken place and when the police arrived as a result of that dispatch, she was still distraught as to what had taken place. … I am convinced beyond a reasonable doubt, I am sure that what she says happened happened … He grabbed her by the back of the hair, forces her head down to his penis and he put his penis in her mouth.

That’s the sum total of the sexual act, as horrendous as it was, an unrequired, unrequested, and undesired. [ 6 ] Following conviction, the Crown sought the maximum sentence on

summary conviction of 18 months, followed by 24 months probation. It was the Crown view that this range of sentence addressed the objectives of deterrence and denunciation while not crushing the prospect of rehabilitation. The Crown also asked the court to impose a number of ancillary orders (firearms prohibition for ten years, a DNA order, a SOIRA order and a no-contact order). [ 7 ] Central to the Crown’s sentencing position was the submission that Murray’s conduct constituted a major sexual assault.

The assault was violent, had aspects of forcible confinement, took place in the victim’s home, and had a significant impact on her. The attack took place over repeated and consistent protests and did not end until the offender was satisfied. In the Crown’s view, the offender’s moral blameworthiness and degree of responsibility were “extremely high”. Murray’s age and lack of prior criminal record were mitigating factors. [ 8 ] The defence submitted that a six-month conditional sentence order followed by one year of probation was a fit and just sentence.

Alternatively, a 90- day intermittent sentence and 15 months probation was proposed. It was the defence position that the Crown elected to proceed summarily and that all sentencing options were available, limited only by the maximum penalty of 18 months incarceration. The nature and circumstances of the assault were aggravating considerations and it was agreed that the conduct constituted a major sexual assault. Murray’s age, the positive pre-sentence report, and the absence of a criminal record were mitigating factors.

The defence agreed that deterrence and denunciation were primary, but argued that rehabilitation and restraint remained important. It was submitted that Mr. Murray’s circumstances were exceptional. [ 9 ] The sentencing hearing proceeded on November 26, 2021. The court heard brief oral submissions from counsel. There was a pre-sentence report, a victim impact statement, character reference evidence, and Murray’s comments for consideration. [ 10 ] The sentencing decision contained a

summary of the circumstances of the offence and its impact on the victim. The

summary clarifies the findings made to include two instances of forced oral penetration. [ 11 ] Respecting the circumstances of the offender, it was noted that although Murray had no criminal record, he had received a conditional discharge for uttering a threat in June 2018. I note here that during the sentencing hearing, Murray was also sentenced for a forcible entry offence that occurred in June 2017. That offence involved his then intimate partner and mother of his children.

For that offence, Murray pled guilty and received a sentenced of time served. [ 12 ] The circumstances of the offender were otherwise reviewed by the sentencing judge: The defendant was born on May 4, 1992 making him now 29 years of age. He is the father of three children and another child who recently passed away. He is the owner and operator of a painting company employing several employees on occasion.

He is the sole breadwinner for his family. [ 13 ] After observing that the defendant had testified and been disdainful of the victim during the trial, the trial judge reviewed some authorities and then imposed sentence with the following reasons: In this case, the defendant pled not guilty and consequently did not express remorse for his criminal actions. That can’t be held against him. The defendant is presumed to be innocent, and the Crown must prove his guilt beyond a reasonable doubt as they have in this case.

The defendant is a young man supporting a family and is fully employed but his employment status is not a get out of jail free card. His actions require punishment and denunciation. However, the incident before the Court has occurred several years ago. The defendant has been under community supervision during that time without any breach of conditions. He has re-established his family life. He is maintaining the peace. He has the support of community members and fellow employers. He has undergone counselling and reports are that he has cooperated and learned from that therapy.

However, the punishment must fit the crime. Incarceration is required to emphasize the seriousness of the criminal actions of this particular defendant. That correction by way of incarceration can be carried out by way of imposing an intermittent sentence of 90 days. He’ll be placed on probation during the intermittent portion of the sentence and for a period of two years following the conclusion of the intermittent sentence.

[14] The ancillary orders sought were granted and are not an issue on this appeal. [15] I turn now to review of the issues, the position advanced by the parties and the disposition of the appeal. Issues on Appeal [16] The Crown appeals on the ground that the trial judge: (1) erred in principle impacting the sentence imposed; and (2) imposed ademonstrably unfit sentence. [17] If the appeal is allowed, the Crown asks that an appropriate sentence be imposed. [18] The issues are as follows: (

a) Did the sentencing judge make errors in principle that impacted the sentence imposed? (

b) Was the sentence demonstrably unfit? (

c) If so, what is a fit and proper sentence? Standard of Review [19] Sentencing decisions are accorded a high degree of deference on appeal (R. v. L.M., 2008 SCC 31, R. v. Lacasse, 2015 SCC64, R. v. Friesen, 2020 SCC 9, and, in Nova Scotia, R. v. J.J.W., 2012 NSCA 96, at para. 21, R. v. LaPierre, 2022 NSCA 12, at para.112, and the recent standard of review analysis of Brothers, J. in R. v. Foley, 2022 NSSC 47, at paras. 13-17). [20] The standard of review on sentence appeals was recently referred to by Gabriel, J. in Archer v.

R, 2023 NSSC 2, at para. 10(with reference to the Supreme Court of Canada’s decisions in Lacasse and Friesen): Whether an error in principle has been committed by the Trial Judge is a question of law. As a consequence, it is to be reviewed by thisCourt on the standard of correctness. Even if I agree that such an error was committed, I may only intervene if the error had an impacton the sentence itself: 26.

As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrablyunfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on sentence (para.44). Errors in principleinclude an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. Theweighing or balancing of factors can form an error in principle, “[o]nly if by emphasizing one factor or by not giving enough weight toanother, the trial judge exercises his or her discretion unreasonably” (R. v.

McKnight (1999), (ON CA), 135 C.C.C.(3d) 41 (Ont. C.A.), at para. 35, cited in Lacasse, at para. 49). Not every error in principle is material: an appellate court can onlyintervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence (Lacasse, at para. 44). If an error inprinciple had no impact on sentence, that is the end of the error in principle analysis and appellate intervention is justified only if thesentence is demonstrably unfit (R. v. Friesen, 2020 SCC 9) [21] In R. v. Dawson; R. v.

Ross, 2021 NSCA 29, our Court of Appeal described the review of sentence fitness: [26] A variety of terms have been used to describe a sentence that is manifestly unfit: “demonstrably unfit”, “clearly unreasonable”,“clearly or manifestly” excessive or inadequate; or representing a “substantial and marked departure: from the cardinal principle ofproportionality (Lacasse, at para. 52, citing Laskin, J.A. in R. v. Rezaie (1996), (ON CA), 31 O.R. (3d) 713 (C.A.). [27] As Lacasse explains, the focus of an inquiry into whether a sentence is manifestly unfit is on the principles and objectives ofsentencing.

The gravity of the offence, the offender’s degree of culpability, and parity must be reconciled in the crafting of a fit sentence(Lacasse, at para. 53). [22] The present case is similar to R. v. Dawson; R. v. Ross in that the review involves an examination of whether there are materialerrors impacting the sentence imposed and whether the sentence holds the offender sufficiently accountable for what all agreed was amajor sexual assault. [23] If a review of the sentencing decision reveals a basis to intervene, then the sentence must be freshly determined.

As directed inFriesen, at paras. 27 – 28: [27] If a sentence is demonstrably unfit or if a sentencing judge made an error in principle that had an impact on sentence, anappellate court must perform its own sentencing analysis to determine a fit sentence (Lacasse, at para. 43). It will apply the principles ofsentencing afresh to the facts, without deference to the existing sentence, even if that sentence falls within the applicable range. Thus,where an appellate court has found that an error in principle had an impact on sentence, that is a sufficient basis for it to intervene anddetermine a fit sentence.

It is not a further precondition to appellate intervention that the existing sentence is demonstrably unfit or fallsoutside the range of sentences imposed in the past. [28] However, in sentencing afresh, the appellate court will defer to the sentencing judge’s findings of fact or identification ofaggravating and mitigating factors, to the extent that they are not affected by an error in principle. This deference limits the number,length, and cost of appeals; promotes the autonomy and integrity of sentencing proceedings; and recognizes the sentencing judge’sexpertise and advantageous position (Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 15-18.) [24] With this guidance, I now turn to a review of the position of the parties. Position of the Parties

The Appellant [25] The Crown says the trial judge erred in principle in his application of the principles of parity and proportionality. It arguesthat the discrepancy between the sentence in this case and sentences imposed in cases with similar circumstances is too large to ignoreand was imposed without disclosing reasons for the departure.

The Crown submits that the sentence imposed resulted from anoveremphasis on several mitigating factors and an underemphasis on the multitude of aggravating factors. [26] The Crown further argues that the sentence was demonstrably unfit for a major sexual assault. [27] The Crown asks that the appeal be allowed, and a new sentence imposed. The Respondent Murray [28] Murray says that the sentencing judge committed no error. According to the Respondent, the sentencing judge considered thesentencing principles, balanced them appropriately, and imposed a fit and proper sentence.

He asks that the appeal be dismissed. [29] If the appeal is allowed, Murray asks that the imposition of any new sentence be stayed. He completed his intermittentsentence on March 6, 2022, and will complete his period of probation on November 26, 2023. He says that it is not in the interests ofjustice to reincarcerate him given his circumstances. Analysis [30] The analysis here requires a review of two separate, but related, lines of inquiry.

As I understand the Crown’s position, bothinquiries drive a finding that the sentence that was unfit in the circumstances and must be varied on this appeal. [31] Before beginning, a brief review of the context is important. I adopt the reasons of Derrick, J. (as she then was) in R. v.Thompson, 2017 NSPC 18: The Purpose and Principles of Sentencing [27] The Supreme Court of Canada has described sentencing as “one of the most delicate stages” of our criminal justice process. (R. v.Lacasse,2015 SCC 64, para. 1) It is a "profoundly subjective process" (R. v. Shropshire, (SCC), [1995] S.C.J.

No. 52,para. 46) which requires the careful balancing of "the societal goals of sentencing against the moral blameworthiness of the offender andthe circumstances of the offence ..." (R. v. C.A.M., (SCC), [1996] S.C.J. No 28, para. 91) An appropriate sentencecannot be determined in isolation. Regard must be had to all the circumstances of the offence and the offender. (R. v. Nasogaluak, 2010SCC 6 , [2010] S.C.J.

No. 6, para. 44) It is a "profoundly contextual" process in which the judge has broad discretion and mustbalance “all the relevant factors in order to meet the objectives being pursued in sentencing.” (R. v. L.M., 2008 SCC 31 , [2008]S.C.J. No. 31, para. 15; R. v. Lacasse, para. 1) [28]

Section 718 of the Criminal Code sets out the objectives a sentence must achieve: denunciation, deterrence – both specific andgeneral, separation from society where necessary, rehabilitation of the offender, reparations by the offender, and the promotion of a senseof responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [29] Assessing moral culpability is a fundamental aspect of determining the appropriate sentence: a sentence must be proportionate tothe gravity of the offence and the degree of responsibility of the offender. (section 718.1, Criminal Code) Proportionality is “closely tiedto the objective of denunciation”, promotes justice for victims, and seeks to ensure public confidence in the justice system.

The principleof proportionality, …ensures that a sentence does not exceed what is appropriate, given the blameworthiness of the offender. In this sense, the principleserves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction isone that reflects both perspectives on proportionality and does not elevate one at the expense of the other. (R. v. Ipeelee, 2012 SCC 13, [2012] S.C.J.

No. 13, para. 37) [30] The principle of restraint operates in the sentencing analysis so that what is imposed is “a just and appropriate punishment, andnothing more.” ((R. v. M. (C.A.), (SCC), [1996] S.C.J. No. 28, para. 80) [32] From these broad sentencing principles, I move to the issues raised by this appeal. (

a) Did the sentencing judge make errors in principle that impacted the sentence imposed? [33] The first issue is whether the sentence imposed in this case is based upon a material error in principle. As noted, sentencingjudges have a broad discretion. Intervention is only required when there is a basis to find that the discretion was exercised unreasonably.

The Supreme Court of Canada in Friesen urged reviewing courts to focus on whether the sentence is fit and “most fundamentally,whether the sentencing judge properly applied the sentencing principles”. [34] In this case, the sentencing decision begins with a review of Murray’s personal circumstances. He was a young man at 29years of age. He was the father of four young children, one of whom had recently passed away from a rare genetic disorder.

He was theowner and operator of a company that employed several people, and he was then the sole supporter of his young family. [35] The reasons then acknowledge that Murray’s conduct was a major sexual assault. The sentencing parameters are reviewed –the maximum penalty for the offence was 18 months. There was no minimum penalty. The reasons continue with a review of thecircumstances of the offence. The nature of the offence, and its location and duration was noted, including a finding that the victim had“emphatically refused and verbally said no”. The offence clearly violated the victim’s sexual integrity.

There was evidence that thevictim was immediately distraught by the events and that this state of mind continued throughout her testimony and her victim impact

statement. The sentencing judge made specific reference to Murray’s attitude, observing that he “was disdainful of the complainant”. [ 36 ] After reviewing the circumstances of the offence, offender, and the impact on the victim, the reasons canvass some of the authorities and the sentencing principles, including ss. 718 and 718.2, with specific mention of the parity principle. There is no reference to the fundamental principle of sentencing in s. 718.1. [ 37 ] The reasons conclude with a return to the offender’s circumstances.

Findings are made that the offender is a young man, fully employed, supporting his family, and that he had been the subject of supervision for several years without any breach of his conditions. “ He has re-established his family life. He is maintaining the peace. He has the support of community members and fellow employers. He has undergone counselling and reports are that he has cooperated and learned from that therapy ”. [ 38 ] The sentencing reasons refer to the circumstances of the offence requiring “ punishment and denunciation ”, “ incarceration was required ”.

Implicitly, a conditional sentence order was rejected. A 90-day intermittent sentence was then imposed as well as a period of probation. There was no explicit parity or proportionality assessment in the sentencing reasons. [ 39 ] The fundamental principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1).

In my view, the sentencing reasons, read as a whole, over emphasize the mitigating aspects of the offender’s circumstances, and fail to give sufficient weight to the gravity of the offence and to Murray’s moral blameworthiness. This is an error in principle that requires intervention. [ 40 ] In its sentencing submission at trial, the Crown sought an 18-month custodial sentence. In support of its position, the Crown referenced a number of aggravating factors. These included that: (1) the offence took place in the victim’s home over her repeated protests,

(2) Murray continued his assault until he was satisfied, (3) the nature of the assault was inherently violent and constituted a major sexual assault, (4) there was physical force used in the course of the assault, (5) the victim was targeted, and (6) the assault had a significant and lasting impact on her. The sentencing reasons do not place these factors anywhere in the overall assessment of the gravity of the offence or offender responsibility.

The sentence imposed is a basis to say that these factors did not receive due weight. [ 41 ] In Friesen , the Supreme Court of Canada directed a modern recognition of the wrongfulness and the harmfulness of sexual violence when determining the degree of offender responsibility.

Although focused on sexual offences against children, the following general observation was made at para. 89: [89] All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender – the offender is treating the victim as an object and disregarding the victim’s human dignity ( see R. v. Mabior , 2012 SCC 47 , [2012] 2 S.C.R. 584 , at paras. 45 and 48 ).

As L’Hureaux-Dube J. reasoned in L. (D.O.) , “the occurrence of child sexual abuse is one intertwined with the sexual abuse of all women” precisely because both forms of sexual offences involve the sexual objectification of the victim (p. 441). Courts must give proper weight in sentencing to the offender’s underlying attitudes because they are highly relevant to assessing the offender’s moral blameworthiness and to the sentencing objective of denunciation (Benedet, at p. 310, Hajar , at para. 67). [ 42 ] In R. v.

Brown , 2020 ONCA 657 , the Ontario Court of Appeal referenced Friesen as a basis to say that sexual offences in general raise particular considerations in the proportionality analysis. In the present case, the sentencing reasons noted the offender’s attitude as “disdainful”, that he targeted the victim in her home and forced his penis into her mouth over her protests until he was gratified. There was explicit force and both immediate and enduring impacts.

These facts did not find any significant consideration in the sentencing reasons. [ 43 ] Finally, I note that although both Crown and defence counsel provided case law to assist the sentencing judge in his analysis, there was no reference to these decisions as a basis for his conclusion that a 90-day sentence was fit and proper. (

b) Was the sentence demonstrably unfit? [ 44 ] I am of the view that the sentence imposed in this case was demonstrably unfit. [ 45 ] The dominant sentencing objectives in cases of sexual assault are denunciation and deterrence. This was a major sexual assault. The nature of the attack and its immediate and lasting consequences make it a very serious offence. The offender has a high degree of responsibility for targeting a known victim in her home and maintaining a degrading attack over her protests.

The disdainful attitude is significant and remained throughout the course of trial – a trial that took place more than two years after the assault. There is nothing in the pre-sentence report that diminishes the offender’s responsibility for his behaviour. Murray’s statement to the Court at the sentencing hearing referenced only that he had been through a great deal, including the loss of an infant daughter, in the previous couple of years. The timing of the loss of his daughter was not clear. [ 46 ] In R v. J.J. W. , 2012 NSCA 96 , our Court of Appeal dealt with a sentence appeal.

The appellant had been convicted of sexual assault and two other assaults against his wife. In finding a five-month sentence unfit for a major sexual assault involving forced anal intercourse, the court noted that the broad discretion of a sentencing judge is fettered in part by decisions that give effect to the parity principle. That said, it was recognized that finding factually similar cases is a notoriously difficult exercise.

After extensively reviewing a range of cases, Oland, J.A., for the Court concluded: [32] I agree with the Crown that a five-month sentence for this sexual assault, forcible anal intercourse, is demonstrably unfit. In doing so, I recognize that sentencing judges are entitled to considerable deference from the appellate courts, and that ranges as established by case law are only guidelines intended to assist sentencing judges.

However, the discrepancy between the sentence here imposed for a grave sexual assault, one committed by the appellant to dominate and control his wife, namely five months imprisonment, and the next lowest sentences found in the case law for similar major sexual assaults in comparable circumstances, namely two years less a day, is simply too large to ignore. The sentence contravenes the principle of parity. Persons convicted of serious sexual assaults must appreciate that the principles of sentencing include specific and general deterrence and denunciation, and such offences will attract serious consequences.

The five month sentence for sexual assault on a spouse does not send that message. In my view, considering the

principles of sentencing as set out in the Criminal Code, it is clearly unreasonable. [47] The Court went on to find that a fit sentence for the offender and the offences was two and a half years in custody. [48] Subsequently, in R. v. Lapierre, 2022 NSCA 12, the Court of Appeal dismissed an appeal where a 12-month custodial sentenceand 30 months probation had been imposed for a “serious sexual assault” involving “increasingly aggressive” sexual advances that had aprofound impact on the victim.

The offender was youthful, with no prior criminal record, a positive work record, and a positive pre-sentence report. [49] I am mindful of the directions given in Friesen where an analytical caution was conveyed as part of a new approach: [146] … it is an error to understand the degree of physical interference factor in terms of a type of hierarchy of physical acts. The typeof physical act can be a relevant factor to determine the degree of physical interference.

However, courts have at times spoken of thedegree of physical interference as a type of ladder of physical acts with touching and masturbation at the least wrongful end of the scale,fellatio and cunnilingus in the mid-range, and penile penetration at the most wrongful end of the scale (see R. v. R.W.V., 2012 BCCA290, 323 B.C.A.C. 285, at paras. 19 and 23). This is an error — there is no type of hierarchy of physical acts for the purposes ofdetermining the degree of physical interference.

As the Ontario Court of Appeal recognized in Stuckless (2019), physical acts such asdigital penetration and fellatio can be just as serious a violation of the victim’s bodily integrity as penile penetration (paras. 68-69 and124-25). Similarly, it is an error to assume that an assault that involves touching is inherently less physically intrusive than an assaultthat involves fellatio, cunnilingus, or penetration. For instance, depending on the circumstances of the case, touching that is bothextensive and intrusive can be equally or even more physically intrusive than

an act of fellatio, cunnilingus, or penetration. [50] The consideration of cases decided before Friesen for parity purposes must be done with care. (R. v. Sinclair, 2022 MBCA101, at para. 61; R. v. RGH, 2021 BCCA 54, at para. 20). I am mindful here that the Crown proceeded summarily resulting in amaximum penalty for an offence under s. 271 of 18 months in custody (s. 271(b)). Accepting this parameter, I remain of the view that a90-day intermittent sentence in the circumstances found here was demonstrably unfit. The sentence imposed did not sufficiently expresssociety’s condemnation of the conduct, nor did it properly express the objectives of denunciation and deterrence. (

d) What is a fit and proper sentence? [51] At trial and on appeal, the Crown sought an 18-month custodial sentence. I agree that this is a fit and proper sentence in thecircumstances of this case. I would not disturb the probation order of 24 months. [52] In saying this I recognize that 18 months custody is the maximum possible penalty for the offence in this case. But I alsorecognize that the maximum penalties need not be reserved for the worst possible circumstances (see R. v.

L.M., 2008 SCC 31 ,[2008] 2 S.C.R. 163, at para. 22; Friesen at para. 114.) Instead, I consider the gravity of the offence as serious and the degree ofresponsibility of the offender as high. I consider both the mitigating and aggravating circumstances. A youthful offender with no priorhistory of sexual assault, a positive pre-sentence report and community support, who committed a significant act of sexual violenceagainst a friend, in her home, over her explicit protests, with significant immediate and lasting impact.

The circumstances here require asentence that properly condemns the conduct and deters others. [53] The remaining question relates to reincarceration. On consent, the court received post-conviction evidence. Murray wassentenced on November 26, 2021. He completed his custodial sentence on March 7, 2022. He is almost 15 months into his 24-monthprobationary period. He has been compliant with the original sentence imposed. [54] The offender has had considerable tragedy in his life since he committed the offence in this case on January 26, 2019.

He lostan infant daughter to a medical condition, an event noted in the pre-sentence report to be “incredibly traumatic”. Further tragedy struckon July 17, 2022, when his common-law spouse died. Murray is now the primary parent and sole source of support for his two youngchildren. [55] The Crown seeks further incarceration but conceded on the appeal that having Murray serve a further period of custody wouldhave a negative impact on his family and employment in the circumstances.

The defence argued that a further period of incarcerationwould take away the children’s only remaining parent in close proximity to the loss of their mother. [56] The issue of reincarceration has been well canvassed (see R. v. Best, 2012 NSCA 34, and R. v. J.J.W, supra, and the authoritiescanvassed there). There is no contest that the offence committed in this case is serious and that an appropriate sentence should beserved. I consider that Murray completed the custodial portion of his sentence and is well into his probation period now, with nocompliance issues.

If he had originally been sentenced to an 18-month custodial sentence, he would likely have completed that sentenceby now. A further period of custody would clearly impose an unusual degree of hardship on his family, removing their remaining parentand sole source of support. [57] Considering all of the circumstances, I do not find it in the interests of justice to reincarcerate the offender. Conclusion [58] In conclusion, I find that the sentence imposed in this case resulted from an error in principle and is demonstrably unfit.

A fitand proper sentence is a custodial period of 18 months followed by a 24-month period of probation (no issue is taken with the term orconditions of the original probation order, or the ancillary orders granted by the sentencing judge). [59] However, in the circumstances here, I find that it is not in the interests of justice to order additional incarceration. [60] Therefore, I allow the appeal but stay the imposition of sentence (R. v. Livingstone; R v Lungal; R v Terris, 2020 NSCA 5).

Gogan, J.