Crown appeal from sentence of 18 months’ jail plus 18 months’ probation for accused convicted of sexual assault. Positive PSR and letters of support. Mitigating factors included remorse and better-than-average character.

Held: Appeal allowed; sentence increased to 2 years less a day.

Sentencing judge did not err in his treatment of mitigating factors: his reference to the accused’s intoxication was to “explain – but not justify or mitigate – the behaviour of an otherwise pro-social mature adult.” However, judge “erred in principle by failing to expressly consider the complainant’s vulnerability as a sleeping and intoxicated victim. While he considered the complainant’s state in his categorization of the offence as a major sexual assault…[he] did not weigh the complainant’s vulnerability as an aggravating factor, which increases the degree of this offender’s blameworthiness”.

A. Karbani – Defence Counsel