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To sentence a St. Jude’s man to another six to seven years in jail for child luring would not be appropriate, according to his lawyer.
Jim Goudie made the argument in provincial court in Corner Brook on Monday afternoon on an application under Section 12 of the Canadian Charter of Rights and Freedoms that states everyone has the right not to be subjected to cruel and unusual treatment or punishment.
His client, 67-year-old Oral Clarke, appeared via video conference from the correctional centre in Bishop’s Falls for the continuation of his sentencing hearing on four counts of unlawfully luring a child under the age of 18 by means of a computer system, one count of unlawfully luring a child under the age of 16 by means of a computer system and one count of accessing child pornography.
The hearing had been set over from last week to allow for the Attorney General of Canada to be notified of the Section 12 application. At the start of Monday’s appearance, the court was told the attorney general would not be participating in the hearing.
Clarke is currently serving a combined 38-month sentence on two previous convictions of child luring.
The mandatory minimum sentence on a child luring charge is one year, and Crown attorney Trina Simms said the total time she was seeking was six to seven years.
She said whether or not the court finds that the mandatory minimum should not apply, the range she suggested was appropriate. She noted it is within the range of sentences that has been given to other offenders in similar cases.
But Goudie argued that sentence would be disproportionate and asked for a sentence of 12 months.
He said to add another seven years would result in a Clarke serving a 10-year sentence, something unlikely to have been imposed even if all the charges had been known about from the beginning.
The charges all stem from an investigation that led to the two previous convictions, with further victims being identified after those convictions.
Goudie said it wasn’t appropriate to take the current charges out of the context of the previous sentences. To do so, he said, would lead to cruel and unusual punishment.
He asked Judge Wayne Gorman to consider the mitigating factors in the case — which included early guilty pleas that spared his victims from having to testify at trial, and co-operating with police.
Goudie said Clarke has convictions, but has not reoffended and he should be considered as a first-time offender.
Gorman will render his decision on sentencing on Wednesday.