“Demonstrably unfit” is how the Special Prosecutions Office of the Department of Justice describes the sentence handed to a Port aux Basque man in the Supreme Court of Newfoundland and Labrador in Corner Brook in October.
The words were contained in a notice of application for leave to appeal filed with the Newfoundland and Labrador Court of Appeal in St. John’s on Nov. 15.
The notice says the trial judge erred in law by imposing a 90-day intermittent sentence on Russell Edward MacLean, 24, for the sexual assault of a 12-year-old girl in 2015.
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MacLean was convicted of the charge following a jury trial in September 2017.
It was just over a year before his sentencing occurred, due in part to MacLean switching lawyers just after his conviction.
The facts presented at trial were that MacLean had engaged in a relationship with the girl via Snapchat, a social media application, for four or five months prior to meeting on June 1, 2015 to have sex.
The girl was under the age of 16 and not legally able to consent the act.
MacLean was convicted on the basis that he did not take all reasonable steps to determine that she was of the age to consent.
The mandatory minimum for the offence is one year in jail, however, MacLean filed a Charter application to argue that would constitute cruel and undue punishment.
Justice George Murphy found that to be the case.
During MacLean’s sentencing hearing on Oct. 16, Murphy said he had to take into account that MacLean had a lower level of moral blameworthiness, and to consider his circumstances and background.
While MacLean sought a suspended sentence, Murphy felt it would not send the appropriate message to further the goal of general deterrence.
He said a sentence greater than a suspended sentence was required, but that it wasn’t necessary to impose a sentence that would result in MacLean, who is due to graduate with an engineering degree in the spring of 2019, having to discontinue his university education.
He imposed the 90-day intermittent sentence saying it was in the best interests of society under the circumstances of the case.
MacLean was also allowed to defer the start of his sentence until Dec. 21 to allow him to complete a work term that was already in progress.
The notice of application states that the Special Prosecutions Office is seeking to have the leave to appeal be granted, the appeal to be allowed and the sentence increased.
No date has been set for the matter to be considered.
The grounds of appeal
That the trial judge erred in law by imposing a sentence that was demonstrably unfit
That the trial judge erred in law by overemphasizing the rehabilitation of the Russell MacLean in sentencing him
That the trial judge erred in law by failing to give primary consideration to the principles of denunciation and deterrence in sentencing MacLean
That the trial judge erred in law by finding that MacLean’s offence involved a lower level of moral blameworthiness which could be taken into account in sentencing
That the trial judge erred in finding that section 271(a) of the Criminal Code breaches section 12 of the Canadian Charter of Rights and Freedoms and that section 271(a) cannot be saved by section 1 of the Charter.
