R v Hilbach (Bonus)

There is a section 486.4 publication ban involving this matter.

Mr. Kerry Alexander Nahanee pleaded guilty to two counts of sexual assault. The appellant and Crown made sentencing submissions, which were not joint submissions. The Crown sought a 4-6 year global sentence. The appellant sought a 3 to 3.5 year global sentence. The sentencing judge did not agree with the sentencing submissions, and imposed a sentence of eight years’ imprisonment. The sentencing judge did not alert counsel that she was intending to exceed the Crown’s proposed sentence.

Mr. Nahanee appealed his sentence to the Court of Appeal for British Columbia on the basis that the judge erred in (1) failing to alert counsel that she planned to impose a sentence in excess of that sought by Crown counsel, (2) imposing a demonstrably unfit sentence, (3) incorrectly applying statutory and common law aggravating factors, and (4) failing to properly consider his Aboriginal heritage.

The Court of Appeal dismissed the appeal. The Court of Appeal found that because the guilty plea was not accompanied by a joint submission on sentencing, the trial judge was not obliged to notify counsel that she planned to impose a longer sentence than that sought by the Crown. The sentence was in line with those imposed on offenders who sexually assaulted children while in positions of trust. The judge was permitted to consider the appellant’s lack of insight or ongoing risk to the public, the victims’ ages, and the age differential between the victims and appellant when determining the sentence, and she properly considered whether the appellant’s Indigenous heritage attenuated his culpability.

Mr. Nahanee was granted leave to appeal to the Supreme Court of Canada.