Ontario's top court has reduced the penitentiary sentence that a Sault Ste. Marie judge gave a local man convicted of sexual offences involving children.
In a 50-page decision released earlier this month, the Ontario Court of Appeal set aside the eight-year global prison term imposed by Ontario Court Justice Heather Mendes.
It allowed the offender's appeal and imposed a new sentence of five years behind bars.
The March 22, 2022 sentence stemmed from two sets of charges the accused pleaded guilty to at earlier court appearances.
The first involved sexual interference offences involving a young girl and boy that occurred several years ago.
The second stemmed from child luring and other related charges that occurred in 2020.
These offences involved two young sisters, aged eight and 10, who don't live in Ontario, whom he encountered on the Internet.
A publication ban prohibits reporting any information that may identify the victims.
At the sentencing, the Crown and defence had jointly called for one-year imprisonment for the first offences, leaving the sentence for the others open.
In its decision, the appeal court said the trial judge "erred in principle" by relying on the aggravating circumstances from the sexual interference offences in determining a seven-year consecutive sentence for the child luring and child pornography offences.
"In effect, the appellant was sentenced twice for the sexual interference offences," the higher court said.
"Once through the jointly agreed sentence and then again in quantifying in the remaining sentence."
Writing the majority opinion for the three-member panel, Associate Justice David Paciocco set aside the "remaining" sentence, and substituted a five-and-a-half year global term.
"This considerable sentence appropriately reflects the joint position on the sexual interference charges and is a fit sentence for the charges on the sexual luring," he said.
The higher court imposed 42 months consecutive for the child luring and one-year consecutive for the child pornography offence.
The net sentence for all the offences, less a credit of six months Mendes had given the offender for the time he spent on stringent bail conditions, now totals five years.
Local lawyer Anthony Orazietti, who was the man's lawyer, and also represented him at the appeal court, called it a "sensitive" and "difficult case" for all those involved.
"Any time you are dealing with offences involving children, it is going to be difficult," the defence lawyer said.
He described Paciocco's reasons in allowing the appeal and imposing the sentence he did as very thorough and clear.
"There is a lot of debate and conflicting case law in the province, and the country, with respect to the appropriate ranges of sentencing for these types of offences," Orazietti wrote in an e-mail.
While the appeal court refused to cement a range, the decision should provide some much needed guidance for trial courts, he said
Another member of the panel, Associate Justice Grant Huscroft, wrote a "dissenting in part" decision.
He agreed Mendes had erred in relying on the circumstances of the sexual offences as aggravating factors in determining the appropriate sentence on the child luring and possession of child pornography.
In his dissent, he disagreed with Paciocco's sentencing position.
Huscroft said, in his opinion, a sentence of four years imprisonment is required for the child luring offence, two years consecutive for the possession, and one-year for the sexual interference offences.
The appellant had a large collection of child pornography and a one-year sentence for that offence "is simply not enough," he said.
With the credit for the stringent bail conditions, this would result in a net sentence of 6.5 years for all the offences.