Décision

[1]           The petitioner seeks leave to appeal a conditional discharge that was ordered on 29 November 2016 following a guilty plea to one count of sexual assault.[1]  That order was accompanied by various conditions that would apply for two years to protect the security of the victim, promote the rehabilitation of the offender and minimise the risk of recidivism.[2]  The petitioner advances several grounds but asserts essentially that the sentence was unfit because it fails adequately to respect the principle of proportionality.  The petitioner specifically emphasises that the sentence fails sufficiently to underscore the objectives of denunciation and deterrence applicable in cases of this nature.

[2]           An unbroken line of jurisprudence over more than a generation holds that an appellate court will defer to the discretionary decision of a sentencing judge unless that judgment shows an error of principle or a material misapplication of correct principles.[3]  The record makes clear that the sentencing judge was fully aware of the relevant principles and that she was attentive to their application in the particular circumstances of the offence and the offender. 

[3]           There is no question that the suggestion proposed by the petitioner to the sentencing judge was reasonable but this characterisation does not imply that the sentence imposed was unreasonable, unfit or inconsistent with relevant principles.  Similar cases can yield dissimilar results but again that does not entail that disparity necessarily reveals reversible error.  A model of individualised sentencing that rests on the discretion of the sentencing judge to determine a sentence that respects proportionality and other relevant principles and objectives must accommodate a tolerable measure of disparity.[4]  Otherwise the only proportionate sentence would always be a mandatory minimum sentence.[5]

[4]           There is no principle of sentencing in the law or the jurisprudence that a sufficient concern for denunciation and deterrence in cases of this nature must include a term of imprisonment.[6]  Nothing in the jurisprudence diminishes the principle that imprisonment should be used with restraint.  Nothing in the jurisprudence would exclude a conditional discharge if such a result is justified in the circumstances of the offence and the offender.[7]  The record here, including the transcript of the sentencing hearing and the oral and written judgments, makes plain that the judge carefully assessed the gravity of the offence and the degree of the offender's responsibility in determining an appropriate result.  She also carefully considered whether a conditional discharge would be in the offender’s interest and not contrary to the public interest.  Another judge, including any one in this panel of the Court, might have imposed a different sentence.[8]  But again this does not mean that the sentence imposed was unfit.  The conditions that accompany the conditional discharge express a clear concern for denunciation and deterrence in a manner that is consistent with other objectives of sentencing.[9] 

[5]           The petitioner suggests that the sentencing judge mistakenly considered intoxication at the time of the offence as a mitigating factor. When taken in the context of the judgment as a whole, it is more appropriate to say that she considered this matter in relation to the offender’s future and to the risk of recidivism by appropriate conditions.[10]

[6]           FOR THESE REASONS, the Court:

[7]           GRANTS the motion for leave to appeal;

[8]           DISMISSES the appeal.