Man’s sentence for having sex with 12-year-old increased

Russell Maclean, originally sentenced to 90 days in jail, will now serve three years

CORNER BROOK — Two and a half years after he was sentenced to 90 days in jail for having sex with a 12-year-old girl, a Port aux Basques man has been reincarcerated.

This time, Russell Maclean will spend three years in jail, less the 90 days he served on an intermittent basis following his sentencing in the fall of 2018.

Maclean was 21 when he accepted a Snapchat friend request from the girl in early 2015. Over the course of that winter and spring the two exchanged messages. The girl said she told him her age, but he said she didn't.

On June 1, 2015 the two met for the purpose of having sex. It was consensual, but legally the girl could not give that consent because she was under 16.

Maclean defended the charge on the basis that he mistakenly believed she was at least 16 and that he took all reasonable steps to find out her age.

A jury didn't believe that, and in September 2017 found him guilty of sexual assault.

At his sentencing the following October, Justice George Murphy agreed with a charter application filed by Maclean arguing that the one-year mandatory minimum sentence for the offence would constitute cruel and undue punishment.

Murphy also said he had to take into account that Maclean had a lower level of moral blameworthiness and consider his circumstances and background.

Maclean was studying engineering at Memorial University at the time of his conviction, and Murphy imposed the intermittent sentence, which meant Maclean could continue his education. At the time, Murphy said it was in the best interests of society under the circumstances of the case.

He also allowed Maclean to defer the start of his sentence until after he completed a work term that was already in progress.

The Special Prosecutions Office of the Department of Justice considered the sentence “demonstrably unfit” and in November 2018 filed a notice of application for leave to appeal with the Newfoundland and Labrador Court of Appeal in St. John's.

The Crown's appeal sought to have Maclean's sentence increased to three years.

Maclean also filed his own appeal, seeking to have his conviction overturned and a new trial ordered, claiming he had been denied a fair trial and that Murphy failed to correct misstatements made by the Crown in closing submissions.

The appeals were heard in December 2020. Maclean's appeal was dismissed and Crown's appeal was allowed and the sentence increased.

Justice William Goodridge released the reasons for the decision on April 29.

In the case of Maclean's appeal, Goodridge said he was satisfied the trial judge's instructions were sufficient to remedy any potential misunderstanding and there was no prejudice to trial fairness.

As for the Crown's argument that the 90-day sentence was demonstrably unfit, Goodridge said the errors made by the trial judge — failure to give primary consideration to denunciation and deterrence, and overemphasizing a perceived differential in moral blameworthiness — resulted in a sentence that was well below the normal range of three to five years.

He said the 90-day sentence imposed at trial must be varied and replaced with a fit sentence pursuant to Section 687(1) of the Criminal Code.

Considering that the assault involved a single sexual encounter, and that Maclean was not in a position of trust, had no previous criminal record, had good prospects for rehabilitation, was a low risk of reoffending and had a positive pre-sentence report, Goodridge said three years was an appropriate sentence in the case.

Maclean had submitted that he should not be re-incarcerated if his sentence was increased, but Goodridge said the disparity between the two sentences, the seriousness of the offence and the consideration of the objectives of denunciation and deterrence all favoured his re-incarceration, as opposed to ordering a stay of the new sentence.