L. Marcone

The defendant was convicted of sexual assault committed against a sleeping complainant.

The assault involved partial vaginal penetration while the complainant was asleep and unable to consent.

The court imposed a sentence of 12 months imprisonment followed by two years of probation with conditions including no contact with the complainant, residence restrictions, and weapons prohibition.

Ancillary orders included a weapons prohibition order, DNA sampling, and Sex Offender Information Registration Act compliance for 10 years.

The court rejected a conditional sentence despite the defendant's good employment history and family support, finding that denunciation and deterrence required actual imprisonment.

The defendant was charged with one count of sexual assault.

The Crown's theory was that the defendant, after the complainant had consumed alcohol to excess and made clear her unwanted advances were unwelcome, entered the bedroom where the complainant slept and touched and penetrated her vagina without consent.

The defendant challenged whether the Crown could prove the charge on the basis of lesser touching, arguing the count related specifically to vaginal penetration.

The court found that the defendant understood the gravamen of the allegation to be unwanted vaginal penetration and that the Crown had proven beyond a reasonable doubt that the defendant touched the complainant's vagina for a sexual purpose without consent.

The defendant was found guilty.