The Queen v. B.(C.) 2019
The client was charged with sexual assault on a person under the age of 16 after the neighbor girl reported that the client had briefly touched her private areas over her clothing. The client was 80 years old at the time, was highly intoxicated at the time of the offence, and medical evidence established that after many years of extreme alcoholism he had developed a major cognitive disorder referred to as “alcoholic dementia.” Up until this point the client had lived a law abiding life and was dearly loved by his family, including his step-daughter whom had lived with him when she was a teenager and said that the client had never acted this way in the past towards her. According to her, the offence was deeply out of character and “was not Dad”. Unfortunately, the client was convicted at trial and faced a mandatory minimum of six months in jail. Mr. van der Walle file a Notice of Constitutional Challenge alleging that the six month mandatory minimum amounted to cruel and unusual punishment and ought to be struck down as being unconstitutional. After a lengthy hearing with lawyers from the Attorney General’s office in Victoria representing the Crown, the judge agreed with the defence and ruled that the mandatory minimum was unconstitutional and he declined to apply it to the client. While recognizing that sexual abuse of children is always a gravely serious offence, the judge gave the client house arrest followed by a lengthy probation order so he could live out the rest of his days in his home surrounded by family, instead of a jail cell.
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