James Duerksen had a fetish for woman’s lingerie. Over a span of 21 years he broke into 92 homes. He had targeted these homes as ones where women lived. While in the homes he steal lingerie. Sometimes he masturbated in the home. The offences occurred in Manitoba and Alberta. Duerksen pleaded guilty. He received a conditional sentence of two years less a day. The Crown appealed: 2012 MBCA 41.

On appeal the court outlined the relevant facts as follows:

The 92 infractions occurred in three different communities and spanned over 21 years. The facts surrounding all of these offences are strange and disconcerting because of the intrusive and sexualized nature of the accused’s behaviour. The accused would identify a home inhabited by a woman, wait until the residents were at church and then enter the home to steal the woman’s lingerie. In some cases, he masturbated with the undergarments while still in the home. Moreover, the psychological report done on the accused postulated that his acts arose from a desire for power over the women whose undergarments he stole [para 3].

On appeal the court of appeal agreed with the Crown that the sentence imposed was “wholly” unfit. Turning to determine the appropriate sentence, the court noted that there were “significant mitigating circumstances” but that the offences required “a denunciatory and deterrent sentence of incarceration. That sentence, the court of appeal held, was one of four years. The Crown had sought a sentence of 10 years.

The court of appeal does not set out fully what the significant mitigating factors were in this case, however, it is understandable how the court of appeal held they could not justify the sentence imposed by the trial court. As noted, the offences included the invasion of residential homes and very disturbing conduct once in those homes. Indeed, given the number and nature of the offences, the four-year sentence imposed seems lenient.