The younger fiancée of a private tutor who sexually assaulted a smart but troubled 14-year-old pupil should have been given a 90-day jail sentence, a Crown attorney argued at a summary conviction appeal hearing Friday.

Crown attorney Cara Sweeny also argued that Justice Leslie Pringle erred in striking down a mandatory minimum sentence (MMS) of 90 days for the offence.

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Last year Justice Pringle sentenced Kayla Drumonde to a conditional sentence of 45 days and three years probation.

In 2017, Pringle found math tutor Kevin Chan and Drumonde guilty of sexual assault and interference with the pupil and Chan was given a 90-day jail sentence to be served on weekends.

Pringle ruled the 90-day minimum sentence violated Section 12 of the Charter of Rights as cruel and unusual punishment and was excessive and disproportionate.

Pringle concluded both Chan, now 36, and Drummonde, now 26, “each had a very intense and inappropriate relationship with this 14-year-old girl,” starting in March 2014 and ending in mid-August of that year.

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They hugged and kissed her “on the forehead and cheeks,” but the judge wasn’t convinced the kissing or touching occurred in the bed or on other parts of the victim’s body.

Pringle also rejected the Crown’s theory there was sexual gratification, or luring, but acknowledged there was a sexual aspect to the touching.

The victim’s identity is protected by a publication ban.

“The sentencing judge erred in law and in principle by ruling on the constitutionality (of this section) without evidence being called to prove that it constituted a cruel and unusual punishment,” Sweeny told the appeal judge, Justice Andras Schreck.

“The defence must prove that the 90-day MMS for sexual interference is ‘so excessive as to outrage the standards of decency’ in our modern society,” said Sweeny.

Defence lawyer Amanda Ross said the judge’s sentence on Drumonde, who is emotionally fragile and had suicidal thoughts, was reasonable because she “wouldn’t endanger the public” by serving her time in the community.

Drumonde endured a history of childhood sexual abuse and trauma and was undergoing counselling to “understand the genesis of her offending…and the inappropriateness of her relationship with the victim,” said Ross.

Schreck reserved his decision.