R. v. K.A.S. Date:, 2016 BCPC 401

Citation: R. v. K.A.S. Date: 20161102 2016 BCPC 401 File No: 207641-4-C; 208119-3-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. K.A.S. BAN ON PUBLICATION PURSUANT TO

SECTION 486.4(2) OF THE CRIMINAL CODE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE A.M. WOLF

Counsel for the Crown: S. Rail Counsel for the Defendant: M. Fingas Place of Hearing: Surrey , B.C. Date of Hearing: August 15, 16, 17, 2016 Date of Judgment: November 2, 2016 [ 1 ] These are the written reasons for sentence in the matter of R. v. K.A.S. THE FACTS [ 2 ] The admissions of fact are found at Tab 1 of Exhibit 1 of these proceedings. They are five pages long and were signed by Mr. K.A.S.’s (“K.A.S.”) counsel and Crown counsel on November 15, 2015. [ 3 ] I rely on the admissions of fact as filed and do not wish to repeat them in any great detail in these reasons.

However, I believe it is important to understand that they detail two different sets of circumstances. [ 4 ] In the first, on May 1, 2014, 48 year old Ms. M.A. was in her home when K.A.S. forced his way into her house and forced her to perform fellatio. He also sexually assaulted her by forcing intercourse on her. He used threatening language, brute force and at one point struck her with a flashlight. He threatened her safety, the safety of her ex-husband and children. When the accused left, he grabbed her purse and fled the residence.

The purse was found at K.A.S.’s residence and turned into the police in March 2015. [ 5 ] At Tab 2 of Exhibit 1 is a Victim Impact Statement completed by Ms. M.A. [ 6 ] In the second crime, on October 7, 2014, the accused approached Ms. A.F. Ms. A.F. agreed to perform oral sex in exchange for $60.00. As she was performing oral sex on the accused, he struck her on the head so hard that she lost consciousness. When she regained consciousness the accused kicked her in the face and head at least four times, possibly more. As Ms. A.F. crawled away, K.A.S. grabbed her purse and drove away. Ms.

A.F.’s injuries were observed by police to be “substantial facial injuries.” It was noted that she had a swollen chin with what appeared to be a “boot mark”, an injury to the right side of her head, and a swollen right forearm. There was significant bruising, mostly to her head and facial region. [ 7 ] At Tab 3 of Exhibit 1 is a Victim Impact Statement completed by Ms. A.F. THE CHARGES [ 8 ] On Court File No. 208119-3-C, K.A.S. has pled guilty to a May 1, 2014 breaking and entering a dwelling and committing the indictable offence of sexual assault contrary to section 348(1) (

b) of the Criminal Code . He has also pled guilty to robbing Ms. M.A., contrary to

section 344 of the Criminal Code . [ 9 ] On Court File No. 207641-4-C, K.A.S. has plead guilty to count 2 an October 7, 2014 offence of robbing Ms. A.F., and Count 3, as amended, an offence of assault causing bodily harm to Ms. A.F. OTHER MATERIALS FILED/PSYCHOLOGICAL ASSESSMENTS [ 10 ] Also filed as part of Exhibit 1 is a recent Pre-Sentence Report filed with the court on December 1, 2015, an older one dated September 2007, and the criminal record of K.A.S. Three transcripts from previous proceedings at sentence have also been filed.

One from September 12, 2007, in front of Judge Borowicz; one from November 22, 2007, in front of Judge Bowden; and one from June 16, 2014, in front of Judge Gardner. All Judges heard the matters in the Youth Criminal Justice Division of the Provincial Court of British Columbia as K.A.S. was a youth at the time of the proceedings. [ 11 ] Of particular note to these proceedings are two psychological assessments filed in this sentencing hearing. One is a psychological assessment completed by Doctor Stangland, a registered psychologist with Forensic Psychiatric Services, dated January 11, 2016.

The other is a psychological assessment completed by Dr. Posthuma on October 2, 2015. Dr. Posthuma is also a registered clinical psychologist. [ 12 ] I say of “particular note” as this sentencing hearing took several days to complete. It is contended by the Crown that I should rely on the report of Dr. Stangland and not Dr. Posthuma’s. Conversely, counsel for the accused asks the court to give more weight to Dr. Posthuma’s assessments. THE PRE-SENTENCING REPORT [ 13 ] There is a pre-sentence report completed November 26, 2015 and filed with the court on December 1, 2015.

It has been filed as an exhibit and can be found at Tab 5 of Exhibit 1 in these proceedings. I will not repeat the details of the report but a few background factors are worth noting. [ 14 ] The report says K.A.S.’s father was an abusive drunk, but has a good relationship with his mother and sibling. He has one seven month old child, who is up for adoption. He did not finish high school. He told the writer that he was using crystal methamphetamine for about four months prior to his incarceration and believes that it “plays a big time role in his offences.”

[ 15 ] The report covers his criminal history and indicates that his adult probation officer referred K.A.S. to a violence prevention program in November 2014. However, the author notes that K.A.S. refused to attend on the basis that his supervision order did not contain a counselling condition. [ 16 ] The report lists possible treatment options open to K.A.S. THE CROWN’S POSITION ON SENTENCE [ 17 ] The Crown has made extensive submissions as to sentence. By way of general range, they seek a sentence of 8 to 10 years jail.

More specifically, it is argued that K.A.S. should receive an 8 year jail sentence for the break and enter and commit sexual assault. He should further receive an 18 month concurrent sentence for robbing Ms. M.A. With respect to Ms. A.F., they submit a 2 year sentence for each count, concurrent to each other but consecutive to the sentence imposed for the break and enter. [ 18 ] They submit that the circumstances of the offence, circumstances of this particular offender, the Victim Impact Statements, and numerous filed authorities all support a sentence of this length.

Both counsel are agreed that K.A.S. should receive the appropriate benefit of time served to today’s date. THE DEFENCE POSITION ON SENTENCE [ 19 ] Mr. Fingas, on behalf of K.A.S., suggests a global sentence of 4 to 5 years. He points to the youthfulness of his client, who is now 24 years old, but was 22 at the time of the offence. He submits that he has family supports and has been doing very well in custody. Also quite significantly, Mr. Fingas submits his client has expressed extreme remorse.

He submits that K.A.S. took issue with some of the words found in the admission of facts, however, he did not want the complainants to be cross-examined. As a further indicator of remorse, Mr. Fingas points out that he has entered guilty pleas. DISCUSSION [ 20 ] Before considering the psychological assessments, I wish to consider the authorities that have been submitted to me. I believe it is important for me to establish whether there is an appropriate range of sentence that can be ascertained.

If there is, I then wish to consider whether consideration of the psychological forensic report will further assist me in determining an appropriate sentence. THE CROWN AUTHORITIES [ 21 ] R. v. Barr , [1984] B.C.J. No. 2076 ,CA V44-84, is a British Columbia Court of Appeal case that deals with a 24 year old who broke into the home of a young mother and forced intercourse on her at knife point. The accused plead guilty and received an eight year sentence.

The Court of Appeal found at page 5 that: Breaking and entering…by itself is a very serious offence, but when it is coupled with sexual assault of the nature of this assault it is extremely serious. I think that the range for this type of case would normally be between six to eight years. [ 22 ] R. v. Haines , CA025165, is a 1999 decision of the British Columbia Court of Appeal. In that case, the victim was asleep in her house when the accused broke into her home and forced intercourse on her.

The Crown in our case submits that there is a parallel to be drawn between K.A.S.’s circumstances and the accused in Haines . Specifically, the Crown contends that the description of Mr. Haines in this passage can also be said of K.A.S. At paragraph six of that decision the court upheld the 7 year sentence and wrote: Mr. Haines is an individual who has extremely poor insight and limited judgment. He appears unable to learn from past consequences.

Thus, in spite of a history of numerous criminal charges, convictions and periods of incarcerations, he continues to re-engage in reckless, dangerous and criminal behaviours. Mr. Haines does not present as an individual with an underlying sexual deviant disorder. Rather, he appears to be a person of increasing criminal versatility, who selfishly and impulsively takes what he wants from others, be it their property or their personal safety and integrity….

Even after having pled guilty to the offence, and with his having almost absolute positive proof of his guilt, he continues to revert to primitive defence mechanisms of denial, minimization, rationalization and projection of blame onto his victim for the current legal problems in which he now finds himself. As a result of the interaction of these above factors, Mr. Haines is considered to be a potentially dangerous individual who is at significant risk of re-offending. [ 23 ] R. v. Schulz is a 2008 Provincial Court of British Columbia decision of the Honourable Judge Dossa.

The victim in that case was sexually assaulted in her own home by the accused who was on a conditional sentence order at the time and an undertaking to a peace officer. I accept that Mr. Schultz had a prior conviction for sexual assault, and this is certainly a distinguishing feature between that case and K.A.S.’s circumstances. However, I wish to rely on Judge Dossa’s analysis of the appropriate legal principles. In particular, I agree with her well thought out sentencing principles found from paragraphs 24 to 34, and I believe they are worth repeating here: [24]

Section 718 of the Criminal Code sets out a number of objectives aimed at addressing the fundamental purposes of sentencing. These are: denunciation, deterrence, protection of the public, rehabilitation, reparation, the promotion of a sense of responsibility in offenders, and an acknowledgement of the harm done to victims and the community.

[25] As stated by the Supreme court of Canada in R. v. C.A.M. (1996), (SCC), 105 C.C.C. (3d) 327 at para. 82: [82] … the relative weight and importance of these multiple factors will frequently vary depending on the nature of the crime and thecircumstances of the offender. In the final analysis, the over arcing duty of a sentencing judge is to draw upon all the legitimateprinciples of sentencing to determine a “just and appropriate” sentence which reflects the gravity of the offence committed and the moralblameworthiness of the offender. [24] Judge Dossa continues at paragraph 26: [26]

Section 718.1 mandates that a sentence must be proportionate to the gravity of the offence and the degree of the responsibility ofthe offender [27] In R. v.

C.A.M., supra, the Supreme Court of Canada distinguished retribution from denunciation, noting that the former requiresa judicial sentence to properly reflect the moral blameworthiness of the offender, while denunciation requires a judicial sentence tocommunicate society’s condemnation of the particular offender’s conduct. [28] In its discussion of denunciation, the Court noted at para. 81: [81] … the objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particularoffender’s conduct.

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’sconduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. [29] Denunciation and deterrence are particularly important principles of sentencing to be applied in cases of residential break-and-enters and sexual assaults as set out in R. v. Cromwell, 2005 ABPC 279 , [2005] A.J. No. 1846 (Prov.

Ct.) [25] I, too, agree with Judge Dossa’s decision at paragraph 34 of her reasons wherein she states that: [34] “The importance of the sanctity of one’s home is commented on by Saunders J.A. in R. v. Meigs, 2007 BCCA 394 ,[2007] B.C.J. No. 1659 (B.C.C.A.) at para. 25 where submissions quoted that a woman’s home is her castle from the old adage that aman’s home is his castle.

The court agreed that it is a grave offence to enter another person’s home without permission and graver toenter the home and violate the occupant… [26] In the case of Schultz, he was 19 years old and on a conditional sentence order at the time of the offence. He was remorseful,there was an early guilty plea, and he did not have a criminal record for violence at the time of the offence. In that case, there was apsychiatric assessment that found him to have anti-social borderline histrionic and narcissistic traits.

He was found to be at a high ratefor recidivism. [27] Judge Dossa considered seven different cases, all involving sexual assaults of women in their own home. The range of sentencein those cases was anywhere from 4 to 20 years, each case dependant on their own facts. Judge Dossa found a sentence of 7 years to beappropriate for Mr. Schulz, finding that the accused invaded the sanctity of the victim’s body, and inflicted both physical andpsychological injuries, causing her to feel terror for her life and safety. [28] The Crown refers to other authorities, such as R. v. Lund, [2006] B.C.J.

No. 2010, a Campbell River British Columbia SupremeCourt case where Justice Shabbits sentenced the accused to 8 years for breaking and entering and committing a sexual assault. I notethat in that case there was a jury trial. [29] As well, with respect to the assault causing bodily harm to Ms. A.F., the Crown has provided authorities and submitted that atwo year sentence is well within the appropriate range, again, after considering all the relevant sentencing principles. THE DEFENCE AUTHORITIES [30] R. v. Engerdahl , [1993] B.C.J.

No. 1921 is a British Columbia Court of Appeal decision where the accused received a threeyear sentence for breaking and entering into a woman’s home and committing the indictable offence of sexual assault. The sentencingjudge in that case said:

When this case is reduced to the bare facts, it becomes apparent that it is a situation in which a very serious offence has been committed by a person with no prior record and for no apparent reason. [ 31 ] The Court of Appeal held that the three year sentence imposed was not an unfit sentence. Chief Justice McEachern commented that it was a “lenient but fit sentence”. I do not have the benefit of the evidence that was heard in Engerdahl . Thus, I am not able to comment as to what motivated the sexual assault in that case. However, it is my view that forcing intercourse on a female is

an act of pure aggression. It is motivated by a purely violent motive. As well, I do not know the antecedents of Mr. Engerdahl, but I do not believe he was on a conditional sentence order at the time of the offence. [ 32 ] R. v. Gaunt , [1994] B.C.J. No. 2182 is another Court of Appeal case tendered by the defence. In that case, a 75-year-old woman was sexually assaulted in her own home. The accused received a four year sentence of imprisonment that was upheld by the court.

In that case the Court of Appeal comments at paragraph 9 that with respect to the accused “the sense of shame he says he experienced after the incident is but the beginning of his rehabilitation.” It appears that alcohol played a major factor in the sentencing Judge’s analysis. [ 33 ] With the greatest respect, I prefer the analysis in R. v. Munt , a 2012 British Columbia Court of Appeal case wherein Justice Kirkpatrick wrote on behalf of the court reasons concerning the sexual assault of a woman in her home by Mr. Munt. The circumstances of Mr. Munt are different of those of K.A.S.

In both cases, however, the accused had entered the home of the complainant without permission and forced intercourse on their victims. [ 34 ] By way of mitigating circumstances the court reiterated the findings of the trial court as found at paragraph 42 of the trial court’s reasons: [42] Reviewing the mitigating and aggravating factors, an important mitigating factor here is that Mr. Munt does not have a prior criminal record. The defence also points out, quite rightly, that the offence is quite dated for reasons not due to any actions taken by the accused in delaying trial. The offence was over four years ago.

Mr. Munt has been on bail for more than four years without any incident. There is no suggestion that he has repeated sexually deviant behaviour. [43] Mr. Munt has a strong family support network and has filed six letters of support. He is employed and in a long-term stable relationship. He has a very young child. I have also noted that he was very young at the time of the offence, just 26. I have also taken into account the defence submission that there was alcohol and marihuana that could have played a role in affecting Mr.

Munt ’s judgment. [44] The aggravating factors here include the fact that the victim had both her home and her person violated by Mr. Munt . She was completely vulnerable at the time, unable to call out for help or to move. Mr. Munt ’s actions were an extreme violation of her security as a person and her dignity and privacy. His actions left her with ongoing emotional difficulties which is not unexpected from a crime of this nature.

She was young, only 28, when this terrible incident happened to her. [ 35 ] In that case, the Crown and defence conceded that the principles of general deterrence and denunciation were two of the main principles of sentencing. The Crown in that case proposed a sentence of 4 to 5 years and the defence sought a conditional sentence. In the case at bar, Mr. Fingas seeks a global sentence on behalf of his client for all offences in the range of 4 to 5 years. [ 36 ] Mr. Munt received a sentence of 30 months.

I think it is important to point out that his situation was mitigated by many factors that K.A.S. does not benefit from. For example, amongst other differences, Mr. Munt had no criminal record. [ 37 ] Other cases where conditional sentences orders were mentioned in submissions. Albeit, simply to show that there are alternatives to incarceration that have been imposed in the past. As well authorities were provided to suggest that a lower range of sentence in the 4 or 5 year range would be appropriate. [ 38 ] R. v. Burman , [2014] B.C.J.

No. 359 (B.C.S.C.) , I found to be very useful in relation to the assault on Ms. A.F. In that case, assaults were committed on prostitutes and monies were taken from them. Justice Wong sentenced the accused to two years jail with probation to follow. I note that this sentence was also imposed as a result of a trial. THE RANGE OF SENTENCE [ 39 ] I accept that the appropriate range of sentence for the break and enter and committing sexual assault is 6 to 8 years as set by the Court of Appeal in R. v. Barr . However, I wish to be clear.

I also accept that in some circumstances, accused have been sentenced to lower sentences that fall outside of the range. On this point, it is true that there are authorities that provide sentences outside this range. In some cases, the Court of Appeal has found these sentences to be fit – or rather, not unfit. For example, in a case of a 4 year sentence found to be fit, I do not take these cases to extend the range.

Nor do I support the argument that ‘four years was fit in that case, so it might or should be fit in this case.’ [ 40 ] There are many authorities that highlight the notion that the sentencing process is a highly individualized process. Rarely, if ever, are two cases ever so identical that one sentence imposed on one offender must be exactly the same as the sentence imposed on a different offender. Certainly, I am guided by and responsive to other decisions.

[ 41 ] In my view, the application of sentencing principles must be weighed very carefully. Competing sentencing principles need to be balanced and there is no one sentencing principle that should ever be over emphasized. An offender is always entitled to the benefit of the doubt. [ 42 ] With respect to the range of sentence for the assault on Ms. A.F., I believe the appropriate range of sentence is anywhere from a suspended sentence to the higher end of 2 years jail. AGGRAVATING FACTORS Criminal Record [ 43 ] K.A.S. has a criminal record. There are 13 convictions.

As a youth he had two assaults, a breach of undertaking and a possession of weapon for a dangerous purpose. His adult record consists of mostly drive while prohibited convictions. [ 44 ] In addition to an unrelated property offence, he was sentenced on June 16, 2014 for a possession for the purpose of trafficking and assault charge. He received 21 days credit for time served and a 5 month conditional sentence order. This means that he was on a conditional sentence order when the robbery and assault causing bodily harm against Ms. A.F. was committed.

This sentencing took place approximately six weeks after the offence against Ms. M.A. [ 45 ] I believe understanding the time line around the offence dates is useful in understanding how out of control K.A.S. was. • February 29, 2014 he is charged with a drug charge. • May 1, 2014 he commits the offence against Ms. M.A. • June 16, 2014 he disposes of the drug charge and older assault charge. • (November 2014 is when the conditional sentence order would expire). • October 7, 2014 he robs and causes bodily harm to Ms.

A.F. • October 16, 2014 he is charged with his fifth drive while prohibited. • October 16, 2014 he is also charged with flight from police officer. • November 13, 2014 he pleads guilty to the DWP and flight charge. [ 46 ] His record is related. It also shows an individual who does not do well on court ordered conditions. His fifth drive while prohibited and choice to take flight from an officer on that occasion is indicative of an impulsive decision maker. He has had about five years to deal with some of these issues through rehabilitative measures.

Impact on Victim [ 47 ] 718.2 (a) (iii.1) of the Criminal Code asks me to consider whether the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation. [ 48 ] Even though the Victim Impact Statements of both Ms. M.A. and Ms. A.F. are found at Tabs 2 and 3, Exhibit 1, of these proceedings, I believe they are both worth repeating. [ 49 ] These two women will be forever traumatized and emotionally scarred from the crimes that K.A.S. committed on them. Nature of the Offence [ 50 ] The sexual assault was violent.

He entered Ms. M.A.’s home to commit it. The assault on Ms. A.F. was brutal and had long lasting effects. He kicked her in the head and facial area while she was unconscious. Both of these women were vulnerable. [ 51 ] Both the crime against Ms. M.A. and Ms. A.F. has a maximum punishment of life imprisonment. MITIGATING CIRCUMSTANCES Remorse [ 52 ] Counsel for the defendant indicates that he has pled guilty to these offences and that is a sign of his remorse. Even more so, I believe, it has saved the tax payer a significant amount of money.

I also accept the submission of K.A.S.’s counsel that he sincerely did not want to have the two victims cross-examined. This too, in my view, is a sign that he is somewhat aware of the harm that he has caused and that he did not want to create a situation where the victims were ‘double victimized’ by the trial process. [ 53 ] I further accept his counsel’s submission when I am told that “he is aware that he has ruined her life”, referring to Ms. M.A.

[ 54 ] On the other hand, the Crown relies on the psychological assessments and argues that he is not remorseful. I will discuss the psychological assessments later in these reasons. Youthfulness - Will Benefit From Rehabilitative Measures [ 55 ] He is a young man. There is hope that he can benefit from programming and turn his life around. While in custody, he has completed many pre-trial modules that, to me, show a keenness to “become a better person”. [ 56 ] With respect to causation, the defence submits that “there are underlying issues to do with anger and personality, not just the use of drugs”.

Guilty Plea [ 57 ] I have already taken into account the idea that a guilty plea can be considered an indicator of remorse. However, I believe a guilty plea deserves a special recognition as a mitigating factor. Without guilty pleas, criminal matters in our justice system would take a much longer time to conclude. Victims would have a less timely sense of closure. Accused individuals may not benefit from a timely trial. As well, as I mentioned, victims would be subject to cross examination.

The tax payer would also suffer great expense if all matters went to trial. [ 58 ] It is my view that pleading guilty instead of having a trial should be considered a significant mitigating factor when determining an appropriate sentence. CONCLUSION AS TO SENTENCE [ 59 ] Taking into consideration the totality of the mitigating and aggravating circumstances, some of which I have highlighted in these reasons, I believe an appropriate sentence for the breaking and entering and sexual assault, on Information 208119 of Ms. M.A., is 7 years.

If this was not a guilty plea, and the other mitigating factors did not exist, I would consider imposing a significantly higher period of incarceration. [ 60 ] With respect to the robbery of Ms. M.A., in taking her purse after brutally attacking her, I sentence K.A.S. to 12 months concurrent to the sentence imposed for the break and enter. [ 61 ] Now I turn to the crimes committed against Ms. A.F. Having considered all the mitigating and aggravating circumstances of the offence, as well as the background of K.A.S. and the nature of the offences against Ms.

A.F., I believe an appropriate sentence is 18 months for the robbery to run consecutive to the 7 year sentence already imposed, and an additional 18 months for the assault causing bodily harm charge to run concurrently to the first 18 month sentence, as amended, in Count 3 of Information 207641-C-4. [ 62 ] In

summary, I sentence K.A.S. to 7 years for the break and enter and commit sexual assault on Ms. M.A., 12 months concurrent to that sentence for robbing Ms. M.A. [ 63 ] A further 18 months consecutive is imposed for the robbery of Ms. A.F. and concurrent to this sentence is 18 months for assault causing bodily harm to her. [ 64 ] The total sentence is 8 ½ years, or 112 months. [ 65 ] From this sentence, the amount of time served should be subtracted. DO THE PSYCHOLOGICAL REPORTS ASSIST ME IN DETERMINING A DIFFERENT SENTENCE? [ 66 ] This sentencing hearing was lengthy.

A number of days were used to examine and cross-examine two experts that prepared Psychological Assessments of K.A.S. Dr. Posthuma created one report on October 2, 2015. The defence relies on this report. Another report upon which the Crown relies was created by Dr. Stangland on January 11, 2016. THE EVIDENCE OF DR. STANGLAND [ 67 ] Dr. Stangland is very experienced in the assessment and treatment of violent sexual offenders. He prepared the report and relied on a PHD student to administer some of the tests. [ 68 ] In chief examination the Crown elicited certain information from Dr.

Stangland and emphasized certain parts of his report to make certain points. [ 69 ] First, when asked about his impression of K.A.S., Dr. Stangland said “He left the impression that he was minimizing what had happened.” At page two of his report he wrote: It was my impression that he was motivated to present himself in as positive light as possible, suggesting that he may not have been very forthcoming, particularly with regard to his criminal history and behaviour.

He claimed no memory for most of what transpired in the incident that resulted in the breaking and entering and committing a sexual assault charge and the details that he provided about the robbery and assault causing bodily harm charges were at considerable variance from the statements of the victim. [ 70 ] The Doctor further observed that K.A.S. told him that he was driving around when he ran out of gas and decided to siphon gas from a car, leaving the impression that he did not know Ms. M.A. In actual fact, as the Doctor confirmed, “He lived [location removed

for publication]”. [ 71 ] After reviewing the results of numerous tests administered, Dr. Stangland told the court that: I am fairly confident that he has a personality disorder.

Given the pattern of drug abuse, personality style, and the fact that many activities are oriented towards stimulation. [ 72 ] When the Crown asked him to further clarify his diagnosis he said: “He is histrionic, maybe with a compulsive anti-social personality disorder.“ In providing a brief description as to what he meant by an anti-social personality disorder, he said that people with this diagnosis often have “a hardened attitude of people, a lack of empathy and a harsh view of other people in the world.” [ 73 ] Dr. Stangland was asked whether K.A.S. was a pathological liar.

In answer to this question he said: I felt he was not terribly forthcoming, distorting the truth about particular things, ie: his offending history. General minimizing also applies as his whole story around the break and enter and sexual assault was very vague; I didn’t feel I was getting an honest picture. [ 74 ] On the topic of remorse, the Doctor testified that in viewing K.A.S.’s history, he “bragged” about assaulting a 61 year old man; made it sound like Ms. A.F. was trying to steal from him when he took her purse,” and as a result he scored K.A.S. very low on remorse. In cross-examination Dr.

Stangland told the court that “I have a problem that if you are genuinely remorseful, how would you repeat the same type of offence five months later – I didn’t see him accept responsibility for what was happening.” In fact, on a scale of one to three, he gave him a one, simply because K.A.S. claimed to be remorseful. [ 75 ] As to K.A.S.’s behavioural controls, Dr.

Stangland pointed to K.A.S.’s background, pointing out that he: had quite a history of physical conflicts, fights, he was quick tempered, has raped, abused drugs: if things pop into our heads we can dismiss them, he cannot. [ 76 ] When responding to questions around sexual offending and recidivism, Dr. Stangland pointed out that there are generally two factors to consider: first, background factors; and second, arousal factors. He testified that: when they won’t tell you anything about the offence, you have to speculate as to the details or triggers.

In research and sex offender psychology, there are facilitating factors, such as power and control. But I do not have any of that information. Here we have two quite extreme acts and I expect it is highly unlikely that they came out of the blue. [ 77 ] Dr. Stangland in his testimony confirmed his conclusions found at page 21 of his 22 page report wherein he writes: On the basis of this risk assessment, I would be inclined to view him as being at high moderate to high risk for future offending.

The level of coercion and violence involved in his offenses is clearly a source of concern, suggesting that any recidivism on hi

part is likely to have serious consequences for a victim. At this point in time, he seems to be placing responsibility for his actions entirely upon the effects of drugs that he was using at the time and he lacks any insight into his personal motivation or factors in his offending. [ 78 ] It is very important to note, that I believe Dr. Stangland was not exactly ‘diagnosing’ K.A.S. in his report or in his evidence in court. He made it clear what he believed and added “but there is a lot of missing information, for example, what was going on at the time of the offences?” EVIDENCE OF DR. POSTHUMA [ 79 ] Dr.

Posthuma is also eminently qualified. He has extensive experience in assessment, diagnosis and treatment of offenders. His practice is almost exclusively forensic based. On the topic of qualifications, Dr. Posthuma was quite proper to acknowledge that Dr. Stangland had more recent experience in assessing and treating certain offenders. [ 80 ] However, I wish to make it clear that it is my view that it is not a question of which expert I believe more.

The true test to me is whether the expertise as provided by either expert can assist me in determining a fair and just sentence, taking into account all the sentencing principles. [ 81 ] Dr. Posthuma administered many of the same tests as Dr. Stangland. However, I think it is fair to say, that he has a different

interpretation of his findings. For example, with respect to ‘truthfulness’, and in contrast to Dr. Stangland’s view, Dr. Posthuma told the court that K.A.S. is simply a ‘poor historian’. “K.A.S. has cognitive problems; he may have a brain deficit”, and as a result, his inability to recount information is not an issue of being untruthful. [ 82 ] Dr. Posthuma found K.A.S. to be “at low risk to re-offend”. He testifies to this and confirms his conclusions on the last page of his report.

He further contends that K.A.S. “has made poor choices because of his cognitive difficulties, not because of psychopathy”. [ 83 ] With respect to remorse, Dr. Posthuma recounts being told by K.A.S. that he “remembers when he got back home he cried for quite some time in his truck.” He pointed out that K.A.S. is not an emotional person and that he doesn’t really cry often and this act of

crying is indicative of remorse. [ 84 ] Dr. Posthuma was asked to give his opinion with respect to sexual offending and recidivism. He was specifically asked by the Crown whether “The best predictor of future behaviour is past behaviour?” In response, he testified that: Yes. But some people can change…. I think he will need to deal with his substance abuse problem, not sex offender treatment…. He has learned a few things but needs to learn more. [ 85 ] This opinion is in contrast to Dr.

Stangland’s view that “there is no clear link to show that crystal meth makes people violent or sexually aggressive”. [ 86 ] One way or the other, if the submission is “the crystal meth made me do it”, I would find this reflective of minimization. As well, with the greatest respect to the qualifications of Dr.

Posthuma, I have a difficult time understanding how a person who commits such a violent sexual assault on a woman does not require sex offender treatment, whether or not they were abusing substances at the time of the offence. [ 87 ] After a very aggressive cross-examination by the Crown it became clear that Dr. Posthuma and Dr. Stangland have the ability to score certain tests in a subjective matter. As a result, the end result “numbers” may reflect a different degree of risk.

Final Comments of Expert Psychological Reports and Evidence [ 88 ] I am not persuaded that finding K.A.S. to be at a high risk versus low risk to re-offend changes my opinion of an appropriate sentence. To be clear, I do not find that relying solely on Dr. Stangland’s report or Dr. Posthuma’s report would make me adjust the sentence higher or lower. [ 89 ] Both reports are helpful. Both Doctors were able to provide me with some knowledge as to the future prospects of K.A.S. Even Dr. Stangland believes further tests need to be done to better understand K.A.S.’s future behavior. Dr.

Posthuma’s evidence leads me to suspect that substance abuse is an issue that will need to be addressed. [ 90 ] In the end result, whether as a result of a brain deficiency, substance abuse issue or some other unknown factor, K.A.S. has committed very serious violent offences.

CONCLUSION AS TO SENTENCE [ 91 ] I have taken into consideration all the authorities that have been given to me by counsel and have considered the circumstances of those offenders in relation to the circumstances of K.A.S. [ 92 ] In considering the principle of totality and restraint, I am aware that consecutive sentences have been imposed, but I am not of the view that the total global sentence is unfair or unduly harsh. In considering this position, I have put my mind to whether other available sanctions, including lower or concurrent sentences, would be appropriate in the circumstances.

The crimes committed were against two separate individuals, at two separate times. [ 93 ] I do not believe I could express the law any better than Justice Kirkpatrick as was stated in R. v. Munt , supra , at paragraph 15 when the court wrote: The community is entitled to be protected from such vile conduct and others who may be so inclined must be firmly discouraged. [ 94 ] Once more, I recognize the extreme youthfulness of K.A.S. He was even younger at the time of the offence. I understand the argument that sentencing such a young man to a lengthy penitentiary term may seem unduly harsh.

I find Justice Kirkpatrick expresses this court’s view in Munt , supra , at paragraph 17, in referring to R. v. S. (J.S.) , 2001 MBCA 144 , at paragraph 37 (square parenthesis are mine) : [37] I recognize that to the accused, his family and friends, it must seem unduly harsh to sentence such a seemingly good young man to a penitentiary term when the availability of a conditional sentence [or I would say the alternative sentence such as less time] is not too far away.

Surely, they might think, society has more to gain by sentencing him to a remedial conditional sentence [or a period of incarceration in a smaller amount] with its own elements of denunciation and general deterrence. The answer lies in the need to say, as loud as the judicial system can say it, that conduct of this kind will simply not be tolerated.

In particular, potential victims must be assured that, to the extent possible, the law protects them and potential offenders must know that, if they dare to commit such an offence, the firm hands of the law, without kid gloves, will be upon them. [ 95 ] In conclusion, I believe the sentence imposed takes into account the gravity of the offence and the moral blameworthiness of the offender. The Honourable Judge A.M. Wolf Provincial Court of British Columbia