R. v. Paul, 2013 BCSC 1331

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Paul, 2013 BCSC 1331 Date: 20130628 Docket: 59765-2 Registry: Chilliwack Regina v. Preston Leonard Sonny Paul Before: The Honourable Mr. Justice Grist Oral Reasons for Sentence Counsel for the Crown: B.C. Fell Counsel for the Accused: M. Cheema Place and Date of Hearing: Chilliwack, B.C. June 28, 2013 Place and Date of Sentence: Chilliwack, B.C.

June 28, 2013 [ 1 ] THE COURT: The accused, Preston Paul, has pleaded guilty to the sexual assault of his 16-year-old niece. [ 2 ] The offence occurred after a day of heavy drinking during which the victim was supplied liquor by the accused at a house party. When the police attended, the accused, the victim, and others left to a second residence where they were going to stay the night. The niece was again given liquor following which she went to sleep in the top bunk of a children's bunk bed with a younger child asleep on the bottom bed of the unit.

She was intoxicated and woke to find the accused over her finishing having intercourse with her, following which he left the room. [ 3 ] The accused is 43 years of age.

He has an extensive criminal record containing many convictions for assault, theft, and possession of stolen property, along with numerous counts of breach of probation and undertakings, all coincident to a lifelong history of substance abuse, in particular alcohol, and at a later point, crystal methamphetamine. [ 4 ] The only facts that can be salvaged from the record are that there are no prior sexual assaults and that the sentences that have been imposed have been generally less than six months, indicating matters of a severity such as were appropriate for prosecution as

summary conviction offences. [ 5 ] A pre-sentence report, a Gladue report, and a psychological assessment have been prepared for this proceeding and they identify that Mr. Paul is the product of a highly dysfunctional aboriginal family which can be identified as having been the product of destructive historical systemic treatment. Accordingly, s. 718.2(

e) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 [ Criminal Code ] is relevant in considering this sentence. [ 6 ] That said, however, there are serious aggravating circumstances to be considered. The victim was just 16 at the time of the offence and is the accused's niece. She had been supplied alcohol to the point of intoxication and was sleeping over at a residence occupied – at least for that night – by the accused. These factors establish a breach of trust. She should have been able to expect a degree of trust in the accused.

Instead, he used the circumstances for his own sexual gratification. [ 7 ] The accused has spoken today and has expressed what I determine to be a real measure of remorse for the offence, albeit at the start, he did not realize and in fact was critical of the girl in her reporting of the incident. This, from the psychological report, may be associated with his level of intellect and lack of insight into the consequences of his actions, which have also been prevalent factors associated with his past offences.

What he said today suggests a growth in insight in that regard. [ 8 ] The Gladue report identifies restorative and rehabilitative programs available to aboriginal offenders, both those outside of centres of incarceration and those within provincial and federal jail settings. [ 9 ] Mr. Paul's record of compliance with community-based programs - and his originally stated refusal to participate in sexual offender programming - cause concern as to his future participation in a non-custodial setting.

Nonetheless, I keep in mind that there are settings which can, I think, be of assistance to him and which he has today expressed an interest in attending. One in particular is the Round Lake Institution near Kamloops. [ 10 ] Both provincial and federal institutions offer aboriginal programs. No notable distinctions have been offered in this case although I note that within the provincial program, Mr. Paul has already participated in native programs both at Kamloops and at Fraser Regional. Letters received from native support workers associated with those institutions are generally hopeful for Mr. Paul's continued

progress. [11] Focussing on the aggravating circumstances of this offence, the Crown suggests a range of four to eight years, and inconsideration of the specific circumstances, a recommendation of six years was put forward. [12] I am mindful of the over-representation of aboriginal offenders in jails in this country and the progress that Mr. Paul has madewhile in remand custody, but this also has to be weighed in light of the direction at para. 79 of R. v. Gladue, (SCC),[1999] 1 S.C.R. 688: [79] Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered.

In somecircumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender.Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment foraboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. [13] I also note that aboriginal women are the most likely victims of such an offence as this and they are just as deserving of anyprotection that denunciation and deterrence and separation of the offender from society can offer. [14] Of the cases cited, two cited by the Crown are particularly relevant on their facts: R. v.

Payou, 2012 NWTSC 29 [Payou]; andR. v. Sherrard, 2012 NUCJ 4 [Sherrard]. R. v Payou is a decision of Mr. Justice Richard, a former senior judge of the NorthwestTerritories. R. v. Sherrard is a decision of Kilpatrick J. of the Nunavut Court of Justice. Both cases involved aboriginal offenders andaboriginal victims in circumstances where the young victims were intoxicated and the accused took advantage of their situation tocommit sexual assaults upon them. The sexual assaults included full sexual intercourse. [15] In Payou, the accused had something of a similar past history to that of Mr. Paul.

The matter was aggravated because he was onbail for an earlier sexual assault. In determining sentence, Mr. Justice Richard commented that four years was appropriate but that inlight of the already imposed sentence on the previous sexual assault, and considering the totality principle, this would be in thosecircumstances reduced to three years. [16] In Sherrard, the offence was out of character for the accused but involved an aggravated sexual assault and considerablephysical injury to the victim. A sentence of four-and-one-half years was imposed. [17] Mr.

Justice Richard references a starting point for sentences with respect to offences of the character of that in Payou, that beingat three years. This invokes a target sentencing approach spoken of in an Alberta Court of Appeal case R. v. Arcand, 2010 ABCA 363. [18] In British Columbia we are more familiar with an expressed acceptable range of sentences for cases falling within the usualparameters. Here, I judge that to be within a range of two to five years for offences of roughly this sort. [19] In the aggravated circumstances of this case, I would judge the appropriate sentence to be 3½ years.

There is also to be takeninto consideration 12½ months of actual predisposition custody which I would credit at the rate of 1 to 1½, roughly, and give him creditfor 18 months. I fix upon that ratio in light of lost opportunity to accumulate statutory remission. [20] Mr. Paul does not have a proven record of compliance with community supervision.

However, the recent reports of progresssuggest that this may be a case where he is able to turn his life around, and statutory remission might in fact be something he couldrealistically take advantage of without being returned to jail. [21] I also consider that this is a case that may, notwithstanding the history of Mr. Paul on probation, which has been little short ofdeplorable, nonetheless offer in this instance some prospect of continued rehabilitation aided by a period of probation. That can only beassociated with a sentence of two years or less. Mr.

Paul has already made some progress within the provincial institution andaccordingly taking all of these features into account, I think the appropriate sentence here is two years less a day with a further provisionfor one year of probation on the terms recommended within the pre-sentence report. [22] Does that raise any particular concerns or issues or are there any other terms you would suggest, Mr. Fell? [23] MR.

FELL: No, My Lord. [24] THE COURT: Additional to that sentence, a s. 109 prohibition against possessing the items indicated in that section, mostnotably firearms, ammunition or explosives will be imposed. Mr. Paul will be required to submit a sample sufficient to determine hisDNA profile. There will be a Sex Offender Information Registration Act, S.C. 2004, c. 10, order for a minimum term of 20 years. [25] Does that leave anything unresolved? [26] MR.

FELL: I think that covers everything, My Lord. [27] THE CLERK: (indiscernible) the DNA is primary or secondary, My Lord? [28] THE COURT: I think it would be a primary designated offence. [29] THE CLERK: Thank you. And also with the 3.5 years is the appropriate sentence less 12.5 months becomes 18 months’credit. Right? [30] THE COURT: Yes, I am just doing the arithmetic here. Sorry, 42 months less a day. [31] THE CLERK: Okay, thank you. [32] THE COURT: The sentence imposed is two years less a day with a one-year probation period.

[ 33 ] THE CLERK: Victim surcharge? [ 34 ] MS. CHEEMA: I ask Your Honour to consider waiving the victim fine surcharge as Mr. Paul has been in jail for quite a period of time. [ 35 ] THE COURT: Let me hear the Crown's position. Mr. Fell, do you see any point in that? [ 36 ] MR. FELL: I have no submission, Your Honour -- sorry, My Lord. [ 37 ] THE COURT: Your Honour is good enough, counsel. I will waive the victim surcharge. “W. Grist J.”