R. v. R.M. Date:, 2012 BCPC 530

Citation: R. v. R.M. Date: 20121024 2012 BCPC 0530 File Nos: 86730-2C; 86730-3A Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BAN ON DISCLOSURE – s.486.4(2) CCC REGINA v. J.M. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE BULLER BENNETT Counsel for the Crown: S. Lindstrom Counsel for the Accused: N. Preovolos Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: December 28, 2011, October 23 & 24, 2012

Date of Judgment: October 24, 2012 [ 1 ] THE COURT: Mr. R.M. has pleaded guilty to charges on two informations. The first one in time is 86730-C2. Count 2, that from the 1st day of March, 2011, to the 6th day of April 2011, inclusive, at or near Port Moody, in the Province of British Columbia, did sexually assault Z.R., contrary to s. 271(1) of the Criminal Code .

He pleaded guilty to a charge on Information 86730-A3, Count 1, that on or about the 10th day of September, 2011, at or near Coquitlam, in the Province of British Columbia, being at large on a recognizance entered into before a justice or a judge, and being bound to comply with a condition of that recognizance, as directed by a justice or a judge, did fail without lawful excuse to comply with the following condition or direction: You shall have no contact, directly or indirectly with D.R. or Z.R., except supervised contact arranged through the Ministry of Children and Families, contrary to s. 145(3) of the Criminal Code . [ 2 ] There is an agreed statement of fact regarding the C2 information, and I will read those facts into the record [as read]: 1.

J.R.M. is the biological father of the complainant, Z.R. [DOB]. 2. Mr. R.M. moved to Canada from Colombia in July of 2006. He was joined by his spouse, N.R., and their two children, when they immigrated from Colombia in November of 2010. The family lived together in an apartment located in Port Moody, B.C. 3. On or about April 6, 2011, N.R. read the contents of a diary kept by her daughter Z.R., who was eight years old at the time. Afterwards, N.R. picked her daughter up from school and discussed the contents of the diary.

In the course of their conversation, Z.R. advised her mother that her father had touched her vagina underneath her clothing on more than one occasion. As a result of this disclosure, N.R. confronted her husband, together with Z.R. 4. Mr. R.M. initially denied the allegation and brought his wife and daughter to a local medical clinic in order for Z.R. to be examined by a doctor. This led to a police investigation by the Port Moody Police Department. 5. The following day Mr. R.M. contacted his wife by phone and in the course of their conversation, admitted to touching his daughter's vagina. 6. Mr.

R.M. admits to placing his hand underneath the clothing of Z.R. and touching her vagina on three to five occasions between March, 2011 and April 6, 2011. 7. The touching involved a stroking motion on Z.R.'s vagina and did not involve any digital penetration. 8. All of the incidents occurred inside the family residence. 9. All of the incidents occurred between March 1st, 2011 and April 6th, 2011. So those are the facts as agreed upon. [ 3 ] Regarding the breach on September 10th, 2011, Mr. R.M. was seen in a vehicle with all of his family members, including his daughter.

Of course, there was no supervisor as arranged by the Ministry. [ 4 ] I want to read into the record part of the

section entitled "Victim Information" in the pre-sentence report [as read]: This writer met with the victim's mother, Ms. N.R. (phonetic), who was able to provide information on the needs and current emotional state of her daughter. She informs she has sought therapeutic interventions for her daughter, with a Spanish-speaking play therapist, and has been attending for six months on a weekly basis. This was attained through the Crime Victim Assistance Act and she was awarded 24 sessions with the ability to seek more, if necessary. She continues to attend on a bimonthly basis and Ms.

R. feels this has been of benefit to her daughter. Ms. R. reports that at first her daughter exhibited signs of distress over the incident, and would often express guilt and remorse over her actions, and felt responsible for the breakup of the family. Ms. R. says that at first her daughter would refuse to write in her journal, something she enjoyed doing, but that over time her daughter has resumed her writing. Ms. R. further indicates that her daughter has requested that she would like Mr. R.M. to move home. Ms.

R. indicates she would like for her husband to move home and is willing to take responsibility for ensuring Mr. R.M. and her daughter are not alone together. She says she will continue to take the children to school and to do their activities, as Mr. R.M. will most likely be given area restrictions, disallowing him to attend at such places. She further informs that she will closely monitor her daughter's emotional wellbeing and is prepared to ask Mr. R.M. to leave should the situation cause her daughter distress. [ 5 ] Turning now to Mr. R.M., he is currently 53 years old.

He was born and raised in Bogota, Colombia. His parents have passed away, but he has five sisters and three brothers still in Colombia. He has the equivalent of a Grade 10 education, and further training in construction management. Mr. R.M. has been in a common-law relationship with Ms. R. for about ten years. They have a six-year-old son, and a daughter who now is nine years old. [ 6 ] Mr. R.M. came to Canada in July 2006 as a refugee claimant. He originally settled in Toronto. In 2009 he moved to Vancouver. Then in November, 2010, Ms. R. and the two children came to Canada.

All of the family are now permanent residents. They own a home in Port Moody and have lived in that home for about one year. [ 7 ] As a result of the charges, of course the Ministry of Children and Family Development became involved immediately. Originally, there was access and contact between Mr. R.M. and his children that were supervised by a Spanish-speaking social worker. The social worker became unavailable and ultimately the Ministry found that Ms. R. was concerned enough about her child's welfare that

she was designated as the access supervisor by the Ministry. [ 8 ] Mr. R.M. has been employed in the construction industry. His employment has been somewhat sporadic over the years, and the family has accumulated large debts. Mr. R.M. is the sole income earner for the family. [ 9 ] Much to his credit, while on bail, Mr. R.M. has started counselling with a Spanish-speaking counsellor. This is provided through MOSAIC Family Program. The counsellor, Mr. Comesaña writes that [as read]: Mr. R.M. has been attending weekly individual counselling sessions since February 20th, 2012.

Throughout those three months he has made a real effort to understand the reasons and beliefs behind his past offensive behaviour. [ 10 ] Drugs and alcohol are not an issue in Mr. R.M's life, or his offending, for that matter. [ 11 ] The pre-sentence report outlines, of course, the background. However, I should note for the record that there has been some difficulty in Mr. R.M.'s compliance. He has not always reported as directed, and he has not always kept the bail supervisor apprised of his current residence. Because of the family's financial situation, Mr.

R.M. has put his obligations to his family above his obligations to the court, and that is one of the reasons that led to the breach that he has pled guilty to. [ 12 ] I think it is important to read into the record the pre-sentence report

section on "Attitude and Understanding Regarding the Offence", and I will quote directly [as read]: Mr. R.M. says he recognizes his actions have caused his family a lot of harm, and that he feels ashamed for his actions. He was unable to provide a clear explanation for his actions, but denies having any sexual feelings for either his daughter, or children in general. When asked what he was thinking about as he touched his daughter's vagina, he replied "I don't know." He further denies being sexually aroused by the contact. This writer inquired as to whether Mr.

R.M. had been sexually abused as a child, or had witnessed family members being abused. He denies any abuse against himself and was not aware of any family members being abused. He reports he does not have any deviant sexual fantasies towards children, and is sexually attracted to adult females. He indicates prior to the offence he and his wife enjoyed a good marriage, which included consensual sexual activity. Mr. R.M. says that at the time of the offence things were going well for him in his life and he was not under any undue stress or using drugs or alcohol. This writer asked Mr.

R.M. what steps he will take to ensure he will not sexually offend in the future. He indicated he will continue to attend for counselling and reading books by psychologists. He further replied that things will be different at home and that he is going to instill more rules of "respect and no bad language". It was unclear to this writer what Mr. R.M. meant by this, or how it relates to him not sexually assaulting his daughter. [ 13 ] I just should point out for the record that the interview behind this pre-sentence report was done with the assistance of an interpreter.

Also there was an interpreter present for a forensic psychological report that I am going to refer to, as well. [ 14 ] I will refer directly to the "Client's Account"

section of the forensic psychological report [as read]: Mr. R.M. explained that there "wasn't much closeness" with his family members when they joined him in Canada. He stated that approximately six months after they arrived, his children were sitting on either side of him, and he placed his hand on his daughter's lower abdomen. He said this happened "three or four times". He later clarified that he touched her vaginal area on such occasions. Mr. R.M. said that he "never thought of harming anyone" and he "never thought to touch his daughter as a woman or in a sexual way".

He added, "at no time did I have a sexual appetite towards her". When I asked why he had touched her vagina, Mr. R.M. replied, "It wasn't because I had bad intentions". He explained that he had hoped to feel "closeness as her father" and was trying to "enhance family relations". In response to a question asking whether his actions were wrong, he said "If I had continued, yes." He explained, though, that he did not feel what he did was wrong, because he "did not touch her with any bad intentions". He also indicated that he did not believe his daughter had been harmed in any way by what he had done.

Furthermore, he said that he felt "worse than a murderer" adding "what I least want is to be a disgrace to my family". [ 15 ] The psychologist who prepared the report, Dr. Nina Fusco, administered a variety of tests and came to some conclusions regarding assessment of risk, and I will just read into the record the conclusions [as read]: The STABLE-2007 is to be combined with the Static-99R and ultimate priority for treatment and consequently risk is determined by a matrix. Given a low Static-99R risk and moderate STABLE-2007 needs, the overall priority is considered relatively low. Dr.

Fusco went on to recommend a variety of treatments, including sex offender treatment programming. [ 16 ] Mr. Comesaña wrote in his letter to the court regarding Mr. R.M. the following [as read]: So far, after more than ten sessions, I perceive Mr. R.M.'s behaviour to be the result of an unclear motivation, which I tend to believe is based on some sort of misdirected form of affection, but with no sexual intent.

[17] Mr. R.M. does not have a criminal record. The Crown suggests for the sexual assault a six- to nine-month jail sentence withthree years' probation and the required ancillary orders. For the breach, Crown seeks a consecutive seven- to 14-day jail sentence. [18] Crown points out the mitigating factors. First, that Mr. R.M. has pleaded guilty, and pleaded guilty relatively early on. He didnot at any time want his daughter or other family member to have to testify in court. There is no criminal record, as well. [19] Crown pointed out the very serious aggravating circumstances.

The offence, the sexual assault involved a young child, and ofcourse the father or parent-child relationship is one of ultimate true trust, and that was breached. Further, the offence took place in thefamily home. [20] Crown relied on three cases and I will read the citations into the record. The first is R. v. R.N.S., the decision of the SupremeCourt of Canada, 2000 SCC 7 , [2000] 1 SCR 149, and briefly I will just read from the headnote: The accused was convicted of sexual assault and invitation to sexual touching in relation to incidents with his step-granddaughter.

Theoffences were committed between 1990 and 1994 and, at the time, the victim was between 5 and 8 and the accused was between 46 and50 years old. The trial judge sentenced the accused to nine months’ imprisonment. The conditional sentencing regime came into forceafter the accused was sentenced. The Court of Appeal allowed the accused’s sentence appeal and substituted a nine-month conditionalsentence. That conditional sentence was appealed and the Supreme Court of Canada allowed the appeal. I should point out, this stems from adecision of my now retired colleague, Judge MacArthur of this bench.

The nine-month jail sentence was upheld. [21] Crown also referred to the decision of R. v. T.(S.G.), a decision of the Saskatchewan Court of Appeal. The citation is 2011SKCA No. 4. Again, I will just read from the headnote [as read]: The accused's adopted daughter alleged the accused touched her in a sexual manner. The accused expressed regret for causing thedaughter potential emotional pain in an email sent to the daughter's mother. The email was admitted into evidence without objectionfrom defence at trial.

The Accused submitted that he was making reference in the email to an incident when he provided alcohol to hisdaughter and her friends. The trial considered the email apology as admission of sexual misconduct. The accused was convicted ofsexual assault. The accused appealed. The appeal was dismissed. Now, I should point out that the 18-month jail sentence was upheld. [22] Finally, the Crown referred to R. v. Johnson, a decision of the Alberta Court of Appeal, and the citation is 2010 ABCA 287. This case involved a sexual assault that took place on a bus.

The complainant was a 14-year-old, developmentally delayed female. Theaccused sat beside her on the bus, actually had another passenger move so he could sit beside her on the bus covered her with a blanket,and then when she fell asleep, sexually assaulted her. The court found on appeal that the offence was predatory. There was a priorcriminal record, and although the touching was not really at the serious end of the spectrum, the predatory and deliberate conductincreased or enhanced the blameworthiness of the conduct. The trial judge sentenced the accused to a 90-day custodial sentence to beserved intermittently.

That was quashed and a 12-month jail sentence was substituted. [23] Defence counsel asks me to consider a conditional sentence order, or alternatively something less than six months jail, in otherwords 90 days, so the sentence can be served intermittently. Defence counsel points out the importance of Mr. R.M.'s role of being thesole income earner for the family. Any disruption in his ability to earn an income will mean that the family will likely default on theirmortgage and lose their home. Also, defence counsel points out that Mr.

R.M. is continuing to pay the family expenses, so the familynot only would default on the mortgage, but without any financial support. Defence counsel further pointed out that the family wantshim home. Although I have to point out parenthetically, I wonder what choice they really have, given that he is the sole income earner. [24] I understand from defence counsel that Immigration status is a factor that I ought to take into consideration, and I do, because ifthe jail sentence is greater than six months there will be a deportation order issued under the Immigration and Refugee Protection Act.

Defence counsel distinguished the cases referred to by the Crown on their facts. I agree that the cases referred to by Crown counsel canbe distinguished on their facts, but they certainly are instructive on the principles of sentencing that apply in these types ofcircumstances. [25] There are mitigating circumstances. Of course, Mr. R.M. pleaded guilty very early on. He did not want to have any familymember testify in court, and he does not have a criminal record. [26] There are serious aggravating circumstances.

The sexual assault involved his own young child, three to five times, over arelatively short period of time. This was what I would call a horrendous breach of trust. The offence occurred in the family home. There is no real explanation as to why he committed the offences. And even though the family says they want him back in the familyhome, and even though Ms. R. is willing to ensure her child's safety, I wonder what their other options are. This goes to trust. [27] It concerns me also that Mr. R.M. has not given significant importance to compliance with the terms of court orders.

Certainlydeterrence and denunciation are primary considerations in sentencing. Also protection of the public is important, especially for anyoffence where a child is involved. [28] In my view, there has to be a jail sentence. The issue is the length of the sentence and how it is going to be served.

[ 29 ] I considered a six-month jail sentence, but in my view, that could not be properly served in the community because of Mr. R.M.'s lack of compliance with court orders. Serving a jail sentence in a real jail, in my view, would re-victimize the victim, as the family would be eventually out of their own home with no support. [ 30 ] As I have said, there has to be a jail sentence, in my view, to address the principles of sentencing. Given the mitigating circumstances on sexual assault, it is my view that the appropriate sentence is a 90-day jail sentence to be served intermittently, so that Mr.

R.M. can continue to support his family, but also to denounce and deter. [ 31 ] So for the sexual assault matter, there will be a 90-day jail sentence to be served intermittently, in other words, on weekends. [ 32 ] Mr. R.M., this is a probation for three years. During that time you have to keep the peace and be of good behaviour, and you will serve your intermittent sentence as this probation order runs.

These are the terms on the order. [ 33 ] You will report by 4:00 p.m., Thursday, October 25th, 2012, to a probation officer in this building and report thereafter as and when directed by your probation officer. [ 34 ] You will give your probation officer your home address, and you will not change that address without the prior written permission of your probation officer. [ 35 ] You shall attend, participate in, and successfully complete any assessment, counselling, or program, as directed by the probation officer.

Without limiting the general nature of this condition, such assessment, counselling or other program may relate to sexual offence prevention, or other program as may be directed by the probation officer, and you shall comply with all rules and regulations of any such assessment, counselling or program. [ 36 ] You must not have any contact with any person under the age of 16 years unless accompanied by an informed adult, approved of in writing, in advance, by a probation officer. [ 37 ] You are prohibited from being at, in, or within 100 metres of any playgrounds, school grounds, public parks, public swimming areas, community centres, day care centres, or other sites where children congregate, unless in the presence of an informed adult supervisor, previously approved of in writing by a probation officer. [ 38 ] You may reside with your family, but you are not to be in the company of your daughter, Z.R., without your wife or other adult present, as approved by a probation officer. [ 39 ] Turning now to the jail sentence. [ 40 ] You are imprisoned for a term of 90 days to be served intermittently.

The first day of the sentence shall be served today, and you will be classified to the appropriate facility.

Thereafter, the sentence will be served commencing on Friday, October 26th, 2012, at 6:00 p.m. to Sunday, October 28th, 2012 at 6:00 p.m., and on consecutive weekends thereafter until the sentence is completed. [ 41 ] On each occasion when a part of the intermittent sentence imposed for this offence is to be served, you must arrive at the place where the sentence is to be served in an entirely sober condition and not under the influence of alcohol or drugs of any description, except as prescribed by a medical doctor. You must obey the rules and regulations of the institution. [ 42 ] Now, regarding the breach.

Credit will be for time served of three days. The sentence is one day, which is today, and that is served concurrently with the jail sentence of 90 days. [ SOIRA ORDER] [ 43 ] THE COURT: There will be a DNA sample taken, and I think that is done today, please correct me if I am wrong. [ 44 ] THE SHERIFF: Yes. [ 45 ] THE COURT: Yes. That will be done by the sheriffs today. [ 46 ] Given the nature of the finances of the family, I am waiving any surcharges. [ 47 ] Outstanding counts, please on both informations? [ 48 ] MS. LINDSTROM: Yes, I will direct a stay of proceedings, Your Honour, on both.

Thank you. [ 49 ] THE COURT: Mr. Churchill-Browne, thank you very much. [ 50 ] THE INTERPRETER: Thank you, Your Honour. (REASONS FOR SENTENCE CONCLUDED)