R. v. Preuschoff Date:, 2012 BCPC 73

Citation: R. v. Preuschoff Date: 20120126 2012 BCPC 0073 File No: 116949-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROLAND ROLF PREUSCHOFF BAN ON DISCLOSURE s. 486.4

(2) CCC REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. R. GARDNER Counsel for the Crown: J. Lopes Counsel for the Defendant: M. Kajoba Place of Hearing: Surrey , B.C. Date of Hearing: November 3, 4; December 1, 2011 Date of Judgment: January 26, 2012 [ 1 ] THE COURT : The accused, Mr. Preuschoff, has been found guilty of sexual assault contrary to s. 271(1) of the Criminal Code , and forcible confinement contrary to s. 279(2) of the Criminal Code. Both of these offences have a maximum sentence of ten years. [ 2 ] These convictions stem from an incident that occurred on the morning of February 10th, 2001. Mr.

Preuschoff met the victim on the street and made arrangements for sexual services in exchange for money. [ 3 ] The two returned to Mr. Preuschoff’s nearby apartment where those activities were consensually engaged in. Following sexual intercourse, the victim fell asleep on Mr. Preuschoff’s bed. While she was asleep, Mr. Preuschoff tied her to the bed using yellow cords and black electrical tape. The victim awoke tied to the bed with Mr. Preuschoff having sexual intercourse with her. She began screaming and struggling against the bonds, and Mr. Preuschoff attempted to silence her by placing a hand over her mouth.

The victim then began to cry. She eventually stopped crying and convinced Mr. Preuschoff to untie her. Upon leaving the apartment, the victim immediately went to the police who were parked in a cruiser nearby.

[ 4 ] The victim and the accused had no prior relationship, and while the victim agreed to perform the initial sexual services she did not agree to being tied up and sexually assaulted. Further, the victim is a sex trade worker and therefore especially vulnerable. [ 5 ] In R. v. Mohammed, a 2004 decision of our Court of Appeal, the courts upheld a five-year sentence against a 20-year-old man for sexual assault with a weapon against a sex trade worker. The court noted that: Individuals who are in the sex trade are in a vulnerable position to a degree.

The courts have to ensure that violence is not employed in transactions of the sort that occur in that occupation. [ 6 ] Where the victim is a vulnerable person, deterrence becomes a prominent factor in sentencing. [ 7 ] Mr. Preuschoff is 57 years old, and at the time of his arrest was self-employed and living in Calgary, Alberta, following intentionally fleeing British Columbia in 2001. He has one prior conviction for manslaughter flowing from the death of his wife in 1988. Mr.

Preuschoff received a seven-year sentence for that offence in Kitchener, Ontario. [ 8 ] In this case the Crown’s position is an appropriate sentence would be three to five years, less the time that he has already served in custody. The Crown points to several aggravating factors: 1. This was an offence of violence against a vulnerable victim. 2. There was an element of confinement which takes this case beyond the scope of sexual assault at the lower end of the range. 3. The accused engaged in unprotected, non-consensual vaginal intercourse.

The Crown also points out that although his record is not lengthy, it is a very serious one, that being the seven years that he has served for manslaughter. 4. The Crown points to his post-charge conduct, that is, he absconded from the jurisdiction. [ 9 ] As for mitigating factors, the Crown submits there are none; his detention is a result of him leaving the jurisdiction on his own accord in 2001. [ 10 ] The defence position is that these offences are at the lower end of the scale, and given the year the accused has already spent in custody, the court should consider a sentence of time served.

The defence did not point to any particular mitigating circumstances in this case, which I agree there are none. [ 11 ] In determining an appropriate sentence, I am guided by the remarks of Mr. Justice Willcock in the case of R. v. Kane , a January 7th, 2011, decision of our Supreme Court. In that case, Mr. Justice Willcock considered several aggravating factors which exist in this case as well. First of all, the accused expressed no compassion or empathy for the victim in the form of remorse or regret.

Furthermore, the court should also consider the circumstances of the victim and the gravity of the attack on her physical and psychological integrity. [ 12 ] As I said in my Reasons for Judgment, the victim in this case has made some very positive changes in her life. She is now a married mother who has overcome her addictions. But as set out in the victim impact statement, she has been deeply traumatized by this incident. Understandably, she has been diagnosed with Post Traumatic Stress Disorder.

She was hopeful that giving her testimony could help erase the nightmare, but the memory of what must have been a chilling, terrifying event, in her words, "will never be erased". She also said, “This will not go away and this has damaged me in ways that I am unsure will ever heal." [ 13 ] I will add my own observations, that is, having seen her testify in court, that because the accused chose to flee the jurisdiction she had to wait ten years for justice to be served. During those ten years she had to live with the knowledge that the person who had done these things to her was still at large.

She has also had to wait ten years, not knowing whether or not she would be believed in court. [ 14 ] Taking into consideration the circumstances of this case, the submissions of counsel, the relevant case law in sentencing, the provisions of s. 718 of the Criminal Code , particularly regarding the need for denunciation and deterrence for this type of offence, I have concluded a fit and proper sentence for Count 1, if he had not already been in custody for almost a year, would be five years.

However, my sentence must be tempered by the 11-and-a-half months that he has already spent in custody, so accordingly on Count 1, sexual assault, there will be a term of four years imprisonment. [ 15 ] On Count 2, unlawful confinement, clearly this arose out of the same set of circumstances and the sentence is 18 months concurrent. [ 16 ] In addition, I am making a DNA order under s. 487.051(1) (

a) of the Criminal Code . A ten-year firearms prohibition under s. 109 . [ 17 ] There will also be a publication ban of the complainant's name, and I will also make an order that Mr. Preuschoff comply with the provisions of the Sex Information Registration Act. [ 18 ] I will, of course, waive the victim fine surcharge. [ 19 ] MS. LOPES: Your Honour, I’ve prepared a Form 52 – [ 20 ] THE COURT: Yes, I will sign that. [ 21 ] MS. LOPES: -- three copies, if Your Honour is so inclined you can sign all three copies and Mr. Preuschoff can be served right now with that. [ 22 ] THE COURT: I am also going to direct that a transcript of my sentencing and remarks be forwarded to Corrections.

[ 23 ] THE CLERK: Yes. [ 24 ] THE COURT: I will direct the Sheriffs serve him with that. (REASONS FOR SENTENCE CONCLUDED)