R. v. V.W.L. Date:, 2010 BCPC 397

Citation: R. v. V.W.L. Date: 20101221 2010 BCPC 0397 File Nos.: 74333-1K 74321-3KA; 74321-1K Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BAN ON DISCLOSURE s. 486.4(1) C.C.C. REGINA v. V.W.L. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. BULLER BENNETT Counsel for the Crown: B. Stewart Counsel for the Accused: D. Payne Place of Hearing: New Westminster , B.C. Date of Hearing: December 21, 2010 Date of Judgment: December 21, 2010 [ 1 ] V.W.L. has pleaded guilty to charges on three Informations before me. [ 2 ] The first one in time is Information 74321-1K.

He pleaded guilty to count 1 that on or about the 7th day of September, 2010, at or near New Westminster in the Province of British Columbia, he did commit assault of another person, A.P. contrary to s. 266 of the Criminal Code . [ 3 ] The circumstances are that on the evening of September 7th, 2010, V.W.L. and A.P., were at home in their residence. They got into a dispute about tools that V.W.L. had scattered around the entrance of their residence and that ultimately broadened into a dispute why she only left two cigarettes for him during the day.

She told V.W.L. that she had had enough of his mess and went to the bedroom to, I suppose, cool off for about 15 to 20 minutes. [ 4 ] She went back to the living room and at that point V.W.L. slapped her. She told him that if he did that again, she would phone the police. Then he threw her on the bed (they were in the bedroom at this point) and pinned her to the bed. Ultimately, he did let go of her and she left the suite. A.P. did call the police and when she left the suite she could overhear items being smashed inside the

residence. V.W.L. left the residence shortly thereafter. [ 5 ] V.W.L. was released on bail on September 8th. That was a consent release by a justice of the peace. [ 6 ] Turning now to the next Information. It is number 74321-3KA.

V.W.L. pleaded guilty to count 2 that on or about the 9th day of September 2010, at or near New Westminster 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 judge, did fail without lawful excuse to comply with the following condition or direction: "You are not to attend within a one-block radius of (address omitted) except on one occasion in the company of a peace officer to obtain your personal belongings, contrary to s. 145(3) of the Criminal Code ." [ 7 ] On the day after V.W.L.'s release from custody, he went back to the residence.

At about 7:41 in the morning, the police were called to attend the residence. Apparently, V.W.L. had been at the residence with a police officer earlier on and of course was warned by the police officer not to go back. However, V.W.L. did go back to the residence about 20 minutes later. He banged on the apartment door and A.P. let V.W.L. into the apartment for about ten minutes. [ 8 ] A civilian witness called this incident into the police and by the time the police arrived, V.W.L. had left the residence. There was a warrant for his arrest. [ 9 ] I turn now to Information 74333-1K, count 1.

V.W.L. pleaded guilty to a charge that on or about the 11th day of September, 2010, at or near New Westminster in the Province of British Columbia, he did sexually assault A.P., contrary to s. 271 of the Criminal Code . [ 10 ] On the morning of September 11th, 2010, A.P. was at home. She woke up about 11:00 a.m., perhaps closer to 11:30 a.m.; she had something to eat and then sat on the couch. [ 11 ] Around noon there was a knock on her apartment door. A.P. opened the door and V.W.L. was standing there. V.W.L. came into the apartment uninvited. [ 12 ] V.W.L. was very angry at A.P.

He accused her of being with another man. This escalated into a physical altercation and in order to keep A.P. quiet, he covered her mouth. A.P. got free and went to the bathroom. However, V.W.L. dragged her into the bedroom. He told her that they were going to have sex. She struggled and he punched her. V.W.L. got on top of A.P. and hit her around her face. Then, he penetrated her vagina with his penis, although briefly. She tried to keep quiet because she was very afraid of what was going on. She certainly was not consenting to the sexual intercourse.

V.W.L. stopped suddenly, according to A.P., as if he realized what he was doing and he got off of her. He berated her about their relationship. [ 13 ] Then, she put her pyjamas bottoms back on and remained quiet because she did not want a confrontation and further incite V.W.L.. She went to the living room and told V.W.L. she was going to walk the dog and she put the leash on the dog and left the apartment. [ 14 ] A.P. went around the block to a friend's residence and called the police. Then A.P. and her friend went back to the residence.

V.W.L. was no longer there. [ 15 ] The police came to the residence and noted red marks on A.P.'s face. She gave a statement to the police at that time. After that, A.P. submitted to a sexual assault examination. [ 16 ] So those are the circumstances of the offences. [ 17 ] I have the benefit of a pre-sentence report. That report provides some important background information regarding V.W.L., as well as his relationship with A.P.. [ 18 ] V.W.L. is now 53 years old. He has a grade 10 education. He grew up in Vancouver, B.C. He was raised by his mother after his father passed away when he was five years old.

V.W.L. has an older brother. [ 19 ] V.W.L. did end up going to live with his older brother and his family because V.W.L. was unmanageable. He stayed with his older brother's family until he was about 16 years old. After that, he was in and out of the criminal justice system and for some time lived on the street. [ 20 ] V.W.L. and A.P. met in 1977. They had a common law relationship for a few years after that and they had a daughter, J. who now has children, so both V.W.L. and A.P. are grandparents. [ 21 ] The common law relationship ended some time in 1998.

Apparently, V.W.L. was not entirely faithful to A.P. while she was serving a jail sentence. Both A.P. and V.W.L. went on to new relationships. Nonetheless, A.P. and her husband took in V.W.L. from time to time between the years 1988 and 1998. V.W.L. was experiencing some financial hardships during that time period. [ 22 ] When A.P.'s relationship with her husband ended in 1998, A.P. and V.W.L. renewed their relationship and have remained together in a common law relationship since then.

I gather it has been a somewhat tumultuous relationship over the years. [ 23 ] V.W.L. is a methamphetamine addict and much of what I will describe as his criminal record and his lifestyle is fuelled by his drug addiction. [ 24 ] In 2004, he had a stroke and later on in 2004 he attempted suicide. Apparently talks of suicide continue. [ 25 ] According to A.P., in the few months prior to the offences, there was a significant reduction in intimacy between them. A.P. denied that she was ever pressured or forced to have sex with V.W.L., however, she does admit that in previous years he would be

insistent and coerce her to have sex with him. There is no documentation according to the pre-sentence report that would indicate ahistory of sexually offending behaviours. However, both A.P. and V.W.L. inform of behaviours that are demonstrative of power andcontrol over A.P., including emotional, psychological, and physically abusive behaviours. [26] Turning now to a bit more background regarding V.W.L.'s drug addiction. [27] According to the pre-sentence report, V.W.L. admitted to using drugs and abusing alcohol at different periods in his life since theage of 14.

Prior to the stroke in 2004, he was injecting speed on a daily basis. After having the stroke, again referring to the pre-sentence report, V.W.L. continued to use speed and heroin. He admits to using them while at work. Currently, as set out in the pre-sentence report, V.W.L. does not feel that his substance abuse has ever been a barrier to other aspects in his life. He explains that he hasalways been able to maintain employment and relationships regardless of his substance abuse. Over the past 40 years, he has not had anydrug-free periods except during his brief custodial settings.

He has not completed any counselling treatment or programs focussed onsubstance abuse. [28] Quoting from the pre-sentence report: A.P. informs that both she and the subject have used illicit drugs together since they began their relationship. A.P. states that she hasbeen struggling to stay clean but it is difficult given the subject's influence on her and his continued drug use. The subject admits tousing drugs the day prior to the initial assault.

A.P. advises in the few months prior to the offences occurring that the subject's drug usehas become increasingly problematic and suspects that he has returned to injecting speed. [29] Again, referring to the pre-sentence report: A.P. is currently involved with Specialized Victim Services and states she also attends counselling for women who are in abusiverelationships. A.P. expresses that she relives the trauma she experienced every time she attends counselling. She states she feels that sheis no longer in control of her life, and has continued fear for her safety.

Knowing that the subject will eventually be released fromcustody, A.P. has requested that the subject not be permitted to contact her directly or indirectly, at least until he accepts and completescounselling or treatment for his addiction and abusive behaviours. [30] Turning to V.W.L.'s criminal record, it does start in 1975 and it is made up mostly of property offences. There are gaps in therecord, for example, from the late seventies to the late eighties. There is a conviction for 1988 for assault for which he was assessed afine. Then there are several property offences, but again a gap between 1993 and 2000.

Then the record continues with propertyoffences. There is a conviction in 2006 for assault, amongst other things. V.W.L. was given one day plus five months pre-sentencecustody. There is a conviction for robbery in 2007 with time served of 106 days and probation for one year. The most recent convictionis in October of 2007. That was a driving while prohibited and he was sentenced to seven days jail. [31] Turning to the assessment part of the pre-sentence report, I will quote: The subject does not have a known history of sexual assault or domestic violence.

However, the subject has demonstrated a deep-rootedfixation on the victim and the severity of the current offences escalated quickly over a very short period of time. [32] I should point out for the record that contrary to his detention order, V.W.L. sent a letter of apology to A.P.. He hopes toreconcile and continue the relationship with A.P.. [33] I have a joint submission before me that there be, after time served, a jail sentence of two years plus probation to follow. [34] I have heard from Crown counsel and I will just read into the record the cases that Crown counsel referred to. [35] The first is R. v.

B.B.S., a decision of our Court of Appeal at 2010 BCCA 40 , 2010 B.C.C.A. 40. Next is R. v. M.M.R.,a decision of our Court of Appeal at 2009 BCCA 578 , 2009 B.C.C.A. 578, and R. v.

L.(G.A.) a decision of our Court of Appealalso and the citation I have is 21 B.C.A.C. 81. [36] Those cases are somewhat distinguishable on the facts but they certainly stand for the proposition that there has to be a jailsentence, especially where there is actual sexual intercourse. [37] Much to his credit, V.W.L. has pleaded guilty to the charges and he stated from the very beginning that he wanted to protect A.P.from having to testify in court. [38] V.W.L. has been in custody for about three months.

He consented to his detention order. [39] V.W.L., again according to the pre-sentence report, has not done particularly well on community supervision.

In the past he hasbeen resistant to counselling and I understand too there were difficulties with him reporting. [40] Given the circumstances of the offences before me and the circumstances of the offender, as well as the case law that Crown hasprovided, in my view the joint submission is a fit sentence. [41] On Information 74321-1K, count 1, the record will show a jail sentence of five months less credit for three months time served,so a remainder of two months on that matter.

I note that there was a five month sentence previously and I do not think it is appropriate tofall below the lower sentence. [42] On Information 74321-3KA, count 2, the breach, there will be a jail sentence of four months less time served of three months, fora further sentence of one month to be served concurrently with the sentence on 74321-1K. [43] Then on Information 74333-1K, count 1, there will be a penitentiary sentence of two years and three months less three monthsfor time served, so there will be a further two years jail sentence, followed by three years probation.

[ 44 ] That two year jail sentence is concurrent to the other sentences that I have imposed. [ 45 ] The three year probation order on the sexual assault matter has the following conditions. [ 46 ] Of course V.W.L.: 1. You have to keep the peace and be of good behaviour. 2. You will have to report in person within 72 hours of your release from custody to a probation officer in New Westminster and you will report thereafter as directed by your probation officer. 3.

You will reside daily in a residence approved of by your probation officer and you will not change that residence without the prior written permission of your probation officer. 4. You will not consume or possess alcohol or any controlled substances as defined by the Controlled Drugs and Substances Act , excluding prescription medication prescribed to you by a licensed physician or dentist. 5. You will attend and participate in psychiatric or psychological assessments, counselling, or educational programming as may be directed by and to the satisfaction of your probation officer. 6.

You will have no contact, directly or indirectly, with A. P.. You will not be within a one-block radius of A.P.’s residence or place of employment. You will not be in possession of any weapon as defined in the Criminal Code , including knives, except for the immediate preparation and consumption of food. [ 47 ] Those are the terms on the probation order, sir. [ 48 ] Under s. 109 of the Criminal Code , I am imposing a firearms prohibition for lifetime and that is on the sexual assault matter, and also on that matter there will be a DNA sample taken pursuant to s. 487.051(1).

That will be taken by the Corrections staff. [ SOIRA ORDER] [ 49 ] I will waive any surcharges if there are any on these matters because I understand you are on a disability pension, sir. (ORAL REASONS FOR SENTENCE CONCLUDED)