R. v. W. Date:, 2011 BCPC 462

Citation: R. v. W. Date: 20111201 2011 BCPC 0462 File No: 14509-3-C Registry: Port Hardy IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BAN ON PUBLICATION PURSUANT TO s.486.5(2) CCC RESTRICTED ACCESS REGINA v. D.R.W. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE SAUNDERS

Crown Counsel appearing by videoconference: L. Fillingham Counsel for the Defendant: A.C. McGarvey Place of Hearing: Nanaimo, B.C. Date of Judgment: December 1, 2011 [1] THE COURT: Dealing first with the charges, D.R.W. was charged with four counts of sexual assault and sexual touching,pursuant to ss. 271(1), s. 151, 152, and 153 of the Criminal Code against the complainant, J.W., over a period from about February of2007 until October of 2008, in [removed for publication] and in [removed for publication]. [2] He pled guilty in May of 2010 to Count 1, namely sexual assault.

There was a statement of facts filed by the accused in whichhe admitted certain facts and denied others. He admitted offending against J.W. by kissing, touching, masturbating, performing oral sex,and rubbing his penis against her vagina in [removed for publication] and in [removed for publication]. He denied sexual intercourse,digital penetration, showing her pornography, and the use of force. BACKGROUND [3] The background is as follows: J.W. is the accused's stepdaughter and has lived with him since 1998, when she was a little girlof about four years old. She was born in [removed for publication].

Her own father did not play a significant role in her life, and sheregarded the accused as her father and his sons, whom he co-parented, as her siblings. [4] He married J.W.'s mother in 2001. The family initially lived in [removed for publication], where the sexual activity startedwhen she was about 13, in February of 2007. The family moved to [removed for publication], where the activity continued until Octoberof 2008, when J.W. made a disclosure to her mother and the RCMP. The accused left town shortly thereafter and commenced divorceproceedings which are ongoing.

A civil lawsuit was commenced on behalf of J.W. against the accused, which is also ongoing. [5] The accused initially entered a plea of not guilty in March 2009, and a trial date was set for two days in May 2010. The pleawas withdrawn and a guilty plea to Count 1 was entered in May 2010, and the trial date vacated. [6] The matter was adjourned to June 2010 for a pre-sentence report, which was finally completed and submitted to the court onSeptember the 27th, 2011.

THE GARDINER APPLICATION [7] The accused filed a notice of application pursuant to ss. 276.1 and 276.2 of the Criminal Code, and the application commencedin Port Hardy on January the 18th, 2011, when the complainant, who was then 17 years old, testified for three days. The matterreconvened in Campbell River in June 2011 for a further two days of hearing.

The complainant testified for a fourth day and was theonly Crown witness. [8] The accused testified on his own behalf. [9] The Crown sought to have evidence of sexual intercourse, digital penetration, and frequency of events admitted as aggravatingfactors at sentencing.

The accused sought to have the evidence excluded. [10] After assessing the evidence, hearing submissions, and considering the relevant law and cases, I provided reasons andconcluded that the Crown had proved beyond a reasonable doubt that the events as described by the complainant were proven and thatthe evidence of the accused did not raise a reasonable doubt: R. v. W.(D.), (SCC), [1991] S.C.J. No. 26; R. v. C.W.H., (BC CA), [1991] B.C.J. No. 2753 (B.C.C.A.); R. v. MacKenzie, (SCC), [1993] S.C.J. No. 7; R. v.H.S.B., 2007 BCCA 181 , [2007] B.C.J. No. 579 (B.C.C.A.); R. v. J.W., [2007] B.C.J.

No. 1510. [11] Specifically, I found that in addition to the acts described in the statement of facts, there was sexual intercourse, digitalpenetration, frequent events over a lengthy period of time in the family home, showing her pornography, and a perception by J.W. offorce by the accused over her, arising because of her young age and lack of life experience. [12] The matter now comes before me for sentencing.

FACTORS CONSIDERED IN SENTENCING [13] I have reviewed the material supplied by Crown and Defence. [14] Crown has provided its book of authorities, two victim impact statements of J.W., and one of her mother. [15] Defence counsel has provided a pre-sentence report dated September the 27th, 2011; psychological assessment from B.C.Mental Health and Addiction Services dated September 19th, 2011; Upper Island Sex Offender program report, undated; letters ofsupport from S.H. (ex-wife), T.H., D.H. (sons), D.B. (landlady), M.G. (friend), C.G. (friend and co-worker), G.W. (friend), S.E.(partner), D.C. (friend), Mr. and Mrs.

W. Senior (parents); and a Supreme Court consent order in which the accused admits liability, withquantum to be assessed, signed November the 21st, 2011; and the Defence book of authorities. THE VICTIM IMPACT STATEMENTS

[16] The two statements from J.W. are poignant and deeply saddening. This young woman is already feeling the profound andnegative impact on her life of the events before the court. She is struggling with depression, low self-esteem, alcohol abuse, eatingdisorders, alienation, loneliness, and other problems which she may struggle with for the rest of her life. [17] The statement of her mother is equally saddening. She feels as if she has let her daughter down by not protecting her. She isstruggling with her own emotions and feelings of betrayal.

She is struggling financially, as D.R.W. has not provided any financialsupport for her and J.W. since separation. She is dealing with her own demons and depression and, like J.W., may spend the rest of herlife wrestling with the effects of this extremely painful experience. THE ACCUSED’S PERSONAL CIRCUMSTANCES [18] I have taken into account the accused's personal circumstances, as set out in the pre-sentence report. He is 51 years of age. Hewas married twice before he married J.W.'s mother in 2000. He has two sons whom he co-parents, one of whom is presently living withhim on Vancouver Island.

The other is in Ontario. [19] The accused began a relationship with S.E. in March 2011. S.E’s previous partner was in the same sex offender program asD.R.W. and is presently incarcerated. D.R.W. was asked to leave the program as a result of commencing a relationship with S.E. He hasbeen doing one-on-one counselling since then. [20] He was previously employed in the graphics industry, but lost that employment due to the current charges. He is self-employed,doing contracting. He earns roughly $3,000 per month.

He has not contributed any finances to his former wife and J.W., and the formermatrimonial home in [removed for publication] cannot be sold due to the divorce proceeding. [21] The accused has one prior conviction for possession of a narcotic in 1986. He has smoked marihuana occasionally in the pastand drinks alcohol occasionally. [22] D.R.W.’s attitude towards the charges is to continue to deny the events as described by J.W., and this is set out in thepsychological assessment authored by Dr. Clark.

He is described as someone who has shallow relationships, has high needs forattention, he is emotionally labile, self-centered, impulsive, and knows how to: . . . present himself and can be seductive in thought, speech, style, and manner, and his history of problems and anxiety fit with thedescription of someone with a histrionic personality disorder.

The expressed concern for J.W. appears hollow and fits with someone whois self-centered, and indicate a need for more work to be done in terms of being truly accountable for his actions. [23] The report further finds that at the present time he does not present a significant risk to reoffend.

However, “should he notcontinue to have support of a social circle in his life and it becomes a shell game, he may again be prone to seek out a vulnerableunderage female or otherwise to serve his emotional and sexual needs”. [24] For that reason, it is recommended, according to the report, that he not be in the company of underage females or females whomay be vulnerable to his potential manipulation. Sex offender treatment is also recommended by Dr.

Clark. [25] The other report, namely the undated Upper Island Sex Offender program, was authored by David Owen and Hank Oke, anddescribes the accused's family background, which is stable. It describes his attendance at the program and confirms that he continues todeny the intercourse and digital penetration of the victim, but confirming the actual exposure of his genitals, having the victim performfellatio, performing cunnilingus, being masturbated, and rubbing his penis on her vaginal area. He viewed his victim as an adult. [26] Mr.

Owen writes: D.R.W. has made poor choices regarding the sex offender treatment program and displayed a lack of understanding on how to conducthimself with other group participants by engaging in a relationship with the ex-spouse of another group participant. [27] Again, it is recommended in that report that he continue with sex offender treatment. [28] The letters from friends and family, as can be expected, are supportive. Of note, most of the letters, outside family, are frompeople who have known him for a short period of time, since the charges were laid.

MITIGATING FACTORS [29] There are few mitigating factors. The first is the guilty plea to Count 1. While it cannot be regarded as an aggravating factor,because of the accused's constitutional right to make full answer and defence to the allegations raised at the Gardiner hearing (R. v.Kreutziger, 2005 BCCA 231 , [2005] B.C.J. No. 850 (B.C.

Court of Appeal)), it cannot be regarded as a fully mitigating factoreither, due to the fact that D.R.W. continues to deny the findings in the Gardiner application and blames the victim for initiating thebehaviour, as set out in the reports filed on his behalf. [30] This also detracts from being able to attribute remorse to D.R.W. for his actions. [31] The other two mitigating factors are that D.R.W. did not have a related criminal record and he has commenced sexual offendertreatment. AGGRAVATING FACTORS [32] By contrast, there are numerous aggravating factors.

After hearing the evidence of J.W. about the sexual behaviour for a periodof four days, the court has been provided with considerable detail of what took place, and that evidence provides aggravating factors inexcruciating detail as follows:

- The abuse of a child under the age of 18 years, which is contrary to s. 718.2(ii.1) of the Code. - The abuse of a position of trust as set out in s. 718.2(iii). - J.W.'s age of about 13 when the events started, just prior to her 14th birthday, and that she is his stepdaughter. - The grooming, clearly calculating, manipulative, and predatory behaviour displayed by the accused towards J.W. over a lengthy periodof almost 20 months from February 2007 to October 2008. - The escalating behaviour, culminating in sexual intercourse on a number of occasions, numerous other sexual acts, including digitalpenetration and showing her pornography. - Telling her to keep the secret or the home would be messed up. - Telling her that her mother would commit suicide and not believe her. - Performing the acts in the home which ought to have been a safe place for a child. - The moral blameworthiness of the accused as he continues to blame the victim for the relationship starting and refers constantly in thetwo reports, filed on his behalf, to an episode where he found her masturbating in front of a webcam, which J.W. repeatedly denied in herevidence. - And finally, the profound and lasting effect on the victim of post-traumatic stress, as seen in the victim impact statements, includingshame, self-blame, betrayal of trust, alcohol abuse, and eating disorders, alienation, depression, and a need for clinical therapy.

THE RELEVANT CASE LAW AND ANALYSIS [33] The Crown is seeking an institutional sentence of five years, a DNA order, Sex Offender Registration, firearms prohibitionpursuant to s. 109 of the Code, and a s. 161 order. [34] The Defence submits that a sentence of two years less a day is the appropriate sentence, followed by three years of probation. [35] The Crown has provided the following cases, indicating a range of appropriate sentences and in support of its position for aninstitutional period of incarceration: R. v. T.A.D., 68 B.C.A.C. 236, 1995 Carswell BC 865; R. v.

D.(D.), (ON CA),163 C.C.C. (3d) 471, 2002 Carswell Ont. 881; R. v. Chaput, 84 B.C.A.C. 281, 1996 Carswell BC 2865; R. v. M.(O.), 2009 BCCA 287,2009 Carswell BC; R. v. R.A.J., 2010 BCCA 304, 2010 Carswell BC 1734; R. v. W.M., 2008 BCPC 492, 2008 Carswell BC 3312; R. v.W.M. 2010 BCCA 370, 2010 Carswell BC 2410; R. v. R.E.L., 2010 BCCA 493, 2010 Carswell BC 3500; R. v. D.E.L., 2006 BCPC 79,2006 Carswell BC 608. [36] The Defence has provided cases in support of its submission for a two-year-less-a-day sentence and probation, and other factorsconsidered relevant to this sentencing, and these are: R. v.

T.L., [2002] B.C.J. No. 135 (B.C.P.C.); R. v. S.K.A., [2004] B.C.J. No. 2961(B.C.P.C.); R. v. Kreutziger, 2005 BCCA 231 , [2005] B.C.J. No. 850 (B.C.C.A.); R. v. Angelillo, 2006 SCC 55 ,[2006] 2 S.C.R. 728 (S.C.C.); R. v. S.E.A., [2008] B.C.J. No. 2102 (B.C.P.C.); R. v. Jack, 2008 BCCA 437 , [2008] B.C.J. No.2078 (B.C.C.A.); R. v. C.C., [2008] B.C.J. No. 2597 (B.C.P.C.); R. v. S.J.T., [2009] B.C.J. No. 1660 (B.C.P.C.); R. v. S.B.T., [2010]B.C.J. No. 878 (B.C.C.A.); and Clayton C. Ruby,

Chapter 6, on Sentencing. [37] The analysis of criteria relevant to sentence is as follows. [38] Where there is a breach of trust and abuse of position against a child under the age of 18 years, arising out of sexual offendingbehaviour, the court shall give primary consideration to the objectives of denunciation and deterrence of such conduct, pursuant tos. 718.01 of the Code. [39] For offences as grave as this, institutional incarceration is typically imposed to address those principles and the principles ofsentencing in s. 718: R. v. M.O., R. v. R.E.L., and R. v.

D.E.L. [40] The range of cases provided by the Crown is from three to eight years. Crown's submission is that the range to consider for thiscase is between four and six years, and refers to numerous decisions of the B.C.

Court of Appeal which bind this court and which deal inhelpful detail with the criteria which sentencing judges ought to consider when imposing sentence. [41] Many of those cases have similar facts to the case before me and an institutional sentence has been imposed. [42] Specifically in those decisions, the courts have referred to factors such as grooming, exposure to pornography, secrecy andseduction, the significant impact on the complainant, the youth of the complainant, prolonged sexual abuse, the victim being a familymember, intercourse and penetration, and extending over a period of time.

Most of those aggravating factors which have been alluded toare present in the case before me. [43] In addition to the aggravating factors, there has been a significant and devastating impact on J.W.

In cases where the victims ofthis type of offence are very young, they cannot articulate the impact of the sexual assault on them, because they cannot fully processand describe the trauma and its outcome on their lives. [44] In this case, however, J.W. is old enough to process and articulate the experience, which provides the court with greater insightinto the impact on her life then, now, and in the foreseeable future. She is struggling with alcohol abuse and an eating disorder,alienation, loneliness, and depression, and it is clear from the statement that her life continues to deteriorate as she wrestles with

memories of those events which deprived her of happy and normal teen years. [45] It is also likely that this young woman may have years of therapy ahead of her and may have lifelong psychological scarsresulting from these events. Her family has been disrupted and devastated, necessitating a move to another town to start again. [46] The cases referred by the Defence are in the lower range of sentence and are principally Provincial Court decisions which Ihave considered. These cases are distinguishable and, in my view, are not as serious on the facts as the case before me.

Furthermore,there are numerous variables which distinguish these types of cases, and I consider myself bound by the authoritative decisions of theB.C. Court of Appeal and the B.C. Supreme Court, which have analyzed sentences for these types of offences and set out guidelines andcriteria to assist sentencing judges. [47] I accept that ranges are guidelines only and do not supplant the need to proceed on an individual case-by-case basis (R. v. Jack,2008 BCCA 437 , [2008] B.C.J. No. 2078; R. v.

Richer, 2005 BCCA 3, 192 C.C.C. (3d) 366) and the appropriate weight needsto be given to the principles of sentencing in adjusting the sentence to the specific circumstances of the offender and offence, in order toensure that the sentence is fit. [48] It is in the light of these principles that, on these facts and for this offender, for this offence, that there has to be a strongmessage of denunciation and deterrence in the sentence imposed. [49] Furthermore, as stated by the B.C. Court of Appeal in R. v.

L.(R.E.), judges should impose similar sentences on similar offendersfor similar offences committed in similar circumstances, but that many of the custodial sentences of less than five years or conditionalsentence orders for sexual assault on a person under the age of 18 years were exceptions, as they were historical offences and some ofthem predated s. 718.01 of the Criminal Code. [50] The court further emphasized in that decision the principle enunciated by the Supreme Court of Canada in R. v.

L.F.W., 2000SCC 6 , [2000] 1 S.C.R. 132 at paragraph 29, that the principle of denunciation weighs particularly heavily in cases of offencesagainst children by adults in positions of trust. SENTENCE IMPOSED [51] Stand up, please, D.R.W. I am now going to impose your sentence. [52] Accordingly and taking into account the principles of sentencing, particularly general deterrence and denunciation, themitigating and aggravating factors, the accused's personal circumstances (R. v.

Angelillo), the appropriate sentence for this offence onthese facts, on this victim, is a four-year term of imprisonment. [53] There will also be a DNA order pursuant to s. 487.051, and I direct that the sample be taken by the RCMP, by the methods setout in the Code, within 14 days and that is to be included in the DNA database. [54] There will be a prohibition of weapons pursuant to s. 109(2)(a)(ii) for 10 years of the weapons in that section, and for life of theweapons set out in s. 109(2)(b). [55] There is to be sex offender registration pursuant to s. 490.012, and that will be for the period of 20 years. [56] Finally, the Crown has not vigorously pursued the s. 161 order, so I decline to make that order. (REASONS CONCLUDED)