R. v. A.J.L. Date:, 2012 BCPC 420

Citation: R. v. A.J.L. Date: 20121024 2012 BCPC 0420 File No: 14983-2-C Registry: Powell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A.J.L. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE S.K. MACGREGOR Counsel for the Crown: I. Tully-Barr Counsel for the Defendant: R. Miller Place of Hearing: Powell River , B.C. Date of Hearing: October 3, 2012 Date of Judgment: October 24, 2012

[ 1 ] THE COURT: These are my reasons for sentence. I first heard this matter on October the 3rd of this year. [ 2 ] A.L. has entered pleas of guilty to Counts 1 and 2 of Information 14983-2-C as follows.

Count 1, from the 1st day of June 1976 to the 30th day of June 1976, inclusive, at or near Stuart Island, British Columbia, being a male person, did have sexual intercourse with a female person M.B., who was not his wife and who was under the age of 14 years at the time, contrary to then provision of Section 146(1) of the Criminal Code . [ 3 ] On Count 2, he has entered a plea of guilty to a charge that from the 1st day of October 1978 to the 30th of October 1978, at or near Texada Island, B.C., did have sexual intercourse again with M.B. a female, not his wife, who was under the age of sixteen years and over the age of fourteen years, contrary to Section 146(2) of the then provisions of the Canadian Criminal Code .

The Facts [ 4 ] A.L. is the uncle of M.B., who was 13 years old when these sexual assaults first occurred. He was 38 years old. A.L. and M.B.'s family were living in Loughborough Inlet up the B.C.'s west coast, north of Powell River. At that time the community was a fairly busy forestry and possibly fishing area and was serviced on a weekly basis by the Union Steamships. [ 5 ] These assaults, as indicated, began when the victim was only 13 years old. At some point she had been raped by an older brother. The victim says this was before the accused began sexually assaulting her.

A.L. claims that he started "after E. had taken her." [ 6 ] This abuse continued for years, both in northern British Columbia and later on Texada Island, until M.B. was 15 years old. The sexual assaults by the accused were very serious, as they involved full intercourse, both vaginal and anal. They involved threats of violence to her and to younger siblings, intimidation and coercion. M.B. claims that the accused inserted objects inside the victim.

This is denied by A.L. [ 7 ] He extensively groomed the victim by providing her with alcohol, all while he was in a position of trust as her uncle. [ 8 ] Unfortunately for M.B., her family members, including her mother, did not protect her, despite the fact that they were aware, at some point, of this abuse. The abuse was finally stopped, not by A.L. but by the victim herself, when she moved away from Texada Island. [ 9 ] When asked how his actions impacted his niece, A.L. was unable to respond except to say that the victim participated willingly as she wanted driving lessons.

This must have been some time after the age of 13. [ 10 ] I have read the victim impact statement provided by M.B., which poignantly describes how her life was so tragically affected. She says that the accused, and I am quoting, took her freedom, her self-respect, her dignity and self-worth, and she remains scared and unable to trust anyone. She, unfortunately, spent many years either, as she says, drunk or addicted to alcohol and drugs. M.B.'s life was ruined. She says it changed completely.

She used to be a happy person, with hopes and dreams that were taken from her. [ 11 ] Physically, she suffered bruises, split lips and sores, specifically a bruised and sore jaw after, she says, the accused hit her when he believed that she had told someone of "their secret." She remembers being so sore after hours of abuse that walking was painful, and she suffered from vaginal and, on numerous occasions, anal bleeding. She says the sexual intercourse of both kinds occurred over a hundred occasions. [ 12 ] A.L. denies most of the violence, but not the sexual intercourse.

He said, "I probably did most of what she said, but back then my drinking made my mind different." He describes "the stupidity of doing it and letting her entice me into doing it." [ 13 ] A.L. then, accordingly, I find blames M.B. for his conduct and shows no empathy for her. It is still his understanding that his actions have no negative impact on the victim. [ 14 ] In the psychological assessment prepared for the sentencing by Dr. Edward Clarke, Dr. Clarke identified a number of factors which are associated with an increased risk for sexual re-offending. [ 15 ] These include the timing of the sexual offending.

These offences against M.B. took place over a period of several years. [ 16 ] During this period A.L. also, and this is admitted although he is not being sentenced for this, had apparently been involved with one of his stepdaughters, although this was limited to vaginal touching, and not on the scale of the abuse on M.B. Physical Coercion [ 17 ] While A.L. downplayed or minimized the violence and coercion described by M.B., he did administer alcohol to her to increase her compliance during the sexual abuse, and this constitutes another form of coercion. This again, I am quoting from Dr. Clarke's report.

Psychological Coercion [ 18 ] A.L. abused his position as an adult and as an uncle with his young niece, and I do find that he was in a position of trust. He threatened to do similar harm to M.B.'s younger siblings if she reported what he was doing to her. Extreme Minimization and Denial of Sexual Violence [ 19 ] Although A.L. acknowledges that he committed sexual offences against his niece, he shows evidence of minimization, distortion and denial. Most importantly, he lays the blame for the initiation of the offences on the victim and strongly minimizes his role

in continuing to perpetuate the offences. She simply could not consent at the age she was. He evinces no particular concern or empathyabout the impact of his actions upon his niece and, as such, shows no insight on how it would be for a young girl to be sexually assaultedby her uncle over a period of years. Problems with Self-Awareness [20] A.L. has limited insight into his own psychological functioning and has failed to demonstrate any understanding of hismotivations and the consequences of his offending behaviour. Dr.

Clarke points out that as a sex offender, the failure to be aware ofone's own risk is an important risk factor for recidivism. Sexual Deviance [21] Although this happened in the late 1970s, a pattern of sexual arousal and desire for underage females, particularly M.B., andproblems with substance abuse. [22] At the time of these offences, and for most of his adult life, A.L. was drinking heavily, right up until his 50s.

He stopped at thattime using alcohol, but has not received any counselling to address the personality characteristics of chronic drinkers, including aversionto introspection, clouded awareness and memory, and having a low tolerance to frustration. [23] Considering all of those factors, Dr. Clarke currently views A.L. as being at least at moderate risk to sexually re-offend againstunderage females. A.L.'s Current Circumstances [24] A.L. says that he now suffers from erectile dysfunction and has little interest in sex. He is 74 years of age and describes hiscurrent health as poor.

He suffers from a number of conditions: sleep apnea, an overactive thyroid, and atrial fibrillation of his heart. Hetakes medications for these conditions and is hoping to undergo knee surgery. His ability to walk properly has been impacted by hishealth problems. [25] A.L. worked in the forest industry for a number of years and has now retired. He has been married twice and currently liveswith his wife of 30 years in a rural area of Courtenay, British Columbia. [26] In the reports it is indicated that Mrs.

L., his wife, has a great deal of anger towards her husband for his actions, and the rest ofhis family are unaware of his involvement for either of these charges or of his involvement with the court. This lack of disclosure is aconcern, and it cannot be said that the offender has community support at this time. Position of the Crown [27] The Crown submits that the accused was in a position of trust when he sexually assaulted his niece, being her uncle. She wasunderage, as indicated, between the ages of 13 and 15 years old. The Crown submits that a federal sentence is appropriate.

In addition,Crown counsel asks for the mandatory DNA orders and an order under SOIRA, under s. 490.012 of the Criminal Code, that A.L. beplaced on the Sexual Offender Information Registration Act. [28] Also, that there be a mandatory s. 110 firearms prohibition. Position of the Accused [29] Counsel Mr. Miller for the accused, submits that this is an appropriate case where a conditional sentence should be imposed,that is, a jail sentence served in the community, and that would be for a period of two years less a day, with the maximum period ofprobation for three years. The Law [30]

Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to contribute to respect for the law,the maintenance of a just and peaceful society, and directs the court to consider the following objectives: to denounce unlawful conduct,to deter this and other offenders, and, if necessary, to separate offenders from society. Also, the rehabilitation of offenders is important,and to impose a sense of responsibility and acknowledgement, both to the offender and generally, of the harm done to the victim, orvictims, and the community. [31]

Section 718.2(

d) and (

e) provide that the offender should not be deprived of liberty, if less restrictive sanctions may beappropriate for the circumstances and for the general principles of sentencing. [32]

Section 718.2(a)(iii) specifically refers to abuse of a position of trust or authority in relation to a victim as being an aggravatingfactor in the imposition of a sentence. [33] Also, of course, a sentence must be proportionate to the moral blameworthiness of the offender, and that those causing harmintentionally should be punished more severely. That is according to R. v. Martineau, a decision of the Supreme Court of Canada from (SCC), 1990, 58 C.C.C. (3d) 353. [34] Denunciation is a specific factor in the Criminal Code. In R. v.

C.A.M., 1996 (S.C.C.), (SCC), 105 C.C.C.(3d) 327, at paragraph 81, the court said: The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender'sconduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct shouldbe punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law.

A Conditional Sentence [35] The four prerequisites for a conditional sentence are set out in the Criminal Code and, of course, by the Supreme Court ofCanada in R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, and subsequent decisions.

These prerequisites are as follows: firstly,that the offence not be punished by a minimum term of imprisonment; secondly, that the appropriate sentence is two years less a day orlower; third, that the safety of the community would not be endangered by the imposition of a sentence served in the community; andfourth, that a conditional sentence order would be consistent with the principles and goals of sentencing as set out in s. 718 of theCriminal Code. [36] In my view, the second, possibly the third, and the fourth pre-conditions are not present in the current case.

While defencecounsel has provided a number of cases where a conditional sentence has been ordered, the gravity of the sexual assaults or sexualtouching have been far less severe than in the case before me. [37] Referring to a decision of the Ontario Court of Appeal, R. v. D.D. (2002), (ON CA), 163 C.C.C. (3d) 471,the Ontario Court of Appeal provided, at paragraph 44, that: ...when adult offenders... sexually abuse... children [and while that case was for younger children] on a regular and persistent basis...

When the abuse involves full intercourse, [either anal or vaginal], and it is accompanied by other acts of physical violence, threats ofphysical violence, or other forms of extortion, upper single to low double digit penitentiary terms will generally be appropriate... Andthat any more severe elements of severe brutality or intimidation would attract even higher sentences. [38] The Crown is not seeking a higher sentence regarding this offence. The Mitigating Circumstances Regarding A.L. [39] Firstly, A.L. has no criminal record, and these offences occurred in the late 1970s.

He has not committed any criminal offencesthroughout his life. His pleas of guilty to these charges have saved the state the time of a trial, and particularly the victim from the stressand trouble of having to testify in open court. [40] While rehabilitation is important, and A.L. does say he will attend at counselling if it is required by the court, this is temperedwith his comments that he does not think he needs any counselling. [41] I must also consider as a mitigating factor A.L.'s age and his health, as he has expressed.

He did indicate in the pre-sentencereport or the psychological assessment that he was somewhat defiant of seeking medical treatment if in custody. I am sure that wouldnot be the case. The Aggravating Circumstances [42] A.L. was in a position of trust when he undertook these offences on a child or young woman between the ages of 13 and 15.

She could not possibly have given her consent. [43] Secondly, there are the circumstances of the violence and threats of violence and coercion; this is both in the application ofalcohol and in the violence and the threats not only on the victim but the threat to do similar harm to her younger siblings; the fact thatthese sexual assaults consisted, on multiple occasions, of full intercourse, both vaginal and anal; that A.L. appears to continue to blamethe victim, and while he accepts the facts that he did assault her, it is still, in his mind, partially her fault. [44] A.L., according to Dr.

Clarke's report, was considered to be at least a moderate risk to re-offend, and this is referred to,particularly his justification of the offences, in that "E. had already taken her." [45] While A.L. does have a stable residence in the community, I cannot find that he has significant or any particular communitysupport.

Apart from his wife, his family does not know of these charges or offences, and his wife has expressed anger at his pastbehaviour. [46] I have considered the facts, the circumstances of this case, including the extended, frequent and violent sexual assaults, thesubmissions of counsel, the Criminal Code, and the principles of sentencing, the authorities, and the mitigating and aggravating factors.

I conclude that a conditional sentence would not, despite the mitigating factors to which I have referred, adequately reflect the need todenounce and deter this conduct. [47] Accordingly, I must impose a sentence of incarceration, and this will be for a period of three years. [48] A.L., in addition, you are to provide a sample of your DNA to the National DNA Data Bank, and that can be arranged while youare in custody. [49] There will be a lifetime order under the Sex Offender Information Registration Act, and a lifetime firearms prohibition under s.110 of the Criminal Code. [50] The victim impact surcharge, of course, is waived, as you will be in custody and you are currently retired. [51] Those are my reasons for sentencing. (REASONS CONCLUDED)