R. v. E.M. Date:, 2011 BCPC 91

Citation: R. v. E.M. Date: 20110203 2011 BCPC 0091 File No: 174971-3-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. E.M. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.O'C. WINGHAM Counsel for the Crown: W. Sayson Counsel for the Defendant: J. Douglas Place of Hearing: Surrey , B.C. Dates of Hearing: August 9, 10, October 29, 2010 Date of Judgment: February 3, 2011 [ 1 ] THE COURT : The accused, E.M., has pled guilty to sexual assault of N.R., his niece, on May 11th, 2009. At the time of the offence N.R. was 19 years of age. She is 21 now. A guilty plea was entered on August 9th, 2010.

Some submissions were made on that date and a pre-sentence report and a psychological assessment were ordered. The Crown made further submissions on the second day, after the reports were prepared, and the sentencing hearing was then adjourned to today's date for submissions by counsel for E.M. I have now had the benefit of reviewing the reports, the case law submitted by counsel, and the submissions of counsel. [ 2 ] The circumstances of the offence are as follows: The accused is the complainant's uncle. As I understand it, he is the brother of the complainant's mother.

At the time of the offence the complainant was living in her parents' home. The accused had been a guest in that home on a number of occasions and had access to the home as he had the combination to the keypad which operated the garage door. [ 3 ] On May 11th, 2009 the complainant was at home alone. Her parents were on vacation in the Philippines and another uncle, who was staying with her, was out. The complainant was in the shower and heard the garage door open. She got dressed and opened her bedroom door.

The accused was standing outside her room and told her that he would like to look at photos on the computer. She brought up some photos on the computer and sat on the floor. [ 4 ] After viewing the photos the accused sat beside her and tried to kiss her. He pushed the complainant onto a dog's bed which was

in her room. She resisted him, but he held her arms above her head and removed her shirt, pushed up her bra and pulled down her pants as well as his own. He licked her vagina and penetrated her vagina with his penis. The complainant was screaming while this was occurring. The accused removed his penis and wiped it on a pillowcase. The complainant ran to the bathroom and locked herself in. The accused left and the complainant called a friend and the police were called. They seized the pillowcase.

The accused's semen was found on the pillowcase. [ 5 ] Subsequent to the offence the accused sent a number of text messages to the complainant. He asked her to tell others he had just hugged her. He asked her for forgiveness. He threatened to commit suicide. He said he would go back to the Philippines. [ 6 ] The accused was arrested and gave a statement to the police in which he admitted to sexually assaulting the complainant. He wrote a letter to the complainant in which he apologized to her and asked her not to put him in jail. [ 7 ] E.M. is 34 years old. He was born [date of birth] in the Philippines.

He came to Canada in 1993 and he became a Canadian citizen in 2008. He is married and he has two children. He and his wife have not been living together since the offence occurred although I understand from the pre-sentence report that his wife seems to be supportive of him. [ 8 ] The accused is employed currently and he has a history of labour-related employment. The accused says that at the time of the offence he was using cocaine regularly and that in fact he was under the influence of cocaine at the time he committed the offence. He says he has since stopped using cocaine.

The accused does not have a criminal record, although at the time of the offence he was subject to a recognizance under

Section 810 of the Criminal Code to keep the peace and be of good behaviour. [ 9 ] A psychological assessment of the accused was prepared for sentencing. Some of the content of that report is troubling, particularly as it relates to the accused's attitude to the offence. At page 3 of the report Dr. Lewis, who prepared the report, writes, in part: E.M. reported that his niece never told him to stop, never tried to push him away and showed no signs that she was unwilling to have sex with him.

He stated that he did not hold her hands over his head and that she lied about other details, such as telling the police that she was a virgin, and that another uncle was living in the house. [ 10 ] Further on the same page the author writes: E.M. reiterated a number of times that his niece wanted to have sex with him because she did not attempt to get away or push him away, she did not tell him no or yell, and she did not call the police immediately after he left. [ 11 ] At page 7 of the report Dr.

Lewis wrote under the heading "Risk Assessment": During the current assessment E.M. acknowledged that he sexually assaulted his niece. However, he continued to state that at the time of the offence she did nothing that indicated to him that she wanted him to stop. He stated that the victim lied when she reported that she told him no, was crying and tried to get away from him. [ 12 ] The accused now apparently expresses a different view. Mr.

Douglas, his counsel, in submissions says that the accused feels awful about the offence, and that his recollection of the offence is not good due to his cocaine use, and that he accepts the complainant's version of the events. Dr. Lewis concluded that the accused falls into the moderate, low, nominal risk category for sexual recidivism. She stated at page 9: Combining the results of the Static-99R/Stable-2007 with clinically significant information, e.g. rationalization of offending behaviour, drug abuse, it is my clinical opinion that E.M. would be a moderate/low-risk for future sexual or violent offending.

His risk would increase if he abused drugs and/or if he was involved in a relationship that was deteriorating and he felt mistreated/misunderstood. Given his history, it is my clinical opinion that E.M. is most likely to offend against women who are known to him. It is clear from discussion with E.M. that he engages in cognitive distortions, such as rationalization, which allow him to reduce his responsibility for his sexual offending, and his main concern is the possibility that he might be incarcerated rather than the well-being of the victim. [ 13 ] The complainant has prepared a victim impact statement.

I have read it in its entirety and I do not intend to read it as part of these reasons. It outlines the effect that the accused's offences had on the victim. It has affected her emotionally, physically and financially. Her relationship with her parents has suffered. She sleeps only two hours a night, and she remains fearful of the accused. Her self worth has suffered. [ 14 ] On the last two pages, the last paragraph of the victim impact statement, the complainant writes: To be honest, I hate all that he has done to me.

He's hurt me physically, mentally and emotionally, and no counselling session I've attended has helped to change that in any way. Because of him my family has been torn apart. Because of E.M.I have only my friends to turn to and not my parents. Because of E.M. the only way that I can express myself is through music. Because of E.M.I cannot sleep, focus on school and work the way I used to. Because of him I'm a mess and I hate myself.

I cannot forgive him because every day I relive the nightmare of a life he's brought onto me. [ 15 ] The Crown submits that a jail sentence from a high provincial range, plus a lengthy period of probation, to a penitentiary term would be appropriate in this case. Counsel for E.M. agrees that a jail term is required in this case, but submits that a provincial sentence of in the range of 15 to 18 months, followed by probation, would address the principles of sentencing. [ 16 ]

Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following principles: Denunciation, specific and general deterrence, separating offenders from society, where necessary, rehabilitation, reparation of harm done to victims or to the community, and promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.

[ 17 ]

Section 718.1 provides that a sentence must be proportionate to the gravity of the offence. I am also to consider any aggravating and mitigating circumstances. [ 18 ]

Section 718.2(

d) provides that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances." [ 19 ] I have been referred to three cases by the Crown, R. v. Reis , January 13, 1992, BCSC, unreported; R. v. C. , 2002 BCCA 24 ; and R. v. T. , 2006 NWTSC 62 . That case law indicates that the range of sentence in this type of case is from two to three years incarceration.

I am mindful that in sentencing the accused, I must have regard to the specific circumstances of this case and the specific circumstances of this accused. [ 20 ] With respect to this accused the mitigating factors are, firstly, he has entered a guilty plea and he has expressed remorse. The fact that he is remorseful is corroborated somewhat by the fact that shortly after the offence occurred he wrote a letter to the complainant apologizing. That was part of the statement that he gave to the police.

The fact of his remorse, though, is somewhat compromised by the comments that he apparently made to the probation officer and to the psychologist for the preparation of the reports. I have referred to those in some detail in my quote from the psychological assessment. Another mitigating circumstance is the fact that the accused does not have a criminal record. [ 21 ] Some of the aggravating factors which I have in mind are the accused was a trusted uncle. He had access to the residence.

He entered the residence when presumably he knew the parents were away as it was his sister, and they had gone to the Philippines on vacation. This was a case of what I would term a serious sexual assault that involved full penetration and intercourse. [ 22 ] This is a case where denunciation and deterrence, both specific and general, are important objectives. The accused, as I indicated, was a trusted uncle to the complainant. He gained access using a code which had been given to him, and I have referred to the circumstances behind the assault, and that it was a serious assault.

I am also mindful that the effect of this offence on the complainant has been profound. [ 23 ] Rehabilitation is also a factor that must be considered in this case. In my view, a proper balancing of the objectives that I have outlined will be met by imposing a sentence at the very high end of the provincial range and a lengthy period of probation which will ensure that the accused gets the counselling and programming he needs to reduce the risk of reoffending while still protecting others, including the complainant in this case, from him. [ 24 ] Stand up, E.M. E.M., I am sentencing you to two years less one day.

That will be followed by probation for a period of three years. The terms of your probation will be that you keep the peace and be of good behaviour. You are to report to a probation officer within 48 hours of your release from custody and thereafter as and when directed by the probation officer. You are to provide your residential address to your probation officer and not change that address without the prior written consent of your probation officer. [ 25 ] You are not to have contact, directly or indirectly, with N.R., who you know by her name, that is, your niece.

You are not to attend at or near N.R.'s place of residence, place of employment or place of schooling. [ 26 ] You are to attend for, participate in and complete any individual and/or group therapy, counselling or programs for sex offenders as directed by and to the satisfaction of your probation officer. You are to attend for and participate in any psychiatric or psychological assessments, counselling or educational programming as may be directed by and to the satisfaction of your probation officer.

You must attend, participate in and successfully complete any counselling and/or programs as directed by and to the satisfaction of your probation officer. [ 27 ] You are to abstain absolutely from the consumption of alcohol and/or non-prescription drugs, or drugs as defined by the Controlled Drugs and Substances Act . [ 28 ] You are not to possess any weapons as defined by the Criminal Code . [ 29 ] Are there other conditions the Crown would be seeking on a probation order, Mr. Sayson? [ 30 ] MR.

SAYSON: Not in addition to those, but I have ancillary orders that I will be requesting. [ 31 ] THE COURT: Those are the DNA order and the Sexual Offender Registry? [ 32 ] MR. SAYSON: Yes, and the firearms prohibition order. [ 33 ] THE COURT: Yes, and that is under s. 109 or 110? [ 34 ] MR. SAYSON: That will be under s. 109(1) (

a) of the Criminal Code . [ 35 ] THE COURT: For ten years? [ 36 ] MR. SAYSON: For ten years. [ 37 ] THE COURT: All right. You gave me a form of order to be signed. [ 38 ] MR. SAYSON: Yes, I gave you the SOIRA . [ 39 ] THE COURT: That's right, and I have signed that order. I will make the order that he participate in the Sexual Offender Information Registry. I have signed that order. [ 40 ] This is a primary designated offence. There will be an order that a sample of his DNA be obtained.

[ 41 ] There will also be an order under s. 109 of the Criminal Code that for a period of ten years, sir, you are not to possess any of the weapons, ammunition, restricted weapons, et cetera, referred to in that section. [ 42 ] Anything else? [ 43 ] MR. SAYSON: Yes, just to confirm that the DNA will be in a Form 5.03. [ 44 ] THE COURT: Yes. [ 45 ] MR. SAYSON: And that the duration of the Sex Offender Information Registry Act will be for a period of 20 years. [ 46 ] THE COURT: That's right. [ 47 ] MR.

SAYSON: And that the -- I wonder if Your Honour's waiving the victim surcharge of $100, or not? [ 48 ] THE COURT: I am waiving it. He will not be in a position to pay it. Mr. Douglas, any difficulties? [ 49 ] MR. DOUGLAS: No, Your Honour. [ 50 ] THE COURT: All right. Thank you. [ 51 ] MR. SAYSON: Your Honour, it will be useful for you to recommend that the pre-sentence report, and the psychological report, and the victim impact statement be attached to the warrant of committal so that it will speed up the classification of the accused. [ 52 ] THE COURT: Any issue? [ 53 ] MR.

DOUGLAS: Yes, I would agree. [ 54 ] THE COURT: All right. I will make that recommendation. (REASONS FOR SENTENCE CONCLUDED)