R. v. P.D.L. Date:, 2012 BCPC 100

Citation: R. v. P.D.L. Date: 20120110 2012 BCPC 0100 File No: 176352-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. P.D.L. BAN ON DISCLOSURE s. 486.4(2) CCC REASONS FOR SENTENCE OF THE HONOURABLE ASSOCIATE CHIEF JUDGE G. S. GILL Counsel for the Crown: J. Gahunia Counsel for the Defendant: K. Cronin Place of Hearing: Surrey , B.C. Date of Hearing: January 10, 2012 Date of Judgment: January 10, 2012 [ 1 ] THE COURT : This matter is before the court for sentencing.

At the outset I will remind everyone that there is s. 486.4 publication ban on the publication of any information that could identify any victims or witnesses in this matter. [ 2 ] Before the court for sentencing is P. D. L., on a guilty plea to sexual interference contrary to s. 151 of the Criminal Code . The offences to which he has pled guilty, two counts, were committed against two young boys, one of whom was then 11 years old and the other roughly 12 years. The offences occurred between 1989 and 1991 when the offender was in his early 30's.

He is now 54. [ 3 ] The offences, having occurred approximately 20 years ago, came to light only recently as a result of disclosures made by the victims. The offender was, at the time of committing these offences, in a position of trust to both of the victims, being an uncle to the younger of them and playing the role of a father figure to the older one. Regarding the slightly older victim, then 12 years of age, to whom the offender stood as a father figure, the sexual misconduct occurred on three occasions over a span of two years.

It consisted of the accused on the first occasion, while introducing the victim to watching pornography, inviting him to masturbate the accused. On the following two occasions the misconduct consisted of masturbating the victim on both occasions to the point of ejaculation.

[ 4 ] The younger boy was victimized when the accused squeezed his genitals during an eight-day-long trucking trip while the boy was occupying the bunk area of the rig located immediately to the rear in the cabin. There was a second incident some time later during which the accused joined the boy while he was taking a shower in the boy's family home. While nothing further is alleged to have then occurred, it is common ground that he joined the boy in the shower for a sexual purpose and following the taking of the shower they occupied a common bed.

On the third occasion the accused accompanied the boy while they watched the Playboy channel for about five minutes. [ 5 ] All of these offences involving both victims occurred in private. The younger victim was advised by the accused that he should not disclose any of this to anyone. The victim complied until the recent disclosure made by the older boy, now a young man, as noted now some 20 years after the original events. [ 6 ] Both victims were clearly affected by the sexual misconduct of the accused.

There is a victim impact statement filed by the nephew that discloses a variety of dysfunctional behaviours attributed almost entirely to this victimization. Those include confused sexuality, substance abuse, and difficulty managing anger. The disclosure by the older victim, while not set out in a victim impact statement, was nonetheless described in the pre-sentence report and includes feelings of embarrassment, guilt, anxiety, nightmares and an inability to trust. [ 7 ] These disclosures placed great stress on the entire family. The accused's sister feels betrayed.

It also brought great shame on the accused himself in a manner which I will describe when dealing with the circumstances of the offender which I will now embark on. [ 8 ] The accused lives in Pemberton where he has resided in a common-law relationship for approximately the past 17 years. His parents live in Langley. His only sibling, his sister, is, as already noted, the mother of one of the victims. The accused has been isolated from his family since these matters came to light. [ 9 ] Mr. P.D.L. was confronted by his sister when these matters were disclosed and the police were notified.

The public shame and associated distress felt by him was clearly demonstrated in his immediately subsequent conduct that was suggestive of suicidal thoughts or ideations. He was located by police, crying, and holding onto a belt which had been tied by him into the shape of a noose. As a result of that discovery he was immediately admitted to a hospital for about a week.

Following his discharge from hospital the police investigation continued during which the accused, I am told, was entirely forthright in admitting the details of his misconduct. [ 10 ] The issue now before the court is to determine what would be a fit sentence, having regard to the circumstances of the offence, the harm it caused, and the circumstances of the offender.

Determining a fit sentence in a case such as this is never an easy task, often requiring the balancing of diverse and sometimes conflicting principles and interests. [ 11 ] In the present case, however, counsel for both Crown and defence have reached what they have told the court is a common position on what they feel would be a fit sentence and which they both support.

In law this is known as a joint submission on sentence, and it is appropriate here to outline some of the basic law in connection with joint sentencing submissions. [ 12 ] A jointly-recommended sentence is not legally binding on a court; however, the judge must not reject it without very good reason. In considering the matter the court must look into the reason for the joint submission, including, but not limited to, the fact or factors underlying the plea and giving rise to that particular submission.

There are also public interest considerations and whether the suggested sentence is so far outside of an acceptable range that it would bring the administration of justice into disrepute. [ 13 ] The sentence being recommended by both counsel is one of incarceration in the community under a conditional sentencing order. The duration suggested is the maximum community-based sentence allowed under law, being a sentence of two years less one day.

It would then be followed by a three-year probation order having a variety of rehabilitative and protective terms and conditions. [ 14 ] I will now review the materials presented to this court in support of the sentencing submission and then consider whether, under all of the circumstances, this sentencing submission can be accepted. [ 15 ] A conditional sentence of imprisonment would only be eligible for consideration if the following requirements are met: Firstly, that it not be what, at the time of commission of the offence, would be regarded as a serious personal injury offence or an offence punishable by a minimum term of imprisonment.

The second condition is that a conditional sentence is not available for any sentence of imprisonment of two years or greater duration. The third requirement is that serving the sentence in the community would not endanger the safety of the community, and the fourth condition is that it must be consistent with the fundamental purpose and principles of sentencing as set out in s. 718 , 718.2 of the Criminal Code . [ 16 ]

Section 718 of the Code sets out a variety of objectives of sentencing.

They include denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating the offender from society where necessary, rehabilitation of the offender, reparations for harm done, and finally, promoting a sense of responsibility in the offender and acknowledging the harm done. [ 17 ] Every case is unique on its own facts and as a result each of these factors may have greater or lesser weight, depending on the particular circumstances. [ 18 ] Both counsel have suggested that in a case such as this the principles of denunciation and deterrence are of primary importance, and I agree.

They submit additionally, however, and I also agree, that those factors must be balanced with and considered alongside the objectives of rehabilitation of the offender and promoting in him a sense of responsibility. [ 19 ] Finally, it must be remembered that the principle of proportionality of sentence is a fundamental principle. The principle of proportionality is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 20 ] There are features in this case that are clearly aggravating in nature.

There are other features that pull in the other direction supporting mitigation. Those features must be considered together in order to find an appropriate balance.

[ 21 ] It is an aggravating feature that these victims were under the age of 18 at the time the offences occurred. A second aggravating feature is that this accused committed these offences while in a position of trust or authority, as already noted, being an uncle to one of the victims and a father figure to the other. He clearly abused that position of trust. And the third aggravating factor is that the misconduct occurred not once but rather more than once, and over a longer period of time. [ 22 ] Factors in mitigation of sentence must also be considered.

They include the fact that this offender has no prior or subsequent criminal history, he has pleaded guilty and thereby not only saved many days of court time, but more importantly, he has saved the victims and others from having to testify about their pain and grief in a very public setting.

It is also noted that this offender has expressed what has been accepted as genuine remorse for his conduct and the harm it has caused to the victims and their families. [ 23 ] Finally, some consideration must be given to the consequences that have already been visited upon this offender outside of this court process, including, but not limited to, the isolation from his extended family, the impact on his own common-law relationship, and the loss of his employment of 17-years duration. [ 24 ] In addition to the submissions provided by counsel on this case, I have also been provided with other case authorities involving sentences imposed for these types of offences, and also with very helpful reports by probation officers and psychologists. [ 25 ] The psychological reports describe an offender who, from an early age, suffered from a lack of confidence and feelings of gross inadequacy both generally and also sexually.

He had a marked absence of any history of significant intimate relationships.

It has been theorized that there was in the past an interrelationship between all of this and the misconduct for the time that it occurred. [ 26 ] There are some differences of opinion as between the two psychological reports, including in the areas of the degree of psychological coercion that may have been involved, the degree to which the offender might be attempting to minimize his culpability in the misconduct, the characterization of the offender's suicidal ideations after the misconduct had come to light, potential difficulties by the offender with non-intimate relationships, the importance of counselling and/or medications, and finally, the degree to which this offender may be at risk to re-offend. [ 27 ] Some of these differences fall more to the question of degree rather than a black and white opposing view.

To the extent that one of the psychological reports takes a slightly more pessimistic view than the other, I believe it is reasonable to conclude that it has likely arisen because it relied on a state of facts that everyone subsequently agreed were not entirely accurate for sentencing purposes. Overall, I draw from these reports taken collectively, and resolving any differences of opinion based upon the facts and submissions as provided to this court, that this offender represents a low risk or, at worst, a low to low-moderate risk of re-offending.

This is based on the interviews conducted by the psychologists including tests they administered to him. It is also based on the fact that there have not been any other substantiated victims or offences in the past 20 years, or at least anything that in the view of Crown would be appropriate to consider with respect to the issue of what would otherwise be a fit sentence in this case.

I would also note here that although the accused has, for the past 17 years, been employed as a bus driver involving the transportation of school children, there is absolutely nothing to suggest in any way that he misconducted himself in the execution of those duties. [ 28 ] The risk of re-offending is a significant factor insofar as it relates to the protection of the public.

Where that risk can be managed in a community based setting, institutional incarceration may not only be unnecessary, it could actually prove harmful and be counterproductive to the rehabilitation objective. [ 29 ] All of the reports appear to be in agreement as to the usefulness of precautionary conditions, as well as counselling or other rehabilitative measures. None of the reports suggest that these objectives cannot be met in a community setting.

It is also noteworthy that neither psychologist found a basis to conclude that this offender has any paedophilic interests. [ 30 ] I will now deal with some of the principles as enunciated in the case authorities. I do not propose to itemize those cases, but rather to draw from them the very important principles for which they stand and to which this court, as a matter of law, is required to apply. All the cases presented involved sexual touching of a nature either similar to or in some instances more aggravated than involved in the present case.

The main principle these cases stand for is that in sentencing for sexual misconduct of this nature, the requirements of denunciation and of deterrence, while very important, may be achieved through the imposition of a jail sentence served in the community where the other preconditions for such a sentence exist. Here I will note that s. 718.2 (

b) of the Criminal Code provides that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances." Equally pertinent is s. 718.2 (d), which provides that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances." [ 31 ] The circumstances of this case are those that in my view clearly require a deprivation of liberty of the accused. The principles of denunciation and deterrence require it.

However, the more difficult question is whether that deprivation of liberty necessarily requires institutional incarceration, or whether it can be accomplished in a community based setting as the case authorities presented to me by counsel, and their own submissions, would suggest. [ 32 ] Earlier in these reasons I have set out the specific misconduct by Mr. P.D.L. constituting the commission of these offences. I have also related the family isolation experienced by him.

He has now become something of an outcast, limiting his social contacts for the time being to his common-law spouse and his non-family contacts such as through work. The stigma associated with this type of offence has already resulted in the loss of this long-standing employment of 17 years, and he has found a new job driving a taxi, working the graveyard shift.

The stigma associated with the commission of these offences will likely continue into the future, especially in light of the very small community in which he resides. [ 33 ] For all of the damage that he has inflicted, I accept that he is genuinely remorseful. His remorse was demonstrated in how he dealt with this matter when it came to light, including his cooperation with the police, and also in the candid interviews which he gave to the psychologists and probation officers in preparing the sentencing materials.

His remorse is also evident in his guilty plea and in the very emotional statement he gave at the conclusion of the sentencing proceedings on the last day this matter was in court. At that time the accused expressed his shame and apologized for his actions, acknowledging that his apology may be of little comfort to his victims for committing what he described as an ultimate betrayal of trust.

[ 34 ] It is clear that his actions damaged both victims for many years. They have had to carry with them the shame and associated guilt of the secret of their mistreatment. Those feelings have caused and led to further psychological problems, and in the case of the nephew, also some substance abuse issues. Harm caused to victims is clearly an important factor in the sentencing process, although it is not the only such factor. [ 35 ] To summarize, I have carefully considered the following information and materials as previously related in these reasons. 1. The circumstances of the offence and the harm caused. 2.

The circumstances of the offender, including his degree of remorse and the absence of any other criminal record over the intervening years, and the relatively low risk of re-offending. 3. The case authorities presented to me in the context of a recommendation on sentence that has been jointly recommended. [ 36 ] Having regard to all of this information, I am unable to identify any features of the present case that would sufficiently set it apart from the other similar cases provided by counsel in which conditional sentence orders were imposed.

The offences before the court do not carry any minimum term of imprisonment, and they do not qualify for a term of imprisonment in the federal range.

The misconduct occurred over 20 years ago, and while that does not minimize either its wrongful aspect or the harm caused thereby, it does assist in assessing the risk of future misconduct. [ 37 ] According to the materials filed before me, including the absence of any other criminal record and the potential for recidivism being at the low to low-moderate end of the scale, I conclude that a community-based term of incarceration would not endanger the safety of the community. [ 38 ] Finally, I am satisfied that a conditional sentence order would be consistent with the fundamental purposes and principles of sentencing at play here, including the reflection of the need for denunciation for this type of conduct, and the need for deterrence, as well as taking into account the rehabilitation aspects of the matter. [ 39 ] Mr.

P.D.L., would you please stand? [ 40 ] Sir, I sentence you to a term of incarceration of two years less one day, to be served under the provisions of the conditional sentencing provisions of the Criminal Code .

That sentence will be followed by a term of probation lasting 24 months. [ 41 ] The terms of the conditional sentence order will be as follows: You are to keep the peace and be of good behaviour; you are to report forthwith to a supervisor in person and thereafter as and when directed; you are to provide your residential address to your supervisor and not change it without prior written notice. [ 42 ] For the first nine months of this order you are to be confined to your place of residence at all times, save and except for the purposes of employment, for an additional two hours per week to attend to personal task and errands, or otherwise with the prior written approval of your supervisor. [ 43 ] You are to present yourself at the front door of your place of residence as and when required by a peace officer to assure compliance with the house arrest. [ 44 ] You are to abstain absolutely from consuming alcohol and any non-prescribed drugs. [ 45 ] You are to participate in and complete all assessments and counselling as directed and to the satisfaction of your supervisor. [ 46 ] You must not contact, K.M. and the two victims, directly or indirectly, for any purpose. [ 47 ] You must not attend within 100 metres of any place of residence, schooling or employment of those three named individuals. [ 48 ] You must not attend at any schools, public parks, swimming pools or other places that children under the age of 16 may reasonably be present. [ 49 ] You must not contact or be in the company of any person under the age of 16 except in the presence of another adult. [ 50 ] You must not seek or maintain employment, either for remuneration or on a volunteer basis, that would put you in contact with children under the age of 16, save and except for any employment as a taxi driver, in which case any such contact may only be in the presence of another adult. [ 51 ] You must provide your supervisor with the licence plate as well as the make, model and colour of all personal vehicles that you either own or drive. [ 52 ] The terms of the probation order will be as follows: They will mirror the conditional sentence order, deleting only the clauses relating to house arrest, attendance at the front door and the abstention clauses. [ 53 ] There will further be an order that you provide samples suitable for DNA extraction pursuant to s. 487.04. [ 54 ] I prohibit you from owning weapons or other items set out in s. 110 of the Criminal Code for a period of ten years. [ 55 ] Finally, I direct registration with the Sex Offender Registry pursuant to s. 490.013(2)(

c) for life. [ 56 ] Unless there are any other matters that counsel believe need to addressed or that I may have missed, those are my reasons.

[ 57 ] MS. GAHUNIA: Thank you, Your Honour. Just with respect to the house arrest as part of the conditional sentence order. [ 58 ] THE COURT: Yes? [ 59 ] MS. GAHUNIA: The Crown would ask that the condition allowing him to be out of the home for two hours per week, if we could specify, perhaps just set two hours on a set day so that there's no confusion with respect to potential breaches. [ 60 ] THE COURT: Ms. Cronin, any suggestions? [ 61 ] MS. CRONIN: It's a bit difficult only in that he does attend, as I advised, medical appointments for his partner.

Certainly it may be appropriate that he provide that time to his conditional sentence supervisor, if that is something Your Honour would consider. [ 62 ] THE COURT: Well, why don't I amend it to say two hours per week on a

schedule pre-approved by your supervisor? [ 63 ] MS. CRONIN: Thank you. [ 64 ] THE COURT: All right. [ 65 ] MS. GAHUNIA: And Your Honour, with respect to the SOIRA order, I believe a copy of that order was provided to the court, if that could be signed, and the date of course would be today's date. I don't believe I filled in the date on the last occasion. [ 66 ] THE COURT: No, you didn't, and I will do that now. [ 67 ] THE CLERK: Your Honour, in regards to the DNA order being made [indiscernible] usually on -- [ 68 ] MS.

CRONIN: I'm wondering if -- and this might complicate things, if there is a mechanism upon which he'd be able to report to the Pemberton RCMP. [ 69 ] THE COURT: I don't see why not, assuming for the moment that they are qualified to take those samples, or are prepared to do that. We ordinarily have a

schedule of attendance dates at various detachments. I'm not sure if we have that schedule, whether it is up- to-date, and whether it includes Pemberton. [ 70 ] MS. CRONIN: Otherwise it might be that Your Honour has to -- that I'd ask Your Honour to indicate that it be provided by a particular date, whether it's here or in Pemberton, he can make those efforts. [ 71 ] MS.

GAHUNIA: Your Honour, my understanding is it usually relates to where the file arises from, so I wonder if perhaps we can give him a date to provide the sample here and then, of course, he will be directed to Pemberton in any event for supervision. [ 72 ] THE COURT: So, all you want is a compliance date? [ 73 ] MS. CRONIN: Yes. [ 74 ] THE COURT: So a week? [ 75 ] MS. CRONIN: Certainly. [ 76 ] MS. GAHUNIA: That's fine. I should have those dates as well, Your Honour. [ 77 ] THE COURT: The sample to be provided by not later than Tuesday, January 17th, on or before? [ 78 ] MS.

GAHUNIA: Yes, I believe -- is this a -- sorry, is this a Langley matter or Surrey matter? I t's Langley, yes, and they're Tuesdays and Thursdays, so that's -- that date's agreeable, Your Honour. [ 79 ] THE COURT: Yeah, that gives him -- [ 80 ] THE CLERK: So that will be on Tuesday, January -- [ 81 ] THE COURT: -- that gives him the 12th to do it, or the 17th. [ 82 ] MS. CRONIN: Certainly. Thank you, Your Honour [ 83 ] THE COURT: All right. I want to thank both counsel for your very helpful assistance. [ 84 ] MS. GAHUNIA: Thank you, Your Honour. [ 85 ] MS. CRONIN: Thank you, Your Honour.

And I might ask in the circumstances, given his economic situation, Your Honour consider waiving the fine -- victim fine surcharge? [ 86 ] THE COURT: Well, I don't know, how much is it? [ 87 ] THE CLERK: Well, Your Honour, it is $100, so each count $200. [ 88 ] THE COURT: I think he should pay it. I am prepared to consider time to pay it. [ 89 ] MS. CRONIN: Yes, I will ask for that then, Your Honour. If I might ask two months.

[ 90 ] THE COURT: Time to pay the victim fine surcharge then, just for the sake of -- we will round it out to the 30th of March. [ 91 ] MS. CRONIN: Thank you. [ 92 ] MS. GAHUNIA: Thank you, Your Honour. I don't think there's anything else unless Madam Registrar has -- [ 93 ] THE CLERK: Outstanding Count 2? [ 94 ] MS. GAHUNIA: Crown directs a stay of proceedings on the outstanding count. [ 95 ] MS. CRONIN: Thank you, Your Honour. I'll direct Mr. P.D.L. to the registry. [ 96 ] THE COURT: Please. (REASONS FOR SENTENCE CONCLUDED)