R. v. P.M.A. Date:, 2012 BCPC 159

Citation: R. v. P.M.A. Date: 20120313 2012 BCPC 0159 File No: 178730-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. P.M.A. Ban on Disclosure under S. 486.4(2) of the Criminal Code of Canada ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.D. MILLER Counsel for the Crown: W. Sayson, Q.C. Counsel for the Defendant: D. Gable Place of Hearing: Surrey , B.C. Dates of Hearing: July 26, 27, 28, 29, August 2, 2011 Date of Judgment: March 13, 2012

[ 1 ] THE COURT : This 41-year-old man was convicted by me October the 20th, 2011 of four counts of sexual assault, incest, sexual touching of a person under the age of 14, and sexual touching of a person under the age of 16. These convictions flowed from his raping and otherwise sexually interfering with his daughter a number of times over a number of years. [ 2 ] The complainant, the accused's daughter, was born [date of birth] at a time when her mother and the accused lived together. The defendant left the home when the complainant was aged two years. Thereafter he was in and out of the complainant's life.

He began to be in her life with increasing frequency when she was age 11 years and entering puberty. It was when she was only 11 years old that the accused first had sexual intercourse with the complainant in his home when she was visiting with him. It was November the 18th, 2009 that the accused last had sexual intercourse with her. This last act took place in his car in a parking lot in Coquitlam after the accused had picked her up from nearby her home in Surrey.

The complainant was aged 14 at the time of this last sexual act with her father. [ 3 ] During the years between the first act of sexual intercourse and the last one, the complainant told me, and I accept, that he had sexual contact with her approximately two times per month.

It was after the events of November the 18 th , 2009 (which are more fully described in my October Reasons for Verdict) that the complainant disclosed what had been happening to her and these charges were initiated. [ 4 ] After the accused left the home of the complainant and her mother, the complainant lived in a number of homes in Surrey with her mother. The complainant told me, and I accept, that in addition to sexually abusing his daughter when she was just a little girl, he also introduced her to alcohol and drugs. Throughout these events and even to today the complainant professes love for her father.

She recognizes the terrible harm that he has done to her but protests that she would never hurt him and says, "I love my dad, I always have." [ 5 ] The harm that the accused's criminal behaviour has caused to the complainant and her mother has been predictably devastating. It is very well described in the victim impact statement of both the complainant and her mother and is also confirmed in a statement by a good friend of both of them, namely M.L. M.L. also described the harm that she herself suffered as a result of what this man did to his daughter, her friend.

No doubt others in the community have had their lives impacted by the evil that this man perpetrated.

To say that this man violated a trust is to dramatically understate what he did to his daughter all those times over all those years. [ 6 ] Parliament makes it clear in s. 718.2 that any sentence that I impose "should be increased" if the offender "abused a person under the age of 18" and if the offender "abused a position of trust or authority in relation to the victim." It emphasizes the first of those two aggravating factors in s. 718.01 when it says: When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [ 7 ] Even without reference to s. 718.01, our Court of Appeal has clearly expressed the denunciatory approach that should be taken in cases like this.

In R. v. R.A.J. , a case with very many similarities to the one at bar, except R.A.J. did not have a criminal record, Madam Justice Bennett spoke for the court at paragraph 30: The primary principle of sentencing is proportionality: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence must not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence...

I cannot conceive of a more morally blameworthy act than a parent sexually offending against his or her child, particularly, as here, commencing at a young age and being repeated many times over a course of years. Madam Justice Bennett could have been referring to the case at bar. [ 8 ] She confirmed that the range of sentence for such crimes is "up to 12 years or more… but the usual range is five to eight or nine years." She essentially then confirmed an eight-year sentence for crimes very similar to those before me where the offender had no criminal record.

The offender before me has a long criminal record for property offences dating back more than 20 years to when he was a youth. In my Reasons for Judgment I referred to his living a marginal life as a small-time criminal. [ 9 ] After I rendered my verdict, counsel asked me to adjourn the matter so that a pre-sentence report and psychological assessment could be prepared. I did so, unenthusiastically. The accused failed to cooperate. He missed three appointments with the forensic clinic.

Thin excuses were provided for two of those missed appointments, but I must say I did not find them credible (one was said to be receiving late notice for the first appointment, and the other was a prior commitment for the second appointment). [ 10 ] His displayed attitude towards the probation officer completing his pre-sentence report was similarly cavalier and negative. He did attend an interview but failed to provide promised contact information that would have allowed the probation officer to confirm some of his story. He also revealed a pattern of blaming others for his criminal conduct.

His position that he does not need counselling, nor intervention, nor assistance, speaks to his lack of insight into the seriousness of what he did or what he faces as a consequence. [ 11 ] The Crown wanted me to proceed on the last date without the benefit of a psychological assessment, but defence counsel disagreed. Defence counsel was adamant that such a report should be obtained even though he conceded it would best be appropriate to revoke bail and order that assessment be done on an in-custody basis.

That is what happened. [ 12 ] Other than the cavalier and negative attitude previously referred to and a history of criminal misconduct, the pre-sentence

report reveals nothing remarkable about the accused, nor his upbringing. He came from a seemingly good and stable home; he left school early and seemingly benefited little from the schooling he did receive. His legitimate work history is marginal and sporadic. [ 13 ] The psychological assessment that was completed in custody reveals that he is a man of limited intelligence but otherwise unremarkable.

It is said he has a low risk to re-offend, but as noted earlier this would increase if he was to find himself in a situation presenting opportunities similar to what happened here. [ 14 ] Defence counsel says that I should conclude that the range of sentence available to me would be from two years less a day plus a three-year probation order, to four years, and that I should consider imposing a sentence at the lower end of that lower range. He points to aspects of his client's history and makeup that he says support his position, and I have taken those aspects into account.

He does, however, also say that the more usually observed range of sentence available here would be four to seven years. I must say that the difference between the prosecutor's position and that of Mr. Gable, when I deal with his conceded four-to-seven-year range, is not large. [ 15 ] I find the most relevant and helpful case to be that previously mentioned R. v. R.A.J. decided by our Court of Appeal on June the 10th, 2010. From that case I have concluded that the available range of sentence for a case such as the one before me now would be four to 12 years. [ 16 ] There are few mitigating factors here.

The offender's life has exhibited a consistent pattern of criminal behaviour and marginal participation in normal society. Though the report of Dr. LaTorre suggests that he is of low risk to re-offend, that risk increases if he finds himself with "another opportunity to establish a close bond with another young female." I cannot, of course, have any assurance that such an opportunity will not again arise. [ 17 ] Mr.

Sayson pointed to a number of aggravating factors: A long history of criminal conduct; an extreme degree of moral culpability given his relationship with his victim, together with her age; the fact that the criminal conduct continued for years; the fact that he caused great harm by his actions, and the fact that his expressed attitude does not bode well for the future of his rehabilitation.

I must say that I do not think this last-mentioned fact can be properly categorized as an aggravating factor as, while the opposite attitude might well have been seen as a mitigating factor, I think that what is being urged upon me here is too close to concluding that an absence of remorse is an aggravating factor. That is forbidden, and as Mr.

Gable says, it is really only maintaining his innocence and he is entitled to do that. [ 18 ] As I found the accused guilty of all four counts in the Information, a consideration of the rule against multiple convictions for the same delict or acts as that rule was expressed by the Supreme Court of Canada in the case of Kienapple must be considered. I agree with the approach of the prosecutor. Count 2, the charge of incest, is the most serious and should be considered as the primary count to be sentenced.

The rule against multiple convictions does not preclude a simultaneous conviction for Count 1 as that count involves different elements. However, any sentence that I pass on Count 1 should run concurrently to any sentence that I impose on Count 2.

The convictions on Counts 3 and 4 are barred by the rule. [ 19 ] Accordingly, even though I have found him guilty of those two counts, I direct that a conditional stay of proceedings be entered upon them. [ 20 ] I also must take into account the time the accused has spent in custody since January the 27th, 2012 when I ordered him into custody to get the psychological report done; so those two months will be subtracted from the time I am going to order that he be in prison. [ 21 ] In these circumstances, given the crimes committed by this man, given the affects that those crimes have had upon others, given what Parliament and our Court of Appeal says about the approach I should take, given all I know about this offender as disclosed in his pre-sentence report and the report of Dr.

LaTorre and what Mr. Gable has told me about him (including his record of prior criminal convictions), I have concluded that the proper sentence on Count 2 is six years, less the two months previously referred to, making five years and ten months as the warrant of committal sentence. Insofar as Count 1 is concerned, I impose the same sentence to be served concurrently. [ 22 ] Mr. Sayson has helpfully set out the various ancillary orders that I should consider, plus the Crown position on them, at tab 14 of his materials. I have already made the so-called SOIRA order pursuant to s. 490.012.

However, s. 743.6(1) was not dealt with, and by this I mean as both incest and sexual assault are involved here and the sentence is more than two years, the provisions of s. 743.6 come into play. I have not heard from either counsel on this and I want to now, if it suits you. [ 23 ] Mr. Sayson, do you have anything to say? (SUBMISSIONS BY COUNSEL) [ 24 ] THE COURT: Well, my inclination is to do what the

section permits; however, in light of the position of both counsel, I will not. [ 25 ] Then insofar as the DNA order is concerned, this is a primary designated offence and so I am going to make an order in Form 5.03 that will authorize the taking of such number of samples of bodily substances that are reasonably required for the purpose of DNA analysis when he is in custody. I do not think I need to be more specific than that. I do not have to

schedule a date or anything, obviously. [ 26 ] Mr. Sayson, you also said that I should make a gun order under s. 110. [ 27 ] MR. SAYSON: Yes. [ 28 ] THE COURT: How did you arrive at that? I do not know, and perhaps one question. What do you say, that this offence was committed involving violence, used, threatened or attempted?

(SUBMISSIONS BY COUNSEL) [ 29 ] THE COURT: In these circumstances, given the nature of these offences and the circumstances in which they were committed, I accept the argument of Crown counsel that s. 110 does apply, and therefore I have to make a decision as to whether or not I think it desirable in the interests of safety of himself or other persons to make an order prohibiting him from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosives substance.

Given these events and a long history of anti-social behaviour, I do think it so desirable and I make that for the requested period of ten years. [ 30 ] Having done that, I still think I am obliged to give him an opportunity to surrender any such items he might now have to a firearms officer, peace officer or otherwise lawfully dispose of them, but I suppose in the circumstances there is no need to say anything other than make that forthwith. [ 31 ] Anything about that, Mr. Gable? [ 32 ] MR. GABLE: No, thank you. [ 33 ] THE COURT: Okay. Moving on to the victim impact surcharge.

In the circumstances I am not going to order that. [ 34 ] Next, the Crown says I should make an order under s. 743.21(1) for what is termed a non-communication order, and the

section is not all that helpful about when I am supposed to do that, but in these circumstances, given the position of defence counsel, I will order that the Warrant of Committal contain a provision prohibiting the offender from communicating with S.A., B.A., B.D., and M.L. [ 35 ] Finally, as requested by Crown counsel, I will order that pursuant to s. 743.2 that a transcript of my Reasons for Sentence, the pre-sentence report, Dr. LaTorre's report and the victim impact statements be forwarded to the Corrections Service of Canada. However, I do not intend to order assessments be conducted.

Without good reason, I do not make those orders very often and I do not intend to make them here. Anything you want to say about that? [ 36 ] MR. GABLE: No. [ 37 ] MR. SAYSON: The reason I made that, when I typed this up, this recommendation, we did not have the psych report we now do. Therefore it's moot. [ 38 ] THE COURT: Oh, okay. Well that makes sense. Okay. [ 39 ] MR. SAYSON: Just to confirm then that the SOIRA order is for a period of 20 years, and all of the ancillary orders made by the court is applicable to both Counts 1 and 2. [ 40 ] THE COURT: Yes. [ 41 ] MR.

SAYSON: Thank you. [ 42 ] THE COURT: Anything else, Mr. Gable? [ 43 ] MR. GABLE: No, thank you. (REASONS FOR SENTENCE CONCLUDED)