R. v. K.W.B. Date:, 2013 BCPC 39

Citation: R. v. K.W.B. Date: 20130123 2013 BCPC 0039 File No: 181927-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. K.W.B. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. D. BAHEN Counsel for the Crown: V.C. Toselli Counsel for the Defendant: D.A. Birch Place of Hearing: Surrey , B.C. Dates of Hearing: January 25, 26, 27, 28; February 2, 2011; October 22, 23, 24, 25, 29, 30; November 1; December 4, 5, 7, 13, 2012; January 2, 9, 2013 Date of Judgment: January 23, 2013

Introduction [ 1 ] K.W.B. (K.B.) was convicted after trial on February 15, 2011, of breaking and entering a dwelling house and committing sexual assault, and related offences of sexual touching, of a person under age sixteen and uttering threats.

These offences occurred in the early morning hours of April 23, 2010, in Surrey, British Columbia. [ 2 ] At sentencing, the Crown asks to have K.B. declared a dangerous offender with an indeterminate term of imprisonment. [ 3 ] The defence submits K.B. should be sentenced to a term of imprisonment within the range of 6 to 12 years, and does not oppose a finding of long term offender status including a long term supervision order for a period of 10 years. [ 4 ] The dangerous offender application in K.B.’s case is brought under the terms of

Part XXIV of the Criminal Code , including the provisions that were enacted by the most recent amendments in July 2008. [ 5 ] The specific terms of the legislation relied on by the Crown in this application are found in sections 753 (1) (a) (

i) and 753 (1) (b).

The first of these two sub-sections refers to the offender’s potential threat to the safety of others based on evidence of : “ a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour.” [ 6 ] Under the first sub-section, the Crown asserts the evidence has shown the “pattern of repetitive behaviour” by K.B., while the Defence says this element of a repetitive pattern has not been established. [ 7 ] In the second sub-section, the legislation refers to the offender’s potential threat to the safety of others if the court finds that: “…the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.” [ 8 ] On the central aspect of this sub-section, the failure to control sexual impulses, the Crown says the evidence presented at this sentencing hearing, including the circumstances of the predicate convictions and the one prior sexual offence conviction, should lead to the following three conclusions: firstly, K.B. has failed to control his sexual impulses in the past; secondly, he will likely fail to control his sexual impulses in the future, thereby causing harm; and as a result, he should be designated as a dangerous offender.

The Defence says the commission of the predicate offences and the prior conviction do not provide sufficient evidence of failure to control sexual impulses. The Defence has submitted these offences are not an adequate factual and legal basis for the essential conclusion regarding the alleged failure to control sexual impulses. [ 9 ] Even if the evidence at this application proves K.B. can be designated as a dangerous offender, there are three sentencing options for a dangerous offender.

These are set out in section 753 (4.1) and include an indeterminate sentence of imprisonment, or a fixed term of imprisonment followed by long term supervision for up to 10 years, or a fixed term of imprisonment alone. The legislation restricts the sentencing discretion of the court by requiring the imposition of an indeterminate sentence unless the evidence heard at the application shows there is a reasonable expectation of adequate protection of the public by either of the two determinate sentence options.

Post-Conviction Procedural and Evidential Requirements [ 10 ] After conviction on February 15, 2011, the Crown filed the Consent of the Attorney General to seek an assessment by a psychiatric expert to determine if K.B. may be a dangerous offender. The Crown gave notice of the application for assessment. The Court granted an order for assessment of K.B. The assessment was conducted for the court by Dr. Riar, a forensic psychiatrist. His report, dated August 11, 2011, has been provided to counsel and the Court. In addition, the Crown retained the services of a forensic psychiatrist, Dr.

Lamba, to provide an opinion. His two reports, dated August 30, 2011, and July 13, 2012, were subsequently provided to counsel and the Court. The Defence retained a psychologist, Dr. Ley, and his report dated October 20, 2012, has been filed at the sentencing hearing. All three of these experts were called as witnesses and gave evidence at this hearing. K.B. declined to participate in interviews with Dr. Riar or with Dr. Lamba. Dr. Ley did have the opportunity to interview K.B. as part of the preparation of his report. K.B. did not testify at his trial or at the hearing of this dangerous offender application.

He has the right to not consent to interviews with assessing experts and to decline to testify at this hearing. The onus remains on the Crown in this application to establish proof beyond a reasonable doubt of any past conduct relevant to a finding of dangerous offender status. The Crown must prove beyond a reasonable doubt any acts of past conduct of the offender that may form the basis of a finding of dangerous offender status, except as admitted in an agreed statement of facts. There is an agreed statement of facts in this case dealing with some aspects of past conduct of K.B.

His statements to an undercover police officer are accurately related in the statement of facts. Although the fact he made in these statements has some relevance in assessing K.B.’s conduct and social behaviour, the past events recounted in his statements to the undercover officer, as well as the past events described by other witnesses at this hearing, including Mr. Leavitt who assessed K.B. for admission to the Kinghaven residential treatment centre in Abbotsford, must be given the same caution.

These past events, as described by K.B., have not been proven beyond a reasonable doubt and are not admissible as proof of any specific acts of past conduct. R. v. Pike, 2010 BCCA 401 Evidence at the Hearing [ 11 ] K.B. was born in 1974 and was adopted in infancy. Fetal Alcohol Spectrum Disorder was mentioned by a Probation Officer as a potential source of some of his behaviour problems in childhood. However, FASD was never diagnosed by any medical professionals.

His behaviour as a young child included a repeated pattern of petty thefts, and he would often take toys from other children and claim them as his own. His adoptive parents were not aware of a long term occurrence of childhood sexual abuse by an adolescent male neighbor who victimized K.B. This abuse began when K.B. was about 4 years old and continued until he was about 12 years old. There were assessments of K.B. in childhood resulting in diagnosis of learning disorders, dyslexia and Attention Deficit Hyper-Activity Disorder, (ADHD). He was expelled from school as early as grade 8.

Youth Probation assessments described him as involved in compulsive thefts from stores and from his family. In April 1989, he was involved in an incident that was described as accidental when gasoline he was using as fuel for a lawnmower spilled at the family home and the residence was burned down in the resulting fire. His family had to move out of the extensively damaged home. He was involved in drug use in his early teenage years, including marijuana and later cocaine.

Between 1987 and 1991, he was convicted of property offences as a youth, including theft, taking motor vehicle without consent, being unlawfully in a dwelling house, break and enter, trespass at night near a dwelling house, escape from custody, possession of stolen property, dangerous driving, breach and theft. He received sentences in Youth Court including open custody, probation and secure custody. The police agency CPIC printed form listing some of his youth offences is an incomplete record of his youth court convictions.

Youth Corrections and Probation Records [ 12 ] The Crown called a senior Probation Officer, Dean Ginther, who was asked to review the probation records involving K.B., as well as provide some specific information based on supervising K.B. while on probation as a youth and young adult. Psychological assessments for Probation Services in 1989 described K.B. as receiving expulsions from school on several occasions. His intelligence was described as average and there were no signs of psychopathology or impairment of cognition.

He was described as inwardly troubled and significantly disturbed by the events and milieu of his childhood. His adoptive father was a compulsive gambler. The gambling would result in unexplained absences by the father from the home for several days, and increased financial stress for the family. His father was occasionally physically abusive of his son. The family dynamics were described as dysfunctional in Probation reports. As a young teenager, the psychological assessments described K.B. as angry and isolated.

His behaviour reflected his inner disturbance in forms of activity described by the assessing psychologist as sensation-seeking, rebellious, passive and active anti- authoritarianism and compulsive stealing. There were numerous referrals for counselling as a therapeutic avenue during his teen years. He responded positively to a Wilderness Program, but when he returned to his family residence his pattern of thefts and other offences was renewed. He was not able to achieve any sustained participation or benefit from referrals to other youth counselling options.

His employment as a teenager in fast food restaurants or warehouses was characterized by terminations based on suspicions of theft, without any charges proceeding. His mother continued to be supportive of efforts to obtain help for her son, but would also oppose some medical therapies, including prescription medications for K.B. She would respond defensively when probation staff asked her about her son’s missed appointments for counselling sessions or non-attendance for probation reporting. By 1990 K.B. was referred to youth detox programs to address his substance abuse problems.

By 1991, a Youth Court Pre-Disposition Report written by T. Savoy, Youth Worker, provided the following

summary: K.B. has been faced with serious issues during his childhood. His adoption, his father’s gambling addiction, physical abuse, and his parent’s separation. Even though this youth does not convey that these issues are problematic his behaviour is indicating otherwise. The subject has a very limited education and the employment he has been able to secure has been sabotaged due to his alleged thievery. K.B. openly admits he has a drug problem, but to date the awareness has not curbed his behaviour. He is currently not involved in any organized or constructive leisure activities.

Again due to K.B.’s compulsive stealing, he is unable to form any long-standing relationships. There are grave concerns with this youth as he appears to have no fear of the consequences he is facing, is not affected by the Court proceedings and is generally “out of control” in the community. The dilemma is that until K.B. faces some deep rooted issues his situation is unlikely to change. He has had the benefit of a multitude of counselling services for the past 11 to12 years, but his behaviour and attitude continue to worsen.

His parents are understandably frustrated as they feel they have tried every avenue possible without success. Probationary periods have certainly not deterred this youth from further criminal activity. Most of his offences have occurred while on probation. Unfortunately most of the limited resources available to this youth through the Corrections Branch have been utilized. Exhibit 1, tab 34, page 9 [ 13 ] By February 1992, K.B. was near the end of the age period for Youth Court proceedings.

A Case Management report from staff at the Willingdon Youth Detention Centre did not support K.B.’s early release from custody on the Youth Court sentence he was serving at that time. The report writers noted under the heading of “Other Comments”: K.B. continues to have peer problems and is regularly victimized. He brings on a lot of the problems himself but his lack of self esteem and his problem with sexual abuse attribute to most of his difficulties. K.B. needs intense counselling if he is ever to progress in life and he needs it now. Exhibit 1, Tab 45, page 2 [ 14 ] In a Youth Probation termination

summary in October 1992, the author provided the following opinions: In regards to counselling it appeared to have just fazed out. K.B. feels he does not need it and he has NA [Narcotics Anonymous] friends to talk to if he needs to. K.B. did marginally well on probation. He seemed to do just enough to get by. I am skeptical if whatever counselling he is doing is helping him. It seems as K.B. gets older, and receives more responsibility, he is not able to handle that responsibility. I anticipate his continued involvement with the justice system and I would not be surprised if his offences are alcohol/drug related.

Exhibit 1, Tab 46, page 5 Adult Corrections Records [ 15 ] The Crown presented evidence from a deputy warden of the North Fraser Pre-Trial Centre, Ardith Watson. She was asked to review and interpret the correctional service records for K.B. for the time period of his remand in custody on the predicate offences to

the date of hearing, a period of about 30 months. Most of his remand centre custody was spent in segregation units due to the nature of his pending charges. He was involved in some conflicts and breaches of remand centre rules, but these were relatively minor episodes and his time in remand custody was characterized as relatively stable, given the inherently difficult and tense environment within the remand centre population.

Circumstances and Impact of Index Offence [ 16 ] The adult caregivers in the home of the nine-year old girl who was the victim of these offences provided written victim impact statements detailing their trauma and emotional turmoil as a result of the offences. The facts of the offences were described in the reasons for judgment at trial on February 15, 2011. In

summary, the circumstances of the offences involved K.B. breaking into the home shared by the victim with her adult family members. K.B. had known the family members since he was a teenager and had visited their home occasionally as an adult. He was involved for several years in acquiring skill in computer programs and hardware. This was an interest he shared with one of the family’s friends who lived on the family property in a trailer. On the offence date, he went to the home in the early morning hours. He carried with him some items that were used in the offence, including scissors.

His father had worked as a locksmith and K.B. acquired skills that he used to pick locks in this offence in order to enter the home at night. He sexually assaulted the child in her bedroom and threatened harm to her and her family if she reported the incident. She was physically harmed, a small cut from a sharp object, probably scissors, pressed against her wrist during the assault. She immediately reported the assault. Physical evidence at the scene, including a pill bottle with his name, containing crack cocaine, linked K.B. to the offence and he was arrested about one week later.

Statements to Undercover Police Officer [ 17 ] Following his arrest for these offences. K.B. spoke to an undercover police officer assigned as a “cell plant” as part of this investigation. The conversation with the undercover officer has been presented in evidence by an agreed statement of facts. K.B. spoke boastfully of his involvement in criminal activity, marijuana grow operations, his skill in acquiring unauthorized access to computer accounts or “hacking,” his familiarity with computer websites with pornographic contents, including violent pornography and child porn.

He claimed to have been involved in a homicide or in three different killings in Surrey related to the illicit drug trade. He said he had been required to dispose of the body of another victim of drug dealers in Surrey sometime in 2005 or 2006 and he believed the police knew some information linking him to the dumping of the body. He described in detail his knowledge of the technical aspects of marijuana cultivation equipment and computer technology involving servers, websites, storage and protection by password encryption of large amounts of digital images including pornography.

Once again, this past conduct is not proven to have occurred, but is presented as some indication of his current social conduct and behaviour when he was placed into custody. Unresolved Criminal Charges in Alberta [ 18 ] The agreed statement of facts also described criminal charges in Alberta. K.B. had been living in Alberta in 2006.

An Information was sworn in November 2006 alleging property offences against K.B. at that time, occurring near Edmonton, including theft of letters, possession of stolen letters, theft of a camera and electronic games and gift cards from a courier company and possession of these items. He was also charged with failure to attend court on these charges in January 2007. The warrant issued after his failure to attend court was limited to the Province of Alberta and all these charges were unresolved at the date of the hearing of this dangerous offender application. K.B. had returned to British Columbia in 2007.

Search of B. Residence – Child Pornography [ 19 ] The statement of facts also gave the detailed results of a search warrant executed at K.B.’s parents’ home in June 2010. He had been residing with his parents, in a basement suite at their home, prior to his arrest on these offences in May 2010. The police search located six computers as well a total of nine hard drives. Some of the storage devices were hard drives taken from the computers and some were external hard drives. One of the computers had been found unplugged, without any connections to the other equipment in the room.

The hard drive was examined after removal from this unplugged computer and was found to include four videos containing child pornography. The details of this material are described in the agreed statement of facts. Previous access to the material was described in the statement of facts as follows: The child pornography was found on the user account “Marks”, which was a deleted account. The account appeared to have been used by several persons, including K.B. The account “Marks” was created on July 26, 2008 and was last used on March 22, 2009. User(

s) of the account used the peer-to-peer program Limewire to download and view files with names indicative of child pornography. Twenty videos with names consistent with child pornography were downloaded. Four of these videos contained child pornography, which had been downloaded on March 1, 2009 and March 15, 2009. Exhibit 5, Agreed Statement of Facts, p. 7, para. 35 [ 20 ] The computer access to this account on March 1, 2009, was directly linked to K.B. and downloads of videos containing child pornography. The access on March 15, 2009, was not directly linked to K.B.

About five other account users or some number of persons using differing names had accessed this computer from July 2008 to March 2009. There were numerous CD’s, DVD’s and floppy disks in the basement apartment area, but these did not contain child pornography. Adult Criminal Record of K.B. [ 21 ] After his Youth Court proceedings, K.B. had continued involvement in criminal offences as an adult.

His adult criminal convictions began in 1992 and include convictions for mischief, possession of stolen property, possession of a narcotic, break and enter, possession of break-in tools, breach recognizance, escape custody, assault with weapon, and possession for purpose of trafficking. His record also includes a conviction for touching a person under the age of 14 for a sexual purpose, contrary to

section 151 of the Criminal Code . Circumstances of the Prior Sexual Offence Conviction; Response to Sentencing on that Offence

[ 22 ] On December 22, 1993, when K.B. was 19 years old, he committed a sexual offence by touching the penis of a five-year old boy who was left in K.B.’s temporary care by the child’s mother. K.B. pled guilty to this offence on October 26, 1994, and he was sentenced on January 31, 1995. He received a term of 6 months imprisonment on the sexual offence, including a recommendation that he serve his sentence at Stave Lake Correctional Centre.

He was also placed on probation for a period of two years following his imprisonment, with probation terms including a requirement to complete any counselling programs directed by his Probation Officer, with reference to group therapy through the Forensic Services or Probation Office. He was also subject to a term prohibiting contact with children under 16 years of age unless accompanied by an adult previously approved by the Probation Officer.

He also was sentenced to 12 months imprisonment on the same date for a separate incident of break and enter of a business premise. [ 23 ] The facts of this offence were summarized by Crown Counsel at sentencing on January 31, 1995, as follows: [On] December 22 nd , 1993, the child concerned was about five-and-a-half, six years old. Police received a call from [the child’s mother]. She said she’d asked a friend by the name of K.B. for a ride to the Ministry of Social Service office at 92 nd Avenue and 120 th Street in Surrey. They received a call at 1656 hours.

She said she went inside the office for about 15 – at 1530 hours for about 15 minutes, then had K.B. drive her to the Canada Trust Bank at 88 th and 120 th . She was inside the bank in Delta for about 20 minutes. On returning, her son stated to the mother that the accused had touched his “dinky”, referring to his penis, and again asked her son what he said and the son said that K.B. touched his “dinky”.

He was interviewed, said he was in a car with K.B. when the accused reached over and put his hand in his pants and touched his “dinky”, then gave the [boy] some change, said he didn’t touch – he didn’t touch him again. That’s when the mother returned to the vehicle and heard those words from her son. Exhibit 2, Tab 10, Transcript pp. 2-3 [ 24 ] To assist the court at sentencing for the 1993 sexual offence, a report by a forensic psychiatrist, Dr. Derek Eaves, was provided to counsel and the court.

The report is dated September 3, 1994, and is included in Exhibit 2 at Tab 12. [ 25 ] K.B. agreed to be interviewed by Dr. Eaves and attended for two sessions with the doctor. In the interviews, K.B. discussed his personal background, including the extent of the sexual abuse he suffered as a child from age 4 to 12. Dr. Eaves also interviewed K.B.’s mother for the preparation of this report. K.B. did not dispute the circumstances of the offence provided to the police by the child and the child’s mother.

He said he acted impulsively in the sexual touching, after the boy had come from the back seat to sit with K.B. in the front of the car, sat on K.B.’s lap and jumped on his knees. [ 26 ] In the concluding paragraphs of his report, Dr. Eaves expressed the following opinions: It would be nice to assume that all K.B.’s problems resulted from his own sexual abuse, but I do not believe this to be the case.

His hyperactivity and learning difficulties almost certainly have genetic as well as environmental contributions, and his behavioural difficulties may also be multifactorial in causality, though it is likely that with the extent of his sexual abuse, that this latter factor was very significant. He first acknowledged the nature and extent of what had gone on just two years ago, but he has not explored matters in a comprehensive way. He is able to link his own feelings with the feelings of the little boy and his expressions of regret seem genuine.

He tends to think about and live in the present but he has given some thought to the impact of his actions. It would be my view that it is unlikely that the little boy would come to any harm as a consequence of K.B.’s behaviour, providing that the parents deal with the incident in an appropriate manner. A single episode of this kind would not be expected to be traumatic, particularly because it was transient and not accompanied by any force or threats. K.B. says that he immediately recognized the wrongfulness of his own actions and stopped what he was doing.

There is nothing to suggest that K.B. has a problem of deviant sexual arousal though it is clear he does have some problems in the area of sexuality. He tends to see girls as sexual objects and to be concerned with his own needs even though he avers that all of his girlfriends have been willing partners. In the wider sense, he certainly has had ongoing behavioural problems and repeated conflict with the law.

His impulsivity, his lack of work skills, his educational deficits, his lack of foresight and his living in the here and now without considering the consequences of his actions, all tend to suggest that he will have recurring difficulties in the future. At the age of twenty he is still very much in need of external controls, guidance and direction. With regard to his sexual offence, there are two aspects. Firstly, he needs to come to terms with his own sexual abuse, and this would best be achieved in my view in individual counselling.

Secondly, he needs to apply this knowledge in a constructive way so that he can avoid inflicting harm on others in the future. That is, he needs to relate the past offences against himself to his own offending behaviour. He is perhaps more at risk in being involved in future antisocial behaviour than he is at risk of committing another sexual offence. Given the relatively minor nature of his sexual offending, it may be appropriate to consider placing him on a further probation term, with a condition of psychological treatment.

K.B. indicates that he would be more comfortable with individual counselling, and whilst this may be appropriate with regard to his own sexual abuse, I would strongly recommend that he take

part in group therapy, in a program operated by the Forensic Psychiatric Services Commission. There are programs available in Surrey from which K.B. might benefit. He also needs to upgrade his education and acquire some vocational skills if he is to avoid getting in further difficulties in the future.

Exhibit 2, Tab 12, pp. 4 – 5 [ 27 ] The Probation Officer who prepared the Pre-Sentence Report for the sentencing held on January 31, 1995, had a different response from K.B. when questioned on the circumstances in the sexual offence: During the entire course of my first interview with K.B. he completely denied the sexual offence. He did, however, acknowledge being in possession of the stolen property (for which he is also charged). When questioned about the sexual offence, K.B. claimed that he had given [the child’s mother] and her son a ride to the Social Services office.

K.B. knew [the mother] and her family through his C.B. [Citizen’s Band Radio] and has visited her home. [The mother] left her son in the car with K.B. K.B. initially stated that the child was acting rambunctious so he placed the child on his lap to control him. K.B.’s hand then accidentally slid down to the child’s genital area. K.B. stated that it was accidental and his hand did not go into the child’s pants. Upon reading K.B.’s psychiatric assessment prepared by Dr. Derek Eaves, it was noted that K.B. acknowledged responsibility for the offence and agreed with the events as described in the police report.

When K.B. was confronted with this information he recanted his earlier statements saying that he finds it difficult to admit the event. He acknowledged that after placing his hand down the child’s pants he immediately stopped and moved the child off of his lap realizing that what he was doing was wrong. K.B. stated the event was not planned and that it happened on the spur of the moment. He

denies receiving any sexual gratification from the event. Exhibit 2, Tab 13, p. 4 [ 28 ] In February 1995, the Corrections Branch decided K.B.’s record of past offences, including escaping from custody at the Youth Detention Centre and from the adult New Haven Correctional Centre, made him unsuitable for placement at the Stave Lake Correctional facility where he could have taken the Sex Offenders Treatment program offered at that location. He was placed in the Fraser Regional Correctional Centre to serve his sentence. There was not a sexual offender’s treatment program at that facility.

After his release in 1996, K.B. was serving his probation order for two years. He was referred to a psychologist for assessment, Dr. Stroh, and he was also referred to another psychologist, Dr. Chris Gingell. He was able to see Dr. Gingell as a result of the payment for counselling services from the Criminal Injury Compensation Agency, as K.B. was a victim of childhood sexual abuse and the perpetrator had been subsequently charged with offences against K.B. and his sibling. Group counselling with Dr. Stroh was planned but did not proceed. The Probation Officer noted on September 4, 1996: K.B. was assessed by Dr.

Stroh but deemed as being not suitable for his group for three reasons. 1. He denies the offence (note: K.B. has difficulty discussing the sex offence but has admitted to me that he is guilty.) 2. He has poor reading skills. 3. He is very reluctant to participate in group. As such, Dr. Stroh sees K.B.’s risk as being high. He suggested that K.B. participate in the sex offenders education series that is run by the probation sex-offender specialists in Surrey. K.B. has been seeing Dr.

Chris Gingell in Surrey on a weekly basis, on a private bases (paid for through victim’s compensation as a result of his own sexual abuse). There is also a psychiatric report on file from September 1994 by Dr. Derek Eaves which describes K.B. as a low risk sex-offender. Exhibit 2, Tab 17, p. 4 [ 29 ] There was a pattern of positive response by K.B. to the counselling he received from Dr. Gingell, though the details and outcomes for this period of professional support were not detailed in this sentencing hearing. Dr.

Gingell was reported by Probation officers to have classified K.B. as unemployable due to the nature of his learning difficulties and K.B. received social assistance benefits from age 17. He began his interest in electronics and computers at this time, but has not had related employment in that field. His work records up to 2010 show a pattern of intermittent part-time work as a day labourer.

He was paid hourly wages by contractors in the construction industry and has not applied any vocational skills in full-time employment. [ 30 ] The referral for counselling following the sexual offence conviction in 1995 led to K.B.’s attendance at the Forensic Psychiatric Services clinic in May 1996. The brief report of Dr. Carl Stroh, who conducted group therapy at the clinic, advised the Probation Officer of the outcome of the initial assessment of K.B. as a candidate for counselling at that time. Dr Stroh also referred to the “voluntary sessions” K.B. was then taking with Dr.

Gingell: I interviewed K.B. on May 13 th for the purpose of determining his suitability for our introductory sex offenders group. In my opinion he is not a good candidate for our group because: 1) He denies the offence; 2) He has poor reading skills; 3) He is very resistant to participating in group. I see him as being a high risk of reoffending.

In my opinion the voluntary sessions which he is taking with a psychologist are unlikely to address in any significant way the issues relating to his offence... on a voluntary individual basis it is all too easy for K.B. to deflect any attempts to confront the offending behaviour; his attitude is one of denial and refusal to confront his problem. If probation officers again offer an educational series for sex offenders, K.B. should definitely be required to attend. We will be closing our file on this man.

Exhibit 2, Tab 23, p. 2 [ 31 ] There were subsequent contacts by K.B. with psychologists as a result of referrals by Probation Officers dealing with K.B.’s continued criminal convictions for offences involving stolen property and assault with a weapon. A referral to counselling for anger management was arranged by a Probation Officer in April 1998. The report of Dr.

John Spencer, addressed to the Probation Officer, Dean Ginther, and dated May 9, 1998, provided a brief review of K.B.’s childhood sexual abuse and educational difficulties before turning to a discussion of his criminal offending, as follows: K.B.’s attitude to his offence history is most revealing.

He tends to deny culpability for some of his offences, and he minimizes the extent and severity of those offences he does acknowledge; his lack of remorse and absence of empathy, along with a demonstrated pattern of impulsive and opportunistic behaviour suggest a presumptive diagnosis of anti-social personality disorder. He does not appear to have a temper problem that is any more extreme than that normally associated with individuals with this personality type, although he did express some persistent feelings of anger secondary to his history of sexual abuse.

He has undergone treatment for these and other issues, to little apparent effect. K.B. has little interest in counselling or therapy, and individuals with psychopathic personalities seldom benefit from intervention, even when they are motivated to participate. He has undergone counselling with many individuals over the past fifteen years, and he dismissed all but one of these efforts to assist him. In 1996, he attended a few sessions with Dr. Chris Gingell, and he said he is willing to see him again while on probation. However, I did not interpret his willingness to see Dr. Gingell as genuine interest.

It might be worthwhile to refer K.B. to Dr. Gingell, if he is available to provide further treatment at this time. Failing this, I see very little value in requiring K.B. to seek further counselling. Exhibit 2, Tab 34, p. 3

Circumstances of K.B. During 2002 to 2010 [ 32 ] The pattern of criminal offending by K.B. led to further convictions up to 2002 when he was convicted of possession for the purpose of trafficking a controlled drug and received a suspended sentence and probation for 6 months. His involvement with the criminal justice system included the unresolved property offence in Alberta in 2006 that have been noted previously.

His main activities during the eight years from 2002 to 2010 are not known, but he continued to live in the basement suite of his parents’ house except when he was in Alberta and he continued to pursue his interest in computers although this did not include related employment. He did not have any sustained periods of full time employment in any field. His statements to the undercover officer are not proof of his conduct in this period.

It seems probable that his claims of numerous serious criminal offences and related conduct voiced to the undercover officer were boastful assertions to establish some status within the jail inmate setting, with little or no basis in reality. His substance abuse continued to be problematic for him throughout this period and he made some effort to seek help in this aspect of his life by voluntarily attending to an intake interview at the Kinghaven residential treatment centre in Abbotsford.

The Kinghaven Intake Assessment [ 33 ] In October 2009, a mental health worker at a Surrey clinic made a referral for K.B. to attend residential treatment at Kinghaven. At this time, K.B. reported he was using marijuana daily, from one quarter ounce to one half ounce, in an effort to overcome his previous addiction to crack cocaine. The initial intake at Kinghaven required his participation in completing a standard form used for assessment at intake to the Kinghaven facility. K.B.’s limited literacy skills likely curtailed his ability to respond fully on this written form.

His answers were reflective of difficulties he encounters with spelling and writing generally. Under the heading of “Marital health/relational intimacy,” this form presented a number of questions regarding sexual behaviour and history.

In response to one of the printed questions concerning first or subsequent sexual experience, K.B. wrote: “ Being abused .” On the same page, the document also presented the further direction to: “Please note any sexual concerns not discussed above.” K.B. wrote the following at this portion of the form: “ Abusing + Being Abused .” Under the heading of “Recreational life/Hobbies,” K.B. wrote that he had no hobbies, and in response to the further question: “What activities do you engage in to relax?” he wrote: “ sex .” At the same portion of the form he responded to a question about recreational activities with people by writing: “ I’m a loner.

Don’t like being around ppl.” At the next section, with the heading: “Mental and Emotional Health,” the form asked for a list of five main fears. K.B. made four entries at this section, he wrote: “1) My Mind; 2) My thots; 3) Life; 4) Feel I just wana die.” The same

section included the question: “When are you most likely to lose control of your feelings?” K.B. wrote: “ When I stop my pills .” He responded to the next section, asking to: “Describe a very pleasant image, mental picture, or fantasy,” by underlining the word “fantasy” three times and then making the following entry: “is just VR to me .” This was presumably a reference to virtual reality.

Asked to describe “a very unpleasant image, mental picture, or fantasy,” he wrote: “ Death, kill myself, I think it to much .” The form asked for a “yes” or “no” response to the question: “Are you bothered by thoughts that occur over and over again?” He gave a “ yes ” response to this, and responded further by describing these thoughts as: “ Deadly ones, Death .” The next question on the form was: “What do you consider to be your craziest thought or idea?” K.B. wrote the following: “ Make a bomb, Blow the fuck out of Surrey, “H” Bomb .” After this entry the form asked questions about physical health and hospitalizations.

K.B.’s reply noted he had been hospitalized in his twenties, “ when I was trying to kill myself .” Exhibit 3, Tab 4, “Personal Assessment” document, pp. 18 – 26 [ 34 ] As a part of the intake process, Ted Leavitt, a counsellor at Kinghaven, reviewed the completed Personal Assessment form with K.B. K.B. discussed the childhood sexual abuse he had suffered and he related that abuse as the reason he committed the 1993 offence of sexual touching of the boy in Surrey. K.B. did not consider himself to be a sex offender as he told Mr.

Leavitt two convictions for sex offences were required to be classified as a sex offender. When Mr. Leavitt asked him if there were any other sexual offences, K.B. said “yes, one other time.” He said this occurred about a year after the 1993 offence and that he had not been caught or charged as a result of the second offence, without giving any other details to Mr. Leavitt.

Then K.B. told him: “That’s why I keep child porn on my computer, so that when I get the urge I just look at that and it tames the animal inside me.” K.B. referred to his multiple computers and the predominant role of the computers in his life as he felt the usage of computers and related technology had formed “another addiction” for him. [ 35 ] Mr. Leavitt had taken notes of his conversation with K.B. On the same day of these disclosures by K.B., Ted Leavitt reported the information regarding the sexual offences to the police.

He told K.B. he could not enrol or participate in the residential treatment program, due to a pre-existing policy at Kinghaven. The facility was adjacent to other community resources and could not accept sex offenders due to the risks associated in their proximity to these other groups. Dr. Riar’s Assessment and Evidence at the Hearing [ 36 ] An assessment report requested under the provisions in

section 752.1 of the Criminal Code was completed by Dr. Riar. The report is dated August 11, 2011, and is contained in Exhibit 3 at Tab 11. As the Crown also called Dr. Riar at this hearing, he was qualified as an expert to give opinion evidence in the field of forensic psychiatry, and more specifically in the areas of risk assessment of criminal offenders, diagnosis of mental disorders, including opinions on the causes of criminal behaviour and the prognosis for future conduct.

He did not have K.B.’s consent to participate in an interview and based his opinions on a review of file materials and the results of three different risk assessment tools. Dr. Riar described the format and structure of the three risk assessments tools he applied in K.B.’s assessment. The PCL-R is a checklist format test to measure the level of psychopathy in the test subject. This level is a predictive measure of the likelihood of future violent behaviour. The V-RAG test relies on historical data to derive predictions of the risk of future violent offending.

The Static 2002 is a test relying on another actuarial assessment scale to establish estimates of the risk of future sexual offending. K.B.’s score on the PCL-R was in the mid-twenties. This was a score value interpreted by Dr. Riar to be indicative of a moderate risk of committing a violent act in the future. The V-RAG test scores indicated a risk of 55% in the next 7 years and 64% in the next 10 years of committing a violent act. The Static 2002 test score was interpreted as placing K.B. in the category of high risk to commit a future sexual offence. [ 37 ] The opinion of Dr.

Riar included a diagnosis of anti-social personality disorder. Dr. Riar noted and apparently agreed with the earlier childhood diagnosis of ADHD and learning disabilities. He was confident of a further diagnosis of substance abuse disorder and the criminal convictions for the predicate offences in 2010 and the earlier sexual offence in 1993, as well as the possession of child

pornography in the computer derived materials were interpreted by Dr. Riar to be: “…strongly indicative of [K.B.] having paraphilia in the form of pedophilia.” Exhibit 3, Tab 11, p. 8 [ 38 ] Dr. Riar concluded his report by a review of K.B.’s prospects for effective treatment of the disorders diagnosed in the report, as well as the future risk of offending if he were in the community: As far as treatment of aforementioned ailments is concerned, ideally and in theory, these conditions can be managed but not cured.

The first and foremost prerequisite in treatment and management is the acknowledgment of the problem by the individual and then strong motivation to seek the treatment to make a change. Even then it is an ongoing struggle for the person to follow and put in practice the learned attitudes, attributes and behaviours to exercise them in real life. Here in K.B.’s case the history dictates that he never acknowledged any of his shortcomings or took responsibility for them and has shown no or little interest in curbing his antisocial or maladaptive sexual behaviours.

Even recently not pleading guilty to the charges and also his conversation with the undercover officer are strong indicators that his attitudes towards his problems are similar [to] what they have been all along in his life. I believe that he is a very poor candidate for benefitting from any kind of psychotherapeutic intervention and will regard his chances of engaging into any meaningful therapeutic intervention as dismal.

Regardless of this he should be given the benefit of the doubt and during his incarceration should be offered treatment programs including sex offender treatment program, substance abuse program, personality disorder program etc. To my understanding all these programs are available in the federal correctional system. If he completes these programs even then he should be supervised very closely in the community upon his release. As far as the risk of future offending is concerned again looking at everything I consider him as at high risk for offending sexually and criminally in the future.

I believe that he should be monitored and supervised in the community for [a] long time, to spare him and others from his risk of offending behaviours. The only thing which goes in his favour is his advancing age as we know that as people grow older they tend to engage in criminal activities including sexual activities less than their younger counterpart and [the] same will be true for him. Unfortunately he is still in his late 30’s and has a long way to go before the above scenario can be applied. I feel that he should be closely followed and supervised at least into his mid – if not late 50’s.

Exhibit 3, Tab 11, pp. 8-9 [ 39 ] Dr. Riar explained in his testimony at the hearing that denial of sexual offences by offenders is very common. Some deny culpability for a superficial benefit in protecting their reputation with peer groups or family. Others deny the offences for deeply held psychological reasons and may not believe there is anything wrong with them or their behaviour. The latter category will be very difficult to treat successfully, while the more superficial deniers will realize something is wrong with them and may be able to benefit from treatment. As Dr.

Riar had intentionally refrained from reading any reports on K.B. from Dr. Lamba or Dr. Ley, Crown Counsel only advised Dr. Riar during his examination in chief at this hearing of the continuing denial of the offence as noted in Dr. Ley’s report. Crown Counsel asked if Dr. Riar could express an opinion in court as to the type of denial presented by K.B. Dr. Riar was not sure, but he thought K.B. may hold the deeper psychological form of denial.

He could not determine this with any certainty, but he believed an extensive treatment program would likely provide an indication concerning the issue of the source and depth of the denial. [ 40 ] When he was told by Crown Counsel of the views expressed in Dr. Ley’s report that assigned a significant causal role to the effects of childhood sexual abuse in K.B.’s adult sexual offending, Dr. Riar disagreed.

He was in agreement with the potential for the past abuse to form one factor in the subsequent offending, but he felt that a deviant sexual arousal and the anti-social personality disorder were separate and significant factors contributing to the causation of the sexual offending by K.B. [ 41 ] Dr. Lamba was retained by the Crown to provide an assessment of K.B. He was asked to assess the risk that K.B. poses to re- offend sexually, and whether he would likely commit such offences in the future against child victims.

He was also asked to provide an opinion on the prospects for management of the risk posed by K.B. in the community after he has completed treatment. Another area where his views were requested was with respect to the likely effect of advancing age on the risk of re-offending by K.B. Dr. Lamba’s first report was described by him as a preliminary document. This report is dated August 30, 2011. He reviewed file materials and Dr. Riar’s report. He did not have consent from K.B. for an interview. This report is found in Exhibit 3 at Tab 12. Dr. Lamba gives a diagnosis of anti-social personality disorder.

He suggests that the presence of FASD is a possibility, but this cannot be resolved with the available information. Substance abuse was a significant feature in K.B.’s behaviour. There was not sufficient information to provide an opinion on the likely score on the psychopathy checklist. The diagnosis of pedophilia was considered to be likely applicable. Dr. Lamba used the Static 2002 risk assessment tool and assigned a score of 7 to K.B., indicative of a moderate-high risk of sexual recidivism in the next ten years. Dr.

Lamba also used the Risk for Sexual Violence Protocol to assess K.B.’s risk of committing sexual offences in the future. He summarized the applied 22 specific items used to classify the risk assessment derived from this form of assessment tool. He concluded that K.B. presented a high risk of sexual re-offending. In particular Dr. Lamba saw a critical feature on risk assessment was the “alarming escalation” in K.B.’s sexual offending.

He contrasted the 1993 offence with the 2010 offence and regarded the more recent offence as “vastly different” from the earlier incident, in terms of the carefully planned active role in commission of the recent offence as compared to the opportunistic offence against the earlier victim. K.B.’s prospects for treatment were poor as he lacked motivation. His anti-social personality disorder would likely lessen his motivation to change and decrease the potential to engage meaningfully in treatment. In a subsequent report dated July 13, 2012, Dr.

Lamba provided a more extensive review of K.B.’s criminal offending and personal history. He applied the Static 2002R test to measure the risk of sexual re-offending over a ten-year period. The score result on this occasion was 6, placing K.B. in the moderate risk category. This risk assessment was further illustrated by Dr.

Lamba’s reference to percentile tables, to compare K.B.’s risk, as follows: Compared to a total of 2011 Canadian sex offenders from four different samples which were used to create the percentile tables, and were considered representative of all convicted Canadian sex offenders, K.B.’s score of 6 places him at the 88 th percentile. Taking into account that about 7% [of] offenders shared the same score as K.B., the percentile (of 88) means that roughly 85% of offenders scored lower than K.B. and 8% scored higher.

In addition to percentiles another useful way to look at relative risk posed by K.B. is that the recidivism rate of sex offenders with the same score as K.B., would be expected to be approximately 2.6 times higher than the recidivism

rate of the “typical sex offender” (defined as having a median score of 3). Note that the above risk estimates are extrapolated for K.B. atthe age of 47 or ten years from now. His current risks are actually higher. Exhibit 3, Tab 13, p. 15 [42] The question of whether advancing age would reduce K.B.’s risk of re-offending was reviewed by Dr. Lamba. He did not findmuch relevance in the available literature as he noted there were findings of reduced risk for offenders in their 60’s, but the factors thatcontribute to offending may persist in some individuals even in old age. [43] Dr. Ley was retained by the Defence.

His assessment report was dated October 20, 2012. It was filed as Exhibit 18 at thesentencing hearing. He was qualified as an expert in clinical and forensic psychology, psychological assessment of sex offenders,treatment of sex offenders and treatment of childhood sexual abuse and of ADHD. Dr. Ley agreed with the other assessments by Dr.Riar and Dr. Lamba that K.B. presents a high risk to re-offend.

The main area of disagreement was in the assertion of a causal role ofchildhood sexual abuse in the commission of sexual offences by K.B., and the significance of a lack of treatment of the ADHD and theeffects of the childhood sexual abuse. [44] K.B. gave a detailed denial of the index offence to Dr. Ley. He asserted he had no sexual interest in children generally or withthe specific victim of this offence. He claimed he was in Vancouver “getting high” at the time of this offence in April 2010.

Theconviction was wrongful and the evidence used to identify him at trial was flawed or mistaken in various respects that he described toDr. Ley. On the subject of past treatment programs for K.B., Dr. Ley summarized the history in this area as follows: Although it has been recommended that K.B. engage in specialized treatment programs for “anger management” or substance abusecounselling, quite clearly his motivation has been negligible or perhaps at best variable for participating in such programs whileincarcerated in provincial jail or while in the community on probationary terms.

It does not appear to me that K.B. has been directed to,or participated in specialized treatment programs for sexual offenders such as the one that exists at Stave Lake Correctional Centre withinthe provincial correctional system. Additionally in some cases it does not seem that K.B. was provided with psychological treatment ormore specialized psychological services when he was deemed to lack the cognitive skills, intellectual ability or scholastic competence toderive benefit from such interventions.

Most importantly, my review of K.B.’s correctional record suggests that K.B. has never receivedany specialized treatment for his serious history of childhood sexual abuse. Exhibit 18, p. 9 [45] In his interview with Dr. Ley, there were other instances where K.B. denied some of the relevant evidence at the hearing. Hedenied downloading and viewing child pornography and could not remember making any admissions to Ted Leavitt at the Kinghaveninterview concerning the use of pornography or another offence against a child where he was not charged.

He was surprised that thepolice analysis of one computer hard drive located in his basement apartment resulting in finding the child pornography. In Dr. Ley’sview, the severity of the trauma inflicted on K.B. from his childhood sexual abuse has been overlooked by other assessors, although it isrelated causally to the maladjustment, substance abuse and criminal offending which characterizes K.B.’s adult life. Dr. Ley concludedthat given the denial of the index offences it was not possible to determine why this sexual offence was committed in 2010. Dr.

Leyspeculates that the offence may have been motivated by a self-destructive wish to be caught, or by some anger to females arising fromrecent rejection by his girlfriend. The prognosis for K.B. to benefit from treatment programs was only fair at best. The ADHD should beaddressed as a first priority to enable him to have better prospects for success in further treatment of his other sources of maladjustment.

K.B. would have better prospects of benefits from treatment in individual counselling, which is not available in the federal or provincialcorrectional systems. [46] The Crown also presented evidence from staff of the federal correctional system regarding the current and planned treatmentprograms for sexual offenders serving federal sentences, including the availability of programs for offenders serving indeterminatesentences and those offenders who are subject to long term supervision orders in the community. Programs give priority for entry toinmates serving shorter sentences, less than four years duration.

Inmates serving indeterminate sentences or sentences including a longterm supervision order receive equivalent priority for entry to sex offender treatment. Inmates with cognitive deficits will be givenassistance by program facilitators in a newly introduced program model, to understand the information in the program material. The roleof individual motivation is a key factor in the likelihood of meaningful progress through treatment programs in the institution and in thecommunity on supervised release terms.

Analysis [47] The first issue is whether K.B. is a dangerous offender within either one of the two relevant criteria in

section 753. Theevidence at the sentence hearing supports the conclusion that K.B. is a person who presents a high risk to re-offend sexually againstchildren. The three expert witnesses agree in large part on that aspect of their assessments. The offence in 1993 and the offence in 2010are significantly different in character. The two offences are not part of a pattern of repetitive behaviour within the meaning of section753. This part of the criteria for designation as a dangerous offender would not include K.B. I have concluded that the second relevanttest in

section 753 has been established by the evidence at this sentencing hearing. The circumstances of the index offence in 2010,considered in the context of all the other evidence has shown a failure to control his sexual impulses and a strong likelihood of causingharm in the future through failure to control his sexual impulses. This finding is primarily based on the elements of sexual gratificationas the dominant motivating factor in the index offence. I respectfully disagree with Dr. Ley’s speculations regarding the alternativemotivations of self-destruction or generalized anger towards females.

The index offence in this case is found to be a highly plannedeffort to obtain sexual gratification from the sexual assault of the child victim in that offence. The focus in this inquiry should include ananalysis of whether the “totality of the [offender’s] conduct in sexual matters” establishes a failure to control sexual impulses, asdiscussed by the Ontario Court of Appeal in R. v. M.B.H., (ON CA), [2004] O.J. No. 1679, at paragraph 49. Thefactual analysis of the index offence provides a clear evidentiary basis for the conclusion that there has been a failure to control sexualimpulses.

The facts of the previous sexual conviction and the role of child pornography in K.B.’s computer activity and his admissionsto Mr. Leavitt are all secondary sources for the same conclusion of a failure to control sexual impulses. The demonstrated failure in theindex offence to control these impulses, considered in conjunction with his substance abuse disorder and the anti-social personality

structure all contribute to an increased likelihood of future harm caused by another failure to control his sexual impulses. It is a strong and clear risk to the safety of the community and in particular to the safety of children in the community if K.B. is released prior to successfully completing treatment for his sexual offending behaviour. [ 48 ] The prospects for successful treatment are limited by K.B.’s persistent and thoroughly documented lack of motivation to acknowledge his sexual offending behaviour or accept the role of his own behaviour as a source of the high risk to re-offend that he presents.

I have considered the differing opinions of the three expert witnesses and have concluded that the opinions of Dr. Riar and Dr. Lamba regarding the causative roles in the sexual offending by K.B. of various factors such as anti-social personality disorder and deviant sexual arousal associated with pedophilia has more persuasive support in the evidence. I have considered the opinion of Dr. Ley, who emphasized the lack of previous treatment or attempts at therapies to resolve the overlooked role of childhood sexual abuse and ADHD in K.B.’s offending behaviour.

This absence of previous therapeutic efforts noted by Dr. Ley is accurate as an observation from the evidence. The more important question is the causative role of various features of K.B.’s personality. I find that the explanation of the offending behaviour, including his criminal convictions, as well as his maladjusted behaviour in the community, has been most likely caused by a combination of sexual deviant interest, in this case, pedophilia, as well as the anti-social personality features and substance abuse disorder.

There is no doubt a profound trauma from childhood sexual abuse for K.B., but the causation of his offending behaviour involves more sources than the consequences of that trauma. Most significantly for the purpose of this hearing, I find that the evidence demonstrates a failure to control sexual impulses.

The prospect that K.B. presents a risk of future harm is not directly modified or alleviated in any way by a differing emphasis by the expert assessors on the causative roles of his childhood sexual abuse trauma or his deviant sexual interest. [ 49 ] K.B. is a dangerous offender as he meets the criteria for that designation in section 753 (1) (b). There are three sentencing options that may apply in this case. These are set out in section 753 (4.1).

This part of the sentencing process is structured by the clear legislative direction contained in that sub-section that an indeterminate sentence should be imposed unless the evidence supports a reasonable expectation that a fixed sentence with long term supervision, or a fixed sentence alone, will adequately protect the public from the harm caused by the commission of a future offence involving serious personal injury. [ 50 ] The evidence of K.B.’s lack of motivation for treatment, linked to the potential obstacle to treatment from his denial of the offence, if this denial is the product of a psychologically entrenched belief, are factors to be considered when assessing the appropriate sentence to be imposed.

Long term offenders who are supervised in the community will continue to pose risk of harm to the public by re-offending if they have not been successfully treated and maintain those treatment benefits following their release into the community. There is no evidence of any specific willingness in K.B. to engage and participate in any treatment of his sexual offending behaviour. There is some evidence of his willingness to get professional help for his substance abuse disorder. There is considerable support for the proposition noted by Dr.

Ley that the significant trauma of childhood sexual abuse and the cognitive obstacles posed by ADHD have not been addressed or treated by any therapists working with K.B. But the evidence is not a source for reasonable expectations of positive therapeutic outcomes, whenever the treatment does become available. To the contrary, the evidence of K.B.’s adolescence and early adulthood suggest that his progress, assuming he does enter into intensive and appropriate treatment programs, will have a limited prospect for success.

It is impossible to know what the outcomes for treatment will be, but it is directly shown in the evidence that the obstacles will be significant and onerous. This is a view shared by all the expert assessment witnesses and it leads to the conclusion that the imposition of an indeterminate period of imprisonment is required as there cannot be a reasonable expectation of adequate protection of the public from a fixed term sentence, even one including long term supervision. [ 51 ] The potential for a lengthy sentence before parole is a factor to be considered in the imposition of an indeterminate sentence.

The decision of the Ontario Court of Appeal in R. v. Sipos, 2012 ONCA 751 at paragraph 26 emphasizes the appropriate reliance on the Parole Board to exercise its function in discretionary release of dangerous offenders on parole. The sentencing court cannot assess the future prospects of release and management in the community at this initial sentencing hearing, but this court does conclude that there is not currently a reasonable expectation of adequate protection in a fixed term sentence.

Conclusion [ 52 ] K.B. is found on all the evidence at this hearing to be a dangerous offender within the terms of section 753 (1) (

b) as a result of his failure to control his sexual impulses in his past conduct and the index offence and the strong likelihood that this failure will occur in the future resulting in offences causing serious harm. The appropriate sentence is a period of indeterminate detention, based on the finding that the other sentencing options cannot support any reasonable expectation that the community will be adequately protected by any lesser sanction than the indeterminate sentence. [ 53 ] I make an order for K.B. to provide a DNA sample under

section 487.051(1) of the Criminal Code . I also order a lifetime ban on his possession of any firearms, cross bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance. That order is made under section 109(3) of the Criminal Code. There will also be a lifetime duration order to comply with the Sex Offender Information Registry Act, under sub- sections 490.012(3) and 490.013(4) of the Criminal Code. I make a further order prohibiting any contact by K.B. during the custodial portion of the sentence with the victim of this offence or with the witnesses Z.S., C.I., and R.S., under

section 743.21(1) of the Criminal Code. __________________________________ The Honourable Judge J. D. Bahen Provincial Court of British Columbia