R. v. A.F.S. Date:, 2013 BCPC 54

Citation: R. v. A.F.S. Date: 20130104 2013 BCPC 0054 File No: 185178-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A.F.S. Ban On Publication s.486.4(2) CCC ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.N. HAMILTON Counsel for the Crown: K. Boland Appearing in person: A.F.S.

Place of Hearing: Surrey , B.C. Date of Hearing: January 4, 2013 Date of Judgment: January 4, 2013 [ 1 ] THE COURT : A.F.S. (A.S.) is before the court today, having pleaded guilty to Count 1 on a three-count indictment, which charges him that between September 7th, 1995 and May 16th, 1996, he sexually assaulted R.P., contrary to s. 271 of the Criminal Code . [ 2 ] The circumstances of that offence are as follows: A.S. met and began a relationship with a woman by the name of C.K. in the 1990's. They married in 1997. I mention the date of their marriage because in my view it is significant.

A.S.'s offences occurred against C.K.'s then teenage daughter R.P. R.P. told her mother that she had been sexually assaulted by A.S., but C.K. did not believe her daughter. About a year after her daughter disclosed the abuse, C.K. married A.S. [ 3 ] The nature of these offences is extremely troubling. They started with A.S. touching R.P. with his hands, he touched her breasts, and eventually the offences moved to full sexual intercourse. As well, they were not really opportunistic crimes. A.S. would go to R.P.'s school, sign her out, and take her away to have sexual intercourse.

It occurred 48 times over the eight months covered by the indictment. After R.P. told her mother what was happening she was not believed, and she went initially, I believe, to live in foster care but she eventually wound up living with her biological father. He too sexually abused R.P. [ 4 ] As an adult, R.P. began a relationship and has had children of her own. She eventually rekindled her relationship with her mother, C.K., after R.P.'s children were born. [ 5 ] At the time of these offences, R.P. also told the police and she told school officials, and nobody believed her.

A.S. denied the allegations and charges were not laid. [ 6 ] In her victim impact statement R.P. spoke well, but also repeatedly, about having to grow up from that point on, living amongst lies. She used the word "lies" constantly. She was labelled a liar, but she was telling the truth. Others did not believe her, and A.S. was lying. It must have been an unimaginable situation to have to go through in her teenage years. [ 7 ] In 2009, A.S. went to the RCMP and confessed to his crimes.

He indicated very early on in these proceedings that he wanted to plead guilty to the charges; however, the criminal justice system takes time and, because A.S. was representing himself, at least initially, and because these were very serious charges, a guilty plea was not taken from A.S. until approximately the summer of 2012. Thereafter, a pre-sentence report and a psychological report were prepared for the sentencing today.

I have read those reports. [ 8 ] I agree with the Crown's characterization that A.S., at least in the reports that I have read, does not express any acknowledgement of the seriousness of his offences, nor does he indicate much, if any, remorse. He did today offer a tearful apology to R.P. and her mother, and while I accept that he feels sorry, his apology is coming far too late in the day, especially when measured against the denials that he maintained for some 12 years prior to his confession. [ 9 ] The Crown seeks a sentence of two years' incarceration, followed by three years of probation.

A.S. seeks a 24-month conditional sentence order, in other words, to be served in the community, plus probation. I will say at this point that a conditional sentence order, in my view, would not meet the principles of sentencing given the circumstances of this case. In my view, denunciation, deterrence and rehabilitation are the three most important sentencing principles to keep in mind when determining the appropriate sentence for A.S. [ 10 ] With respect to denunciation, my sentence must reflect society's repulsion and repugnance of repeatedly violating a young child in the most horrific manner imaginable.

We can only think, but surely never understand, what was going through R.P.'s mind every time she was signed out of school. Society would not, and I believe could not, understand how a conditional sentence order would reflect society's need to denounce A.S.'s conduct. [ 11 ] With respect to deterrence, my sentence must send a strong message to the public that if you violate a child in this way you are going to go to prison for a long time. [ 12 ] With respect to specific deterrence, the psychological report indicates that A.S. poses a low to moderate risk to re-offend. He is 57 years old.

Still, A.S. needs to know that he cannot ever do this again. [ 13 ] With respect to rehabilitation, the Federal prison system has appropriate sex offender programs which A.S. would have available to him in their system. Again with respect to rehabilitation, A.S. poses a low to moderate risk to re-offend; however, I am of the view that steps must be taken to ensure that the risk that A.S. poses to children in our society is reduced as far as possible. [ 14 ] With respect to A.S.'s circumstances, he is 57 years old. He had, by anyone's standards, a very, very tragic upbringing. His mother died when he was young.

He went to the United States to live with an aunt and uncle, eventually moving back to live with his father who had remarried. He says that he was abused by his step-mother. He joined the Sea Cadets where he was sexually abused, involving both masturbation and oral sex. He had one relatively lengthy relationship with a woman, and then he met C.K. His relationship with C.K. has ended and he now describes himself as a "loner." He wakes up, he goes to work, he comes home.

He has no social life, he has no hobbies. [ 15 ] I have considered the extremely serious crimes committed, and I use the word "crimes," the plural word "crimes," because each and every time he offended against R.P. he broke the law, he broke R.P.'s trust, and he broke R.P. [ 16 ] I have considered the mitigating factors; he has no criminal record and he did enter a guilty plea.

[ 17 ] I have considered the cases that I was referred to, R. v. S.J.C. and R. v. B.T. In both of those cases the judges imposed a longer sentence than the sentence that is being proposed by the Crown, although I am satisfied that in each of those cases there are considerably more aggravating circumstances than are present in the case before me. [ 18 ] So taking all of that into account, I am of the view that the appropriate range of sentence is a period of incarceration ranging between 18 months and five years.

The Crown's position, in my view, is at the bottom end of that range, but there is a reason for that, and the reason is that if I impose a sentence of two years, A.S. will then also be subject to a period of probation for three years upon his release from prison. [ 19 ] A.S., could I get you to stand up, please? [ 20 ] For all those reasons, A.S., I am going to sentence you to a period of two years' incarceration in a Federal prison, followed by three years of probation.

The terms of your probation will be as follows: Upon your release from prison, you will report forthwith to a probation officer and thereafter as and when directed by your probation officer. [ 21 ] You must reside at a residence approved of by your probation officer, and you are not to change that residence without the prior written permission of your probation officer. [ 22 ] You are to attend, participate in, and complete individual and/or group therapy or counselling, and/or programs for sex offenders as directed by and to the satisfaction of your probation officer. [ 23 ] You are to attend and participate in psychiatric or psychological assessments, counselling, or educational programming as directed by your probation officer. [ 24 ] You are not to have any contact with any children under the age of 16 years, and you are not to have contact, directly or indirectly, with the victim, R.P. [ 25 ] I am going to place you on the Sex Offender Registry for a period of 20 years. [ 26 ] You will provide a DNA sample, and I will, under these circumstances, waive the victim fine surcharge if any such surcharge applies. [ 27 ] Is there anything else? [ 28 ] MR.

BOLAND: No, Your Honour. Sorry, just a logistical thing, Madam Registrar, I think things have changed and now the SOIRA order isn't prepared by the Crown; it's my understanding it's done by the registry and there should be some type of tick in JUSTIN, but we can figure that out. [ 29 ] THE COURT: What is happening with respect to the other two counts on the indictment? [ 30 ] MR. BOLAND: Sorry, the Crown is directing a stay of proceedings with regards to the remaining counts. (REASONS FOR SENTENCE CONCLUDED)