R. v. D.R.D. Date:, 2012 BCPC 574

Citation: R. v. D.R.D. Date: 20120423 2012 BCPC 574 File No: 189768-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D.R.D. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. GARDNER Counsel for the Crown: S. Elliott Appearing on their own behalf: D.R.D. Place of Hearing: Surrey , B.C. Date of Hearing: April 23, 2012 Date of Judgment: April 23, 2012

[ 1 ] THE COURT : The accused, Mr. D., has pled guilty that between the 1st day of April, 2011 and the 17th day of June, 2011, he did, for a sexual purpose, touch, directly or indirectly, with a part of his body, the body of C.B., a person under the age of 16 years, contrary to s. 151 (

a) of the Criminal Code . Although the indictment spans roughly a two-and-a-half-month period, that is because the matter was disclosed sometime afterwards, and as Crown has set out, we are dealing with one incident here. [ 2 ] The circumstances are that the complainant at the time was 14 years of age. She was a family friend of Mr. D.'s daughter, and as well, the B.’s were friends with Mr. D. The complainant had spent the day with Mr.

D.'s daughter, K.D., and she initially went to the D. residence for a play date, proceeded to watch a movie and eat dinner, and then the complainant wished to spend the night with her friend, which she did. The complainant and her friend, K.D., slept in a single bed together and Mr. D. did not sleep on his bed, which was located in the same room, but proceeded to sleep on the couch in the living room. At the time he was a widower; I take it he still is. There were no other parties in the house. [ 3 ] The following morning around nine o'clock, K.D., the accused's daughter, woke up and left the bedroom.

The complainant stayed in the bed to sleep. At approximately 11:00, K.D. and her father, Mr. D., entered the bedroom and tried to wake C.B. up. She did not want to get up, so K.D. and Mr. D. proceeded to tickle her in an attempt to wake her up. When she was not responsive in getting out of bed, K.D. left the bedroom and then took the dog for a walk, leaving Mr. D. in the bedroom with C.B. Mr. D. tried to wake her up. She kept challenging Mr. D. to try and get her to wake up.

There were attempts to try and push and pull her out of bed while she remained under the sheets. [ 4 ] As she was laying on her back on the bed, under the sheets, Mr. D. then knelt down on the floor next to her head and said, "I'm going to say something that is going to cross the line. I want to touch you." Her response was, "That's not appropriate." Mr. D. then slid his right hand underneath her sweatpants and underwear. He proceeded to use his finger to perform a circular motion around her vagina. C.B. told the accused to stop, and during this time he remarked, "You like that, don't you?" She said, "No.

Can I go home now?" [ 5 ] He then took his hand out of her pants and proceeded to the foot of the bed, and at the foot of the bed he grabbed onto the bottom of her pants and proceeded to pull her pants off. He then left her pants on the floor and proceeded back to the top of the bed and sat down beside her.

He opened the nightstand and removed a red bottle of lubricant, and with that bottle he opened it and applied some lubricant on the right index and middle finger which he proceeded to put his hand back down her underwear and performed the circular motion around her vagina with his fingers. [ 6 ] At this point, she began to cry. The accused stopped, but then when she thought she was going to go home he proceeded to remove her underwear. He pulled her underwear down and left them at her ankles.

She kept her legs closed as the accused proceeded to place his two fingers into her vagina and then made a thrusting motion with his hand inside of her vagina. He then removed his fingers from her vagina and began to pry her legs open wider with his hands. She then moved her feet closer to her buttocks and kept her legs open.

He then put his right index and middle finger into her vagina and proceeded with the thrusting motion which continued for approximately four minutes. [ 7 ] He stopped the thrusting motion, removed his fingers, and then re-opened the nightstand drawer and produced a long, pink sex toy approximately seven inches in length and made of rubber. He inserted the sex toy into her vagina and continued the thrusting motion with the sex toy inside of her. She told him to stop but he replied, "No, you're enjoying this too much." She began to cry, and Mr.

D. stopped and left the sex toy inside of her. [ 8 ] He then reached for the lubricant, applied it to his fingers and applied the lubricant to her vagina and continued the thrusting motion with the sex toy inside of her, in her words "for approximately 20 minutes more". She screamed in pain. He finally removed the sex toy from her vagina and placed the toy and lubricant back in the nightstand drawer and asked her if she was okay. She did not respond, she simply continued to cry. [ 9 ] He left the bedroom to go to the living room and his daughter had returned home from walking the dog.

C.B. proceeded to have breakfast and then Mr. D. drove her back to her home. During the drive home he asked her, "Will I ever get as lucky as I did today?" She replied, "No." He then stated, "Well, next time you come over, let's make sure there is no alcohol involved." [ 10 ] When she arrived back at her residence she went to her room. She did not initially report this to anyone but she did try to minimize contact with the accused. She received a message over her Facebook chat from someone identifying themselves as Mr. D., asking her if she was having one of those "I can't believe I let him do that" ideas.

She then blocked him from her Facebook profile and finally disclosed the assault, approximately two months afterwards, to her mother. [ 11 ] The Crown has asked the court to consider initially a sentence in the range of nine to 15 months but later asked the court to impose a sentence of one year incarceration and three year’s probation. As Ms. Elliott for the Crown has pointed out, there is a minimum 45-day sentence for this type of offence and the accused, accordingly, is not eligible to receive a conditional sentence. [ 12 ] She has referred the court to two cases, including R. v.

Goff , a decision of our Supreme Court, a judgment delivered on November 3rd of 2009 in which Mr. Justice Ehrcke has pointed out that the aggravating circumstances of these types of offences are that the accused is in a position of trust and the complainants are very young children, and that the court must keep in mind the general purposes and principles of sentencing set out in s. 718 of the Criminal Code .

And moreover, pursuant to those sentencing principles, first of all a position of trust must be treated as an aggravating circumstance, and since the offences involved the abuse of persons under the age of 18, primary consideration must be given to the objective of the denunciation and deterrence of such conduct. In that case a sentence of 30 months was imposed, but, as the Crown has pointed out, the circumstances were certainly more aggravated in the Goff decision. [ 13 ] The court has also been referred to the decision of R. v. D'Argis , a B.C.

Supreme Court decision delivered by the Honourable Justice Gaul on January 21st of last year. In that case a 19-year-old male with no previous record of offences, pleaded guilty to and was convicted of two counts of sexual interference. The offences were committed against two 13-year-old females and included acts of oral

sex from the victims in exchange for cigarettes and rides in the accused's vehicle. As the Crown has pointed out, the facts in these cases are always somewhat different and unique, but the court has been referred to paragraph 36 of that decision where, in that case, the accused was labelled a relatively low risk for re-offending. But the court went on to say at paragraph 50, that the age difference between the offender and the victims was markedly different in the cases referred to by the court, and also spoke of the importance of deterrence - - paragraph 59 Mr. Justice Gaul reads from s. 718 of the Criminal Code , when the victim of the offence is a child, and that

section reads: 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. [ 14 ] The court is somewhat concerned by the attitude towards the offence, as set out in the pre-sentence report, and reading from the bottom of page 5 under the heading of "Attitude/Understanding Regarding the Offence", although the accused denied any attraction to the victim and was at a loss to explain why it happened, he told the probation officer who prepared the report, that the victim was "no angel" given that she had confided in him about parties she had attended and some of the things that she had done.

He thinks this may have been on his mind when he sexually assaulted her. He relates that the offence had progressed while attempting to playfully wake her, to sexual activities. He says that he did not expect this to happen and regrets his actions. He does say that after the offence he cried every night for the first month, and goes on to say he did not want to downplay what happened and asserts that it should not have happened. However, he also feels that the victim has not gone through too much. He says that he would have stopped what he was doing had she told him to.

He seems to be losing sight of the very tender age of the victim. [ 15 ] He does not have a significant record, his record is very dated. In 1989 in Windsor, Ontario he was convicted of breaking and entering and theft, and received 90 days intermittent and probation for two years. [ 16 ] The court has also been referred to the victim impact statement. Obviously and understandably this offence has had a profound effect on her. She has been deeply traumatized by this and has even had thoughts of suicide.

She also has problems concentrating at school and is, in her words, ashamed of herself and feels like she has less value. She has grown angry with everyone and frustrated easily, and suffers from headaches and stomach pain which is all understandable given what she has been through. [ 17 ] The psychological report that has been prepared notes that although Mr.

D. believed that alcohol may have played a role in the index offence his reported use did not appear problematic, however, it would be beneficial for treatment to also further for his substance use. [ 18 ] As the Crown has set out very fairly, the aggravating factors here are the age difference between the accused and the victim, the abuse of a position of trust that he held over her, and the profound affect that this incident has had on the complainant. She points out that the mitigating factors are the guilty plea and the pre-sentence report which is relatively positive. I note that Mr.

D.'s wife died two years ago and he has had, obviously, some difficulties in dealing with that. His daughter has been taken into care by the Director. [ 19 ] Having considered the circumstances of this case, the submissions of counsel, the relevant case law, the pre-sentence report, the victim impact statement and the psychological report, I have concluded that a fit and proper sentence is 12 months incarceration which shall be followed by three year’s probation. [ 20 ] The conditions are essentially as set out in the pre-sentence report, that he will keep the peace and be of good behaviour.

He shall report to the court when required to do so. [ 21 ] He shall report forthwith upon his release from incarceration to a probation officer here in Surrey, and thereafter as and when directed. [ 22 ] He shall attend at the Forensic Outpatient Clinic, participate in and complete individual and/or group therapy counselling, assessment and/or other programs for sex offenders as directed by and to the satisfaction of the probation officer. [ 23 ] He is to attend and participate in any other type of counselling as directed by his probation officer. [ 24 ] He shall have no contact with any female person under age 16 unless in the company of an informed adult approved of in writing by the probation officer.

You may have contact with your daughter as per the direction and consent of the Director of Children and Family Services. [ 25 ] You shall present yourself to the door of your residence and all access to the residence when required by a probation officer or a peace officer. [ 26 ] You shall immediately advise your probation officer of all relationships with the parents or guardians of female children and consent to those individuals being informed of your criminal history in the presence of the probation officer.

"Children" is defined as anyone under the age of 16. [ 27 ] You shall provide the make, model, colour and licence plate number of any vehicle to which you have access to your supervising probation officer. [ 28 ] You shall consent to have your picture taken as per the direction of your probation officer. [ 29 ] I do not see a longstanding alcohol or drug problem here; I am not going to impose a no alcohol condition on him. [ 30 ] You are to have no contact with the complainant, C.B., or members of her family. [ 31 ] You shall not attend to the property of any park, playground, school grounds, public swimming areas, community centres, day- care centres or other sites where children may congregate.

[ 32 ] In addition, I am going to sign the SOIRA order which will be in effect for 20 years. [ 33 ] Also, you shall not possess any firearms or other such items as set out in s. 109 for a period of 10 years. [ 34 ] I am going to order that a DNA sample be provided. [ 35 ] MS. ELLIOTT: Your Honour, the Crown did request a s. 161 order, but I believe you've included that in the terms of the probation order. [ 36 ] THE COURT: Yes, but 161 being -- I left my Code in my chambers. Is that the not to be in the presence of?

Yes, the condition where I stated, the last condition, not to attend the property of any parks, et cetera, that is pursuant to s. 161 of the Criminal Code . [ 37 ] MS. ELLIOTT: Thank you, Your Honour. And is Your Honour inclined to waive the victim -- [ 38 ] THE COURT: Yes, I will waive the victim fine surcharge. [ 39 ] THE CLERK: And is the Crown staying Count 1? [ 40 ] MS. ELLIOTT: Yes, the Crown directs a stay of proceedings on that count. (REASONS FOR SENTENCE CONCLUDED)