R. v. Martin-Clements Date:, 2014 BCPC 87

Citation: R. v. Martin-Clements Date: 20140314 2014 BCPC 0087 File No: 195191-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSHUA SIMMON MARTIN-CLEMENTS BAN ON PUBLICATION s. 486.4(2) CCC ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. GILLESPIE Counsel for the Crown: W. Sayson, Q.C Counsel for the Defendant: P. Smith-Gander

Place of Hearing: Surrey , B.C. Dates of Hearing: September 26, 27, October 30, November 1, December 3, 2013 Date of Judgment: March 14, 2014 [ 1 ] THE COURT : These are my Reasons for Sentence on the matter of Joshua Martin-Clements. [ 2 ] Joshua Martin-Clements was charged with one count of sexual assault of M.R., dated November 21st, 2009. On December 23rd, 2013 I found him guilty and my Reasons for Judgment are attached as an exhibit in these proceedings.

I believe they were noted as Exhibit number 1. [ 3 ] Very briefly, the facts found by me were that the accused had sexual intercourse with M.R. without her consent. The incident occurred after an evening of partying and drinking, and ultimately a number of individuals ended up at a house in Surrey. M.R. consumed alcohol over the evening, but I accepted her evidence where she said she was not overly intoxicated until she consumed one last beverage at or around 5:00 a.m. that made her feel very sleepy.

She fell asleep and awoke several hours later at which point and time she found she was having sexual intercourse with the accused. At paragraphs 85 and 86 I describe in more detail, but she awakens from what I found to be a sleep, she came to consciousness and she was awakened to having sexual intercourse. She was therefore sleeping before being awakened. [ 4 ] When she came to a level of consciousness that she understood what was happening, she pushed the accused off of her.

She described that the accused got off her as quickly as he could and pulled his pants up and she yelled and screamed at him and told him that he had raped her. Her friend F. came downstairs and then the accused said, "No. She's crazy. I didn't touch her.

I was asleep on the opposite couch." I found that that statement was a fabrication and found the accused therefore guilty of the offence. [ 5 ] I specifically did not make any particular findings of fact about whether or not the victim in this matter had actually had any substance placed in her drink, nor did I make any finding that the accused had anything to do with placing any substance in her drink.

Accordingly, those are not factors which are or should be considered in this sentencing. [ 6 ] Reports were prepared, including a pre-sentence report and a psychiatric report, and are before me as Exhibit 2 and Exhibit 3.

Defence counsel takes significant issue with the psychiatric report where specifically opinions that the defendant is at a moderate or moderate to high risk to re-offend are opinions that I should not accept, and further says that these conclusions arise as a result of risk assessments that were undertaken that rely on erroneous information to reach those conclusions. [ 7 ] Crown counsel agrees to some extent that the degree or weight that I attach to that report may be limited, depending on what information I take away or do not rely on, and that in any case I also have determined that I must look to any risk prognostication that is referenced in those reports in light of the fact that this incident occurred in November of 2009 and that there are no other incidents of sexually offending behaviour that occur subsequent to or after that date which would at least speak in part to risk factors that may arise in terms of subsequent sexual offending if there was any and there is not any here. [ 8 ] With respect to a criminal record, that is set out at the pre-sentence report on page 3.

Of specific note in the record is that the accused has one prior conviction which predates the matter that is before me. There is a record for an assault from an incident that occurred in September of 2009 for which he received a 12-month probation order that was in the form of a conditional discharge, together with 25 hours community work service and $350 restitution to the victim. [ 9 ] There is an offence of using a forged document that postdates this offence and that is from July 27th, 2011. It is not related to this offence in the sense that it is not one that has any violence associated with it.

There is also a peace bond that postdates this matter that was imposed July 30th, 2013 and I am cognizant of the fact that the accused was placed on a 12-month recognizance that appears to be in relation to somebody with whom he was involved in a relationship.

I am also cognizant of the fact that that is not a conviction and not a matter for which a court has found beyond a reasonable doubt that incidents occurred in that context, nor is it a criminal conviction. [ 10 ] There is reference to the accused's previous history in terms of compliance with court orders, and the pre-sentence report notes that there has been some issues with respect to that. There are no convictions for breaches of court orders that are before me, but I note that there are comments that there were allegations of bail breaches and some issue with respect to a previous probation order.

In any case, there is no record, as I have noted. [ 11 ] There is also a victim impact statement filed by four family members, and those victim impact statements are filed as exhibits in these proceedings before me. They reflect, and I can find that there is significant victim impact that occurred as a result of this incident, specifically I note, for example, M.R. wrote a victim impact statement that was read into the record by Mr.

Sayson and she notes that what happened to her on that evening "broke her into a million pieces," pieces that she has slowly had to piece back together again, and that she felt "broken and powerless" as a result of this, and it has been the longest four years of her life since that incident. She felt that she was beginning to recover and then had to deal with the court process which has also increased the trauma, she says, to her. [ 12 ] Her family members have provided victim impact statements as well.

Her father, most notably, says that what happened to his daughter broke his heart and made him feel somehow that he had failed as a father to protect her from what he describes as someone who had attacked her. [ 13 ] Her mother says that she and the family lived with helping M.R. pick up the pieces and put her life back together again, and that she cannot understate the fear and mental anguish that accompanied this incident.

Her older brother also provided a victim impact statement; he spoke about the degree to which this impacted the family and his sister in particular. [ 14 ] The principles of sentence have been most recently set out in the case provided to me by Ms. Smith-Gander, defence counsel,

and those are noted in the case of R. v. Yamelst which is cited as 2013 BCSC, 1689, a decision of Mr. Justice Willcock. Thecircumstances he says that courts should consider with respect to the principles of sentence are set out at paragraphs 5 through 7, and heidentifies s. 718 of the Criminal Code which sets out the principles of denunciation, deterrence, protection of the public, rehabilitationand promoting a sense of responsibility in offenders and acknowledging the harm done to victims in the community.

He notes thatsentences must be proportionate to the gravity of the offence and the degree of the responsibility of the offender, and that a courtimposing a sentence should take into account that a sentence should be increased or reduced to account for any relevant aggravating ormitigating circumstances relating to the offence or the offender; it should be similar to sentences imposed on similar offenders withsimilar circumstances, and an offender should not be deprived of liberty if less restrictive sanctions are appropriate, and all otheravailable sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. [15] To the extent that the case law is useful to me in defining or assessing what is an appropriate range, I must also be mindful thatsentencing is an individualized process where the principles of sentence must be applied to specific fact patterns to determine appropriatesentences, and in particular I am guided by the Supreme Court of Canada in the case of R. v.

C.A.M., which says I must consider theoffence and the offender, having regard to the aggravating and mitigating circumstances and the antecedents of the offender. [16] With that in mind, and noting again that sentences should be increased or decreased having regard to the aggravating andmitigating circumstances, I find the following to be aggravating circumstances. There is a previous criminal record for an assault fromSeptember of 2009, although I do note that you received a conditional discharge for that. The other offence which is brought to myattention is one that postdates this matter and occurred in 2011.

I note that you were engaged in sexual activity without the consent ofthe victim and that that was while the victim was sleeping, and I note that that is seen to be an aggravating factor. And in particular inthe case of R. v. Laz-Martinez, paragraph 37 quoting R. v. Arcand from the ABCA 2010 ABCA 363 , 2010 AJ 1383, it says: An offender who sexually assaults a person who is asleep or passed out is treating that person as if the person were an object to be used –and abused – at will.

Since the offender knows full well that the person is not consenting, this reveals an enhanced degree of calculationand deliberateness by the offender. Further, at that point, the person is at their most vulnerable, unable to defend themselves in any wayand unable to call for help from others.

The offender knows this too, adding further to the high level of moral blameworthiness for theillegal conduct. [17] With respect to this, I note in finding that that is a significant aggravating feature, that I do not find that your behaviour thatevening was premeditated in the sense that you sought for this to happen but that you observed the victim asleep, that you then hadsexual intercourse with her which, while opportunistic, did have some degree of deliberateness by you, noting that she was asleep andyou had intercourse with her and that she would be unable to defend herself, and that is a significant aggravating feature, although as Ihave noted, I describe your behaviour or characterize it more as opportunistic as opposed to something that was calculated for asignificant period of time prior to the commission of the offence. [18] I also note, as I have reflected earlier in my reasons, that there was significant victim impact in this case and I have reflectedwhat that is. [19] In terms of mitigation, I find that you have a supportive family.

Your mother has written a letter in support of you, outliningand detailing your personal circumstances in an attempt to bring that information to the court's attention. You have connections withother siblings and I do not find specifically (as was noted in the psychological report, or psychiatric report) that I should not consider thisfactor because you had the presence of your family when you offended.

I find that that is not a factor that I consider in the manner that itwas considered in the psychological report, rather I consider it to be a mitigating factor that you have support in the community and youhave support from your family. [20] With respect to your activities that are focused on the entertainment industry, I also do not accept the information that is in thepsychiatric report that says or diminishes somehow that you are not committed to or focused on that, and I accept the submissions of yourcounsel that people who undertake a career in this area often are required to supplement it by getting other work.

The fact that you areengaged in other work does not derogate from the fact that you

a) wish to pursue a career in that area, and,

b) that you have the potentialfor employment in that area. [21] As noted, Crown counsel says that as one final aggravating feature I should consider, at least to some extent, that there is apsychiatric report that finds that you are at a moderate to high risk to re-offend. Defence counsel tells me that I should not put anyweight on that report at all on the basis that it considers factors that I did not find in sentencing and I have excluded specifically thosefactors.

Specifically, at the bottom of page 6 of that report it attributes or ascribes behaviour to you where you planned or somehow wereresponsible for drugging the complainant. I have specifically found that you did not do that, that there was no evidence at least beforeme. Rather, I found as a fact that you came upon the victim, who was sleeping, and you had intercourse with her.

So to the extent thatthe report relies on that, together with other information that I have cited, which is that you were being somehow deliberately misleadingabout your employment opportunities and that you were being somehow duplicitous about your support in the community, I do not findthat that is true and I do not put any weight on that.

It is difficult for me with this report to know the degree to which that was relied onby the author of the psychiatric report, so I have put really no weight on their opinion that you are at a moderate to high risk to re-offend. [22] What I do note when I look at your specific risk factors that I have found here as to whether or not you are at a risk to re-offend,is that the offence was committed in 2009 and there are no other related or similar type of sexual offending behaviours that I have notedin your record; so that would tend to suggest that you are certainly at the lower end of a risk to re-offend.

With respect to the somewhatlimited insight that you express around that, you of course pled not guilty and there was a trial and I found you guilty, and that is yourright to do. In that context I simply note (and I have not found as an aggravating factor) that you are not remorseful, but rather when Iconsider your desire to take further counselling you have some trepidation around an interest or desire to do that.

I consider that not to bean aggravating feature specifically at all, but rather when I look at the circumstances of it I would place you at a lower end of a risk to re-offend based on all of the factors that are before me here today.

[ 23 ] When I look at the case law that is canvassed, Mr. Sayson says in a thorough review of the cases that he has put before me, that the range of sentence that I should find is that between two years to three-and-a-half years is the appropriate range of sentence. Your counsel says I should consider something between the range of time served to 16 months. [ 24 ] I look at the case that was provided to me by your counsel, which is the case of Yamelst , which notes that for similar types of offences (at paragraph 45 in Yamelst ), Mr.

Justice Willcock reviews the cases and in particular the cases which most closely resemble the circumstances of the offender, the victim and the offence in the case that was before him, which are not dissimilar in terms of the actus reus here but the actual circumstances of the offender were different because that offender was a First Nations individual with some of the attendant circumstances that surround those who are First Nations individuals including very difficult upbringings, residential schools and the impact of Colonialism on them in terms of cycle of offending.

Nonetheless, he said that the case before him and the range that he was considering as an appropriate range for similar types of offences to the case at bar was one of 16 to 30 months incarceration. Those are cases that involve no breach of trust, no planning or manipulation, no persistence in the face of active resistance, no gratuitous violence and no repetition of the assault, and he said that those cases were at the lower end of the range considered by Gower, J. in R. v.

White. [ 25 ] Those are similar circumstances as are before me in the sense that there was not a breach of trust in this case, nor was there planning or manipulation in the sense that I have found that you did not plan this or were responsible for placing any drug in M.R.'s drink, that there was no persistence in the face of active resistance once M.R. awoke to find this occurring, and there was no additional gratuitous violence.

Although I note that the courts have described sexual assaults, including that of forced sexual intercourse, to be violent by their very nature; but there was nothing outside of that and there was no repetition of the assault, and that was found by Mr. Justice Willcock to attract a range of sentence somewhere between 16 to 30 months. [ 26 ] I also note that other jurisdictions, as noted in paragraph 37 of Yamelst , including in R. v.

Shalley , 2005 New Brunswick Court of Appeal, found that in upholding a sentence of two years less a day that an accused who had been convicted of having intercourse with a victim who had passed out at a house party, that this was within the appropriate range of sentence for sexual assaults involving non- consensual intercourse with a woman asleep or unconscious, assuming an offender of previous good character who had pled guilty and expressed remorse. Mr.

Justice Gower noted that British Columbia Courts had been less willing than other Provincial Courts to embrace a starting point or a specific set of guidelines as for example Alberta does with respect to sentencing. [ 27 ] When I consider all of the circumstances here, particularly looking at the aggravating and mitigating circumstances, and again noting that those are factors that will aggravate or reduce sentences, I have to look at, frankly, the gravity of the offence here and it is significant that intercourse took place with a sleeping woman who was not in a position to consent or object.

I found that you knew that and that there is also significant victim impact and that when I balance that against other factors, which is what I have found to be an absence of a significant related record, in other words there is a related record because there is an assault conviction in 2009, but you received a conditional discharge for that, although one factor that I would look at is that this was now found to be committed at the time when you were, you were sentenced after the commission of this so it would not be something that you were found to be on probation on, so that would not be an aggravating feature. [ 28 ] I also have to look at the passage of time from when the offence was committed to today's date and note that a period of somewhere in the neighbourhood of four-and-a-half years have passed and that you have not committed similar sexual offences which would tend to suggest that you are at a lower risk to re-offend than the opinion stated by the psychiatrist which, I have not accepted, said you were at a moderate to high risk, and as I have noted, I did not accept that. [ 29 ] When I look at all of those circumstances I find that a fit sentence here is one of two years, and I will then take away the seven months that you have spent in custody and that means that you are sentenced to a further 17 months in custody. [ 30 ] I am going to place you on probation for a period of two years to follow, with the following terms: You will report within 72 hours of your release from custody to a probation officer who is located at 100 - 13545 - 64th Avenue in Surrey, British Columbia and thereafter as and when directed. [ 31 ] You will reside where directed by your probation officer and not change that residence without the prior written permission of your probation officer. [ 32 ] You will have no contact directly or indirectly with M.R. and her name should be included in the full documentation, nor will you attend at any known place of residence, place of employment or place of education that she attends to. [ 33 ] You will attend, participate and successfully complete the Sex Offender Treatment Program at Forensic Psychiatric Services as directed by your probation officer and any other counselling as directed by your probation officer, and that will be completed to the satisfaction of the probation officer. [ 34 ] With respect to other ancillary orders, there will be a DNA order and that will be, this is a primary designated offence. [ 35 ] You are also required to, by virtue of operation of legislation because the Crown proceeded indictably, there will be a 20-year order to comply with the Sexual Offender Information Registration Act . [ 36 ] There will be a firearms prohibition.

Pursuant to s. 110, you are prohibited from possessing any firearms, imitation firearms, prohibited weapons, restricted weapons, any ammunition or any certificates for a period of ten years pursuant to s. 110(1). [ 37 ] There is a mandatory victim fine surcharge of $100, and I will give you three years' time to pay that. [ 38 ] There is a non-communication order while you are in custody pursuant to s. 743.21(1), you will not communicate, directly or indirectly, during the custodial portion of your sentence, with M.R. (REASONS FOR SENTENCE CONCLUDED)