R. v. Isbister Date:, 2014 BCPC 324

Citation: R. v. Isbister Date: 20141218 2014 BCPC 0324 File No: 198561-5-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. KELLY GLEN ISBISTER BAN ON PUBLICATION s. 486.4(2) CCC RESTRICTION ON ACCESS s. 490.012 CCC ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: B. Kielmann Counsel for the Defendant: P. Evans

Place of Hearing: Surrey , B.C.

Dates of Hearing: September 15, 17, 22, December 9, 15, 2014 Date of Judgment: December 18, 2014 [ 1 ] THE COURT : Kelly Isbister is before the court today to be sentenced following pleas of guilty in respect of the following three counts on Information 198561-5-C: Count 5 states that between the 1st of March 2010 and the 30th of November 2011 inclusive, at Langley, British Columbia, he touched D.A., a person under the age of 16 years, for a sexual purpose, with a part of his body or an object, contrary to s. 151 of the Criminal Code . [ 2 ] Count 8 states that between the 1st of March 2010 and the 30th of March 2011 he committed the same offence in respect of K.S., and Count 10, that between October 1, 2013 and January 5, 2014, he committed the same offence in respect of S.G., and I note in respect of this offence alleged in Count 10, Mr.

Isbister was before the court in respect of the earlier two counts at the time of that offence. [ 3 ] The Crown proceeded by indictment. This matter initially came before me on a preliminary inquiry in September this year following election for a trial in the Supreme Court. Following committal, Mr. Isbister re-elected back to the Provincial Court where the pleas were entered and a pre-sentence report and psychological assessment were ordered. A Gladue report was also ordered. The Gladue issues are addressed only in a basic and modest way in the pre-sentence report. I have been advised through Mr.

Isbister's counsel, Mr. Evans, that rather than delay sentencing further, Mr. Isbister wished the matter to proceed now with any further comments enhancing that information to be provided by Mr. Evans, rather than that the sentencing be delayed for a period of time that would have been required to complete the assessment under the Gladue provisions. [ 4 ] On that basis I have proceeded, but with the considerations set out in s. 718.2(

e) particularly in mind. That subsection requires that all available and reasonable sanctions other than imprisonment be considered with particular attention to the circumstances of Aboriginal offenders. I am aware that this consideration requires that I bear in mind the particular systemic and background factors applicable to Aboriginal offenders which may have brought, in this case Mr. Isbister, before the court, and that I consider whether particular restorative options are appropriate in the circumstances.

There will be those cases of a more serious nature, however, where the requirements of deterrence and denunciation, when balanced with other sentencing considerations, will call for a sentence consistent with or similar to a sentence which would have been imposed on a non-Aboriginal offender. [ 5 ] The offences to which Mr. Isbister has pled guilty carry minimum sentences. In respect of Counts 5 and 8, the minimum sentence on indictment was 45 days imprisonment at the time of the offences, and that applies in respect to sentencing today.

At the time of the offence covered in Count 10, the minimum sentence now in effect is one-year imprisonment, the minimum having been increased in recent years by Parliament. [ 6 ] Mr. Kielmann for the Crown says the appropriate global sentences on Counts 5 and 10 would be two years on each count consecutive, and on Count 8, one year consecutive, totalling five years, but with consideration of the principle of proportionality to be applied, the fit global sentence would be four years' imprisonment, less pre-sentence custody credit on a one-to-one basis.

The Crown says the basis to grant enhanced credit under s. 719(3.1) is not present considering Mr. Isbister's particular custodial history. [ 7 ] The Crown seeks a number of ancillary orders and a registration order under the Sexual Offender Information Registry legislation for life. [ 8 ] The Crown’s position places particular emphasis on the need to deliver a strong message of denunciation and general and specific deterrence in order to ensure the safety of vulnerable victims such as these three persons. [ 9 ] Mr. Evans, on behalf of Mr.

Isbister, agrees those must be the primary sentencing objectives, and he agrees that a global sentence in the federal range is appropriate. However, he says that Mr. Isbister's personal circumstances and mitigating factors allow that sentence to be tempered to address rehabilitative considerations. He says a three-year sentence less credit for pre-sentence custody would allow a probation order to be imposed with treatment provisions that best support Mr.

Isbister's safe return to the community, and he proposes three consecutive sentences of one year less time served. [ 10 ] Both counsel made reference to the calculation of pre-sentence custody credit to which Mr. Isbister is entitled. It appeared in argument that following the decision of the Yukon Court of Appeal in R. v. Chambers 2014 YKCA 13 and considering R. v. Summers 2014 SCC 26 , in the Supreme Court of Canada, Mr. Evans essentially agrees that Mr. Isbister is not entitled to enhanced credit. [ 11 ] Mr. Kielmann summarized the circumstances in these three counts for sentencing purposes.

Each of the three victims was 14 years of age at the time of the offences. They were befriended by Mr. Isbister. The events occurred primarily at his home. He provided alcohol, drugs and some cash to these victims as he drew them into sexual activity with him for his gratification. As the range of dates demonstrates, his offending in respect of these victims occurred over an extended time period. In respect of D.A., the period was about 21 months. In respect of K.S., the period covered by the Information was just over a year. In respect of S.G. it was just over three months.

The offending conduct across all three counts extended over approximately three years and ten months. [ 12 ] In respect of D.A., Mr. Isbister had that individual perform anal intercourse and oral sex on him on numerous occasions. He photographed this victim in a sexual way. The sexual activity increased in seriousness over time. Mr. Isbister fondled and stroked the penis of K.S. He touched K.S.'s body. He photographed K.S. in a provocative way. He masturbated K.S. and had K.S. do the same to him. K.S. was experiencing bullying at the time and so was particularly vulnerable.

This offender drew K.S. to him by listening and giving him attention. [ 13 ] S.G. was attending an alternate school at the time of the offending. Mr. Isbister engaged in anal intercourse with S.G. on

numerous occasions. [ 14 ] Mr. Isbister provided what appeared to these victims to be a supportive relationship which allowed him to take regular sexual advantage of them, each in their own vulnerable circumstances and while they were intoxicated with alcohol and/or drugs. He manipulated these victims for his own sexual gratification. [ 15 ] I am advised by Crown counsel that Mr. Isbister's offending conduct has had a significant and traumatic impact on these victims.

Although all gave evidence on the preliminary inquiry, they found that to be a very difficult experience because it required that they re-visit these events. Even three years later, it was a difficult process. For this reason, all three have chosen not to prepare victim impact statements. Both counsel invite me to treat Mr.

Isbister's guilty pleas as an important mitigating factor considering the acute anxiety each of these victims felt at the thought of addressing these events in a trial setting. [ 16 ] Both counsel have referred to the objectives of sentencing which must be considered in determining a fit sentence. Both counsel agree that the overriding objectives must address the safety of children who may be drawn into relationships with adults who then manipulate those relationships and those children for their own sexual enjoyment. Such exploitive conduct is destructive.

It may have long-term, perhaps lifelong impact on the victims. Sentencing in cases like this must deliver a strong message of denunciation and express the abhorrence of the community. The sentences I impose must deliver a deterrent message to others inclined to victimize children in this way, and it must be heard by the specific offender before the court, Mr. Isbister in this case, so loudly that he will commit himself to rehabilitative steps and recovery.

Courts have recognized that rehabilitative considerations will always be relevant in the sentencing analysis, but the protection of children is uppermost. (See R. v. Dragos 2012 ONCA 538 ; R. v. Woodward 2011 ONCA 610 ; R. v. Knowlton 2014 BCPC 163 at paras. 37 to 39 ) [ 17 ] The sentences I impose must take account of aggravating and mitigating factors. I must take account of sentences imposed in similar circumstances and respecting similar offenders.

Any custodial sentence, and particularly consecutive sentences, must be no longer than necessary in order to address the relevant purpose and objectives of sentencing. The sentences which I impose today must be proportionate in their totality to the seriousness of the offences and the degree of responsibility of this offender. That means that the sentences must account for Mr. Isbister's high degree of moral blameworthiness in these circumstances. [ 18 ] In considering a fit global sentence, I have in mind the concerns of Parliament in respect of Aboriginal offenders as I referred to earlier. [ 19 ] Mr.

Isbister's personal circumstances are important in this analysis, and I am going to review them now with the benefit of the pre-sentence report, the psychological assessment and the submissions of counsel. [ 20 ] Mr. Isbister is 42 years of age. He ranged in age from 38 to 41 years of age during the period covered by these offences. He has no past criminal record. He grew up in the Langley area. His father was abusive. His parents divorced, and both parents then remarried.

Although it appears that he struggled somewhat in high school, he achieved his high school diploma and attended some community college programs thereafter. His employment history is limited. It appears that he has not worked for a number of years. He has earned some income growing marihuana. He had a licence to grow medical marihuana which was rescinded in 2011. [ 21 ] He has struggled with depression and has come to rely upon, and is perhaps addicted to, sleeping medication.

He was sexually abused by an adult female when he was 12 years of age and had suicidal thoughts in the past, although that is not a current concern. His sexual orientation is to male partners. [ 22 ] Mr. Isbister reports consuming six to eight beers on an average day. It appeared to the pre-sentence report writer that Mr. Isbister minimized and rationalized his alcohol and marihuana use. [ 23 ] In 2011, Mr. Isbister suffered significant injuries following a beating during a home invasion. He asserts that he suffers symptoms of Post-Traumatic Stress Disorder.

The writer of the pre-sentence report concluded, after interviewing several of Mr. Isbister's family members, that he does not have a lot of family support. Mr. Isbister takes issue with that. His mother, his stepfather and his sister were all in court during the sentencing submissions earlier this week. His mother wishes to provide support to him when he returns to the community. [ 24 ] Mr. Isbister advises that he has First Nations status as Metis through the Cree Nation of Manitoba.

Although he has had no involvement with his Aboriginal background prior to his detention, he has become involved since then and he wishes to continue that process. [ 25 ] I note that Mr. Isbister has completed, I believe Mr. Evans indicated today, a total of 18 programs while on remand, and a number of certificates, I believe ten, were provided on the previous date. Those have addressed generally substance issues, relationship issues and life skills. Engagement in those programs, to the extent that they have been available in the remand process, is to Mr.

Isbister's credit. [ 26 ] In his psychological assessment of Mr. Isbister, Dr. Stangeland identified a number of risk factors raising concern that he might recidivate. Among those concerns were the following: First, extreme minimization or denial of sexual violence. In this regard, Dr. Stangeland observed, "He had a lot of rationalization and justifications for his actions." [ 27 ] The second factor identified was attitudes that support or condone sexual violence. Dr.

Stangeland stated, "My impression is that Kelly did not perceive there to be any difficulty with his victims engaging in sexual acts with an adult." [ 28 ] The third factor was that although Mr. Isbister denied paedophilic preferences, Dr. Stangeland stated, "The extent of his involvement with adolescent boys strongly suggests otherwise." And a fourth factor, I wish to note, is that no violence was used, but the doctor stated, "It is clear, however, that he used alcohol and marihuana as enticements." [ 29 ] At page 4 of 23 of his report, Dr. Stangeland stated the following:

In Aldergrove he met other boys. Once again he stressed that these boys definitely knew that he was gay and that they persisted incoming over nonetheless. He expressed the opinion that no harm was being done by his actions. Although he felt that he should nothave taken pictures because it raised the prospect of embarrassing the boys who were involved, in describing the nature of thephotographs he referred to them as "just fool around pictures." He agreed that he had broken the law, but he stated that he never thoughtof it at the time.

In his opinion, because he never did anything to anyone who was not mentally or emotionally mature enough, hisactions were not really harmful, especially since he was honest and clear and in his opinion everything was consensual. Once again hestressed that he believed the boys were reluctant to give any evidence against him. [30] These observations and the risk factors just referred to demonstrate that Mr. Isbister has a significant way to travel in order togain insight into his offending, what may underlie it, and how it impacts these young victims. Mr. Evans acknowledged in hissubmissions that Mr.

Isbister's insight into his actions is not fully developed. [31] Dr. Stangeland identified a number of features which temper Mr. Isbister's risk of re-offending. Among those is his willingnessto attend sex offender programming which, together with the family support that he has, will be important in his efforts to gain thatunderstanding and thereby reducing his risk to a manageable level in the community. Until that occurs, Dr. Stangeland concludes Mr.Isbister remains a risk to re-offend. [32] Dr.

Stangeland defined that level of risk at page 22 of his report in the following terms: On the basis of this risk assessment and general clinical impression, it is my opinion that Kelly represents a moderate level of risk forfuture sexual misconduct. He emphasized that he would never engage in such acts again, but his risk profile suggests that there is somedegree of risk of recidivism. An actuarial risk assessment instrument placed him in the low/moderate risk category. Dr.

Stangeland noted that rehabilitation must address sex offender programming and relapse prevention, alcohol treatment and treatmentincluding psychiatric content directed towards depression. [33] Both counsel have referred to previous sentencing decisions in addressing an appropriate range here. Each case is different. Each must be assessed on their own particular circumstances, and the balancing of sentencing objectives and considerations. Thoseconsiderations vary from case to case. I have had that in mind in reviewing each of those decisions. [34] R. v.

Lamb 2013 BCCA 372, is a decision of the Court of Appeal in this province in 2013. The 24-year-old offender in thatcase, who had just been released after serving a sentence for sexual interference, befriended a vulnerable 15-year-old, leading to sexualoffending. He was assessed at a high risk to re-offend. He pled guilty to sexual interference and luring. He pursued the victim via e-mail, despite family efforts to separate them. The Court of Appeal upheld two consecutive one-year sentences and three years ofprobation.

The sentencing judge in that case relied on a Supreme Court decision in this province called R. v. Aimee 2010 BCSC 1463. That case involved a 29-year-old offender who had sexual relations with a 14- and a 16-year-old. He had no prior record and was a lowrisk to re-offend if he took counselling and had a supportive family. On the sexual interference counts he received an effective three-year sentence concurrent on each count.

That sentence must be considered in light of the application of the totality principle, consideringthat he was also sentenced on two counts of luring and one count of obstruction for which he received a 12-month consecutive sentence. The court considered the range for sexual interference offences to be between two and four years. The court noted the particularvulnerability of young persons in the 14 to 16-year age range, bearing in mind their maturity and judgment in sexual matters has not yetfully formed. They are vulnerable to sexual exploitation.

The sentencing outcome in cases such as this must work to protect children byplacing predominant emphasis on deterrence and denunciation. (See paras. 68 to 71.) [35] Although there were significantly more victims involved in the case of R. v. Cardero 2012 BCJ No. 889, that case did includefeatures of befriending and the development of a trust and the photographing of the victims leading on to sexual acts which are similar tosome of those that are present in this case. Child pornography offences and sexual touching offences were resolved with consecutivesentences totalling nine years.

Judge Gulbransen emphasized the importance of protection of the public, particularly young boys. Hesaid imprisonment was necessary for a sufficient period in order to allow assessment and efforts to modify the offender's behaviours sothat he would not be a risk on release. He noted the importance, emphasized by both counsel here, of the guilty pleas as mitigating incases like this. [36] In R. v. Knowlton 2014 BCPC 163, Judge Hamilton of this court imposed an effective two-and-a-half-year sentence for sexualinterference, and a consecutive one-year sentence for making child pornography.

That case involved a 33-year-old male who befriendedand manipulated a 12-year-old, initially over the internet and utilizing a webcam, and then engaged in sexual intercourse which occurredfour or five times over two months, and which he filmed. The court concluded the offender had not taken responsibility for his conductand engaged in blaming the victim. He justified and rationalized his conduct. Judge Hamilton noted the comments of the Court ofAppeal in R. v. B. 2013 BCCA 224 at para. 12.

There the Court of Appeal upheld a four-year sentence in respect of predatory sexualoffending over several years, beginning when the victim was age nine. In that case, the Court of Appeal and the sentencing courtidentified as significant in the analysis an offending attitude which minimized and rationalized the offending actions and placedresponsibility on the child rather than where it properly belongs, on the mature adult who initiates the contact, fosters the relationship,and provides the circumstances that allow a vulnerable young person to be preyed upon. [37] Mr.

Evans brought to my attention the Ontario Court of Appeal decision in R. v. G.C.F. (ON CA), 2004 OJ3177, and a decision in the Newfoundland Supreme Court, R. v. Patey 2012 NJ 306. Both cases confirm the significant sentencingprinciples applicable here and to which I have already referred. The circumstances have some similarities, and also significantdifferences. For example, Patey followed a trial, the accused denied the offences and expressed no remorse. He received three years forsexual assault and a consecutive six-month sentence for a second sexual assault.

In G.C.F. the Court of Appeal overturned a 12-monthconditional sentence order where the 31-year-old offender sexually abused two girls, aged 13, over an extended period, leading tointercourse. The sentence was varied to two years less one day less credit for one year on the completed conditional sentence order. The

court noted the original sentence failed to account adequately for deterrence and denunciation. [ 38 ] Here I note the importance of Mr. Isbister's guilty plea and the absence of any prior record. I note the support that he has from family, particularly his mother, which will be important in his rehabilitative progress once he returns to the community. But the circumstances of Mr. Isbister's offending are very serious. He created an environment in which each of these vulnerable young persons were preyed upon. He provided the enticements that played on those vulnerabilities.

He drew these victims along a path that ultimately allowed him to take sexual advantage of each over an extended period on numerous occasions. His conduct was predatory and relentless. No physical violence was used beyond the acts themselves, but those acts were of the most intrusive and violative kind, with significant impact on each individual victim's personal sense of well-being, personal privacy and security.

Each is likely to face a long- term challenge in putting these experiences behind them and moving ahead with their lives. [ 39 ] The sentences I impose must denounce this criminal conduct in strong terms and send a strong message of deterrence to others in the community. I have referred to risk factors which were identified by Dr. Stangeland as contributing to the continuing risk that Mr. Isbister could offend again. That risk may be in the low to moderate range. Addressing that risk in

part involves his acquiring a much clearer insight into his offending conduct, and to understand why it is that this type of crime is treated so seriously. Although he has pled guilty and accepted responsibility in that way and so has begun to address the concerns for personal deterrence, his personal deterrence, I conclude, remains a sentencing concern. [ 40 ] I will note that I have taken account of Mr. Isbister's Aboriginal circumstances.

Despite this background, the circumstances and the seriousness of these offences compel strong statements of denunciation and deterrence in the balance. [ 41 ] I have reviewed s. 719(3) and (3.1) relating to the application of pre-sentence custody credit.

Subsection (3.1) allows a court to vary the one-for-one credit permitted under s. 719(3) if the circumstances justify it, to a maximum one-to-1.5 credit: Unless the reason for detaining the person in custody was stated in the record under s. 515(9.1) or the person was detained in custody under s. 524(4) or (8). [ 42 ] I have reviewed Judge Gulbransen's ruling on Mr. Isbister's show cause hearing on March 28th, 2014 at which time he was detained on the secondary ground. I have considered his circumstances in light of the Court of Appeal decision in Chambers . I have noted Mr.

Evans' acknowledgement on behalf of Mr. Isbister that the circumstances here essentially meet the provisos in s. 719(3.1) on the basis of which Mr. Isbister is not entitled to enhanced credit. The parties are agreed that on a one-for-one basis Mr. Isbister will have credit for one year of pre-sentence custody, and I agree that that is appropriate. [ 43 ] I have concluded that a fit global sentence, bearing in mind the application of principles of restraint and proportionality, would be as proposed by the Crown; five years.

I take account here of the circumstances and the need to balance proportionality in the mix, and I conclude that an appropriate outcome would be a global sentence to be imposed of four years. [ 44 ] In respect of Count 5, that is the sexual touching of D.A. between March 10, 2010 and March 30 of 2011, in respect of that charge I give credit of six months pre-sentence custody. I impose an additional six-month sentence. [ 45 ] In respect of Count 8, the sexual touching of K.S., I give six months pre-sentence custody.

I impose an additional six-month sentence. [ 46 ] In respect of Count 10, the sexual touching of G.S., I impose a consecutive two-year sentence. So let me just repeat that. There will be a six-month sentence of new time in respect of Count 5, on Count 8 a consecutive six-month sentence new time, and on Count 10, a consecutive two-year sentence; total three additional years' incarceration, having given one year of pre-sentence custody. [ 47 ] I am going to move on and deal with the ancillary orders that are sought by the Crown. First of all, in respect of Counts 5 and 8, I will waive the victim fine surcharge.

In respect of Count 10 which follows after the period of the amendments to the Criminal Code , I will make that surcharge due and payable forthwith, in default one day concurrent with the sentences previously imposed. [ 48 ] The DNA databank order, these are primary designated offences, and I will order that Mr. Isbister supply a sample of his DNA to the National Databank, that to be taken during the course of his incarceration. [ 49 ] I understand the Crown has prepared an order under the Sex Offender Registry provisions, Mr. Kielmann? [ 50 ] MR. KIELMANN: Sorry, Your Honour, I haven't prepared the order.

I understood it was done at the registry. [ 51 ] THE COURT: All right. It is a lifetime obligation under the Sex Offender Registry provisions. [ 52 ] I will also make the order the Crown seeks under s. 743.2 that my sentencing remarks and the reports that have been prepared for the sentencing be provided to the Correctional service. [ 53 ] Under s. 743.21 the Crown seeks an order that during the period of his incarceration, Mr.

Isbister not communicate or have contact with any of the victims, the three named victims, as well as a fourth victim, and that order will be made in respect of all four of those individuals. [ 54 ] The Crown seeks an order under s. 164.2(1) for the disposal of images and materials seized in the course of the investigation, and that order will be made. [ 55 ] I am also going to make the order the Crown seeks under s. 486.4, and that was raised specifically during sentencing submissions, and on the basis of that I assume that no order has been made in the past for a ban on publication of the identity of

complainants or witnesses. [ 56 ] THE CLERK: Your Honour, there was an order under s. 486.4(2) made on March 29th, 2014. [ 57 ] THE COURT: That order is in effect. Mr. Kielmann, was there more than -- [ 58 ] MR. KIELMANN: No, I just was concerned in the event of the reasons that there would be any misunderstanding or -- [ 59 ] THE COURT: I don't know who that order extends to, but I want to ensure that it extends to these three victims.

So it is really generally worded and it ensures that a publication ban applies to any victim or witness in respect of this matter, and I confirm that order today. [ 60 ] One issue that was taken up by Mr. Evans was with respect to orders sought by the Crown on a lifetime basis under s. 161(1) (a), (

b) and (c). I have concluded that at this stage there is no basis for me to be satisfied that I could identify a particular, finite timeframe within which this kind of order should be restricted. I have determined the appropriate step to take at this point is to make the order a lifetime order. There are provisions within the

section that allow the order and its terms to be reviewed at a later time should circumstances change, and on that basis I determined that there is an opportunity for the terms of these orders to be reconsidered if circumstances are different at a later time, so I make these orders in respect of Mr. Isbister under s. 161(1)(

a) that he be prohibited from attending a public park or public swimming area where persons under the age of 16 are present or can reasonably be expected to be present, or a day care centre, school ground, playground or community centre, and with respect to (b), that he be prohibited from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years, and (

c) that he be prohibited from having any contact, including communicating by any means, with a person who is under the age of 16 years unless the offender does so under the supervision of a person whom the court considers appropriate. [ 61 ] MR. KIELMANN: Your Honour, just one last thing, just to avoid any confusion for Madam Clerk, in terms of the non- communication order while in custody, it was K.W. that we were referring to, I made it in my sentencing submissions, and I think they know who that is now. [ 62 ] THE COURT: Yes, that's correct.

So it is the three named victims in the counts, and the individual identified as K.W. [ 63 ] MR. KIELMANN: And as it relates to the remaining counts on the Information, the Crown directs a stay of proceedings, and with respect to two other Informations, matter 4 and 6, the Crown directs a stay of proceedings on those counts. [ 64 ] THE COURT: Thank you. Thank you, Mr. Evans. (REASONS FOR SENTENCE CONCLUDED)