R. v. Humchitt Date:, 2011 BCPC 391

Citation: R. v. Humchitt Date: 20110413 2011 BCPC 0391 File No: 199351-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TROY DONOVAN JAMES HUMCHITT REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.F. GIARDINI BAN ON PUBLICATION

SECTION 486.4(2) C.C.C. Counsel for the Crown: D. Boblin Counsel for the Defendant: D. Hopkins Place of Hearing: Vancouver, B.C. Date of Hearing: March 24, 2011 Date of Judgment: April 13, 2011 INTRODUCTION [ 1 ] In Reasons for Judgment issued August 24, 2010, (“the Decision”) I found Mr. Humchitt guilty of two charges: (

a) sexual assault contrary to s. 271 of the Criminal Code , and (

b) touching the body of a person under the age of 14 years for a sexual purpose (sexual interference) contrary to s. 151 of the Code . The facts I found, which resulted in the findings of guilt, arose out of Mr. Humchitt’s admission to the police that:

a) he touched R.P. once at Franklin Street;

b) the touching happened sometime before the date of R.P.’s second disclosure;

c) it happened when he went to lie down and cuddle with her;

d) the touching consisted of: i. putting his hand down her shorts; ii. putting his hand on her chest; iii. touching her bum. [ 2 ] The two charges arose out of the same incident, therefore the principle enunciated in R. v. Kienapple , 1974 CanLII 14 (SCC) , [1974] 15 C.C.C. (2d) 524 (S.C.C.) applies. The Kienapple case sets out the factors that must be considered in deciding whether the rule against multiple convictions applies. In that case the majority concluded that the rule against multiple convictions applies if there is a

verdict of guilty on one count and the same or substantially the same elements make up the offence charged in a second count. On the basis of the Kienapple principle, on August 24, 2010, a conditional stay was entered on the sexual assault conviction. Accordingly, the sentencing hearing proceeded only on the conviction of sexual interference contrary to s. 151 of the Code . BACKGROUND FACTS [ 3 ] Evidence led at the trial established that Mr. Humchitt had a relationship with Ms. D.P. the mother of the complainant R.P. The relationship began in 2001-2002.

During the course of the relationship there were times when Mr. Humchitt lived with Ms. D.P. and her daughter R.P., and there were other times when he and Ms. D.P. lived apart. In total, Mr. Humchitt and Ms. D.P. were involved in a relationship for approximately eight years, on and off. During that time Mr. Humchitt, Ms. D.P. and R.P. lived together, as a family. Mr. Humchitt thought of R.P. as his daughter and saw his role as that of a parent. Ms. D.P. and Mr. Humchitt also had a child together who was born in 2006. [ 4 ] The findings of fact which led to Mr.

Humchitt’s conviction arose from a statement he made to the police when he was first interviewed about a complaint made by Ms. D.P. During the police interview, Mr. Humchitt told a police officer that something had happened with R.P. The details of what he told the police officer are set out in the Decision. However, during the trial Mr. Humchitt testified that what he told the police was not true. He said he had simply made those statements because he wanted to get out of there. Below I have set out paragraphs 74 to 76 from the Decision: [74] I have already said, in my analysis of Mr.

Humchitt’s credibility, that I do not believe his testimony that his statement to the police was a lie. I do not believe that he made it up so he could go home. I find the statement he made to the police is an admission that Mr. Humchitt touched R.P. inappropriately when they were at Franklin Street. I am satisfied, taking into account the entire statement Mr. Humchitt gave to police as well as his subsequent explanation at trial, that the admission is true. Mr. Humchitt’s admission to the police established that: (

a) he touched R.P. once at Franklin Street; (

b) the touching happened some time before the date of R.P.’s second disclosure; (

c) it happened when he went to lie down and cuddle with her. (

d) the touch consisted of: i. putting his hand down her shorts. ii. putting his hand on her chest. iii. touching her bum. [75] R.P.’s evidence is that there was only one incident of touching at Franklin Street. She made the disclosure to her mother quite a bit after the incident. Her description of the touching was that Mr. Humchitt touched her private part. In cross-examination she said he did not touch her breast or butt at that time. The description she gave during the police first interview was put to her. During that police interview she had said Mr.

Humchitt had touched her vagina, squeezed her butt, and pinched her breast. R.P. agreed she said that. When it was suggested by defence counsel that she was not telling the truth R.P. replied she was not really sure what had happened. However, she maintained Mr. Humchitt had touched her in an inappropriate way. [76] I am satisfied that the inconsistencies in R.P.’s description of the single touching incident at Franklin Street are consistent with her age, level of maturity and the passage of time between May 2008 and the trial of this matter.

R.P. gave her testimony as best she could and in an honest and careful manner. I do not have the same concerns about the reliability of her evidence about the Franklin Street incident as I have about the Wall Street incident. Moreover, Mr. Humchitt’s admission, which I have accepted as true, provides some corroboration of R.P.’s evidence. Where there are differences in their description of the incident at Franklin Street I have, out of an abundance of caution, accepted the version contained in Mr. Humchitt’s admission. BACKGROUND OF THE OFFENDER [ 5 ] Mr. Humchitt was born in Alert Bay, British Columbia in 1982.

His father and mother were members of the Tlowitsis First Nation. His parents separated when he was very young. His older sister lived with their mother and he lived with his father. Although the two children lived with different parents, the two parents lived side-by-side in a duplex. Therefore, Mr. Humchitt was allowed to go back and forth between the two homes. [ 6 ] When Mr. Humchitt was eight or nine years old his father married and he, his father and stepmother moved to the Musqueam Reserve in Vancouver, British Columbia. Mr.

Humchitt said there was no alcohol consumption in the family home and he did not witness any family violence. [ 7 ] When Mr. Humchitt was 17 years old he moved back to Alert Bay to live with his mother. His mother consumed alcohol on a regular basis. From the ages of 17 to 19 years he lived in Alert Bay with various family members. His stepmother told the probation officer who prepared the Pre-Sentence Report that, even before he returned to Alert Bay, he travelled back and forth between their home in Vancouver and his mother’s home in Alert Bay. Mr.

Humchitt moved to Victoria when he was approximately 19 years old. It was in Victoria where he met Ms. D.P. [ 8 ] Mr. Humchitt completed some of Grade 11 but was apparently kicked out of school because of fighting. He began working at about the age of 19 when he was living in Victoria. He obtained work in the construction industry through a temp agency. He told the probation officer who prepared the Pre-Sentencing Report that he is usually able to get work. He is currently working through the Trades Labour Corporation, a temp agency.

[ 9 ] Mr. Humchitt told the probation officer that he is in good physical and mental health. He has never been diagnosed with any mental health issues and is not depressed. Ms. D.P. told the probation officer that Mr. Humchitt has a bad temper. His father and stepmother do not disagree with this. Ms. D.P. said that during their relationship he could be very volatile. Mr. Humchitt did not offer much insight to the probation officer who prepared the Pre-Sentence Report regarding: (

a) his relationship difficulties or his temper, (

b) the offending behaviour. He declined to speak about the offence. He told the probation officer he was doing this on the advice of his lawyer. [ 10 ] In the Pre-Sentence Report the probation officer addressed sentencing considerations for aboriginal offenders. She noted that Mr. Humchitt is a member of the Tlowitsis First Nation and spent much of his childhood in Alert Bay, on the Tlowitsis Nation land. His father reported there have been many issues with alcohol on the reserve in the past and that many of those issues continue today. His father stated every single family in the area has been affected. Mr.

Humchitt’s father disclosed that prior to becoming a Christian he had his own issues with alcohol, depression and other matters. His own mother passed away when he was quite young and he attended St. Michaels Residential School for approximately three years. According to Mr. Humchitt’s father, the Tlowitsis First Nation has been deeply impacted by the residential school system and colonialism. That impact has extended to every family on the reserve. Mr. Humchitt’s father told the probation officer he has now been a Christian for 25 years and has taught Christian values to his son.

VICTIM IMPACT STATEMENT [ 11 ] R.P. prepared a brief victim impact statement. In part, she said the offence made her angry but, after telling the court what had happened, she felt more calm because she had been able to speak about it. She said her relationship with her family now is stronger. She said, in the past, her relationship with her friends was somewhat difficult because she would get angry and take it out on them. R.P’s ability to work and study did not change. R.P. said she would be scared if she had contact with Mr. Humchitt in the future. [ 12 ] Ms.

D.P., the complainant’s mother, also prepared a victim impact statement. She said, in part, that her daughter struggled for the last two years in trying to cope with anxiety and depression. Part of the depression stemmed from the fact her daughter thought this was never going to end. Ms. D.P. wrote that her daughter has had very few friends. She has had to change schools twice due to her outbursts or tantrums. Her daughter is now in an alternative school. Ms. D.P. herself was affected by this case and is struggling with her own depression.

She hated to see her daughter in so much pain and not be able to really help her. Ms. D. P. indicated she wants to have no contact with Mr. Humchitt. POSITION OF THE PARTIES [ 13 ] The Crown submits that an appropriate sentence in the circumstances of this case is a six to nine month jail sentence plus a long period of probation. The Crown points out that an offence under s. 151 of the Code attracts a minimum 45 day custodial sentence.

Accordingly, under s. 742 (1) a conditional sentence order, which allows an offender to serve a sentence in the community, is not available as this is an offence punishable by a minimum term of imprisonment. The Crown relies on R. v.

W.(L.F.) 2000 SCC 6 (CanLII) , 30 C.R. (5 th ) 73 , for the proposition adopted by the dissenting judges, that the sexual assault of a child is a crime that is abhorrent to Canadian society and therefore society’s condemnation of those who commit such offences must be communicated in the clearest of terms. [ 14 ] The Crown submits the three principles of sentencing which apply to this case are: protection of the public, deterrence, and denunciation. The Crown acknowledges that rehabilitation can never be ignored, however, in this case it should be of secondary importance. [ 15 ] The Crown says Mr.

Humchitt committed an offence which constitutes a serious breach of trust and this is a significant aggravating factor. The Crown acknowledges that the principles of sentencing set out in R. v. Gladue 1999 CanLII 679 (SCC) , [1999] 1 S.C.R. 688 , must be considered. However, the Crown submits that Mr. Humchitt’s aboriginal status does not obviate the need to balance the principles of sentencing, particularly given the seriousness of the offence. The Crown also relies on R. v.

H.(N.A.) 2007 BCPC 435 . [ 16 ] The Crown seeks the following ancillary orders: a DNA order, a firearms prohibition order, SOIRA registration, and a prohibition under s. 161 from attending in various places that would put Mr. Humchitt in contact with children under 14 years of age. [ 17 ] Mr. Humchitt does not object to any of the ancillary orders sought by the Crown. Further, he agrees that a long term of probation, up to three years, would be appropriate in the circumstances. However, he submits the appropriate jail sentence in his case should be in the range of three to six months. [ 18 ] Mr.

Humchitt submits he has no criminal record. He acknowledges he received a discharge on an earlier occasion but it was not for a related offence. He points to the fact that he was only found to have committed a single inappropriate act. [ 19 ] Mr. Humchitt acknowledges he exercised his right to remain silent regarding the offence when he met with the probation officer for preparation of the Pre-Sentence Report. However, he asks the court to bear in mind that he made a confession to the police when he was first interviewed by them.

He points out it was that confession, in fact, that was central to his conviction. [ 20 ] Mr. Humchitt says he is willing to participate in any counselling the court orders. He acknowledges the Crown has fairly set out the sentencing principles that apply in this case. He does not dispute that the primary objectives of sentencing in this case should be denunciation and deterrence but emphasizes that rehabilitation must also be taken into account. APPLICABLE LEGAL PRINCIPLES General Sentencing Principles [ 21 ] The purposes and principles of sentencing are set out in ss. 718 and 718.2 of the Code .

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to a respect of the law and the maintenance of a just, peaceful and safe society. This is done by imposing “just sanctions” which have one or more of the following objectives:

(

a) to separate offenders from society, where necessary; (

b) to deter the offender and others from committing offences; (

c) to denounce unlawful conduct; (

d) to assist in the rehabilitation of the offender; (

e) to provide reparation for harm done to the victims or the community; (

f) to promote a sense of responsibility in the offender and acknowledgment of harm done to the victim and the community. [ 22 ] Other principles which a sentencing judge must consider are: (

a) A sentence should be increased or reduced to account for relevant aggravating or mitigating circumstances relating to the offence or the offender; (

b) The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) An offender should not be deprived of liberty, if less restricted sanctions may be appropriate in the circumstances; (

d) All available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders. Since the Code prescribes a minimum sentence for the offence of sexual interference, the last two above-noted principles have no direct application in the circumstances. [ 23 ] In arriving at a fit sentence, I must ensure that the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. In other words, the sentence must be commensurate with the gravity of the offence and the moral blame-worthiness of the offender.

Sentencing is an individualized process which involves balancing the goals of society against the moral blame-worthiness of the offender in the circumstances of the offence. However, the Code specifically provides that it is an aggravating circumstance if the offender abused a child in committing the offence. It is also an aggravating circumstance if the offender, in committing the offence, abused a position of trust or authority in relation to the victim.

Principles Regarding Aboriginal Offenders [ 24 ] In imposing a sentence, I must also take into consideration all available sanctions other than imprisonment that are reasonable in the circumstances “with particular attention to the circumstances of aboriginal offenders”: see s. 718.2(e). The rationale for the reference to the circumstances of aboriginal offenders was addressed in Gladue . The Supreme Court of Canada said s. 718.2(

e) changes the method of analysis to be used in determining a fit sentence for aboriginal offenders.

Section 718.2(

e) does not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender. However, s. 718.2(

e) does alter the method of analysis a sentencing judge must use in determining the nature of a fit sentence for an aboriginal offender. [ 25 ] In Gladue , the Supreme Court of Canada set out a framework of analysis for sentencing judges to follow. It also identified the systemic and background factors that caused many aboriginal people to become involved in criminal activity.

The Supreme Court of Canada directed sentencing judges to take those factors into account and consider whether other forms of sentences, such as restorative sentencing, would be more appropriate than a prison sentence. [ 26 ] A recent decision of our Court of Appeal, R. v. Ladue 2011 BCCA 101 , considered the application of the Gladue principles in a sentence appeal involving a long term offender. One of the issues on appeal was whether the sentencing judge failed to give effect to the fact that the offender was an aboriginal offender.

In Ladue , the court said the following: The direction from the Supreme Court could not be clearer. The unique circumstances of an Aboriginal offender must be taken into consideration when passing sentence. The extent to which these circumstances will affect a sentence will depend on each case. The Court made it clear that there is no automatic Aboriginal discount of the sentence. Furthermore, the more serious the crime, the more reduced a role these circumstances will play in crafting a fit sentence: see R. v.

Wells , 2000 SCC 10 , [2000] 1 S.C.R. 207 . [para. 45] [ 27 ] In that case our Court of Appeal also noted that judges can only play a limited role in ameliorating the over-representation of aboriginal people in Canadian prisons, because the root causes of this phenomenon stretch far beyond the reach of the courts. However, despite these limitations judges have been directed by both Parliament and the Supreme Court of Canada to consider the unique circumstances of aboriginal people and to implement community based sentences wherever possible.

In particular, our Court of Appeal noted: I would also add that the choice is not simply custody or not custody. Sometimes a reduction in the length of a sentence may be appropriate to accommodate subsequent probation orders in order to achieve a restorative sentence. If a prison sentence is required because of the nature of the offence and circumstances of the offender, it may be appropriate to focus on sanctions which incorporate less time in prison, rather than continuing to increase the sentences imposed ( Gladue at para. 79 ). [para. 53] Factors to Consider for Sexual Offences [ 28 ] In R. v.

B.S.B. , [2008] B.C.J. No. 2227 , Romilly J. set out a comprehensive review of the factors to be considered in sentencing. In particular, he reviewed the factors to be considered in sentencing an offender for sexual offences. Those factors are: 1. The nature and extrinsic gravity of the offence which is effected by, in particular, the use of threats, violence, psychological threats and manipulation etc.

2. The frequency of the offences and the time period over which they were committed. 3. The abuse of trust and the abuse of authority which are involved in the relationship between the offender and the victim. 4. The disorders underlying the commission of the offences: the offender’s psychological difficulties, disorders and deviancy, intoxication, etc. 5. The offender’s previous convictions: proximity in time to the offence charged and the nature of the previous offences. 6.

The offender’s behaviour after the commission of the offence: confessions, collaboration in the investigation, immediate involvement in a treatment program, potential for rehabilitation, financial assistance if necessary, compassion and empathy for the victims (remorse, regret, etc.). 7. The time between the commission of the offences and the guilty verdict as a mitigating factor depending on the offender’s behaviour (the offender’s age, social integration and employment, commission of other offences, etc.). 8.

The victim: the gravity of the attack on his or her physical or psychological integrity reflected by, in particular, age, the nature and extent of the assault, the frequency and duration of the assault, the character of the victim, his or her vulnerability (mental or physical handicap), abuse of trust or authority, lingering effects, etc. A FIT SENTENCE IN THIS CASE [ 29 ] The case law is replete with references to the fact that sentencing is an individualized process in which the sentencing judge has considerable discretion to fashion a fit sentence.

In this case, given the nature of the offence, it is clear that denunciation and deterrence are the primary objectives. Rehabilitation must not be ignored and I have taken this objective of sentencing into account. However, I have given primary consideration to the objectives of denunciation and deterrence. This case involves the abuse of a young person by her stepfather, who was in a position of trust. The complainant was 10 years old at the time of the offence.

Section 718.2 specifically provides that offences involving the abuse of a young person under the age of 18 or the abuse of a position of trust or authority in relation to the victim are aggravating circumstances. [ 30 ] The mitigating circumstances in this case are that Mr. Humchitt does not have a related criminal record. I was advised that he has been convicted of an unrelated offence and given a discharge. Prior to his conviction for sexual interference that was the only matter on his record. Further, the incident which led to his conviction involved a single incident of touching the complainant.

In noting this I am not minimizing the nature of the offence or its impact on the complainant; I am simply taking into account the frequency and the nature and extrinsic circumstances of the offence. [ 31 ] In R. v. B.S.B. the court set out some factors relating to the offender which should be taken into account in sentencing. However, in this case, I have little information to assist me in assessing whether Mr. Humchitt has any insight into his offending behaviour. Furthermore, because Mr.

Humchitt refused to speak about the offence to the probation officer who prepared the Pre- Sentence Report, I am not able to assess his attitude and/or understanding regarding the offence. [ 32 ] In crafting a fit sentence I am required to take into account the gravity of the offence and the moral blameworthiness of the offender. At the time of the offence, the complainant was Mr. Humchitt’s stepdaughter. She was only 10 years old. By touching her inappropriately, Mr. Humchitt abused a position of trust.

In his role as parent he had a duty to protect R.P., but instead of doing so he took advantage of her. [ 33 ] In arriving at a fit sentence in the circumstances of this case, I have taken into account the objectives of sentencing, the application of the Gladue principles and the submissions of counsel. In all the circumstances, I find that a period of six months in jail is the appropriate sentence for Mr. Humchitt. ANCILLARY ORDERS [ 34 ] In addition to the six month jail sentence I make the following ancillary orders: 1.

DNA order (s. 487.051) – Sexual interference is a primary designated offence, hence the accused must provide a suitable sample of his DNA. 2. SOIRA registration (s. 490.12) – Sexual interference is a designated offence under s. 490.011. Accordingly, I find that registration pursuant to ss. 490.012 and 490.013 is appropriate for a period of 10 years. 3. Firearm prohibition (s. 109) – The accused is prohibited from possessing weapons and the other items enumerated in s. 109(2)(

a) for a period of 10 years beginning from the date he is released from imprisonment as that term is defined in s. 109(2)(

a) of the Code . Further, the accused is prohibited from possessing weapons and devices enumerated in s. 109(2)(

b) for life. 4. Prohibition from certain places (s. 161) - The accused is prohibited from attending a public park or public swimming area where persons under the age of 14 years are present or can reasonably be expected to be present, or a day care centre, school ground, playground or community centre for a period of 4 years. PROBATION ORDER [ 35 ] Mr. Humchitt will be placed on probation for a period of three years. This period of probation will follow his release from jail. The conditions of his probation are set out in Appendix A.

_______________________________ The Honourable Judge M. F. Giardini Provincial Court of British Columbia APPENDIX A CONDITIONS OF PROBATION R. v. Humchitt Attached to Reasons for Sentence Dated April 13 , 2011 1. You must keep the peace and be of good behavior. 2. You must attend court when required to do so by the court. 3. You must notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation. 4.

You must report to a probation officer in person at 275 East Cordova Street, Vancouver, B.C. within 72 hours of your release and thereafter as and when directed by your probation officer. 5. You must reside as directed by your probation officer. 6. You must not change your place of residence without the prior written consent of your probation officer. 7. You must have no direct or indirect contact with persons under the age of 14 years of age unless in the company of an adult over the age of 25 years who has been made aware in advance of the offence you committed in this case. 8.

You must advise your probation officer if you enter into a relationship (which includes living with or dating) with any person who has children under the age of 18 years. 9. You must have no direct or indirect contact with D.P. (the complainant’s mother), R.P. (the complainant) and L.P. the complainant’s sister. 10. You must not attend within a 2 block radius of any known residence, place of employment or educational facility of R.P. 11. You must not attend within a 2 block radius of any known place of employment of D. P. 12.

You must attend, participate and complete the Sex Offender Treatment Program through Forensic Outpatient Services. 13. You must attend, participate and complete the Community Corrections Sex Offender Maintenance Program and any other counseling or core programs you are directed to attend by your probation officer.