R. v. Jefferson Date:, 2014 BCPC 255

Citation: R. v. Jefferson Date: 20141017 2014 BCPC 0255 File No: 199716-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANDREW AURIE JEFFERSON ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: C. Pike Counsel for the Defendant: E. Warren Place of Hearing: Surrey , B.C. Dates of Hearing: August 26 and 27, 2014 Date of Judgment: October 17, 2014

[ 1 ] THE COURT : Andrew Aurie Jefferson has pled guilty on Information 199716-2-C on Count 1, that on or about the 8th of June 2013 at Langley, British Columbia, he did rob R.P., contrary to s. 344 of the Criminal Code . He is before the court today to have sentence imposed. The plea was entered on January 8th of 2014. [ 2 ] On January 10th of 2014 on the application of the Crown with the consent of Mr. Jefferson, I ordered he be remanded for an assessment pursuant to s. 752.1 because the Crown contemplated an application under s. 753 or 753.1 that the court find Mr.

Jefferson to be a dangerous offender or a long-term offender. The assessment was completed by Dr. Hugues Hervé and his report was filed March 25th, 2014. It is Exhibit 2 in these proceedings. A supplemental letter responding to a specific inquiry by Crown counsel was filed August 12th, 2014 and is Exhibit 3. The sentencing hearing took place on August 26th and 27th, 2014 and the imposition of sentence with reasons was adjourned to today's date. [ 3 ] The Crown seeks a sentence of imprisonment in the four to five-year range less credit for pre-sentence custody to be granted on a one-for-one basis.

The Crown seeks a finding pursuant to s. 753.1 that Mr. Jefferson is a long-term offender and that he be subject to supervision under that

section for ten years, which is the maximum period available. The Crown seeks a mandatory firearms prohibition order for life under s. 109 and a DNA databank order in respect of which this is a primary designated offence. [ 4 ] The defence seeks a custodial sentence in the provincial range, which would preclude the imposition of long-term offender supervision, with credit for pre-sentence custody on an enhanced one to 1.5 basis followed by lengthy probation with protective and rehabilitative terms.

If the court concludes a federal sentence should be imposed, the defence says it should be at the lower end nearer two years, and if long-term supervision is to be ordered it need not be at the maximum ten-year level but in the five-year range. The ancillary orders are not contested. [ 5 ] At the hearing I heard evidence called by the Crown from Elena Henriksson, a senior probation officer who supervised Mr. Jefferson following his release in November 2011, and from Patricia Shea, a parole officer in the Federal Corrections Service.

She has expertise supervising offenders in the community, including sex offenders, and in respect of long-term supervision orders. Mr. Jefferson gave evidence on his own behalf during the hearing. Various exhibits were filed; among those is a large binder of 49 tabs which includes reports and documents related to Mr. Jefferson's custodial history with the federal Corrections Service and which is referenced by Dr. Hervé in his report, and materials relating to Mr. Jefferson's subsequent supervision and conduct in the community.

An agreed statement of facts is set out at tab 2 of the Crown sentencing materials which is filed as Exhibit 4. [ 6 ] For purposes of these reasons, I will summarize the agreed facts in respect to this offence as follows. At 7:30 p.m. on June 8th of 2013 the female victim approached her vehicle in the parking lot of an apartment building in Langley, British Columbia. She saw a male unknown to her at that time but now known to be Mr. Jefferson, walking in the parking lot. He turned to look at her. As she approached her vehicle and unlocked it remotely, Mr.

Jefferson came toward her and said, "You are being stabbed, I'm taking your car." He continued to approach and repeated this phrase more sternly and aggressively. From behind, he placed the victim in a bear hug such that she could not move her arms. He held a small, dull-bladed knife in his right hand. He stuck it towards her stomach. As he stuck the blade into her stomach she bent forward to try to prevent the blade penetrating into her body. A small laceration on the stomach was caused by the blade. That laceration is visible in the photograph attached to the agreed statement of facts.

As this occurred, the victim dropped her keys. Mr. Jefferson let go of the victim, picked the keys up and got into the driver's seat of her vehicle and drove away. [ 7 ] A witness observing events from a nearby apartment building called 9-1-1. Within five minutes the vehicle was observed by police on the Langley Bypass. The officer followed the vehicle along various streets for about ten minutes, during which the vehicle was confirmed to be the victim's car. Mr. Jefferson then drove into the parking lot of a business complex. The officer blocked the vehicle there and Mr. Jefferson was arrested.

He said, "I'm fucked. I'm going away for awhile." An odour of liquor was detected on his breath. Mr. Jefferson was interviewed by police approximately four hours after his arrest. The transcript of that interview is attached to the agreed statement of facts. I will refer to it shortly. Mr. Jefferson has been in custody since his arrest, a total of 497 days by my calculation. He has not sought his release. [ 8 ] The victim has filed an impact statement, which I will now refer to. Damage was done to her vehicle by Mr. Jefferson and she was responsible for the deductible.

More importantly, it is clear that she has suffered significantly as a result of this offence. The wound on her stomach, although relatively minor, has left a small scar and is a constant reminder of this attack. The emotional impact has been significant. At the date of the statement in January of this year the victim continued to feel violated and to suffer fear in certain circumstances in public, leading to heavy breathing and shaking, which has improved. A heightened suspicion of others, however, has continued. Her sleep has been affected.

She has felt tired and has suffered chest and joint pain due to her anxiety. These emotional effects have continued to improve as time has passed, but have not disappeared. She has received counselling and has the support of family and friends. Traumatic events involving violence or threats of violence often instil fear and anxieties which victims may continue to experience long after the events. This victim's circumstances are consistent with such experiences.

Hopefully, over time her anxieties and sense of loss of personal security will disappear entirely, but that does not always happen. [ 9 ] I will now address the following issues: 1. What is the appropriate conventional jail sentence to be imposed on Mr. Jefferson for this offence? 2. In respect of the conventional sentence of imprisonment, what credit should be given for pre-sentence custody? 3. If a federal sentence of imprisonment of two years or more is imposed, should Mr. Jefferson be designated a long-term offender and placed on a supervision order? 4. What should the duration of that order be if imposed?

[ 10 ] Mr. Jefferson has a prior criminal history. [Text removed for publication.] As an adult, he has convictions in 2006 for three counts of failing to attend court and theft under $5,000. In 2007 in Calgary he received an effective six-and-a-half year sentence on pleas of guilty to sexual assault with a weapon, sexual assault, assault, three counts of forcible confinement and three counts of uttering threats. The sentence included 2.5 years of pre-sentence custody credit. He served the remaining four years to his warrant expiry date.

He has two convictions for breach of recognizance in 2012, which I will refer to momentarily. [ 11 ] The 2007 offences in Calgary are significant in addressing the issues before me today. Mr. Jefferson was 21 at the time of those offences. The Crown had sought a global ten-year sentence and appealed the effective 6.5-year sentence to the Alberta Court of Appeal. The Crown's appeal was dismissed. In an appendix to those reasons the Court of Appeal provided a

summary of the facts of each of the three attacks on three unsuspecting women who Mr. Jefferson did not know. I will summarize those attacks briefly. On March 18th of 2006 at 7:00 a.m. the victim left her work to walk to her nearby home. Mr. Jefferson approached her from behind and grabbed her by the waist, put his arm around her and told her, "Come with me. Play cool." He told her he had a knife to her back. She felt what she believed was his hand, not a knife in her back. She began to fight him. She tried to burn him with a cigarette which she was holding. She tried to knee him. He pushed her away.

He tried to push her to the ground. She brought him down with her. She screamed for help but no one was around. She broke free and ran to her work. Police were called. Mr. Jefferson ran off. [ 12 ] Three weeks later, on April 8th of 2006, Mr. Jefferson attacked a woman as she left her home at 6:30 a.m. to go to work. He grabbed her from behind in a bear hug and told her not to scream or he would kill her. When she begged him not to hurt her, he said he would not if she was quiet. He took her to a secluded place, told her to get onto her stomach. He laid on top of her and rubbed against her.

He told her to remove her pants. He then removed her shorts and underwear. He forced sexual intercourse over three to four minutes. He touched her breasts. He tried to kiss her. When he was done he asked for her ID but she said that she had none with her. He told her not to tell anyone, and he ran off. [ 13 ] On May 10th of 2006 the third victim was returning home from a 7-Eleven at about 1:00 a.m. Mr. Jefferson confronted her, holding a knife with a six-inch blade. He came behind her and held the knife to her. He took hold of her and told her not to speak and she would not be hurt.

He told her to get onto her knees, to do what he said and not to make a sound and she would not be hurt. He put the knife down. He touched her breasts and rubbed against her. When she resisted his initial attempts to pull down her pants he told her that if she did not want to be hurt she had to be quiet. He pulled down her pants and underwear. He touched her vagina. He forced her to touch his erect penis. He forced sexual intercourse for a period of five to ten minutes. He suddenly stopped and told her to pull up her pants. Holding the knife, he directed her into a nearby alley.

He held her arm and carried the knife in the other hand held near to her stomach. She feared he would kill her. He again told her to get to her knees. He removed her pants and attempted to penetrate anally. When she screamed he stopped and instead penetrated her vaginally. He touched her breasts, he made sexually degrading comments; he carried out other degrading sexual acts. He attempted to force oral sex. He eventually ran off.

The attack lasted up to 45 minutes. [ 14 ] The Alberta Court of Appeal in dismissing the Crown's sentence appeal noted at paragraph 21 that the sentencing judge had the benefit of a report which included a risk assessment. The court noted that the sentencing judge: ...understood that without treatment the Respondent [that is Mr. Jefferson] was a moderate to high risk to re-offend violently. He noted that the FAOS report diagnosed the accused as having a polysubstance dependency, personality disorders and anger problems. ( R. v. Jefferson , 2008 ABCA 365 ) [ 15 ] Mr. Jefferson is now 29 years of age.

He was 28 at the time of the offence which I am addressing here. Pending his release on November 13th of 2011, on November 9th, 2011 he was placed on a recognizance under s. 810.2 of the Criminal Code for two years on the basis that there were reasonable grounds to fear he would commit a serious personal injury offence. The recognizance and the extensive terms are included at tab 34 of the binder Exhibit 6. The recognizance included conditions requiring Mr.

Jefferson attend and participate in assessments as directed by the probation officer and that he advise the probation officer of any close relationship with a female person and not continue the relationship until the female person had been informed of his criminal record in the presence of the probation officer. [ 16 ] On August 22nd of 2012 he failed to comply with the assessment condition respecting an assessment of his risk to reoffend. Following his arrest for that breach he was sentenced to a one day time served sentence. [ 17 ] Between December 1st, 2012 and December 31st, 2012, Mr.

Jefferson had an intimate encounter with a 17-year-old female person which he did not bring to the attention of the probation officer as was required in the 810.2 recognizance. On February 21 of 2013 he was sentenced to a two-month and ten-day jail sentence less ten days credit for pre-sentence custody. He was also placed on a probation order for three years with detailed conditions, including conditions for assessment, risk assessment, treatment and counselling, including sex offender treatment and counselling if so directed. He was placed on a curfew from 10:00 p.m. to 7:00 a.m. to be monitored electronically.

He was not to be alone with any female person except in limited professional or court-related circumstances. [ 18 ] Mr. Jefferson was on the 810.2 recognizance and the probation order at the time of the offence which I am dealing with today. He had very recently been sentenced on two breaches and would have been released on the most recent of those breaches, that is the two- month jail sentence, just a matter of months before he committed the robbery offence on June 8th of 2013. [ 19 ] Reports document Mr. Jefferson's early years as dysfunctional and chaotic.

His parents suffered with significant drug and alcohol dependence. His father was abusive. Dr. Hervé's report notes a history of frequent moves, neglect, abandonment, apprehension, foster placement, poverty, social isolation and modelling of conflictual and violent relationships. Mr. Jefferson's parents separated when he was young. His mother had a number of abusive partners who encouraged her addictions. Mr. Jefferson observed his mother's partners abuse her. His mother was at times suicidal. Mr. Jefferson had to intervene from time to time at a very young age to protect his mother from herself. [ 20 ] Mr.

Jefferson evidenced emotional and behavioural problems from a young age. He engaged in criminal activity before he was 11. From that age he was in and out of foster care. By 15, Mr. Jefferson says he was involved with a local gang, involved in criminal

activity and selling drugs. He stated that he was sexually promiscuous from a young age. In evidence he says he completed Grade 9, but there can be no doubt his schooling experience was significantly compromised. His work history was sporadic. An intimate relationship in his late teens may have led to some subsidence in his dysfunctional lifestyle. Dr. Hervé documented what followed on the end of that relationship at page 8 of his report where he stated the following: He stated [that is Mr. Jefferson] that he self-medicated with alcohol, drugs and promiscuity.

He stated that he lived day-to-day, supporting his lifestyle through a combination of legitimate work and drug trafficking. He described a steady decline in his functioning, for example, deteriorating mood, suicidal ideation, escalating drug use, difficulty maintaining employment and increased interpersonal sensitivity leading to at least one unprovoked bar fight with a male in a bar. [ 21 ] The report documents a criminal lifestyle leading up to the sexual offending in the spring of 2006 which is not fully reflected in Mr. Jefferson's record. Although I am not sentencing Mr.

Jefferson here on the basis that his past criminal record should be viewed as enhanced by these acknowledgements, his acknowledgement of a criminal lifestyle provides a more complete picture of his circumstances leading into those 2006 offences. The report documents a "longstanding, varied and chronic drug abuse history that dates back to about the age of eight or 11 years." Mr. Jefferson engaged minimally in substance abuse treatment in the community. During his federal incarceration he completed the national Moderate Intensity Substance Abuse Program. Following his release, Mr.

Jefferson turned to substance abuse again, including alcohol. [ 22 ] Mr. Jefferson's mental health history extends back to his childhood. He was prescribed medication for ADHD which his mother did not follow through on. He has struggled with depression and attempted suicide on several occasions during his teenage years. He did not access resources in the community. During his federal sentence he was resistant and not cooperative in engaging therapeutic resources on any sustained basis.

He did, however, undertake the Anger and Emotions Management Program in federal custody and made gains in respect to thinking patterns, emotional arousal management, assertiveness and communication skills and in relapse prevention planning. Although Mr. Jefferson made gains during the Anger and Emotions Management Program and the Moderate Intensity Substance Abuse Program in custody, he failed to sustain those gains following release. [ 23 ] A significant concern respecting Mr. Jefferson is his failure to complete the High Intensity Sex Offender Treatment Program in custody.

Although initially enrolled, his behaviour, engagement and level of cooperation deteriorated. He was suspended from the program after three weeks. That program was seen as the means to address the diagnostic risk factors identified as relevant to his sexual offending. The reports document a series of roadblocks and arguments put up by Mr. Jefferson to justify his lack of cooperation and engagement and to see that program through. Although he sought to enrol again after some success in the Substance Abuse and Emotions Management Programs, he was not accepted at that time.

There is evidence in the reports that he refused to recognize that his sexual offending was an issue requiring programming. [ 24 ] In March 2010 the National Parole Board determined Mr. Jefferson remained an untreated high risk sexual offender and ruled that he be held to the warrant expiry date. Thereafter, he was again enrolled in the High Intensity Sex Offender Program. The report states that again he refused to acknowledge that there remained issues to address. He missed ten sessions. His performance in the program deteriorated.

He was referred for individual counselling but was again resistant and uncooperative. His disruptive and disengaged conduct led to suspension from the High Intensity Sex Offender Program. The report further details a consistent record of disruptive conduct in the institution. [ 25 ] As I earlier noted, on his release in November of 2011 Mr. Jefferson was considered to be an untreated high-risk sex offender subject to conditions on a s. 810.2 recognizance. On release, Mr. Jefferson planned to find a place to live and to find work in the Okanagan. However, with his background he was not welcome there.

He described in his evidence difficulties he faced and the moves that he had to make before finding a room in Surrey and work. He asserts that the supervision which he had to endure in the course of finding a residence and a job in the community which required he inform prospective landlords and employers of his past, contributed to his failure to stabilize and succeed. He was not welcome in several municipalities; landlords were not inclined to offer him a room and employers were resistant to hiring him.

When he finally found a room to rent it was among other tenants who were drug users, and he eventually relapsed. Although he found work, Mr. Jefferson says he was laid off because the employer was not prepared to accommodate appointments which were required of him with the probation officer, police and the forensic clinic and others which could only be managed or available during working hours. [ 26 ] Elena Henriksson is an experienced probation officer trained to work with offenders in Mr. Jefferson's circumstances. She assumed responsibility as his supervisor on his release in November 2011.

She reviewed background material relating to Mr. Jefferson which is included in Exhibit 6. [ 27 ] Sex offender treatment in the community is not available to people on s. 810.2 orders through the forensic clinic. Ms. Henriksson made a number of referrals to forensic to address other issues and in an effort to engage Mr. Jefferson with the resources at that clinic. Exhibit 9 summarizes that history. It was substantially unsuccessful. She referred Mr. Jefferson to a low to moderate intensity sex offender program run by Dr. Hanley in the summer of 2012. Issues arose, Mr.

Jefferson was disruptive and the first breach of his recognizance occurred. In any event, such a program is not ultimately going to address the challenges of a high risk offender. [ 28 ] Ms. Henriksson referred Mr. Jefferson to the Substance Abuse Management Core Program. Exhibit 8 describes that program. It is intended to prepare offenders for more intensive treatment. It involves 12 sessions. It is conducted in a group setting. Mr. Jefferson was resistant to group settings and did not attend any sessions. He was referred to the Violence Prevention Core Program.

It is designed to reduce recidivism related to aggressive behaviours. It involves ten sessions conducted in a group setting. Mr. Jefferson did not attend that program. Ms. Henriksson engaged Mr. Jefferson herself in one-on-one sessions to encourage him to be open-minded and receptive. Although some of these sessions went better than others, little appears to have been achieved up to the point that Mr. Jefferson committed the offence before me in June of 2013. [ 29 ] Although Mr. Jefferson stabilized somewhat his living and employment circumstances in the community while under Ms.

Henriksson's supervision, his conduct in respect to women and his obligation to inform his probation officer of such associations and to accommodate those controls led to the second breach conviction. Throughout the supervision period in the community, Mr. Jefferson was resistant to programming and little was accomplished to address his circumstances as an untreated sex offender considered high risk. He missed appointments from time to time with Ms. Henriksson. He told her he self-medicated by varying prescription doses and using marihuana and crystal meth from time to time. [ 30 ] The tenor of Mr.

Jefferson's evidence is that he was caught in a conundrum. He could not obtain the treatment he needed, that is a high intensity program, while on an 810.2 order in the community. He wanted to be able to live a normal life as he called it, that is, be involved in a close relationship with a woman and achieve stable living and employment circumstances. So long as he remained untreated, he would not be able to achieve this goal. He portrays the offence committed on June 8th, 2013 was carried out essentially to put himself in a position to obtain that treatment in custody.

He says that although he was resistant to treatment in the past, that is no longer the case. He sees the error of his earlier resistance. He informed Dr. Hervé that he had used cocaine earlier on the day of the offence. He said in evidence on this hearing that he was using drugs that day and not in a good head space. In cross-examination he said this was the lifestyle that he was living at the time. He acknowledged to Dr. Hervé that although he did not want to hurt anyone, he realized this was a violent act which would likely have a lasting effect on the victim. [ 31 ] I have reviewed the statement which Mr.

Jefferson gave to police following his arrest, which is included with the agreed statement of facts. I would describe Mr. Jefferson's attitude as inconsistent with what might be described as a call for help. He is, of course, entitled to the right to remain silent and he does not admit to the acts surrounding the confronting of the victim and the taking of her vehicle. He does assert an attitude described by Dr. Hervé in which he casts himself as the victim. [ 32 ] At page 39 of his report, Dr. Hervé stated the following: Mr.

Jefferson stated that although he experienced various roadblocks following his release and he could therefore easily go back to old patterns of blaming the system, he now realizes that being placed on an 810.2 with so many conditions, being under constant surveillance and being treated as a high risk offender is due to the fact that he failed to effect positive changes in his life during his first federal sentence. He stated that he now realizes that he needs to live more responsibly in order to effect positive changes for the future. [ 33 ] While on remand since his arrest, Mr.

Jefferson completed the Violence Prevention Program in July 2014 and a series of programs addressing essential skills for success which covered employment, nutrition and health relationship issues. He has not done the Substance Abuse Management Program. Exhibit 10 summarizes disruptive encounters and conduct by Mr. Jefferson up to February 2014 before completion of the program referred to. Mr. Jefferson said in evidence that his attitude has changed.

Sex offender programming is not available on remand. [ 34 ] Patricia Shea, an experienced federal parole officer, said that when in custody federally, high, medium and low intensity sex offender programming is available. Once returned to the community, if the offender has completed a sex offender treatment program in custody he will be referred to the maintenance program. The original program and the maintenance program are group sessions. Some one-on-one counselling may occur in some circumstances. Ms. Shea said that she has authority to return an offender to custody if he breaches parole.

If he is on a long-term supervision order he could only be held for 30 days. She must recommend the laying of an Information. It is then for the National Parole Board to revoke long-term supervision. [ 35 ] In his evidence, Mr. Jefferson asserts that he now understands that he placed himself in the situation of intense supervision following his release in 2011 because he did not take the programming required. He asserts that he has changed. He argues he is not a high risk sex offender. He notes he has not offended sexually since his arrest in 2006.

He did not reoffend sexually following his release in November 2011. He has better control of his emotions and he has not used drugs since his arrest in June 2013. He asserts he is now on a positive path and would like the opportunity to enter a recovery program in the community through an organization such as Vision Quest. He asserts a sentence in the provincial range will allow this to occur with a time served sentence. He says his circumstances now do not compel a long-term supervision order. [ 36 ] I will first address the sentence to be imposed for robbery on June the 8th of 2013. I accept it has been Mr.

Jefferson's intention to plead guilty from an early stage. Mr. Warren, on behalf of Mr. Jefferson, says I should focus on this offender's stated commitment to address the stressors in his life, that he is now motivated to effect change and is a different person today. He has a plan to address substance abuse and a much improved ability to address emotional stresses. He argues I should not be overly-influenced by Mr.

Jefferson's past sexual offending, but view the current offence instead in the context of the intense scrutiny he was subject to and the impact of his chaotic early life on his inability to deal with that situation. He argues I should view the offence in the context of a desperate man who, in desperate circumstances, acted as he did in order to engage counselling and treatment which he believed would ultimately relieve him of that intense scrutiny and allow him to live a normal life and enjoy intimate relationships.

The defence says rehabilitative objectives should in the circumstances lead to a sentence in the provincial range less pre-sentence credit. [ 37 ] In assessing a fit sentence, I must consider the purpose and principles of sentencing set out in s. 718 to 718.2 of the Criminal Code . This was an offence of violence. No significant long-term physical injury was caused to this victim, but the impact emotionally was and likely in certain circumstances will continue to be significant. Mr.

Jefferson has a past criminal history which includes significant offences of violence, including significant offences of sexual violence perpetrated on unsuspecting women. Although this was not a sexual offence, it was violent and directed towards a woman who was unknown to the offender and in which he used a weapon to instil fear and effect the theft of her car.

Whatever his purpose may have been, he chose to effect that purpose by victimizing an unsuspecting person in a threatening and violent way. [ 38 ] An offence such as this demands a sentence which delivers a strong statement of denunciation in the community. It must be a sentence which to the extent possible works to deter others. Mr. Jefferson says in essence the court should not be concerned that he will reoffend, that he is deterred from acting this way in the future. But beyond his assertion and some modest but informal progress in

addressing substance use while on remand and some basic programming directed to violence prevention, the significant concerns identified following the 2006 offence remain essentially unaddressed. The risk identified following those offences and on Mr. Jefferson's release to the community eventually were realized. A significant offence of violence was committed. [ 39 ] The structured environment of remand has contributed to a positive outlook and a commitment to address certain stresses, but there is no evidence before me on this sentencing from which I could conclude that Mr.

Jefferson has overcome the risk factors identified in Dr. Hervé's report such that the significant intensive treatment and counselling outlined there is no longer necessary before release. Mr. Jefferson's ongoing rehabilitation is an important sentencing consideration, but in all these circumstances it must advance initially within a custodial sentence which extends beyond the provincial range. [ 40 ] Mr. Jefferson's moral blameworthiness in respect of this offence is significant. He committed the offence while on two court orders just shortly after release following a jail sentence for breaching the 810.2 order.

It was his second breach. His past history of compliance while on community supervision is generally unimpressive. I have reviewed the authorities provided by Crown counsel and particularly the kinds of factors which the Court of Appeal for this province set out in cases such as R. v. Brogan , 1999 BCCA 278 (see paras. 10 and 14) as assisting in determining a fit sentence. Those factors are not exhaustive. Varying combinations of factors will be present from one case to the next, and the circumstances of each offence and offender will differ from one case to the next.

Each complex of factors and the weighing to be applied will be unique. [ 41 ] In this case, that combination and weighing of factors leads me to conclude that a fit custodial sentence would be four years' incarceration, less credit for pre-sentence custody. I will now address what that credit should be. [ 42 ] The defence says that Mr. Jefferson has not sought his release and therefore the basis on which to cap his credit pursuant to s. 719(3) at one-to-one is not engaged.

He says it is open to the court to grant enhanced credit in the circumstances pursuant to s. 719(3.1) up to 1.5 days for each day of pre-sentence custody. In R. v. Summers , 2014 SCC 26 , the Supreme Court of Canada earlier this year provided guidance to sentencing courts on the application of pre-sentence custody under these sections. The courts should assign credit reflecting quantitative considerations accounting for lost eligibility for early release and parole arising from pre-sentence custody, and qualitative factors arising from the relatively harsher conditions of pre-sentence detention.

The loss of early release eligibility alone will often justify enhanced credit. The court then said: Of course, a lower rate may be appropriate when detention was a result of the offender’s bad conduct, or the offender is likely to obtain neither early release nor parole. ( R. v.

Summers , supra , at paras. 70 and 71 ) [ 43 ] At paragraph 75 of the Summers decision the court stated the following: For many offenders, the loss of eligibility for early release and parole will justify credit at a rate of 1.5:1. …it is not an “automatic or a foregone conclusion that a judge must grant credit at more than 1:1 based on loss of remission or parole”...

If it appears to a sentencing judge that an offender will be denied early release, there is no reason to assign enhanced credit for the meaningless lost opportunity. [ 44 ] The court concluded that sentencing courts may consider and draw inferences about an offender's future conduct in prison and the likelihood of parole or early release. The onus is on the offender to justify enhanced credit. Generally speaking, pre-sentence custody will lead to an inference of lost eligibility for parole or early release.

However, the court noted there will be those particularly dangerous offenders who commit such serious offences that early release or parole will not be available. Where such early release or parole is unlikely, enhanced credit may not be justified. ( R. v. Summers , supra , at paras. 77 through 79) [ 45 ] Here, although Mr. Jefferson did not apply for release, it is evident on all the circumstances and in the absence of any viable release plan that would secure the safety of the community and bearing in mind prior breaches of the 810.2 recognizance, had he applied he would have been detained.

Similarly, in all of the circumstances with the past history and the absence of significant steps to address underlying stressors in a comprehensive way, it appears unlikely Mr. Jefferson would be released on parole or early release. The qualitative considerations here do not weigh heavily in the balance. [ 46 ] I conclude a basis to justify enhanced credit is not made out. I decline to grant enhanced credit. Mr. Jefferson will be credited for 497 days of pre-sentence custody to today's date, which I treat as 16 months and 17 days.

I impose a further custodial sentence of two years, seven months and 13 days. [ 47 ] I will now address the Crown's application to have Mr. Jefferson designated a long-term offender.

Section 753.1(1) states the following: The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that (

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (

b) there is a substantial risk that the offender will reoffend; and (

c) there is a reasonable possibility of eventual control of the risk in the community.

[ 48 ]

Section 753.1(2) sets out a presumption respecting substantial risk that the offender will reoffend. The Crown does not rely on the presumption here and I conclude it does not apply here. In reaching that conclusion I have in mind the decision of Mr. Justice Barrow in R. v. Trainor , 2010 BCSC 829 at para. 61 . [ 49 ] With my decision that Mr. Jefferson's sentence must exceed two years, counsel are agreed that the issue as to whether Mr. Jefferson should be designated a long-term offender turns on consideration of whether there is a substantial risk that he will reoffend.

Further, even were I to conclude he meets all of the requirements of s. 753.1(1) there remains a residual discretion to decline to make the designation sought. I note the Court of Appeal in this province in R. v. J.W.R. , 2010 BCCA 66 , has said that the assessment of the likelihood of recidivism does not lend itself to precise articulation. The psychiatric and psychological information is provided to assist the court in assessing the danger the offender presents, ...not to definitively predict recidivism.

In the end, the assessment was one for the trial judge to make after considering all the evidence, including psychiatric and psychological assessments. ( R. v. J.W.R. at para. 41 ) [ 50 ] In his report, Dr. Hervé noted that Mr. Jefferson asserted he was not the same person as he used to be. He asserted he had made progress in addressing risk factors, that he was better able to control his emotions and had adopted Buddhist practices to assist. He argued that his current offence was not sexual and he had not offended sexually since 2006.

He pointed to support from his mother, sister and grandmother and that he will undertake the sex offender program in custody. His institutional behaviour which was problematic had moderated. He pointed to the Criminal Addictive Thinking Program and the Essential Skills Program he had or was taking. To this could be added the Violence Prevention Program which he has recently completed. He is on medication to manage his emotions. [ 51 ] Dr. Hervé administered the Personality Assessment Inventory test and the Psychopathy Checklist Revised.

The former measures psychopathology and provides information respecting the presence of major mental disorder and assists in assessing dysfunctional personality patterns or disorders. The results suggest "marked problems with substance abuse. His drug use is associated with marked impairments in functioning. He also reported problems with alcohol use." The scores suggest Mr. Jefferson is inclined to feel he is being treated inequitably and that he is being undermined by others. Dr. Hervé noted that Mr.

Jefferson reported a positive inclination toward personal change, the value of therapy and the importance of responsibility. Significantly, he concluded: However, the nature of some of these problems suggests that treatment would be fairly challenging with a difficult treatment process and the probability of reversals. (p. 43) [ 52 ] The Psychopathy Checklist measures the construct of psychopathy, that is a personality disorder characterized by specific character and behavioural traits. Mr.

Jefferson's scores suggest problematic personality features including a fragile ego, a sense of entitlement, demanding interpersonal style, limited remorse or empathy and an inclination to project blame on others for his failures. He is prone to impulsivity and poor behavioural controls. [ 53 ] Based on the profile developed and the review of file material and interviewing, Dr. Hervé diagnosed moderate alcohol use disorder, mild marihuana use disorder, all in remission while in the controlled environment of remand. Mr. Jefferson does not have a major mental disorder but struggles with depression and anxiety. Dr.

Hervé diagnosed borderline personality disorder and antisocial features, fragile ego and insecurities, significant problems with emotional self-regulation. [ 54 ] Mr. Jefferson's personality places him at risk to experience significant negative affect such as stress, anxiety, depression and anger. The following factors contribute to that risk: substance use, personality issues, dysfunctional childhood, the self-perpetuating nature of his untreated mental health problems and his continuing failure to take personal responsibility to effect positive change. I note here that Mr.

Jefferson asserts a determination to effect positive change. I add as well, that although Mr. Jefferson asserted to Dr. Hervé that he had the support of his mother, sister and grandmother in the community, no specific information was provided confirming that or to explain what they could do to assist his rehabilitation. [ 55 ] In his report, Dr. Hervé outlined the series of risk factors present at the time that Mr. Jefferson was sentenced in 2007 which led to a conclusion that he was a moderate to high risk to reoffend violently, including in a sexual manner. The recommendations made at that time were: (

a) extensive psychotherapy to address issues regarding chronic low self-esteem, loss of control, vulnerability and high rejection sensitivity; (

b) sex offender treatment, anger management and individual psychotherapy while incarcerated, the latter to address unresolved childhood issues, coping, stereotypes and tolerance to frustration; and (

c) abstain from all substances and participation in intensive substance abuse programming. [ 56 ] During his first federal sentence Mr. Jefferson was rated very high, increasing to severe risk to reoffend violently or sexually, and moderate risk to intimate partners. Little was accomplished during that sentence or following his release up to his arrest on the current offence to address this complex of issues in the intensive and committed manner required. Indeed, Mr. Jefferson's underlying risk factors worked against his best interests to effectively derail that progress.

Testing, interviewing and assessment conducted by Dr. Hervé for this sentencing indicates these issues remain of great concern. He concluded at page 54 of his report as follows: Mr. Jefferson remains at a high risk for sexual recidivism. His history supports that he is significantly at high risk to reoffend in an

impulsive, reactive and opportunistic manner toward adult female strangers. His offending is likely to continue and take on a more instrumental quality if it remains untreated. He expresses concern that future sexual violence will be coerced and involve a variety of acts, perhaps not including gratuitous violence but impacting victims psychologically. At page 55 Dr. Hervé stated: Until he is treated and/or managed appropriately the above-noted predisposing factors would serve to perpetuate Mr. Jefferson's risk. He concludes Mr. Jefferson remains at high risk for general violence. [ 57 ] Dr.

Hervé adds that this high risk for general violence is likely to continue so long as he continues to abuse drugs, harbour a sense of entitlement, hold an antisocial worldview and lead an unstable lifestyle. Dr. Hervé notes that although some efforts had been made up to the time of his report in March of 2014 and further steps taken subsequently on remand and referred to in the evidence, Mr. Jefferson's past history supports a conclusion that he has not retained what he learned or utilized it once he has returned to the community. The report concludes Mr.

Jefferson will benefit from additional treatment which will impact his risk of reoffending. A long-term, stepwise and coordinated approach to treatment is required. In a subsequent letter to clarify the long-term prognosis, dated August 7th of 2014, Dr. Hervé noted there is no empirical data which can confidently predict treatment success respecting a particular individual. He noted: Even the most sophisticated of such programs have limited impact on long-term change and personality problems tend to re-emerge over time typically in the context of stressful life events.

Substance abuse further complicates the process. Relapses are common. It is a lifelong process. High-risk offenders face more intense demands. [ 58 ] Dr. Hervé describes a treatment approach that includes pharmaco-therapy, anger management programming, substance abuse programming, individual counselling and sex offender treatment at a high intensity level. The implication I take from this is that even with Mr.

Jefferson's stated desire to do what he must to live a normal life, the challenges he faces demand a sustained, intense and long- term commitment to a rigorous program to overcome underlying issues and so reduce the stressors which define his high risk. His assertions of commitment and the steps he has taken in recent times are a positive start, but they do not amount to the kind of progress in programming described by Dr. Hervé that will be required of him over an extended period. Dr. Hervé concludes Mr. Jefferson's prognosis is guarded. He does not rule out success. He says: While Mr.

Jefferson has the ability to effect positive change in his life, it remains unclear if he will put in the sustained effort required to make positive, lasting change. I note he is likely to be most successful in the context of ongoing community support and treatment. He then sets out a variety of supports Mr. Jefferson will require once he reaches the community. [ 59 ] With the benefit of Dr. Hervé's report I have assessed all of the evidence and the past history. I have concluded there is a substantial risk Mr. Jefferson will reoffend.

Further, with commitment to programming while serving his sentence and to the ongoing support and supervision programs available once released and taking account of some modest progress made in recent times, and Mr. Jefferson's desire to improve his circumstances, I conclude there is a reasonable possibility of eventual control in the community. [ 60 ] I conclude Mr. Jefferson must be designated a long-term offender. This is not a case for the court to exercise its discretion and decline to make that order. The issues presented are complex. Mr. Jefferson faces considerable challenges considering his risk level.

The purpose of such a designation is not intended to be penal, but rather preventative, supportive and ultimately rehabilitative. I conclude it should be a ten-year order in these circumstances. (REASONS FOR SENTENCE CONCLUDED)