R. v. S.D. Date:, 2010 BCPC 118

Citation: R. v. S.D. Date: 20100429 2010 BCPC 0118 File No: 207971-2-KC Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S.D. SECTION 16(4) SEX OFFENDER INFORMATION AND REGISTRATION ACT (SOIRA) : THIS

SECTION PROVIDES THAT NO PERSON SHALL DISCLOSE ANY INFORMATION THAT IS COLLECTED PURSUANT TO AN ORDER UNDER SOIRA OR THE FACT THAT INFORMATION RELATING TO A PERSON IS COLLECTED UNDER SOIRA . EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE W. KITCHEN Counsel for the Crown: E. Poll Counsel for the Defendant: J. Allingham Place of Hearing: Vancouver, B.C. , B.C. Date of Judgment: April 29, 2010 [ 1 ] THE COURT: S.D. has been before the court for some time now on an eight-count Information. He was found guilty after trial on Counts 4 to 8 of that Information.

Convictions were not entered on Counts 4 and 7.

Those counts have been conditionally stayed, but convictions are entered on Counts 5, 6, and 8. [ 2 ] Those counts are Count 5, in committing an assault upon K.A., he used a weapon, a torch, contrary to s. 267 of the Criminal Code ; Count 6, in sexually assaulting K.A., he used a weapon, a bottle, contrary to s. 272 of the Criminal Code ; and Count 8, without lawful authority, he confined K.A. contrary to s. 279(2) of the Criminal Code . [ 3 ] The lawyers have very thoroughly canvassed case law to give a background to the range of sentence the court should look at in determining the appropriate punishment for S.D.

That range, as evidenced by the cases in the two casebooks, goes from provincial conditional sentences up to double-digit penitentiary sentences. [ 4 ] That is not to say that there is any real inconsistency in the cases because cases such as these can vary so considerably in the circumstances, the seriousness of the offences, the amount of violence that is used, and the background of the various people involved. As pointed out, some of the cases involved attacks on strangers which was not the case here. Some of them involved very young

vulnerable victims. At least one of the cases was a kidnapping case and that is a different circumstance from what we have here. The background of the accused persons varied considerably. So the court has to look at the details of the offence and the offender to refine the sentences in each individual case. [ 5 ] I am going to deal first of all with the seriousness of the offences. I gave reasons for judgment in convicting S.D. in which I went through the evidence and the circumstances in considerable detail.

Much of that evidence I referred to included evidence of K.A. or C.W. when she was found by ambulance drivers and examined by doctors. My conclusion is that this matter was not planned or premeditated. [ 6 ] It did involve to some extent a breach of trust. There was a relationship between S.D. and K.A. in which she was entitled to trust him and be confident that there would not be any problem with being in his presence. He violated that trust.

On the other hand, it could also be an aggravation where there is no relationship of trust and there is an attack on strangers, but the relationship between the two of them is certainly something the court has to consider. There had been a relationship that involved the use of drugs and was sexual in the past. That was not new to the two of them. [ 7 ] However, in this case here, S.D. went well beyond the understanding between the two of them and he certainly went well beyond anything that K.A. could even consent to in his attack upon her.

She could not consent to bodily harm or anything beyond that and that occurred here. It was a prolonged incident. It went on for many hours and resulted in the confinement of K.A. [ 8 ] There was no kidnapping and in cases such as this where the victim has been kidnapped to facilitate the commission of the offence, you could, as a rule of thumb, say that sentences are probably at least doubled just because of the kidnapping. So that did not occur here. [ 9 ] What occurred was certainly demeaning to K.A. and disgusting. She was terrorized and traumatized.

Fortunately, she was not the most vulnerable victim and so perhaps the psychological damage will be less than it might be with others and she will recover better than others might, but it still must be said that what S.D. did was very serious and requires something significant as a response from the court. [ 10 ] In seeing how all this came about, we have to go back and look at the history of S.D. as evidenced in the presentence report and the psychological assessment. It is clear that the background of S.D. requires some special attention and might even deserve some sympathy. S.D. is from Iran.

He went into the military for compulsory service and he became a sniper. He found that very difficult. [ 11 ] It would seem that part of his military experience involved drugs being administered to him so that he could endure the military experience. He still had difficulty with it. He and his wife left Iran so he could avoid it and the result is likely that if he were to return to Iran, there would be consequences for having done that, of course. [ 12 ] S.D. and his wife travelled for a period of time to other countries before they came to Canada and he and his wife did well.

It seems he did not have a good relationship with his in-laws, but he and his wife had a child and a good relationship until there was a very unfortunate incident, of course, where his wife was killed six or seven years ago in a traffic accident. [ 13 ] That was devastating to the family, certainly to S.D., to his relationship with his daughter and to his relationship with his in-laws, and in response to that, to some extent, he got involved with drugs and with what he referred to as a Persian gang.

Since that time, of course, there have been criminal convictions and real problems for S.D. [ 14 ] As a result of that, he has been associating with people who are similarly inclined. He has come into contact with other people who have had difficulty with their backgrounds such as K.A. Of course, K.A. has not had the problems to the extent S.D. has had, but she has had a difficult life, and has had drug problems and has had to work on the street to try to deal with her situation. [ 15 ] When she and S.D. began a relationship, it centred around their mutual interest in drugs.

There may have been other aspects to the relationship which could have been illegal. S.D. was in jail part of the time during the relationship, and it can be concluded that S.D.’s life was generally spiralling downward and his ability to have a relationship was also similarly deteriorating. [ 16 ] So in his relationship with K.A. when there were frustrations as there were around the period of time when these offences were committed, particularly on July 13th, S.D. overreacted. He could not deal with the frustrations, and went well beyond the relationship he had with K.A. to committing offences.

So to some extent you might say there is some victim precipitation here. K.A. was voluntarily involved with S.D. whom she knew was involved with drugs and doing things that got him in jail. [ 17 ] Having said that, of course, K.A. certainly was not at all responsible or to blame for anything S.D. did in this terrible attack he made upon her. The fact that she was a street worker and involved with drugs put her in a position where she became a victim of S.D., but she was not responsible for what happened. [ 18 ] So my conclusion is this, we have a very serious situation here. The offences are very serious.

They certainly require some significant jail time, but the offences differ from some of the more aggravated offences that have been referred to in the cited cases. Even though there was a breach of trust, there was something of a relationship between S.D. and K.A. that involved the use of drugs which partially led to what happened here. Unfortunately, K.A. was not a stranger to S.D.

She was not a very young victim and less vulnerable than some victims and could likely cope with what happened better than some, perhaps less well than others. [ 19 ] My conclusion is this, that the range of sentence in the mid-penitentiary range up to the double-digit range is not required here. That is punishment that should be saved for more serious matters that have involved some premeditation and may perhaps involve attacks on strangers. [ 20 ] The sentence suggested by Mr. Allingham, I conclude is the appropriate sentence in the circumstances here. Mr.

Allingham allows that a three-year sentence perhaps reflects all of the considerations the court has to have here and I conclude that that is the case. So on each of these counts for which you must be sentenced, the three of them, S.D., I sentence you to three years. It is concurrent on

each and, of course, there will be credit for the time you have spent in custody. [ 21 ] In your statement to the court, you asked for a break and another chance. Perhaps if you could walk out of here and you had another chance, it might work, but I am afraid that is not possible.

The way our system works is before you get any other chance, you have to pay the price for what you have done in the past and these are serious matters and you must pay a heavy price for them. [ 22 ] So it will be three years less credit for time served, and the time served is 290 days which precedes the change in legislation so I will give you credit for 580 days which is something like 19 months. That will be calculated by a federal classification.

It means likely that the remainder of the sentence you must serve is something like 17 months. [ 23 ] I will order that you provide a DNA sample in the usual form. [ 24 ] I will order under s. 109 of the Criminal Code that you are prohibited from possessing firearms, ammunition, or explosives for the rest of your life. [ 25 ] I must, as a result of these convictions, order that you are registered on the sexual offender registry. [REASONS FOR SENTENCE CONCLUDED]