R. v. D.G.J. Date:, 2016 BCPC 99

Citation: R. v. D.G.J. Date: 20160219 2016 BCPC 0099 File No: 209232-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D.G.J. BAN ON PUBLICATION s. 486.4(1) and s. 486.4(2) CCC ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE H. FIELD Counsel for the Crown: M. Stacey Counsel for the Defendant: D.H. Silverman

Place of Hearing: Surrey , B.C. Date of Hearing: February 11, 2016 Date of Judgment: February 19, 2016 [ 1 ] THE COURT : Mr. J. is charged in January 1997, January the 1 st , 1997 to January the 1 st , 2003 in Langley did with a sexual purpose touch with a part of his body the body of S.R., a person under the age of 14, contrary to s. 151 of the Criminal Code . The Narrative [ 2 ] The complainant is now 23 years of age. At the age of seven, while living with her mother, she would visit with her grandmother and step-grandfather, Mr. J., on weekends. The following conduct directed to the complainant by Mr.

J. is not disputed. [ 3 ] In the course of bathing S.R., he rubbed her vagina repeatedly, asking the young girl if the physical contact felt good. After bathing her, while S.R. lay naked in her bed he would kiss her throughout her body, including her vagina.

Other times, after bath time, he would throw her on the bed while naked, lift her legs, then put his face on her vagina. [ 4 ] Although the complainant cannot recall the number of times of inappropriate touching, the subject of these charges, the conduct was likely less than 20 times over two years. [ 5 ] At the age of approximately 13, she disclosed her conduct to her grandmother, realizing her history could not be suppressed. D.G.J. then told his children and former wife, who made a complaint to the RCMP. [ 6 ] The Crown submits the range of sentencing in this case is 18 to 24 months, less one day. Mr.

Silverman submits the range could be as low as one year, and further submits that the sentence could be served on a conditional sentence order, a disposition available to Mr. J. at that time. [ 7 ] Both counsel agree that the principles of sentencing are deterrence and denunciation, confirmed in the case law provided. The Crown submits the following aggravating factors: 1. That Mr. J., in committing the offence, abused his position of trust, being a step-grandfather, in committing the offence to S.R., age seven, section 718(2)(a)(iii) of the Criminal Code ; 2. I am reading specifically from paragraph 16 of R. v.

S.B.T. which I will later refer to, a decision of the British Columbia Court of Appeal, 2010 BCCA 145 , a decision of Madam Justice Bennett, "The offence was a breach of trust." Madam Justice Bennett was speaking about a similar set of circumstances or offences similar to the case at bar: "The offence was a breach of trust. It was committed by a family member against a young child in her father's home. These are aggravating factors at common law, and, as of November 1, 2005, (after these offences were committed), have been codified as such. See s. 718.01 and s. 718.2(ii.1) of the Criminal Code .

The codification simply confirms what has been the law for many years. The offence against L.O. [in that decision] was a serious one." The above is an aggravating factor in this case. The offence was a breach of trust committed by a family member against a young person. Although that legislation was not available at the time, the principle remains the same. The offence against S.R. was serious and the paramount principles of sentencing are deterrence and denunciation. 3. The third aggravating factor in this case is the young age of the child and the frequent intrusive incidents over an extended period of time. 4.

The nature of the sexual contact was substantive. The consequences were dramatic. See the victim impact statement. [ 8 ] The above factors were significant and not minimal. Victim Impact Statement [ 9 ] The incidents were traumatic to S.R. In order for her to cope, she described how she turned to drugs and alcohol to escape the reality of being personally violated. She attended treatment centres in 2014, and was diagnosed with anxiety and depression. She is currently struggling with mental health issues. At the end of the victim impact statement she made reference to the fact that she had forgiven him.

Background of Mr. J. [ 10 ] The background information is from submissions made by Mr. Silverman, along with the information obtained that were incorporated in the Pre-Sentence Report ordered in these proceedings. Mr. J. is presently 71 years of age and in ill health, having suffered three heart attacks, and currently has been prescribed medication. [ 11 ] Regarding his early childhood, he felt as an outcast described as being unwanted. He associated this with being born of his mother's extramarital affair. He never had a relationship with his biological father.

He described negative relationships with much of his father's family, and traumatized by his uncles at an early age, who would intentionally frighten and terrify him. The family relocated on numerous occasions. [ 12 ] Mr. J. disclosed a history of sexual victimization and excessive corporal punishment by his father as he was growing up. This

was a significant trauma in his life. [13] Mr. J. has been married twice, presently separated, has children and is a grandparent. As a result of these charges anddisclosure he made to his family, he has no contact with his daughter, minimal contact with his son. [14] The parents are deceased, and after 20 years he is beginning to reconnect with his brothers who have been giving him ongoingsupport. [15] After leaving high school, Mr. J. worked in the plywood mill, and then following vocational training, maintained employmentfor 41 years in the gas department at [omitted for publication].

He is presently retired. [16] He is presently engaged in individual counselling with Alberta Mental Health where he resides. Mr. J. now has a strongreligious connection with a church in [omitted for publication], Alberta. The church is a source of support and guidance. He is involvedin a number of community activities, in curling, the historical society and is a designated driver for other seniors. [17] All of the background information referred to has been confirmed by the character letters of reference filed in these proceedingsthrough family members.

Several letters of reference were filed in these proceedings from his pastor and family members, brother[indiscernible] and sister. The letters confirm his sincere remorse, active commitment to his senior community that he lives in. He isrepentant, spiritual, and busy trying to rebuild his life. Overall, the letters confirm the portions of the Pre-Sentence Report. The onereference concludes that he has an honest desire to understand how his behaviour got hold of him. Mitigating Factors [18] An early guilty plea. Those were his instructions to Mr.

Silverman who, after reviewing the disclosure and particularsproceeded forthwith to resolve this matter with the Crown. [19] Mr. Johnson is 71 years of age and has no criminal history. Mr. Johnson is remorseful, regretful and has taken fullresponsibility for his actions and the harm caused to the victim. This is confirmed in the Presentence Report and letters filed in support. He was forthright in disclosing his conduct to his family, and has provided a letter of sincere apology to the victim, realizing the harmhe caused, as well as a letter to the court expressing that his behaviour had shaken him deeply.

He is presently undertaking counsellingaimed at rehabilitation. Although this is done through Mental Health services, he has not attended any specialized sexual offenderprogram. [20] Mr. Silverman submits there is a low risk to reoffend; there are good prospects towards rehabilitation. He is open and amenableto counselling. Mr. Silverman submits this factor is important, as his desires are consistent with the overall need to protect society. [21] Mr.

J. intends to address his early traumatic childhood and sexual abuse to ensure the potential cycle of violence is neverrepeated again. [22] The Pre-Sentence Report was positive. [23] In final submission, Mr. Silverman notes the age and medical condition of his client and I should recognize that a custodialsentence would be harsh because of the nature of these charges. [24] The Crown relied on the following cases in support of a custodial sentence in the range of 18 to 24 months, less one day. R. v.S.B., 2010 BCCA 145; R. v. J.L.L., 2012 BCSC 623; R. v. G.J.S.; 2014 BCSC 1105; R. v. Cas, 2015 BCPC 241; and R. v.

W.J., 2016BCSC 161. [25] Mr. Silverman relies on the case of R. v. Ralph from the New Westminster Registry, 2014 BCSC 467. That is a decision of Mr.Justice Romilly who analyzes a number of cases where conditional sentence orders were made to accommodate the principles ofdeterrence and denunciation. [26] The list of cases relied upon by counsel are very fact specific, depending on the unique circumstances of the offence,background history, and moral turpitude of the offender. The sentences varied from community-based sentences to four years incustody.

Some of the different factors considered that had a direct bearing on the disposition, to name a few distinctions, were lengthyrecords, similar past convictions, application of the Gladue factors, lack of remorse, trials where young person victims testified, multiplevictims and significant prospects towards rehabilitation. Decision [27] What both counsel agree upon is the serious nature of these types of offences. The paramount consideration are the principle ofdeterrence and denunciation. [28] In regard to counsel's submission regarding sentencing ranges, they are no more than guidelines.

They are not fixed (see R. v.Nasogaluk 2009 Supreme Court of Canada). This decision focuses on the individualized process in sentencing. No one sentencingobjective trumps the other, and it falls to the sentencing judge to determine which objective or objectives merit the weight given in anyparticular case. [29] Now, dealing with the principles of sentencing in child sexual abuse cases, and I am referring now to the case of R. v. J.L.C.,2012 BCSC 623, pages 7 and 8, paragraph 30, the decision of Mr. Justice Goepel.

Reading from paragraph 30: The authorities make clear that the sexual abuse of children is an abhorrent socially damaging act which warrants strong condemnationby the courts. As set out in s. 718.01 of the Code, the principles of denunciation and deterrence are given primary consideration. In R. v.Stuckless (1998), (ON CA), 127 C.C.C. (3d) 225 (Ont. C.A.) at paras. 43-44, Madam Justice Abella (as she then was)

characterized the sexual abuse of children as inherently violent, saying: "Sexual abuse is

an act of violence. When committed against children, the violence is both physical and profoundly psychological. It is coercive and exploitative conduct, and represents the use of compulsion against someone who is defenceless." [ 30 ] The aggravating factors in this case are very serious, substantive and significant. That Mr. J. abused his position of trust and authority in relationship to this very young, vulnerable child in need of protection by repeatedly assaulting her is particularly aggravating.

Although a strict conditional sentence order can accommodate both deterrence and denunciation, that is not the case before me. [ 31 ] Bearing in mind the serious aggravating circumstances earlier referred to, both principles of deterrence and denunciation are particularly pressing in this case. I am satisfied that a period of incarceration is necessary to address the paramount principles of sentencing earlier referred to. A conditional sentence order would not be consistent with the fundamental principles of sentencing 718 to 718.2 of the Criminal Code .

Notwithstanding, some weight needs to address the principle of rehabilitation, bearing in mind the mitigating factors, sincere remorse, and background history. Rehabilitation looking forward is positive. That process has begun by his attendance at Mental Health, and the Presentence Report confirms he is starting to access counselling services. [ 32 ] Please stand, Mr. J. I am sentencing you into custody for a period of one year. Further, I will be placing you on probation for a period of two years. You will keep the peace and be of good behaviour.

You will report forthwith upon release to a probation officer, and thereafter, as and when directed. [ 33 ] You will reside where directed by your probation officer. You will 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. [ 34 ] You are to have no contact directly or indirectly with S.R.

You are not to attend within a hundred metres of any residence, place of employment, or place of education of S.R. [ 35 ] You are not to be alone with any person under the age of 16 years, and you are not to have contact with any person under the age of 16 years, unless you are in the company of an adult, approved of by your probation officer, and who has been advised of your criminal record in the presence of your probation officer. [ 36 ] You are to attend, participate and successfully complete such counselling as directed by your probation officer, which may include, but not limited to, forensic sex offender program or the sex offender maintenance program. [ 37 ] I am also making a DNA order pursuant to s. 487.051 (

b) of the Criminal Code . I am also making a 20-year order under the Sex Offender Information Registration Act in Form 52, pursuant to s. 490.012(3) and 490.013(2) (

b) of the Criminal Code . [ 38 ] I should point out that this is an oral decision of the court. I have taken into consideration the submissions made by counsel, case law that I have read, both aggravating and mitigating factors, and submissions made by counsel to come to this conclusion. (REASONS FOR SENTENCE CONCLUDED)