R. v. J.S., 2019 BCPC 128

Citation: R. v. J.S. 2019 BCPC 128 Date: 20190524 File No: 216928-1K Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. J.S. PUBLICATION BAN PURSUANT TO

SECTION 486.4(2) OF THE CRIMINAL CODE OF CANADA ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G.S. GILL Counsel for the Crown: K. Johnston Appearing for the Accused: Self Represented Place of Hearing: Surrey , B.C. Date of Hearing: May 15, 2019 Date of Sentence: May 24, 2019

[ 1 ] THE COURT: In these proceedings, J.S. (“Mr. S.”) has been found guilty of Counts 1, 2, 4, 7, and 11 of Information 216928- 1K. These are historical offences occurring in a family setting and, in some incidences, as far back as 20 or so years ago. [ 2 ] The reasons for conviction had been previously handed down and will not be repeated in today's sentencing proceedings other than to very briefly encapsulate some of their circumstances. [ 3 ] On Count 1, Mr.

S. is guilty of sexually assaulting his biological daughter in two episodes of sexual touching that included having her touch his penis and rub it around on her face and perform acts of oral sex upon him. [ 4 ] On Count 2, he is guilty of committing a single act of incest with her, consisting of vaginal penetration with his penis. [ 5 ] The complainant, at the time of these offences, was between four and six years old. [ 6 ] On Count 4, Mr.

S. is guilty of threatening his son, who would have then been approximately 13 years old, to cause death or bodily harm to his daughter, who would have then been about 10 years old. [ 7 ] On Count 7, he is guilty of threatening his son, by then approximately 17 years old, to cause death or bodily harm to him. [ 8 ] Finally, on Count 11, he is guilty of using, or threatening to use, a weapon or imitation weapon in committing an assault of his spouse under circumstances that had him douse her and their younger daughter, not the daughter who was the victim in Counts 1 and 2, with lamp oil, and then threatened to light them on fire. [ 9 ] The fundamental principles and purpose of sentencing set out in s. 718 of the Criminal Code , require the imposition of just sanctions having one or more of the objectives of denunciation, specific and general deterrence, separation of offenders from society where necessary, rehabilitation of offenders, the provision of reparations for harm done, and, finally, to promote a sense of responsibility in offenders, acknowledging the harm done to victims or to the community. [ 10 ]

Section 718.1, which can be regarded as a central feature of Canadian sentencing law, provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 11 ] Pursuant to s. 718.01, denunciation and deterrence are of primary importance in cases involving the abuse of a person under the age of 18 years. This is an important feature of this case. [ 12 ]

Section 718.2(

a) sets out a number of factors the court must take into consideration when imposing sentence, including aggravating or mitigating circumstances, questions of motive, evidence of special relationships, abuse of persons under the age of 18 years, or abuse of positions of trust or authority in relation to a victim. [ 13 ] It is an aggravating factor, in this case, that the offender's victims involved in Counts 1, 2, 4, and 7 were under the age of 18. It is a further aggravating factor under s. 718.2, that the victim in Count 11, involving the offence of assault with a weapon, was his spouse. [ 14 ]

Section 718.2(

b) addresses the need for parity in sentence, and subsection (

c) refers to what is often referred to as the totality principle when considering consecutive sentences. Subsections (

d) and (

e) require the court to not deprive offenders of their liberty if less restrictive sanctions may be appropriate in the circumstances, and to consider all available sanctions, other than imprisonment, that are reasonable and consistent with the harm done, with particular attention to the circumstances of Aboriginal offenders. [ 15 ] Finally, the court is also mandated importantly, under s. 718.2(a), to take into account the impact on victims. [ 16 ] The Crown position on sentence, in these proceedings, is to seek a term of three years jail on Count 1, a term of five years on Count 2, a term of three months incarceration on each of Counts 7 and 11, and a term of one year incarceration on Count 11, with all terms sought to be served consecutively, for a total of nine and a half years incarceration but reduced, taking into consideration the totality principle, to a global sentence of seven years jail. [ 17 ] By contrast, Mr.

S. asks the court to not impose any jail, but rather limit the disposition of this case to one including a direction that he take counselling. [ 18 ] All of these offences occurred in the context of a family environment that could only be described as one filled with terror and fear of violence. A violence, for the most part, fuelled by Mr. S.'s out-of-control consumption of alcohol.

This is the way the children testified remembering their father, mostly intoxicated, tipsy, and unpredictably violent, mostly against their mother but also, at times, against the children. [ 19 ] His behaviour appears to have resulted in not infrequent intervention by family members or others, and by police attendance at the family home. This, as I say, is not set out here for other than general background. [ 20 ] Mr. S. would have the court believe he did not ever have a drinking problem, and that any problems in the family home were not caused by him, but rather arose from his wife's alleged infidelity.

At the same time, and without any adequate explanation, he mentioned at the sentencing hearing that he was no longer drinking at all, in any event. [ 21 ] This was contrary to what he advised the assessing doctor preparing the Psychiatric Assessment, where he indicated he does drink but he drinks only beer, but not in excess and not every day. So he is saying different things to different people. [ 22 ] In the same vein, the author of the Pre-Sentence Report notes that despite Mr.

S.'s denial, it would appear that alcohol misuse has played a negative role in most of his adult life, contributing to the breakdown of his family relationship. Mr. S.'s denial of alcohol abuse also flies in the face of evidence heard and accepted at the trial, including the involvement of the police, as well as the Ministry of Children and Families.

[ 23 ] Mr. S. initially had legal representation during his trial. These proceedings were thereafter scheduled in a manner that provided him with ample opportunity to further retain and instruct counsel, but he ultimately ended up representing himself. Now, he maintains, through representations made in his Pre-Sentence Report, that he has not fully understood the charges against him, and what was happening throughout this process. [ 24 ] This is patently untrue, as Mr.

S. was given every opportunity to retain counsel of his choice, and in the absence of such counsel being retained by him, to ensure he understood at all times what was happening in the courtroom. This is yet another example of Mr. S. attempting to shift blame away from himself. [ 25 ] The offender's daughter read out her victim impact statement from the witness stand. She articulated the impact as devastating and lasting to this day, in the form of recurring fear, anxiety, sleeplessness, nightmares, missed work, and difficulty with relationships.

Her struggle to recover from the ongoing psychological harm is evidenced by the final sentence in her impact statement, which reads as follows: You don't get to decide what I do with my life anymore and all the memories you left aren't going to hold me down any longer. I am afraid and I am weak and that's okay. [ 26 ] The Crown presented a number of case authorities applicable to this type of case.

Although the sentence imposed in each of the cases is higher than that sought in the index case, the cases do provide useful guidance in terms of sentencing ranges and applicable principles. [ 27 ] Those authorities are R. v. S.S.S. , a decision of the Supreme Court, 2018 BCJ No. 7166 , R. v. R.M.D. , a decision of the appeal court, 2014 BCJ No. 221 , R. v. G.E.W. , a decision of the Supreme Court, 2014 BCJ No. 3396 , and, finally, R. v. R.A.J. an appeal decision, 2010 BCJ No. 1320 . [ 28 ] In R. v.

S.S.S. , an 80-year-old offender committing 20 specific incidents of sexual abuse, comprising touching, digital penetration, and oral sex, including at least one act of sexual intercourse on his granddaughter over the course of about 10 years, starting when she was about six years old, was sentenced to a term of seven years jail. The Crown had sought a term of eight years. [ 29 ] The court considered the sentence imposed to also reflect the advanced age of the offender.

At paragraph 42, the court made reference to prior appellate court authority, describing the usual range for long term, highly intrusive sexual abuse of a child by a person in a position of trust, as one of between five years up to eight or nine years jail. [ 30 ] Here, I note, that the seven-year sentence imposed in S.S.S. reflects somewhat more egregious facts than the case before the court today, given, in that case, the higher number of sexual acts committed, with those acts committed over a longer period of time. [ 31 ] At paragraphs 49 and 50, the court noted sexual offences against children as being inherently violent even in the absence of overt violence, and that in case of incest, the relevant considerations include the age of the victim when the offence began, the nature and extent of any violence or threats directed to the victim, the frequency and time period over which the incest took place, and whether other indecent or depraved acts of sexual misconduct were perpetuated in addition to the sexual intercourse. [ 32 ] In R. v.

R.M.D. , the Court of Appeal reduced a nine-year sentence to one of eight years in respect of a father committing incest with both his biological daughter, as well as his stepdaughter. The sentencing reduction included the consideration of fresh evidence that the accused had himself been a victim of childhood sexual abuse. This case, again, is more egregious on its facts than the index case, given that it involved two individuals and the offending conduct occurred over a longer period of time. [ 33 ] The third case I have referred to, R. v.

G.E.W. , is one in which the offender was sentenced to seven years incarceration for multiple episodes of sexual assault, including sexual intercourse on his two daughters, one six years old and the other when she was between the ages of nine and 16 years old. [ 34 ] This Aboriginal offender was himself a victim of sexual abuse in a residential school setting, and according to G.E.W. , at paragraphs 62 through 64, referred to the sentencing range for incest by non-Aboriginal offenders in the range of six to 10 years, and for sexual interference with children under 14 over a prolonged period, where a breach of trust is involved, a range of five to nine years. [ 35 ] The fourth and final case referred to, R. v.

R.A.J. , is one where the eight-year jail sentence imposed at trial was upheld, albeit for different reasons. That case involved the sexual assault by the offender on his seven-year-old daughter, progressing from touching and digital penetration to oral sex, then forced masturbation and anal intercourse. The offences were, at times, accompanied by beatings, and occurred several times a week over a number of years.

That offender had no prior criminal record. [ 36 ] Sentencing is an individualized process requiring the application of established legal principles to the unique circumstances of each offence and each offender. In the present case, while Mr. S.'s conduct is highly blameworthy, the cases cited by Crown involved even more aggravated circumstances, meriting the higher sentences handed down in each of them. [ 37 ] The Crown properly recognizes that Mr. S.'s personal circumstances, and the circumstances of his offending behaviour, may not merit such a lengthy term but, rather, one somewhat lower in the range.

Here it should be noted that while there is now a minimum five- year sentence for the crime of incest, there was no such minimum at the time that Mr. S. committed these offences. [ 38 ] Representing himself at the sentencing, Mr. S. did not provide much in the way of submissions. He maintained his innocence, expressed a desire to avoid incarceration, said he wanted to see his children, blamed others for his predicament, and essentially denied any problem with alcohol. As I have already noted, despite his denials of any serious ongoing problem of any kind, Mr.

S. indicated to the court he would nonetheless be prepared to take any counselling or other programming, if so directed, in a community setting. [ 39 ] However, the Psychiatric Report notes that Mr. S.'s overall denials are indicative of an unwillingness to explore the underlying risk factors and the very triggers for his offending conduct. The overall assessment in the Psychiatric Report is that of a moderate risk for

future issues of general violence, most likely in conjunction with alcohol abuse, and a below-average risk for future sexual recidivism. [ 40 ] Mr. S. appears to have very little in the way of community support, and he presents as a less than ideal candidate for counselling that would otherwise be beneficial to him. [ 41 ] The aforementioned Psychiatric Assessment also describes Mr. S. presenting at the assessment in a disjointed fashion.

While the doctor observed no notable difficulties with his receptive or expressive language skills, his train of thought, response style, and content appropriateness was poor, and he slurred his words in a manner consistent with alcohol intoxication, and under circumstances where a smell of alcohol had possibly been detected during that assessment. [ 42 ] Mr. S. is fully entitled to maintain his denial of any wrongdoing.

Even in the face of a conviction, any such denial cannot possibly constitute an aggravating factor, however, it does preclude any mitigation that may have otherwise applied by way of acceptance of responsibility, acknowledgement of harm done to others, or remorse. [ 43 ] While maintaining he has done nothing wrong and that all he wants is to be able to see his children again, I cannot help but note he did not even once look in the direction of his daughter as she read aloud her emotionally laden victim impact statement, seated from the witness box. [ 44 ] That said, there are, nonetheless, some factors in mitigation.

Mr. S. has no prior criminal record. Also, his offending conduct, particularly as that enumerated in Counts 1 and 2, while very serious, appears to be limited in both time and number of episodes as compared to those described in the cases I have reviewed. [ 45 ] The role of alcohol must also be recognized as a factor contributing to Mr.

S.'s highly blameworthy conduct. [ 46 ] Mitigating factors not present in this case include what I find to be a lack of remorse or insight into the offending conduct, along with poor community supports and a less than positive Psychiatric and Pre-Sentence Report. [ 47 ] Aggravating factors not present in this case include that the offences against the offender's daughter were not proven to have occurred over a prolonged period of time or to have been committed as frequently as in the cited cases.

Also, while there was the violence inherent in sexual crimes of this nature, there was no proven overt violence accompanying the acts. [ 48 ] There are, however, a number of aggravating factors that are present in this case, all of which have a common thread by way of their linkage to the family relationships within which these factors arose. Involving, as they do, this offender's daughter, son, and spouse, the offences comprise a significant breach of the trust he enjoyed with them, a trust that he abused by way of his conduct toward them. [ 49 ] The aggravating factors, to summarize, are that Mr.

S. committed these offences against his daughter when she was very young, only between four and six years of age, and that his offence of incest against her is, by its very nature, one involving an inherently violent breach of trust against someone, the very person, who would be looking to her father for protection. The impact on her was and remains devastating. [ 50 ] Additional aggravating factors relate to the contextual family violence in the household perpetuated by Mr.

S. and the specific relationship with his son, then under the age of 18 years, with respect to the offence of threatening death or bodily harm, and the spousal relationship then existing when he threatened his wife to light her and their younger daughter on fire, after dousing them with oil. [ 51 ] For reasons outlined in this case, and as supported by the case authorities, the principles of sentencing I must primarily apply here, are those of deterrence and denunciation. [ 52 ] Mr.

S.'s conduct is highly blameworthy and deserving of a sentence of incarceration that falls squarely in the range articulated by appellate authority, even if not towards the highest end of that range. [ 53 ] Mr. S., would you please stand to receive your sentence.

Sir, on Count 1, that of sexually assaulting your daughter, I sentence you to a term of three years incarceration. [ 54 ] On Count 2, that of committing incest with your daughter, I sentence you to five and one half years incarceration, concurrent to Count 1. [ 55 ] On Count 4, that of threatening your son to cause death or bodily harm to your daughter, I sentence you to a term of three months incarceration, consecutive to Counts 1 and 2. [ 56 ] On Count 7, that of threatening your son to cause death or bodily harm to him, I sentence you to a term of three months incarceration, also as a consecutive term. [ 57 ] On Count 11, in committed an assault of your spouse, at the time carrying or threatening to use a weapon, I sentence you to a term of one year incarceration, again consecutive. [ 58 ] The foregoing terms of incarceration add up to a total period of seven years.

Taking into account the totality principle, I reduce this sentence by 12 months, for a sentence globally on all counts of six years imprisonment. [ 59 ] There will be the following ancillary orders. Firstly, that you provide such samples of your DNA that are suitable for analysis. [ 60 ] Next, an order pursuant to s. 490.012, requiring you to comply with the Sex Offender Information Registry for a period of 20 years. [ 61 ] Next, an order pursuant to s. 109(2), prohibiting you from possessing any firearms or other items set forth in that subsection, for a period of 10 years.

[ 62 ] Next, an order pursuant to s. 743.21, that you not contact J.E.S., J.U.S. or U.S. during your time in custody. [ 63 ] Finally, an order pursuant to s. 161(1)(a.1), that you not attend within two kilometres of any place of residence of J.E.S. during your entire life. [ 64 ] Those are my reasons. (REASONS FOR SENTENCE CONCLUDED)