R. v. J.R.G., 2018 BCPC 337

Citation: R. v. J.R.G. 2018 BCPC 337 Date: 20180731 File No: 217138-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J. R. G. BAN ON PUBLICATION s. 486.4(2) CCC ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE REGIONAL ADMINISTRATIVE JUDGE R. HAMILTON Counsel for the Crown: M. Stacey Counsel for the Defendant: D. Redekopp Place of Hearing: Surrey , B.C. Date of Hearing: July 31, 2018 Date of Judgment: July 31, 2018

[ 1 ] THE COURT: Mr. J.R.G. is a 25-year-old Aboriginal man who has entered a guilty plea to a charge of sexually assaulting F.T. on August the 22nd, 2015. F.T. was under 16 years of age when the incident on August the 22nd occurred. [ 2 ] Mr. J.R.G. was in a relationship with F.T.'s mother, S.T. On the night in question, Mr. J.R.G., S.T., F.T. and two other individuals were gathered in the T. and all were consuming alcohol. [ 3 ] Late in the evening, Mrs. T. left the home to walk two of the guests to a nearby bus stop. Mrs. T. asked her daughter, F.T., to help Mr. J.R.G. get into bed.

While F.T. was trying to help Mr. J.R.G., he began unwanted hugging and a kiss with F.T. She said no and resisted his advances. [ 4 ] The two then returned to more drinking. On the second attempt to help Mr. J.R.G. into bed, he pushed F.T. onto the bed, forcefully removed her shorts and underwear, took off his own shorts and underwear. He was sexually aroused. F.T. was saying no, and Mr. J.R.G. attempted forced intercourse but F.T. placed her hand over her vagina to prevent being penetrated. [ 5 ] Mrs. T. arrived back home and found the half-naked Mr. J.R.G. on top of her half-naked daughter.

That ended the sexual assault. The police were called, and Mr. J.R.G. was arrested. [ 6 ] Mr. J.R.G. entered a guilty plea some time ago and a Pre-Sentence Report and a Psychiatric Evaluation have been prepared for this sentencing. [ 7 ] Mr. J.R.G. comes before the court as a 25-year-old Aboriginal man with no criminal record. He works part-time and intends on qualifying for his Grade 12 equivalency in the near future. [ 8 ] While he has an Aboriginal heritage, he has not remained connected to his Aboriginal roots while growing up. Mr. J.R.G. had a significantly disrupted childhood.

He was taken from his family to live first with his grandmother, then to live with an uncle who physically and sexually abused Mr. J.R.G. and then, he was placed into foster care. [ 9 ] Mr. J.R.G. signed himself out of foster care at the age of 16 and has been fending for himself ever since with support from others, and currently from a friend, Mr. M. [ 10 ] Mr. J.R.G. says he suffers from no problems with substance or alcohol abuse, although alcohol clearly played a role in this offence. Mr.

J.R.G., to his credit, has not consumed alcohol since the offence date, which occurred nearly three years ago. [ 11 ] In terms of the mitigating factors, Mr. J.R.G.'s guilty plea is a significant mitigating factor. That has meant that F.T. and her mom did not need to attend court to testify about what would clearly be a very, very difficult subject matter. [ 12 ] Mr. J.R.G. has been assessed to be a low risk to reoffend. He has taken steps to address his consumption of alcohol, which I have already noted contributed to this offence.

In fact, he has been abstinent from the consumption of alcohol since August of 2015. As well, he comes before the court, as I have indicated, with no criminal record. He has demonstrated that he can live a law-abiding life and that, in my view, is significant given the tragic circumstances of his childhood. [ 13 ] In terms of aggravating factors, the victim, F.T., was under 16 years of age when this offence happened. She was clearly not consenting. The sexual assault was, in my view, very, very serious. Who knows what would have happened but for the return of Mrs.

T. [ 14 ] This offence has had a serious impact on F.T. and her mother. F.T. has been hospitalized due to her cutting herself since these events happened. There has been concern that she has thoughts of suicide. The effect on F.T. has been significant. She cannot trust boys or men. She finds herself being exceedingly anxious when she is out in public. The events of August the 22nd lasted minutes, the impact on F.T. has lasted for years. [ 15 ] Also an aggravating factor is that these events happened in F.T.'s home where she should feel safe and a much less aggravating factor is that Mr.

J.R.G. was in a low-level position of trust at the time of the offence. [ 16 ] In terms of the range of sentences imposed in factually similar cases, the cases that I have been provided from the Crown are instructive. In most of those cases, the accused was sentenced to a jail sentence of 15 months or higher. [ 17 ] The case at tab 2, R. v. L.P.J. is a very lengthy decision and towards the end of that decision, Judge Keyes reviews a number of sentencing decisions. I will just very quickly go through them. [ 18 ] She refers to the case of R. v. E.M.Q.

In that case, the accused person was sentenced to 13 months in jail for touching the victim over her clothing. The victim in that case was 14 years old. [ 19 ] The case of R. v. Louie involved sexual intercourse on three separate occasions. The victim was 14 years of age and the accused was sentenced to 18 months in jail. [ 20 ] The case of R. v. P.D.W. that involved digital penetration. The victim was 14 years of age. The accused was sentenced to 15 months in jail. [ 21 ] In R. v. R. S., the offence involved oral sex on four separate occasions.

The victim was 14 years old and the accused sentenced to one year in jail. [ 22 ] R. v. Williams was forced digital penetration and forced intercourse. The accused was sentenced to one year in jail and three years of probation. The victim in that case was 15 years of age.

[ 23 ] R. v. Quash involved sexual intercourse. The victim was 12. The accused was sentenced to 22 months in jail followed by three years of probation. [ 24 ] R. v. D.B. that is a case out of Ontario. At trial, the trial judge imposed a sentence of eight months. The Crown appealed that sentence and the Court of Appeal overturned that sentence and imposed a three-year jail sentence in the case of digital penetration and one instance of sexual intercourse.

The victim was 14 years old and was a friend of the accused's daughter. [ 25 ] What is significant when I look at all of these decisions is that in all of those cases, no judge imposed a sentence of less than 12 months except for two cases, but in those cases the trial courts imposed a sentence under 12 months and the courts on appeal have held a sentence of that length to be reversible error and increased the sentence significantly. [ 26 ] Before me, the Crown seeks a jail sentence of 15 to 18 months. Mr. J.R.G. is seeking an intermittent jail sentence of 90 days. [ 27 ] The case law is abundantly clear.

The two primary sentencing principles that I am to bear in mind when arriving at a fit sentence are denunciation and deterrence, both specific and general. In this case, I am not as concerned about specific deterrence. I believe that Mr. J.R.G. has taken steps to stop drinking alcohol, which clearly was a factor in this case, and he has shown that he can lead a law-abiding life. [ 28 ] A bigger concern is denunciation. In other words, imposing a sentence that captures the outrage of society when an adult commits a sexual offence like this against a child. Secondly, general deterrence.

I need to impose a sentence so that like-minded individuals will know that if they offend in this manner, they will serve a significant jail sentence. [ 29 ] In my view, taking into account the facts of this case, keeping in mind the sentencing principles including the sentencing principle of parity, a sentence at the bottom end of the range sought by the Crown is fit. [ 30 ] Mr. J.R.G., if you could please stand up. [ 31 ] For those reasons, Mr. J.R.G., I am imposing a jail sentence of 15 months in jail and that will be followed by two years of probation.

The terms of your probation will be: [ 32 ] You will keep the peace and be of good behaviour. [ 33 ] You will appear before the court when required to do so by the court. [ 34 ] You will notify the court or your probation officer in advance of any change of your name or address, and promptly notify the court or your probation officer of any change of employment or occupation. [ 35 ] You must report in person to a probation officer at unit 102, 14245 - 56th Avenue in Surrey, British Columbia, by 3:00 p.m. on the second business day following your release from custody unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere or within a different timeframe.

After that, you must report as directed by your probation officer. [ 36 ] When first reporting to your probation officer, you must inform him or her of your residential address and phone number.

You must not change your residence or phone number without the written permission of your probation officer. [ 37 ] You must have no contact or communication directly or indirectly with F.T. or S.T. [ 38 ] You must not go to or be within 100 metres of any residence, school, workplace or place of worship known to you of F.T. or S.T. [ 39 ] You must not possess or consume alcohol, drugs or any other intoxicating substance except in accordance with a medical prescription. [ 40 ] 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. [ 41 ] You are to immediately advise your probation officer of any close relationship with a female person who has children under the age of 16 years and you are not to enter any such relationship until that person has been previously advised of your criminal record in the presence of your probation officer. [ 42 ] You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by your probation officer which may include, but will not be limited to, psychiatric or psychological counselling, anger management or life skills counselling or core programs, alcohol or drug treatment or sex offender maintenance programming. [ 43 ] You must not possess either personally or through another person any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance, anything that resembles a weapon or firearm, any weapon as defined in s. 2 of the Criminal Code or any related authorizations, licences and registration certificates. [ 44 ] I will make the order that you produce a sample of your DNA for registration in the DNA databank.

That would be pursuant to s. 487.051(1) and pursuant to s. 490.012(1), I will order that you register with the Sex Offender Information Registry Act for the next 10 years. [ 45 ] There will be a victim fine surcharge. That will be payable forthwith. In default, you will serve one day in jail. That day to run concurrently with the 15-month jail sentence I have just imposed.

(REASONS FOR SENTENCE CONCLUDED)