R. v. Andrews and Mar Date:, 2018 BCPC 51

Citation: R. v. Andrews and Mar Date: 20180220 2018 BCPC 51 File No: 219595-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. LAWRENCE ANDREWS and WALEENE MAR REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.G. COHEN BAN ON PUBLICTION

SECTION 486.5(1) CCC Counsel for the Crown: K. MacIntosh Counsel for the Defendant: P. Dutt at sentencing hearing Place of Hearing: Surrey , B.C. Date of Hearing: January 26, 2018 Date of Judgment: February 20, 2018

[ 1 ] These are the court’s reasons for sentence of the defendant, Andrews, who pled guilty to forcible confinement, s. 279(2), sexual assault causing bodily harm, s. 272(2), and threatening, s. 264.1(1) of the Criminal Code of Canada . As a result of the guilty plea to those three charges, the charge of breaking and entering, s. 348(1)(

a) CCC , against him was stayed. [ 2 ] He was charged along with two other defendants, Holloway and Mar. Holloway died before trial and the charges against him were abated. Mar pled guilty earlier and she has already been sentenced. The Facts: [ 3 ] The basic facts are that on the evening of November 28, 2016 the complainant had allowed Andrews to spend the night in her home (in her living room) as he apparently had nowhere else to stay that night. The complainant lived alone in a small house on a large farm property with a number of homes on it.

The caretaker of the property was Andrews’ uncle who lived in the main home on that farm property. Andrews did not live on the farm property but was looking for a place to stay that night. [ 4 ] Earlier that day, the complainant had visited the home of Holloway and Mar who lived in a trailer on the farm property. [ 5 ] In the early hours of November 29, 2016, Andrews left the complainant’s home and visited Holloway and Mar.

They told Andrews that the complainant had stolen drugs from them when she was over earlier and so they and Andrews went to the complainant’s home where Andrews let them in. [ 6 ] The complainant awoke to find the three of them in her bedroom standing over her bed. Andrews accused the complainant of stealing the drugs belonging to Holloway and Mar. The complainant denied stealing the drugs but Andrews became angry and punched her a number of times. [ 7 ] Andrews pulled off her some of the complainant’s clothes and threatened to rape her.

He then dragged the complainant to her living room, where he continued to yell at her and to ask where the drugs were located. She continued to deny knowing anything about the drugs and so he further punched and slapped her in the head, face, and jaw area and threatened to knock her teeth out. He also damaged many of her belongings. [ 8 ] He then took off more of the complainant’s clothes and told her to take off what remained. He again threatened to rape her if she did not do so. The complainant was afraid and complied.

Andrews then began licking and sucking her breasts and told her to touch his penis. [ 9 ] Andrews and the others drank some whiskey and smoked some drugs while committing this assault. Andrews then told the complainant to spread her legs. She asked him not to hurt her any more but he told her not to speak unless spoken to. Andrews then put one or more of his fingers in the complainant’s vagina purportedly searching for the stolen drugs.

At the time his fingers were bloodied from having smashed up some of her possessions. [ 10 ] The three defendants finally, apparently, accepted that the complainant had not stolen the drugs or that they at least could not be found after which Holloway and Mar left the complainant’s home but Andrews continued to confine the complainant to her own home apparently worried that she might call the police on him. [ 11 ] He would not let her leave his sight for the rest of those early morning hours and when she wanted to go to a store in the morning, he took her there himself and then brought her back home never leaving her presence.

Later in the morning, the two of them went to visit Andrew’s uncle in the main home on the farm. While there, the complainant managed to slip away from Andrews while he was talking to his uncle. She kept walking in fear that Andrews might notice that she was gone. She managed to leave the farm property and the police were called. Sentencing Principles: [ 12 ] Whenever the court sentences an offender, the court must not only consider the crime committed but must also consider the offender’s personality, his traits, his antecedents.

Basically, the court must consider the life that lead the offender to the crime in question so as to craft an appropriate sentence not only for the crime committed but also for the criminal who committed it. [ 13 ] The court must specifically consider any mitigating factors as well as any aggravating factors while crafting a sentence that will not only deter the offender from committing further crimes but will also deter others from committing similar acts. Further, when appropriate, the court must consider how best to rehabilitate the offender.

Finally, the sentence must be an appropriate punishment for (denunciation of) the crime. Application of sentencing principles to this case: The offence itself: [ 14 ] It is a regrettable but true statement that this sort of case is not unheard of. It is not even really rare. I have had the opportunity to read several cases of like nature where other courts have imposed sentences for similar offences.

Based on my review of other cases, I find that the sexual assault committed in this case is a serious sexual assault in that it involved both bodily harm to the complainant and the introduction of bodily fluids into the complainant (blood on Andrews’ fingers inserted into the complainant’s vagina). [ 15 ] On the other hand, I find that the confinement committed in this case, while obviously serious, is not one of the most serious to come before the court. This is not said to diminish the complainant’s very traumatic experience but rather only to put this matter into context.

[ 16 ] In this case, Andrews did not bind, gag or torture the complainant. He did not bind her and abandon her such that she might spend torturous hours wondering if she was going to die alone. These sorts of confinement facts are found in the cases I have read in preparing these reasons. [ 17 ] In order to place this set of confinement facts into context, I specifically find that the confinement was neither one of trivial nature nor one of serious nature.

I find that the confinement committed in this case was one that would be described as being between those two levels. [ 18 ] The threatening in this case is serious in that Andrews repeatedly threatened to rape the complainant while committing an intrusive serious sexual assault. Mitigating Factors: [ 19 ] The defendant’s background is that he was 58 years old at the time of this offence but had only a limited and unrelated record.

His record includes entries for a 1976 drug possession conviction; 1982 theft and possession of stolen property convictions; a 1995 driving (care and control while over .08) offence and a 2006 theft conviction. The lack of a recent or related criminal record is a mitigating factor. [ 20 ] He had what might be described as a tough life in that he had a strict and perhaps abusive father who caused Andrews to have to leave home at age 15.

However, Andrews is a white heterosexual male so his life can hardly be described as having been as tough as the lives of many who have found themselves before the court for sentencing. His difficult upbringing is, however, a mitigating factor. [ 21 ] Andrews was under the influence of drugs at the time of committing this offence and he blames his actions of that night on that lack of sobriety. He asks that this be treated as a mitigating factor. [ 22 ] He spent much of his life in the fishing industry and from that work likely earned a respectable and legal income.

This is a mitigating factor. [ 23 ] However, in a voluntary statement that Andrews gave to the police just after his arrest, he claimed that he also lived much of his life as an enforcer in the drug underworld. He gave this statement after being arrested and while he may still have been under the influence of the drugs he had consumed the prior day.

So, while this statement was voluntarily given, it is difficult to know how much of it was true and how much of it was little more than drug-induced bluster. [ 24 ] Based on the concern that much of his story about being an underworld enforcer may have been little more than drug-induced bluster, it is likely that the court would have put no weight on that part of his statement but for the fact that his own brother stated that he believed it to be true. This brother had shunned Andrews for many years because of his belief that his brother was a life-long committed criminal.

However, this brother now believes that Andrews has come to realize the folly of his prior life and so this brother is now a person in the community willing to support Andrews through recovery and rehabilitation as well as give him a home on his release. This is a mitigating factor. [ 25 ] He pled guilty and this is almost always a mitigating factor. [ 26 ] I find that the mitigating factors in this case are Andrews’ lack of family support while growing up, his newly found support in the community and his lack of a related or recent record.

Aggravating Factors: [ 27 ] Andrews is older and therefore more likely set in his ways. He appears to have lived an entrenched criminal lifestyle for much of his life even though he most often avoided criminal convictions. This is an aggravating factor. [ 28 ] He met with a probation officer who prepared a pre-sentence report and a psychologist who prepared a complete psychological assessment. In the psychological report, the psychologist stated that Andrews wanted the psychologist to note that he was remorseful.

True remorse would be a strong mitigating factor. [ 29 ] The problem is that while Andrews was declaring his remorse, he added that he had been told to mention his remorse.

The psychologist did not accept that Andrews was in any way truly remorseful finding rather, as I do, that Andrews only mentioned remorse because he had been told to do so. [ 30 ] In the statement that Andrews gave to police just after his arrest he repeatedly blamed the complainant for this assault and took little to no responsibility for his own actions. [ 31 ] At one point in his statement he admitted that he had no reason to believe that the complainant had actually taken anything from Holloway and Mar other than their statement that she had done so.

He also admitted that all three of the accused finally accepted that the complainant had likely not taken the drugs and yet, even accepting all of this, he still blamed the complainant, the victim, for his own attack on her. His logic here completely escaped me. [ 32 ] If this blaming had only been part of his statement to police on the day after his arrest, I might have found it to be drug-induced blather but he maintains to this day or at least to the date of his assessment that the complainant was to blame.

He told the psychologist that his assault on the complainant had little or no effect on her and claimed her tears were little more than acting for the court as she was lying about what he had done. He made these statements in spite of the considerable independent evidence that the complainant’s story was true and that the harm done to her was undeniable. He told the psychologist that he had only pled guilty because he didn’t want to spend more time in jail. Even though he said these things to the psychologist, he still maintained his unconditional admission of guilt before me.

[ 33 ] His failures to take responsibility for his actions or to show any remorse other than on advice from others are both aggravating factors. [ 34 ] He refuses to take sex-offender treatment.

This is an aggravating factor. [ 35 ] With regard to his drug use that day, I note that he understood and commented on how badly drug consumption affects him and so I do not find that this voluntary consumption of drugs and alcohol was a mitigating factor. [ 36 ] With regard to his guilty plea, I note that it came after the complainant had testified and been cross-examined and the case was nearly complete. [ 37 ] A guilty plea can and most often is a mitigating factor but a lack of a guilty plea is never an aggravating factor.

In this case, the guilty plea came too late in the case and lacked any genuine acceptance of guilt and so will not be treated as a mitigating factor. [ 38 ] I find the following to be aggravating factors. Andrews has not accepted responsibility for his actions, has not shown remorse, he will not seek treatment, and he blames the victim. Sentence: [ 39 ] The following cases have been reviewed in preparation of these reasons: R v Berry, [2015] BCCA 2010; R v Burke, [2014] BCSC 2082; R v Esquega, [2009] O.J.

No. 514 ; R v Garret, [2014] ONCA 734; R v G(M,) [2015] BCCA 165; R v M.B.M.M., [2015] BCPC 2; R v Pouce Coupe, [2014] BCCA 255; R v P.S., [2017] BCPC 173; R v Rosenthal , [2015] YKCA 1; R v Untinen , [2016] BCSC 436; R v Walkus, [2016] BCSC 2657; R v Wells, [2000] SCC 10; R v Kanthasamy, [2005] BCWLD (BCSC) 4219; R v WCD, 2007 BCSC 1912 ; R v Stevens, 2104 BCPC 141; R v Malik, 2012 BCSC 502 ; and R v Johnson, 2002 YKSC 13 . [ 40 ] From R. v Pouce Coupe and R. v Wells , supra , it is clear that that a sentence of between 2 and 6 years is appropriate and that denunciation and deterrence are of paramount importance in sentencing in cases of serious sexual assault.

As I have found this to be a case of serious sexual assault, these are the principles and this is the general sentencing range which should apply in this case. [ 41 ] The confinement and threatening that accompanied this serious sexual assault are common to other cases.

Indeed, in most sentencing decisions on serious sexual assaults, there is some form of confinement as well as threatening. [ 42 ] As these often are charged together, the sentences imposed in prior cases are often global sentences for the entire series of events rather than individual sentences for each separate offence charged. [ 43 ] While the guiding principles of sentencing in serious sexual assault cases require that the court place more weight on a sentence that deters and denounces rather than on sentences that seek to rehabilitate, the court must still consider rehabilitation. [ 44 ] Andrews has not accepted the role he played and so rehabilitation is of further reduced importance to the sentence to be imposed. [ 45 ] When I look at some of the cases above, I find that sentences of up to 15 years have been imposed.

When I look at others I see sentences of below 2 years. It is often hard to reconcile many of these cases with each other. [ 46 ] In some of these cases, the fact pattern is far more serious facts in that the victim was tortured or the accused had a very long and or related record and that may explain the longer sentences. However, in some of the other cases above, the sentence imposed is for a fact pattern that appears to be very serious and yet sentences of less than 2 years have been imposed.

As I said, these cases are often hard to reconcile. [ 47 ] The one thing that I noted that was consistent was that sentences of 5 years or more are imposed for similar offences only when the defendant had a longer or related record or was facing other charges.

Andrews does not have a long or related record and is not facing other charges so, of the 2 to 6 year range set out above, the upper range of 5 and or 6 years is not appropriate in sentencing Andrews; rather the proper range for him is probably more likely between 2 and 4 years. [ 48 ] I come now to one last point that I have not made above but which causes me to be of the opinion that Andrews should not be sentenced at the lower end of that range. That point is that Andrews in many respects abused the trust that the complainant had put in him.

He had no place to stay and she trusted him enough to give him access to her home and he abused that trust.

Based on this abuse of trust along with all the other factors present, I find that this defendant should be sentenced at the higher end of the stated range of appropriate sentences. [ 49 ] When I take into consideration all of the factors mentioned above including the mitigating and aggravating factors, the crime as it was committed, the need to deter and denounce, as well as the case law provided I find that the appropriate sentence in this case is 42 months as a global sentence and that is the sentence I impose.

As Andrews has served 22 months and 7 days with enhanced credit, he will serve a further 19 months and 3 weeks (the figure of 30 days may be substituted for each of the 19 months imposed). [ 50 ] I also impose the following ancillary orders: a DNA Order is made in that the defendant will provide a sample of his DNA sufficient and appropriate for inclusion in the DNA Databank; he will abide by a s. 109 Firearms Prohibition Order for 10 years; he will be registered on and abide by a SOIRA National Registry Order for 20 years, and he will have no contact with the complainant in this matter for the time that he is in custody s. 743.21.

The Honourable Judge J.G. Cohen The Provincial Court of British Columbia