R. v. D.R.D., 2017 BCPC 445

Citation: R. v. D.R.D. 2017 BCPC 445 Date: 20171013 File No: 219941-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. D.R.D. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. GAFFAR BAN ON PUBLICATION PURSUANT TO S. 486.4(2) OF THE CRIMINAL CODE Counsel for the Crown: A. Jantunen Counsel for the Defendant: D. Redekopp Place of Hearing: Surrey , B.C. Date of Hearing: October 13, 2017 Date of Judgment: October 13, 2017 [ 1 ] D.R.D. (“Mr. D.”) has pled guilty to the sexual interference of J.B. (“Ms.

B.”) who was a person between the ages of [omitted for publication] during the commission of this offence. More precisely, Mr. D. has pled guilty of touching J.B. on her person either directly or indirectly with a part of his body during the period of January the 1st, 2010 and September the 1st, 2011. [ 2 ] I do not intend to repeat the precise details of the sexual touching. They are contained in Exhibit 1 of the Admissions of Fact filed in these proceedings. I will observe that the touching was serious and, no doubt, devastating for Ms. B.

[ 3 ] There are many principles of sentencing that I must apply to these proceedings. They may sound confusing or difficult to comprehend to the layperson, but when I am sentencing an individual, I must apply an individualized process. I must consider not only all of the circumstances of their crime, but I must also consider their personal circumstances and balance, in a way, the various factors that the law tells me I must consider. [ 4 ] It is an imperfect tool.

It is not a tool that is going to satisfy everyone, and it is not a tool that can make a person whole again, but it is the only and the best tool that we have. [ 5 ] In sentencing, and in this sentencing, I place more weight on the sentencing principles of denunciation and deterrence in accordance with s. 718.01 which clearly applies to crimes inflicted on children. [ 6 ] Also, clearly, I must impose a sentence that reflects the community's condemnation of Mr. D.'s conduct. Equally, I must impose a sentence that serves to deter Mr. D. and others from similar conduct.

However, I must also consider, albeit to a lesser extent, a sentence that assists Mr. D. in rehabilitation and promotes a sense of responsibility. [ 7 ] The sentence should be proportionate to the gravity of the offence and the degree of responsibility of Mr. D. In other words, I must balance the seriousness of this offence and the moral culpability of Mr. D. [ 8 ] I must also consider a sentence that strives to provide reparations for the harm done to Ms. B. and to the community. Public protection is also a relevant sentencing consideration. [ 9 ] The high gravity of this offence calls for Mr.

D.'s conduct to be denounced in the strongest of terms. It calls for a sentence in custody. I note that the Criminal Code normally provides for a mandatory minimum sentence in these circumstances. [ 10 ] I have considered all of the materials provided to me in this sentencing. Most significantly, the victim impact statement by J.B. Although it may be in point form, it was direct and absolutely clear about the devastation that has been brought on her by Mr. D. [ 11 ] I have also considered the Pre-Sentence Report, which clearly defines Mr.

D.'s personal circumstances and, in particular, provides a very clear basis for his depression. I note that his father died when Mr. D. was 17 years old, that his brother committed suicide when his brother was 37 years old, that his spouse died immediately preceding these offences in 2010. [ 12 ] I also note that the Pre-Sentence Report identifies the sex offender programming and training that Mr.

D. has undertaken beginning in 2012, which is the Forensic Sex Offender Program at Ford Mountain Correctional Centre, entailing 14 sessions, as well as the Sex Offender Maintenance Program while he was on probation in the community, which was a two-year program. [ 13 ] I have reviewed the Psychological Report. It most notably indicates that the psychological testing, as well as the clinical assessment, provides that Mr. D. is at the low risk for reoffending. I am somewhat cautious about the report, in that the psychologist did not seem to appreciate the circumstances of Mr.

D.'s life that clearly displayed a basis for depression. [ 14 ] I turn now to the aggravating and mitigating circumstances that I am required to consider in these proceedings. Aggravating circumstances are those circumstances that might increase a sentence. Mitigating circumstances are those circumstances that might tend to lower a sentence. [ 15 ] The first mitigating circumstance is that this offence constituted an abuse of trust, and an abuse of the trust of family friends who had placed their child in the care and responsibility of Mr. D.

It was the most violent abuse of that trust. [ 16 ] I also consider as an aggravating circumstance that the abuse lasted for an extended period of time. [ 17 ] I consider as a more attenuated, or I should say, I am more cautious about accepting that Ms. B.'s age of [omitted for publication] is an aggravating circumstance, because it is also the exact criteria for the offence, which requires that the person be under the age of 16.

In the totality of the circumstance, I find that it is an attenuated aggravating circumstance. [ 18 ] I consider as an aggravating circumstance that the offence had a significant impact on Ms. B. given her age and her circumstances. And I also consider that the age difference between Mr. D. and Ms. B. was significant and aggravating. [ 19 ] I decline to consider the kind of touching to be an aggravating circumstance because it clearly forms the gravamen of the offence. However, I do consider, as an aggravating circumstance, that there is a criminal record for the identical offence on Ms. B.’s older sister.

That is a conviction from 2016 for which Mr. D. received a one-year sentence and three years' probation, both of which have expired. It is an aggravating circumstance. In some part, it is attenuated only because this offence occurred at the same time as the offence against Ms. B., but it remains an aggravating circumstance and I will not ignore it. [ 20 ] There are mitigating circumstances as well. From the outset, Mr. D. has admitted responsibility to the police, to the courts, to the writers of the Pre-Sentence Report and the Psychological Assessment. He has spared Ms.

B. from having to testify in court, and he has spared court resources in the prosecution of this offence. [ 21 ] As an additional mitigating factor, I accept his guilty plea as an acceptance of responsibility. This is important because it is a significant mitigating factor. It shows his insight and therefore increases his prospects of rehabilitation.

It lowers his risk to other young persons and to the community. [ 22 ] He has also expressed remorse from the outset and that is a mitigating circumstance. [ 23 ] Another significant mitigating circumstance is that he has acted on his remorse and his insight by fully participating in rehabilitative programs. I quote from the Pre-Sentence Report, at page 5: Mr. D. was referred to the Forensic Sex Offender Program while completing a 12-month jail sentence at Ford Mountain Correctional

Centre in 2012. The treating psychologist, Dr. L. Piche, confirmed Mr. D.'s successful completion of the 14-session program in December 2012. She related that Mr. D. did well in the program and appeared to understand the program materials. In addition, Mr. D. fully participated in a group sex offender maintenance program while subject to probation supervision at the Langley Community Corrections Office. He was enrolled in the monthly program from January 2013 until December 2015. Mr. D. reported as directed to his probation officer throughout his three-year supervision term.

He did not accumulate any new charges or convictions during his term of probation supervision. These comments demonstrate that Mr. D. is manageable in the community. [ 24 ] The Crown and the defence have provided joint submissions. In law, I find that the joint submission is not outside the range and it does not bring the administration of justice into disrepute. I find that the appropriate sentence to be imposed is as follows. Mr. D., please stand. [ 25 ] Mr.

D., you are sentenced to a term of custody of two years less one day. [ 26 ] At the conclusion of your term in custody, you will be placed on probation for a period of three years.

The terms of your probation will be as follows. [ 27 ] You are to keep the peace and be of good behaviour. [ 28 ] You must appear before the court when required to do so by the court. [ 29 ] You must notify the court or your probation officer seven days 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. [ 30 ] Within 72 hours of your release, you must attend in person to a probation officer at unit 102-14245 56th Avenue in Surrey, British Columbia, and thereafter as and when directed.

That is the probation office located just next door to this courthouse. [ 31 ] You are to reside where directed by your probation officer and not change that address without the prior written consent of your probation officer. [ 32 ] You are not to have any contact or communication directly or indirectly with J.B. [ 33 ] You are not to have any contact or communication directly or indirectly with any female person under the age of 16 years, except with the prior written approval of the court or your probation officer. [ 34 ] You are to attend at the Forensic Outpatient Clinic closest to your residence.

At that clinic, you shall attend, participate and complete such counselling and assessment or programs for sex offenders as directed by your probation officer. [ 35 ] You are to attend, participate and complete such counselling as directed by your probation officer. [ 36 ] You shall immediately advise your probation officer of all relationships with the parents or guardians of persons under the age of 16 years, and consent to those individuals being informed of your criminal history in the presence of the probation officer. [ 37 ] You are not to attend on the property of any park, playground, schoolground, public swimming area, community centre or daycare centre. [ 38 ] You are not to seek any employment or volunteer positions where children under the age of 16 years may be expected to be present. [ 39 ] You are to comply with the terms of the Sexual Offender Information Registry Act for lifetime. [ 40 ] You are to provide a sample of your DNA.

I order that a sample of that DNA be taken prior to your transfer to a correctional facility by the sheriffs. [ 41 ] The DNA order is pursuant to s. 487.051(2). The reporting under the Sexual Offender Information Registry is pursuant to s. 490.013(5). [ 42 ] I am required to impose a victim fine surcharge. I make that payable forthwith. I find you in default and sentence you to one day in custody concurrent to all other sentences. (REASONS FOR SENTENCE CONCLUDED)