R. v. Melendez Date:, 2016 BCPC 91

Citation: R. v. Melendez Date: 20160404 2016 BCPC 0091 File No: 221836-2C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ISMAEL ANTONIO FAJARDO MELENDEZ REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: Gail Banning Counsel for the Defendant: Michael Shapray Place of Hearing: Vancouver , B.C. Date of Hearing: March 22, 2016 Date of Judgment: April 4, 2016

Introduction [1] The accused was convicted of sexual assault and touching a person under the age of 14 years for a sexual purpose. This courtmust consider the facts, the circumstances of the accused, as well as, the relevant case law and impose a sentence that is fit andappropriate. Circumstances of the offence [2] In October of 2006, the victim, B.G. who 8 years old and her brother were placed by the Ministry of Child and FamilyDevelopment into a foster home operated by the offender and his wife.

On February 20, 2007, B.G. and her brother returned to live withtheir mother. [3] While B.G. was living with the offender there were occasions when B.G. and her brother were left alone with the offender. Onsome occasions the offender would lie on B.G. and “bump up and down”, he fondled B.G’s vagina, he inserted his fingers into hervagina, he kissed her and he put his tongue into her mouth. The offender also tried to insert his penis into B.G.’s vagina. The sexualactivity happened on a number of occasions. [4] In December of 2007, B.G. told her mother what had happened.

The next day B.G.’s mother notified the Ministry of Childrenand Families. Social workers did not meet with B.G until February 12, 2008, and even though B.G. had disclosed the assaults to theMinistry they did not notify the RCMP until March 11, 2008. [5] The RCMP did not interview or even meet with B.G. until April 2, 2008. The RCMP then interviewed the offender on July 4,2008.

Thereafter, and with no further investigative steps required, the matter simply remained dormant for a number of years. [6] In and around June of 2011, the file was given to Crown and charges were sworn on December 28, 2011 and a warrant wasissued. On January 13, 2012, the offender was arrested and released on restrictive bail conditions. Background of the offender [7] The offender is 70 years old. He was born and raised in El Salvador. He left school at 14 years of age and he began working.

In 1988, the offender, his wife and their two children immigrated to Canada. [8] Since coming to Canada, the offender obtained certificates in English and building maintenance. He is employed as a janitorand he has worked in this capacity for over twenty years. The offender and his wife raised two children who are now adults. Theoffender and his wife have been foster parents for approximately 10 years wherein they helped approximately 65 children. The offenderhas no criminal record and the material presented suggests the offences were out of character and opportunistic.

In this regard, the pre-sentence report observed, “The subject’s criminal offending may be correlated with poor judgment, impulsiveness and opportunism.” [9] As for the offender’s health, he suffers from diabetes, high cholesterol, failing eyesight and high blood pressure. He hasexperienced problems with depression. These problems appear to be related to his current legal problems. [10] A psychological assessment was prepared by, Dr. Speth. During the assessment Dr. Speth noted the offender was superficiallycooperative and that he presented as evasive and did not directly answer questions. Dr.

Speth felt the offender tended to project blame onto B.G. by stating that she was a flirt. It was Dr. Speth’s view that the offender was a low risk to re-offend provided that he wasmonitored. As for treatment, Dr. Speth felt the offender’s entrenched denial and minimization would make treatment difficult. Position of the parties [11] The Crown argues the circumstances justify a 4 year custodial sentence. The Crown also seeks a firearms prohibition, a DNAorder, an order that the offender comply with the Sex Offender Registration Act and a prohibition pursuant to s. 161 of the CriminalCode.

In support, the Crown points to the aggravating factors, the seriousness of the offence, the degree of offender responsibility andthe need for denunciation and deterrence. The Crown relies on the following authorities: [12] R. v. A.G.A., [2010] ABCA 61: The Crown appealed a 3 year sentence. The offender was convicted of sexual assault, invitationto sexual touching and sexually touching a young person. The offences spanned several years and involved multiple acts including analpenetration. The appeal was allowed and the sentence was increased to 5 years.

In the decision the court stated at paragraph 9: The appropriate starting point for a single serious sexual assault on a child by a person in a position of trust is 4 years: R. v. S.(W.B.)(1992), (AB CA), 127 A.R. 65 (Alta. C.A.) [13] With the greatest of respect, I do not find the above statement to be consistent with the jurisprudence in British Columbia. [14] R. v. B.W.J. (Nfld. C.A.), [1993]: The Crown appealed a cumulative sentence of 5 ½ years. The appeal was allowed and acumulative sentence was increased to 8 years.

The circumstances of the case involved multiple victims, multiple offences, over a 3 yearperiod wherein the victims were each assaulted on an average of 2 to 3 times per week. [15] R. v. Chaput, [1996] 84 B.C.A.C. 281: The offender’s appeal of a 6 year sentence for offences involving his step daughter wasdismissed. The offences occurred over 6 years and involved fondling and forced intercourse. [16] R. v. G.P.H., [2004] B.C.P. C. No. 286: The offender was sentenced to imprisonment for 5 years after he was convicted ofsexual offences in relation to a young girl who was being fostered at his home.

The offences started when the victim was 11 years old

and continued even though there was a restraining order preventing contact had been put in place. The offences involved regular forcedintercourse. [17] R. v. R.E.L., [2010] BCCA 493: The offender’s appeal of a 5 year prison sentence was dismissed. The offender sexually abusedhis stepdaughter for 6 years commencing when she was six years old. The offences involved fondling, digital penetration, and attemptedintercourse. [18] R. v. S.M., 2011 ONSC 6752: The offender was sentenced to imprisonment for 4½ years. The offender was the victim’s fosterparent.

The offences occurred over a 4 year period and involved regular sexual contact including intercourse. [19] R. v. T. F. R., 2004 ONCJ 81: The offender was sentenced to imprisonment for 1 year after he pleaded guilty to sexualoffences. The victim was 8 years old and was in care of the offender’s common law spouse. The offences involved touching andrubbing the victim’s vaginal area on the outside of her clothing and on one occasion under her clothing. [20] R. v. T.K., 1995 N.W.T.J. No. 41: The offender was sentenced to 5 years imprisonment after pleading guilty to offencesinvolving a victim under 14 years of age.

The case contains so little information regarding the facts, respectfully, it is of no assistance. [21] R. v. W.B.S.; R. v. Powderface (1992), (AB CA), 73 C.C.C. (3d) 530 (Alta. C.A.): The Crown appealed thesentences of two offenders convicted of sexual assault. In the case of W.B.S., the appeal was allowed and the sentence was increasedfrom 3 years to 7 years. The offences involved several acts of anal intercourse involving the offender’s step children. The offences werenumerous and occurred over a period of time.

The facts in Powederface, are so distinctive from the instant matter that the case is oflimited assistance. [22] All of the cases cited by the Crown involve offenders who were in a position of authority over the victim and who weretypically first time offenders. I also observe that the cases generally involve offending that occurred over a longer period of time than theinstant case and that were typically more intrusive. [23] Counsel for the offender argues a fit and appropriate sentence is a custodial sentence in the range of 12 - 18 months.

In supportof his position counsel points to the mitigating factors and relies on the following authorities: [24] R. v. Safaee, 2009 BCCA 367: The offender’s appeal of an 18 month custodial sentence was dismissed. The offender pleadedguilty to sexual offences involving a 6 year old child who was registered at his wife’s day care. The offences involved repeated incidentsof showing the child pornography, vaginal touching and having the child touch him. [25] R. v. R.E.M., 2005 BCSC 698: The offender was sentenced to an 18 month term of imprisonment after being convicted of sexualoffences involving his stepdaughter.

The offences occurred 15 years before the sentencing hearing. The offences involved sexualcontact when the victim was nine and stopping when she became pregnant at 16. In imposing the sentence, the sentencing judgeobserved the offender’s wife was ill. [26] R. v. Rennie, 2013 BCSC 909: The offender was sentenced to a cumulative sentence of 22 months for sexual offences involvingtwo young children. At the time of the offences, the offender was living with the victims and their mother. The offences occurred oversix months and involved fondling, rubbing of the buttocks and kissing.

The offender had an unrelated criminal history, he had mentalhealth issues and substance abuse issues. [27] R. v. F.E.H. 2015 BCSC 175: The offender was sentenced to imprisonment for 38 months after he was convicted of sexualoffences involving his stepdaughter and her friend. There were several incidents of fondling, digital penetration and having the victimstouch his penis. [28] R. v. G.S.M. 2011 BCPC 167: The offender was sentenced to 2½ years imprisonment after he pled guilty to sexual offencesinvolving two young victims. The offences occurred over an 18 month period and involved fondling, and oral sex.

It was estimated thatthere were approximately 50 incidents. [29] R. v. Goff 2009 BCSC 1621: The offender was sentenced to imprisonment for 30 months after he pled guilty to sex offencesinvolving two young complainants. The offences involved fondling, digital penetration and having the victims touch his penis. It isnoteworthy that the sentence was based on a joint submission. Purposes and principles of sentencing [30] The purposes and principles of sentencing are set out in ss. 718 - 718.2 of the Criminal Code.

In this regard, the fundamentalpurpose of sentencing is the imposition of a just sanction that contributes to respect for the law and the maintenance of a just, peacefuland safe society. [31] The fundamental purpose of sentencing is achieved by the imposition of a sentence that has specific objectives; such asdenunciation, deterrence, rehabilitation, reparations, and the promotion of a sense of responsibility. For those cases involving the abuseof children, s. 718.01 declares that the primary sentencing objectives must be denunciation and deterrence.

Section 718.01 provides: When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primaryconsideration to the objectives of denunciation and deterrence of such conduct. [32] In addition to the above, s. 718.1 of the Code, also requires that the sentence imposed must be proportional to the seriousness ofthe offence and the degree of offender responsibility. [33] A further sentencing consideration is the impact of aggravating and mitigating factors. In this regard, s. 718.2 of the Code,provides in part:

A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, … (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years. … (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, shall be deemed to be aggravating circumstances. [34] Accordingly and as per, R. v.

Allen, (2012), 2012 BCCA 377 , 293 C.C.C. (3d) 455 BCCA, some of the discretionafforded to a sentencing judge is circumscribed by the above Code sections. Aggravating circumstances [35] I find the following to be aggravating. The offender took advantage of B.G.’s vulnerabilities. Specifically, he took advantage ofB.G.’s age and her emotional state. He also took advantage of the trust that B.G. had in him and the trust that the Ministry had whenthey placed B.G. in his care. A further aggravating factor is the acts committed were repeated and involved various types of sexualviolations.

Mitigating circumstances [36] The offender does not have a criminal record. He has been a contributing member of society and he has the support of hisfamily. [37] The conditions of bail that were imposed are greatly mitigating. This is not simply because of the nature of the terms, rather, itis a combination of the nature of the terms, the length of time that he was bound by them and the impact that the terms had on theoffender. [38] With respect to the above, on January 13, 2012, the offender was released on a recognizance bail containing several terms andconditions.

The bail conditions required the offender to report in person on a bi-weekly basis. He was also prohibited from attendingparks, playgrounds, swimming areas, recreation centres, libraries, or any day care. Further, he was not permitted to engage in activitythat involved contact with a person under the age of 16 years old. [39] Given the conditions that bound the offender he could not go to the family home because his daughter operated a daycare onthe lower level of the home. As such, and given the offender’s financial circumstances he slept on the floor of his son’s automotivebusiness.

A further implication of the bail conditions was that the offender could not have contact with his younger grandchild. [40] The above conditions have been in place for more than 4 years without any breaches by the offender. Analysis [41] The circumstances of the instant case mandate that the primary purpose of the sentence imposed must be denunciation anddeterrence. In R.E.M., Mr. Justice Romilly commented on the need for denunciation and deterrence and their role in the sentencingprocess. At paragraph 32 Mr.

Justice Romilly stated: It is my view that a clear message must be sent to every person in a position of trust in relation to a child that sexual contact with themwill not be tolerated in this society and that it will result in lengthy periods of imprisonment being imposed. I note that in R. v. Stone(1999), (SCC), 134 C.C.C. (3d) 353 (S.C.C.), the Supreme Court of Canada, at para. 239, considered the objectives ofthe sentencing process and stated: It is incumbent on the judiciary to bring the law into harmony with prevailing social values.

This is also true with regard to sentencing.To this end, in M.(C.A.), supra, Lamer C.J. stated, at para. 81: The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender'sconduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct shouldbe punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. ... Our criminal law isalso a system of values.

A sentence which expresses denunciation is simply the means by which these values are communicated. Inshort, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a mannerwhich positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code. [42] I do not see rehabilitation being a sentencing objective in the instant case. I hold this view because of the minimization, the factthe offences were driven by impulse, the lack of related history and Dr.

Speth’s comment that the offender is a poor candidate fortreatment. [43] With respect, ensuring that the sentence imposed is proportional, the offences were serious. This simple statement that thesexual assault of a young child is a serious offence does not adequately communicate how damaging such conduct is. With this in mind Inote, the harm caused by the abuse of a child was commented on in R. v. S. (W.B.), (AB CA) wherein the court stated: When the victim of a major sexual assault is a child, it is also no doubt true that such an assault frequently results in serious

psychological harm to the victim. When a man has assaulted a child for his sexual gratification, then, even if no long-lasting physical trauma is suffered by the child, it is reasonable to assume that the child may have suffered emotional trauma, the effects of which may survive longer than bruises or broken bones, and may even be permanent.

One consequence of being abused sexually may be that the child will never be able, as an adult, to form a loving, caring relationship with another adult of the opposite sex, being always fearful, even unconsciously, that such a partner will use sexual acts to hurt him or her rather than as an intimate expression of caring and affection. There is no empirical way of proving that a particular child victim's emotional trauma will or will not make it more difficult or impossible for him or her to love another, without fear of abuse.

We have only the recorded experiences of men and women who attribute their difficulties as adults in forming mature and fulfilling relationships to their having been abused sexually when they were children. Another consequence of being abused sexually may be that the child, when he or she becomes an adult, will treat a child or children as he or she had been treated as a child — that is, he or she may abuse a child sexually. There is no empirical way of proving that a particular child victim, when he or she becomes an adult, will do to some child what has been done to him or her.

We do know that sentencing judges are commonly told by defence counsel that the accused claims to have been sexually abused by a man (or by a woman, or both) who had stood in a parental relationship to him or her when he or she was a child. Victim Impact Statements [ 44 ] B.G. and her mother provided Victim Impact Statements. B.G’s statement reads: I really don’t know where to start with this. I’ve never actually talked about any of this except for when I went to court for it. But ever since I went to foster care when I was seven, my life changed drastically.

I was young and sad and confused because I didn’t understand why me and my little brother were taken from my mom and put in a home with people I had never met before … All I knew was that I was supposed to trust them, which ended in a terrible way. Ismael was supposed to be my caregiver, guardian, like a father figure, but instead he took advantage of me and put me through something that no one should ever have to go through. He broke my trust, and now it’s so difficult for me to trust anyone. I push people away because I get scared that they’re going to betray me. I get really bad anxiety around people.

I have depression. I just can’t trust anyone, nor can I properly be with a guy because I constantly think they’re going to lie to me or take advantage of me. I often yell and fight with people, and I cry all the time. I used to self harm, and it’s difficult because I wasn’t able to talk about any of this to anyone for seven years so I had to bottle it all inside of me and pretend that everything was okay, even though I was far from it. I distanced myself from my friends, family, everyone.

It has been difficult and it’s really hard for me to deal with everything. [ 45 ] Turning to the circumstances of this case, there is no doubt the accused’s conduct was serious. He used his position of trust and B.G.’s vulnerability to violate her for his own gratification. In doing so, he caused emotional harm to B.G. and her mother. This harm occurred at a time when B.G.’s life was troubled and disorganized as she had been recently removed from her mother’s care. It is clear that the harm caused exists to this day for both B.G. and her mother.

Decision [ 46 ] In arriving at a fit sentence, I recognize that the conduct in the instant case was not as continuous or to the extreme as reported in some of the cases cited by the Crown. Despite this, the offender took advantage of the trust vested in him when he violated the innocence and physical integrity of B.G. Were it not for the mitigating factors the sentence that I am about to impose would have been longer. [ 47 ] After considering all of the circumstances and the authorities cited, it is my view that a fit and appropriate sentence is a custodial sentence of 2 years less a day.

Ancillary Orders [ 48 ] Pursuant to s. 109 of the Code the offender is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device or prohibited ammunition for life. [ 49 ] Pursuant to s. 487.051 of the Code, I direct that the offender provide a sample of his DNA. [ 50 ] Pursuant to s. 490.013(2.1) of the Code, I direct that the offender comply with the Sex Offender Information Registration Act for life. [ 51 ] The Crown also seeks the imposition of an Order of Prohibition pursuant to s. 161 of Code.

After considering all of the facts and circumstances, including the offender’s risk to re-offend I make the following prohibition. [ 52 ] The offender is prohibited for life from the following

a) Attending any school ground or playground;

b) Seeking or obtaining any employment whether or not the employment is paid or by becoming a volunteer in a capacity that involves being in a position of trust or authority towards a person under the age of 16 years;

c) Not to have any contact with a person under the age of 14 years, unless, such contact occurs while you are in the immediate presence of an adult.

[ 53 ] The victim fine surcharge is waived. [ 54 ] The offender will be placed on probation for 3 years with the statutory terms and a condition of no contact with B.G. or her mother. _____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia