R. v. T.G.D. Date:, 2012 BCPC 397

Citation: R. v. T.G.D. Date: 20121019 2012 BCPC 0397 File No: 222724-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. T.G.D. BAN ON PUBLICATION 486.4(1) CCC RESTRICTED ACCESS EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.GALATI Counsel for the Crown: I. Friesen Counsel for the Defendant: A. Willms (as Agent for B. Coleman, QC)

Place of Hearing: Vancouver , B.C. Date of Hearing: October 19, 2012 Date of Judgment: October 19, 2012 [ 1 ] THE COURT: T.G.D. has pleaded guilty to three sexual offences involving three different children. One of the children is his biological daughter and that offence, being incest contrary to s. 155(2) of the Criminal Code , is reflected in Count 5 of the Information. The other two children were his stepdaughter and stepson. Those offences, commonly referred to as sexual interference, are contrary to s. 151 of the Criminal Code and are respectively embodied in Counts 2 and 11 of the Information.

The offences occurred at various times over a period of approximately four years. [ 2 ] His biological daughter, B.R.D., and I am just going to stop for a moment. I am using initials throughout for what is perhaps the obvious reason and I am going to ask counsel to pay particular attention because some of these initials are quite similar. In the event that I make a mistake, I do invite you to interrupt me and let me know. All right. [ 3 ] His biological daughter, B.R.D., was the product of a six-year marriage which ended in 2000 when T.G.D. abandoned his wife and then two-year-old daughter.

Commencing in 2002, T.G.D. was involved in a common law relationship with the mother of his stepchildren, his stepdaughter, A.B.K., and stepson, B.W.K. That relationship also produced a daughter who was not offended against. [ 4 ] T.G.D.'s offending commenced against A.B.K. in 2007 when she was approximately 10 years old and continued for approximately two-and-a-half years.

Thereafter, T.G.D. offended against B.R.D. and B.W.K. for the further period of approximately two-and-a-half years while they were also between the ages of 10 and 13 years. [ 5 ] The initial disclosure which led to the arrest of T.G.D. was made by A.B.K. in the latter part of 2011. T.G.D. was fully cooperative with the investigation and appears to have provided the best particulars of the abuse he inflicted on the three children.

I quote from the presentence psychological evaluation report with respect to those particulars [as read in]: Asked about the index offences, T.G.D. states that his sexual offending began with his stepdaughter, A.B.K., when she was approximately nine or 10 years of age. In providing some history and context of the offending, he states that historically, the family was open with regard to sexuality and nudity. He states that as his stepdaughter began to physically develop, he became interested and sexually aroused by her.

Although he states he was becoming conflicted and uncomfortable, he coped with this by trying to ignore it. He states eventually he found himself becoming very sexually and romantically attached to her and that this led to talking to her about how he felt when she was approximately nine years of age. He had also conveyed to her that if she had any questions about sexuality, that she can come to him for answers. He states that they eventually began talking about sex and then acting on his suggestions, first by sexual touching, then to mutual masturbation, and then to mutual oral sex.

He states that he would often approach her for sexual contact and that she increasingly became reluctant to engage with him. He states, however, that he would be able to convince her or bribe her through exchanging favours for sex. He states that the sexual contact with A.B.K. eventually ended when she was approximately 12 years old after she had said to him she no longer wished to participate and that she was "not a hooker." T.G.D. reports that the sexual offending behaviours with his stepson, B.W.K., and his biological daughter, B.R.D., began after he had stopped offending against A.B.K.

He states that both B.R.D. and B.W.K. were approximately one year younger than A.B.K. As with his stepdaughter, T.G.D. reports that he began to notice B.R.D. developing secondary sexual characteristics and increasingly became sexually attracted to her. He reports that after he had found out that B.W.K. and B.R.D. had been playing truth or dare together, he became curious, intrigued, and aroused. This reportedly led to his approaching both of them to arrange for a sex talk together. He admits that he did this with ulterior motives of hoping for sexual contact with both B.W.K. and B.R.D.

He asked both children to write a list of questions about sexuality and later would arrange for the three of them to participate in sexual conversation and activities. He states that the sexual contact began with having both B.W.K. and himself sucking on B.R.D.'s breasts and touching penises. Sexual behaviour then progressed to oral sex and mutual masturbation, often involving himself, B.W.K., and B.R.D., but sometimes involving his daughter or stepson alone. He also states that with B.R.D., sexual contact progressed to having sexual intercourse with her on an estimated three occasions.

T.G.D. guesses participating in between 15 and 20 occasions of joint sexual activity with both B.R.D. and B.W.K. and perhaps 20 occasions when he and B.W.K. were alone and engaging in sexual behaviour. He reports the last incident of sexual contact occurred with B.W.K. in mid-October of 2011. [ 6 ] I should note that T.G.D. told the author of the presentence report that there were four separate incidents where there was penetration involving B.R.D. [ 7 ] T.G.D. is 39 years old and, until the time of his arrest, he had been steadily employed as a security guard for several years. He has no prior criminal record.

The presentence reports indicate that T.G.D. grew up in a negative and abusive family environment which included physical and sexual abuse by his father. He struggled in school and ultimately left home at age 14. [ 8 ] He appears to have had little residential stability until he married the mother of B.R.D. at approximately age 21.

That relationship was often strained by reason of his sexual infidelity which continued in the early part of his relationship with the mother of A.B.K. and B.W.K. [ 9 ] T.G.D. reports an early history of attention deficit hyperactivity disorder and a diagnosis of bipolar disorder in 2002, in respect of which he has since then taken prescribed medications. He also reports the early use and abuse of alcohol and marihuana which continued into his early 20s.

His more recent history is reflective of occasional use of marihuana and alcohol. [ 10 ] T.G.D. reports a chronic pattern of sexual promiscuity through much of his early adult years, but he says that he was faithful to

his common law wife for several years until he began offending against the children. With one exception when he was 19 years old, T.G.D.'s sex partners have all apparently been age-appropriate females. He reports a high sex drive and arousal to heterosexual and lesbian sexual scenarios as well as incest themes. He denies and there is no evidence of the use of child pornography. [ 11 ] Dr. Bartel, the author of the presentence psychological evaluation report, is of the view that apart from possible bipolar disorder, there is no indication that T.G.D. suffers from any other mental illness or personality disorder.

He describes the likely presence of a paedophilia paraphilic disorder involving a pattern of deviant sexually arousing fantasies, urges, or behaviour, specifically involving sexual activity with prepubescent children. [ 12 ] Further, Dr. Bartel notes that T.G.D. is not primarily and exclusively paedophilic and that his sexual attraction to children within his own family is related to his sexual attraction to incest themes. [ 13 ] With respect to Dr.

Bartel's risk assessment, I again quote from his report as follows [as read in]: On the issue of risk, it is my opinion that T.G.D. is at a high risk for future sexual offending specifically against prepubescent children. His risk is indicated primarily by repeated sexual offending against prepubescent children and deviant sexual arousal to children in themes of incest. Additional risk concerns include T.G.D.'s high level of sexual arousal and drive and what he describes as an addictive quality to sex where he often sexually acts out impulsively and compulsively despite feelings of guilt and self-reproach.

Further risk factors include his own childhood sexual victimization, mental illness (bipolar disorder), substance use problems, and relationship problems. Some positive factors associated with this case include lack of criminal history and absence of multiple forms of deviant arousal, the lack of physical harm caused to the victim, and no extreme minimization and denial of sex-offending behaviours. He also displays a positive attitude towards the need for intervention. T.G.D.'s risk is centred on prepubescent or early adolescent children.

His risk pertains mostly to children within his own family, although the possibility of offending outside of his family remains, particularly should he establish a close relationship with them. [ 14 ] Through counsel, T.G.D. takes some issue with Dr. Bartel's opinion on the basis that very little psychological testing was done and that there is, accordingly, no identified basis for the risk assessment.

In this regard, I note that T.G.D. was administered the Personality Assessment Inventory to assess psychological functioning and psychopathology and the Weschler Abbreviated Scale of Intelligence in respect to general cognitive and intellectual functioning. [ 15 ] In both cases, he was found to be within normal or average limits and Dr.

Bartel noted there was no indication of personality disorder or mental illness other than bipolar disorder which has apparently been well managed by medications and, in any event, was not a primary contributing factor to the commission of the offences. [ 16 ] The diagnosis of paraphilia was not based on test results, but rather on the circumstances of T.G.D.'s offending as reported by him. The risk assessment is also based on the fact of and the circumstances of the offences as well as T.G.D.'s reporting of his personal characteristics and thought processes.

There is no evidentiary basis upon which to dispute either the diagnosis or Dr. Bartel's opinion of T.G.D.'s risk to reoffend. [ 17 ] The impact on the victims in this case is, as in all of these cases, significant and likely to be long lasting, if not, to some degree, permanent. All three of them as well as their half-sister have lost their father. As a result of T.G.D.'s pursuit of his own sexual gratification, he has shattered the lives of his children who trusted him and he has damaged their ability to trust other men who may come into their lives as they go forward.

As written by A.B.K. in her victim impact statement [as read in]: I have always been taught outside is dangerous when really my home was always the real danger. [ 18 ] To varying degrees, all three victims and their immediate families appear to be having significant difficulty with the emotional trauma, relationship dynamics, and financial issues which are the aftermath of T.G.D.'s grossly horrific conduct.

Hopefully, they will all persevere and eventually prosper. [ 19 ] I have ignored those portions of the victim impact statements which are not in compliance with s. 722 of the Criminal Code and which properly should have been edited before being filed. [ 20 ] Crown counsel has provided several cases and submits that consecutive sentences of four to five years in respect of Counts 2 and 11 and of five to six years in respect of Count 5 are appropriate in all of the circumstances, but that consideration should be given to the principle of totality to reduce the global sentence to approximately 10 years less the time served to date which is approximately 11 months. [ 21 ] Defence counsel has also provided two recent cases and submits that although a lengthy penitentiary sentence is appropriate, it should be significantly shorter than the global sentence proposed by Crown counsel. [ 22 ] Crown counsel and defence counsel are agreed that the circumstances of this case call for consecutive sentences, but defence counsel submits that as much of the offending against B.R.D. and B.W.K. took place at the same time, it is open to the court to impose two consecutive sentences rather than three, one in respect of Count 2 and the other in respect of Counts 5 and 11 combined. [ 23 ] Although sentences in respect of different offences committed in the course of a single incident are often served concurrently, in the case at bar, those different offences against B.R.D. and B.W.K. involve different victims and are, in my view, separate and distinct.

This militates in favour of three consecutive sentences. In addition, there was also significant offending against B.W.K. in the absence of B.R.D. which also supports the imposition of three consecutive sentences. [ 24 ] In my view, the sentences to be imposed in respect of all three counts must in each case be consecutive to the other and the total sentence must then be considered for adjustment if it is excessive. I have reviewed all of the cases provided by counsel, but of course, each case turns on its own facts and sentencing is a very individualized process.

I found most of the cases lacked sufficient factual similarity to be useful other than as examples of the wide range of sentences which have been imposed in other cases of sexual abuse.

[ 25 ] With respect to the range of sentence, I did find some guidance from the following cases. In R. v. R.A.J. , 2010 BCCA 304 , which involved multiple sexual offences against R.A.J.'s daughter including anal penetration and oral sex, the offences commenced when the child was seven years old and continued through several years often associated with regular beatings in respect of which there was a separate charge of assault. [ 26 ] R.A.J. had no prior convictions. He testified at trial and denied committing the offences.

A global sentence of eight years was found to be fit and several sexual abuse cases involving sentences between four and 12 years were referred to in a discussion of the wide range of available sentences in these types of cases. [ 27 ] Although the circumstances are more aggravating, R. v. R.J.G. , 2007 BCCA 63 , is perhaps the most factually similar, of the cases I have reviewed, to the case at bar. R. v. R.J.G. is a case involving the violation of four young females starting from a relatively early age and into their teenage years. Three of the victims were R.J.G.'s daughters.

In each case, the sexual contact involved intercourse. R.J.G. had no prior record and pleaded guilty. A global sentence of 12 years was found to be fit. [ 28 ] In reviewing the various authorities provided, Madam Justice Saunders at paragraph 20 indicated that the thread which ran through those cases is that incest is a serious offence for which an offender may expect to receive a significant sentence and that multiple offences against multiple victims will result in lengthening of the sentence imposed. [ 29 ] In the very recent decision of R. v.

D.M. , 2012 ONCA 520 , the primary issue was the appropriate range of sentence for prolonged sexual assault including intercourse by a person in authority on a vulnerable young person. The Ontario Court of Appeal reviewed several of its own previous decisions and concluded in no uncertain terms that, in such cases, the minimum sentence will be five or six years in the penitentiary. [ 30 ] The two cases provided by defence counsel, R. v. P.M.A. , 2012 BCPC 159 , and R. v. S.S.E. , 2012 BCSC 1223 , respectively, involved sexual offences against a daughter and a stepdaughter.

In both cases, the abuse included intercourse commencing at age 11 or 12 and continued for several years. P.M.A. was sentenced to six years and S.S.E. was sentenced to six-and-a-half years. The sentences are within the four to 12-year range alluded to in R. v. R.J.G. and are also in accord with the recent clear direction of the Ontario Court of Appeal in R. v. D.M. [ 31 ] R. v.

Allen, 2012 BCCA 377 , which was not referred to by counsel, is a recent decision of the British Columbia Court of Appeal as to the appropriate sentence in a case of a single incident of sexual assault of a 14-year-old boy and the possession of child pornography for the purpose of distribution. [ 32 ] Although the facts are widely divergent from those in the case at bar, the case is useful in that the court considered and reviewed several child abuse cases and, at paragraph 57, Madam Justice Ryan stated as follows: While a range may not be detectable from these cases they do reveal the escalation in recent years in severity of sentences imposed where children are the victims of sex offences. [ 33 ] The paramount sentencing objectives in this case are denunciation and deterrence as mandated by s. 718.01 of the Criminal Code and, if I may say so, by common sense, as well.

In addition, pursuant to s. 718.2 (

a) of the Criminal Code , the abuse of a person under the age of 18 years and the abuse of a position of trust and, certainly, being a parent or stepparent is a position of trust, are deemed to be aggravating circumstances in respect of which a sentence should be increased. [ 34 ] Other aggravating circumstances in this case include the length of time over which the offences occurred, the number of incidents of improper sexual contact, the ages of the victims, and the likelihood that T.G.D. is at high risk to reoffend sexually against children. [ 35 ] The most significant mitigating factor is that T.G.D. immediately accepted responsibility and exhibited remorse for his actions when confronted and has pleaded guilty and spared the children further trauma at his hands.

The other mitigating factors are the lack of a prior criminal record and T.G.D.'s positive attitude toward treatment. [ 36 ] Taking all of these circumstances into account, I find myself in substantial agreement with the global position taken by Crown counsel, but I come to that conclusion in a slightly different fashion. [ 37 ] The lack of violence and threats distinguish this case from many of the reported cases as does T.G.D.'s complete acceptance of responsibility. I have taken these distinguishing features into account in crafting the sentences I am about to impose.

I have also taken into account that the circumstances do not include intercourse in respect of Counts 2 and 11, although that seems to be less of an issue in British Columbia than it is in Ontario. [ 38 ] In respect of Counts 2 and 11, a fit sentence would, in each case, be three years and, in respect of Count 5, a fit sentence would be five years. The total of 11 years may be slightly excessive, particularly when compared to the 12-year sentence in R. v.

R.J.G. where there were four victims and more aggravating circumstances. [ 39 ] In my view and in agreement with the position taken by Crown, a global sentence of 10 years is appropriate as it is proportionate to T.G.D.'s moral culpability. I will reduce the sentence in respect of Counts 2 and 11 by six months each in respect of a totality and I will deduct time served of 11 months from Count 5. [ 40 ] T.G.D., I sentence you as follows. [ 41 ] On Count 2, I sentence you to two years and six months imprisonment.

On Count 5, I sentence you to four years, one month, imprisonment consecutive to the sentence on Count 2 with the record to reflect time served of 11 months credited to Count 5. On Count 11, I sentence you to two years and six months imprisonment consecutive to the sentences on both Count 2 and Count 5. The total of your sentences is nine years, one month. The effective total sentence is 10 years.

[ 42 ] I will make the DNA order pursuant to s. 487.051 of the Criminal Code and the sexual offender registration order pursuant to 490.012 of the Criminal Code . The period of registration will be 20 years. [ 43 ] Now, other than the victim surcharge, counsel, is there anything else that I have neglected to address? [ 44 ] MR. WILLMS: Obviously, given for the victim fine surcharge that T.G.D. is in custody. [ 45 ] THE COURT: Yes. [ 46 ] MR. WILLMS: Yes, nothing further, Your Honour. [ 47 ] MS. FRIESEN: I do not know if I suggested that Your Honour may consider a firearms/weapons prohibition order.

It is something you may consider. I am not sure if it is applicable in this case. [ 48 ] THE COURT: I do not think you mentioned it earlier because I did go through my notes. Would that be under s. 109 or 110? [ 49 ] MS. FRIESEN: I do not think it is a mandatory, definitely not a mandatory. [ 50 ] MR. WILLMS: 110. T.G.D. does not own a firearm; however, it does not appear that on the facts there was any firearms or any threats of violence in this case. In fact, Your Honour mentioned specifically a lack of violence in this case.

I do not see it as necessary, Your Honour. [ 51 ] THE COURT: I am not going to make that order. [ 52 ] The victim surcharge is waived. [ 53 ] Good luck, sir. [ 54 ] Good luck to all of the victims. [ 55 ] MS. FRIESEN: Oh, Madam Clerk asks if the DNA applies to all counts or is there a particular count? [ 56 ] THE COURT: No, it should apply to all three of them. [ 57 ] MS. FRIESEN: All of them and, any outstanding charges to which pleas have not been entered, I will direct a stay of proceedings. [REASONS FOR SENTENCE CONCLUDED]