R. v. J.A.A. Date:, 2013 BCPC 331

Citation: R. v. J.A.A. Date: 20131015 2013 BCPC 0331 File No: 225502-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.A.A. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. BAGNALL BAN ON PUBLICATION 486.4(2) CCC RESTRICTED ACCESS Counsel for the Crown: M. LeHouillier Counsel for the Defendant: C. Sicotte Place of Hearing: Vancouver , B.C.

Date of Hearing: October 15, 2013 Date of Judgment: October 15, 2013 [ 1 ] THE COURT: Mr. J.A.A. was originally charged with two counts of sexual assault alleged to have occurred on April 15th and May 6, 2012, on Information 225502. He entered pleas of not guilty and the trial respecting these charges began on May 6, 2013. [ 2 ] The Crown first presented the evidence of the complainant, Y.M. She began testifying at about 10:15 in the morning on May 6, 2013. It was necessary to stand down once because she was upset by the events that she was relating. Y.M. testified for the better part of two hours.

We then adjourned for lunch. [ 3 ] When court reconvened in the afternoon, counsel asked jointly that Count 1 of the Information be amended so as to encompass both events described by Y.M. and the accused then entered a plea of guilty respecting that amended count. Mr. J.A.A. agrees that he did what the complainant said he did. He says, and I accept, that he did not and does not recall the events because of his level of intoxication at the time. [ 4 ] These are the facts. Y.M. is a cousin of the accused's by marriage. She was 17 years old at the time of the events. He was 23 years old.

On April 15, 2012, the accused and the complainant were both at a large family gathering. The accused offered to provide the complainant with alcohol sometime during the evening, something of which her parents would disapprove, but she was prepared to take him up on his offer. At his suggestion, she went into his room. He gave her some alcohol. [ 5 ] He said that he would teach her to dance and he then assaulted her by pressing her against a wall face-first, grinding on her with his crotch area and holding her by the waist. This caused her to have fear of him.

She attempted to move his hands away from her but was not successful. [ 6 ] He held her facing the wall, put one hand into her clothing, and penetrated her genitals with his fingers. She told him to stop but he did not. He carried on with this for approximately 10 to 15 seconds. He then put his hands into her bra. She again tried to move his hands but could not do so. [ 7 ] He threw her onto the bed on her back and he held her there, trying to kiss her. She resisted this and managed to get to her feet but he pulled her back onto the bed. He took her hand and rubbed it on his own crotch.

She then got up and went to the door but he again pushed her against, this time, a closet, and again put his hands into her pants and penetrated her with his fingers. She was still resisting all of this, trying to move his hand away from her. [ 8 ] He then stopped and she said she wanted to leave the room. Initially, Mr. J.A.A. did not agree with this but he then allowed her to leave if she promised to return. He left the room as well, telling her not to leave until a minute had passed after his departure. Y.M. was frightened by all of this.

She left the house and ended up sleeping in a car parked outside that night. She testified that the accused had been drinking on this occasion. [ 9 ] On May 6, 2012 a smaller group of family members gathered at the complainant's house, including the accused. He seemed to her to be intoxicated. Y.M. deliberately avoided contact with the accused for most of the evening. She eventually saw him sleeping on a couch and she decided that it was then safe to go to bed in her own room. [ 10 ] She was in her bedroom in bed at three o'clock in the morning talking to a friend on the phone when the accused came into her room.

He climbed into bed with her and began touching her legs and stomach. She was telling him to stop. He touched her breasts and tried to put his hands down her pants. Y.M. was able to get out of her bed. She left the house, and outside the house she telephoned a friend to get help. [ 11 ] The accused came outside and spoke to her. He grabbed her arm and pushed her back towards the house. She then went into her room, called her friend again and was told that he was coming and he was close by. So she ran out of the house into a neighbour's home to wait for her friend.

That was the end of the second event. [ 12 ] Y.M. told her teacher about these events approximately a week later and an investigation by the authorities began. [ 13 ] After the plea of guilty was entered, I ordered that a Pre-Sentence report be prepared and asked that it include a psychiatric/psychological component. Those reports were received and counsel made submissions respecting the appropriate sentence on July 31, 2013. [ 14 ] The Crown submitted that the appropriate sentence was incarceration for nine to 12 months and that an 18-month probation order should follow. I should note Mr.

J.A.A. has no criminal record. The defence submitted that sentence should be suspended or that if it is necessary to incarcerate the accused that that sentence should be ordered served on an intermittent basis. [ 15 ] I will review the various materials filed on sentencing. The Pre-Sentence report is Exhibit 1. Mr. J.A.A. is now 24 years old and lives with his parents and brother. He has been active in his church since 1997. He graduated from high school and began attending BCIT, studying automotive service.

He is working as a mechanic now and planning on going back to school shortly. [ 16 ] The psychological assessment is Exhibit 2 in these proceedings. Mr. J.A.A. told the psychologist who wrote the report, Dr. Lewis, that he did not recall the events which gave rise to the charges because of his level of intoxication, but that "something" must have occurred to cause the victim to complain.

He said, "I can't remember what happened," a pause, "Something must have happened for her to report it," a pause, "I pled guilty because I felt bad for her when I saw her in court," another pause, "I had to take responsibility." [ 17 ] Mr. J.A.A. disagreed specifically with some of the evidence of the victim based on his expectation that she would raise an alarm

about his behaviour, for example. Asked about the effect of his assaults on Y.M., Mr. J.A.A. said that she is not an innocent girl, she has abused alcohol and drugs in the past, so he did not think it had affected her to any great extent. Mr. J.A.A. explained to Dr. Lewis the effect that the events have had on his extended family. He has a difficult time seeing himself as "sex offender." [ 18 ] After certain tests had been conducted, Dr. Lewis opined that Mr. J.A.A. falls in the moderate to low category of risk for future sexual offending.

Concern was expressed by the doctor about his alcohol consumption, his minimization of his behaviour and also his apparent lack of insight into the effect of the sexual assaults on Y.M. I am satisfied on the basis of the submissions of counsel that the majority of those reasons for concern have been addressed. [ 19 ] The Pre-Sentence report includes information about Y.M. Y.M. did not provide a victim impact statement to the court as she does not want to think about the offence. She attended counselling, often having to leave school prior to the end of the school day.

Following the offence, Y.M. also indicated she accessed a physician and was prescribed antidepressants. [ 20 ] Y.M. advised that she trusted her family members and considered the subject as family. She feels trust has been broken and admitted she has difficulty opening up and trusting people. Y.M. does not wish to have any contact with the subject and stated she does not feel safe in her home as one of the offences occurred there. [ 21 ] Nine letters of support for the offender from family, friends, and members of his church were filed as Exhibit 3 in these proceedings.

One letter is signed by over 20 members of Mr. J.A.A.'s church. None of the letters refer to the nature of the charges before the court, but I was told that the writers were aware that the charges were sexual assault. Mr. Sicotte told me that the writers were not, however, aware of the details of the offences. Nevertheless, it is clear that Mr. J.A.A. enjoys the support of many in his community. [ 22 ] Numerous cases were referred to by each counsel. I am not going to list them. I wish to file a list of these cases as Exhibit 4 in these proceedings.

I have read and considered all of these cases but I do not intend to refer to them in detail. [ 23 ] It is my view that not always, but generally, where the facts are as they are here, a sentence of incarceration is necessary. The first of the events, in particular, can only be described as a serious sexual assault. [ 24 ]

Section 718.01 of the Criminal Code reads as follows: 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 primary consideration to the objectives of denunciation and deterrence of such conduct. [ 25 ] The other objectives of sentencing are rehabilitation, reparation for harm done, promotion of a sense of responsibility in the offender and separation of the offender from society where necessary.

The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. [ 26 ] One of the mitigating circumstances here is the accused's ultimate plea of guilty, but I cannot ignore that the complainant was required to testify, although she was not cross-examined. The accused has no criminal record, as I have said. He has stopped drinking alcohol as a result of these events.

He is gainfully employed, intending to return to school, and he has the support of his community. [ 27 ] Aggravating factors include that the victim is a member of the accused's family, younger than the accused, a teenager at the time, who had trust in him, a member of her extended family, to cause her no harm. The events occurred in his home and in her home, places where she should feel safe. There were two events of sexual assault. The first was more serious, involving digital penetration. [ 28 ] The effect on the victim of all of the behaviour of the accused has been profound.

That was obvious as she testified. It is apparent from the psychological assessment that at the time that that report was prepared, the accused did not have a great deal of empathy for Y.M., although, as I have indicated, I believe that has changed. [ 29 ] The range of behaviour that falls into the category of sexual assault is vast. The assaults in the case at bar, as I have indicated, are at the more serious end of the range. [ 30 ] Submissions were ultimately made about the appropriateness of a Conditional Sentence Order.

The Crown submitted that the imposition of such a sentence would not adequately address the objectives of sentencing which are most important here, denunciation and deterrence. A copy of the index of the case books respecting this issue will be filed as Exhibit 5 in these proceedings. Again, I do not find it necessary to review the cases in detail. I have read and considered all of these cases. [ 31 ] In my view, counsel have clearly identified all of the factors, aggravating and mitigating, which I must consider in determining whether or not to sentence Mr. J.A.A. to serve his sentence in the community.

His offences are serious but he has effectively accepted responsibility for what he did, he has addressed at least some of the roots of his criminal behaviour, he is young, and he has no prior record. [ 32 ] Would you stand up, please, now, Mr. J.A.A.. [ 33 ] I am satisfied that the appropriate sentence is as follows. You are going to serve 12 months by way of a Conditional Sentence Order.

The statutory conditions will apply. [ 34 ] You will have two business days to report to a supervisor, and I will add the following conditions. [ 35 ] You will have no contact directly or indirectly with Y.M. [ 36 ] You will possess no weapons.

[ 37 ] You will neither possess nor consume alcohol, nor any other drugs except drugs prescribed for you by a doctor or a dentist. [ 38 ] I will just pause in my recitation of the conditions to say to defence counsel that I have in mind a curfew for six months that would be complete except for going to work, going to school and visiting his supervisor, and then six months during which the curfew would be nine o'clock in the evening until six o'clock in the morning, keeping in mind that this is a jail sentence.

Would those two different curfews cause any problem for your client in terms of his ability, for instance, to maintain employment? [ 39 ] MR. SICOTTE: No, that would be fine for his -- [ 40 ] THE COURT: All right. [ 41 ] MR. SICOTTE: -- and I just wanted to raise the one issue about his church, obviously, being important to him -- [ 42 ] THE COURT: I am sorry. [ 43 ] MR. SICOTTE: -- his family goes, and -- [ 44 ] THE COURT: Thank you for reminding me.

Yes, thank you. [ 45 ] For the first six months of this order, you will not be outside your residence except for the purposes of attending to your place of work, any school you attend, visits with your supervisor, and your church. [ 46 ] For the second six months of this order, you will not be outside your residence between the hours of 9:00 p.m. one day and 6:00 a.m. the next day, seven days per week. [ 47 ] There will be no surcharge with respect to this matter. [ 48 ] I am required to make two other orders and I will make them.

First of all, the order with respect to your DNA under s. 487.051, and the registry will direct you as to where you need to go to provide that sample; secondly, an order for a period of 10 years under s. 490.012, often referred to as a SOIRA order; and I will make the order under s. 110, which is not mandatory, but I consider appropriate here, for a period of five years. [ 49 ] Mr. LeHouillier, you want to stay Count 2, do you? [ 50 ] MR. LEHOUILLIER: Yes, Your Honour, thank you. [ 51 ] THE COURT: Thank you. [ 52 ] MR.

SICOTTE: Sorry, Your Honour, if I might -- and I do not -- and he does not anticipate problems with the second six months in terms of it being a fixed curfew, but I wonder if there might be, "And except with the written permission of his supervisor." Sometimes his work

schedule flexes back and forth and that type of thing. [ 53 ] THE COURT: Any comment from the Crown? [ 54 ] MR. LEHOUILLIER: No, Your Honour. [ 55 ] THE COURT: No. With respect to the second six months, then, that exception can be added. [REASONS FOR SENTENCE CONCLUDED]