R. v. V. K. R. Date:, 2017 BCPC 33

Citation: R. v. V. K. R. Date: 20170131 2017 BCPC 33 File No: 22746 Registry: Salmon Arm IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. V. K. R. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. D. MORGAN Counsel for the Crown: Marianne Armstrong Counsel for the Defendant: Ian McTavish Place of Hearing: Salmon Arm , B.C. Date of Hearing: November 28, 2016 Date of Judgment: January 31, 2017 A Corrigendum was released by the Court on February 8, 2017. The corrections have been made to the text and the Corrigendum is

appended to this document. [ 1 ] V.K.R. has entered a guilty plea to the charge of sexually assaulting his daughter, T.S., contrary to

section 246.1 of the Criminal Code . The ongoing assaults began in 1986 when his daughter was 10 years old and continued until she was 14. Circumstances of the Offence [ 2 ] V.K.R. and the complainant’s mother separated in 1986 shortly after the complainant’s 10 th birthday.

The custody arrangements were such that V.K.R. had his daughter with him every second weekend and for Easter and Christmas holidays and for a significant portion of the month of August each year. [ 3 ] The complainant’s first recollection of the assaultive behavior was when she woke up with her father running his hand up her thigh to her underwear. The behavior escalated and included the offender kissing the complainant, placing his tongue in the complainant’s mouth, groping the complainant, digitally penetrating her vagina and taking her hand and having her masturbate him until ejaculation.

He also took the complainant’s own fingers and inserted them into the complainant’s vagina. [ 4 ] The complainant recalls the assaultive behavior, including the digital penetration, having occurred almost every access visit. V.K.R. does not agree as to the frequency of almost every visit, but does concede that his assaults on his daughter occurred regularly. [ 5 ] The complainant tried to discourage the behavior by attempting to arrange to not be alone with her father by having friends present, and expressing a desire to not visit.

V.K.R. threatened the complainant’s mother that if the complainant did not visit he would apply for full custody. Another example of the complainant’s attempts to discourage her father was, after reaching puberty, she began to wear bulky sanitary napkins even when it was not necessary to do so. [ 6 ] At age 14, the complainant was given a choice as to whether she wanted to continue visiting her father and she chose to stop the visits.

Based on information provided by the complainant’s mother in her oral victim impact statement, it is likely the access stopped after the complainant disclosed the assaults to her mother and the mother confronted V.K.R. [ 7 ] Years later, when the complainant had her own daughter, she attended church and was moved by a sermon regarding forgiveness. She decided at that point to forgive her father. She and the offender had a discussion and he promised her that he would not do anything inappropriate with her children.

Consequently, she attempted to normalize her relationship with her father. [ 8 ] Unfortunately, years later she discovered that the offender had sexually assaulted her daughter, his granddaughter. The severity and duration of the sexual assault on the granddaughter was not made clear. On the information most favourable to the offender, the sexual assault occurred when the granddaughter was 16 years old. [ 9 ] During the investigation of the offender’s assaults on the granddaughter, the present complainant came forth with the information regarding the assaults that he had perpetrated on her.

V.K.R. admitted to and entered a guilty plea to assaulting his granddaughter and was sentenced on December 16, 2014, to 15 months custody followed by three year’s probation. [ 10 ] He denied having assaulted his daughter, the present complainant, and referred to her as a liar. At some point while in custody he had a change of heart and wanted to admit his wrongdoing. However, he did not enter his guilty plea to the present charge until the eve of trial. [ 11 ] Victim impact statements were filed by the complainant and the complainant’s mother.

The complainant’s mother also made an in court statement through which she very emotionally and forcefully expressed her hurt and anger. In her written statement, she states it appears her daughter blames her for not protecting her from her father. [ 12 ] The complainant makes very clear in her detailed statement the emotional and psychological toll she has suffered as a result of the sexual abuse from her father.

She makes clear she is not seeking any type of financial compensation from him given that it would only remind her of the years he provided her with monetary and other gifts as, in her words, “a way of his grooming and to soothe his guilt.” She expresses the guilt she feels for forgiving and trusting her father only to be victimized again when he sexually abused her daughter. Circumstances of the Offender [ 13 ] V.K.R. is 67 years old.

The only conviction on his criminal record is the December 16, 2014, conviction for the sexual assault on his granddaughter. [ 14 ] The court was provided with a Presentence Report that was prepared for the December 16, 2014, sentencing, along with an update to that report that was filed October 4, 2016. The court was also provided a Presentence Psychiatric Report and Risk Assessment dated October 6, 2016. [ 15 ] V.K.R. is the youngest of 12 children. He grew up on a farm and had a normal upbringing and childhood. He denies being abused or neglected as a child.

He has a close connection to several of his siblings. He was married and has two children, one of which is the complainant, and four grandchildren. V.K.R. is reported by the author of the presentence report as seeming to value family relationships above all else and describes not being permitted contact with certain members of his family as “difficult.” [ 16 ] He completed grade 12. Prior to his sentencing for the sexual assault on his granddaughter, he was employed on a full-time basis for five years as a delivery driver with [omitted] in Grand Prairie, Alberta, earning $18 per hour.

Prior to that, he worked for [omitted] for 25 years. Since his release he has started working again for [omitted] as a delivery driver. He also collects old-age pension. [ 17 ] V.K.R. takes prescribed medication for his anxiety, and while in custody he was diagnosed with diabetes and now takes

medication for his low blood sugar. [ 18 ] V.K.R. attended his [omitted] Church on a weekly basis prior to his incarceration but now states he does his own Bible study at home. While in custody he did not take

part in any sexual offender treatment or counseling but self-reports as having taken a preventative sex anonymous course based on a 12 step program that was set up by the inmates. He also reports having taken an anger management course. [ 19 ] Since his release from custody on July 10, 2016, he has moved back to Grand Prairie, Alberta, and has been reporting on a weekly basis to his probation officer without any problems or violations. He attended his first counselling appointment for sexual relapse prevention with a forensic therapist with the Alberta Health Services on September 1, 2016.

The therapist reports that V.K.R. seems willing to work with the counselling process. [ 20 ] V.K.R. reports to the probation officer that he is trying to be a better man by avoiding all temptations that caused him to behave sexually towards his granddaughter and his daughter. [ 21 ] Since his release, V.K.R. resided briefly with his son and daughter-in-law and their 18-month-old child in Red Deer, and is now residing with his brother in Grand Prairie.

He has spent time renovating his brother’s house as well as his sister’s house. [ 22 ] V.K.R. reports that his mental health is good and according to the author of the updated presentence report describes himself in positive terms as being helpful, honest, punctual, kind and caring. He states he rarely drinks alcohol and has never used illegal drugs. Although he initially denied the offence, he now expresses remorse and made an in-court apology.

He states he is willing to take any counselling directed by the court or the probation officer. [ 23 ] V.K.R. presented the court with 11 letters of reference, the general theme of which is that he is well-liked and respected by people who know him. He is described as dependable, honest and trustworthy. The authors of the reference letters also note that he is remorseful.

The impact of the reference letters is significantly tempered by the fact that they were all written to be used at the December, 2014, sentencing for his sexual assault on his granddaughter, and there is nothing in the letters that would indicate any of the authors understood and that he would also be facing charges for sexually assaulting his own daughter. [ 24 ] In the Presentence Psychiatric Report and Risk Assessment, Dr.

Hodelet notes that there is no evidence of mental illness, psychosis, or cognitive difficulties, and states the following in regards to the offender’s insight: In terms of his insight into his previous offending behavior, unlike on our last occasion when he minimized the victim’s reports and flatly denied any offences against his daughter, he told me today that he had to be honest about it, that what he did was wrong, and that it was now time to start seeing things from the victim’s perspective.

He reported that he was looking forward to the sex offender treatment program that he was about to start. [ 25 ] Under the heading ‘Risk Scenarios’, Dr. Hodelet states that the sort of sexual violence that the offender is likely to commit again would be on a very similar sort of victim, that being someone who trusts him and knows him well such as a family member or child of a family friend.

The doctor goes on to state that the type of offence is likely to be similar to the index offence involving sexual touching, and consequently the type of offence could lead to severe psychological harm but not likely severe physical harm. [ 26 ] The doctor notes that the offences are opportunistic in nature and that consequently there is a current low likelihood of this type of sexual violence occurring given he is restricted from spending time with unsupervised children or going to places where children are likely to be, and that, in the doctor’s opinion, it is very unlikely the offender would breach those restrictions to access a victim.

The doctor recommends the offender undertake sexual offender treatment whether such a program is in the community or in an institutional setting. The Crown’s Sentencing Position [ 27 ] Crown counsel Marianne Armstrong emphasizes the primary considerations must be denunciation and deterrence and submits that on the facts of this case, a sentence of 4 years’ incarceration with the usual appropriate ancillary orders is appropriate. [ 28 ] Crown counsel submits that the court must be significantly guided by the sentencing precedents from the originating jurisdiction, that being Grand Prairie, Alberta.

She submits that although the accused waived the matter in to Salmon Arm, BC, from Grand Prairie, Alberta, for sentencing, there is no apparent connection between the accused and Salmon Arm, BC., and that the accused should in no way benefit from what may be viewed as forum shopping. [ 29 ] Crown counsel relies on the following case law: • R. v. R.J.B. , 2016 BCCA 428 • R. v. Worthington , 2012 BCCA 454 • R. v. T.J.B ., 2015 BCSC 855 • R. v. R.M.D ., 2014 BCCA 56 • R. v. R.A.J ., 2010 BCCA 304 • R. v. Arcand , 2010 ABCA 363 • R. v. B.L. , 2011 ABCA 376 • R. v. WEM , 2014 ABQB 10

• R. v. H.D.B., 2012 ABQB 234 • R. v. A.R.K., 2010 ABPC 226 • R. v. Bui, 2013 BCCA 168 • R. v. Shaw, 2005 BCCA 380 The Sentencing Position of the Defence [30] Ian McTavish, counsel for the offender, points out that the offence before the court occurred at a time when the offender had nocriminal conviction history.

He submits that the offenders’ remorse, age, cooperation with his probation officer, and willingness toattend counselling, and the general positive information provided in the Presentence reports and the Presentence Psychiatric Assessment,all combine to make a lengthy conditional sentence order (CSO) followed by a lengthy period of probation the appropriate sentence. Hesays that notwithstanding the offence date pre-dates the creation of a CSO as a sentencing option, the offender should nevertheless havethe benefit of this option. Mr.

McTavish further submits that given the offence date pre-dates the removal of a CSO as a sentencingoption for the charge of sexual assault, it remains a sentencing option for V.K.R. [31] Mr. McTavish refers me to the case of R. v. Proulx, 2000 SCC 5, where the Supreme Court of Canada confirmed that thesentencing principles of denunciation and deterrence can be achieved through a properly crafted conditional sentence order.

Mr.McTavish says that the combination of a lengthy conditional sentence order and lengthy probation ensures long-term monitoring of theoffender and also provides the vehicle to ensure he attends courses and counselling structured for his rehabilitation. [32] Mr. McTavish provided information from which the court could conclude that the offender’s decision to waive the matter toBritish Columbia was not for the purpose of forum shopping. That said, Mr. McTavish does not take issue with the Crown submissionthat the court should be informed by sentencing precedents from the originating jurisdiction.

The Law [33] The Criminal Code sections 718 to 718.2, which relate to the purpose and principles of sentencing, govern this sentencingproceeding. The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just peaceful andsafe society.

This purpose is achieved by imposing just sanctions that have one or more of the following objectives: to denounceunlawful conduct, to deter the individual offender and other persons from committing offences, to separate offenders from society wherenecessary, to assist in rehabilitating offenders, to provide reparations for harm done to victims or to the community and to promote asense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [34] A sentence is to be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2directs that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances. [35]

Section 718.2 further directs that evidence that the offender, in committing the offence, abused the offender’s spouse or child,and evidence that the offender in committing the offence, abused a position of trust or authority in relation to the victim, shall be deemedto be aggravating circumstances. [36]

Section 718.01 directs that when the court imposes a sentence for an offence that involves the abuse of a person under the ageof 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [37] Although

section 718.01 was enacted in 2005 which is well after the offence date, the BC Court of Appeal in R. v. R.J.B.(above) at par. 29 makes clear the principle set out in

section 718.01 is a merely a codification of a pre-existing sentencing principle. [38] The BC Court of Appeal has also made clear that when a criminal matter is waived in from another province for sentencing, it isincumbent on the sentencing judge to give precedence to the sentencing standards of the originating jurisdiction. However, it is also notinappropriate to give secondary consideration to the British Columbia sentencing range and underlying considerations (see R. v. Bui(above) at par. 21; and R. v. Shaw (above) at par. 22). [39] In the decision of R. v.

Arcand (above), the Alberta Court of Appeal clarified what the appropriate sentencing range would befor a ‘major sexual assault’. [40] A major sexual assault was defined by that court, at paragraph 171 as follows: 171 A sexual assault is a major sexual assault where the sexual assault is of a nature or character such that a reasonable person couldforesee that it is likely to cause serious psychological or emotional harm, whether or not physical injury occurs. The harm might comefrom the force threatened or used or from the sexual aspect of the situation or from any combination of the two.

A major sexual assaultincludes but is not limited to non-consensual vaginal intercourse, anal intercourse, fellatio and cunnilingus. We are satisfied thatassessing whether a sexual assault is a major sexual assault is well within the capacity of sentencing judges. [41] At paragraph 169, the Alberta Court of Appeal confirmed the starting point for a major sexual assault on an adult victim asfollows: 169 Sandercock [R. v. Sandercock (1985), 1985 ABCA 218 , 62 A.R. 382] recognized the need for a starting point in serioussexual assault cases given the wide unjustified disparity in sentencing amongst judges.

That disparity in sentencing continues to this dayas evidenced by the Reconsideration Cases. Hence, we confirm that the starting point for a major sexual assault on an adult victim isthree years imprisonment. We also confirm that this starting point is not based on a guilty plea. That would be a mitigating factorreducing sentence.

[42] At paragraph 333, Alberta Court of Appeal explained that the three-year starting point sentence assumed a mature offender ofprevious good character with no criminal record assaulting an adult. [43] The narrow issue on appeal in Arcand was whether the 90 day intermittent jail sentence followed by three years’ probation wasa fit sentence for Mr. Arcand’s sexual assault of the complainant while she was passed out and sleeping in her family home. Thecomplainant woke up to find Mr. Arcand’s penis in her vagina. Mr.

Arcand was 18 years old with no criminal conviction history, buthad some deficits in his mental capabilities, including impulse control. [44] Alberta Court of Appeal determined the sentencing judge erred in failing to put appropriate weight on denunciation, deterrenceand sentencing parity.

The Court of Appeal applied the starting point approach referred to above and adjusted downwards inconsideration of the mitigating factors, concluding the fit and proper sentence to be imprisonment for two years less a day plus twoyears’ probation. [45] The full discussion in Arcand makes clear the ‘starting point’ approach to sentencing is to provide guidance to sentencingjudges, just as stated ‘sentencing ranges’ provide guidance, in achieving parity. The starting point approach contemplates adjustmentsupwards or downwards depending on the specific circumstances of the case and the offender. [46] In R. v.

B.L. (above), the Alberta Court of Appeal considered the Crown appeal of the sentence of 12 months incarceration and2 years’ probation for a 70 year old first time offender who was convicted of two counts of touching a person under the age of 16 for asexual purpose. The complainant was eight or nine years old at the time and was indirectly related to the offender whom he consideredas an uncle figure. The offender lived in the basement of the child’s house and would provide child care for the boy.

The child hadplayed sexually oriented games with an older cousin and invited the respondent to play similar games with him which culminated in theoffender massaging the child’s penis and other touching on several occasions, and taking the child’s penis into the offender’s mouthbriefly on one occasion. [47] At paragraph 7 the court stated: 7. The legitimacy and precedential effect of starting points in sentencing has been confirmed in Arcand. The starting point for a“major sexual assault” on an adult victim is three years imprisonment: Arcand at para. 169; R. v. Law, 2007 ABCA 203, 409 A.R. 190;R. v.

Sandercock (1985), 1985 ABCA 218 , 62 AR 382 at para. 17, 22 CCC (3d) 79 (CA). The starting point is four years inthe case of a single major sexual assault upon a child by a person in a trust position: R. v. S.(W.B.), R. v. Powderface [(1992), (AB CA), 127 AR 65, 73 CCC (3d) 530 (CA)]. [emphasis added] [48] The Court of Appeal noted the lack of a guilty plea and no clear apology or acceptance of responsibility but did note as apotentially mitigating factor the respondent’s age, and the mitigating factors of his lack of a criminal record, his long productive workcareer and his exemplary character.

It was noted that the good character of an average person is already assumed in the starting pointapproach, and therefore would not normally act as a mitigating factor, but evidence of exemplary character above that expected from theaverage person would be mitigating. [49] It was also noted by the court that the aggravating factors of the offender being in a position of trust, and that the victim was achild, are already contemplated by the four years starting point (see para.22). [50] After finding that there were no overriding aggravating or mitigating circumstances given the two categories largely neutralizedeach other, and in recognition of the trial judge’s finding that the offence was at the less serious end of the continuum of what constitutesa major sexual assault, the court determined the appropriate sentence to be three years imprisonment. [51] In WEM (above), Justice Yamauchi of the Court of Queen’s Bench of Alberta provided a thorough and in-depth analysisregarding his sentencing after trial of WEM who was found guilty of the charge of touching for a sexual purpose the 13-year-old victim.

The court found that WEM had, on August 24, 2011, digitally penetrated the complainant’s vagina and also touched her right buttocknear to her vagina with his penis. [52] At paragraph 7 of that decision, Justice Yamauchi notes the several Alberta Court of Appeal decisions that confirm the startingpoint for a major sexual assault on a child applies equally to the charge of sexual interference. [53] WEM was 39 years old with no criminal record and had a good work history and outstanding military history.

He was marriedto the mother of the 13-year-old complainant and consequently was in a position of trust and authority. [54] Justice Yamauchi, at paragraph 24, agrees with the conclusion of Read J. in R. v. Innerebner, 2010 ABQB 188, set out at para.74-76 of that case as follows: …[T]he principle in Alberta remains, as has been repeatedly stated by the Court of Appeal and applied by sentencing judges acrossAlberta, that the starting point for a major sexual assault of a child by a person in a position of trust is four years.

In applying the sexual assault starting point, a Court is required to determine whether the facts of the offence fit within the category of‘major sexual assault’. If it does then the court must determine whether a child or an adult is involved. If a child is involved then theCourt must determine whether the offender was in a position of trust vis-à-vis that child. The Court must also determine whether theaccused has a prior criminal record. If the offender is in a position of trust and has no prior criminal record, then the starting point for amajor sexual assault of a child is four years.

Based upon this case law, in my view, if I conclude that a sexual assault of any of these children is a major sexual assault, I must beginwith the starting point of four years and go on to assess the aggravating and mitigating factors to determine a sentence which fits theparticular circumstances of this case. [55] Justice Yamouchi then considered whether digital penetration of the complainant’s vagina constituted a ‘major sexual assault’.

His analysis is set out at paras. 25-27 as follows: 25. The next question for this court is to determine whether the four-year starting point even applies in this case. Recall that thiscourt found that WEM digitally penetrated RB’s vagina. In R. v. Watson (1994), 1994 ABCA 234 , 157 AR 80 [Watson] atpara 2 (CA), the Alberta Court of Appeal unanimously held as follows: …[W]here there is digital penetration of any kind, it is prima facie a serious violation of the sexual integrity of the victim and constitutesa major sexual assault.

In the case of a charge of sexual touching where the circumstances amount to a serious violation of the sexualintegrity of the child victim, the sentence will be treated at least as seriously as in the case of a sexual assault, bearing in mind that themaximum penalty for sexual assault and sexual touching is the same, namely, ten years. 26. Interestingly, in R. v. C(SP), 2008 ABQB 280, 433 AR 282 [C(SP)], the Alberta Court of Appeal was considering whether a trialjudge had imposed a sentence that was demonstrably unfit.

It said at para 6: It is not necessary for us to characterize this offence as “major” or “serious”, as this sentence is demonstrably unfit on anycharacterization. The starting point for a sexual assault of a child by a person in a position of trust is four years. 27.

In making this finding, it relied on Watson which held that “digital penetration of any kind … constitutes a major sexual assault.” While C(SP), at first blush, appears to narrow the scope of the Watson finding, in fact, it widens it in the sense that any sexual assault ofa child by a person in a position of trust invites a starting point of four years. [56] In WEM the court used the starting point of a four-year custodial sentence.

After recognizing that the aggravating factors of theoffender being in a position of trust and the victim being a child were already built into the four-year starting point, the court appliedother aggravating and mitigating factors. [57] The court noted the absence of a guilty plea was not an aggravating factor but a guilty plea would have been a mitigating factor. The court also commented that the absence of a criminal record was a mitigating factor but its impact was tempered given the nature ofthe offence.

I pause here to note the court in WEM had cited with approval the Innerebner decision (above) wherein that court notedthe absence of a criminal record as a mitigating factor already built into the starting point. The court in WEM found that there wasevidence of ‘exemplary’ prior character beyond that expected of an average person and that the offender had cooperated with the police. Court also noted a lack of remorse and again, although not an aggravating factor, genuine remorse would have been a mitigating factor. [58] Mr.

WEM was sentenced to 3½ years’ imprisonment less the 11 months on a one-to-one basis credit for time served. [59] I have read and considered the other Alberta authorities provided by Crown counsel. It is not necessary to further refer to them,given they are consistent with the cases referred to above. [60] As stated previously in these reasons, although primary consideration should be given to sentencing precedence in theoriginating jurisdiction, it is not improper to give secondary consideration to BC case law. [61] In R. v.

R.J.B. (above) the BC Court of Appeal reviewed a BC Supreme Court sentencing decision wherein the sentencingjudge, who was not the trial judge, erred in sentencing the offender on the erroneous understanding that the sexual assaults consisted ofsexual intercourse. Crown nevertheless argued that the six year sentence was not demonstrably unfit given the offender had sexuallyassaulted his mentally disabled daughter once or twice a week for approximately 4 years starting when she was 10 years old.

The Crownpoints out that there were no mitigating factors in that the appellant did not plead guilty, demonstrated no remorse and had a previousconviction for sexually offending against another daughter from his first marriage. [62] At paragraph 32 of that decision the court referenced the decision in R. v. O.M., 2009 BCCA 287 where at para. 11 Donald J.A.said: 11. Prolonged sexual abuse of a child requires a denunciatory sentence. The cases in the range of 4 to 7 years reflect this. See forexample R. v. D.E.H., 1999 BCCA 526, 130 B.C.A.C. 320 (six years); R. v.

L.K.S., 1999 BCCA 476, 130 B.C.A.C. 1 (5 years fourmonths); R. v. K.K., 2001 BCCA 302, 155 B.C.A.C. 229 (four years); and R. v. G.E.B., 2001 BCCA 236, 154 B.C.A.C. 296 (7 years). [emphasis added] [63] At paragraph 35 of the R.J.B. decision Justice Savage for the court stated: 35. I am also mindful of appellate courts’ recent cautions that a sexual assault’s seriousness is not dictated by the existence (or non-existence) of penetration: R. v. Hume, 2016 BCCA 230 at paras. 39-40; R. v. J.L.S. 2006 SKCA 95 at. paras. 23-25. In Hume, the Courtsaid this: 37.

In Worthington, this court upheld the sentence of four years’ incarceration for the appellant’s sexual assault of his stepdaughter. The Crown had not proven that sexual abuse involved penetration. In upholding the sentence, the court emphasized the appellant’smoral culpability and the particular circumstances of the case: 41. …The offence must be taken as not to have included penetration or sexual intercourse. Nonetheless, in my view the behavior inthe instant case is egregious. The rather clinical descriptions of the behavior which is admitted, to some degree, mask the forbiddennature of Mr.

Worthington’s actions, and his admitted knowledge, from the beginning, that his behavior was wrong. I would go so faras to say the fact, or not, of penetration is not really the measure of the offence, and what is in issue in a case involving a breach ofthe trust at the heart of the child-parent relationship is the extent to which that relationship was violated, the duration of thatviolation, and the offender’s appreciation of that violation as the behavior continued.

We are here concerned with the offence ofsexual assault, which is a generic offence that may apply in respect to a complainant of any age, over-laid with the abuse inherent in theyouth of the complainant, overlaid with the breach of trust in the family relationship. [Emphasis added by Garson J.A.]

[ 64 ] Given that the sentencing judge included in her reasons as an aggravating factor that actual sexual intercourse had occurred when that fact had not been established, the BC Court of Appeal concluded the sentence must be reduced to adjust for that error. The sentence was reduced from six years to four years. At paragraph 38 the court stated: 38. The parity principle is satisfied in this case by reducing the sentenced to four years. That sentence fits within the range of sentences imposed for sexual assaults involving similar offenders and similar circumstances.

I see no relevance to the availability of a CSO in the circumstances of this case. Decision [ 65 ] The offender’s sexual assaults on his daughter, which included repeated penetration of his daughter’s vagina with his fingers, and also the offender inserting his daughter’s fingers into her own vagina, and the coerced masturbation of the offender to the point of ejaculation, made the likelihood of significant psychological or emotional harm to the victim reasonably foreseeable by the offender. [ 66 ] The offender’s sexual assaults on his daughter constitute a major sexual assault.

Given the father daughter relationship between the offender and the victim, and also given the victim’s young age of 10 years when the assaults started, the sentencing starting point is incarceration for four years. [ 67 ] The aggravating factors of the breach of a position of trust and the victim’s young age are already contemplated in the sentencing starting point of four years. [ 68 ] A significant aggravating factor not included in the starting point is the prolonged nature of the assaults, continuing as they did from when the victim was aged 10 until she was aged 14.

The offender’s moral culpability is very high given he had much time and opportunity to reflect on the psychological and emotional harm he was inflicting on his daughter and yet continued to abuse her. The abuse did not stop until the victim refused to further attend for her father’s access visits. [ 69 ] It is also aggravating that when the victim expressed a desire not to attend the access visits, the father would threaten to go to court to obtain full custody.

The father, I find, must have been aware that the idea of him obtaining full custody would have been extremely distressing for his daughter. [ 70 ] I will treat this sentencing as the offender’s first conviction given the offence date predates his sexual assault on the victim’s daughter (the offender’s granddaughter). [ 71 ] I am nevertheless compelled to note that the fact of the sexual assault on the granddaughter constituted a further breach of the complainant’s trust, given she had received a promise from him that he would not be inappropriate with her children, in exchange for her forgiveness of him for sexually assaulting her.

That said, the existence of this fact will have no bearing on my conclusion as to the appropriate sentence. [ 72 ] The mitigating circumstances include the fact that the offender accepted responsibility for his actions and demonstrated his remorse both by entering a guilty plea and by making what appeared to be a sincere in-court apology to both the complainant, who was not present, and to his ex-spouse, the complainant’s mother, who was present. [ 73 ] That said, the mitigating impact of his guilty plea is lessened given he waited until the eve of trial to indicate his intent to enter a guilty plea, thereby unduly extending the stress the complainant would have been experiencing in relation to the looming trial. [ 74 ] It is also somewhat of a mitigating factor that the offender has begun attending sexual assault prevention therapy and counselling, notwithstanding his attendance is pursuant to a probation order.

The information provided is that he is readily agreeable to attend the counselling. [ 75 ] Although I accept there is evidence showing that V.K.R. is otherwise of good character, the evidence of good character is not beyond what would be expected of the average person.

Consequently, this otherwise mitigating circumstance is already presumed in the four-year starting point, given the starting point is for a first-time offender. [ 76 ] I do note that the offender has the support of his family, has a good work history, and is considered by the author of the Presentence Psychiatric and Risk Assessment Report to be a low risk to reoffend when subject to court restrictions/community supervision that restricts opportunity. [ 77 ] In this case the aggravating circumstances outweigh the mitigating circumstances.

Consequently, although on the above analysis, the sentence sought by the Crown of four years may be at the lower end of the range appropriate for V.K.R. in these circumstances, it does address the primary principles of denunciation, deterrence, and achieves parity, and I will accede to it. [ 78 ] The sentence will be four years’ incarceration. [ 79 ] Since the sentence is outside the maximum available for a conditional sentence order, I need not decide the question of whether a conditional sentence order would otherwise have been available given the date of the offence. [ 80 ] The offender is ordered to provide a sample of his DNA for purposes of registration in the national DNA databank. [ 81 ] Pursuant to s. 490.013 of the Criminal Code V.K.R. will be registered in the Sexual Offender Information Registry for life. [ 82 ] Pursuant to s.109 (3) of the Criminal Code V.K.R. is prohibited from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance for life. [ 83 ] Pursuant to s. 161(1) (

a) of the Criminal Code V.K.R. is prohibited from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare center, school ground,

playground or community center, for life. [ 84 ] Pursuant to section 161(1) (

b) of the Criminal Code V.K.R. is also prohibited from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years. [ 85 ] Pursuant to

section 743.21 of the Criminal Code V.K.R. is prohibited from communicating, directly or indirectly, with the victim T.S., or the victim’s mother, L.L., during the custodial period of his sentence. The Honourable Judge R. D. Morgan Provincial Court of British Columbia CORRIGENDUM - RELEASED FEBRUARY 8, 2017 [1] The second sentence in paragraph 1 of the written decision that currently reads: [1] The ongoing assaults began in 1986 when his daughter was 10 years old, and continued until 1988 when she was 14. is in error and is changed to read: [1] The ongoing assaults began in 1986 when his daughter was 10 years old and continued until she was 14.