R. v. Adubofour-Poku Date:, 2017 BCPC 192

Citation: R. v. Adubofour-Poku Date: 20170626 2017 BCPC 192 File No: 239919-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. ELVIS ROBERT ADUBOFOUR-POKU BAN ON PUBLICATION

SECTION 486.4(2) CCC REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.P. HARRIS Counsel for the Crown: A. Ip

Counsel for the Defendant: K. Neurauter Place of Hearing: Vancouver , B.C. Date of Hearing: May 29, 2017 Date of Judgment: June 26, 2017 INTRODUCTION [ 1 ] Mr. Adubofour-Poku was convicted of sexual assault. A sentencing hearing was held and the matter was adjourned so the court could consider counsel’s submissions and pronounce sentence. The task for this court is to identify a fit and appropriate sentence. Circumstances of the offence [ 2 ] Greater circumstances of the offence are included at; R. v.

Adubofour-Poku, 2016 BCPC 426 . [ 3 ] In June of 2015, the victim, S.G. was at an after-hours club where she met the offender and L.A. S.G. and the offender used cocaine and thereafter the group made their way to L.A.’s home. Prior to entering the home, more cocaine was consumed. [ 4 ] Once inside the home, the offender began touching and kissing S.G.

S.G. commented that she did not want to hook up and that she was on her period and at one point she said things such as, “I don’t want you doing this.” The accused did not stop or make inquires rather he continued eventually removing S.G.’s clothes and performing oral sex and thereafter intercourse. At one stage S.G. gave up protesting and “just went along with things.” The offender performed intercourse and asked if he could ejaculate inside of S.G. and she said, “no.” Despite being told “no” the offender ejaculated inside of S.G. Victim impact [ 5 ] S.G. did not provide a Victim Impact Statement.

Despite no victim Impact Statement, the fear and trauma that S.G. would have felt and suffered is obvious and does not require a Victim Impact Statement. At the time of the offence she was 18 years old and a high school student. Having listened to the evidence at trial and after considering the events as they unfolded I have no doubt that S.G. suffered extreme fear. One can only imagine what is must have felt like to have her protestations ignored at a time when she was in a room with an almost stranger who was almost 20 years her senior.

Moreover, I expect she was fearful when the offender ejaculated inside of her. [ 6 ] I have no difficulty concluding beyond any doubt that S.G. will suffer the emotional effects of what happened for the majority of her life. CIRCUMSTANCES OF THE OFFENDER [ 7 ] The offender is 39 years old. He enjoyed a positive and stable upbringing. He graduated from high school and after high school he studied for two years at the University of Manitoba. The offender has worked in the film industry on set design, in retail, at car dealerships and in construction.

At the time of the sentencing hearing he was not working. [ 8 ] The offender has had a long standing history of substance abuse. He started drinking when he was nine or ten. He acknowledges that when he starts drinking that he cannot stop. The offender started using marijuana when he was teenager and this escalated to cocaine, crack and other opiates.

The offender has struggled to achieve sobriety and managed to remain substance free between 2010 - 2014. [ 9 ] The offender has had struggles with depression and anxiety and as a result he self-medicated with substances. [ 10 ] In December of 2016, the offender tried a few recovery houses and eventually settled on Giving Back Society which is where he was living at the time of the sentencing hearing.

His future plans are to continue working on his recovery in order to build a strong foundation to live a healthy life. [ 11 ] With respect to his criminal history, the offender was convicted of sexual assault in 2000, and then commencing in 2015, he has convictions for; mischief, threatening, assault, theft, breach of probation and breach of a recognizance. [ 12 ] A review of the offender’s record discloses; he was on probation when he sexually assaulted S.G., and he has previously committed offences while on judicial interim release. [ 13 ] Letters of support were filed on behalf of the offender.

Two of the letters confirm the offender’s residency at a drug recovery facility. The remainder of the letters speak to the offender’s helping nature and his work in supporting others who have struggled with addiction. SENTENCING POSITIONS [ 14 ] The Crown argues a fit and appropriate sentence is an 18 month custodial sentence followed by 2 years of probation. The Crown is also seeking an order that the offender be directed to comply with the Sex Offender Information Registry Act for life and a

section 109 lifetime weapons prohibition as well as a DNA order. The Crown opposes a conditional sentence order arguing it would fail to meet the requisite degree of denunciation and deterrence. [ 15 ] Counsel for the offender urges the court to impose an 18 month conditional sentence of imprisonment followed by probation for

2 years and she does not oppose the ancillary orders sought by the Crown. In her submissions counsel for the offender focused thecourt’s attention on the circumstances of the offence, and the rehabilitative steps that the offender has taken. [16] Cases relied on by counsel have been reviewed by the court and include: R. v. W.A.R., 2013 BCSC 1767; R. v. Lequire, 2006 BCSC 668; R. v. C.R.R., [2010] B.C.J. No. 2461; R. v. Ursel, (BC CA), [1997] B.C.J. No. 1853 CA; R. v. R.L.H., 2000 BCCA 148; R. v. Hans, 2016 BCPC 222; R. v. Rahmani, 2003 BCPC 535; R.v. B.U., 2013 ONCJ 475; R. v. Ogunsakin, 2006 ONCJ 117; R. v.

J.A.F., [1997] B.C.J. 2503 Prov.Ct.; R. v. J.W.D., 2001 BCPC 58; R. v.M.H.D., [1999] B.C.J. No. 2240; R. v. Alasti, 2010 BCPC 441; R. v. McCraw, (SCC), [1991] 3 SCR 72; R. v. T.(K.),2008 ONCA 91; R. v. Arcand, 2010 ABCA 363; R. v. Solowan, 2008 SCC 62 , [2008] 3 S.C.R. 309; R. v. B.S.B., 2010 BCCA40; R. v. Pouce Coupe, 2014 BCCA 255; R. v. G.M., 2015 BCCA 165; R. v. Craig, 2005 BCCA 484; R. v. Corson, 2003 BCCA 430; R.v. Goodliffe, 2005 BCCA 426; R. v. Kanthasamy, 2005 BCCA 135. [17] In reviewing the cases, it is clear the offence of sexual assault in

summary proceedings typically attracts a custodial sentence inthe range of 9 - 18 months. I also observe conditional sentence orders have been imposed in certain circumstances. Finally, whenreviewing the cases I am reminded that sentencing is an individualized exercise and that no two offenders are the same. I find thosecases involving Indigenous offenders to be of minimal assistance given the special considerations that such cases require. PURPOSE AND PRINCIPLES OF SENTENCING [18] The purpose and principles of sentencing are found in sections 718 - 718.2 of the Criminal Code.

The relevant portions of thosesections are: Purpose 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 718.2 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, … ; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. ANALYSIS Objectives of the sentence imposed [19] I find that denunciation and deterrence are the primary sentencing objectives in the instant matter. In this regard, the violationand invasion of an individual’s personal integrity must be denounced and deterred.

Those, who for their personal gratification, sexuallyoffend must know that the courts will treat such conduct seriously. It is through the sentences imposed that the courts can contribute to asafe society for all persons. [20] In addition to denunciation and deterrence, I do see some rehabilitative prospects for the offender. I arrive at this conclusionbecause of his comments regarding the difficulty that substance abuse has caused him as well as his attendance at a recovery home. Fundamental purpose of sentencing

[ 21 ] In arriving at the appropriate sentence, I am mindful that a fundamental principle of sentencing is proportionality. In this regard, I find the circumstances of the offence to be serious. Specifically, the offender ignored all suggestions and comments indicating that S.G. was not consenting. His persistence was a form of violence directed at S.G.’s personal integrity and robbing her of her right to say ‘no’. I find the offender’s moral culpability to be high. Aggravating and mitigating circumstances [ 22 ] As for the aggravating and mitigating factors, the offender’s related criminal record is aggravating.

It is also aggravating that the offender was on probation when he sexually assaulted S.G. A further aggravating feature is the offender exposed S.G. to the fear of pregnancy by engaging in unprotected intercourse. [ 23 ] In mitigation, the offender is trying to rehabilitate himself and from this it becomes clear that he sees a link between his offending and his substance abuse.

Other sentencing principles [ 24 ] The sentence that this court imposes must be the least restrictive that is appropriate in the circumstances and all sanctions other than imprisonment, that are reasonable, should be considered. [ 25 ] With respect to the above, I decline to impose a conditional sentence of imprisonment because such a disposition would fail to meet the purpose and principles of sentencing. While I acknowledge that a conditional sentence order can denounce and deter, the circumstances of the offence and the offender demand a high degree of denunciation and deterrence.

I say this, in part, because the offender received a conditional sentence for sexual assault in 2000 and it is clear that the sentence imposed at that time failed to deter him from committing the sexual assault that is before this court. [ 26 ] It is important to observe that I am not making a finding that an individual who has previously received a conditional sentence order is disentitled to receive a second one for the same offence, rather, my observation is that in the circumstances of this case such a sentence would not achieve the requisite denunciation and deterrence, nor, would it be proportional to the seriousness of the offence and offender’s culpability.

SENTENCE IMPOSED [ 27 ] After considering the purpose and principles of sentencing, the circumstances of the offence and the offender’s personal circumstances I impose a custodial sentence of 12 months and 11 days. From this amount the record will reflect time served of 7 days with a credit of 11, thus, leaving a balance of 12 months. Thereafter the offender will be on probation for 2 years. It is my view that this blended sentence assist with rehabilitation while achieving the requisite degree of denunciation and deterrence.

Terms of the probation order • keep the peace and be of good behaviour; • abstain from communicating, directly or indirectly, with S.G. and L.A.; • you must not attend at any residence, work place or education institute known to you to be that of S.G. or L.

A.; • you must appear before the court when required to do so by the court; • you are to notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; • within 48 hours of your release from custody you must report to a probation officer at 275 East Cordova Street, Vancouver, British Columbia and thereafter where and when directed by your probation officer; • you must notify your probation officer of your residential address and if you change that address you must immediately notify your probation of your new residential address; • you are to abstain from the possession and consumption of alcohol and those drugs defined by the Controlled Drugs and Substances Act except those drugs for which you have a medical prescription; • you must not attend any retail outlet where the primary business is the sale of alcohol this includes but is not limited to, liquor stores, beer and wine stores, bars, pubs, night clubs, and lounges; • you are to attend, participate in and successfully complete any counselling that may be directed by your probation officer; • you must not possess any weapons as defined by the Criminal Code ; and • while outside your residence you must not possess any knives unless you are immediately engaged in the preparation or consumption of food, or you are immediately engaged in your employment.

Ancillary orders • Pursuant to s. 487.051 (2) of the Criminal Code , I authorize in Form 5.03 that a sample of the offender’s DNA be collected. • Pursuant to s. 490.012 (1) of the Criminal Code , I order in Form 52 that the offender comply with the Sex Offender Information Registry Act for life.

• Pursuant to s. 109 of the Criminal Code , the offender is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, and explosive substances for life. • Victim fine sur-charge is payable forthwith in default one day in custody served concurrent to the sentence imposed. ____________________________ The Honourable Judge R.P. Harris Provincial Court of British Columbia