R. v. T.J.B.J., 2017 BCPC 436

Citation: R. v. T.J.B.J. 2017 BCPC 436 Date: 20170926 File No: 24142 Registry: Hazelton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. T. J. B. J. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON Counsel for the Crown: S. Meldrum Counsel for the Defendant: M. Murphey Place of Hearing: Hazelton , B.C. Date of Hearing: September 21, 2017 Date of Judgment: September 26, 2017 Background [ 1 ] On December 24 th , 2014, the accused was charged with counts of various sexual offences on information 24142.

[ 2 ] On March 7 th , 2017, the accused changed his plea to guilty to counts one and four on information 24142. [ 3 ] Count one alleged that the accused “from the 1 st day of January, 2006 to the 31 st day of December 2007, inclusive at or near New Hazelton, in the Province of British Columbia, did sexually assault M.J., contrary to s271(1) of the Criminal Code . [ 4 ] Count four alleged that the accused “from the 1 st day of January 2006 to the 31 st day of December 2007 did sexually assault R.J., contrary to s271(1) of the Criminal Code . [ 5 ] A presentence report and forensic psychiatric report were ordered. [ 6 ] The matter came on for sentencing on September 21 st , 2017.

At that time an admission of fact was filed as Exhibit One. The accused’s Justin Conviction List was filed as Exhibit Two. The Presentence report was filed as Exhibit Three. The Forensic Psychiatric Report was filed as Exhibit Four. Three reference letters on behalf of the accused were filed collectively as Exhibit Five. [ 7 ] The Admission of Fact established that the accused was living with his uncle during 2006 and 2007.

Also living in the home were the complainants, the accused’s cousins, twin girls born [omitted for publication]. [ 8 ] In October 2014, M.J. disclosed the historical sexual assault to her father. Both M.J. and her sister R.J. provided statements. M.J. disclosed that over a period of approximately six to seven months the accused would touch her. It started with inappropriate touching and became more sexual over time. The accused repeated the pattern of molestation which expanded to having the child touch his penis, and his fondling of her vagina.

Eventually the accused had the child perform fellatio on him. [ 9 ] In her statement R.J. stated she had only one memory of being molested by the accused. She described this as the accused having her sit on his lap, him touching her vagina, then rubbing her vagina and attempting to put his hand down her pants but that she did not let him do so. R.J. clarified that this happened when she was seven or eight years old during the summer. [ 10 ] The reference letters in Exhibit five are from the accused’s older sister, his mother and a long-time family friend.

The letters described the accused as “a good son”, “kind hearted”, “respectful”, helpful to others and someone who “is changing his life around for the better.” His sister A. wrote that she “would not hesitate for T.J.B.J. to be around my kids…”. [ 11 ] The presentence report stated on page eleven that the accused “appears to have difficulties with intimacy and as noted in the previous report, he has never experienced a substantive and/or long-term relationship with an age appropriate partner.

T.J.B.J. also continues to have difficulties discussing issues surrounding his sexuality and his offending.” [ 12 ] The presentence report also listed four factors that may increase risk. These are:

a) the lack of long term age appropriate relationships,

b) that one of the earlier convictions involved a male child,

c) that his record contains four prior sexual offence convictions against four different victims,

d) that some members of his family to not believe he is guilty of the past and current convictions which increases the risk of re- offending. [ 13 ] The presentence report listed one factor moderating risk which is that he has no convictions for non-contact sexual offences. It explains that offenders who engage in these types of behaviors are at increased risk for sexual recidivism. [ 14 ] The psychiatric report stated on page eight that on the STATIC-99R test the accused received a score consistent with Low- Moderate risk for future sexual recidivism.

It added that the history of offending with multiple family members makes the risk of re- offence higher than his numeric score. [ 15 ] The psychiatric report also stated on page eight that on the changeable risk test STABLE-2007 the accused presents a risk level of Moderate. [ 16 ] In the

summary of the psychiatric report it noted that there is no criminal record outside the prior sexual offences “very similar to the ones before the court.” It also noted that the index offences happened nearly ten years ago and that the accused has recently completed the Sex Offender Program. [ 17 ] The Justin Conviction List (Exhibit 2) recorded a conviction of sexual interference and invitation to sexual touching occurring in January 2001 and with sentence of deferred custody and probation imposed on November 13 th , 2012. [ 18 ] As well the Justin Conviction List recorded a conviction for sexual interference occurring in October 2005 and with a sentence of 90 days gaol and probation imposed on July 8 th , 2013. [ 19 ] As well the Justin Conviction List recorded a conviction for sexual interference occurring in January 2005 for which he received a concurrent sentence July 8 th , 2013. [ 20 ] As part of the submissions on behalf of the accused, a Mental Health and Addictions counselor, Cheryl McLaughlin St.

Moore advised the court that the accused has a severely diseased liver and requires a transplant as soon as possible. She added that these legal proceedings have made it impossible to arrange a residential treatment program but that the accused after attending the local detox facilities has abstained from alcohol the past 92 days. She added that the accused suffers from a long-standing hearing disability.

Submissions [21] The crown suggested a global sentence of two years less a day gaol plus three years of probation along with ancillary ordersincluding no contact with the complainants during incarceration. [22] The defence agreed with the length of sentence, probation and ancillary orders but suggests that the sentence should be servedas a conditional sentence under s742 of the Criminal Code. [23] The Crown submitted that deterrence and denunciation are major factors for the court to consider. [24] The Crown referred the court to page eight of the presentence report which states that the accused continued in his interviewsfor the report to be “non-disclosive” about the offence details and the thought processes that he experiences before, during and followinghis offending.

Combined with a lack of disclosure during earlier Sex Offender treatment the probation officer concluded that “this lackof disclosure makes it more challenging to develop strategies that specifically target his problematic sexual thinking.” [25] The defence submitted that because there are no offences since 2006-7 and that the accused has taken the Sex OffenderTreatment program that the risk to re-offend is low. [26] Concerning the lack of disclosure, the defence submitted that the lack of memory of events ten or more years ago isunderstandable.

The defence further submitted that the accused suffers from a cognitive disability and referred to the last paragraph onpage eight of the psychiatric report. This reads, “T.J.B.J. gave the impression that he does function under some level of diminishedcognitive capacity. He presents as a poor problem solver with perhaps low coping mechanisms.” [27] As a First Nation person, this court must also consider the sentencing principles laid out in R v Gladue (SCC),[1999] 1 SCR 688, R v Ipeelee 2012 SCC 13 , [2012] 1 SCR 433 and sections 718 and 718.2 of the Criminal Code.

Analysis [28] Both Crown and defence provided sentencing precedents. As is usual, none of the cases were exactly on point and these onlyprovide a range of sentence for similar offences. [29] The position of the parties is not a joint submission as per R v RDB 2013 BCCA 224, but counsel do agree on the length ofsentence.

Based on the factors laid out in paragraph 16 of R v T.P.C. 2000 BCSC 742 this court could have imposed a sentence ofconsiderably greater length. [30] The relevant factors are: the use of manipulation, the frequency and time period of exploitation, the abuse of trust, previoussimilar offences close in time, lack of confession and lack of immediate involvement in treatment, and the time between the offences andguilty plea and treatment as a mitigating circumstance. [31] However, the Crown and defence counsel have considered both the aggravating and mitigating circumstances including thebenefit of not requiring the victims to testify.

Accordingly, they have suggested a length of sentence that is within the range ofappropriate sentences. [32] The issue is whether a conditional sentence under s742 is appropriate. Such a sentence is available as the offences took placebefore Parliament changed the law to require minimum gaol terms and specifically excluded offences under s271 amongst others. [33] The process laid out by the case of R v Proulx 2000 SCC 5 is to first determine if the offence in the circumstances will attract asentence of less than two years.

That is the case here. [34] The second question is whether it is appropriate for the accused to serve his sentence in the community. The Proulx case heldthat the sentencing court must be satisfied that the imposition of a conditional sentence would not endanger the safety of the community. Such a determination involves consideration of the risk of the accused reoffending and the gravity of the damage that would occur if hedid reoffend. [35] R v Stewart 2016 BCSC 2577 dealt with a historical sexual assault.

At paragraph 31 it adopted the reasoning in R v W (D.L.)2014 BCSC 43 that conditional sentences are rarely appropriate for persons convicted of sexual interference against children while inpositions of trust. That is the case here. [36] Similar logic appeared in R v Safaee 2009 BCCA 367 which at paragraph 25 held that the principles of deterrence anddenunciation will not be achieved by a conditional sentence.

That was because sexual offences against children is “a most serious breachof trust.” [37] Applying the two part test laid out in R v Proulx, in the case at hand the risk has been assessed as low to moderate.

Thepsychiatrist and the probation officer both found the accused to show a lack of disclosure that made his internalization of the therapy ofthe Sex Offender Program suspect. [38] That suspicion is reinforced by the fact that the accused did not disclose the offences of this case from 2006-7 while he was intherapy in 2012 for the offences which occurred in 2001 and again in therapy in 2013 for the two separate offences which occurred in2005.

Accordingly, this court finds that there remains a substantial risk of re-offence if he serves his sentence in the community. [39] Concerning the second part of the test in R v Proulx, the issue is the gravity of the damage that could ensue. It is obvious thatyoung child victims can and do suffer grievous psychological harm. That was the case of the victims in this case and the depression,anxiety, resentment and damage to relationships within the victim’s immediate family are described on page five of the presentencereport. These are described as still enduring ten years after the incident.

Accordingly, this court finds that the gravity of potential harm

is severe. [ 40 ] Therefore, this court finds that a conditional sentence is not appropriate. Sentence [ 41 ] On count one I sentence you to two years less one day in gaol. [ 42 ] On count four I sentence you to two years less one day in gaol to be served concurrently. [ 43 ] Both sentences shall be followed by three years of probation. The terms of the probation shall be as follows:

a) You must keep the peace and be of good behavior.

b) You must have no contact or communication directly or indirectly with M.J. or R.J.

c) You must not go to or be within 10 meters of any residence, school or workplace of M.J. or R.J.

d) You must report in person to a probation officer at the office nearest the place of your release within 72 hours after your release from custody and thereafter report to your probation officer as and when and in the manner directed by the probation officer.

e) You must reside at a residence approved in advance by the probation officer. You must provide your probation officer with your phone number and you must not change your residence or your phone number without written permission from your probation officer.

f) You must not go to any public park, public swimming area or community centre where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground, except with the written permission of your probation officer. You must carry the written permission when you are in the prohibited area.

g) You must have no contact or communication directly or indirectly with, nor be alone with the presence of any person you know to be or who reasonably appears to be under the age of 16 years except if you have the written permission of your probation officer in which case you must carry the permission.

h) You must not engage in activities, volunteer work or employment that could bring you in contact with persons under the age of 16 years without the written permission of your probation officer and when so engaged you must carry this permission.

i) You must immediately advise the Probation officer of all relationships with parents or guardians of children and consent to those individuals being informed of your criminal history.

j) You must not possess or consume alcohol, drugs or any other intoxicating substance except in accordance with a medical prescription.

k) You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the probation officer, without limiting the general nature of this condition, the intakes, assessments, counselling or programs may relate to alcohol and drug abuse and sexual offence prevention.

Ancillary Orders [ 44 ] Pursuant to s743.21 of the Criminal Code you must have no contact or communication directly or indirectly with M.J. or R.J. while you are in custody. [ 45 ] Pursuant to s 110 of the Criminal Code , you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition and explosive substance for five years. [ 46 ] Both Counts one and four of the information 24142 are primary designated offences.

Pursuant to s487.051(1) I make an order in Form 5.03 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National Databank. [ 47 ] There shall also be an order under s161 of the Criminal Code . [ 48 ] There shall also be an order for registration under the Sex Offender Registry pursuant to s490.013(3) for life. _______________________________ W. F. M. Jackson Provincial Court Judge