R. v. B.A.B., 2019 BCPC 172

Citation: R. v. B.A.B. 2019 BCPC 172 Date: 20190618 File No: 24303-1 Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. B.A.B . BAN ON PUBLICATION 486.4(1) CCC Section 16(4) Sex Offender Information and Registration Act (“SOIRA”) : This

section provides that no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA . ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. HEWSON Counsel for the Crown: D. Heighes Counsel for the Defendant: D. Ross Place of Hearing: [Omitted for publication], B.C. Dates of Hearing: November 26, 27, 2018 Date of Judgment: June 18, 2019 [ 1 ] THE COURT: Madam Clerk, these are reasons for sentence on court file 24303, sequence 1. Mr. B. has been found guilty of one count of sexually assaulting S.K. (“Ms. K.”) and one count of sexually assaulting K.B. (“Ms. B.”) on April 1, 2018.

[ 2 ] The Crown proceeded summarily. The Criminal Code provides a maximum sentence of 18 months and there is no minimum sentence. In this case, the Crown is seeking a custodial sentence while the defence submits that a conditional sentence order would be appropriate. [ 3 ] Mr. B. is 26 years old. He is currently residing with his aunt, B.J., on the [omitted for publication], B.C. His aunt suffers from rheumatoid arthritis and Mr. B. assists her by doing work around the residence and often financial support. Mr. B. is of an Indigenous background.

With his aunt's assistance he is beginning to participate and learn about his heritage. He graduated from high school in [omitted for publication], B.C. For the last two years he has been employed by [omitted for publication] as a full-time seasonal employee operating specialized paving equipment. According to a letter from that company’s area manager he will be hired back as a full-time employee for the 2019 paving season. Mr.

B. has no criminal record, although he committed this offence while he was on bail for a different alleged offence. [ 4 ] The evidence on the trial established that after a night in which everyone including the offender and the complainant had been consuming alcohol, Mr. B. found himself at the residence of Ms. K. Guests of Ms. K. were sleeping in various places around the house. Ms. B., Ms. K., and Ms. K.’s boyfriend were asleep in a queen size bed. Mr. B. got into the bed and fell asleep. [ 5 ] At some point, the boyfriend left. Later in the night Mr. B. wrapped his arm over Ms. B. with his hand on her breast.

He pulled her back toward him, but removed his hand when she told him not to touch her. [ 6 ] Ms. K. woke sometime after that. The room was very dark. A man was behind her who she thought was her boyfriend. They had sexual contact. He penetrated her vagina with his fingers. She went under the covers and performed fellatio on him. Ms. B. woke up and left the room. The man behind Ms. K. said that they were now alone and when she heard his voice she realized it was not her boyfriend. Ms. K. did not consent to have sex with Mr.

B. and his claim that he had a reasonable belief that she consented to sexual activity failed because Mr. B. took no steps at all to ascertain whether she was consenting. [ 7 ] Ms. K. wrote a heartfelt victim impact statement and read it in open court. It is clear that the incident had a severe impact on her. She spoke of the storm of hurt, shame, and disappointment that she lives with every day. [ 8 ] Mr. B. filed several character letters.

People that know him in the community describe him as a caring, giving, and loving man who has been an honest and loyal friend. [ 9 ] A presentence report was prepared by probation officer, T.L.K. (“Ms. T.K.”) of the [omitted for publication] Community Corrections Office. It is clear that in his community Mr. B. is suffering the stigma of having been charged and convicted of sexual assault. The author of the presentence report also makes it clear that Mr. B. believes he should not have been convicted and is frustrated with the verdict at his trial. As Ms.

T.K. put it, this makes it difficult to assess his attitude and understanding towards the offences and how it impacts the victims. She said that collateral contacts were surprised that Mr. B. was convicted and believed quote, "He was in the wrong place at the wrong time". [ 10 ] There are a number of court decisions dealing with the appropriate sentence in cases of sexual assault. Some of the decisions are on cases in which the Crown elected to proceed indictably. When the Crown elects to proceed indictably the high end of the range is usually much higher than in

summary conviction proceedings. For that reason trying to identify the sentence ranges by relying on decisions in cases where the Crown proceeded indictably can be misleading. When the Crown proceeds summarily, the range of sentence in British Columbia for people like the offender, who have committed sexual assault, is generally between 9 and 18 months incarceration. See R. v. Adubofour-Poke , 2017 BCPC 192 . In certain circumstances conditional sentence orders have been imposed. See for example, R. v.

Hans , 2016 BCPC 222 . [ 11 ] In all cases sentencing is an individualized exercise in which range of sentences must be weighed to the requirements of doing justice in the specific case at bar. The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 12 ]

Section 718 says that the fundamental purpose of sentencing is to contribute to respect to the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one more of the stated objectives. [ 13 ] The objectives that are important in this case are: • Denunciation which is the condemnation of conduct that has encroached on our community's basic code of values and for that reason should be punished.

General deterrence which is an attempt to discourage other potential offenders and to educate the general public. • Specific deterrence which is an attempt to discourage this offender from committing offences in the future through the fear of further punishment. • Rehabilitation, rehabilitation can be the best protection society has and is usually the main objective for youthful offenders.

However, it will normally not be the primary objective where the offender lacks significant remorse or denies responsibility for the offence. • Reparation, this is an attempt to return the victim or the community to the position it was in before the offence was committed. [ 14 ] There are other sentencing principles. One is proportionality. The sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A second is restraint.

The offender should not be deprived of liberty if less restrictive sanctions may be appropriate and reasonable in the circumstances. Parity - the sentence imposed on this offender should be similar to the sentences imposed on similar offenders in similar circumstances. However, parity of sentence is secondary to a fit sentence and to a uniform approach to sentencing.

[ 15 ] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to either the offence or to the offender. In this case, the aggravating factors are the nature and consequences of the offence which was an invasive, intrusive and deceptive act. The victim was a sleeping woman in her own bedroom where she had every right to expect to be safe. Another aggravating factor is Mr. B.'s lack of insight into the wrongfulness of his conduct. As our Court of Appeal said in R. v.

G.M. , 2015 BCCA 165 , at para. 29 : While a party is under no obligation to admit an offence, a continued denial is a material factor to be considered in determining whether a party is likely to re-offend. … [ 16 ] The mitigating factors include Mr. B.'s previous good character, his obligations towards his aunt, his history as a productive member of the community, and the stigma and loss of his good reputation that has resulted from this crime. [ 17 ] Section 718(2) (

e) of the Criminal Code requires me to consider all available sanctions other than imprisonment with particular attention to the circumstances of Aboriginal offenders. I must take into account the serious social problems facing Aboriginal people which may call for a more individualized, creative and innovative sentencing solution. I must also consider Mr. B.'s personal circumstances.

I must consider alternatives to jail and I must decide whether jail would actually serve to deter him from breaking the law in the future or denounce the crime in a way that would be meaningful to both him and to the community. [ 18 ] Section 718(2)(e), however, does not allow me to impose an unfit sentence and I still must consider all of the other principles and objectives of sentencing.

The more serious a crime or the more weight required on the principles of denunciation and deterrence, the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders whether the offender is Aboriginal or non-Aboriginal. [ 19 ] Mr.

B. has submitted that a conditional sentence is appropriate. [ 20 ] I have determined that the appropriate range of sentence is less than two years and a conditional sentence for that reason is not statutorily barred in the circumstances. [ 21 ] In determining whether a conditional sentence order will be imposed I have considered the following circumstances: I have considered the gravity of the harm that could happen in the event of a re-offence. I have considered Mr. B.'s history of compliance with court orders. I have considered the absence of a criminal record. I have considered whether Mr.

B. is willing to take responsibility for the offence and for his future conduct. I have considered what I find to be a lack of remorse. A lack of remorse indicates a lack of insight which translates into an increased level of risk. I have considered that the complainant, Ms. K., was known to Mr. B. I have considered Mr. B.'s employment in the community. I have considered the situation of his aunt who benefits from his presence.

I have considered his relationships with family and friends and others who will support supervision and rehabilitation. [ 22 ] After considering all of those factors I am not satisfied that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 or 718(2) . This is a case where denunciation and general and specific deterrence must be given priority as sentencing objectives. Despite the mitigating factors and circumstances supporting the imposition of a conditional sentence order, I am not satisfied that allowing Mr.

B. to serve this sentence in the community, even under house arrest, would convey to him and to the community how wrong he was to do what he did. [ 23 ] Mr. B., would you please stand, sir. [ 24 ] Having considered all these factors I have concluded that a just sentence to impose on you is a jail sentence of nine months’ incarceration. Following your release from custody you will be on probation for a term of 24 months.

The wording of the conditions of your probation order will be drawn from the provincial pick list. [ 25 ] The conditions of the probation order will be, 2001, you must keep the peace and be of good behaviour.

You must appear before the court when required to do so by the court. [ 26 ] You must 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. [ 27 ] You must have no contact or communication directly or indirectly with S.K. or K.B. [ 28 ] 2104, you must report in person to a probation officer at the [omitted for publication] Community Corrections Office within two business days after your release from custody unless you have obtained prior to your release written permission from the probation officer to report elsewhere or within a different timeframe.

After that you must report as directed by the probation officer. [ 29 ] 2201, when first reporting to the probation officer, you must inform him or her of your residential address and phone number.

You must not change your residence or phone number without written permission from your probation officer. [ 30 ] 2401, you must not possess or consume alcohol, drugs or any other intoxicating substances except in accordance with a medical prescription. [ 31 ] 2501, you must attend, participate in and successfully complete any intake assessment, counselling or program as directed by the probation officer. [ 32 ] There will be a number of ancillary orders.

Pursuant to s. 487.051 of the Criminal Code , I authorize that a sample of your DNA be collected. [ 33 ] Pursuant to s. 110 of the Criminal Code , you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, and explosive substance for five years.

[ 34 ] Pursuant to

section 743.21, you must have no contact or communication directly or indirectly with S.K. or K.B. while you are in custody. [ 35 ] Pursuant to

section 490.012, you are required to comply with the Sex Offender Information Registration Act for 10 years. [ 36 ] MS. HEIGHES: Your Honour, if I may, in relation to the Sex Offender Information Act , under 490.013(2.1), if convicted of two offences at the same time it's a lifetime SOIRA . [ 37 ] THE COURT: Mr. Ross, do you agree? [ 38 ] MR. ROSS: I -- I don't object. [ 39 ] THE COURT: The SOIRA order will be lifetime, Madam Clerk. Thank you, Ms. Heighes. [ 40 ] MR.

ROSS: If I might just mention one thing, Your Honour, I know this is a little unusual, but maybe a lot unusual and maybe not permissible or -- in any event, Mr. B. asked me to ask Your Honour if you would consider delaying the start of the sentence. His grandfather passed away June 6. There is family from other provinces in town. They are now leaving. Mr.

B. says he needs to help his grandmother who is 69 years of age to get settled after the funeral and so he has asked if the sent -- if he could start serving the sentence one month from now rather than today in order to help her with things that she needs help with. [ 41 ] THE COURT: Mr. Ross, I am very sorry. I could have adjourned the sentencing, but having passed sentence I cannot delay the commencement of the sentence. [ 42 ] MR. ROSS: All right, that is fine. [ 43 ] THE COURT: I am sorry about that. [ 44 ] Mr. B., would you please go with the sheriff. [ 45 ] MR.

ROSS: Thank you, Your Honour. [ 46 ] THE COURT: And I say that Mr. Ross because -- not because I would not want to, but because the law does not permit me to. [ 47 ] MR. ROSS: Yes, that is fine. Thank you, Your Honour. (REASONS CONCLUDED)