R. v. L.M.T. Date:, 2016 BCPC 472

Citation: R. v. L.M.T. Date: 20160104 2016 BCPC 472 File No: 24652-2-C Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. L.M.T. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE HEWSON Counsel for the Crown: S. Patola Counsel for the Defendant: J.F. Connolly Place of Hearing: Nelson , B.C. Date of Hearing: January 4, 2016 Date of Judgment: January 4, 2016

[ 1 ] THE COURT: These are reasons for sentence on Court File Number 24652-C-2. L.M.T. has pled guilty at his arraignment hearing of the offence listed in Count 2 on that Information. That offence is the offence of sexual assault causing bodily harm to B.W. contrary to s. 272(1) (

c) of the Criminal Code of Canada. [ 2 ] The Crown has suggested that a fit sentence would be a sentence generally within a range of about two years to six years' incarceration. The defence seeks a sentence of 18 months with a recommendation that L.M.T. serve that sentence at the Ford Mountain Correctional Centre. [ 3 ] L.M.T. is 22 years old. He was 21 at the time of the offence. He is someone who has had a sad life at least from the age of about 10. He lived primarily with his mother who was an alcoholic and he was a witness to domestic violence within their residence.

Despite the troubles of his adolescence, he continued to pursue a high school degree and is at the current time two credits short of high school graduation. [ 4 ] Since this offence occurred on the 3rd of May, 2015, L.M.T. has been living with family in Williams Lake. He has reconnected with the paternal side of his family. He enjoys the support of his family and close friends.

He has found work at a restaurant in Williams Lake. [ 5 ] A number of letters have been provided to me in support of L.M.T. and I will ask that those letters be collectively marked as Exhibit 1. [EXHIBIT BEING MARKED] [ 6 ] THE COURT: The circumstances of this offence are shocking. The complainant, B.W., was a friend of L.M.T.'s. The two of them went out to a local bar and then went back to L.M.T.'s residence. B.W. went to sleep and L.M.T. left the residence to go to a party somewhere else.

He returned at about seven o'clock in the morning on May 3rd, 2015. [ 7 ] B.W. woke up when she felt L.M.T.'s hand down her pants touching her vagina. She noticed a white powder around his nose and told the police that the way that he acted was consistent with impairment by cocaine. L.M.T. tied B.W.'s hands together with a large red elastic band. He digitally penetrated her against her will and contrary to her pleas for him to stop.

He gagged her and he smacked her, choked her, pinched her, and poured water over her face while her mouth was gagged with a t-shirt. [ 8 ] B.W. estimated that the assault went on for two hours. She begged him to let her leave and he refused to do that. B.W. said that L.M.T. told her, "I like raping and beating" while he was assaulting her. Eventually the assault lasted [sic] and B.W. was able to leave. About an hour after she left, L.M.T. sent her a text message that said, "I had a lot of fun with you this morning. I hope you did, too.

Have a good rest." [ 9 ] B.W. provided the court with a victim impact statement. The victim impact statement eloquently sets out the anguish that she has suffered since the day that she was assaulted. [ 10 ] The victim impact statement will be marked as the next exhibit, please, Madam Clerk. [ 11 ] THE CLERK: It was entered as one. [ 12 ] THE COURT: Since committing this crime, L.M.T. has engaged voluntarily in counselling. He has also tendered an apology letter which will also be marked as an exhibit. [EXHIBIT BEING MARKED] [ 13 ] The court ordered a psychiatric report including a risk assessment component.

The psychiatric report was prepared by Dr. Kimberly Kreklewitz. At page 9 of the report, Dr. Kreklewitz concluded that the results of the risk assessments that she conducted indicated that L.M.T. poses a low to moderate risk for future sexual violence. She said: Substance abuse is thought to be the most salient risk factor for L.M.T. and should be considered a critical item. As such, when L.M.T. is under the influence of substances, he should be considered to pose at least a Moderate risk. Dr.

Kreklewitz included the words "at least" in italics to emphasize them. [ 14 ] The Criminal Code and the common law set out the objectives of sentencing. The fundamental principle of sentencing in Canada is that the sentence that I impose be proportionate to the gravity of the offence and the degree of responsibility of the offender. Every sentence imposed by the court is going to have certain objectives. The sentence that I impose on this man today has at least three primary objectives.

They are denunciation, deterrence, and rehabilitation. [ 15 ] Denunciation is a statement of our community's condemnation of the sort of conduct that L.M.T. engaged in. His conduct encroached on our basis code of values and for that reason should be punished. [ 16 ] Deterrence is a concept that can be broken into two components. The first is general deterrence. General deterrence is an attempt to discourage other potential offenders and to educate the general public about the consequences of committing crimes like the offence that was committed here. The second component is specific deterrence.

This is an attempt to discourage this offender from committing offences in the future. [ 17 ] The third primary objective that I have to try to reach is rehabilitation. Rehabilitation can be the best protection that society has. It 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.

[ 18 ] Balancing those three objectives is difficult. One way of doing that is by looking at the aggravating and mitigating factors involved in the circumstances of the offence before me. When I consider the aggravating factors, there are four in particular that stand out.

They are, first, the shocking nature of the offence; second, the fact that this offence was prolonged and sustained over a period of some two hours; third, the absence of any hint of provocation; and fourth, the fact that the victim was a vulnerable victim, a trusting victim, who was asleep in L.M.T.'s residence. [ 19 ] Balanced against those aggravating factors, though, are a number of mitigating factors. Some of the mitigating factors in this case are powerful. L.M.T. pled guilty to this offence at a very early opportunity. The second mitigating factor is that he is a man with no criminal record.

He has never before come before the courts and pled guilty or been found guilty of any crime. The third is that he is a youthful offender. He is a young man at the age of 22 years old with good prospects for the future. The fourth is the demonstrated support of his family and his connections in the community. The fifth is that he has had to overcome a sad life and a troubled adolescence. [ 20 ] That brings me to the question of remorse. The comments in the psychiatric report with respect to L.M.T.'s view of the impact of this crime on B.W. are troubling.

I have considered them carefully, but I have also considered the positive remarks made about him from other sources including his family and friends in the community. After considering all of those different sources of information, I am satisfied and I accept that he is remorseful and that he has sufficient insight into his conduct that he has good prospects for rehabilitation. [ 21 ] Ms. Patola and Ms. Connolly have both provided me with books of authorities. The authorities set out decisions of the court in other cases.

All of the cases involved sexual assaults and so are broadly similar, but there are never ever two offenders that are identical and there are never ever two offences that are identical. So the challenge that I have today is to impose a sentence that will deter others while giving the best chance of rehabilitation for L.M.T. [ 22 ] L.M.T., would you stand up, please. [ 23 ] Sir, I am satisfied that a fair and fit sentence and the sentence that will have the best chance of reaching those different objectives is as follows.

I sentence you to a term of incarceration of two years less one day. [ 24 ] I will order pursuant to s. 743.21 that while you are in custody, you will have no contact or communication whatsoever with B.W. except once for the delivery of an apology letter if she consents to receive it. [ 25 ] I will recommend that you serve that sentence of incarceration at the Ford Mountain Correctional Centre. [ 26 ] Following that term of incarceration, you will be placed on probation for a term of three years.

The terms of the probation order will be provided to you in writing. [ 27 ] They will be you must keep the peace and be of good behaviour. [ 28 ] You must appear before the court when required to do so by the court. [ 29 ] 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. [ 30 ] Except as contemplated by this order, you must have no contact or communication directly or indirectly with B.W. and you must not go to any place known to you to be her residence, school, or workplace without further approval of the court. [ 31 ] You must report in person to the probation officer located at Suite 100, 640 Borland Street, Williams Lake, B.C., within two business days after the completion of your jail sentence.

After that, you must report as directed by the probation officer. [ 32 ] You must reside at a residence approved in advance by the probation officer, and you must not change your residence or your phone number at any time without obtaining the written permission of your probation officer. [ 33 ] For the first 12 months of this order, you must obey a curfew by being inside your residence between the hours of 10:00 p.m. and 6:00 a.m. each day, except as follows: (

a) with the written permission of the probation officer; such permission is to be given only for compelling reasons; you must also carry the permission with you when you are outside your residence during the curfew hours; (

b) for purposes directly and immediately related to your employment; (

c) in the event of a medical emergency and then only when travelling directly to or returning directly from a health facility; if requested, you must provide your probation officer with written confirmation that you went to the health facility signed by a representative of the health facility that you went to. [ 34 ] You must present yourself immediately at the door to your residence and you must answer the phone when any police officer or probation officer attends at your residence or calls your phone to check your compliance with the curfew condition of this order. [ 35 ] You must inform your probation officer within two business days of any change in your employment or marital status. [ 36 ] You must carry a copy of this order and permission slips with you at all times when you are outside your residence.

If a police officer stops you for any reason, you must immediately provide the police officer with a copy of this order without being requested to do so. [ 37 ] You must not possess or consume alcohol, drugs, or any other intoxicating substance, except in accordance with a medical

prescription. [ 38 ] You must attend, participate in, and successfully complete any intake assessment, counselling, or program as directed by the probation officer. [ 39 ] You must sign any waiver of confidentiality or release-of-information forms as will enable your probation officer, counsellors, or treatment providers to monitor your attendance and completion of any intake assessment, counselling, or treatment programs and to collaboratively discuss your treatment needs. [ 40 ] There are a number of ancillary orders, Madam Clerk, in addition to that probation order. [ 41 ] L.M.T. may play [sic, pay] a victim fine surcharge of $200.

The victim fine surcharge is due two months following his release from custody. [ 42 ] There will be a DNA order. The DNA order will read, "You must attend within the correctional centre in which you are in custody by February 1, 2016, at four o'clock p.m. and thereafter as may be necessary in order for a sample or samples of your bodily substances to be taken for purposes of registration in the national DNA databank in accordance with the provisions of

Part XV of the Criminal Code . This condition of this order applies to all qualifying offences and is valid until executed." [ 43 ] There will be a SOIRA order. It will read, "Pursuant to s. 490.012, I make an order in Form 52 requiring you to comply with the Sex Offender Information Registration Act for a period of 20 years." [ 44 ] There will be a firearms prohibition. The firearms prohibition is pursuant to s. 109 of the Criminal Code . It will read, "You are prohibited from possessing: (

a) any firearm other than a prohibited firearm or restricted firearm and any crossbow, restricted weapon, ammunition, and explosive substance for a period of 10 years; and (

b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life." [ 45 ] Ms. Patola, I believe that is the extent of the ancillary orders that were sought by the Crown. [ 46 ] MS. PATOLA: Yes, unless there is a need for a forfeiture order of any firearms, and such. [ 47 ] MS. CONNOLLY: There is not. [ 48 ] THE COURT: That is all, L.M.T. Would you go with the sheriff, please. [ 49 ] MS. PATOLA: And I will direct a stay of proceedings with respect to the counts not dealt with. [ 50 ] THE COURT: Thank you, Ms. Patola. (REASONS FOR SENTENCE CONCLUDED)