R. v. Rollo, 2023 BCPC 153

Citation: R. v. Rollo 2023 BCPC 153 Date: 20230605 File No: 260302-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. ADAM THOMAS ROLLO PUBLICATION BAN Pursuant to s. 486.4 (2) of the Criminal Code ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. BAKAN Counsel for the Crown: J.A. Dyck Counsel for the Defendant: D. Melville Place of Hearing: Vancouver , B.C. Dates of Hearing: January 27 and June 5, 2023 Date of Judgment: June 5, 2023

[ 1 ] THE COURT : These are my reasons for sentence. On July 13, 2022, I found Adam Thomas Rollo guilty of sexually assaulting W.Y. on August 29, 2021, contrary to s. 271 of the Criminal Code , R.S.C. 1985, c. C-46 . The Crown proceeded by indictment. The maximum sentence is 10 years. There is no minimum sentence and, since November of 2022, CSOs are available for this type of offence.

My reasons for judgment of July 13, have been filed. [ 2 ] I am giving my reasons for sentence today orally and reserve the right to correct or amend these for clarity, grammar, and case citations. [ 3 ] A publication ban remains in force under s. 486.4(2) of the Criminal Code . This ban restricts the publication, broadcasting, or transmission in any way of evidence that could identify the complainant. It applies indefinitely unless there is a court order to the contrary.

If a copy of this decision is ordered, the name of the complainant and the names of all persons that could identify the complainant, including dates, places, and institutions, shall be anonymized. [ 4 ] I have reviewed and considered the following for purposes of sentence in addition to the caselaw, able submissions of counsel, and the comments of Mr. Rollo: 1. Presentence report of Mr. Thrift filed January 27, 2023, Exhibit 1 on Sentence Hearing; 2. Presentence psychological assessment filed November 21, 2022, prepared by registered psychologist, Dr.

Lisa Brown of the Adult Forensic Psychiatric Community Services, with the assistance of a psychology resident, Exhibit 2 of Sentence Hearing; 3. Criminal record, Exhibit 3 of Sentence Hearing; 4. Letter from Mr. Rollo's treating psychiatrist, Dr. Mulvey, dated January 26, 2023 Exhibit 4 of Sentence hearing; 5. Addendum to presentence psychological assessment of Dr. Brown dated February 9, 2023, prepared after a discussion with Dr. Mulvey, Exhibit 5 of Sentence Hearing; and 6. Letters from friends of Mr. Rollo, Exhibit 6 of Sentence Hearing. [ 5 ] This matter was initially set for sentence on December 2, 2022.

It was adjourned to January 27, 2023 for sentence submissions. On that date, Crown made submissions, but by agreement of counsel the sentence hearing was further adjourned. The adjournment was due to Dr. Mulveys’ letter produced to the court at the start of defence submissions. [ 6 ] Counsel agreed further information was necessary from Dr. Mulvey. It was adjourned until March 2023, and adjourned again due to unavailability of defence counsel as he was in trial, and then to today. Again, the Crown made submissions on sentence on January 27, 2023, and some further submissions today.

Defence also completed submissions today. [ 7 ] The supplemental report of Dr. Brown was marked as Exhibit 5. It was during defence submissions on January 27, 2023, that the court was provided with a letter from Dr. Mulvey, dated January 26, 2023, who had been Mr. Rollo's treating psychiatrist since April of 2019. His notes had not been available to anyone prior and that was the reason the January 27, 2023 adjournment was made. Dr. Brown's addendum dated February 9, 2023, was written after she spoke with Dr. Mulvey. Subsequently, counsel advised they did not require Dr.

Brown for purposes of direct or cross-examination. [ 8 ] Both the complainant and Mr. Rollo testified at trial. Following the application of the R. v. W.(D.) analysis, I found the Crown had established Mr. Rollo's guilt beyond a reasonable doubt. [ 9 ] To summarize, the complainant and Mr. Rollo had been friends prior to this offence. The sexual assault took place in a residence in which Mr. Rollo and the complainant's spouse were roommates, in the bedroom of the complainant's spouse.

The Crown provided an overview of the facts in its sentence submission and referenced in particular, paragraphs 20, 24, 27, 28, and 34 of the reasons for judgment. [ 10 ] The circumstances of the offence included Mr. Rollo threatening the complainant by telling the complainant that sex was going to occur between them whether W.Y. "wanted it or not." Mr. Rollo's demeanour was threatening to W.Y. and I found W.Y. was fearful Mr. Rollo would injure him if he did not comply with Mr. Rollo's demands. At the time of the sexual assault, the complainant was a biological female.

At trial, the complainant identified as male and used male pronouns. I have therefore used male pronouns in respect to the complainant. [ 11 ] During the sexual assault, Mr. Rollo penetrated the complainant's vagina with his penis for approximately 30 minutes in a pounding manner. He did not wear a condom and ejaculated into the complainant's vagina. [ 12 ] In terms of the effect on the complainant, the complainant was fearful of Mr. Rollo from when he started speaking to him in a sexualized manner prior to the offence.

As stated in paragraph 128 of the reasons for judgment, during the complainant's testimony, W.Y. came across as a person who was negatively impacted. The complainant's testimony and demeanour at trial indicate he is a person with feelings of self-worth. The Crown advised that W.Y. chose not to provide a victim impact statement following the complainant's testimony. [ 13 ] In terms of Mr. Rollo's circumstances, Mr. Thrift's PSR, marked Exhibit 1, and the presentence forensic psychological assessment, marked Exhibit 2, contain information on Mr.

Rollo's childhood, family, education, employment history, substance use, mental health, clinical assessment, and risk assessment for sexual offences. [ 14 ] Mr. Rollo is 41 years old. He has prior convictions for aggravated assault and assault with a weapon. The first conviction involved initially consensual sexual intercourse with a woman on December 1, 2008. The consent, however, was vitiated as Mr. Rollo

did not disclose HIV status. He pled guilty to this offence on October 20, 2011, and served two years in jail with three years' probation. [ 15 ] His second conviction for assault with a weapon on August 7, 2016, arose from his brandishing a knife at his home at two women and then throwing the knife at one of them. He received a one-day jail sentence with presentence credit for time in custody of eight months and received probation for two years. [ 16 ] Dr. Brown's forensic report, marked Exhibit 2, states that Mr. Rollo denies criminal intent for the conviction at page 8, paragraph 2, and further states that Mr.

Rollo denies he committed the offence before this court for sentence at page 2, paragraph 2, under the heading, "Current Offence." [ 17 ] Mr. Rollo did complete a sexual offender program while incarcerated between 2011 and 2013, as indicated at page 7 of Exhibit 2. Dr. Brown writes that he attended individual therapy at Vancouver Regional Clinic in the community in 2015 and 2016, but was discharged due to poor attendance. He did, however, voluntarily start individual therapy with Dr. Mulvey in April of 2019, although this therapy was not directed to sexual matters or sexual offending. Dr.

Mulvey indicates treatment with psychotherapy for anxiety and some other issues I will address later. [ 18 ] In terms of Mr. Rollo's family background, Dr. Brown's report, marked Exhibit 2, references a 2011 presentence assessment that she authored wherein she describes Mr. Rollo's chaotic upbringing. He was removed from his mother for the first time as an infant. His parents separated prior to his birth and his father was abusive to his mother and he witnessed this abuse. He last saw his mother in 1996 and was placed in foster care.

He had limited contact with an aunt and some others in his mother's extended family. There is an aunt he still remains in touch with. [ 19 ] He has two sons. The eldest was born in 2010, but at the time of that report of Dr. Brown's, he had not had contact with him since 2019. His youngest son was born in 2019 and, at the time of Dr. Brown's report, he had seen his youngest son three times. [ 20 ] In terms of education, Mr. Rollo described to Dr. Brown that, due to acting out in school from grade three, he was placed in a specialized program in elementary school.

He was diagnosed with ADHD as a child and was followed by a child psychiatrist from the age of two. She states that, in her report of 2011, he reported self-harm when he was a teenager. He reported anger issues from a young age and physically assaulting persons when angry when young. [ 21 ] In terms of his employment, he reported he had worked in security, sales, and management, but has not been employed since 2009 and receives disability payments to support himself. [ 22 ] In respect to substance use, he reported using alcohol and marihuana regularly and has used drugs such as fentanyl and cocaine.

He first started drinking alcohol as a child and using marihuana at 12. There is, however, no evidence before me that substance use was a factor in this offence. [ 23 ] Mr. Rollo was diagnosed with HIV over 12 years ago, but this is currently undetectable due to his compliance with a medication regime. He has been on medication for approximately 12 years. The Crown is not submitting his HIV status is an aggravating factor in this case. [ 24 ] In terms of risk assessment, Mr. Thrift's PSR states that Mr. Rollo reported over 1,000 intimate partners. Mr. Thrift reported Mr.

Rollo told him he is now able to better manage his sex drive and anger and would comply with community-based orders. [ 25 ] In Dr. Brown's initial report marked Exhibit 2, she stated that his PAI, which is a Personality Assessment Inventory, tested during presentence assessment was not interpretable due to his exaggeration. She opines, based on her review and Mr.

Rollo's presentation, that he presents with "prominent features of personality disorder from Cluster B diagnosis" at page 9, and she states that he continues to have difficulties with recognition of risky situations, impulse control, and coping, and she further opines he continues to display reliance on sexual intimacy for coping and to bolster his self-view. [ 26 ] She did administer a Sexual Violence Protocol and sets out the review at pages 9 and 11 of her report marked Exhibit 2. This was written prior to her speaking to Dr. Mulvey.

She states [as read in]: Based on information available, without further treatment or management, in our opinion, Mr. Rollo presents a relatively high risk to sexually offend over the long term. However, we note that this risk is not seen as being imminent as he does not present with high- density offending. [ 27 ] She gives her

summary and recommendations in the last two paragraphs at page 11 and over onto page 12. Sentencing was adjourned on January 27, 2023, to enable Dr. Brown to get information from Dr. Mulvey. In Dr. Mulvey's letter dated January 26, 2023, he confirms Mr. Rollo is well known to him since April of 2019, that he was currently a patient with whom he describes a trusting relationship and positive therapeutic rapport. He describes Mr. Rollo as motivated and open to treatment advice, that he follows his treatment plan, and adheres to his medication. He states in that letter that Mr.

Rollo has responded positively to treatment. [ 28 ] He notes that he was recently assessed for difficulties with cognition and executive function and had a newer diagnosis of mild neurocognitive disorder and was awaiting neuropsychological testing to elucidate any cognitive difficulties. There is no information before the court in regard to any results of this testing. Dr. Mulvey's letter does not comment on Mr. Rollo's criminal history or risk of future offending. [ 29 ] Dr. Brown prepared her addendum report after speaking to Dr. Mulvey on February 8, 2023, for 30 minutes by telephone.

He confirmed he has been Mr. Rollo's treating psychiatrist since April of 2019. This is prior to the subject offence. Dr. Mulvey reported to Dr. Brown that Mr. Rollo is compliant with medication and that medication has improved some symptoms of his anxiety. Dr. Mulvey said his working diagnosis for Mr. Rollo is attention deficit disorder, intermittent explosive disorder, and Cluster B personality traits which he defines as prominent affective instability and mood reactivity. He takes a prescribed stimulant for ADD and some anti-anxiety medication.

[ 30 ] Dr. Mulvey reported to Dr. Brown that Mr. Rollo is currently less irritable and prone to exaggeration during sessions. Dr. Mulvey advised that he and Mr. Rollo did not routinely discuss Mr. Rollo's sexual behaviour or intimate relationships and there is no information before the court on these discussions. [ 31 ] Dr. Mulvey advised that Mr. Rollo is seeing a neurologist and others for assessment for difficulties with short and medium-term memory. Mr. Rollo has had some MRIs which show progressive degeneration of brain ventricles of unknown cause.

I note there is no evidence before me of any nexus between the above-reported neurological symptoms and the offence before the court. [ 32 ] In her addendum report marked as Exhibit 5, Dr. Brown addressed her prior risk assessment. She states [as read in]: It appears that Mr. Rollo is relatively well connected in the community for medical and psychiatric treatment. He is attending sessions and taking his medication as prescribed. Although Mr. Rollo appears to be engaged in treatment at the present time, I would not change my assessment of his risk. Mr.

Rollo is being seen every one-and-a-half to two months for supportive psychotherapy and he is receiving medication to treat his ADHD and reduce anxiety. While this likely provides him with support and may have a benefit to his general function, it is not targeting his main risk factors for sexual offending which centre around his personality structure, relatively high sex drive, and limited empathy. [ 33 ] Neither Dr. Mulvey's letter nor their subsequent discussion changed Dr.

Brown's risk assessment. [ 34 ] In terms of the sentencing position, the Crown is seeking a carceral sentence of three to four years with collateral orders which include a mandatory lifetime SOIRA order, a minimum 10-year weapon ban, and DNA. [ 35 ] Defence submits that Mr. Rollo should receive a CSO for two years less a day followed by three years' probation.

A CSO is a jail sentence in the community and conditions suggested by defence would include, during the period of the CSO, house arrest, a Rogers order, an abstain clause, and counselling, with the following probation order having conditions mirroring the CSO but for house arrest.

Defence submits that if he is stable in the community, there should be no risk to the community and notes that there has been no reoffending since the offence before the court. [ 36 ] In terms of the purpose and principles of sentencing, they are codified in s. 718 of the Criminal Code which states: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

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 [others] 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. [ 37 ]

Section 718.1 of the Criminal Code states that: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 38 ] A proportionate sentence is one wherein the sentence is proportionate, again, to both the gravity and the responsibility, and that is addressed in mitigating and aggravating factors. The sentencing analysis considers statutory principles and objectives within the context of the individual before the court for sentencing. [ 39 ]

Section 718.2 of the Criminal Code sets out considerations a court must consider in the sentencing process. A sentence of an individual should be increased or reduced to account for aggravating and mitigating circumstances that address a person's moral blameworthiness. The principle of parity is contained in s. 718.2 (b): … a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances … [ 40 ] Deterrence and denunciation are the paramount sentencing principles for sexual assault.

Courts place these principles ahead of other sentencing factors for sexual assault unless there are extraordinary circumstances. While deterrence and denunciation are paramount sentencing principles, the prospects of rehabilitation, parity, proportionality, and totality, where applicable, must all be considered in sentencing an individual. [ 41 ] The caselaw indicates that the range of sentence for sexual assault varies. It depends on factors, including the mental state of both the offender and the victim, vulnerability, the level of violence, and the age of the offender and victim.

The range of sentence for sexual assault in British Columbia that includes intercourse is two to six years as set out in R. v. G.M. , 2015 BCCA 165 , at paragraph 22 . That decision states that: [18] Absent exceptional or unique circumstances, it is incumbent on the sentencing judge to give primacy to the deterrence and denunciation when imposing a sentence for a serious sexual assault … [ 42 ] The Crown has provided a brief of case authorities to support a range of three to four years of incarceration in this case. Crown acknowledges these are guides only as none of the cases are identical to that before me.

Some of the cases had more mitigating circumstances and some were more aggravating. The range of sentence was two-and-a-half years in R. v. Davies , 2022 BCCA 391 , and

R. v. Cartwright , 2019 BCSC 820 , to four years in R. v. Grant , 2018 BCSC 1362 . [ 43 ] In Davies , the offender was 18 years of age with no prior criminal record. The victim of the sexual assault was 16. He had non- consensual intercourse, digital penetration, and oral sex. He had much community support, but the appeal against a 30-month sentence was dismissed, as stated in paragraphs 28 and 29 of that decision. [ 44 ] In Cartwright , the offender had a minimal, very dated record.

In addition to sexual assault of a stranger who had been sleeping and with whom he had had intercourse without consent, he received a sentence of 30 months' incarceration. [ 45 ] In R. v. Ravelo-Corvo , 2020 BCSC 2130 , and R. v. Jajja , 2022 BCSC 467 , the offenders received incarceration sentences of three years. Neither had criminal records. Ravelo-Corvo was 25 years of age and convicted of sexual assault involving forced intercourse and unlawful confinement. He was an immigrant who faced a strong possibility of deportation as a result of conviction.

In Jajja , the offender sexually assaulted a very intoxicated 21-year-old female he had met at a bar in his hotel room. It included vaginal intercourse without a condom and at least attempted anal penetration and he was liable to deportation as a result of this offence. [ 46 ] In Grant , the 39-year-old offender had no record and was convicted of sexual assault committed on his boat.

He forced various sexual acts on the victim over several hours leaving bruises on her body and had significant family and community support, but nevertheless was given a sentence of incarceration. [ 47 ] The defence relies on the case of R. v. Proulx , 2000 SCC 5 ; R. v. Yusuf , 2011 BCSC 626 ; and R. v. P.C. , 2010 BCSC 924 , in support of a CSO for this case for Mr. Rollo. As noted in submissions of counsel, a CSO has been available for sexual assault offences since November of 2022. Both the P.C. and Yusuf cases, however, were cases where there was a joint submission for a CSO before the court.

This is not the case here. Both those cases are over 10 years old and are factually distinct to matters before this court. [ 48 ] Proulx sets out the criteria required for the granting of a CSO and considers the

interpretation and application of the conditional sentencing provisions set out in s. 742.1 of the Criminal Code . A CSO is a jail sentence in the community and is more punitive than a suspended sentence with probation. They are generally longer than a carceral sentence and, if there is a breach, the offenders usually end up serving the rest of what is left in custody. [ 49 ] The test in s. 742.1 of the Criminal Code is set out in paragraph 46 of Proulx.

Firstly, the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; secondly, the court must impose a term of imprisonment of less than two years; thirdly, the safety of the community would not be endangered by the offender serving the sentence in the community; fourthly, a conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in sections 718 and 718.2 . It is stated in Proulx that: [58] … the judge need not impose a term of imprisonment of a fixed duration at the first stage of the analysis.

Rather, at this stage, the judge [must simply have] to exclude two possibilities: (

a) probationary measures; and (

b) a penitentiary term. If either of these sentences is appropriate, then a conditional sentence should not be imposed. [ 50 ] If a CSO is still possible following the preliminary determination, the judge then determines whether a CSO would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code . It is at this stage that the duration and venue of the sentence is determined and conditions are imposed. Neither party has the onus of establishing that the offender should or should not receive a CSO.

At paragraph 122 of Proulx , it is stated that it is in the offender's best interest to establish elements that favour a CSO but it is not a formal onus. As stated by counsel for the defence today, a

summary of the principles set out in Proulx are contained in paragraph 127 of that judgment and include increasing use for restorative justice and other principles. [ 51 ] The offender in Proulx had received an 18-month sentence of incarceration following a guilty plea to one count of dangerous driving causing death and one count causing bodily harm. He had no criminal record, was very young, and appeared rehabilitated. He was seriously injured in the accident and had suffered from the death of his best friend in the accident.

The trial judge found the offender did not pose a danger to the community, but a CSO would not be in conformity with the sentencing objectives in s. 718 and held incarceration was required for denunciation and deterrence. [ 52 ] The Supreme Court of Canada upheld the sentence noting that the offences were very serious as they resulted in death and severe bodily harm.

While the Supreme Court of Canada did not rule out a CSO would not be appropriate for such offences and, in fact, might have been appropriate, deference was given to the trial judge who was closer to the community and knew better what was acceptable to it. Absent evidence that the sentence was demonstrably unfit, it was held the Court of Appeal should not have interfered with the trial judge's decision. [ 53 ] In terms of the application of law to sentence in this case, I find the mitigating factors are that Mr. Rollo had a difficult childhood.

He witnessed family violence, was in care at an early age, and had substance abuse issues young. It is also mitigating that he is willing to engage in treatment. He has been with his current psychiatrist since April of 2019, which was prior to this offence, and he confirmed in his comments to the court today that he is willing to continue to engage in treatment. There have been no offences or charges, I understand, since this offence in 2021. Mr.

Rollo has expressed his remorse today for his actions and apologized to the victim and his family for the consequences. [ 54 ] In terms of the aggravating factors, he did use threat by saying, "You can take it willingly and enjoy it, but if not, it will happen anyway." He had an aggressive demeanour. The sexual assault was painful. The complainant described Mr. Rollo pounding his penis in the complainant's vagina for about 30 minutes. The offence took place in the bedroom of the complainant's spouse which should be a place of refuge and not of fear. No condom was used, and Mr.

Rollo ejaculated inside the complainant which causes more stress and concern given the potential risk of pregnancy and any type of STD. [ 55 ] Mr. Rollo had previously pled guilty for what was then termed aggravated sexual assault in 2008, for having sexual intercourse without disclosing his HIV status at that time. At that time, there was not the medication regime that there is today which currently has brought down his count to zero as I understand. There was also the prior offence, assault with a weapon, throwing a knife; and Mr.

Rollo was middle-aged at the time of this offence and, while his record was not lengthy, it did involve deceit and violence, and Mr. Rollo has had periods of probation in the community before and treatment, but again, this occurred afterwards. In terms of this, while Mr. Rollo comes before this court with a fairly short record, it does involve violence and deceit which is aggravating. [ 56 ] When the mitigating and aggravating factors are balanced, I find that there is little reduction for moral blameworthiness in this case.

Deterrence and denunciation are primary sentencing factors for a sexual assault of this nature. I consider that rehabilitation is possible as he is amenable to therapy. I find, however, on the Proulx analysis, that on the first rung, the prerequisites for a CSO are not met. A sentence of two years less a day is not appropriate on the facts and law before me. [ 57 ] Based on sentencing principles, which also include proportionality and the other matters I have reviewed, I impose a sentence on Mr.

Rollo of three years' incarceration less any time served in addition to the following ancillary orders: a mandatory SOIRA order for life pursuant to s. 490.013(4); a mandatory DNA testing pursuant to s. 487.051(1), which can be taken in custody; and a mandatory weapon ban pursuant to s. 109(2)(a)(ii). [ 58 ] Pursuant to s. 743.21, I order Mr. Rollo not communicate with the complainant, whose name will be put into this, for the duration of his custodial sentence unless the complainant requests communication for restorative justice purposes. [ 59 ] I waive the victim surcharge. [ 60 ] Thank you. (REASONS CONCLUDED)