R. v. A.R.J.P, 2022 BCPC 134

Citation: R. v. A.R.J.P 2022 BCPC 134 Date: 20220629 File No: File No: Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A.R.J.P BAN ON PUBLICATION Pursuant to

Section 486.4(1) of the Criminal Code of Canada REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Counsel for the Crown: J. MacRae Counsel for the Accused: J. Dhillon Place of Hearing: Port Coquitlam , B.C. Date of Submissions: April 22, 2022 Date of Sentence: June 29, 2022

Introduction [ 1 ] On November 18, 2021, A.R.J.P. (“Mr. P.”) entered a guilty plea to a charge that on April 24, 2021, he sexually assaulted R.S. (“Ms. S.”) contrary to s. 271 of the Criminal Code . [ 2 ] The issue before me is the appropriate sentence. The Crown proceeded summarily and

section 271 (

b) of the Criminal Code sets out a maximum sentence of 18 months when the complainant is 16 years of age or older. Evidence [ 3 ] The following documents were submitted to me for consideration: 1. Pre-Sentence Report of R. Sanghera completed March 16, 2022 (the “Pre-Sentence Report”). 2. Psychological/Psychiatric Report of Dr. Mandeep Singh Saini dated March 16, 2022. 3. Letter from Christina Chau of Homewood Health dated March 8, 2022. 4. Apology letter from Mr. P., undated. 5. Reference letter from R.P., father of Mr. P., undated. 6. Reference letter from L.C., mother of Mr. P., dated February 24, 2022. 7.

Reference letter from J.C., stepfather of Mr. P., dated February 24, 2022. 8. Reference letter from J.P., sister of Mr. P., undated. 9. Reference letter from N.B., friend of Mr. P., undated. 10. Victim Impact Statement of R.S. dated December 8, 2021. 11. Victim Impact Statement of R.S., dated January 17, 2022. Circumstances of the Offence [ 4 ] Mr. P. and Ms. S. were living together at the time of the offence, along with Ms. S.’s two young children. [ 5 ] On April 23, 2021, Mr. P. accused Ms. S. of cheating on him, which she denied. This argument continued into the early morning of April 24, 2021.

At one point, Ms. S. told Mr. P. she would admit to cheating on him if he would let her sleep. Mr. P. did not agree. [ 6 ] At this point, Ms. S. turned her back to Mr. P. Mr. P. grabbed her and started to bite her shoulder. Ms. S. told him this was hurting her. Mr. P. turned Ms. S. over, continued to bite her and started to yell obscenities. Because Mr. P. was on top of Ms. S., her attempts to free herself failed. [ 7 ] Mr. P. then attempted to have sex with Ms. S. Ms. S. resisted and asked him to stop. Mr. P. continued to ask her to admit to cheating on him. [ 8 ] Mr. P. then left the bedroom.

He returned a few minutes later and attempted to have sex with Ms. S. again. Ms. S. said no but Mr. P. insisted. Ms. S. relented. She felt that even if she said no, she feared Mr. P. would still force sex upon her. [ 9 ] At the time, Mr. P. stood 6 feet tall and weighed 190 lbs. Ms. S. stood 5’1”. [ 10 ] The incident resulted in bruising and scratches to Ms. S. [ 11 ] The next day, there was a physical altercation between the parties. Ms. S. and the children left the home. Ms. S. reported the sexual assault to the police. Circumstances of the Offender [ 12 ] Mr. P. has no criminal record.

He is 27 years old and is the youngest of five children. By all accounts, he was raised in a loving and supportive family. This was demonstrated by the letters of support provided to me. [ 13 ] When Mr. P. was 16 years of age, his older sister passed away due to a stroke. This was a traumatic event for Mr. P. [ 14 ] Mr. P. has dealt with medical issues since the age of 12, when he was diagnosed with Perthes Disease, a disorder affecting the hip joint. Mr. P. had a right hip joint replacement at the age of 18 and a left hip joint replacement at the age of 20. Mr. P. also has tendonitis in both knees.

He suffers from chronic pain and uses marijuana to help deal with this. [ 15 ] Mr. P. is unable to work and has been receiving disability benefits for the past six years. [ 16 ] Following the assault, Mr. P. voluntarily sought counselling help. A letter from Homewood Health indicates he attended eight

sessions from October 2021 to February 2022, with a focus on such issues as interpersonal relations and stress. [17] Mr. P. expressed to the Court his regret for his actions, both in person and through his letter to the Court. The pre-sentence reportreiterates this. I accept that Mr. P. is remorseful. [18] The Psychological/Psychiatric Report of Dr. Mandeep Singh Saini dated March 16, 2022 states there is no clear evidence Mr.P.’s use of cannabis has been problematic, and there is no basis to find any substance-related or addictive disorder. [19] Dr. Saini was of the view Mr.

P. presented an average risk for sexual recidivism. He recommended that if I allow Mr. P. to servehis sentence in the community, there be close supervision by corrections staff, a requirement for Mr. P. to report any future intimaterelationships, supervision of activities on dating websites, and supervision and monitoring of the use of psychoactive substances. Dr.Saini suggested Mr. P. be referred to a sex offender treatment program, and he not have any contact with the victim. [20] Mr. P. wants to seek help first before he becomes involved in any further relationship. Effect on the Complainant [21] Ms.

S. presented two very contrasting victim impact statements. [22] In a statement dated December 8, 2021, Ms. S. said she was ready to move on with her life, she was willing to forgive Mr. P., andshe had no concerns or fears for her security. [23] In a second statement dated January 17, 2022, Ms. S. said she wrote the first statement out of fear because Mr. P. knew whereMs. S. worked and where her children went to school. Ms. S. now described being unable to return to work for a week after the assault,and at times hiding in the back area of her workplace to cry.

She described being unable to eat or sleep, and feeling broken inside. Ms. S.suffered many bruises, bite marks, squeeze marks and abrasions due to the assault. She has sought counselling treatment and taken self-defence courses, all at her own expense. [24] Mr. P. does not question the change between the two victim impact statements. [25] It is clear that the assault had a serious effect on Ms. S. Crown Submissions [26] Ms. MacRae for the Crown referred me to a number of mitigating and aggravating factors, all of which I accept. [27] The mitigating factors are: 1. Mr. P. has no criminal record. 2.

He is still somewhat youthful, suggesting that rehabilitation remains a viable option. 3. This was an early guilty plea, which spared the Complainant from testifying. 4. Since Mr. P. was released from custody on August 20, 2021, he has not committed any further offences. 5. Mr. P. shows remorse for his actions. [28] The aggravating factors are: 1. This was the sexual assault of an intimate partner, a statutory aggravating factor pursuant to s. 718.2(a)(ii) of the Criminal Code. 2. The assault had a significant effect on Ms.

S., another statutory aggravating factor pursuant to s. 718.2(a)(iii.1) of the Criminal Code. 3. The assault was violent, leaving signs of visible injury. 4. The offence occurred in their home where two young children were sleeping. [29] The Crown argues that the appropriate sentence is in the range of 12 to 18 months, followed by a two-year probation period. TheCriminal Code classifies sexual assault as a “primary designated offence” and so the Crown seeks a number of ancillary orders, which Iwill discuss later. [30] Ms. MacRae referred me to a number of cases. [31] The decision R. v.

G.M., 2015 BCCA 165 , [2015] B.C.J. No. 762 states: [17] In serious sexual assault cases, the paramount sentencing objectives are denunciation and deterrence; it is not an error inprinciple to give them primacy over other sentencing principles such as rehabilitation: see e.g. R. v. Wells, 2000 SCC 10 at para. 44; R. v.B.S.B., 2010 BCCA 40 at para. 39; R. v. Thurairajah, 2008 ONCA 91 at para. 41. [18] Absent exceptional or unique circumstances, it is incumbent on the sentencing judge to give primacy to the deterrence anddenunciation when imposing a sentence for a serious sexual assault: R. v.

Garrett, 2014 ONCA 734. At para. 19 of Garrett, the OntarioCourt of Appeal stressed that ignoring pleas by a complainant to stop “in itself” constituted “demeaning behaviour and contemptuousdisregard for the personal integrity of the complainant” that engaged “the predominant sentencing principles of denunciation anddeterrence.”

[ 32 ] The Court went on to say: [22] The range of sentences for sexual assault involving intercourse is two to six years: R. v. B.S.B. , 2010 BCCA 40 at para. 6 and R. v. Pouce Coupe , 2014 BCCA 255 at para. 31 . While the range of sentences is an important consideration, ranges constitute guidelines rather than hard and fast rules. [ 33 ] At paragraph 24, the Court stated: While the respondent’s lack of a prior criminal record is a mitigating factor, on its own it does not make an intermittent 90-day sentence appropriate or justify taking the sentence outside the normal range: see R. v.

Shalley , 2005 MBCA 150 ; R. v. Rosenthal , 2015 YKCA 1 ; Garrett . [ 34 ] The R. v. G.M. case is one where the Crown proceeded by way of indictment. In the case before me, the Crown proceeded summarily and so the maximum penalty is 18 months. The range referred to in the G.M. case is not applicable as the Crown proceeded by indictment. [ 35 ] R. v. F.D.B ., [2020] B.C.J. No. 672 , was a case involving both forced digital and penile penetration of the victim, who had been in a previous relationship with the offender.

The Crown and defence submitted a joint proposal for a 30-month sentence less available credit of three months pre-sentence custody. [ 36 ] Judge MacCarthy referred to the R. v. G.M. case and the sentencing range of two to six years. Again, that relates to a charge laid by way of indictment rather than a charge pursued summarily. [ 37 ] The Court then referred to the decision of Mr. Justice Marchand in R. v. Tayo Tompouba , 2020 BCSC 308 , where an offender committed sexual assault by way of penis-vagina intercourse.

The Court imposed a 90-day intermittent sentence and probation for three years. [ 38 ] Judge MacCarthy discussed the R. v. Tayo Tompouba case, stating: [40] In coming to its final decision in Tayo Tompouba , the court found that there were compelling and/or truly exceptional circumstances to make an intermittent sentence a fit sentence that could adequately address the sentencing objectives of denunciation and deterrence when ordinarily a significant period of incarceration would be required. [41] However, in reaching that decision, Mr.

Justice Marchand noted carefully the direction of the Court of Appeal in R. v. G.M. In that vein, he stated as follows which I find to be important to circumstances in the case before me: [67] The circumstances and sentencing authorities make clear that denunciation and deterrence are the primary sentencing objectives. A fit sentence must reinforce that men must not make assumptions about consent. Men must understand that yes means yes and everything else means no.

Sentences imposed by the court must communicate in the clearest terms that the community has no tolerance for the sexual abuse of vulnerable women and that anyone who violates a woman's sexual integrity will face serious consequences, including a significant loss of liberty. [42] In the course of his analysis, Mr. Justice Marchand carefully reviewed a number of cases in which sentences below the range established by G.M. were imposed.

At para. 53, he says as follows: [53] What I take from the cases is that, in the vast majority of cases, the primary sentencing objectives of denunciation and deterrence dictate custodial sentences of between two to six years in cases of sexual assault involving intercourse. In particularly compelling circumstances, a custodial sentence below the usual range may be appropriate. In rare and truly exceptional cases, a community-based disposition may be imposed.

I further draw from the cases that the following factors may lead a sentencing court to conclude that a sentence below the usual range would be appropriate: − a modest impact on the complainant; − an offender with a reduced level of moral blameworthiness; − an offender with no criminal record who acted out of character and posed a low risk to re-offend; − a significant impact on the offender's family if the offender were to be incarcerated; − the permanent resident status of the offender; and − the absence of a need to specifically deter the offender. [54] This list is not intended to be exhaustive. [ 39 ] When I consider the factors listed by Mr.

Justice Marchand, I note the following: 1. The impact on Ms. S. has been significant. 2. Mr. P. has no criminal record and his actions were out of character. 3. Mr. P. has an average risk to re-offend, rather than a low risk. The other factors cited by Mr. Justice Marchand do not apply here.

[ 40 ] The decision R. v. Robert , [2021] B.C.J. 804 involved a sexual assault with unexpected and violent anal penetration (para. 29). The Court cited R. v. G.M. for the proposition that the range for sentences involving intercourse is two to six years, which the Court referred to as a guideline that did not prevent a lighter or a higher sentence. The Crown sought a sentence of two years less any credit, while the Defence sought a sentence of 16 to 18 months, less credit. [ 41 ] The offender in R. v. Robert was aboriginal with a significant prior record.

Section 718.2 (

e) of the Criminal Code requires a sentencing judge to consider the circumstances of an Aboriginal offender, often referred to as the “ Gladue factors.” This name comes from the Supreme Court of Canada decision called R. v. Gladue . I do not need to go into details about this case because Mr. P. is not Aboriginal, and so these factors do not apply here. [ 42 ] In R. v. Robert , the Court took into consideration the Gladue factors, noting the offender was raised in poverty and suffered from physical and substance abuse.

A guilty plea was entered but it came only on the eve of the third scheduled trial date (para. 36). [ 43 ] The Court imposed a sentence of two years, stating: [40] The mitigating factors are balanced by the aggravating factors I have reviewed. The authorities direct me to treat denunciation and deterrence as paramount considerations. Giving full weight to Mr. Robert's background and upbringing, the fact remains that this was a violent sexual assault on the victim in her home which has had a lasting impact on her. A 16- or 18-month sentence would fall too far below the sentences imposed in comparable cases.

It would offend the principle of parity. [ 44 ] In the decision R. v. H.C.T.T ., 2018 BCSC 2341 , the offender suffered from a disability caused by a number of health concerns including a heart condition, and neck and cervical spine conditions (para. 22). In addition, he was diabetic and had high blood pressure (para. 24). He also had intellectual deficiencies, falling into the 3 rd percentile (para. 33). [ 45 ] An assessing doctor gave the opinion that prison life for the offender would be more challenging given his health condition (para. 37).

The Court accepted that the consequences of imprisonment would be more serious for this offender given his health concerns and low cognitive status (para. 54). The Court agreed that the offender’s circumstances would result in harsher conditions for him while in custody compared to able-bodied, cognitively able persons (para. 89), and took this into consideration when sentencing. [ 46 ] In the decision in R. v. Kenyon , [2018] B.C.J. No. 2887 , the offender pled guilty to three separate sexual assaults. The Crown proceeded summarily. The offender was 28 years old with no record.

While in custody, he completed a number of programs and sought counselling. The offender was classified as being of average or moderate risk of future sexual recidivism (para. 21). [ 47 ] In considering the sentence, Judge Brown stated: [25] I am guided by the helpful decision of R. v. B.(B.S.) 2008 BCSC 1526 , wherein Mr. Justice Romilly discusses the range of sentence for sexual assault where sexual intercourse takes place. That range is between two to six years jail.

Important factors to consider include use of threats or violence, the frequency of the offences, any abuse of trust, the offender's disorders and prior convictions, the offender's behaviour after committing the offences, and the impact on the victims. [26] In the case at bar, it is important to remember that the Crown has now proceeded summarily so the maximum sentence is 18 months per count, notwithstanding any range as set out in the case law.

As well, because the Crown has proceeded summarily, there is the possibility of a conditional sentence order under s. 742.1, and defence counsel has referred to the decision of R. v. Han , 2017 BCSC 2166 where an 18-month conditional sentence order was made in a case of a non-consensual sexual intercourse. IS A CONDITIONAL SENTENCE APPROPRIATE? [27] Is a conditional sentence appropriate for any of these offences? I have concluded that a conditional sentence is not appropriate for any of these serious sexual assaults.

A conditional sentence is available here because the sentence of imprisonment will be less than two years per count, the counts were not prosecuted by indictment and there are no mandatory minimums. However, my concern lies with s. 742.1(a). I am not satisfied that the service of a sentence in the community would be consistent with the principles of sentencing as set out in s. 718 to 718.2 . To a lesser extent, I am also concerned about endangering the safety of the community. [28] Mr. Kenyon has committed three distinct sexual assaults on three different women between 2015 and 2017.

These sexual assaults involved non-consensual sexual intercourse. My reasoning is really no different than that of Mr. Justice Romilly in the B.(B.S.) case cited above where he concluded that a conditional sentence was not appropriate for an offender with no prior record but who had non-consensual sex with a female. [29] The principles of denunciation and deterrence are of prime importance and a conditional sentence would fail to reflect the seriousness of these offences. [ 48 ] In R. v. Ramzan , [2022] B.C.J. No. 241 , the offender pled guilty to two counts of sexual assault.

In both cases, he posed as a talent agent or photographer. The victims thought they were attending an audition. Mr. Ramzan argued that a conditional sentence was appropriate. One reason cited for this was that he faced deportation if the Court did not make a conditional sentence order. [ 49 ] The Court rejected this suggestion, stating: The Suitability of a CSO [113]

Section 742.1(

a) of the Code states that if the court imposes a sentence of imprisonment of less than two years, the court may order that the offender serve the sentence in the community if the court is satisfied that service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 . Those sections speak of denunciation, deterrence, rehabilitation and proportionality, amongst other things.

[114] Despite the finding in Proulx that there is no presumption that offenders convicted of violent offences are precluded from receiving CSOs, I am not satisfied that a conditional sentence would provide sufficient deterrence and denunciation for Mr. Ramzan’s offending behaviour. He used the internet to shop for naïve young women to manipulate and satisfy his sexual desires. His exploitation of V.N.’s financial circumstances is particularly vile. This kind of predatory and reprehensible conduct must be denounced and other like-minded individuals deterred by the imposition of a custodial sentence.

Defence Submissions [ 50 ] Mr. P. is agreeable to a two-year probation order with the terms as suggested by the Crown. [ 51 ] Mr. P. took no issue with the two different victim impact statements or the facts as set out by the Crown. [ 52 ] Mr. P. identifies similar aggravating and mitigating factors as cited by the Crown. [ 53 ] The aggravating factors included: 1. The sexual assault occurred in the home where the victim should have felt safe. 2. During the sexual assault, Mr. P. physically and verbally abused Ms. S. 3. Ms. S.’s two young children were in the home at the time. 4. Ms.

S. suffered physical and psychological harm that will be with her for the remainder of her life. [ 54 ] The mitigating factors were: 1. The early guilty plea. 2. Mr. P. was genuinely remorseful. 3. Mr. P. has support of family and friends. 4. Mr. P. is not at a moderate or high risk to re-offend. 5. Mr. P. must now bear the stigma of the conviction. 6. Mr. P. is young and is a good prospect for rehabilitation. 7. Mr. P. has no criminal record. [ 55 ] Mr. P. submits the appropriate sentence is a conditional sentence order of between 18 to 24 months, followed by a two-year probation order.

He argues the conditional sentence order can serve as a deterrence since a breach of the order can result in jail. [ 56 ] It was suggested during submissions that the pre-sentence report recommended a conditional sentence order of 12 to 18 months duration. In my review of the report, there was no such recommendation.

The report referred to the availability of the Forensic Sex Offender Program, and then went on to say: If the court is considering a community supervision order, a period twelve to eighteen months is required to allow sufficient time to complete the program. [ 57 ] I turn to review the case law cited by counsel for Mr. P.. [ 58 ] In the case R. v. Hans , 2016 BCPC 222 , the offender sexually assaulted the sleeping victim. The offender had no memory of the act because he had blacked out from alcohol consumption.

A risk assessment classified the offender as being at low risk to re-offend so long as he remained sober. The assessment report said the offender had a number of protective factors in his life that reduced the risk of sexual violence and served as an incentive for him to remain sober. The Court also took note of Gladue considerations and the intergenerational transmission of trauma. Since the assault, the offender undertook “intensive therapeutic counselling” and maintained his sobriety (para. 33).

The Court went on to say: [79] This type of offence requires a very significant amount of denunciation and an equal amount of specific and general deterrence. However, the Offender has demonstrated through his post-offending actions that he understands the need to accept responsibility for his offending behaviour, and very importantly, to achieve rehabilitation through his own concerted efforts, which continues on an ongoing basis. He does accept the necessary responsibility.

He has on his own volition and with both professional support and guidance and with the help of friends and family, proceeded well down the rehabilitation path. That is, and will be, an ongoing journey for him. I have no doubt about the genuine remorse of the Offender for his behaviour and for his insight about the negative impact of that behaviour on the Victim. [80] Based on the evidence and submissions before me, I accept that the Offender is at a very low risk to reoffend and that he will continue to take the necessary steps to maintain his sobriety. Alcohol consumption puts him at a risk to reoffend.

The Offender realizes that risk and that danger. He is also significantly motivated to avoid lapsing from his commitment to sobriety because of the positive and important role he seeks to perform in the lives of his children. That role has been significantly disrupted by his offending behaviour. [81] The Offender's high level of compliance, while on court conditions for 19 months, is very encouraging, and suggests that he is an excellent candidate for a community disposition.

[82] I have considered the appropriateness of a conditional sentence order in this case. It is one of the sanctions, other than imprisonment, that is available and is reasonable in the circumstances and with particular attention to the circumstances of the Aboriginal Offender before me. [83] I am satisfied that a conditional sentence order in this case can and will address the necessary punitive and rehabilitative sentencing objectives that are required in these circumstances. I am also satisfied that in this case, the necessary level of denunciation can be achieved by a conditional sentence order.

I have concluded that with appropriate conditions, the safety of the community will not be endangered if the Offender is permitted to serve his sentence in the community. [ 59 ] The decision R. v. B.A.B. , 2019 BCPC 172 , said the sentence range for sexual assault where the Crown proceeds summarily is 9 to 18 months (para. 10). [ 60 ] Three other cases were cited as examples where sentences of 12 months were imposed despite the presence of aggravating factors existed. [ 61 ] In R. v. Dhaliwal , 2020 BCPC 215 , the victim was vulnerable and young at 16 years of age. [ 62 ] In R. v.

Stewart , 2021 BCPC 303 , the offender was a prospective employer of the victim and sexually assaulted her during the course of an interview. [ 63 ] In R. v. Adubofour-Poku , 2017 BCPC 192 , the offender had a criminal record and was on probation at the time of the sexual assault.

The Purpose, Objectives and Principles of Sentencing [ 64 ] I have reviewed and considered the provisions of s. 718 , 718.1 and 718.2 of the Criminal Code . [ 65 ] I have noted the objectives in sentencing, which include denouncing unlawful conduct, deterrence, assisting in rehabilitation and promoting a sense of responsibility in offenders. [ 66 ] I have taken into consideration that a sentence imposed must be proportionate to the gravity of the offence and the degree of offender responsibility. [ 67 ] I have also considered the aggravating and mitigating factors listed at s. 718.2, and that a sentence should be similar to sentences imposed on similar offenders for similar offences occurring in similar circumstances.

Sentence [ 68 ] Sentencing is an individualized process. Among other things, the Court must consider factors specific to the individual offender, the circumstances of the offence, the relationship between the offender and the victim, and the characteristics of the victim including the effect of the offence on the victim. [ 69 ] I accept the statement in R. v. B.A.B. , 2019 BCPC 172 , that where the Crown pursues summarily a charge of sexual assault, the sentence range is typically between 9 to 18 months. [ 70 ] A conditional sentence order is only available if the sentence to be imposed is less than two years.

Since the maximum sentence here is 18 months, a conditional sentence order is an option available to me. [ 71 ] The decision R. v. Proulx , 2000 SCC 5 , tells me that I must consider whether a conditional sentence can keep the community safe and be consistent with the sentencing objectives and principles set out in the Criminal Code . [ 72 ] R. v.

Proulx , at para. 63 tells me that as a prerequisite to any conditional sentence, I must be satisfied that a sentence in the community would not endanger the public safety. [ 73 ] At para. 69, the Court stated: 69 In my opinion, to assess the danger to the community posed by the offender while serving his or her sentence in the community, two factors must be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence. If the judge finds that there is a real risk of re-offence, incarceration should be imposed.

Of course, there is always some risk that an offender may re-offend. If the judge thinks this risk is minimal, the gravity of the damage that could follow were the offender to re-offend should also be taken into consideration. In certain cases, the minimal risk of re-offending will be offset by the possibility of a great prejudice, thereby precluding a conditional sentence. [ 74 ] The report of Dr. Saini says Mr. P. presents an average risk to re-offend on a scale “that also includes ‘very low risk’, ‘below average risk’, ‘above average risk’ and ‘well above average risk’.

This differs then from the offender in R. v. Hans whom the Court described as being a very low risk to re-offend (para. 80). [ 75 ] In arriving at this assessment, Dr. Saini stated at para. 42 of his report: In my medical opinion, the most likely scenario for future sexual violence by Mr.

P. follows the similar trajectory to the index offence and involves him being engaged in an intimate relationship with a woman that he considers to be monogamous, perceiving his partner as being unfaithful in their relationship, being unable to reconcile his emotions and resolve the conflict that the perceived infidelity causes, and employing sexual violence as an outlet to demonstrate his anger at the victim and his physical power and control over her. Imbalance within the relationship, as was evident in Mr.

P.’s reliance on the victim of the index offence for residence, would increase the likelihood of this specific risk scenario. Another relevant risk scenario would follow a similar course of events, but involve a more casual

relationship. [ 76 ] I turn now to consider the factors cited by Mr. Justice Marchand, then of the BC Supreme Court, in R. v. Tayo Tompouba , at para. 53 in support of a community-based sentence:

a) A modest impact on the complainant . Based on the second victim impact statement, and as conceded by Mr. P., the sexual assault had a significant impact on Ms. S.

b) An offender with a reduced level of moral blameworthiness . This factor is not applicable here. In R. v. Tayo Tompouba , this was a relevant consideration due to the significant Gladue factors.

c) An offender with no criminal record who acted out of character and posed a low risk to re-offend. Mr. P. has no record and I accept he acted out of character. However, he is described as an average risk to re-offend.

d) A significant impact on the offender's family if the offender were to be incarcerated. There is no evidence of this. In the Tayo Tompouba case, the offender was relied upon for support by his children and the children’s mother.

e) The permanent resident status of the offender. This is not an applicable factor.

f) The absence of a need to specifically deter the offender. Denunciation and deterrence are the primary considerations in sexual assault cases. Although Mr. P. regrets his actions, there remains a need for deterrence given the violent nature of the assault and the risk of re-offending. [ 77 ] In my view, the aggravating factors present in this case outweigh the mitigating factors. The need for deterrence and denunciation remain at the forefront.

As such, I find that a conditional sentence order is not appropriate. [ 78 ] The manner that the sexual assault was carried out, the injuries suffered and the effect of the assault upon Ms. S. suggests that the sentence should be at the higher end of the range. However, Mr. P.’s physical disabilities mean incarceration will be more difficult upon him. Weighing these conflicting considerations.

I am satisfied the appropriate sentence is 12 months. [ 79 ] This will be followed with a term of probation for two years. [ 80 ] I will cite the reference numbers from the Criminal Sentencing Picklist when I set out the probation terms: 1) (Picklist 2001) The compulsory probation conditions are as follows:

a) You must keep the peace and be of good behaviour

b) You must appear before the court when required to do so by the court

c) 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 officer of any change of employment or occupation 2) (Picklist 2104) You must report in person to a probation officer at 2610 Mary Hill Road, Port Coquitlam, B.C. within two business days after your release from custody unless you have obtained, before your release from custody, written permission from the probation officer to report elsewhere or within a different time frame.

After that, you must report as directed by your officer. 3) (Picklist 2202) When first reporting to your probation officer, you must provide them with the address where you live and your phone number. You must not change your address or phone number without notifying your officer in writing at least 3 days in advance of any change. 4) (Picklist 2002) You must have no contact or communication, directly or indirectly, with R.S. or her children. 5) (Picklist 2005) You must not go to any place where R.S. or her children lives, works, attends school or happens to be.

If you see them, you must leave their presence immediately without any words or gesture. 6) (Picklist 2501) You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer. [ 81 ] There is a victim fine surcharge associated with this conviction. Because Mr. P. is in receipt of a disability pension, I am satisfied a requirement to pay the surcharge would cause an undue hardship and I will not require the payment of the surcharge. [ 82 ] Sexual assault is a “primary designated offence” under the Criminal Code .

As such, I must make certain ancillary orders as follows: 1) Count 1 on Information 106391-1-K is a primary designated offence. Pursuant to

section 487.051(1) of the Criminal Code , I authorize the taking of samples of bodily substances from Mr. P.

2) The samples will be taken from Mr. P. while he is in custody and Mr. P. must submit to the taking of the samples. 3) Pursuant to

section 109 of the Criminal Code , Mr. P. is prohibited from possessing:

a) any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance for a period of 10 years following his release from prison, and

b) any prohibited firearm or restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. 4) Pursuant to

section 490.012 of the Criminal Code , Mr. P. is required to comply with the Sex Offender Information Registration Act for 10 years. _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia