R. v. Lindstrom Date:, 2012 BCPC 354

Citation: R. v. Lindstrom Date: 20121002 2012 BCPC 0354 File No: 33124-3-C Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Ban on publication pursuant to s.486.4(1) and s.517(1) CCC REGINA v. RODNEY GENE LINDSTROM REASONS FOR SENTENCE OF THE HONOURABLE ASSOCIATE CHIEF JUDGE M. J. BRECKNELL Counsel for the Crown: S. Mengering Counsel for the Defendant: J. Duncan Place of Hearing: Prince George , B.C. Date of Hearing: November 3, 4, 2011 and May 2 and July 18, 2012 Date of Judgment: October 2, 2012

INTRODUCTION [ 1 ] On November 4, 2011, after day one of a two-day trial, Rodney Gene Lindstrom, the Defendant, pleaded guilty to the following offences on Information number 33124 – C3 all of which occurred on August 28, 2010:

a) Count 1 - sexual assault of W.B. contrary to

Section 271 of the Criminal Code of Canada (the Code );

b) Count 2 - the lesser included offence of being unlawfully in the dwelling house of W.B. contrary to

Section 349 of the Code ;

c) Count 6 - the lesser included offence of being unlawfully in the dwelling house of M.K. contrary

Section 349 of the Code . [ 2 ] A Pre-Sentence Report with a psychological and psychiatric component was ordered and the Defendant returned to Court on May 2 and July18, 2012 for sentencing submissions. [ 3 ] The Crown’s position on sentence is that the Defendant should serve concurrent four year penitentiary terms for each of the offences, be subject to mandatory DNA Order, a mandatory

Section 109 firearms prohibition and an Order pursuant to the Sex Offender Information Registration Act ( SOIRA ) and Sections 490.011 and 490.013 of the Code for 20 years. [ 4 ] Defence counsel's position on sentence is that the Defendant should serve concurrent Conditional Sentence Orders, possibly with electronic monitoring, of two years less one day followed by a three year probation order for being unlawfully in the dwelling houses and a suspended sentence and a three year probation order for the sexual assault with a SOIRA Order for 10 years. Defence counsel does not dispute the necessity of a DNA Order or a

Section 109 firearms prohibition. [ 5 ] Both counsel agree that a Conditional Sentence Order is not available for the sexual assault conviction due to the amendments made to

Section 742.1 of the Code proclaimed on November 30, 2007 which prohibits a Conditional Sentence Order for "serious personal injury offences" which includes sexual assault. EVIDENCE AT SENTENCING The Offences [ 6 ] At the time of the offences, the Defendant was living with his family in Red Rock, a small rural hamlet south of Prince George. The homes of both Complainants were a short distance from the Defendant's home. [ 7 ] The Defendant and his wife were friendly towards and socialized with both Complainants and their spouses.

That socializing regularly involved the consumption of alcohol, often to excess, and occasionally the use of recreational drugs. [ 8 ] The Defendant was described as a "toolbox buddy" of W.B.'s spouse B.B. The Defendant, his wife, W.B. and B.B. had known each other for approximately four years. Their children go to the same school. Their homes were approximately ½ kilometre apart. [ 9 ] At the time B.B. was working out of town regularly and had enlisted various neighbours to assist W.B. if she needed help while he was away.

The Defendant knew B.B. was away working the night of the offences. [ 10 ] M.K. had recently separated from her spouse of 20 years. Approximately a week before the offences she had been socializing with the Defendant, his wife and his brother and had become quite flirtatious with the Defendant's brother. The next day, the Defendant walked into M.K.'s home and without invitation kissed her. M.K. told him to leave and he did. [ 11 ] On August 27, 2010, the Defendant, his wife and M.K. went to various pubs in Prince George to socialize and drink.

At some point during the evening, the Defendant showed some unwanted attention to a female server which displeased his wife. At another point in evening he says he consumed illegal drugs in the parking lot of a pub with an unknown male. Everyone returned to Red Rock in the early morning hours of August 28, 2010. [ 12 ] The exact timing of the Defendant’s subsequent actions in the early morning hours of August 28, 2010 is not certain.

Either before or after the events at W.B.'s home, the Defendant entered M.K.’s home through an unlocked door, went into her bedroom and tried to pull the bedclothes off her as she slept. M.K. awoke, yelled at the Defendant and retreated to the bathroom. The Defendant left the home soon after. M.K. did not report the events to anyone immediately.

Around September 8, 2010, after hearing what had occurred at W.B.'s home, M.K. reported the events that occurred in her home to the Royal Canadian Mounted Police (RCMP). [ 13 ] Defence counsel maintains that at a later time M.K. indicated that she wished the charges against the Defendant involving her dropped on the basis that she may have “led on" the Defendant. [ 14 ] On the night of August 27, 2010, W.B. had gone to bed, with her baby nearby, at about 2300. She was recovering from the baby’s birth six weeks earlier by caesarean section. She had not consumed any alcohol or drugs that evening.

She was naked and sleeping on top of the covers because it was a warm summer night. [ 15 ] At about 0230 on August 28 the Defendant entered W.B.'s home through an unlocked door. He was highly intoxicated from his earlier drinking and drug taking. The Defendant claimed, in later statements, that he was looking for more alcohol and saw lights on in W.B.’s home which he took as an invitation to enter. [ 16 ] The Defendant went upstairs to W.B.'s bedroom, saw her sleeping naked on the bed and, while still clothed, limbed into bed beside her. He began kissing and fondling W.B. and inserted his fingers into her vagina.

W.B. awoke and told the Defendant to leave.

The Defendant replied "I thought we were partying". He did not immediately depart but did so after a few minutes saying to W.B. “don’t tell” on his way out. [ 17 ] W.B. called B.B. shortly after and reported the events to him. B.B. called a neighbour to go to the home to protect W.B. and then left his job location and drove back to Red Rock. [ 18 ] B.B. tried calling the Defendant several times and eventually the Defendant called him back. B.B. described the Defendant as upset and distraught.

When B.B. asked the Defendant why he was in W.B.'s home the Defendant said words to the effect that he wanted what B.B. had and while intoxicated went there to take “it”. The Defendant never described what “it” was. Later, the Defendant left a voice message on B.B.s phone saying he was sorry. [ 19 ] The Defendant also called W.B.'s neighbour that night telling that neighbour that he had done the "worst fuck up of my life". [ 20 ] The Defendant was arrested later that morning. He provided a warned statement to the RCMP in which he said the following:

a) he drank a lot but did not eat the day before the offences;

b) that he often blacks out when drinking and does stupid stuff;

c) he went to W.B.'s house to get alcohol;

d) he knew B.B. was out of town and had had sexual thoughts about W.B. before;

e) when he saw W.B. in bed naked and asleep he got turned on and kissed and fondled her. Defendant’s Personal Background [ 21 ] Much of the information about the Defendant's personal background is set out in the Pre-Sentence Report. [ 22 ] The Defendant is 34 years old. He was born and raised in Prince George as one of three siblings.

The Defendant described a generally good childhood. [ 23 ] As a child the Defendant was sexually abused by a neighbour, which he describes as having a “complex troublesome impact" on him but that it is not something that bothers him. [ 24 ] The Defendant left school in Grade 10 and has had relatively steady employment since then in the forest industry in a variety of capacities. Most recently he has been employed as a processor operator. His employment has traditionally been seasonal and he earns a good income while working.

His employment attitude became problematic for a time after the offences and he took time away from his job. He has full-time seasonal employment at this time and is described by his employer as an excellent worker. [ 25 ] The Defendant reports a number of sexual partners through his life including being unfaithful to his wife during their relationship, something of which he advised her. [ 26 ] The Defendant has resided with his wife since 1995 and they have been married for nine years. They are parents to four children aged 19, 14, 11 and nine.

They have lived in Red Rock since 2006. [ 27 ] The offences have caused considerable disruption to the Defendant's family life because he has been prohibited from residing in the family home. This has strained his spousal relationship and confused his younger children who do not understand why he cannot reside with the rest of the family [ 28 ] Since the Defendant has been required to live away from Red Rock he has resided at his parent’s home. His father passed away in October 2011.

His mother describes a positive relationship with the Defendant. [ 29 ] The Defendant reports re-establishing his religious beliefs and practices since the offences and has the support of his Pastor in dealing with matters.

The Defendant contends his re-established faith has decreased his sexual arousal and evil temptations. [ 30 ] The Defendant's wife reports that since these events her relationship with him has grown closer and that their relationship is being repaired and being kept together. [ 31 ] Throughout his teen and adult years the Defendant was a hard-working, hard partying person consuming and abusing mostly alcohol, but occasionally marijuana and cocaine as well.

This heavy use of alcohol was confirmed by his wife. [ 32 ] The Defendant contends that he has abstained from alcohol and drugs since the offences and he briefly attended Alcoholics Anonymous meetings. He describes his ability to stop drinking as “effortless”. [ 33 ] The Defendant has no criminal record. Since the offences, the Defendant has been compliant with his bail conditions. Pre-Sentence Report and Psychiatric Assessment [ 34 ] A Pre-Sentence Report dated March 12, 2012, was authored by Probation Officer Tracey Harvey. Ms.

Harvey interviewed the Defendant, several members of his family, his bail supervisor, and the victims of the offences and reviewed various documents related to this proceeding and several letters of support for the Defendant.

[ 35 ] The Pre-Sentence Report outlined the Defendant's background and history, education, employment and finances, behaviour and emotional states, substance misuse, victim information, court history and proposed interventions. [ 36 ] Under the heading Victim’s Perspective, M.K. described her experience of the offence against her as making her more cautious and has deterred her from further association with people abusing alcohol. She expressed disappointment with the Defendant and the loss of her friendship with the Defendant's wife.

She describes the Defendant as a good person. [ 37 ] W.B. described herself as "sickened” by the Defendant's actions which have "ruined her home life" and caused her family financial hardship because her husband missed work to ensure her safety. She expressed concern for her continuing safety because she lives in close proximity to the Defendant and worries that she may come into contact with him either in the community or at the school where both their children attend.

She expressed frustration at how long the matter had taken and hopes the Defendant will be sentenced to a term in jail. [ 38 ] A Psychiatric Assessment dated February 16, 2012, was authored by Dr. David Morgan, a Psychiatrist with the Forensic Psychiatric Services Commission. [ 39 ] Dr. Morgan interviewed the Defendant, reviewed various statements and documents related to the offences, and performed a risk assessment using the Structured Risk Assessment Professional Judgment Tool SVR - 20. [ 40 ] In Dr.

Morgan's opinion, the Defendant does not suffer from a severe or enduring mental illness or a personality disorder. He does meet the DSM IV –TR diagnostic criteria for alcohol dependency, in early sustained remission, and cocaine abuse. [ 41 ] In reporting on the SVR – 20 Assessment, Dr. Morgan estimated the Defendant's current risk of future sexual recidivism as low but noted that it would increase commensurately if the Defendant was to return to drinking and using drugs. [ 42 ] Dr.

Morgan also indicated that the Defendant would benefit from court ordered drug and alcohol counselling and attendance at the Sex Offender Treatment Program. [ 43 ] In the interviews with Ms. Harvey and Dr. Morgan, the Defendant maintained that he had, in the past, been involved in very flirtatious situations with both W.B. and M.K. and on the night of the offences he believed they would have been receptive to his sexual advances. [ 44 ] The Defendant expressed shock, surprise and confusion that neither W.B. or M.K. were receptive to his advances alluding to Ms.

Harvey that his actions were probably due to his high level of intoxication and that there was more to the situation than the Court has been made aware of. [ 45 ] He did acknowledge that there were serious detrimental consequences for W.B. but also stated that he believed the events had little, if any, similar effects on M.K. Defendant’s Statement [ 46 ] When given the opportunity, the Defendant made a statement to the Court which can be summarized as follows:

a) he is grieved over his actions;

b) he would like to apologize to the victims if he could talk to them;

c) he doesn't wish this on any family;

d) in the past he had massive drug and alcohol abuse but has no such use now because he changed his social group;

e) he goes to church now and is trying to rebuild his family;

f) he hopes he can be forgiven. THE LAW Criminal Code [ 47 ]

Section 271 of the Code states in part: 271.

(1) Every one who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; [ 48 ]

Section 349 of the Code states in part: 349.

(1) Every person who, without lawful excuse, the proof of which lies on that person, enters or is in a dwelling-house with intent to commit an indictable offence in it is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years . . .

[49]

Section 718 of the Code states: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance 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; (

b) to deter the offender and other persons 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 and to the community. [50]

Section 718.1 of the Code states: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [51]

Section 718.2 of the Code states in part: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to theoffence or the offender, .... (

b) a sentence should be similar to sentences imposed on similar offenders for a similar offences committed in similar circumstances; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders,with particular attention to the circumstances of aboriginal offenders. Case Law [52] The cases relied on by the Crown and a brief description of the facts and the outcome of those cases include:

a) R. v. Dunn 2011 NBCA 19 - The accused, while highly intoxicated, attacked and caused extensive bodily harm to another partygoer. The trial judge imposed a suspended sentence and a probation order of 15 months determining it would sufficiently addresseddenunciation and deterrence. On appeal a sentence of three months imprisonment in a provincial prison followed by a 15 monthprobation order was imposed. The Court of Appeal commented that a suspended sentence was primarily rehabilitative and given theaccused’s moral blameworthiness a custodial sentence was necessary to address the primary sentencing considerations of denunciationand deterrence.

b) R. v. Parsons 2010 BCCA 377 - The accused went to a former girlfriend's home knowing her to be alone, broke down the door andsexually assaulted her in a particularly humiliating way. The accused was not intoxicated at the time and did not stop the attack until thepolice arrived. The accused had medical issues and family support. He was convicted after a trial in which he denied the sexual assault. A sentence of five years in a federal penitentiary was upheld on appeal.

c) R. v. Iron 2005 SKCA 84 – The accused, while highly intoxicated, sexually assaulted a guest in his home while she was asleep. Sheawoke and asked him to stop but he did not. The accused was married and raising five children and he had steady employment. He hada long history of alcohol abuse and a criminal record for assaults and impaired driving. At trial a conditional sentence order of two yearsless one day followed by a two year probation order was imposed. On appeal a sentence of 20 months in a provincial prison wassubstituted.

d) R. v. Engerdahl [1993] B.C.J. No. 1921 (BCCA) - The accused broke into a stranger’s home and sexually assaulted her while shewas sleeping. The accused had a brief unrelated criminal history. A sentence of three years in a federal penitentiary was upheld onappeal.

e) R. v. Richardson (ON CA), [1992] O.J. No. 1498 (OCA) – The accused was involved in a brief relationship withthe complainant during which he allegedly sexually assaulted her on two occasions within a couple of weeks. At trial he was convictedof both assaults and sentenced to concurrent sentences of five and three years in a federal penitentiary. On appeal the first convictionwas sent back for retrial and on the second conviction a sentence of two years in a federal penitentiary was substituted.

f) R. v. Morrison [1989] B.C.J. No. 821 (BCCA) - The accused, while intoxicated, entered a friend's residence and sexually assaulted

an acquaintance, who was asleep. The accused had no criminal record. A sentence of three years in a federal penitentiary was upheld on appeal.

g) R. v. Hollingworth [1984] B.C.J. No. 1071 (BCCA) - The accused, while intoxicated, entered a stranger’s residence and raped her. The accused had no criminal record and had family support. There was a positive pre-sentence report. The trial judge imposed a sentence of two years less one day in a provincial prison and a $7,500.00 fine. On appeal the fine was deleted and a sentence of four years in a federal penitentiary was imposed. [ 53 ] The cases relied on by Defence counsel and a brief description of the facts and the outcome of those cases include:

a) R. v. Nasogaluak 2010 SCC 6 - The accused’s Charter rights were grossly violated by arresting officers and his sentence was reduced pursuant to section 24 (1) of the Charter. The Supreme Court of Canada noted that the principle of proportionality is central to the sentencing process; that the sentence must speak out against the offence but not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence.

The determination of a sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that is tailored to the nature of the offence and the circumstances of the offender. No one sentencing objective trumps the others and the relative importance of mitigating or aggravating factors will move the sentence up or down the scale of appropriate sentences for similar offences.

The judge’s discretion in crafting a sentence is limited by the case law which sets down the general range of sentence and by statute including the general sentencing principles and objectives enshrined in the Criminal Code . Sentencing judges may order a sentence outside the general range set by the case law as long as it is in accordance with the principles and objectives of sentencing and cannot override a clear statement of legislative intent.

b) R. v. Aftergood , unreported, January 26, 2012, Victoria Registry No. 145042 (BCSC) - The accused, while highly intoxicated, entered the complaint’s dormitory room after a party they had both attended and sexually assaulted her while she slept. When she awoke and confronted him, he desisted. The trauma of the assault reignited previous psychological issues in the complainant. The accused had no criminal record and was well-regarded by family, friends and community members. The accused accepted responsibility after a trial and expressed remorse.

The accused was on bail for over three years without incident including abstaining from alcohol and drugs. There was a positive pre-sentence report. The accused received a suspended sentence and a probation order for three years.

c) R. v. Alasti 2011 BCSC 824 - The accused sexually assaulted two of his massage patients. The accused was an immigrant with no criminal record. He was not remorseful. The court stated that a conditional sentence order as not appropriate in the circumstances. A sentence of 18 months in a provincial prison and a two year probation order was upheld on appeal.

d) R. v. Larochelle 2011 ONCJ 339 - The accused sexually assaulted a friend. The accused had a short criminal record. He had no remorse. He was sentenced to 14 months in a provincial prison.

e) R. v. B.S.B. 2010 BCCA 40 and 2008 BCSC 1526 - The accused sexually assaulted a drugged acquaintance. The assault profoundly affected the complainant. The accused showed no remorse. The accused was not a good Conditional Sentence Order candidate. A sentence of two years less a day in a provincial prison and a three year probation order was upheld on appeal.

f) R. v. Reyes-Borgwardt 2010 BCSC 1594 - The accused sexually assaulted another partygoer who was passed out. The assaults were minimally intrusive. The accused received no gratification from the events. The accused was an immigrant. The assault was a practical joke gone wrong. A conditional discharge with an 18 month probation order was imposed.

g) R. v. D.E.M. 2009 BCPC 83 - The accused sexually assaulted his teenage daughter. He had no criminal record. He had been on bail for three years without difficulty. He had family support. A six month conditional sentence order was imposed. SUBMISSIONS Crown [ 54 ] The Crown's position that the Defendant should serve a four year penitentiary sentence and be subject to other ancillary orders is based on the cases the Crown tendered and their submissions which can be summarized as follows:

a) the Defendant unlawfully entered the homes of two different women in the dead of night knowing that they would be alone;

b) the Defendant kissed and fondled W.B. while she slept and was clearly not in a position to consent to his advances;

c) the Defendant delayed leaving W.B.'s residence when told to and he told her "don't tell";

d) the Defendant acknowledged to B.B. that he wanted what B.B. had (W.B.) and he took it;

e) the Defendant did not acknowledge responsibility early on, forcing W.B. and B.B. to give evidence in the trial before changing his plea to guilty;

f) the Defendant's actions have had serious personal consequences for W.B. and to a lesser amount M.K.;

g) sexual assault and being unlawfully in a dwelling house are general intent offences and as such the Defendant's intoxication does not provide a defence;

h) the sentence for a sexual assault should address the level of personal interference and the harm done, not in the manner or methods

used in the assault;

i) protection of the public and general deterrence are the primary principles of sentencing that should be applied in this case;

j) the Court must impose a jail sentence on the Defendant for the sexual assault. A suspended sentence and probation is not appropriate given the circumstances of the offences. [ 55 ] The Crown acknowledged the following additional factors:

a) based on Dr. Morgan's assessment, the Defendant is a low risk to reoffend sexually if he maintains sobriety;

b) since his return to work in 2011, the Defendant has been a good employee;

c) the Defendant has performed well on bail. Defence [ 56 ] Defence counsel’s position that the Defendant should serve a combination of a Conditional Sentence Order and Probation Order and be subject to other ancillary orders was based on the cases he supplied and his submissions which can be summarized as follows:

a) the range of sentencing for sexual assault is generally between two and six years and although the Court could consider federal penitentiary time for the offences, lesser sentences have been granted in certain circumstances;

b) many of the cases relied on by the Crown are the more serious sexual assault (rape) cases; not the type of assault in this case;

c) the Court has a duty in all sentencings to craft the penalty imposed by taking into account the circumstances of the offences but also the circumstances of the Defendant in order to ensure the punishment fits all aspects of the crime;

d) the Court must find a way to deal with a good person who has committed serious crimes by applying flexibility in the sentencing process as was considered in several of the cases presented by the Defence;

e) while highly intoxicated, the Defendant made some terrible decisions which have harmed both the victims and his family. His actions were not predatory but opportunistic;

f) the Defendant's actions adversely affected him immediately including interfering with his employment. However, he has performed well on bail, rebounded to become an excellent worker for his employer, attends church regularly and has abstained from alcohol;

g) the Pre-Sentence Report is generally positive in content. The Psychiatric and Psychological Assessment indicates that the Defendant is a low risk to reoffend sexually;

h) justice is more than simply jail. DISCUSSION [ 57 ] It is first important to acknowledge and agree with W.B.'s concerns that this matter has taken an inordinate amount of time to be resolved.

The delay has been of little assistance to her, the Defendant, or to the greater community. [ 58 ] The facts in this case are less serious than those set out in Parsons , Iron and BSB, both from the perspective of the events and from the perspective of the Defendant’s personal and criminal history when compared with those cases. [ 59 ] The facts in this case are somewhat more similar to the situations in Engerdahl, Morrison, Hollingworth, Aftergood and Larochelle.

That having been said, each of those cases has somewhat different circumstances from this case because every case is unique. [ 60 ] In arriving at a just and appropriate sentence in this, or any other case, the Court must consider the circumstances of the offences, the circumstances of the offender, aggravating and mitigating factors, and the applicable law. [ 61 ] There are a large range of sentences available to the Court in this matter but the options are more circumscribed with regard to the sexual assault conviction as compared to the being unlawfully the dwelling house convictions. [ 62 ] The sentencing ranges in this matter could include:

a) incarceration in a federal penitentiary for more than two years with subsequent parole but no probation order availability;

b) incarceration in a federal penitentiary for exactly 2 years which would allow for a subsequent probation order of up to three years;

c) incarceration in a provincial prison for less than two years which could be followed by a probation order of up to three years;

d) a conditional sentence order for less than two years to be followed by a probation order of up to three years (this option is not available for the sexual assault conviction);

e) a suspended sentence with a probation order of up to three years;

f) a conditional or absolute discharge (this option was not sought by either counsel). [ 63 ] When a Conditional Sentence Order was available for a sexual assault conviction, it had to be considered in every case in which the Crown was seeking a sentence of less than two years or where a sentence of less than two years was worthy of consideration. However, even when it was available, it was not regularly granted.

The case law submitted by both the Crown and Defence counsel supports that view. [ 64 ] Parliament's decision to remove sexual assault offences from the Conditional Sentence Order regime removed a possible sentencing option from the Court’s consideration making the outcome either more serious (prison) or less serious (a suspended sentence and a probation order) for the Defendant. [ 65 ] What must be remembered, however, is that a Conditional Sentence Order is a prison sentence, but one served in the community.

Therefore, cases where no prison sentences were imposed are clearly anomalies based on the specific facts and circumstances of those cases (see Aftergood , Reyes-Borgwardt ). [ 66 ] The following are aggravating factors in this case:

a) the Defendant was unlawfully in the bedrooms of the homes of two different women late at night knowing they were alone;

b) the Defendant attempted to pull the bedclothes off one of the women and only left her residence when she awoke, demanded that he leave and she retreated to the relative safety of her bathroom;

c) the Defendant climbed into bed with and sexually assaulted the other woman while she was asleep and when she awoke and demanded that he leave, he delayed his departure and when he did depart he told her not to tell anyone;

d) the Defendant acknowledged to that woman’s spouse and to the RCMP that he entertained sexual thoughts about the woman;

e) the Defendant did not accept responsibility for his offenses until after one of the victims and her spouse were forced to give evidence at trial;

f) the Defendant’s actions have had serious adverse consequences for one of the victims;

g) the Defendant was well aware that his drinking and drug taking often result in blackouts, but he persisted in that behaviour regardless. He did not however, contend that he was in that condition during the offences; [ 67 ] The following are mitigating factors in this case:

a) the Defendant has performed well on bail for over two years;

b) the Defendant now attends church regularly and reportedly has abstained from alcohol;

c) based on the psychiatric assessment, the Defendant is a low risk to reoffend sexually if he maintains sobriety;

d) the Defendant has maintained employment and is noted as a good employee;

e) prior to these events the Defendant had no criminal record. [ 68 ] Despite Defence counsel's submissions to the contrary the Defendant's actions in this case were far more predatory than they were opportunistic.

Several of the aggravating factors set out above substantiate this conclusion. [ 69 ] When those factors are combined with the Defendant's statements to the RCMP, the probation officer and the psychiatrist, it becomes clear that at the time the offences were committed the Defendant, despite his level of intoxication, had every intention of acting in a sexual manner towards both women, and particularly W.B., because of an ill-conceived belief that he could act in that fashion without ensuring his advances were both welcomed and consented to. [ 70 ] In addition, the Defendant's assertions that he entered the homes of both women because he was looking for alcohol and the presence of lights in each of the homes was an invitation to enter stretches credulity and further leads to the conclusion that his intentions were far from benign. [ 71 ] In considering the purpose and principles of sentencing set out in

Section 718 and the gravity of the harm done and the degree of responsibility of the offender set out in

Section 718.1of the Code , the Court is directed by Parliament to consider a number of factors. The sentencing principles of denunciation, deterrence and protection of the public are often described as primary considerations in sexual assault cases. [ 72 ] One additional factor that is not specifically enumerated in the Code but is often considered in sex assault cases is retribution, which brings into focus the moral culpability or blameworthiness of the offender.

[73] This was discussed in some detail by Lamer C.J.C. in R. v. M.(C.A.) (SCC), [1996] 1 S.C.R. 500 where hesaid in paragraphs 79 through 81: 79. Retribution, an objective of sentencing, represents nothing less than the hallowed principle that criminal punishment, in addition toadvancing utilitarian considerations related to deterrence and rehabilitation, should also be imposed to sanction the moral culpability ofthe offender.

In my view, retribution is intricately woven into the existing principles of sentencing in Canadian law through thefundamental requirement that a sentence imposed be "just and appropriate" under the circumstances. In deed, it is my profound beliefthat retribution represents an important unifying principle of our penal law by offering an essential conceptual link between theattribution of criminal liability and the imposition of criminal sanctions.

With regard to the attribution of criminal liability, I haverepeatedly held that it is a principle of "fundamental justice" under s. 7 of the Charter that criminal liability may only be imposed if theaccused possesses a "culpable mental state" in respect of the ingredients of the alleged offence.... It is this mental state which gives riseto the "moral blameworthiness" which justifies the state imposing the stigma and punishment associated with the criminal sentence....

Isubmit that it is this same element of "moral blameworthiness" which animates the determination of the appropriate quantum ofpunishment for a convicted offender as a "just sanction". 80. However, the meaning of retribution is deserving of some clarification. The legitimacy of retribution as a principle of sentencing hasoften questioned as a result of its unfortunate association with "vengeance" in common parlance..... But it should be clear from myforegoing discussion that retribution bears little relation to vengeance, and I attribute much of the criticism of retribution as a principal tothis conclusion.

As both academic and judicial commentators have noted, vengeance has no role to play in a civilized system ofsentencing. Vengeance, as I understand it, represents an uncalibrated act of harm upon another, frequently motivated by emotion andanger as a reprisal for harm inflicted upon oneself by that person.

Retribution in a criminal context, by contrast, represents an objective,reasonable and measured determination of appropriate punishment which properly reflects the moral culpability of the offender, havingregard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of theoffender's conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires imposition of ajust and appropriate punishment and nothing more. 81.

Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that ajudicial sentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that asentence should also communicate society’s condemnation of that particular offenders conduct. In short, sentence with a denunciatoryelement represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society's basiccode of values as enshrined within our substantive criminal law.....

The relevance of both retribution and denunciation as goals ofsentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectivelyharmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a systemof values. A sentence which expresses denunciation is simply the means by which these values are communicated.

In short, in additionto attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positivelyinstills the basic set of communal values shared by all Canadians as expressed by the Criminal Code. [74] In considering the facts of this case it is clear that the Defendant had erroneously concluded, based on his stated pastinteractions with W.B. and M.K., and his high level of intoxication on the night in question, that he could take liberties with each of themin their homes without their invitation or consent.

In the case of W.B., the Defendant expressed both to her spouse and the RCMP that hewas acting on long-held desires. His actions showed little regard for the privacy or personal integrity of either of the victims. [75] The serious implications of those actions on W.B., M.K., the Defendant and his family only really took hold in the Defendant'smind sometime later.

He has since then taken steps to redirect his life in a positive manner with regard to his employment, the pursuit ofhis faith and his abstinence from substance abuse. [76] However, while those later actions are mitigating circumstances which serve to reduce the severity of the sentences to beimposed they cannot completely overcome the aggravating factors present or the high level of the Defendant’s moral blameworthinessfor his actions on August 28, 2010.

The result must be a penalty for the offences that properly addresses the sentencing principles ofdenunciation, deterrence, retribution and public protection and provide for a just and appropriate sentence. In this case that cannot beaddressed by anything less than moderate period of incarceration followed by a lengthy period of probation to assist in the Defendant’srehabiliitation.

DECISION Ancillary Orders [77] As part of the sentence the Crown has sought various ancillary orders. [78] Count 1 is a primary designated DNA offence while Counts 2 and 6 are secondary DNA designated offences. [79] Pursuant to s. 487.051(1) of the Criminal Code, I make an order in Form 5.03 authorizing the taking of the number of samplesof bodily substances by any Peace Officer for the Province of British Columbia that is reasonably required for the purpose of forensicDNA analysis and registration in the National DNA Databank from Rodney Gene Lindstrom by October 31, 2012. [80] All three of the Counts attract a mandatory 10 year firearms prohibition pursuant to s. 109 of the Code.

The Defendant isprohibited 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. [ 81 ] All three of the Counts on the Information have a maximum sentence of 10 years imprisonment because the Crown has proceeded by Indictment.

Section 490.013(2) (

b) of the Code requires a SOIRA Order of 20 years for offences with a maximum term of imprisonment of 10 or 14 years. Therefore, Defence counsel’s submission for a SOIRA Order of 10 years is not permissible and the Defendant shall be bound by a SOIRA Order of 20 years. The Defendant shall immediately sign all necessary documentation to give effect to that order.

Sentence [ 82 ] On all three Counts of the Information, the Defendant’s sentence shall be concurrent two year terms of incarceration in a federal penitentiary followed by a Probation Order for a further two years the terms of which are: (a)You shall keep the peace and be of good behaviour. (b)You shall appear before the court when required to do so by the court. (c)You shall 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. (

d) Within 72 hours after completing your jail sentence you shall report in person to the Probation Office located at #101-250 George Street, Prince George, B.C., and after that you shall report as and when directed by the Probation Officer. (

e) After your first reporting to the Probation Officer, further reporting may include reporting by telephone, at the discretion of the Probation Officer. (

f) You shall reside at a residence approved in advance by the Probation Officer, and you shall not change your residence at any time without first obtaining the written consent of the Probation Officer . (

g) You shall have no contact or communication, directly or indirectly, with W. B., (

h) You shall have no contact or communication, directly or indirectly, with M. K. unless such contact or communication is initiated by that person. Such contact or communication shall end immediately upon the request of that person. (

i) You shall not attend at, or be within 25 meters of any place which you know to be the residence, school or workplace of W. B., except for:

i) while on a highway in a moving motor vehicle in transit to somewhere else. (

j) You shall not possess or consume any alcohol or any controlled substance within the meaning of

Section 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician. (

k) You shall not enter any liquor store, beer and wine store, bar, pub, lounge or other business premises from which minors are excluded by the terms of their liquor license. (

l) You shall attend, participate in and successfully complete any assessment, counselling or program as directed by the Probation Officer. Without limiting the general nature of this condition, such assessment, counseling or program may include and relate to:

i) alcohol or drug abuse, ii) sexual offence prevention. (

m) You must carry a copy of this Probation Order with you at all times when you are in public. If you are stopped by a Peace Officer for any reason you shall immediately provide the Peace Officer with a copy of this document without being requested to do so. [ 83 ] The Defendant shall have until October 31, 2014 to pay the Victim of Crime Surcharge. ___________________________ M. J. Brecknell Associate Chief Judge Provincial Court of British Columbia