R. v. G.R.H. Date:, 2016 BCPC 365

Citation: R. v. G.R.H. Date: 20161028 2016 BCPC 365 File No: 37825-3 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. G.R.H. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE MacCARTHY BAN ON PUBLICATION s. 486 CCC Counsel for the Crown: J. Patsch Counsel for the Defendant: C. Hunt Place of Hearing: Duncan, B.C.

Date of Hearing: July 21 and 22, 2016 Date of Judgment: October 28, 2016 INTRODUCTION [ 1 ] THE COURT: G.R.H. (the "Offender") is charged by way of indictment that, between the 29th day of January 2015 and the 28th day of May 2015, he did for a sexual purpose touch directly or indirectly with a part of his body or with an object the body of R.E.J. (the "Victim") being a person under the age of 16 years, contrary to s. 151 of the Criminal Code . [ 2 ] It is common ground that there were several incidences of penis/vaginal penetration by the Offender while the Victim was in the care of the Offender. [ 3 ] The Offender is an aboriginal offender as the term is used in s. 718.2 (

e) of the Criminal Code .

The aboriginal Victim, who was 14 years of age at the time of the offence, was the stepdaughter of the Offender. [ 4 ] Crown counsel argues that a fit and appropriate sentence is a custodial sentence of four years in custody, saying the range is three to five years, and it seeks a number of ancillary orders. [ 5 ] Counsel for the Offender argues that a fit and appropriate sentence would be in the range of two to five years, and that given all the circumstances of this case that a federal sentence of two years plus one day is appropriate. [ 6 ] The task of this court is to impose a sentence that is fit and appropriate in all the circumstances.

FACTS Circumstances Surrounding the Offences [ 7 ] An Agreed Statement of Facts was entered as an exhibit at sentencing. It is relatively brief. Accordingly, Crown provided additional information. I will note where there is any significant disagreement between Crown and defence with respect to the additional circumstances outlined by Crown. [ 8 ] The court was told that there also is a variance in the facts admitted and some of those set out in the various reports that have also been filed as exhibits at sentencing.

Therefore both counsel agree that the sentencing is proceeding on the basis of the admitted facts or where the defence takes no position. The Agreed Statement of Facts [ 9 ] The Agreed Statement of Facts confirms that the Victim was approximately eight years of age when her mother (the "Mother") started a relationship with the Offender. In 2009 or 2010, the Offender moved in with the Victim's Mother and her children. The Victim has two younger brothers and two stepbrothers.

She called the Offender "Dad". [ 10 ] The Agreed Statement of Facts further indicates that at the end of April and in the beginning of May 2015 the Offender had sexual intercourse with the Victim several times, it being agreed that it was between three to five times. This would occur at their home while the Mother was at work. The Offender would tell the Victim to go to her room for their "alone time". The Victim would comply as she did not want the Offender to get mad at her.

During this time, the Offender sent text messages to the Victim in which he referred to her as "babe" and "baby". [ 11 ] The sexual assaults were reported to the police after the Mother took her daughter to counselling in May of 2015, where a disclosure of the sexual assaults was made. Prior to the disclosure, the Mother had found a condom wrapper under the Victim's bed. [ 12 ] It is common ground that the Offender entered a plea of guilty on Count 1 of a two-count indictment on December 14, 2015, before the trial of the allegations.

Therefore the Victim was not required to testify at either a preliminary inquiry or at a trial. Additional Circumstances [ 13 ] Crown amplified on the Agreed Statement of Facts and provided additional circumstances of which I understand the following are not contested by defence unless otherwise noted. [ 14 ] The Mother worked full-time at a daycare which entailed very full days. Accordingly the Victim was alone with one of her brothers after school. The Offender was responsible for looking after them.

The Victim and Victim Impact [ 15 ] In the time surrounding the offence, the Mother had concerns about the behaviour of the Victim, including her drawings, her visits to various inappropriate websites with sexual content, and watching inappropriate YouTube videos. The Mother also had noticed

the looks of the Offender towards the Victim which caused her concern about the nature of that relationship. The Offender denies inappropriate leering. [ 16 ] This resulted in the Victim being taken to counselling at which point the Victim disclosed the offences and explained to the counsellor that the Offender had been touching her from "top to bottom". [ 17 ] In her statement to police, the Victim also stated that she did not want the Offender to get mad at her and that she just did what he wanted.

When she was told to go to her room, she indicated in her own words that "it is kind of scared for me", and further that she had never experienced the resulting sexual assaults before that and did not want to do that again until she was ready. [ 18 ] There is no suggestion that there was any physical violence used by the Offender against the Victim.

Crown is not relying in its circumstances that there was grooming by the Offender to have the Victim engage in this activity. [ 19 ] It is noteworthy that the Mother has a continuing ongoing relationship with the Offender, notwithstanding his offending behaviour against her daughter. Accordingly the Ministry of Children and Family Development ("MCFD") has an open file on the matter but has taken no intervention steps. Victim Impact [ 20 ] There is no victim impact statement.

Thus Crown is relying upon the Mother's observations of the Victim's concerning behaviour, noted above, that resulted in counselling, the statements of the Victim to the police and the information obtained from the Victim's school and teachers, all to assist in the court's consideration of this important factor, namely what was the resulting impact on the Victim. [ 21 ] The Victim's concerning behaviour was also observed at school by her teachers during the periods around when the offences were occurring.

The Victim presented as sad, emotional and very non-communicative; she was frightened to travel between the school's two physically separated campuses without the company of an educational assistant. The exact timing of that noted change in behaviour was only established as being within the 2014 and 2015 school year. [ 22 ] In the circumstances presented by Crown, the Victim was described as being "particularly vulnerable".

As a result of various tests administered by her school during November of 2015, following the offences, and at age 15, it was determined that she was functioning well below her age, both mentally and emotionally. [ 23 ] In the Victim's Kaufman Test of Educational Achievement, Third Edition ("KTEA-3") under the heading of “Core Composite Score

Summary Table” for her “Academic Skills Battery”, she is described as "very low" to "low" and with an age equivalency of between seven years and one month to eight years and seven months. In her oral language composite, her listening comprehension was rated and described as "average" with an age equivalency of 10 years and 10 months, but her oral expression was "very low" and her age equivalency was four years and eight months. [ 24 ] The Victim was subsequently retested and the results indicated that she had "improved somewhat".

She was also subsequently observed at the school to be less emotional and less afraid.

This, says Crown, is attributed to the Offender now residing outside of the Victim's home with the Mother. [ 25 ] The Victim has continued with her education, and it was anticipated that in the fall of 2016 she would be entering a modified high school program which will eventually lead her to graduate with a lower level diploma. [ 26 ] References are also made in the Pre-Sentence Report, described below, about the information provided by the Victim's registered psychologist with whom the Victim attends, and has apparently done so since May or June of 2015, following the offences.

There is recognition of the "significant impact of the offence on [the Victim] noting changes in artistic expression, tension amongst siblings, as well as extreme guilt at the disruption of her family". The registered psychologist recommends ongoing counselling for the Victim and the family as a whole. PERSONAL CIRCUMSTANCES OF THE OFFENDER [ 27 ] I have before me two important sources of information about the Offender. The first is a Pre-Sentence Report completed March 4, 2016, by Sarah Turner, a probation officer with the Duncan Community Corrections (the "PSR").

It contains a useful " Gladue component" but it is not a formal Gladue report. [ 28 ] The second is a Forensic Assessment completed February 22, 2016, by Tricia Teeft, H.B.Sc., a pre-doctoral clinical psychology resident, and Shauna Darcangelo, Ph.D., a registered psychologist (the "Forensic Assessment"). Both authors are with the Forensic Psychiatric Services Commission, Victoria Regional Clinic. [ 29 ] I also have before me the helpful submissions of defence counsel and a brief report tendered by defence prepared July 22, 2016, by Dr. Frank Groenewold (the "Groenewold Report").

He is a registered clinical counsellor in private practice and whose practice includes working as a contractor for First Nations Health Authority and with a local First Nation Health Society dealing with Indian residential school survivors and their descendants. The Offender has been attending counselling with Dr. Groenewold from August 4, 2015, up to the date of the Groenewold Report. [ 30 ] Both the PSR and the Forensic Assessment are comprehensive, detailed and useful.

The Groenewold Report provides some further and up-to-date insight to the Offender. [ 31 ] Based on this information, it is established that this 48-year-old Offender is of First Nations heritage. He is the product of a

turbulent, disruptive, and deprived childhood, marked by exposure to substance misuse, domestic violence, physical and sexual abuse. The Offender reported to the author of the PSR of a family history of mental health issues. Several immediate members of the family were identified as survivors of the residential school system and very adversely affected by it. His mother was the victim of a fatal stabbing some 23 years ago. The Offender is estranged from the maternal side of his family. [ 32 ] He has a number of children and stepchildren from various relationships.

He described his relationship with the Mother as positive and expresses sadness at the loss of "family time" with her stepchildren, as well as his sons from previous relationships. As noted above, he has maintained a relationship with the Mother, notwithstanding his offending behaviour against her child, the Victim. [ 33 ] The Offender has, for most part of his life, lived locally in the Cowichan Valley on two different First Nations reserves. He identifies culturally with one of these local First Nations and at age 15 he was honoured by being initiated as a masked dancer.

Therefore he has had and continues to have an active role in First Nations culture. He expresses a desire to continue to have an active role. [ 34 ] The Offender had alcohol misuse issues from his mid-teen years until he was in his 30s, when he started attending counselling and group programs. While reporting only youthful drug experimentation to the author of the PSR, his disclosures to the authors of the Forensic Report indicate a broader use and misuse of drugs.

He reported to the author of the PSR that he has maintained abstinence from all substances since attending those programs in his 30s. [ 35 ] The Offender left school in Grade 8 but returned to educational pursuits in order to enrol and complete a residential care attendant program at a local public college in 2000. He was subsequently employed by one of the local bands as a residential care attendant until his arrest on this offence.

He continues to work as a custodian. [ 36 ] The PSR indicates that the Offender "expresses remorse for his actions and a readiness to address his offence through counselling and programming". [ 37 ] It is common ground that the Offender has received a free pardon under s. 748(2) of the Criminal Code for all offences from his younger years and pursuant to ss. (3) he is before the court deemed never to have committed an offence in respect of which the pardon is granted. [ 38 ] The Forensic Assessment amplifies on the family background of the Offender, noting that his parents were both products of the residential school system, that there were extreme levels of physical violence within the family, and heavy alcohol consumption by both parents, requiring the Offender to protect his sisters by trying to ensure that they did not witness or experience the altercations and abuse. [ 39 ] The Offender reported in more graphic terms about being sexually abused on one occasion by an uncle (also a residential school survivor) when he was age 11.

The abuser attempted to have anal intercourse with the Offender. [ 40 ] Following the charges, the Offender became depressed and suicidal. He started counselling to deal with these issues with a registered counsellor through his employee assistance plan in June of 2015, before starting his counselling with Dr. Groenewold in August of 2015. Improvements in the Offender's mental state are noted. [ 41 ] A comprehensive risk assessment for sexually reoffending was completed by the authors of the Forensic Assessment.

Of note, under the heading "Extreme minimization of sexual violence" was the conclusion reached that the Offender [as read in]: ... blamed the [Victim's] sexual precociousness and his wife's absence from the home for the offences. He also denied any harm to the [Victim] as a result of his actions against her. [ 42 ] Similarly, under the heading "Attitudes that support sexual violence", it is observed that the Offender: ... reasserted the [Victim's] responsibility in instigating and consenting to the sexual violence.

He also cited the onset of menstruation and her vaginal discharge (which he noticed on her soiled underwear) as justification for the sexual violence. [ 43 ] The Forensic Assessment provides the following conclusion: At this juncture, [the Offender's] risk for sexual reoffending is estimated to be in the low to moderate range. His risk is likely to escalate when he feels lonely or abandoned by his intimate partner. His childhood was marked by abuse, anger, and chaos, and [the Offender] has frequently found himself in unhealthy relationships.

He has a history of maladaptive coping, including minimization, rationalization, substance abuse, and anger. A mitigating factor is [the Offender's] willingness to utilize resources, particularly those offered within his cultural community. [ 44 ] In the

summary portion of the Forensic Assessment, it is noted: The most salient treatment targets include his minimization of responsibility, lack of empathy for the [Victim], and ineffective coping skills to deal with feelings of loneliness, abandonment and anger. [ 45 ] In defence counsel's submissions, and based upon discussions with various sources, including the Mother, the Offender is described by the Mother as a "loving father and supportive partner". The Mother remains supportive of the Offender and has accompanied him to court.

The Offender enjoys significant support from his siblings and is presently residing with a sister in a sober home. [ 46 ] He has consistently worked for the past several years as a residential care attendant, but cannot presently fulfil those duties because of these charges. He was specifically trained in hospice work. He has historically consistently paid child support for his dependent children. [ 47 ] He remains culturally active but has been subject to some shaming and shunning and isolation within his First Nations

community because of these charges. [ 48 ] Defence counsel says that there have been some slip-ups with his substance abuse problems since the charges, but he remains substantially in control of those issues. He has regained control over his emotional issues such that he is no longer suicidal. [ 49 ] The various reports indicate no active mental health issues or sexual deviancy. He has pursued counselling on his own behalf to obtain coping strategies to deal with various stressors in his life. [ 50 ] Defence counsel points out that the authors of the Forensic Assessment had noted Dr.

Groenewold's work with the Offender as it then stood in February of 2016. Defence counsel says that, since then, there has been a broadening of the scope of that counselling such that Dr. Groenewold is now dealing with the issues relating to the offending behaviour. [ 51 ] In the Groenewold Report, there is confirmation that the Offender has had very limited amounts of counselling predating the offence to deal with his own personal circumstances of family and sexual abuse and violence, and his maladaptive behaviour arising out of those issues. Dr.

Groenewold reports that the Offender has readily participated in the counselling programs and was attentive to the counselling process, completing any homework assignments. [ 52 ] The suggestion is also made in the Groenewold Report is that the Offender: ... does not seem to fit the profile of the sex offender in that he did not engage in predatory behaviour nor engaged in grooming behaviour. He readily admits that he, being the adult in the situation, needed to practice cognitive self-management skills in regard to his feelings and sexual arousal.

We have discussed cognitive self-management skills in many of our sessions, and I believe that he has a good understanding of these skills. [ 53 ] Dr. Groenewold, who appears to be qualified to deal with and assess sex offenders, expresses the opinion that the Offender "is at a very low level to reoffend". [ 54 ] Defence suggests that considerable weight should be placed on Dr.

Groenewold's opinion because of the longer duration that he has been meeting with the Offender and the more time spent with him than was spent by the authors of the Forensic Assessment. [ 55 ] The Offender has been very much engaged with MCFD in order to deal with their potential requirements of programs and counselling in order that he can re-engage with his children and his family members.

The programming that he is likely to obtain as part of his custodial sentence apparently will meet any requirements of the MCFD in order for the Offender to move forward with family reunification. [ 56 ] The Offender has and presently seeks to resolve the sentencing matters he faces in court at the earliest opportunity. PURPOSES, OBJECTIVES AND PRINCIPLES OF SENTENCING [ 57 ] The purposes and principles of sentencing are found in ss. 718 to 718.2 of the Criminal Code . These sections codify them and plainly state the intention and rationale for imposing particular sentences. [ 58 ]

Section 718 of the Code outlines the fundamental purpose of sentencing as: 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 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 or to the community. [ 59 ]

Section 718.1 directs that a sentence must be proportionate to the gravity of the offence and the degree of the offender's responsibility. [ 60 ]

Section 718.2, under the heading of "Other Sentencing Principles" states, in part, that 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 the offence or the offender, and, without limiting the generality of the foregoing ... (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, ... shall be deemed to be aggravating circumstances; (

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

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

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 and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [61] Of particular importance in this case is the provision of s. 718.01 which deals with offences against children and provides: When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primaryconsideration to the objectives of denunciation and deterrence of such conduct. [62] In addition, s. 151 of the Criminal Code states: Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of aperson under the age of 16 years (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment ofimprisonment for a term of one year; or (

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two years less aday and to a minimum punishment of imprisonment for a term of 90 days. CASES AUTHORITIES RELIED UPON BY CROWN [63] Cases submitted to court and relied upon by Crown are as follows: (

a) R. v. W.M., [2010] B.C.J. No. 1791 (B.C.C.A.); (

b) R. v. R.E.L., [2010] B.C.J. No. 2571 (B.C.C.A.); (

c) R. v. D.R.W., 2012 BCCA 454 , [2012] B.C.J. No. 2646 (B.C.C.A.); (

d) R. v. R.M.D., [2014] B.C.J. No. 221 (B.C.C.A.); (

e) R. v. J.G.B., [2008] B.C.J. No. 1486 (B.C.C.A.); (

f) R. v. C.C.P., [2016] B.C.J. No. 558 (B.C.C.A.); (

g) R. v. W.J.C., [2015] B.C.J. No. 2529; 2015 BCPC 327 (B.C.P.C.) ; (

h) R. v. W.J.P., [2016] B.C.J. No. 175 (B.C.C.A.); (

i) R. v. Ipeelee, [2012] SCC 13 (SCC); (

j) R. v. Sunshine, 2014 BCCA 318. CASE AUTHORITIES RELIED UPON BY THE OFFENDER [64] Cases submitted to court and relied upon by defence counsel are as follows: (

a) R. v. R.R.M., [2009] BCCA 578 (B.C.C.A.); (

b) R. v. T.L., [2002] BCPC 9 (B.C.P.C.); (

c) R. v. Cuthbert, (BC CA), [1998] B.C.J. No. 196 (B.C.C.A.); (

d) R. v. M., [2000] BCSC 683 (B.C.S.C.); (

e) R. v. R.O.A., [2007] BCSC 525 (B.C.S.C.); (

f) R. v. Ipeelee, supra;

(

g) R. v. Giles , [2007] BCSC 775 (B.C.S.C.); (

h) R. v. C.G.D. , [2009] B.C.J. No. 580 (B.C.S.C.) . [ 65 ] I have read each of these cases and I have considered them in coming to a determination of the sentence. I may not necessarily refer to each of these cases but the principles outlined in them and the guidance that they provide with respect to a fit sentence in this case have been taken into account. I have also considered and referred to other cases that I have noted in these reasons.

POSITION OF CROWN ON SENTENCING OF THE OFFENDER [ 66 ] As noted above, Crown is seeking a custodial sentence of four years, submitting that the range for this offence is between three years to five years in federal prison. [ 67 ] Crown emphasizes the factors of deterrence and denunciation for this type of offence and in these circumstances, and submits that there must be less emphasis on rehabilitation. [ 68 ] The sentencing range is supported by a number of cases cited by Crown. Particular reliance is placed by Crown on R. v.

D.R.W. , in which the Court of Appeal upheld a sentence of four years of incarceration following a trial at which it was accepted that the accused had engaged in vaginal penetration over an 18-month period with his teenage stepdaughter. At paragraph 41, the court emphasized that it was the breach of trust at the heart of the child/parent relationship that was the measure of the offence, rather than whether vaginal penetration occurred. At paragraphs 31 to 34, the court observed that minimum sentences have the effect of raising sentences across the board for such offences to maintain proportionality.

At paragraph 45 the court opines that the sentence imposed by the sentencing judge "was below, or at best at the very low end, of the appropriate range of sentence". [ 69 ] Reliance is also placed upon our Court of Appeal's decision in R. v. R.E.L. which upheld a six-year sentence of imprisonment for an accused who had sexually abused his stepdaughter from the age of 6 to age 12. The court rejected a conditional sentence for the accused, who had no prior record, while noting that recent examples of sentences of less than two years for sexual assault of children are exceptions to the range.

The court cautioned about using earlier cases that predated the enactment of s. 718.01 of the Criminal Code . Specifically the court noted as follows at paragraph 10: The harm to young children that results from sexual assaults is well known, and recognized by the requirement that denunciation and deterrence must be a primary sentencing consideration pursuant to s. 718.01 of the Criminal Code .

Such assaults not only violate the child's physical integrity, but erode the child's ability to develop emotional trust, and create the sort of profound and long-lasting consequences that are evident in the appellant's victim. [ 70 ] Crown says that the factual pattern in R. v. W.M. is similar to that in the present case. However the sexual assault was committed against two victims, being a teenager and preteen stepdaughters.

While finding that the sentence of 60 months' imprisonment was within an appropriate range, the global sentence was reduced to 50 months to take into account credit for time served which had not been applied. [ 71 ] The original sentence was 42 months for the offences involving the older complainant who the accused sexually assaulted, including engaging in sexual intercourse at least five times while she was between 13 and 15 years of age, and 18 months for the offence against the younger complainant whom he sexually assaulted at times about once a week, when she was 11 to 12 years old.

The sentencing judge had applied the totality principle and reduced it from seven years to 60 months. [ 72 ] In R. v. R.M.D. , the Court of Appeal upheld that portion of a sentence of four years for sexually assaulting a stepdaughter which did not involve intercourse but did include attempted unsuccessful intercourse. The accused in that case had been a victim of sexual abuse. [ 73 ] In R. v. C.C.P. , the accused was sentenced for two sexual offences perpetrated against his 13-year-old daughter.

On the offence contrary to s. 151 , the disposition was three years with an additional seven years for the incest charge. [ 74 ] In R. v. W.J.C. , the aboriginal offender who was regarded by the 13-year-old victim as her grandfather was sentenced on three counts under s. 151 of the Criminal Code to a global sentence of six years, which was reduced at sentencing on the basis of proportionality to a four-year sentence. There were two incidents of intercourse. The accused had recanted his guilt on one occasion and then admitted his guilt.

He was himself a victim of sexual assault at a residential school. [ 75 ] In R. v. W.J.P. , the victim was an 11-year-old granddaughter of the accused's best friend. She became pregnant as a result of the sexual abuse that continued for several months. The victim, with significant cognitive deficiencies, had a mental age of seven years. The aboriginal accused was sentenced to six years' imprisonment. DEFENCE POSITION ON SENTENCING OF THE OFFENDER [ 76 ] Defence submits that the appropriate sentencing range is two years to five years of custodial time.

In any event, defence says that the custodial sentence should not be less than two years and accordingly suggests that on all the circumstances in this case that a sentence of two years plus one day meets the goals and principles of sentencing and provides sufficient deterrence and denunciation.

[77] In particular, considerable reliance is placed by defence upon the direction of the Supreme Court of Canada in R. v. Ipeelee, thatunder s. 718.2(

e) of the Criminal Code, a sentencing judge is required to consider the background and systemic factors in crafting asentence for an offender and all available sanctions other than imprisonment that are reasonable in the circumstances for all offenders,with particular attention to aboriginal offenders, including long-term aboriginal offenders. [78] Ipeelee further directs that, as with all sentencing, this must be done with regards to the particular individual, the threat theypose, and their chances of rehabilitation and reintegration. When sentencing an aboriginal offender, a judge must consider the factorsoutlined in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688: (

a) the unique systemic or background factors which may have played a

part in bringing the particular aboriginal offender before thecourts; and (

b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his orher particular aboriginal heritage or connection. [79] Moreover, systemic and background factors may bear on the culpability of the offender to the extent that they shed light on hisor her level of moral blameworthiness. [80] Failing to take these circumstances into account would violate the fundamental principle of sentencing, namely that thesentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [81] In support of the lower end of the range of sentencing, defence relies upon the B.C.

Court of Appeal decision in R. v. R.R.M.,wherein the two-year custodial sentence and three years of probation of an aboriginal offender for sexual assault of his 14-year-oldstepdaughter, contrary to s. 271(1)(

a) was appealed. The appellant sought a reduction of between six to nine months. [82] The court maintained the sentence with a variation of some conditions, but affirmed the position stated by the court in R. v.Bernier, 2003 BCCA 134, that a range of sentence is not conclusive in determining the appropriateness of the sentence.

It is theindividual circumstances of a particular offence and the offender, and the application of the relevant principles of sentence to thecircumstances, that informs the appropriateness of the sentence: see paragraph 25. [83] A number of the cases also referred to by defence were examples of sentences in the lower range for sexual offences againstyoung persons, see in particular: (

a) R. v. T.L., in which there was a sentence of two years less a day and probation of three years; (

b) R. v. Cuthbert, involving sexual offences with two young stepdaughters, including sexual intercourse, in which a sentence afterappeal was increased to two years less a day for the two offences involving the younger child and the sentence of six months concurrenton the offence involving the older child. (

c) R. v. M., involving sexual touching of two twin sisters by a stepfather over an extended period of time, starting around age nine or10, with one of the children eventually being raped at age 14, and with continuing incidences of sexual intercourse to age 17. Theresulting sentence was nine months on the sexual touching and two years less a day on the sexual intercourse, both sentences beingserved concurrently and with a three-year period of probation to follow. (

d) R. v. R.O.A., involving repeated sexual assaults of a stepdaughter in which a sentence of two years and four months was imposed. [84] Defence points out that in some of these cases, the sentences were imposed after trial. There were in many cases less thanfavourable presentence reports, less than adequate voluntary steps taken, or no steps taken by the individuals to rehabilitate themselves. Some had previous criminal convictions, some had little insight and little remorse, and some involved non-aboriginal offenders. ANALYSIS [85] In R. v.

B.S.B., 2009 BCSC 1526, Justice Romilly of our Supreme Court established that the range of sentences for sexualassault where sexual intercourse takes place is two to six years. [see paragraph 35 and cases referred to therein]. [86] At paragraph 36, Justice Romilly provides a comprehensive review of the aggravating and mitigating circumstances that mustbe taken into account in each individual sentence which may increase or reduce the offender's sentence for sexual offences. [87] In his analysis, Mr. Justice Romilly relies upon the decision of the Supreme Court of Canada in R. v.

L.M., 2008 SCC 31, andthen cites a significant number of authorities for each of the factors that should be taken into account. Reliance is also placed upon thedecision of R. v. J-J.L., (QC CA), [1998] R.J.Q. 971, 126 C.C.C. (3d) 235 (C.A.). In

summary, those factors are asfollows: (

a) the nature and intrinsic gravity of the offences which is affected by, in particular, the use of threats, violence, psychological threatsand manipulation, et cetera; (

b) the abuse of trust and the abuse of authority which are involved in the relationship between the offender and the victim; (

c) the disorders underlying the commission of the offences: the offender's psychological difficulties, disorders and deviancy,intoxication, et cetera; (

d) the offender's previous convictions: proximity in time to the offence charged and the nature of the previous offences;

(

e) the offender's behaviour after the commission of the offences: confessions, collaboration in the investigation, immediateinvolvement in a treatment program, potential for rehabilitation, financial assistance if necessary, compassion and empathy for thevictims (remorse, regret, et cetera); (

f) the time between the commission of the offences and the guilty verdict as a mitigating factor depending upon the offender'sbehaviour (the offender's age, social integration and employment, commission of other offences, et cetera); (

g) the victim: gravity of the attack on his or her physical or psychological integrity reflected by, in particular, age, the nature andextent of the assault, the frequency and duration of the assault, the character of the victim, his or her vulnerability (mental or physicalhandicap), abuse of trust or authority, lingering effects, et cetera. [88] In R. v.

Wells, 2000 SCC 10, the Supreme Court of Canada at paragraphs 43 and 44, states the following when dealing with therestorative justice scheme in sentencing of aboriginal offenders: [43] The appellant submits that in according greater weight to the goals of denunciation and deterrence based on the nature of hisoffence, the sentencing judge did not take into account, as required by s. 718.2(e), the paramount significance of restorative justice withinaboriginal communities.

The appellant also submits that on the same basis, the Court of Appeal was in error when it held that it wouldbe unreasonable to conclude that a fit sentence for a non-aboriginal offender would not also be a fit sentence for an aboriginal offender.

It is important to note, however, that consistent with the reasoning in Gladue, supra, the Court of Appeal was referring to "seriouscrimes", rather than offences in general, as follows (at p. 140): For serious crimes, it would not be reasonable to conclude that a fit sentence for a non-aboriginal person would not also be fit for anaboriginal person, and this point was made by Esson J.A. speaking for the majority in the British Columbia Court of Appeal decision ofR. v.

Gladue (1997), (BC CA), 119 C.C.C. (3d) 481 at p. 506, who stated, "To put it another way, the particularcircumstances could not reasonably support a conclusion that the sentence, if a fit one for a non-aboriginal person, would not also be fitfor an aboriginal person". [Emphasis added.] [44] Let me emphasize that s. 718.2(

e) requires a different methodology for assessing a fit sentence for an aboriginal offender; it doesnot mandate, necessarily, a different result.

Section 718.2(

e) does not alter the fundamental duty of the sentencing judge to impose asentence that is fit for the offence and the offender. Furthermore, in Gladue, as mentioned the Court stressed that the application ofs. 718.2(

e) does not mean that aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles ofrestorative justice and less weight to goals such as deterrence, denunciation, and separation (at para. 78). As a result, it will generally bethe case, as a practical matter, that particularly violent and serious offences will result in imprisonment for aboriginal offenders as oftenas for non-aboriginal offenders (Gladue, at para. 33).

Accordingly, I conclude that it was open to the trial judge to give primacy to theprinciples of denunciation and deterrence in this case on the basis that the crime involved was a serious one. [89] In R. v. Ladue, 2011 BCCA 101 at paragraph 45, our Court of Appeal stated as follows: The direction from the Supreme Court could not be clearer. The unique circumstances of an aboriginal offender must be taken intoconsideration when passing sentence. The extent to which these circumstances will affect a sentence will depend on each case.

TheCourt made it clear that there is no automatic aboriginal discount of the sentence. Furthermore, the more serious the crime, the morereduced a role these circumstances will play in crafting a fit sentence: see R. v. Wells, 2000 SCC 10; [2000] 1 S.C.R. 207. [90] In R. v. Williams, 2011 BCCA 194, our Court of Appeal upheld the decision of the trial judge in a Port Alberni case. QuotingMadam Justice Newbury at paragraph 5 as follows: The sentencing judge reviewed Mr. Williams' personal circumstances and the circumstances of the offence in his reasons.

He agreedwith the Crown that the main concern in this case was denunciation and deterrence, especially given the victim's age. He then said this: [17] Another very important aspect of my decision today is based on me and my personal experience in coming to this communityalmost every month for the last 17 years. Over that period of time there have been a large number of cases where women had consumedtoo much alcohol, went to bed, fell deeply asleep or passed out, and were then taken advantage of by a male and sexually assaulted in thebed in the home in which they felt safe.

For a very long time now I have been treating this very seriously and trying to deter people fromthis behaviour. I have to admit, in the last few years it seems that we have had fewer of these cases. It probably does not have anythingto do with me, but a recognition in the communities that this has been a problem, but it does occur from time to time and in this case itdid occur.

It is exactly the same pattern as we have seen a number of times, except that I have to admit in this case, with the victim onlybeing 14 years old, that is a special aggravated factor. [18] I have felt that for years, that when considering the provisions in the Code in regards to aboriginal offenders and the Gladuecase, (SCC), [1999] 1 S.C.R. 688, I also have to consider the aboriginal communities in this area.

I have had verymany aboriginal people, citizens and leaders, speak to me and say that they are equally concerned about some of the things that a veryfew of their members perpetrate against their own people, and they are as concerned about their children as non-aboriginal people, and asone said to me years ago, "It doesn't matter if my child is attacked or abused by an aboriginal offender or by a non-aboriginal offender,my child still suffers." So I feel that in these kinds of sentencings, I need to speak to those aboriginal communities and to the aboriginalparents and say to them, "I will do everything that is in my power to deter people from inflicting themselves in this manner on yourchildren." [91] Madam Justice Newbury agreed with the learned trial judge's decision and upheld the sentence in that case, which was twoyears' imprisonment and three years' probation.

AGGRAVATING FACTORS

[ 92 ] Based upon the circumstances before me and the submissions of Crown and defence, I accept as aggravating factors the following: 1. the age and the vulnerability of the Victim and particularly her developmental delays; 2. the position of significant trust held by the Offender as it related to the Victim; 3. the apparent lack of insight of the harm done and victim blaming by the Offender that is described in the forensic assessment, which as Crown notes is not an aggravating circumstance but certainly is a risk factor that must be considered; 4.

To this list, I add the existence of several episodes of vaginal penetration which I accept was with the use of a condom; 5. I further add to the list of aggravating factors the extent of the significant negative impact that the offending behaviour has had on the young Victim which I do view as an actual aggravating factor.

MITIGATING FACTORS [ 93 ] Again based upon the circumstances before me and the submissions of Crown and defence, I do accept the following as mitigating factors: 1. the guilty plea proffered by the Offender which has spared the Victim having to testify at a trial of this charge; 2. the fact that the Offender has been gainfully employed in a responsible job and has been a productive member of society demonstrating perseverance in obtaining his work qualifications, notwithstanding some academic challenges and his disadvantaged background. He has a positive history of financially supporting his family.

He has been an active member in the cultural life of his First Nations community; 3. the numerous Gladue factors and considerations including the Offender's very traumatic upbringing and the highly negative impact of the residential school system on his parents and other family members who survived it.

That experience has had a spillover and continuing deleterious effect on the Offender's life for many years and which, until recent months, has gone substantially unaddressed and untreated; 4. the Offender's voluntary commitment to rehabilitation and counselling which started shortly after the charges had been laid in this matter and has continued in a consistent and positive manner from that point in time, and his expression of a receptiveness to attending future programs and counselling; 5. what I take to be a growing insight into his offence and its impact on the Victim and a genuine expression of remorse, which I note was reaffirmed by the Offender today in open court; 6. the Offender's pattern of cooperative and compliant behaviour by turning himself in and while remaining on bail and subsequently accepting criminal responsibility and cooperating with the authors of the PSR and the Forensic Assessment, and with MCFD and his counsellors; 7. a lack of any prior sexual offence, related convictions or, for that matter, any criminal record; 8. his struggles and successes with historical substance abuse issues; 9. the fact that the Offender will lose his ability to maintain his employment as a residential care aide as a result of his conviction on this type of offence [such mitigating factor being confirmed in R. v.

Giles at paragraph 38]. CONCLUSIONS [ 94 ] I am mindful that sentencing is a very individualized process. I am also mindful that primary consideration must be given to deterrence and denunciation in these set of circumstances, especially given the aggravating factors. [ 95 ] I understand that our Court of Appeal in R. v.

R.E.L. is saying that there is to be caution when considering and relying upon decisions that predated the enactment of s. 718.01 of the Criminal Code in 2005 or in cases to which that provision did not apply because of the timing of the offence. [ 96 ] I am of the view that a custodial sentence beyond the range suggested by defence is appropriate. However, I am also mindful of the considerable steps taken by the Offender in obtaining counselling in order to address not only his offending behaviour but some of the underlying causes of it.

Hence that custodial sentence will be less than what is being sought by Crown and at a lower range than is being suggested. [ 97 ] According to Dr. Groenewold, the Offender's continuing treatment is already apparently substantially reducing his risk to offend from the upper end of the range identified in the Forensic Assessment as a "low to moderate range". [ 98 ] I am also mindful that some of the apparent underlying causes of the Offender's criminal acts fall squarely within the context of factors identified by Gladue and Ipeelee .

The other mitigating factors mentioned above are also significantly persuasive for me in crafting a sentence in this matter. [ 99 ] I am also of the view that, not only for denunciation and deterrence, the Offender must have adequate custodial time in order to

continue his rehabilitation and to avail himself of programming such that he will have a successful integration back into society. SENTENCING [ 100 ] G.R.H., could you please stand? [ 101 ] Having regard to all of the purposes and principles of sentencing, the objectives in dealing with offences against children, the fundamental principles of sentencing, and other relevant sentencing principles, including the Gladue factors, I am of the view that a custodial sentence of 32 months is appropriate.

Accordingly, I am imposing a custodial sentence of 32 months upon you. [ 102 ] As to ancillary orders, there will be a DNA order under s. 487.051. [ 103 ] There will also be an order pursuant to s. 490.012(1) in Form 52 of the Criminal Code .

The Offender will be required to comply with the Sex Offender Information Registration Act and that pursuant to s. 490.013(2)(b), it will be for a duration of 20 years. [ 104 ] There will be a mandatory order under s. 109 for firearms and weapons and other items set out therein for the Offender's lifetime. [ 105 ] I have heard submissions and considered the Supreme Court of Canada's recent pronouncements and directions in R. v.

K.R.J. , 2016 SCC 31 , with respect to the making of a prohibition order under s. 161 of the Criminal Code . [ 106 ] There will be a prohibition order under s. 161(1)(a.1) and that the Offender will not be within one kilometre of any dwelling house where the Victim ordinarily resides or any place of her employment or her place of education. [ 107 ] Furthermore there will be a provision in accordance with s. 161(1)(

b) and the Offender will not seek, obtain or continue any employment, whether or not the employment is remunerated, or become or be a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years. [ 108 ] There will not be a prohibition order under s. 161(1)(a)or (c).

The making of that order would in my view be overly broad in the whole of the circumstances in this case and particularly given the fact that the offence was directed at one particular individual, namely the Victim, and given the fact that the risk to reoffend is at an appropriate level in the low range. [ 109 ] The duration of the prohibition order that I have made will be for a period of six years. [ 110 ] I will hear submissions with respect to the victim fine surcharge. [ 111 ] MS.

HUNT: Considering -- excuse me, Your Honour -- G.R.H. has lost his employment due to this, and I am -- I know he had been working part time , but are you working at all right now? Have you been? [ 112 ] THE ACCUSED: Yes, I have been. Janitorial for the band . [ 113 ] MS. HUNT: And how much are you earning per month? [ 114 ] THE ACCUSED: It's twelve hundred, thirteen hundred. Maybe -- [ 115 ] MS. HUNT: I am not going to make any submissions about that, and I will leave that to Your Honour. [ 116 ] All right. Well, what I will do, is that the victim fine surcharge will be applicable upon his release.

Therefore I will give him two months to pay the victim fine surcharge. [ 117 ] MS. HUNT: Okay, Your Honour. Thank you. [ 118 ] THE COURT: All right. Any further matters that I need to deal with at this time? [ 119 ] MS. PATSCH: I don't believe so, Your Honour. And just to confirm, if I haven't already, a stay of proceedings on the 271. [ 120 ] THE COURT: All right. Stay of proceedings recorded on that. [ 121 ] I just want to check before we do depart. I ordered the Offender not to be within one kilometre of a dwelling house or place of employment or education of the Victim.

I just want to make sure that that does not cause a practical problem about the place where he is going to be residing -- upon his release. [ 122 ] MS. HUNT: Of where he is going to be residing? Do you know where you're going to be residing when you're released? [ 123 ] We don't know where he is going to reside upon release. I would suggest that we leave it as is, and I will assist him in varying the term upon release if needed. [ 124 ] MS. PATSCH: Yes, it could be a concern because -- the victim is still attending school right in Duncan.

That would prohibit him from attending a lot of the area around the school, a school that -- if it is a matter that can be addressed in the future, then -- I believe -- [ 125 ] THE COURT: Well, I will leave it to be addressed in the future if it does pose a practical issue. [ 126 ] All right. Anything further?

[ 127 ] MS. PATSCH: No, Your Honour. [ 128 ] THE COURT: I will stand down. [REASONS FOR SENTENCE CONCLUDED]