R. v. A.H.J. Date:, 2014 BCPC 239

Citation: R. v. A.H.J. Date: 20140626 2014 BCPC 0239 File No: 38265-1 Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A.H.J. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY BAN ON PUBLICATION 486.4(1) CCC; 490.012 CCC RESTRICTED ACCESS Counsel for the Crown: R.B. Richardson Counsel for the Defendant: A.W. McGarvey

Place of Hearing: Courtenay , B.C. Date of Hearing: June 26, 2014 Date of Judgment: June 26, 2014 [ 1 ] THE COURT: A.H.J. has entered a plea of guilty to an allegation that on or about 7 June 2013, at or near Courtenay, in the Province of British Columbia, he did sexually assault C.W., contrary to s. 271 of the Criminal Code . [ 2 ] This charge has been dealt with by a plea of guilty offered by A.H.J..

Considerable time has been spent by Crown and by defence dealing with an appropriate sentence on this matter, both today and prior to today's proceedings and also in ensuring that adequate information is before the court. I also commend counsel for the time that they have spent coming up with a joint submission to me on how to deal with this difficult sentencing situation. [ 3 ] The circumstances have been outlined by Crown. No issue is taken with respect to those circumstances. This event arose out of an opportunistic assault on C.W. by A.H.J.. C.W. was, at the time of the incident, a neighbour.

A relationship had built up between the then 81-year-old A.H.J. and the mid-thirties C.W.. C.W. was not just a neighbour. She had been engaged in providing domestic services paid for by the offender and his wife. The relationship had developed as a friendship, and in the course of that situation, A.H.J. most inappropriately sexually assaulted C.W. in the fashion described by Crown, by essentially grabbing her breasts and grabbing her vagina in a rough manner.

It was a totally uninvited amount of sexual contact and very upsetting and traumatizing to C.W.; she reported the incident to the RCMP. [ 4 ] A.H.J., at an early point in the proceedings, made it clear that he wished to enter a plea of guilty with respect to this matter. That gave counsel the opportunity to come up with a number of reports that are now before me. I will make mention of those briefly. [ 5 ] I have a pre-sentence report that was prepared on May 17, 2014, by Probation Officer Cheryl Fountain with the Courtenay Community Corrections office.

I also have a forensic psychological assessment report dated April 8, 2014. This report has been prepared by Edward A. Clarke, Ph.D., a registered psychologist and in practice in clinical and consulting psychology with the Forensic Psychiatric Services for the Province of British Columbia. [ 6 ] I also have a letter and report prepared by David Owen, a registered social worker. That report is dated June 13, 2014. Mr. Owen has had a history of dealing with A.H.J. since January of 2014.

He is also familiar with some background of A.H.J. predating this offence. [ 7 ] Then I have a psychological report dated June 13, 2014, prepared by Lori L. Ladd, Ph.D., a registered psychologist who again has dealt quite extensively with A.H.J. in connection with these matters. [ 8 ] These matters are complicated by the fact that A.H.J. has prior convictions for sexual assaults. In December of 2007, he entered pleas of guilty on four charges and, in connection with them, received a 12-month jail sentence.

He was also bound by a probation order of three years with some restrictive provisions both intended to assist him in his rehabilitation but also to offer protection to the community from any further offences. That three-year probation order, as I understand it, was served without any incident or without any allegations of breaches.

There are some collateral orders that were made at the same time in connection with those offence matters. [ 9 ] During his period of probation and during his period of incarceration, A.H.J. received extensive counselling with respect to his issues that gave rise to those prior offences.

That counselling and the various programs that he participated in as a sex offender unfortunately did not translate into an ability to control his impulses which have given rise to the situation that brings him back before this court. [ 10 ] The joint submission that I have received, I take it, is based primarily on the report materials to which I have been referred. I can say that each of those reports are comprehensive; they are detailed; they are useful; and they provide, overall, a clear picture of A.H.J..

They make recommendations to the court as to both the means by which A.H.J. can be dealt with in terms of rehabilitation, and they also outline a number of existing medical and some psychological problems that have apparently plagued A.H.J. for a considerable period of time. I won't get into the details, but they are clearly set out in the reports.

I am relying upon those reports in terms of favourably considering the joint submission that is being placed before me. [ 11 ] On the whole of the circumstances, the Crown has very clearly laid out the aggravating factors, which are accepted by defence and which I adopt: the assault itself which, if it did not result in a violent attack, was certainly a jarring attack on the victim; there was a violation of the friendship that had developed between the victim and offender; the offender’s prior record involving offences relating to young woman between the ages of seven and 15, two of whom were granddaughters and two were part of the extended family and the breach of trust that accompanied those particular offences.

The fact that the prior offences occurred over a period of some years in itself gives to some additional concern which would fall within the heading of an aggravating factor. [ 12 ] So the fact is he has those type of offences as part of his prior record. There is also the concern that is reported in both the pre- sentence report and in the psychological assessment report prepared by the Forensic Psychiatric Services Commission, namely a concern about his reoffending and his impulse control.

One aspect of it which is of particular concern to the authors of those two reports is the tendency both in the past and in the present for A.H.J. to shift some of the blame for his behaviour onto the victims. [ 13 ] From a mitigation point of view I accept the following: the early guilty plea, which alleviated the responsibility of the complainant testifying and thus the matter extending for a considerable period of time to be dealt with by the courts; the advanced age of A.H.J., now aged approximately 81, soon to turn 82; his recent attempts to return to counselling to deal with his impulsive behaviour and the sexual nature of that impulsive behaviour; the fact that any custodial sentence in itself, given his advanced age, will not be trifling in

nature - it will represent, by any measure, an extended part of his remaining life; and the fact that through his two private reports, that is, Dr. Ladd's and Mr. Owen's reports, he has expressed remorse, he has expressed shame, and he has shown insight into the considerable negative impact the offence has brought upon himself and his wife and his extended family, and significantly, the vulnerable situation that he leaves his wife in as he faces custodial time. She has had the benefit during her life of the support of friends and neighbours and family.

That support may very well be jeopardized by the criminal actions of A.H.J. in this matter. [ 14 ] Taking into account the submissions I have heard, I agree that had this matter proceeded by way of indictment, that a much longer sentence with penitentiary time would have no doubt resulted. Crown has chosen to proceed summarily in this matter. Therefore a sentence in the range of anywhere from about six to 18 months would likely be appropriate; six months if it were perhaps a first offence, but given the prior convictions, a greater amount of custodial time would be required.

I therefore agree with the joint submission that a 12-month custodial sentence is a fit sentence and is appropriate in all of the circumstances. [ 15 ] Accordingly, I am going to ask A.H.J. to stand. [ 16 ] A.H.J., I have listened to the submissions that have been made. I am taking into account all the factors which have been put before me. I am going to impose a 12-month custodial sentence on you. In addition to that, I have been given a list of conditions which, as indicated to me by both counsel, are appropriate to attach to a three-year probation order following your release.

I must emphasize to you, as you have heard me say to other people today in this courtroom, that probation orders are court orders and they must be abided by, and failure to abide by a probation order could give rise to further charges against you.

So it is necessary that you treat those requirements as requirements and not just treat them as a suggestion. [ 17 ] The terms of the probation order that are being proposed to me by counsel will be in the following terms. [ 18 ] One is to keep the peace and be of good behaviour. [ 19 ] I am going to say within 72 hours of your release from custody you must report in person to a probation officer at Room 118, 420 Cumberland Road, Courtenay, B.C., and you must report thereafter as and when directed by your probation officer. [ 20 ] I am going to impose a further condition.

You must reside in a residence which is approved of by the probation officer and not change that place of residence without the prior written permission of the probation officer. [ 21 ] I am also going to require that you present yourself at the door of your residence and allow access to the residence when requested by a probation officer or peace officer. [ 22 ] I am going to require that you attend, participate in any psychiatric or psychological assessments and/or counselling as directed by a probation officer, including without limitation the sex offender programs. [ 23 ] I am going to make a further condition that you are not to have contact, directly or indirectly, with children under the age of 16 years. [ 24 ] I am going to impose a further condition that you not engage in any activities, volunteer, or employment opportunities involving contact with any children under the age of 16 years. [ 25 ] I am going to impose a further condition that you not attend at or near any playgrounds, school grounds, public parks, public swimming areas, public beaches, community centres, day care centres, or any other areas where children may congregate unless in the company of G.J. or any other adult person to whom you have disclosed your criminal record in the presence of the probation officer. [ 26 ] I am going to impose a further condition that you not be alone with any female of any age, with the exception of G.J., unless you are in the presence of G.J. or unless you are in the presence of another adult person to whom you have disclosed your criminal record in the presence of the probation officer, but you may be in the presence of any adult female who is providing you with medical or psychological or counselling services. [ 27 ] I am going to impose the further condition that you have no contact or communication, direct or indirect, with C.W. [ 28 ] I am going to impose a further condition that you not be within 50 metres of C.W. [ 29 ] I am going to make the additional SOIRA order, and that will be for a duration of 10 years. [ 30 ] This is a primary designated DNA offence.

I will make the order for the DNA order as requested. [ 31 ] As I understand it those are the conditions that are being sought, and the terms of the orders that are being sought. [ 32 ] MR. RICHARDSON: Agreed, Your Honour. [ 33 ] THE COURT: I think the only issue that then remains, is whether the victim surcharge can be waived. This offence occurred, did it not, prior to the change in the legislation in October? [ 34 ] MR. RICHARDSON: It did, Your Honour, yes, so it can. [ 35 ] THE COURT: All right.

So given the sentence of incarceration, (although I do note that in his prior conviction and resulting incarceration there was a victim surcharge imposed), and in these circumstances, given that he is leaving G.J. with a number of other problems, I am going to waive the victim surcharge in this case. [ 36 ] MR. RICHARDSON: Thank you, Your Honour.

[ 37 ] MR. McGARVEY: Thank you, Your Honour. [ 38 ] THE COURT: All right. Is there anything further I need deal with, regarding this matter? Have I covered off all of the requirements? [ 39 ] MR. McGARVEY: I think that's everything, thank you, Your Honour. [ 40 ] THE COURT: All right. Thank you. (REASONS CONCLUDED)