R. v. French Date:, 2015 BCPC 406

Citation: R. v. French Date: 20151119 2015 BCPC 0406 File No: 38371-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PAUL GEORGE FRENCH REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. KEYES BAN ON PUBLICATION 486.4(1) CCC RESTRICTED ACCESS Counsel for the Crown: R. Ross Counsel for the Defendant: M. Reed Place of Hearing: Prince George , B.C. Date of Hearing: November 19, 2015

Date of Judgment: November 19, 2015 [ 1 ] THE COURT: These are my reasons for sentence with respect to Mr. Paul French. [ 2 ] Mr. French has pleaded guilty to sexually assaulting T.W. on June 10th, 2013 in their home community of [omitted for publication], B.C. [ 3 ] In my deliberations, I have had the benefit of a presentence report prepared by Ms. Delores Bazil and a psychiatric presentence report prepared by Dr. Morgan, as well as the submissions of counsel. Circumstances [ 4 ] The circumstances were that Ms. W. was walking home very intoxicated due to alcohol consumption when Mr.

French came along and tried to talk to her. She went home alone and phoned her parents. She was very distraught and called her parents saying she intended to commit suicide. Her mother called the police, and she and her husband started heading over to Ms. W.'s home. [ 5 ] In the meantime, Mr. French phoned Ms. W. and she agreed he could come over for a coffee. They had a cup of coffee, but she was so intoxicated she fell asleep or passed out. She awakened to find Mr. French had his hands in her pants and his fingers were inserted into her vagina.

She recalls that he was jerking his fingers inside her. [ 6 ] About that time, Ms. W.'s parents arrived at the door and began knocking on the door, which they found locked. They had to knock for a while before the door was opened by Mr. French who told them he had rescued Ms. W. from suicide. He said he had cut her down when she tried to hang herself with a wire around her neck. He left immediately. [ 7 ] When Ms. W.'s parents entered the home, they noticed Ms. W. on the floor in the living room and that her pants were slanted or out of place. [ 8 ] When the police arrived, having been informed of Mr.

French's claim that he had rescued Ms. W. from suicide by hanging, they looked for injuries on Ms. W. and evidence consistent with that claim, but found none. [ 9 ] Ms. W. later complained to a police officer about Mr. French's behaviour and the police interviewed Mr. French as a result. In that interview, he reiterated his claim of having rescued Ms. W. from hanging herself and said that he performed CPR on her because she was not breathing.

He eventually admitted sliding his hands into her pants and admitted that he knew it was wrong to do that. [ 10 ] At sentencing, he did not dispute the circumstances as stated by the Crown. I therefore find, for the purpose of sentencing, that Mr. French did insert his fingers into Ms. W.'s vagina when she was passed out or so intoxicated that she could neither resist nor consent. I further find that whether or not Mr. French's assertion that he saved her from suicide is a fabrication, Mr. French knew that Ms.

W. was in an extremely fragile mental state, making comments indicating suicidal intentions that evening and that Mr. French knew that when he committed this offence. Criminal History [ 11 ] Mr. French has a criminal record. It consists of two convictions for sexual assault in 1986. [ 12 ] The only information I have about the circumstances of those offences comes from the presentence report (Exhibit 2) which provides that Mr. French entered the home of the victims in [omitted for publication], the same community, in the middle of the night and sexually assaulted the victims when they were sleeping.

The police report does not state the age of the victims but describes them as "two girls who were extremely shy." [ 13 ] Mr. French told the preparer of the PSR that he did not want to talk about those offences as he had already paid for that crime, but he told Dr. Morgan that he had been framed. Personal History [ 14 ] Mr. French is an Aboriginal person, a member of the [omitted for publication] Band. He is the middle child of eight children born to his parents, Jessie and Charlie French, both deceased. [ 15 ] He is 52 years old.

He is single, having had, he says, only one significant relationship lasting only two years ending in 2012. He has no children. [ 16 ] He told Ms. Bazil, who prepared the presentence report, that he has a Grade 10 education obtained at Prince George Senior Secondary School in Prince George. Mr. French says he quit school in order to help his parents at home. [ 17 ] Community records also indicate that he attended the College of New Caledonia to upgrade his education in 1988 and that he achieved many skills training certificates. His sister, Paige French [phonetic], informed Ms. Bazil that Mr.

French has learning difficulties and required her help to complete those courses. [ 18 ] Mr. French told Dr. Morgan that he visits friends socially but he goes home by 7:00 p.m. and locks his doors. He reportedly keeps to himself. [ 19 ] Mr. French told Ms. Bazil that he had never been sexually assaulted as a child, nor had he suffered any other form of abuse, but then he admitted he was sexually abused at age 12. He told Dr. Morgan that he had been sexually abused by an uncle when he was 13 years old that involved his uncle coming into his room when he was sleeping and digitally penetrating him.

This abuse apparently

carried on for a long time until his uncle died. [ 20 ] At the time the presentence report was prepared, Mr. French was employed by the Band office as a labourer. However, at the time sentencing submissions were made I was informed that Mr. French is employed at a Mercury mine site making $25.00 an hour. His sister Paige says he is smart and handy and fixes people's vehicles on the Reserve. [ 21 ] Mr. French says he began drinking at 18 years old and his consumption became very heavy until he quit 13 years ago. Mr. French said to Dr.

Morgan that he drank heavily because of "what happened to his siblings." I have no information as to what happened to his siblings nor how that caused his abuse of alcohol. He has been sober, however, since then and consumes neither drugs nor alcohol. [ 22 ] He lives alone with his two dogs. He told Ms. Bazil and Dr. Morgan that he is involved in his community and likes to help others in the community, particularly the elders. [ 23 ] Both Mr. Richard Abraham, Mr.

French's cousin, and the drug and alcohol counsellor in [omitted for publication], and Larry Fermanczyk [phonetic] the [omitted for publication] mental health therapist, say that Mr. French is a person who has a tendency to become very angry and becomes very uncomfortable when it comes to talking about women. [ 24 ] According to Ms. Bazil, Mr. Fermanczyk is of the view that Mr. French may have a personality disorder, however, Mr. French says that he is often victimized by community members who call him down a lot and then he retaliates. Mr. French's Circumstances as an Aboriginal Offender [ 25 ] Mr.

French is an Aboriginal man who is a member of the [omitted for publication], Band. [omitted for publication], is a remote community about 180 kilometres north of Fort St. James, B.C. He did not attend residential school, but several of his siblings and his father attended Lejac Residential School for varying periods of time. [ 26 ] His community is very isolated and small, accessible by forest service roads, with a population of about 400.

It has a number of community buildings including a health station, police detachment, motel, gas station, and a community hall called the Potlatch House. [ 27 ] Disrupted in their traditional lifestyle by the efforts of the Catholic Church and residential school, as well as the changes to the hunting and fishing traditions due to watershed changes as a result of the Kenney Dam, the community is working to restore their traditional ways of life within their traditional territories. [ 28 ] Mr.

French attended a five-week "Indian Residential School Trauma Program" in January 2014 despite the fact that he never attended residential school. [ 29 ] Unlike many Aboriginal offenders, Mr. French has no complaints about his upbringing or his childhood. He told Dr. Morgan that his childhood in [omitted for publication], was very happy indeed and that the people who lived there were very nice although he said a teacher in elementary school on the Reserve bullied him. He did tell Dr. Morgan that he was placed in a group home at one point but that he was not badly treated while in foster care.

It appears that he received special assistance in school to help him with learning disabilities. He left school in Grade 10 to assist his parents with their land. He obtained additional post-secondary education through the College of New Caledonia as an adult. [ 30 ] As with many Aboriginal offenders, Mr. French did abuse alcohol for many years from the age of 18 onwards until about 13 years ago. His sister Paige told Ms. Bazil that because Mr. French does not drink, he tends to keep to himself, especially when there are parties in the community involving alcohol. Attitude toward the Offence [ 31 ] Mr.

French's attitude towards the offence is difficult to fathom. When Ms. Bazil addressed this issue with him, he initially denied that he committed the sexual assault of Ms. W. and claimed that his lawyer made him plead guilty. [ 32 ] I find that assertion most peculiar given that the trial had already begun and two witnesses had been called when Mr. French abruptly changed his plea to guilty. [ 33 ] In a second interview, he changed his mind and admitted his guilt although according to Ms.

Bazil his version of events still involved "saving the life of an intoxicated friend who was trying to commit suicide rather than sexually assaulting his intoxicated friend." [ 34 ] In his interview with Dr. Morgan, Mr. French said that Ms. W. had come to his house and asked him for a ride home, talked about suicide and written letters. He said she tried to hang herself with television cables and it took a long time for him to cut her down. He said he did not remember committing the offence but said that her clothes were on. [ 35 ] However, according to his statement given to the police, he walked to Ms.

W.'s house as opposed to driving her there, knocked on the door, heard a thud, and walked in to find her hanging from the bathroom door knob, at which time he performed CPR on her because she was not breathing, but then he also admitted to putting his hand in her pants. [ 36 ] I note a problem for Mr. French is that in this version, the door must have been unlocked when he entered it, but it was clearly locked when Ms. W.'s parents arrived because they found it locked and had to knock until Mr. French opened the door. [ 37 ] Thus, on this version Mr.

French must have taken care to lock the door before proceeding to rescue Ms. W. and put his fingers in her vagina. The obvious inference must be that he locked the door to avoid being disturbed while he committed the offence. [ 38 ] It is obvious that Mr. French cannot be relied on as an accurate historian given the inconsistencies in his own version of events.

There is nothing in the observations of others at the scene to support this rescue version of events, and that is certainly not the versiongiven by Ms. W. [39] It appears to me that the rescue is an invention by Mr. French, aimed at placing him in a better light. Unfortunately, it does notdo so. In my view, it is every bit as aggravating if not more so that Mr.

French would have inserted his fingers into the vagina of anunconscious, perhaps non-breathing woman who has already attempted suicide, as it would be to insert his fingers into the vagina of awoman who is unconscious from alcohol consumption knowing that she has been contemplating suicide. [40] I also note that Mr. French's attitude towards his prior convictions for the sexual assault of two young girls, also a situationapparently involving sleeping victims, is also exculpatory. He told Dr. Morgan that he had been framed. Risk Assessment [41] Dr. Morgan prepared a risk assessment for Mr.

French which indicates that he is at low risk to commit further sexual offences. Dr. Morgan reported that Mr. French wholly or partially endorsed attitudes that condone sexual violence, had problems with self-awareness, problems with stress or coping, and problems resulting from child abuse. Dr. Morgan did not find that Mr. French endorsedanother risk factor which is "denial or extreme minimization" of the offence. [42] Given the versions of the events given by Mr. French to Ms. Bazil, the police, Ms. W.'s parents and Dr. Morgan as outlinedabove, I must respectfully disagree with the conclusions of Dr.

Morgan with respect to denial and minimization. [43] Despite having pleaded guilty, Mr. French has clearly continued to both deny and minimize in turn while presenting himself asthe hero of the piece. Similarly, he presents himself as innocent of his prior sexual offences. [44] In the recent decision of R. v. G.M., 2015 BCCA 165, our Court of Appeal addressed a similar situation as follows: [29] While a party is under no obligation to admit an offence, a continued denial is a material factor to be considered in determiningwhether a party is likely to re-offend.

In B.S.B., there were before the court two reports from psychologists that indicated the accusedposed little or no risk to re-offend. The accused in that case had the same positive history as this respondent. The sentencing judge gaveno weight to those reports because the appellant continued to deny the offence. On appeal, this Court held that the sentencing judge didnot err. This Court stated at para. 36: The appellant's continued denial, and the absence of any insight as to why he committed the offence, significantly diminish theirpsychological opinions as to his future risk. [45] In my view, Mr.

French's attitude does not in any way reduce his likelihood of re-offending, and I feel obliged to give littleweight to the opinion of Dr. Morgan that he is of low risk to re-offend. It seems to me that if Mr. French is willing when completelysober to insert his fingers into the vagina of an unconscious young woman whom he knows is suicidal, there is no reason to believe thatMr. French will not behave in a similar fashion whenever another opportunity to do so presents itself. Positions of Crown and Defence [46] In this case, the Crown proceeded summarily so the maximum sentence is 18 months' incarceration.

The Crown submitted thata sentence of one year's incarceration plus two years' probation is a sentence that meets the objectives of sentencing in this case. [47] The Defence, on the other hand, seeks a sentence of six months and does not dispute that probation should follow. [48] There is no dispute as to the appropriateness of the ancillary orders sought by the Crown, that is, DNA, Sex OffenderInformation Registration Act and firearms prohibition. [49] Ms. Ross submits that the aggravating factors here are that Ms.

W. was extremely vulnerable because she was unconscious dueto intoxication and because she was so distraught that she was suicidal. [50] Another aggravating factor is that Mr. French has a prior record for two sexual offences which in my view bear some similarityto the case at bar. [51] Ms. Ross also pointed out that this offence involving digital penetration was not quite as aggravating as an offence involvingintercourse would have been. [52] Ms. Ross also indicated that the fact that Mr. French is employed is mitigating, although I confess I am not sure why thatshould be.

If he had lost his employment as a result of being charged with offence, that might in some circumstances be mitigating, butthat is not the case here. [53] As mitigating factors, Mr. Reed points out that Mr. French did plead guilty thus sparing Ms. W. the discomfort of testifying andthat Mr. French has now acknowledged his past as a victim and his willingness to undertake counselling. The Law Sentencing Principles [54] I can state the sentencing principles applicable to this case no better than Mr. Justice Pearlman did in the recent case of R. v.E.M.Q., 2015 BCSC 201 , [2015] B.C.J. No. 229.

I will refer to E.M.Q. as follows at paragraphs 39 and 40: [39] Parliament has codified the principles of sentencing in

Part XXIII of the Criminal Code.

Section 718 provides that:

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. [40] Under s. 718.1, the fundamental principle is that a sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. A fit sentence must take into account the nature of the offence, the character of the offender, and thecircumstances surrounding the commission of the offence: R. v.

Shropshire, (SCC), [1995] 4 S.C.R. 227 at para. 18.Although past cases can provide guidance, each sentence depends on the particular circumstances of the specific case and the particularoffender. [55] Mr. Justice Pearlman also said at paragraph 44: [44] Another statutory aggravating factor, as provided in s. 718.2(a)(iii.1), is evidence that the offence of sex – Sorry, I will just delete that part.

I have got something in there that should not be there. [56] We will go to paragraph 45: [45] I also bear in the mind that the sentence I impose should be similar to sentences imposed on similar offenders for similar offencescommitted in similar circumstances. [57] And paragraph 46: [46] Under s. 718.2(e), all available sanctions other than imprisonment that are available in the circumstances should be consideredfor all offenders, with particular attention to the circumstances of an Aboriginal offender. [58] Then Mr.

Justice Pearlman said with respect to sentencing Aboriginal offenders at paragraph 47: [47] The principles relating to sentencing Aboriginal offenders discussed in R. v. Gladue, (SCC), [1999] 1 S.C.R.688, were affirmed by the Supreme Court of Canada in R. v. Ipeelee, 2012 SCC 13 at paras. 56-87. Mr. Justice LeBel summarized thedecision in Gladue at para. 59: The Court held, therefore, that s. 718.2(

e) of the Code is a remedial provision designed to ameliorate the serious problem ofoverrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorativeapproach to sentencing…. It does more than affirm existing principles of sentencing; it calls upon judges to use a different method ofanalysis in determining a fit sentence for Aboriginal offenders.

Section 718.2(

e) directs sentencing judges to pay particular attention tothe circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginaloffenders…. When sentencing an Aboriginal offender, a judge must consider: (

a) the unique systemic or background factors which mayhave played a

part in bringing the particular Aboriginal offender before the courts; and (

b) the types of sentencing procedures andsanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage orconnection…. Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, butadditional case-specific information will have to come from counsel and from the pre-sentence report…. [59] Then he goes on with respect to paragraph 48: [48] However, the application of Gladue principles does not mean that Aboriginal offenders will necessarily receive shorter sentences. [60] In R. v.

R.R.M., 2009 BCCA 578, the Court provided the following direction on sentencing Aboriginal offenders for sexualoffences at paragraph 24: [24] The sentencing of Aboriginal offenders for serious sexual assaults, where there is evidence that they have suffered from historicaland systemic abuses, is not an easy task.

This Court has observed that in sentencing Aboriginal offenders, while judges must be "sensitiveto the conditions, needs and understandings of Aboriginal offenders and communities, this does not mean that sentences for suchoffenders will necessarily focus solely on restorative objectives or give less weight to conventional sentencing objectives such asdeterrence and denunciation." See R. v. Morris, 2004 BCCA 305 at para. 55….

Chief Justice Finch further noted at para. 53 that Gladuemade clear that it was not the principles of sentence that varied in sentencing Aboriginal offenders but the application of those principlesto a particular case. In Gladue (at para. 80), the Court further stated that: As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or case-by-case) basis: for thisoffence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code? [61] Turning then to mitigating factors.

Mitigating Factors [62] As an acknowledgement of responsibility, a guilty plea is considered to be tangible evidence of remorse and the first steptoward rehabilitation. As such, it is mitigating, that is, the sentence that might otherwise be imposed can be reduced because theoffender has demonstrated that he has already addressed at least some of the principles of sentencing. [63] Further, a guilty plea may be mitigating where the plea comes early enough to spare the citizens of this country the expense ofpreparing for trial and engaging in the trial process itself.

It seems to me that a guilty plea may be particularly mitigating, especially incases of sexual offences if it is early enough, not only to save the victim from having to testify, but also to spare the victim having to liveunder the cloud of suspicion over her head caused by the accused's denial of guilt. [64] In this case, it is a mitigating factor that Mr. French did plead guilty before Ms. W. was obliged to testify, but it must beremembered that this change of plea occurred only after the trial began and two witnesses were called to testify. Ms.

W. had to live withthe expected trial pending for more than a year and had to prepare to attend for trial and the public was saved very little, if anything, interms of expense and trouble by a plea this late in the process. [65] I also note that Mr. French's admission to the police that he put his hand in the victim's pants would appear to have mademaintaining his not guilty plea at the trial doomed to failure.

A guilty plea in those circumstances may be no more than anacknowledgement of the inevitable and this is accorded less weight than a plea early in the process in circumstances where the outcomeis uncertain (R. v. Spiller (1969), (BC CA), 4 C.C.C. 211 (B.C.C.A.) and R. v. Bruce (1982), (PESCAD), 28 C.R. (3d) 247 (P.E.I.S.C.)). [66] While I agree that Mr.

French's willingness to engage in counselling at this point is somewhat positive, I note that hiswillingness to do so seems to have more to do with self-pity, that is, seeing himself as a victim than it does with acknowledging the harmhe has done to the victim or his need for self-improvement. Aggravating Factors [67] I agree with the Crown that the aggravating factors here included that Ms. W. was in an extremely vulnerable state, distraught,intoxicated, suicidal, and ultimately unconscious when Mr. French perpetrated this offence. Knowing her condition, Mr.

French placedhimself in her home apparently in the guise of a friend and took advantage of her vulnerability to commit this offence. [68] Although this offence did not involve intercourse, it involved digital penetration and was a gross violation of her personaldignity and bodily integrity. She awakened while it was under way. [69] Although I did not have the benefit of a victim impact statement, it is clear from the circumstances that Ms. W. was terriblydistraught when her parents and the police arrived, so distraught in fact that she was unable to tell the police what happened until a fewdays later.

Range of Sentence [70] Ms. Ross provided me with the following cases to assist in sentencing: 1. R. v. Wells, 2000 Supreme Court of Canada [71] In this case, the 18-year-old victim was asleep or unconscious due to alcohol intoxication as in the case at bar. Mr. Wellssexually assaulted her, causing abrasions to her vagina, although there was no evidence of penetration. He was convicted after a trial. The victim suffered hurt and humiliation when she learned of the event the next morning. She was Aboriginal, as was the offender. Mr.Wells had prior convictions for assault but not sexual assault.

His sentence of 20 months was upheld by the Supreme Court of Canada asa fit sentence taking into account his particular circumstances as an Aboriginal offender. 2. R. v. Eustache, 2014 BCCA 337 [72] In this case, the offender was a 51-year-old Aboriginal man who was a survivor of residential school. After an evening ofdrinking, he removed the bottoms of the unconscious 18-year-old female victim and was rubbing his genitals on hers when he wasinterrupted by the victim's cousin. He had a difficult childhood marked by sexual abuse, neglect, and presumably parental alcoholism.

He had a dated criminal record for drunk driving offences and one for assault of the victim's mother when she refused to have sex withhim.

The sentencing judge noted that his difficult childhood and residential school experience affected his overall moral culpability. [73] The Court of Appeal upheld the sentence of one year followed by two years' probation imposed in that case, noting that theupper end of the sentencing range for this offence would have been three years. [74] Although this is similar to the case at bar with respect to its general circumstances, in my view there are some pertinentdistinguishing features which render the case at bar more serious, both in terms of the circumstances of the offence and of the offender. Unlike Mr.

Eustache, Mr. French was completely sober and thus not subject to the disinhibiting effects of alcohol consumption andunlike the Eustache case, where there was no evidence of penetration, Mr. French did digitally penetrate the victim. [75] Although both Mr. Eustache and Mr. French were reportedly victims of sexual abuse as children, Mr. French's circumstances asan Aboriginal offender were not by his own report anything like as difficult as those of Mr. Eustache. He did not attend residentialschool and he said his childhood was very happy. [76] Finally and most importantly, unlike Mr. French, Mr.

Eustache had no prior convictions for sexual assault. 3. R. v. Casilimas, 2013 ONCJ 211

[ 77 ] The Ontario Court of Justice imposed a sentence of 15 months followed by three years' probation on an offender who had intercourse with a young woman who was extremely intoxicated. Although she had expressed her willingness to have sex, the Court found that she was so obviously intoxicated that the offender was wilfully blind in acting on her stated consent, noting that she apparently passed out during the act. The offender had a dated, unrelated criminal record, and was not Aboriginal. 4. R. v. Yamelst , 2013 BCSC 169 [ 78 ] The B.C.

Supreme Court imposed a sentence of 18 months plus 18 months' probation on a 24-year-old Aboriginal man who had a tragic background having lost his mother in an accident and having been abandoned by his father. In that case, the victim was asleep and woke to find the offender having intercourse with her. The offender was intoxicated at the time and remembered little.

The offender was convicted after a trial. [ 79 ] Although the circumstances of this case are more serious in that it involved sexual intercourse and there was no mitigating effect of a guilty plea, the offender's circumstances were less aggravating than those of Mr. French as he was much younger and had no related criminal record. [ 80 ] I have also found guidance in two additional recent decisions of our Court of Appeal, R. v. Rosenthal , 2015 YKCA 1 , and R. v. Berry , 2015 BCCA 210 . [ 81 ] In Rosenthal , the Yukon Court of Appeal, which is also the B.C.

Court of Appeal, held that there was no logical reason to exclude cases of digital penetration from the range of sentence for sexual assault involving intercourse because it is "a serious and invasive form of sexual assault" (paragraph 8). The sentence in that case was 14 months for a youthful offender with no record. [ 82 ] In Berry , the offender received a sentence of two years for sexual assault by digitally penetrating his common law partner while she was sleeping, and a consecutive nine-month sentence for voyeurism.

In that case, the digital penetration came to light when the victim discovered the videotapes the offender had made of his actions. [ 83 ] On appeal, the defence contended that a fit sentence for the sexual assault was 12 months. The Court of Appeal disagreed as follows: [27] The ultimate question for this court is whether the total sentence of two years and nine months was demonstrably unfit. The appellant contends that two years for the sexual assaults was demonstrably unfit, and that 12 months would be a fit sentence. I disagree. As Willcock J. (as he then was) observed in R. v.

Yamelst , 2013 BCSC 1689 at para. 26 , "[u]nfortunately, sexual assaults on sleeping and impaired or intoxicated women are so common that there are a considerable number of comparable cases" that can be considered. [28] In my opinion the respondent's cases are of more assistance in determining the range of sentence for sexual assault in this case: Gauthier (3 years), Dycho (3 years), Wells (20 months), Goodliffe (27 months), and Rosenthal (14 months).

The circumstances of the offence and the offender are more serious here than in Rosenthal , where the victim, in a lone incident, woke up to discover the offender had digitally penetrated her, whereupon she removed his hand and left the room. [29] The trial judge considered the appellant's conduct to be highly invasive and prolonged. When she compared the offence to that in Dycho she had the unusual advantage of seeing the actus reus of the offence.

The sentence imposed here for sexual assault was appropriately less than that imposed in Gauthier and Dycho . [30] The offender in Rosenthal was young, had no criminal record, and his risk assessment showed a low risk of recidivism with no deviant sexual preferences. Here the appellant's conduct was not spontaneous, involved planning, and was repeated. He shows a low- moderate risk of recidivism but met the full criterion for sexual deviance based on the number of victims and the number of deviant activities in which he was engaged. [31] In R. v.

G.M. , 2015 BCCA 165 the court noted that range for sexual assault involving intercourse was 2-6 years. The court in R. v. William , 2014 BCSC 1639 did not have the benefit of that decision. It was also dealing with a very young aboriginal first offender with a dependent relative.

Decision [ 84 ] In my view, the circumstances of this case are very aggravating, requiring a sentence which clearly and unequivocally declares the denunciation and condemnation of society for this sort of offence. [ 85 ] While the objective of rehabilitation remains present on the assumption that a rehabilitated offender will be less likely to re- offend, it is apparent that the rehabilitative sentence of a suspended sentence with three years' probation imposed on Mr. French for his previous sexual convictions had no such effect. [ 86 ] Mr.

French while entirely sober insinuated himself into the home of a young woman after he discovered her to be extremely intoxicated and distraught to the point of expressing suicidal intentions. [ 87 ] I am of the view that the story of rescuing her from suicide is a self-aggrandizing fabrication likely invented at first to explain his presence at Ms. W.'s home and to explain why he did not answer the door immediately when her parents arrived and later maintained in an effort to cast himself as a hero instead of a villain.

Whatever his reasons, the fact that he has maintained this story is evidence to me that he has no insight whatsoever into the gravity of his violation of the victim's dignity and personal integrity. I have no doubt that he will continue to maintain this myth of heroism in the same way that he refuses to acknowledge his responsibility for the sexual offending of which he was previously convicted. [ 88 ] In considering Mr. French's personal circumstances, I note that he claims to have been sexually abused as a child by an uncle. While I pity Mr.

French having had to suffer that violation of his dignity and his personal integrity as a vulnerable child, that fact makes

it even more troubling that he would knowingly abuse another vulnerable person in a very similar way and have no apparent empathy for the trauma caused to her. [ 89 ] In that regard, I note that this is not the first time that Mr. French has been convicted of sexual assault. This is his third conviction. Ms. W. is his third victim. The fact that he both angrily acknowledged to Ms. Bazil that he served his punishment for his prior convictions but also claims to Dr.

Morgan that he was framed, indicates to me that he has not accepted responsibility for his prior offences and has not internalized any rehabilitative effect from the sentence of three years' probation that was imposed on him for those offences. [ 90 ] Given Mr. French's denial and minimization of his offending behaviour, as I mentioned previously, I am unable to give much weight to Dr. Morgan's assessment of Mr. French's low risk to re-offend. [ 91 ] It seems to me that Mr.

French has no insight whatsoever into his offending behaviour despite his previous convictions and in that circumstance I view the likelihood of his re-offending as considerable. [ 92 ] I have considered Mr. French's circumstances as an Aboriginal offender. While members of his family suffered the displacement and denigration consequent on attending residential school, Mr. French did not. He attended school in [omitted for publication] until high school when he attended Prince George Regional Secondary School.

He received special assistance for his learning disabilities and although he quit school at Grade 10 at the request of his parents, he attended post-secondary education at the College of New Caledonia.

It does not appear to me that he has been denied educational opportunities and indeed he has been regularly employed. [ 93 ] As far as his childhood is concerned, he says his childhood in [omitted for publication] was happy. [ 94 ] Although substance abuse is unfortunately very common in the Aboriginal community and very often the offences committed by Aboriginal offenders are committed under the influence of some substance that is not the case with Mr. French. He has been sober for 13 years. Clearly, the fact that his victim was apparently suffering from intoxication cannot be a mitigating circumstance for Mr.

French. [ 95 ] The range of sentence established by the Wells, Eustache and Yamelst cases in generally similar circumstances for Aboriginal offenders was 12 to 20 months' incarceration. In Eustache , the B.C. Court of Appeal noted that the range went as high as three years. The Court of Appeal in Berry confirmed that the appropriate sentence was two years for an offender with no record. [ 96 ] For the reasons given earlier, I find that Mr.

French's personal circumstances and particularly his status as an offender with two prior convictions for sex assault are considerably more aggravating than those of the offenders in those cases. On the other hand, Mr. French has, albeit very late in the proceedings pleaded guilty. [ 97 ] In my view, an appropriate sentence for Mr. French would have been in excess of two years. However, given that the Crown has proceeded summarily, the maximum sentence I can impose by law is 18 months. [ 98 ] I therefore sentence Mr.

French -- if you could stand up, sir, please -- to 18 months' incarceration followed by two years' probation. I make a recommendation that he serve his sentence at the Ford Mountain Correctional Centre. [ 99 ] Mr. French, you can sit down again. I am going to go through probation terms. [ 100 ] The terms of probation will be as follows: • Madam Clerk, 100P: You shall keep the peace and be of good behaviour. You shall appear before the Court when required to do so by the Court.

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. • 102P: Within 72 hours after completing your jail sentence you shall report in person to the probation office located nearest to the place of your release from custody and after that you shall report as and when directed by the probation officer. • 105P: When first reporting to the probation officer, you shall inform him or her of your present residential address and phone number and you shall not change your address or phone number at any time without first providing written notice to your probation officer. • 116P: You shall have no contact or communication, directly or indirectly, with T.W.. • 121, Madam Clerk: You shall not attend at or be within 20 metres of any place which you know to be the residence, school or workplace of T.W.. • 142P: You shall attend, participate in and successfully complete any such assessment, counselling, or program as directed by the probation officer, and without limiting the general nature of this condition, such assessment, counselling or program may include and relate to sexual offence prevention, and you shall comply with all rules and regulations of any such assessment, counselling or program. • 123, Madam Clerk: You shall not possess or consume any alcohol or any controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act except as prescribed for you by a physician. [ 101 ] Now, this is a DNA primary designated offence and I will make a DNA order.

It is Picklist No. 161, Madam Clerk. 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 samples of bodily substances by any peace officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the National DNA Databank from – I want to get your full name, sir – Paul George French, by December 15th, 2015.

[ 102 ] Now, with respect to the firearms prohibition. Again, it is mandatory under s. 109 of the Criminal Code for this offence, 164 Madam Clerk. You are prohibited from possessing any firearm other than a prohibited firearm or a restricted firearm and any crossbow, restricted weapon, ammunition and explosive substance for a period of ten years, and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 103 ] Now, with respect to the SOIRA order. Ms. Ross, do you have a draft or has it already been put into a file? [ 104 ] MS.

ROSS: I did hand one up at the sentencing hearing, but I do have a copy of it. Unfortunately, there is just the August 18th date is on the bottom of it, can I just cross it out? Does Your Honour wish to see it or should I – [ 105 ] THE COURT: Well, it is something I have to sign. It is also something Mr. French has to sign. [ 106 ] MR. REED: If Mr. French will sign it at this time. Mr. French, step forward. Madam Court Clerk. [ 107 ] THE CLERK: Thank you. [ 108 ] THE COURT: Okay; and this order will be effective for life. [ 109 ] All right.

Now, the one thing I wanted to ask counsel whether it is requested or important is an in-jail no contact order. That is a provision available under the Code . I do not know whether that is something that you feel is important in the circumstances. [ 110 ] MR. REED: If my friend were to ask for that, we would not oppose that. [ 111 ] MS. ROSS: I will ask for that. [ 112 ] THE COURT: I forget which

section of the Code it is in; it is in the 740's I think, but I am not sure. I think it is 743.21. [ 113 ] MS. ROSS: Yes, I believe so, Your Honour. [ 114 ] THE COURT: All right. Well, I will make an order pursuant s. 743.21 that Mr. French have no contact, no communication, directly or indirectly, with T.W. during the time that he is in custody. All right? [ 115 ] MR. REED: Thank you, Your Honour. [ 116 ] MS. ROSS: Thank you, Your Honour. (REASONS FOR SENTENCE CONCLUDED)