R. v. T.A.D. Date:, 2016 BCPC 317

Citation: R. v. T.A.D. Date: 20160627 2016 BCPC 0317 File Nos: 81867, 82807 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. T.A.D. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G.J. BROWN BAN ON PUBLICATION s. 486.4(2) CCC Counsel for the Crown: E. SabouUIrin Counsel for the Accused: I. Ferbey Place of Hearing: Abbotsford , B.C.

Dates of Hearing: October 28, 29, 2016, January 14, June 13, 2016 Date of Sentence: June 27, 2016 Introduction: [ 1 ] THE COURT: These are my reasons in the sentencing of T.A.D. He is being sentenced for the following two sexual offences: number one, under file 81867-1, on June 14th, 2014, T.A.D. sexually assaulted A.M. who was then 14 years old, contrary to s. 271(1) of the Criminal Code .

That matter proceeded by indictment, and following a trial, I found T.A.D. guilty on January 14th, 2016, with supplemental reasons on April 27th, 2016. [ 2 ] Number two, under file 82087-1, sometime in July of 2014, T.A.D. sexually assaulted G.M., who was then 16 years old, with a weapon, contrary to s. 272(2)(b). That matter also proceeded by indictment and T.A.D. entered a guilty plea February 9th, 2016.

T.A.D. was 19 years old when both these offences occurred. [ 3 ] It is important to put these two sexual offences in context because T.A.D. in fact committed four sexual offences against four different complainants within a four-month period in 2014. As I said, he was then 19 years old, but I hasten to add that his intellectual ability is in the extremely low range, likely due to Fetal Alcohol Syndrome and other factors. [ 4 ] T.A.D. has already been sentenced for two of the sexual assaults which actually occurred after the two sexual offences I am dealing with.

He sexually assaulted D.F. on August 22nd, 2014 and on January 28th, 2015, he received a conditional sentence of 12 months, taking into account some six months already served, and he was placed under three years of probation. This offence against D.F. was a serious sexual assault involving violence during a game of hide and seek. Penetration was attempted, but not achieved.

Because T.A.D. has been incarcerated, the conditional sentence has not begun and will not start until all his jail time is served. [ 5 ] T.A.D. also sexually assaulted M.B. on September 29th, 2014 at a bowling alley, and that offence involved forceful kissing, with some use of violence. On July 27th, 2015, T.A.D. received a 15-month jail sentence, less nine months’ time served. He is also to be under a probation order for three years.

He served that jail sentence until November 26th, 2013, after which he remained in remand, pending the outcome of the two files I am now dealing with. [ 6 ] Regarding the two subsequent sexual offences, I am following the reasoning in R. v. Morgan ,

(2004) BCCA 628. These two sexual offences postdate the ones I am dealing with, so they cannot be considered as a prior record for sentencing purposes. However, they are relevant in my assessment of T.A.D.'s character, likelihood of rehabilitation, the need for specific deterrence and the need to protect the public. These sexual offences are committed in a manner which includes violence or threats, but they are opportunistic as opposed to premeditated. Further, they are committed in part because T.A.D. misreads social cues due to his cognitive limitations. Nevertheless, he knows right from wrong.

In the most recent Pre-Sentence Report, he says at page 7 he understands why he was wrong, although it is clear he has difficulty understanding appropriate sexual boundaries and proper behaviour with women. Circumstances of the two Offences for which T.A.D. is now being sentenced: [ 7 ] Number one, file 81867 involving A.M. I heard the trial of this matter, and I will not repeat my reasons for judgment here. T.A.D. knew A.M. because they lived in the same foster home previously. [ 8 ] On June 14th, 2014, the two of them met at a church function in Abbotsford and two incidents occurred that day.

During the first incident, T.A.D. suggested to A.M. that they go for a walk in a wooded area, and A.M. agreed. A.M. herself was a troubled youth who made poor decisions. While in the woods, T.A.D. began to strangle A.M. from behind and he also tried to pull her pants down. A.M. smacked T.A.D. in the neck and successfully resisted his attempted assault, although she had earlier said he did not have to hurt her to get what he wanted. [ 9 ] Later that day, A.M. unfortunately agreed to again go with T.A.D. into the same wooded area. T.A.D. was offering her marihuana.

The two of them went off the trail and T.A.D. eventually asked A.M. to take her pants off. A.M. resisted and said, "Who the fuck do you think you are?" and "You're not my fucking boss." T.A.D. then told A.M. to lay down and take her pants off or he would kill her. A.M. felt threatened and ultimately said that if T.A.D. did his business, he should let her go and never talk to her again. T.A.D. had full sexual intercourse with A.M., but was not then physically violent.

I found that the Crown had proven beyond a reasonable doubt that T.A.D. had sexual intercourse with A.M. without her consent. [ 10 ] A.M. was, at the time, 14 years old, but she had told T.A.D. her age a year prior when they were in the same foster home. T.A.D. was about six years older than A.M. The Crown has also pointed out that T.A.D. was previously bound by a peace bond in relation to A.M. because of some inappropriate touching in the foster home.

The peace bond is not a criminal conviction, and the incident will not weigh heavily in my decision, though it points to a history of problems with the same complainant. [ 11 ] Number two, file 82087-2, involving G.M. At the time of this offence in July of 2014, G.M. was slightly older than A.M. G.M. was 16. G.M. was in Ravine Park in Abbotsford with two of her male friends and T.A.D. G.M.'s two friends left the area and G.M. was left alone with T.A.D. G.M. was not flirtatious. One of the male friends left a knife behind, perhaps to build a campfire.

As G.M. was walking away from T.A.D., T.A.D. held the blade of the knife to her throat. She said he said at least the words, "Don't fuckin' move," although G.M. says he also said, "Or I'll cut you." Even if I disregard the last phrase, the threat of violence was a serious one. T.A.D. then put his hand down G.M.'s shorts and started to kiss her. T.A.D. engaged in vaginal intercourse. T.A.D. held the knife for most of the sexual assault, and G.M. remembered staring at the knife during intercourse. G.M. pretended to enjoy the sexual intercourse because she was fearful of being killed. Subsequent Convictions:

[ 12 ] Number one, file F1451-1, involving D.F. On August 22nd, 2014, D.F. was visiting with friends at an Abbotsford home on large property. T.A.D. also arrived, although D.F. did not know him well. The young people decided to play hide and seek, and D.F. ended up in a forested area. T.A.D. followed her. T.A.D. came up behind D.F. and put his arm around her neck. He told D.F. to lie on the ground and covered her mouth. He also hit D.F. in the lip. T.A.D. took off D.F.'s pants and D.F. tried to scream, but her mouth remained covered. T.A.D. was trying to penetrate D.F., but D.F. was able to lean forward.

She asked T.A.D. why he was doing this and did he realize what he was doing. T.A.D. pulled up his pants and ran. D.F. screamed and ran to the neighbour's. She had blood on her face. D.F. was 16 or 17 years old, and again, T.A.D. was aged 19. As stated earlier, T.A.D. was sentenced to a conditional sentence order and three years’ probation for this offence, taking into account six months’ time served. [ 13 ] Number two, file 81659-1, involving M.B. This offence is the least serious of the four, but it is, nevertheless, alarming. On September 20th, 2014, M.B. was working at a bowling alley in Abbotsford.

T.A.D. and his friend were customers, and M.B. had met T.A.D. previously. The bowling alley closed at 11:30 p.m. and M.B. and her manager were cleaning up. T.A.D. came to the door of the bowling alley and asked to use the bathroom. M.B. let T.A.D. in, and she was not fearful as she felt T.A.D. was an immature or mentally challenged person who was harmless. T.A.D. went into the washroom and then watched M.B. cleaning. M.B. ended up cleaning a bathroom stall, and T.A.D. followed her in.

T.A.D. grabbed M.B. by the neck with his hand and said, "Don't say anything and don't scream." He leaned into M.B. and kissed her, and he also had a hand over her clothing in the vaginal area. Fortunately, the manager walked in and told T.A.D. to leave. T.A.D. had painter's tape and a knife on his person. [ 14 ] As stated previously, T.A.D. was sentenced to 15 months jail, less nine months time served for that offence. His date of discharge was November 26th, 2015. He is also subject to a lengthy probation order.

Victim Impact: A.M.: [ 15 ] I had already observed that A.M. was a troubled young woman engaged in risk-taking behaviours. Unfortunately, this teenaged girl had previously been sexually assaulted by someone else. In the April 2016 Pre-Sentence Report, A.M. says she had been cutting herself every day after the June 2014 sexual assault. She was crying and having bad dreams. She took some counselling, and I am glad to hear she feels she is doing better and is no longer cutting herself. G.M.: [ 16 ] G.M. wrote a heart-wrenching letter dated April 21st, 2016.

Since the sexual assault, she feels unsafe walking down the street and has a constant feeling of panic. She is easily startled and can quickly go into attack mode. T.A.D. haunts her, and no one can hold a knife near her. Unfortunately, G.M. started binge drinking and using marihuana to deal with her feelings. She stole her mother's antianxiety pills and almost overdosed. G.M. has trouble focusing and this has affected her schooling. G.M. also expressed the same concerns to me in open court. I commend her for her courage to come forward. She has feelings of fear and abandonment, and even worse, hopelessness.

I hope she can find the strength to move forward because she is a person who expresses herself very well and she has a lot to contribute to this world. Circumstances of the Offender, T.A.D.: [ 17 ] No matter what sentence is pronounced here, I wish to say at the outset that it is to T.A.D.'s advantage that he has the support of his foster parent, L.L. I appreciate that there are some concerns about her ability to supervise T.A.D. in the community, but T.A.D. needs the support of a loving, caring home. His life is already full of so many disadvantages.

He has lifelong cognitive limitations, and moreover, he was abused in a former foster home. To make matters worse, he has recently been sexually abused while incarcerated. T.A.D.'s circumstances in no way excuse his sexual offending, but those circumstances offer some explanation as to why he did what he did. The December 2014 and April 2015 Pre-Sentence Reports: [ 18 ] Ms. Koebel has prepared the above two Pre-Sentence Reports and provided a detailed account of T.A.D.'s circumstances. There were reports that T.A.D.'s mother consumed alcohol during pregnancy and T.A.D. is diagnosed with Fetal Alcohol Syndrome.

However, T.A.D. believes his mother did not drink, but suffered from the same mental health issues he does. As mentioned above, T.A.D. was in one foster home where he was physically, psychologically and sexually abused. He has been in L.L.'s foster home since he was 16 until the time he was incarcerated. Ms. L.L. visits him regularly while he has been incarcerated. [ 19 ] T.A.D. has two siblings and many foster siblings. Unfortunately, while he was in custody, one of his foster siblings was killed in a hit-and-run accident. According to Ms. L.L., T.A.D. has no problem finding girlfriends, as he presents well.

T.A.D. does admit to misreading the cues of certain women and he admits to not being good with boundaries. Ms. Koebel had some concerns that Ms. L.L. is too defensive of T.A.D.'s offending behaviour and that she does not recognize the severity of the offences. [ 20 ] Community Living B.C. does not have the funding to place T.A.D. in a home with 24-hour supervision. According to both T.A.D.'s counsel and the Pre-Sentence Reports, T.A.D. has benefited from programming while being in custody.

He is currently taking a Chemistry 11 course and his marks were remarkably good; however, T.A.D. has not been able to engage in any sexual offender programs. He has taken substance abuse programs, healthy relationship programs and a violence prevention program. [ 21 ] Under the behavioural and emotional status segment of the most recent Pre-Sentence Report, it is said that T.A.D. has struggled with problematic behaviour issues throughout his life. He has been diagnosed with Attention Deficit Hyperactivity Disorder, mild retardation and Fetal Alcohol Syndrome.

Previously T.A.D. was on medication, and both he and Ms. L.L. felt that T.A.D.'s not being on medication was a contributing factor to his offending. [ 22 ] In addition to the above diagnoses, Dr. Lewis now believes T.A.D. meets the criteria for Post Traumatic Stress Disorder and Major Depressive Disorder.

[23] With respect to T.A.D.'s understanding of his offences, I reiterate that he now states he understands why he was wrong. However, he goes on to say, "Some girls like to play head games, so he is not sure if they mean no." Ms. Koebel was of the view T.A.D.has problems understanding the impact his behaviour has had on the victims. Psychiatric Reports: [24] Three psychiatric reports have been prepared by Dr. Lewis for T.A.D. In her most recent report dated April 19th, 2016, Dr.Lewis opines at page 6 that T.A.D. would be a high risk for future sexual offending.

His sexual offending is opportunistic in nature andit is strongly linked to his cognitive deficits, particularly his difficulty with social cues and impulsivity. [25] Importantly, there is no evidence to support a diagnosis of paedophilia for T.A.D., or that he is a particular risk to offend againstindividuals under the age of 16. He thought A.M. was older than her stated age. [26] Defence counsel properly points out that Dr. Lewis is of the view T.A.D. would benefit from high-intensity sexual offendertreatment, preferably based in the community.

T.A.D.'s cognitive deficits make it unlikely he would benefit from the typical sexualoffender treatment programs offered within a correctional setting. Letter from T.A.D.: [27] T.A.D. wished to address the court by printing a letter to the presiding judge. His spelling and sentence structure demonstratethat he has some intellectual limitations. He expresses that he is truly sorry for what he has done and he knows that is not enough. He istrying to get the help he needs so "this stuff" will never happen again. He wants to change his life when he gets out.

Sentencing Positions: [28] The Crown is seeking a global sentence of five years, less time served. The Crown is seeking two-and-one-half years for eachoffence, to be served consecutively. These sentences are said to be in the low range, taking into account T.A.D.'s somewhat diminishedculpability. Ancillary orders are also sought. [29] Defence counsel submits that a global sentence of five years is unduly harsh, especially when one takes into account that theseare T.A.D.'s first offences and that he is a youthful offender and that he has cognitive limitations.

Overall, defence counsel submits thatthe two-and-a-half-year sentences ought to be served concurrently. Sentencing Principles: [30] To begin with, I should say that the sexual assault under s. 271(

a) involving A.M. carries a mandatory minimum jail sentence ofone year, and a maximum of ten years. This is because A.M. was 14 years old at the time of the offence. [31] The sexual assault with a weapon under s. 272(2)(

b) involving G.M. carries no minimum and has a maximum of 14 years. [32] Of course I must bear in mind all the sentencing principles under s. 718 of the Criminal Code, proportionality under s. 718.1,and aggravating and mitigating circumstances under s. 718.2. The totality principle must then come into play. [33] Our Court of Appeal in R. v. Pouce Coupe,

(2014) BCCA 255, provides some current guidance as to the range of sentence for asexual assault involving intercourse. The sexual assault in that case was more violent that the offences here, in that Mr. Pouce Coupethrew the victim to the ground and forced her to have sexual intercourse, with one hand around her neck. However, T.A.D.'s offences didinvolve either a threat or the use of a knife, and he also engaged in full sexual intercourse. [34] At paragraph 31 of Pouce Coupe, it is conceded that the appropriate range of sentence for sexual assault involving intercourseis two to six years.

The court there upheld a three-year sentence, and the Crown, in T.A.D.'s case, concedes that T.A.D. warrants asentence in a lower range, due to his young age and his cognitive deficits. [35] The Provincial Court case of R. v. Schinkel,

(2008) BCPC 76 is useful because Judge Gulbransen discusses the sentencingprinciples under s. 718 in relation to sexual assault. This case involved a more prolonged sexual assault than those committed by T.A.D.,and forcible confinement was also involved. The court ruled that the most important principles were to isolate Mr. Schinkel from thepublic so that the public cannot be harmed, and specific deterrence. Denunciation was also important, but rehabilitation had to beconsidered.

Judge Gulbransen held that this kind of forced sexual assault required a sentence in the range of four to six years. [36] Defence counsel really does not take issue with a general range of sentence between two to six years for the sexual offencescommitted by T.A.D.; however, he emphasizes three factors which ought to be considered in sentence. First, T.A.D. is a youthfuloffender, being sentenced for his first two offences. As I discussed earlier, I can consider T.A.D.'s later two convictions, but they do notconstitute a prior record. [37] The well-known case of R. v.

Priest, (1996) (ON CA), OJ 3369 discusses youthful first offenders atparagraph 17. The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Even where a custodialsentence is appropriate, as it is with T.A.D., a first sentence of imprisonment should be as short as possible and tailored to the individualcircumstances of the accused, rather than solely for the purpose of general deterrence (see paragraph 23 of Priest). [38] I accept that I am sentencing T.A.D. as a youthful first offender, but as I said earlier, I must put his offences in context.

He isbeing sentenced for two very serious sexual assaults, and I can consider that he later committed two further sexual assaults. The need toprotect the public, and denunciation, become elevated in these circumstances. [39] Secondly, defence counsel submits that T.A.D.'s cognitive limitations reduce his moral culpability. The case of R. v. Friesen,

(2016) MBCA 50 summarizes this principle at paragraph 26. An offender's moral blameworthiness may be reduced if he suffers from an

FASD-related diagnoses and there is a connection between the condition and the offence. [40] I accept that T.A.D.'s cognitive limitations, likely due to FAS, contributed to these sexual offences. The psychiatric reportsmake it clear he seriously misreads cues and misunderstands the behaviour of women.

That said, T.A.D. made threats to kill A.M. andhe held a knife to G.M.'s throat, so even if that level of impulsivity can be explained by FAS, rehabilitation must be explored verycarefully, with the protection of the public in the forefront. [41] I also appreciate that T.A.D.'s sex offender treatment would be better achieved in the community, but this can be managed whenhe is eventually released from custody and the prior conditional sentence and probation orders will then apply. [42] Finally, there is the totality principle.

Defence counsel suggests a five-year total sentence is unduly harsh, especially when oneconsiders that T.A.D. was already sentenced to 15 months for the sexual assault against M.B., and he spent six months in custody for theoffence against D.F. before the conditional sentence was imposed. That conditional sentence will be served after any jail term I impose. Moreover, it is submitted that the five years is unduly harsh taking into account T.A.D.'s age and his cognitive deficits. [43] According to cases such as R. v.

Taylor, (2010) 2010 MBCA 103 , MJ 355, a court will impose consecutive sentenceswhen they are separate and distinct offences. Here there is little argument that the sexual offence against A.M. is entirely distinct fromthe sexual offence against G.M. [44] The court then determines a fit sentence for each one of the offences, in accordance with all sentencing principles. After that, alast look is given to the total sentence, to ensure that it is not unduly long or harsh. This is the totality principle. [45] In my view, T.A.D.'s jail sentences for the two sexual offences must be consecutive.

I must decide the fit sentence for each andthen take a last look to ensure they are not unduly harsh. T.A.D.'s Sentence: [46] The sexual assaults of A.M. and G.M. constitute significant violations of their sexual integrity, with long-lasting impact. A.M.was cutting herself after her assault, and G.M. now has constant feelings of panic, fear, and even worse, hopelessness. T.A.D. usedthreats when sexually assaulting A.M., and a knife when sexually assaulting G.M. Both offences involved full sexual intercourse. [47] I treat these two offences as first offences, but I must put them in context, as I have said earlier.

T.A.D. later sexually assaultedD.F. during a game of hide and seek, and in the next month, he forcefully kissed and inappropriately touched a female employee at abowling alley. In short, T.A.D. committed four sexual offences against four young women in the short span of four months. [48] Having said all of the above, T.A.D. is himself a young man with major cognitive deficits in a very difficult upbringing. Hisdiagnosis of FAS does reduce his moral culpability to some degree.

I am balancing the need to protect the public, the need to specificallydeter the offender and denounce these crimes as against his real need for comprehensive rehabilitation, which is difficult in aninstitutional setting. [49] All of T.A.D.'s sexual assaults are opportunistic and not premeditated.

He severely misinterprets the behaviours of his femalevictims, but he is the one who initiates a level of violence in each case. [50] As explained above, I must sentence T.A.D. to consecutive sentences here, because the sexual assault against A.M. in June of2014 is entirely separate and distinct from the sexual assault with a weapon against G.M. in July of that year. [51] Bearing in mind all of the sentencing principles and the case law, I am of the view that each of the sexual offences warrants atwo-and-a-half-year jail sentence.

A two-and-a-half-year jail sentence is very much in the low range and takes into account T.A.D.'syouth and reduced culpability due to his cognitive deficits, while still protecting the public and denouncing these offences. [52] Arguments could be made both ways as to which offence is more serious. No weapon is involved in the sexual assault of A.M.,but she is a very vulnerable 14-year-old faced with serious threats.

G.M. is a little older, but she faced the threat of a knife. [53] Were it not for T.A.D.'s cognitive deficits, a sentence over three years for each sexual offence would be justifiable. [54] Having found that two-and-a-half years is the appropriate sentence for each of these sexual offences, I must finally consider thetotality principle. In my view, a five-year total sentence is not unduly harsh, but when I take a last look, it is somewhat excessive. Thepublic needs to be protected from these type of crimes which so devastated two victims, and denunciation and specific deterrence are atthe forefront.

However, when I look at the sentence globally and take into account T.A.D.'s unique cognitive deficits, a four-and-a-half-year total sentence is appropriate. T.A.D. will be somewhere in his mid-20s when released, and then he will be bound by a priorconditional sentence and probation order. [55] Consequently, my sentence is as follows. 1. For file 81867-1, the sexual assault of A.M., there will be a two-year, three month jail sentence. This is the older of the two offences,so it is easiest to apply T.A.D.'s time served as against this offence.

The time served is now 215 days, which should be increased to 323days of enhanced credit. That equates to 10.77 months. Consequently, the jail sentence under 81867-1 expressed in days is 820 daystotal, less 323 days enhanced time served, leaving 497 days remaining. 2. For file 82087-1, the sexual assault with a weapon involving G.M., there will be a two year, three month jail sentence, which equatesto 820 days, consecutive, and I underline the word consecutive, to the jail sentence under 81867-1. 3. There will be a lifetime SOIRA order for both offences. 4.

For both offences, T.A.D. will provide a sampling of his DNA for the databank. This is mandatory.

5. There will be a lifetime weapons prohibition under s. 109. 6. T.A.D. shall have no contact or communication directly or indirectly with A.M., G.M., D.F. and M.B. pursuant to s. 743.21 of the Criminal Code .

And in the order, the initials will be expressed as full names. [ 56 ] I will not order a s. 161 restriction, because the expert essentially ruled out paedophilia. [ 57 ] Those are my sentences. (SUBMISSIONS BY COUNSEL) [ 58 ] THE COURT: T.A.D. is going to be incarcerated for some time and he did not have considerable employment prior to his incarceration, so I will find that each of the victim fine surcharges are payable forthwith, and seeing that he has no ability to pay, he will serve one additional day for each victim fine surcharge. It will be consecutive to the sentence already made. G.J.

BROWN Provincial Court Judge