R. v. D.H., 2018 BCPC 203

Citation: R. v. D.H. 2018 BCPC 203 Date: 20180723 File No: 40363-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D.H. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE MROZINSKI BAN ON PUBLICATION 486(4.1) CCC Section 16(4) Sex Offender Information and Registration Act (" SOIRA "): This

section provides that no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA . Counsel for the Crown: B. Tomlin Counsel for the Accused: D. Marshall Place of Hearing: Duncan , B.C. Date of Hearing: June 28 and July 23, 2018 Date of Sentence: July 23, 2018

[ 1 ] THE COURT: D.H. is here today for sentencing having pled guilty to the charge that from January the 1st, 2012, to August 15th, 2017, he did for a sexual purpose touch a young person contrary to s. 151 of the Criminal Code . [ 2 ] At issue in this sentencing is the length of sentence. The Crown seeks a sentence of four years custody.

D.H. submits that a sentence within the provincial range, something less than two years, with an additional lengthy period of probation would meet the objectives and the principles of sentencing set out in the Criminal Code . [ 3 ] The count charged does not, I think it is fair to say, begin to describe the sexual touching at issue. It is not in dispute that what was involved was prolonged sexual abuse of the child, T.S., over a period of four years, a child who was in foster care in the care of the accused in the home of the accused and his wife.

It is the kind of an offence that requires a denunciatory sentence. As the court stressed in R. v.

O.M ., 2009 BCCA 287 , a sentencing judge has to pass a sentence in such a circumstance that expresses society's abhorrence of this crime. [ 4 ] In doing so, the courts are reflecting the utter vulnerability of the victim, the position of trust of, in this case, the person standing as a parent, as well as the lasting harm of sexual abuse on children. [ 5 ] D.H. does not disagree that the principles of deterrence and denunciation have to take primacy in this sentencing, but submits that there is room in this case for careful consideration of the steps that he has taken towards his own rehabilitation.

D.H. stresses that in this particular case there are unique factors that take this sentencing out of the stream where a lengthy federal sentence would be the norm. [ 6 ] In determining a fit sentence, the court has to take into account the nature of the offence, the nature of the offender, the impact on the victim and the purposes of sentencing that are set out in the Criminal Code . [ 7 ] In terms of the offence itself, it is an unfortunate fact that in cases such as this it is necessary for the court to reiterate some of the facts, many of which are often as it is the case disturbing.

Still, it has to be noted that the abuse was as egregious as it was prolonged. [ 8 ] T.S. and her brother came into the care of D.H. and his wife when T.S. was three or four, the ages vary in the information I have before me, but four at the latest and her brother was two years of age. When T.S. reached approximately age 10, the sexual interference began. Some of what occurred is described in D.H.'s psychological report which is dated March 8th of 2018.

This is information provided by D.H. to the interviewer even though he had been warned prior to the report that there was no confidentiality attached to the report. [ 9 ] T.S. also disclosed abuse, slowly at first, but eventually more and more fulsomely. There is no dispute that for a four-year period when T.S. was between 10 to 14 years of age, D.H. came into her room one to two nights per week. T.S. recalls that the incidents would last some 15 to 20 minutes.

The sexual interference started with sexual touching and self-stimulation on the part of D.H. and it progressed, as he says, to anal intercourse on at least ten occasions, as well as fellatio. This despite T.S.'s repeated requests that it stop. [ 10 ] It did stop when T.S. disclosed the abuse in a text to a friend who reported it to MCFD. The result was tumultuous, to say the least, for T.S. T.S. has provided a victim impact statement describing the effect of these offences on her. She describes, among other things, the family breaking up and the effect that it had on her. It was, as I understand it, agonizing.

T.S. looked at D.H. as a father and she looked at D.H.'s wife as a mother. She was in that home along with her brother for a period ten years. It would have been the only home she knew as a child. [ 11 ] The immediate result of the disclosures was that the foster care situation ended. For a time at least, the siblings were split and the result of that, among other things, left T.S.'s little brother angry at her. I understand that that has resolved itself and the siblings are now back together, but the home life is inalterably changed. [ 12 ] T.S. and her brother are members of the [omitted for publication].

They were both placed in the care and the trust of Mr. and Mrs. D.H. at a very young age. The effect of the abuse has been devastating for T.S. She read her victim impact statement in open court. She spoke of the impact that the abuse has had. She spoke of the effects of the breach of trust. She spoke of getting counselling. [ 13 ] T.S. outlined some of her current feelings, which are typical in such cases. T.S. feels a sense of responsibility for what occurred. T.S. feels unloved and unlovable. T.S. was afraid she would not be believed. T.S. has been ostracized by friends and some family members.

As a result of the abuse, T.S. is left with much to work through and, clearly, she will avail herself of counselling. Counselling is an individual process. It may resolve some of the feelings, but the memories will be with T.S. forever. [ 14 ] This is a heavy burden placed on this child. It is a gross violation by a parent, a gross violation of the basic rules of behaviour in a civil society and a gross violation of the trust of a child. [ 15 ] D.H. is now 54 years of age. He was in a long-term marital relationship, although I understand that may or may not continue. He is, at present at least, church-going.

He has friends in the community. He has children, one of whom is here today or was here today to support him. There are a number of community members here today in support of D.H.; others have written letters which I have read in the materials that have been provided. [ 16 ] D.H. has no criminal record. He has a long history of volunteerism including with youth. Other foster children were in the home.

Despite that, there are no other incidents before me on this sentencing but the assaults or the sexual interference with T.S. [ 17 ] In terms of any antecedents that might explain what it was that occurred, a presentence report has been filed and that has been reviewed in some detail in submissions and I have read that myself. I do not disagree that it discloses that D.H. who is now 54 did experience a very unpleasant childhood. He recalls among other things, sexualized behaviour in the home, odd sexual interactions with

siblings at a young age, violence in the home, and alcohol misuse in the home. It was an upsetting environment and there is certainly in the psychological report some suggestion that this has something to do with his behaviour in regard to the offence that he is being sentenced for today. [ 18 ] In the presentence report D.H. is quoted as attributing his behaviour to the use of pornography as well as a spiritual emptiness, claiming a disconnection with the victim throughout the abuse. The abuse, as I say, was prolonged.

D.H. knew that the victim had said no. [ 19 ] D.H. proposes to address the state that he has described in the presentence report by addressing issues related to sex through spiritual development as well as court sanctioned resources. In other words, sex offender treatment. [ 20 ] Virtually all of D.H.'s supporters, with the odd exception, have stated that in their view this behaviour is out of character.

It is, I accept, not evident from D.H.'s community interactions, that he is someone who would sexually abuse a child, but it is a fact in this sentencing that he was, up to the point of disclosure, just such a person. [ 21 ] Even accepting the wealth of materials that document the steps D.H. has taken towards his own rehabilitation, and the numerous statements of those who have counselled him since the disclosure that this would not likely happen again, it is still left to this court to determine what is a fit sentence in a case such as this where the offender has abused a child in his care over a prolonged period. [ 22 ] I am, as I have stated earlier, guided and instructed by the sentencing principles set out in the Criminal Code at s. 718 , 718.1 and 718.2 .

Ultimately the purpose of sentencing is to protect the public. The public here being vulnerable victims, victims made vulnerable by age, by the nature of an imbalanced relationship, by being in their home and in their beds. There is no question in these circumstances that I have to emphasize the sentencing objectives in deterrence and denunciations in order to meet the principle of sentencing. [ 23 ]

Section 718.2 provides that sentences should be similar for similar offences committed by similar offenders in similar circumstances, and it is for that reason as this as many other cases that the courts are apprised of case authorities in which sentencing had been done on offences that are before the court. In this case I have been provided with a number of cases by both Crown and the defence. [ 24 ] I referred to the reasons of R. v. O.M. earlier.

I note at paragraph 9 that a case quoted there indicates that two years less a day for the offence of sexual assault of a minor is at the low end of the range. [ 25 ] I pause to note, as I noted earlier in the sentencing hearing, that it is the case that many of the Crown's authorities refer to the charge of sexual assault and D.H. is being sentenced today for the offence of sexual interference contrary to s. 151 of the Criminal Code .

The facts as I have outlined them, the abuse that is admitted to have occurred here, renders the distinction between sexual interference and sexual assault a distinction without a difference in my view. Nothing turns, in other words, on the fact that this is a sentencing for sexual interference. What I am sentencing for is the prolonged sexual interference of the child, T.S., in the manner that I have described. [ 26 ] Other cases referred to by the Crown include R. v. W.M. , 2010 BCCA 370 .

This is another sentencing appeal decision in which what was at issue was a five-year sentence in the case of the sexual assault by the accused of two of his step-daughters.

In that instance, the accused was sentenced to 42 months for the sexual assault of the older step-daughter, which assaults occurred over a prolonged period of time and involved at least five instances of sexual intercourse. [ 27 ] That case includes an odd commentary by the appellant in that case who I understand was self-represented that "four years is in the ballpark", and it is a fact that four years for that offence is about the medium sentence that the courts have imposed. [ 28 ] In R. v. R.F.L. , 2010 BCCA 493 , again what was at issue was a five-year sentence for the offence of sexual assault.

In that instance, the assault involved the accused's step-daughter. The assaults took place between the ages of 6 and 12. Like here, the accused had no record. Like here, the accused expressed sincere remorse. Like here, the accused had sought treatment, as well. Nonetheless, in upholding the sentence, the court had this to say at paragraph 10 of that decision: 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. [ 29 ] This I can say from having sentenced on these kinds of offences before, is the sort of language repeated in every one of these cases: the effect of sexual assault of a child by an individual, a person whom the child trusts in the circumstances such as in this case is long-lasting. Frankly, a lifetime effect on the child, and that is recognized by the courts.

It is why the sentencing objectives of deterrence and denunciation are so important in these cases. [ 30 ] Other cases referred to by the Crown include R. v. D.R.W. , 2012 BCCA 454 . The accused in D.R.W . was sentenced to four years on four counts of sexual assault. The particular offending behaviour in that case is set out at paragraph 47.

There the court wrote that the circumstances attested to by the accused including grooming the complainant, manipulating her, repeated assaults of fondling, kissing and sexual touching, her repeated masturbation of him, mutual oral sex on more than one occasion and the extensive general sexualisation of their parent-child relationship merited a sentence of four years. [ 31 ] The Court of Appeal in D.R.W. held that it could not find the sentence was unfit or that it was outside of the appropriate range for the offences that were admitted in that particular case. [ 32 ] Finally, in R. v.

R.J.B. , 2016 BCCA 428 , the accused was sentenced to six years for two counts of sexual assault in that case on his disabled daughter.

[ 33 ] So it is clear from those decisions that the sentencing for the kind of behaviour that we are dealing with in this case is high. It is federal time, it is never less than four years and often much higher. [ 34 ] On behalf of D.H., a number of cases have been provided, but with respect to the cases provided by the Crown, it is submitted that these are for the most part distinguishable. I said at the outset that the first area in which the cases are submitted to be distinguishable is based on the fact that most are sentences for sexual assault.

I have already spoken to that. [ 35 ] Secondly, it is submitted that many of these cases involve multiple counts, and I would note only that in this case there are countless instances of sexual interference over the four-year period up to and including penetration. [ 36 ] Finally, some of the cases involve sentencing for incest, and I agree that the point there was that there is a significant mandatory minimum for incest. But I will say this, that the issue of trust is very much at play in this sentencing. [ 37 ] Nonetheless, other cases have been provided in which sentencing has been lower in some instances.

In R. v. Akumu , 2017 BCSC 1502 , Justice Fisher as she was then known, sentenced the accused to a much lower sentence. In that case, the incident was a one-time instance where Mrs. Akumu, who was 36 years of age had sexual intercourse with the person who was 14 years of age after providing the child with alcohol. Mrs. Akumu appeared before the court with no record and it was a factor as well that Mrs. Akumu was from birth deaf. [ 38 ] Another case provided is R. v. G.E.W. , 2014 BCSC 2597 , wherein the accused was sentenced to three years for sexual interference.

It is the case that Gladue factors predominated with respect to that sentencing. [ 39 ] D.H. referred also to the case of R. v. K.V.E. , 2013 BCCA 521 , in which an accused was sentenced to two years for sexual touching, but an additional five years for incest. I find it is difficult in that particular instance to unravel the nature of the thinking of the sentencing between the incest and the two years for sexual touching. [ 40 ] The defence has also referred to the reasons in R. v. D’Argis, 2011 BCSC 842 .

Again, I find I agree with Crown that D’Argis is quite distinguishable in the sense that that was one instance. [ 41 ] Finally, D.H. relies on R. v. Veinotte , 2016 BCCA 21 , a case in which the accused was sentenced to one year for sexual interference. The circumstances involved one instance where the victim attended at the home of the accused. The two, after spending some time on the couch watching television, ultimately engaged in sexual relations.

The Crown appealed the sentence to the Court of Appeal arguing that the one year sentence was woefully inadequate. [ 42 ] This case is largely referred to for the discussion at paragraph 29 and 30 where the court writes that: As the majority in Lacasse stated, the cardinal principle is proportionality. It is self-evident from the review of the record in this case that this offence is very serious in that it involved an intrusive but non-violent sexual assault of a 13-year-old girl.

No one would suggest that it is not serious or that Parliament’s intention in mandating a minimum sentence in a crime against a child should be minimized. However, it is also self-evident that Mr. Veinotte had an exceedingly deprived childhood marred by his own alcohol addiction and drug use. He expressed his remorse at an early opportunity and [he] pleaded guilty before the trial. He has embarked on rehabilitation with remarkable success given a history of addiction that appears to have spanned more than half his life. In my opinion, this is not an appeal in which this Court should intervene.

The sentence that was imposed below was upheld. [ 43 ] The submission here is that the mitigating factors in this sentence are similar to the mitigating factors discussed by the Court of Appeal in V einotte .

As I said, the range of the sentencing in the cases that have been provided to me demonstrate that none of the cases which are certainly approximate to this sentencing in terms of the factual underpinning fall much below the period of four years. [ 44 ] The facts that I am dealing with here, firstly, with respect to the aggravating factors are, as I have said, that the period of abuse was prolonged: it took place over a period of four years. Secondly, it would be difficult if not impossible to ascertain the number of incidences, but they are countless.

Thirdly, D.H. was a foster parent to the victim and therefore the case involves a breach of trust. Fourth, the victim was vulnerable, both in age and the fact that she was in her bed and the fact that these incidents took place at night. Fifthly, that the assaults graduated to actual penetration on at least ten times which makes them egregious. [ 45 ] Finally, the impact on the victim in this case was significant. This was a young First Nations' girl in the foster care.

Those facts make her, in my view, more vulnerable. [ 46 ] I find that this case, if I consider all of the cases that have been put to me, comes closest to the reasons of the Court of Appeal in R. v. R.F.L. , wherein the accused was sentenced to five years for the sexual assault of his step-daughter. That abuse took place when the victim was between the age of six and 12. The accused, like here, had no record. The accused, like here, expressed remorse, and the accused, as is the case here, also sought treatment. [ 47 ] The mitigating factors in this case are as follows.

First of all, the guilty plea, and I acknowledge that the guilty plea is a significant factor in this sentencing. It has spared the victim, T.S., from coming to testify and to discuss the details which are very personal and very painful for her. [ 48 ] Secondly, it is an odd and unique factor that the sentencing here today is addressing some of the more, as I have described, egregious conduct on the part of D.H. because it was D.H. who made those admissions to the interviewer when he was involved in his psychiatric assessment for the purposes of the sentencing. I accept that.

That demonstrates, if nothing else, an acceptance of responsibility for the offences. I accept as well that D.H. is deeply remorseful for these offences. I suspect if he could take these things

back, he would, but he cannot. [ 49 ] I acknowledge also that D.H. has made efforts and, in fact, significant efforts towards treatment, and that is critical. The treatment is absolutely critical, because of course it is imperative that nothing like this happens again. It is important as well to note that D.H. has the support of at least some family members.

He has the support of his church community and other families, he has prospects for his release from custody. [ 50 ] The mitigating factors in this sentencing are not insignificant, but they are not sufficient, in my view, to offset the overwhelming necessity to impose a sentence that sends a message of deterrence and denunciation.

A sentence of two years or less would in my view be unfit given the length of the interference, its general nature and the need in sentencing for these offences to deter others who would or who might in moments of weakness also prey on such vulnerable victims. [ 51 ] I find as well that there is nothing in the sentence that I intend to impose that would interfere with D.H.'s rehabilitation. He will, as a result of my sentence, serve his time in a federal institution where treatment is available.

His community of family and friends will remain and will be present when he is released from custody; I do not doubt that. And, D.H., I say you are fortunate in that. [ 52 ] But this is an egregious offence that you have pled to, D.H., and I am certain that you understand that. [ 53 ] D.H., for all these reasons, I intend to impose sentence.

I must ask you to stand. [ 54 ] D.H., for the offence of touching the body of T.S., a person under the age of 16 years for a sexual purpose contrary to s. 151 of the Criminal Code , I sentence you to four years in custody. [ 55 ] There are some ancillary orders that I must make as a result of this sentencing and this guilty plea. First of all, there is what is known as a SOIRA order; this is mandatory under the Criminal Code .

Section 151 is a designated offence for the purposes of s. 490.012 of the Criminal Code . The court must make an order in Form 52 requiring you to comply with the Sex Offender Information Registration Act under s. 490.0132(b). The order is for 20 years. [ 56 ] There is also a required mandatory firearms order as well as an order pursuant to s. 161 of the Criminal Code .

The firearms order provides that for a period of 10 years commencing from today's date and ending no less than 10 years after the date on which you are released from custody, you are prohibited from possessing a firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or an explosive substance. That is mandatory under the Code . [ 57 ]

Section 161 also provides that for a period of five years from the date of your release from custody, you are prohibited from (

b) seeking, obtaining or continuing any employment whether or not the employment is remunerated or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years.

Also you are prohibited from having any contact including communication by any means with a person who is under the age of 16 years unless the offender does so under the supervision of a person whom the court considers appropriate. [ 58 ] The Crown sought and I think it is appropriate that I make an order prohibiting you from having any contact or communication, directly or indirectly, with the victim, T.S., while you are in custody and I do so make that order now. [ 59 ] There is the victim impact surcharge; that is $200. It is mandatory under the Criminal Code . Mr.

Marshall, I do not imagine your client will have any trouble paying that, will he, 60 days from the date of his release from custody? [ 60 ] MR. MARSHALL: That is correct, Your Honour. [ 61 ] THE COURT: Yes, that is mandatory under the Criminal Code ; that is payable 60 days from the date of your release from custody. It is $200 because the count is by indictment. [ 62 ] MR. TOMLIN: A primary designated DNA offence as well. [ 63 ] THE COURT: Okay, as well. All right. D.H., a conviction of the offence of touching contrary to s. 151 of the Criminal Code is a primary designated DNA offence.

What that means is that I am going to order that on or before July 31st of this year that an officer of the Corrections facility in which you are going to serve your period of custody who is authorized by the Criminal Code must take a sample of your bodily substance and from there a sample of your DNA will be extracted and placed on the National DNA Databank. [ 64 ] MR. TOMLIN: Your Honour, on that issue, my understanding is it is actually the RCMP that do it and it is done -- because it was an RCMP detachment that investigated the matter, it goes to them.

Ultimately, they end up communicating with the Western Communities detachment. They end up being the ones that [indiscernible/overlapping speakers] it. [ 65 ] THE COURT: What are you suggesting? [ 66 ] MR. TOMLIN: So, I do not think you need to specify which peace officer does it, but I wonder if you could provide that that take place on or before the end of August just to give time for that to occur. [ 67 ] THE COURT: That is fine.

On or before the end of August 31st then an officer having authority pursuant to the Criminal Code is authorized to take a sample of a bodily substance from which a sample of your DNA will be extracted and placed on the National DNA Databank. All right? [ 68 ] MR. TOMLIN: Thank you, Your Honour. [ 69 ] THE COURT: Okay. Thank you. (PROCEEDINGS CONCLUDED)