R. v. Hartman, 2018 BCPC 240

Citation: R. v. Hartman 2018 BCPC 240 Date: 20180919 File No: 40547 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SAMUEL ROBERT HARTMAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Crown: B. Goddard Counsel for the Defendant: S. Runyon Place of Hearing: Campbell River , B.C. Dates of Hearing: June 21, July 26, Sept. 7, Nov. 10, 2017, June 5, June 28, 2018 Date of Judgment: September 19, 2018 Introduction:

[ 1 ] Mr. Hartman is being sentenced today for the following offences: • Information 40547-1: Following a trial he was found guilty of sexually assaulting J.G.B. on April 6, 2016. During the trial, I ordered that an assessment be carried out to determine if Mr. Hartman could be found to be not criminally responsible by reason of mental disorder. That assessment was done and based on that and my own assessment of the evidence, I found that Mr.

Hartman had not established, on a balance of probabilities, that he was suffering from a mental disorder at the time of this offence so as to render him not criminally responsible. • Information 40551-1, Count 1: Mr. Hartman pleaded guilty to assaulting Annete Lee Roberton, by spitting on her, on April 8, 2016. • Information 40551-2-A: Mr. Hartman pleaded guilty to breaching a condition of his release by failing to report as directed to his bail supervisor between December 13 and 29, 2017. [ 2 ] Crown seeks a global jail sentence of between thirty to ninety days for the sexual assault and assault.

He emphasizes the need for a sentence in these circumstances to place emphasis on general deterrence. He suggests probation and community work service hours would be appropriate for the breach conviction. [ 3 ] Mr. Hartman’s counsel asserts that on the facts in this case a conditional discharge with conditions is appropriate. The primary rationale for this position is that Mr.

Hartman has been diagnosed as having Autism Spectrum Disorder (Asperger’s Syndrome) and she submits that a sentence should be mitigated by, and properly reflect the role of this condition and prescribed medications in his offending, thereby reducing his level of moral blameworthiness.

Principles and Objectives of Sentencing: [ 4 ] I am mindful that the primary purpose of sentencing is to contribute to a just, peaceful and safe society by imposing just sanctions that will serve one or more of the following objectives: denunciation; deterrence; removal of an offender from the community where necessary; rehabilitation of an offender; reparation to victims and the community; promotion of responsibility on the part of the offender and acknowledgment of the harm to victims and the community. [ 5 ] It is a well known and accepted principle that a fit and just sentence must reflect the degree of moral blameworthiness of the offender as well as the gravity of the offence. [ 6 ] A sentence must be proportional to the seriousness of the offence and not be excessive or unduly harsh. [ 7 ] All available sanctions other than imprisonment that are reasonable in the circumstances should be considered. [ 8 ] Mitigating and aggravating circumstances must also be considered.

Circumstances of the Offences: The Offence of April 6, 2016: [ 9 ] At the trial, both Mr. Hartman and the complainant J.G.B. testified. At the time of the offence, Mr. Hartman was 25 years old, J.G.B. approximately 56 years of age. Both had a residence in a supported housing facility with three separate apartment buildings. They knew each other and had occasional contact with each other over the approximate two-year period of time they had both been residing there.

Generally, their evidence about what happened on the day in question was consistent. [ 10 ] J.G.B. was laying on her couch recuperating from sinus surgery. It was about 7pm or 8pm and she had the patio door open for fresh air. The door was covered by sheer curtains. Her apartment is small and the patio door was close to her position on the couch. [ 11 ] Mr. Hartman entered the complainant's apartment through the open patio door. In cross examination, J.G.B. agreed that the first thing Mr. Hartman said was that he wanted to see how she was after her surgery. However, matters quickly deteriorated.

He told her that he wanted to have sex with her and insisted that she wanted it too. [ 12 ] He moved close to her, pulling up his shirt and grabbed her in what he described as a hug. According to J.G.B. she turned her face and he kissed her cheek instead of her face. He grabbed her breasts and, as J.G.B. described, squeezed them “very hard” twice. I would not characterize his actions as amounting to a hug. He made a number of vulgar and obscene remarks to her that do not need to be repeated here except to say that those remarks would have been extremely disturbing for J.G.B.

J.G.B. also described that he started to fumble with his belt buckle to get it undone. [ 13 ] J.G.B. told Mr. Hartman to stop and to get out of her apartment. Fortunately, Mr. Hartman's phone apparently had been ringing on multiple occasions and he stepped outside the patio door to answer the calls. J.G.B. also stepped outside and when Mr. Hartman was distracted by a neighbour she had the presence of mind to go back inside, then close and lock her patio door. She described being extremely upset and made a number of phone calls for assistance.

She reported the incident to the police the next day. [ 14 ] J.G.B. was traumatized by this incident. In her victim impact statement she expressed feeling afraid to be in secluded areas, difficulty sleeping, nightmares and fear of Mr. Hartman hurting her again. She has been seeing a counsellor through victim services. The Assault on April 8, 2016: [ 15 ] Early in the morning on this day, a support worker, Ms. Annete Lee Roberton, was driving a van from the facility with a number of passengers, including Mr. Hartman. She told Mr. Hartman that he could not come with them. Mr.

Hartman became angry and refused to get out of the van. Eventually he did leave the van but expressed his anger by swearing and kicking the front door of the facility. The door was locked and based on the photographs which show the door ripped off its frame and hinges; I accept that it took considerable

force to cause that damage. During this melee, while Ms. Roberton was standing “toe to toe” with Mr. Hartman, he spat directly in her face. [ 16 ] Ms. Roberton was interviewed for the pre-sentence report. She is a life skills worker and has been specially trained to work with clients with behavioural challenges. She advised the writer of the report that she did not suffer any emotional trauma as a result of this incident and on seeing Mr. Hartman in the community a number of times, has never felt threatened. Breach of Undertaking: [ 17 ] Between December 13, 2017 and December 29, 2017, Mr.

Hartman failed to report to his bail supervisor as directed. During this time, he was meeting with a probation officer who was completing a pre-sentence report for the court. Mr. Hartman suffers from significant anxiety and during this time completely withdrew from the community and isolated himself in his home. Otherwise, Mr. Hartman was diligent with his reporting and compliant in all other aspects of his supervision. Mr. Hartman’s Circumstances: [ 18 ] I have reviewed the pre-sentence report dated January 31, 2018 as well as the forensic psychiatric report dated August 22, 2017. Mr.

Hartman was diagnosed with autism spectrum disorder when he was 7 years old. His lowered level of function made him eligible for funding and assistance from Community Living Services of BC (CLBC) both as a child and adult. He was also supported for housing and outreach services. [ 19 ] Mr. Hartman described his early years as tough. His parents separated and between the ages of 11 to 19 he lived with his father. Around the age of 14, he described that he developed a temper. He had multiple suspensions at school as a result of fighting. Mr.

Hartman described that he was always bigger than the other children and decided to stand up for himself and other kids. At the request of the school he was seen by a behavioural therapist who helped him control his behaviour. [ 20 ] Not long after turning 19 he began living with his grandfather until he was accepted into a supportive housing facility. Since that age, he qualified for and has been receiving Persons with Disability support. As a result of the offences, he was not able to continue residing at the facility and is currently living with his grandfather.

His plans are to obtain his own residence once these matters have been concluded. [ 21 ] I had the benefit of consultation reports from his treating psychiatrist, Dr. Bredenkamp. He first saw Mr. Hartman in May, 2013. He outlined Mr. Hartman’s history which included violent thoughts and behaviours in and out of school. Mr. Hartman sought his assistance because he wanted a prescription for Concerta - a stimulant. Dr. Bredenkamp proposed a treatment plan that would involve discontinuing the stimulant medications for a period of time to allow Mr. Hartman’s symptoms to be assessed and diagnosed more accurately. Mr.

Hartman was extremely resistant to this and refused to follow this plan because he wanted to continue taking stimulant medication. [ 22 ] Mr. Hartman discontinued seeing Dr. Bredenkamp as a result of this disagreement and did not see him again until May, 2016 when he sought an appointment because of the current offences, stating that he was “really in trouble”. [ 23 ] It is interesting to note that Dr. Bredenkamp made the following statement in his consultation report of May 10, 2013: Collateral from Community Living BC or the college may be helpful in monitoring his functioning.

It would also be helpful if they could provide us with feedback should the patient be exhibiting signs of disinhibition and over activation, which may be secondary to excessive use of stimulants …. [Emphasis Added] [ 24 ] Parenthetically, I note that Mr. Hartman did receive a prescription for another stimulant medication - Dexedrine - and testified at trial that at the time of the offence on April 6, 2016, he had been taking Dexedrine since February, 2015. It also appears that he continued taking stimulant medications before then but that was not perfectly clear to me. [ 25 ] Dr.

Bredenkamp concurred with the previous diagnosis of Pervasive Developmental Disorder and felt a diagnosis of Asperger’s Syndrome was appropriate. He gave a differential diagnosis of Bipolar Disorder NOS or Amphetamine Induced mood Disorder. [ 26 ] Dr. Wiehahn, a psychiatrist with the Forensic Psychiatric Services Commission assessed Mr. Hartman on August 22, 2017. Similarly, he gave a diagnosis of Autism Spectrum Disorder. I understand that Asperger’s Syndrome is considered to be on the spectrum of Autism. [ 27 ] Dr. Wiehahn was able to speak with Dr. E. Clark, PhD psychologist, who provided counselling to Mr.

Hartman between February 2013 and April 2015 on a pro bono basis once a month for 20 sessions. The focus was on “temper tantrums, general supportive work, and how to deal with stress in his family as well as with isolation.” Dr. Clark also noted that Mr. Hartman was interested in seeking relationships with women and needed help with “interpersonal reality testing”. This was taken to mean that “Mr. Hartman struggled to read into personal cues, most notably, non-verbal cues.” Mr. Hartman told Dr. Wiehahn that the sessions with Dr. Clark “helped immensely”. [ 28 ] Dr. Wiehahn observed that Mr.

Hartman appeared to have some cognitive deficits and was socially awkward. HIs opinion was that Mr. Hartman’s offending behaviour probably was motivated by his own needs or frustration and was not due to any psychotic symptoms caused by Dexedrine. It is important to note that Dr. Wiehahn assessed Mr. Hartman to determine if, at the time of the offence involving J.G.B., he was suffering from a mental disorder such that he was incapable of appreciating the nature and quality of his actions or knowing that it was wrong. [ 29 ] After being charged for the April, 2016 offences, Mr.

Hartman’s stimulant medication was discontinued and he was reassessed

by Dr. Bredenkamp on June 2, 2016. Mr. Hartman testified that he personally believed that his behaviour in April 2016 was due to thismedication and told Dr. Bredenkamp that he felt much better since discontinuing the Dexedrine although feeling more sedated. Thediagnosis of high functioning autism was confirmed. [30] Dr. Bredenkamp was of the opinion that Mr. Hartman was doing well on his current treatment regime which does not includestimulants. Mr. Hartman is living with his grandfather and has a support worker funded by Community Living BC and provided by theJohn Howard Society.

She provided a letter advising that Mr. Hartman has been receiving support since August 2012 under the AutismOutreach Support Program. She meets with him two to three times per week. He requires support to assist him with life skills andactivities of daily living including grocery shopping, banking, laundry, getting out in the community, transportation to appointments,housing applications and completion of any required documentation. Mitigating Factors: [31] Mr. Hartman has no prior criminal record and is a first time offender. [32] He pleaded guilty to the charge of assault on Ms.

Roberton and the breach of an undertaking thus sparing the time and expenseof a trial. He has accepted responsibility for these offences. [33] He has expressed remorse for the sexual assault as well as the general assault, saying that he wished it had never occurred. Hissupport worker also wrote that on multiple occasions Mr. Hartman has expressed to her his sincere remorse for the offences before thecourt. [34] Crown counsel submits that Mr. Hartman is probably at a low risk to reoffend and I accept this as a mitigating factor. Is Mr. Hartman’s Autism Disorder a Mitigating Factor? [35] Mr.

Hartman has a long standing diagnosis of Autism Spectrum Disorder. He has suffered from episodes of depression, suffersfrom social anxiety and has difficulty developing relationships with people. He required a modified learning program in school andqualifies for ongoing assistance in the community as a result of a reduced ability to function independently. [36] Crown counsel asserts that Mr. Hartman’s autism only reduces his moral culpability a small amount and points to the evidencethat he is functioning at a high level. He says that his condition doesn’t excuse him for behaving the way he did.

I note that Dr.Bredenkamp’s opinion is that Mr. Hartman’s cognitive function was average or above average. [37] Counsel for Mr. Hartman says that his moral culpability is attenuated by his condition. [38] Mr. Hartman was prescribed a stimulant (Dexedrine) and had been taking this medication for approximately 16 months whenthe first two offences occurred. In May, 2013, Dr. Bredenkamp indicated that Mr. Hartman should be monitored for signs ofdisinhibition and over activation which he indicated may be secondary to excessive use of stimulants.

He also was of the opinion that hisstimulant medication should be closely monitored due to Mr. Hartman’s previous history of self-medicating and escalating his dosage. Mr. Hartman’s actions on April 6 and 8, 2016 were certainly consistent with behaviour that could be characterized as disinhibited. [39] While Mr.

Hartman’s medical or psychiatric condition on April 6 and 8, 2016, was not sufficient for a diagnosis of a mentaldisorder so as to render him not criminally responsible, I accept that his actions were related, to some extent, to the behaviours associatedwith Autism Spectrum Disorder and to the stimulant medication he had been prescribed. I also accept that Mr.

Hartman’s difficulty inregulating emotions - including frustration - is related to his particular condition and is at least part of the reason he has qualified forongoing assistance to help him function as independently as possible in the community. [40] His failure to report on two occasions in December, 2017 was also related to his condition. He experiences significant periodsof anxiety and during this time he was overwhelmed with the interview process for the pre-sentence report.

He was unable to functionsufficiently to leave his home and report to his bail supervisor. [41] I accept that this is a mitigating factor and attenuates his moral blameworthiness. Aggravating Factors: [42] The sexual assault on April 6 took place in J.G.B.’s home. [43] The assault upon Ms. Roberton involved spitting into her face. That action is extremely degrading and carries the risk of bodilysubstances being communicated. Legal Authorities: [44] The imposition of a conditional discharge is not limited to only very minor or certain categories of offences.

A conditionaldischarge may be granted when it is in the offender’s best interests. This offender will generally be someone without previousconvictions, generally of prior good character and who does not require a conviction to deter him from re-offending in the future or torehabilitate him. It may also be appropriate if the imposition of a conviction may have significant adverse consequences. Secondly, aconditional discharge must not be contrary to the public interest which commonly refers to the public interest in the deterrence of others.

However, the second condition, while it must be given weight, should not preclude the judicious use of the discharge provisions: R. v.Fallofield, (BC CA), [1973] B.C.J. No. 559 @ para.21. [45] I was referred to a number of sentencing cases involving sexual assault. [46] In R. v. J.L.B., [2017] B.C.J. No. 195, the offender at the time of the offence was the 52 years old employer of the 20 year oldcomplainant. JLB touched the employee on her buttocks and thighs and kissed her. The complainant was significantly emotionally

impacted and unable to work for a period of time. JLB did not need to be specifically deterred and was at low risk for reoffending. He was remorseful and had insight into his own offending. He was of otherwise good character in his community. Crown sought a 60 day conditional sentence order (then available) and 18 months’ probation. The court found that general deterrence was achieved by the humiliation and embarrassment he underwent as a result of the criminal proceedings. A conviction may have had serious immigration consequences. He was given a conditional discharge with 18 months’ probation. [ 47 ] In R. v.

Knaack , [2018] Y.J. No. 9 , a senior RCMP officer, while hugging a co-worker, grabbed her buttocks and squeezed. The victim was traumatized by the incident. The offender was suspended for a time and subjected to internal discipline. He was at low risk to reoffend, was remorseful and had gained insight into the inappropriateness of his behaviour. He had no prior record and had already suffered negative consequences including coverage by local media.

The court was of the view that the second prong of the Fallofield test also contemplated whether the public’s confidence in the administration of justice would be compromised by imposing a discharge. A conditional discharge was granted because the imposition of a discharge would not be found, by properly informed members of the public, to be contrary to the public interest. [ 48 ] In R. v. Jayswal , [2011] O.J. No. 432 , a 14 year old victim was sexually assaulted by the 61 year old accused. They did not know each other and were sitting on a park bench.

The defendant grabbed her arm, forcing her to sit beside him. He forcibly hugged her and grabbed her breast. When she pushed him away, he persisted and grabbed her head and kissed her cheek. Following a joint submission, the accused was given a conditional discharge. [ 49 ] None of those cases involved an assault that occurred in the victim’s home, a factor that is aggravating here.

None of those cases involved an offender with a mental illness or disorder which I have found to be a mitigating factor. [ 50 ] However, they involved victims who were assaulted by those who were in some position of trust - an employer in one case, a senior RCMP officer in the other. In Jayswal , the victim was a 14 year old girl and vulnerable due to her age. Discussion: [ 51 ] There is agreement that Mr. Hartman is at low risk to reoffend and is likely specifically deterred.

The nub of the issue here is whether an entered conviction is necessary to deter other individuals from engaging in this type of conduct or to warn the public. These factors, in part, inform my decision as to whether or not a conditional discharge is contrary to the public interest. [ 52 ] As was recognized by the sentencing judges in the cases provided to me, any sexual assault, no matter how low on the range it is, is a serious, intrusive and traumatizing offence. The assault by spitting was also intrusive and meant to be degrading to the victim.

A fit and just sentence must reflect this. [ 53 ] It is concerning that Mr. Hartman had engaged in previous aggressive behaviour while in school and apparently sometime not long before he saw Dr. Bredenkamp in May, 2013 when he had an altercation with a person who was renting a room at his grandfather’s home. When this last referenced incident occurred, he had been taking prescribed stimulant medication (methylphenidate). [ 54 ] At the time of both assaults in April, Mr.

Hartman was still taking his stimulant medication. [ 55 ] The breach of his undertaking by failing to report to his bail supervisor was caused by his extreme anxiety and complete withdrawal from public and is a feature of his medical condition. [ 56 ] In May, 2013 Dr. Bredenkamp advised that Mr. Hartman’s stimulant medication be closely monitored and that feedback from CLBC would also be helpful in monitoring his functioning. In his most recent report of June 13, 2016, he again reiterated that collateral information from Mr.

Hartman’s grandfather or from the John Howard Society worker would be valuable in monitoring his symptomatology and psychiatric status. He recommended against the reinstatement of stimulant medication. [ 57 ] Mr. Hartman is now under the care of Dr. Whetter, a psychiatrist in Comox who is monitoring his prescription medications and sees him once a month. He is no longer taking stimulant medication. [ 58 ] I accept that a criminal record would likely make it more difficult for Mr Hartman to obtain independent housing or, if he were so inclined, to seek employment or a volunteer position in the community.

The negative impact of a criminal record would be significant. It is clearly in Mr. Hartman’s best interests to receive a conditional discharge. Is it contrary to the public interest? [ 59 ] The purpose of general deterrence is to prevent other like-minded individuals from engaging in similar activities. The rationale behind this fundamental principle of sentencing is that the sentence imposed in an individual case will be effective in changing the behaviour of those who would commit a similar offence, and thereby prevent future criminal conduct.

This presupposes that the person to be deterred is capable of rationale thought and making choices that govern their behaviour. However, a sentence must also reflect the unique offender and circumstances of the offence. It is trite law that sentencing is a highly individualized exercise. General deterrence will not be so prominent a feature in assessing a fit and just sentence when the offender is suffering from a mental illness that has the effect of reducing the degree of his moral blameworthiness. [ 60 ] In this case, Mr.

Hartman has a developmental disorder and was taking stimulant medications at the time of offences which I have found impacted, to some extent, his behaviour. Crown asserts that other individuals with autism ought to be deterred. [ 61 ] Such individuals have a variety of symptoms, behaviours and functional abilities. I doubt that someone with a developmental disorder that results in reduced or impaired function and/or reasoning abilities would be deterred by punishment of others.

However, even presupposing some deterrent effect this individual, even with a high functioning form of Autism, would likely find the experience of undergoing public criminal proceedings, restrictions on liberty including regular reporting to a bail supervisor while awaiting a trial, court appearances including a trial, as well as the imposition of conditions forming part of a sentence - sufficient to deter them from engaging in similar conduct.

[ 62 ] I am satisfied that the reasonably informed member of the public would not find this sentence to be contrary to the public interest. The public does not need to be warned about Mr. Hartman. His condition and behaviour ought to be well known by those who work with him or spend time with him. [ 63 ] I find that in the unique circumstances of this case Mr. Hartman should receive a conditional discharge. The role of monitoring Mr.

Hartman’s psychiatric condition and medication is best carried out by his treating physicians coupled with feedback or collateral information from the community support workers who are with him frequently. Mr. Hartman has improved significantly since his medication was reviewed and adjusted and by all accounts he continues to do well. He continues to be monitored by a treating psychiatrist.

He has not had any further difficulties with aggressive behaviour towards other people and I accept that he is capable of learning how to self-regulate his emotions with appropriate support and professional assistance. [ 64 ] Crown counsel said that it would be unlikely that Mr. Hartman would be referred to the standard sexual offender program and I concur with that observation. Mr. Hartman found the counselling provided by Dr. Clark to be of benefit and it is important that Mr.

Hartman, in addition to general community support, have access to an appropriate form of Cognitive Behavioural Therapy on an ongoing basis. Conclusion: [ 65 ] Mr. Hartman will be conditionally discharged following successful compliance with conditions for a period of 18 months.

The conditions are the statutory conditions, reporting, no contact with the victims of both assaults, not to go to any residence, school or workplace of either victim, a “Rogers” order (to take recommended assessments, etc. and follow medical advice; report to probation officer if you fail to do so) and counselling. [ 66 ] The sexual assault is a primary designated offence and there will be an ancillary order that Mr.

Hartman provide a sample of his DNA. [ 67 ] I adopt the reasoning of the Honourable Judge Dean of the Ontario Court of Justice in the Jayswal decision (supra) and find that an order pursuant to s. 490.12 of the Criminal Code (also known as a SOIRA order) does not apply because I have not entered a conviction against Mr. Hartman. BY THE COURT ___________________________ The Honourable Judge Flewelling