R. v. Roberts Date:, 2015 BCPC 266

Citation: R. v. Roberts Date: 20150930 2015 BCPC 0266 File No: 42696-1 Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSHUA JAMES ROBERTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.W. KOTURBASH Counsel for the Crown: Caterherine Crockett Counsel for the Defendant: Tyrone Duerr Place of Hearing: Penticton , B.C. Date of Hearing: September 21, 2015 Date of Judgment: September 30, 2015

Introduction [ 1 ] Mr. Roberts pled guilty to the sexual exploitation of KW between September 15, 2012, and August 15, 2013, contrary to section 153 (1) (

a) of the Criminal Code . [ 2 ] The Crown proceeded summarily which means the offence carries a mandatory minimum jail sentence of 90 days and a maximum jail sentence of 2 years. [ 3 ] The Crown recommends a range between 90 and 270 days or 9 months. The Crown is opposed to an intermittent sentence. [ 4 ] Mr. Roberts’ counsel seeks a sentence of 90 days and asks that his client be allowed to serve his sentence on weekends. [ 5 ] Both parties are in agreement that a lengthy period of probation should follow. Offender’s Background [ 6 ] Mr.

Roberts is currently 39 years old. [ 7 ] He continues to work for his family’s pizza business in Penticton and Summerland. [ 8 ] He is the father of six children. He and the mother of the children are estranged. Since being charged with this matter, the mother of the children has cut off contact with Mr. Roberts and he has not had any contact with his younger children. [ 9 ] Mr. Roberts does not suffer from any type of mental disorder or have any addictions. [ 10 ] He does not have a criminal record.

Facts [ 11 ] The submissions from counsel establish that shortly after moving to British Columbia, KW, the victim began to suffer from depression. [ 12 ] In 2011, Ms. W’s father, approached Mr. Roberts about employing his daughter in his pizzeria. He trusted Mr. Roberts and thought a part-time job working for Roberts would help her with her struggles. Mr. Roberts agreed to hire her. [ 13 ] In 2012, when Ms. W was 17 and Mr. Roberts 36 years of age, Mr. Roberts began to flirt with her. [ 14 ] In September of that year, he advanced to kissing her on the lips. Ms.

W said she was initially scared but went along with it. [ 15 ] During working hours the two would go into the bathroom and kiss. Mr. Roberts would also watch her change into her work clothes. [ 16 ] Eventually, the two engaged in sexual intercourse. [ 17 ] Mr. Roberts did not use a condom. [ 18 ] On occasion, Ms. W would leave school during her spares and have sexual intercourse with Mr. Roberts in the washroom of the Penticton pizzeria. [ 19 ] Ms.

W estimates that sexual intercourse occurred between 14-20 times over a 10 month period. [ 20 ] The sexual acts also included oral sex and on occasion the use of a sex toy. [ 21 ] In total police recovered over 3000 text messages between the two. The texts were highly sexualized and demonstrated an intention on the part of both to keep their relationship private. [ 22 ] They also communicated covertly via Skype from Ms. W’s bedroom. [ 23 ] Upon request Ms. W would send naked sexual poses of herself to Mr. Roberts. He too would reciprocate by sending pictures of his genitals. [ 24 ] During the relationship, Ms.

W told Mr. Roberts that she suffered from depression, bi-polar disorder, suicidal ideations, and engaged in self-harm by cutting herself. Mr. Roberts also witnessed signs that she was engaging in cutting. [ 25 ] Ms. W also confided in Mr. Roberts that she had been sexually assaulted in the past. [ 26 ] During the relationship it became readily apparent that Ms. W was abusing alcohol. She told Mr. Roberts that she was hiding bottles of liquor at home and work. Despite this Mr. Roberts purchased alcohol for Ms. W and her friend.

[ 27 ] According to Mr. Roberts, it was her addiction to alcohol, an addiction that he helped feed, that led to her dismissal from the pizzeria. [ 28 ] Early in the relationship, Ms. W’s father contacted Mr. Roberts and confided in him that he was concerned that his daughter might be seeing someone. He made an outward plea to Mr. Roberts to keep an eye out for his daughter. He told her that his daughter had a great deal of respect for him. Mr. Roberts laughed it off by saying he has a daughter too. [ 29 ] At one point, Mr. W became suspicious that Mr.

Roberts might be the one involved with his daughter and confronted him, but he denied any involvement. [ 30 ] Initially, Mr. Roberts liken himself to a hero for Ms. W. He rationalized that in having a relationship with her; he was saving Ms. W from all her demons and was able to demonstrate that someone ‘ Cared ’. [ 31 ] Mr. Roberts’ offending behaviour was exposed when a friend of Ms. W’s found correspondence between the two on Facebook. In the correspondence she saw a picture of Mr. Roberts’ penis and comments about his professed love for Ms. W. [ 32 ] When confronted, Mr. Roberts admitted to Ms.

W’s friend that they were together. [ 33 ] During their investigation police interviewed other employees of Mr. Roberts. Ms. Eacott told police that Mr. Roberts made comments directed to her about her bum. [ 34 ] When police interviewed Mr. Roberts, he initially denied any sexual encounters with Ms. W. However, police persisted and he eventually confessed. [ 35 ] As part of the sentencing process, Mr. Roberts met with a psychiatrist and probation officer.

He told the report writers that he preferred spending time with teenagers because they appreciated and respected him. [ 36 ] He said that he did not know his actions were illegal but knew they were morally wrong. [ 37 ] The psychiatrist assessed Mr. Roberts as low to moderate risk to reoffend. [ 38 ] Since being arrested, Mr. Roberts met with a psychologist on 10 occasions. He bore the costs of those counselling sessions which came close to $2000 in total. [ 39 ] Because of the adverse publicity, Mr. Roberts had to step away from the business for 6 months. During that time he collected unemployment insurance.

He has since returned to work but is now always in the accompaniment of another adult. [ 40 ] Unfortunately for the Roberts family the business continues to struggle as result of the publicity. Mitigating and Aggravating Circumstances [ 41 ] In determining an appropriate sentence, judges, like myself must consider all accurate, relevant, and reliable information about the offence and the offender.

This will include any aggravating and mitigating factors, which would tend to increase or decrease the gravity of the offence and/or the moral blameworthiness of the offender. [ 42 ] Ultimately, each offender must be judged upon his or her own circumstances. [ 43 ] Judges must also consider collateral consequences of the sentence on the offender, and adjust the sentence to ensure, having regard to all the circumstances of the case, the result complies with the principles of individualization and proportionality.

The weight to be given to the collateral consequence will depend on the type of consequence and the seriousness of the offence. [ 44 ] The factors must be either truly aggravating or mitigating and not simply the ordinary circumstances of the crime.

For example some aggravating factors are integral features of the offence and cannot be used as justification for increasing the sentence further. [ 45 ] Some factors do not neatly fall into the categories of mitigating or aggravating because they do not relate to the gravity of the offence or the degree of responsibility of the offender, but they are factors that nonetheless impact the sentence to be imposed. For ease of discussion I will refer to those factors that weigh in favor of a reduction as mitigating and those that weigh in favor of an inreased penalty as aggravating. Mitigating Factors 1.

Guilty Plea [ 46 ] The fact that Mr. Roberts pled guilty at a very early stage in the proceedings is worthy of some credit. [ 47 ] His plea indicates that he is remorseful and takes responsibility for his actions. [ 48 ] It provides certainty and finality in these proceedings.

[ 49 ] By doing so, he has spared Ms. W and her family the uncertainty of the outcome of a trial and having to testify. [ 50 ] A guilty plea usually provides victims, like Ms. W, with better closure and validation than a finding of guilt by a judge, because a guilty plea, as opposed to a finding of guilt, is a clear acknowledgement that the victim was telling the truth. [ 51 ] However, I must be careful not to overstate the mitigating effect of the guilty plea where, as in this case, the offender is faced with overwhelming evidence of his guilt.

Proof of his offending behaviour was available to the Crown through the testimony of Ms. W, the text messages recovered by police, Mr. Roberts’ admission to police and his admissions to Ms. Eacott. [ 52 ] Mr. Roberts’ counsel argues that in entering the guilty plea his client sacrificed an opportunity to challenge the minimum sentencing provisions. I do not find this argument persuasive. Part of the plea agreement included a concession by the Crown to proceed summarily. Furthermore, even if Mr.

Roberts had pursued his challenge and succeeded, I would not have been persuaded that current sentencing range would attract a sentence of anything less than 90 days jail. 2. Remorse [ 53 ] Mr. Roberts expressed concern about how his actions have had a negative impact on him and his family, but also expressed genuine remorse for how his offending behaviour affected Ms. W and her family. 3. Absence of a Criminal Record and Good Character [ 54 ] Mr. Roberts does not have a criminal record. Judges disagree on whether the absence of a criminal record is a mitigating factor or simply the absence of an aggravating one.

Those that say it is a mitigating factor say it is so because it reinforces the belief that the offender is of good character and that his offending behaviour is uncharacteristic. [ 55 ] There is no doubt that prior to being exposed; Mr. Roberts had an excellent reputation in the community. He has been actively involved in the community by providing pizza prizes to young children who excel in reading programs within the local school district.

He also volunteered his time at local junior hockey games. [ 56 ] The pizza business was responsible for providing employment for a number of young people in Penticton and Summerland. According to Mr. Roberts’ mother, Mr. Roberts was solely responsible for hiring and training over 200 young people to work in in the business. [ 57 ] I reviewed 18 letters of reference filed on behalf of Mr. Roberts. All of the letters describe Mr. Roberts as a person with a number of enviable traits. Many were written by previous employees.

He is described as a kind, generous, honest, community minded, and dedicated family man. [ 58 ] However, I found some of the letters written on behalf of Mr. Roberts concerning. One of the authors wrote: It is our opinion that if the justice system would know Josh the person, all allegations would be discontinued and he would be allowed to live a normal life in our community.

While another wrote: Josh knows that he made a mistake in having a relationship with this person but the key word is relationship. [ 59 ] I found these comments unacceptable. [ 60 ] Crimes against children are always committed behind closed doors. Although I agree with counsel that Mr. Roberts’ actions were opportunistic rather than predatory, it was his good character that persuaded Ms. W’s father to place his trust in Mr. Roberts. So much so, that when Mr. W became suspicious that his daughter had a boyfriend he leaned on Mr. Roberts for support.

He also readily accepted his denial when he confronted him about the possibility that he was involved with his daughter. [ 61 ] Simply put, good parents do not place their children in the care of people who are of bad character. It would be counterintuitive to the proper objectives and principles of sentencing to consider Mr. Roberts’ good character as a mitigating factor when it is that very character/trust that he is guilty of breaching. [ 62 ] However, I will say that Mr. Roberts’ good character and pro-social behaviour in other aspects of his life, gives me a measure of confidence that going forward Mr.

Roberts is capable of leading a law abiding life. 4. Good Employment History [ 63 ] Mr. Roberts has had steady and stable employment for several years. This demonstrates pro-social responsibility and conformity

to community norms that are the antithesis of crime. Those, like Mr. Roberts, who maintain steady employment often, have more promising rehabilitative prospects. 5. Family and other Support : [ 64 ] Mr. Roberts has the continued support of his parents and some members of the community. Both his mother and father sat beside their son during the sentencing. They continue to employ him in their business despite the negative publicity and shame he has brought upon it. [ 65 ] Like good character, the support that Mr. Roberts has from others inspires confidence that he can become fully rehabilitated. 6.

Family Obligations [ 66 ] Before his arrest Mr. Roberts was paying close to $1000 per month in child support. However, since the arrest he has lost contact with his children and their mother. I am told upon the completion of this matter, Mr. Roberts hopes to be able to see his children and resume his financial support. [ 67 ] A jail sentence, outside of an intermittent sentence, would remove Mr.

Roberts’ ability to earn an income and this would have an impact on his ability to support himself and his children. [ 68 ] However, unlike many other offenders who come before the court, if I do impose a traditional straight time jail sentence, he will have employment when he is released. 7. Emotional and Economic Distress on Family Members [ 69 ] As I sat and listened to the sentencing submissions I noticed Mr. Roberts’ parents and Ms. W’s father. Being a parent myself, I was overwhelmed with a feeling of compassion for all three including Ms. W’s mother who found it too difficult to come into the courtroom.

The pain they have endured is unimaginable. [ 70 ] The business Mr. Roberts’ parents have worked so hard to establish has suffered financially. [ 71 ] However, the distress that a member of the accused’s family experiences as a result of his offending behaviour will rarely be a relevant consideration serving to reduce a sentence. [ 72 ] At most, it can be considered as having a deterring effect. I cannot imagine it is lost on Mr. Roberts, nor others who have witnessed his fall from grace, how much pain he has caused his family. 8. Insight and Willingness to Reform [ 73 ] The professionals describe Mr.

Roberts as having good insight into his offending behaviour. He is committed to following through with whatever treatment or counselling is required to address the root causes of his behaviour. 9. Post-Offence Behaviour : [ 74 ] Immediately upon entering the criminal justice system, Mr. Roberts made positive efforts to change his thinking pattern by seeing a psychologist and agreeing to modifications in his employment to ensure that he is not alone in the presence of any young females. 10.

Restrictive Bail Conditions [ 75 ] Strict bail conditions can be considered mitigating; however, there must be evidence of significant custodial or penal attributes associated to those conditions. Before credit is due the court must be satisfied that the conditions had a serious impact on the offender’s liberty, ability to carry on normal relationships, employment or other essential activities. [ 76 ] There must be some evidence of meaningful hardship. [ 77 ] Mr. Roberts’ counsel pointed to the: ▪ Condition prohibiting his client from leaving the province of British Columbia.

However, no evidence was led that he had any reason or desire to leave the province while he was on bail. Nor is there any evidence that he made any application to vary or delete the term.

▪ Condition prohibiting his client from having contact with any child under the age of 18. I am told this condition was in place for a few months and changed upon Mr. Roberts’ request. ▪ Condition requiring him not be alone with children under 18 during his employment. If this condition stood in the way of continued employment I would have characterized this as a meaningful hardship. I understand that but for a couple of months, it did not. ▪ Condition requiring him to report to a bail supervisor. There was no evidence led as to how this condition imposed any type of hardship on Mr.

Roberts. ▪ Condition requiring the probation officer to approve the suitability of his residence and thereby advise his neighbours of the crimes for which he was charged. I agree that this did pose some measure of hardship but I intend to take it into account when I deal with it when I address the impact of the overall publicity. [ 78 ] I am not satisfied that Mr. Roberts bail terms posed any meaningful hardship. 11. Cooperation with authorities [ 79 ] Mr. Roberts cooperated with police and confessed to his offending behaviour.

This cooperation demonstrates to me a willingness to make amends for the wrong done, and also demonstrates recognition of the harm caused and acceptance of personal responsibility for it. 12. Publicity, Stigma and Loss of Reputation : [ 80 ] Because of adverse publicity Mr. Roberts had to step away for a period of time from his position with his parents business resulting in a loss of income. [ 81 ] No doubt the publicity has resulted in a great deal of shame and embarrassment for Mr. Roberts. [ 82 ] This can be especially difficult in small centers like Penticton and Summerland.

In the age of the internet, public shaming has taken on a new level punishment. The stories and blog comments will remain on the internet for everyone to see, including Mr. Roberts’ future partners, children and grandchildren. [ 83 ] No doubt Mr.

Roberts will suffer the wrath of public scorn for a very long time to come. [ 84 ] In most cases, where a crime generates a great deal of publicity, the offender is entitled to material consideration in mitigation. [ 85 ] However, giving too much credit for public embarrassment is counterintuitive to the sentencing process when the circumstances of the offence, such as this one, elevate the objectives of denunciation and deterrence to paramountcy. [ 86 ] Notoriety is a natural and public consequence of addressing the objectives of general deterrence when sentencing for these types of offences.

Indeed extensive publicity was a predictable consequence of Mr. Roberts’ actions. [ 87 ] In R v Zentner, 2012 ABCA 332 , the Alberta Court of Appeal describes how giving too much weight to publicity as a mitigating factor would be counterproductive to the proper application of the principles of sentencing when it states: There is a grave danger that the suggestion that publicity replaces punishment will degenerate into lower sentences for the prominent, the successful, and those holding public office. Or those whose personality or crime or name is unusual enough to make it newsworthy because it is novel.

Not to mention those arrested on a slow news day, or in the presence of television cameras. That would be both unjust and quite outside established sentencing principles. Sometimes such sentencing is totally backwards because the very factors which make the case newsworthy are those (such as abuse of trust or authority) which the Criminal Code and precedent say enable and aggravate the crime. [ 88 ] That is not to say that it has no impact on the sentencing process.

Rather, its import is in assessing the need for specific deterrence and to some degree general deterrence. [ 89 ] Indeed, a mere appearance in a public forum together with a finding of guilt undoubtedly has serious consequences for anyone, but even more so for the first time offender who becomes the subject of intense media coverage.

13. Temporary Loss of Employment [90] I am mindful that the loss of any employment regardless how temporary can pose a hardship. However, unlike many otherswho commit crimes similar to his, Mr. Roberts has a job to go back to. 14. Mistake of Law [91] While ignorance of the law does not excuse guilty conduct, it may be a mitigating factor in sentence. Although Mr. Roberts didnot feel his relationship with the victim was morally right, he was not aware that it was illegal. He, as I am sure many others do, believedthat the age of consent for all relationships was 16 years. 15.

Consensual Activity [92] Much was said by counsel about the consensual nature of the relationship and how Ms. W was a willing participant throughout.It was urged upon me to look at this as a significant mitigating factor. [93] I do not see it the same way. Mr. Roberts pled guilty to the sexual exploitation of Ms. W. Threats, coercion, violence or lack ofconsent are not essential elements of the offence. If in fact that did occur, Mr.

Roberts would likely have faced the more serious chargeof sexual assault simpliciter. [94] In the context of sexual exploitation, courts have rejected arguments minimizing the seriousness of the offence where the victimconsented or was a willing participant. [95] The Alberta Court of Appeal in R v Pritchard, 2005 ABCA 240, explains at para. 7 Second, the sentencing judge overemphasized the willing participation of the young girl in these activities.

While there may well be adifference in degree between a perpetrator who uses force, as opposed to persuasion, on an underage victim to accomplish his objective,the fact remains that the end result is the same - a sexual assault on someone who cannot, in law, give consent. Put simply, a young girl'swilling participation is not a mitigating factor. [96] In R v Audet, (SCC), [1996] 2 SCR 171, the Supreme Court of Canada discussed the purpose of the offence ofsexual exploitation at paragraph 23 when it states: Clearly, Parliament wanted to afford greater protection to young persons.

It chose harsher means by criminalizing the activity itself,regardless of whether it is consensual (s. 150.1(1) of the Code) in so far as it involves a person who is in a position or relationshipreferred to in s. 153(1) with respect to the young person. As Woolridge J. eloquently stated in Hann (No. 2) supra, [1990] N.J.

No. 342 atp. 36: The implication from the wording of s. 153 is that notwithstanding the consent, desire or wishes of the young person, it is the adult in theposition of trust who has the responsibility to decline having any sexual contact whatsoever with that young person. [97] I cannot agree more. As to Ms. W’s willingness it is not a mitigating factor but the absence of aggravating factors, like the useof force, violence, intimidation or trickery. Aggravating Factors 1. Frequency and Duration [98] Mr. Roberts offending behaviour occurred over a period of 10 months.

The longer a crime continues, the more harm will bedone. The fact that the activity occurred over the course of 10 months also demonstrates a conscious and deliberate choice to engage inthe activity, not simply an isolated moment of weakness. [99] It also demonstrates an inability to stop an activity that is harmful to the victim and heightens the need for specific and generaldeterrence. 2. Age Difference

[ 100 ] A wide age difference is an aggravating factor. In the case at hand, Mr. Roberts was 36 and the victim only 17. He was 19 years her senior. He was not a young, recently promoted shift supervisor only a few years older. 3. Exposure to Potential Harm [ 101 ] The sexual touching went beyond fondling and kissing; it included oral sex and unprotected intercourse. Penetration of a child will always increase the gravity of the offence, even more so when it is unprotected. Although Ms. W did not become pregnant, Mr. Roberts willingly exposed her to that risk.

He knowingly exposed her to more than the ‘usual dangers’ of a relationship with a young person. [ 102 ] Furthermore, he was aware of her fragile character. Although he may have been ignorant as to the law, he was not in a state of innocent ignorance as to the potential harm of his offending behaviour. 4. Breach of Trust [ 103 ]

Section 718 provides that judges must take into consideration as an aggravating factor evidence of the offender breaching a position of trust or authority in relation to the victim. [ 104 ] However, judges disagree on whether statutory aggravating factors should be considered to increase the sentence where the very same factors are an elements of the offfence. [ 105 ] In R v Ahmed, 2014 ONSC 6153 , the accused was convicted of conspiring to facilitate terrorism.

Section 718.2(a)(

v) deems the fact that an offence is a terrorist offence to be an aggravating factor and the sentencing judge held that this factor weighed in favor of a harsher sentence. [ 106 ] In contrast in R v Donnelly , 2014 ONSC 6427 , the accused was convicted of producing child pornography. The Crown argued that the deemed aggravating factor (the accused abused a child under the age of 18 years) weighed in favour of a harsher sentence. The sentencing judge rejected this argument because the fact the boys were under 18 was necessary element of the offence. [ 107 ] I prefer the reasoning in Donnelly .

The mere fact that there was an abuse of trust or authority is not in itself reason to increase the sentence for offence like sexual exploitation that requires it as an essential element of the offence. However, that it not to say that the degree of trust or authority and the extent to which it was breached is irrelevant. [ 108 ] Abusing a position of trust or authority demonstrates a higher level of culpability. Trust implies a mutual expectation of conduct that shows consideration, honesty, care and responsibility. [ 109 ] Not all positions of trust or authority are treated equally.

The seriousness will increase in line with the level of trust breached. The extent to which the nature and degree of trust will increase the seriousness depends on a careful assessment of the circumstances of each case including the type and terms of the relationship between the offender and the victim. Obviously, the higher degree of trust the more severe the sentence. [ 110 ] People can hold various positions of trust or authority over children.

Some positions have a high degree of trust, like a caregiver, teacher, priest or physician, while others like an employer might fall at the other end of the spectrum. [ 111 ] In the case at hand, given the nature of the relationship I do not see the degree or the way in which the trust or authority was breached as weighing in favor of a harsher sentence. 5. Disregarded Previous Warning [ 112 ] Despite being told by Mr. W early in the relationship that he was concerned about the possibility that Ms. W had a boyfriend and later being confronted about the possibility that he was involved, Mr.

Roberts disregarded those warnings and persisted in his offending behaviour. 6. Vulnerability of the Victim [ 113 ] In addition to knowing that Ms. W was only 17 years old, Mr. Roberts also knew that she was emotionally fragile and vulnerable suffering from depression, bi-polar disorder, self-harm, suicidal ideations, and alcohol dependency. [ 114 ] Children like Ms. W, more than any need our protection. Children like her can easily fall prey to a persuasively comforting adult, due to their low self-esteem, emotional fragility, or weak sense of self. [ 115 ] Mr. Roberts was not her hero. He exploited Ms.

W’s weakness to achieve his own selfish ends, heedless of the dire consequences that can and often do follow. 7. Impact on the Community

[ 116 ] A crime like the one Mr. Roberts has pled guilty to can have a chilling effect on small communities like Penticton and Summerland. Parents who read or hear the details of his offending behaviour will be at a loss as to whether to encourage their children to explore their independence. 8. Impact on the Ms. W and Her Family [ 117 ] I have carefully reviewed the victim impact statements prepared by Ms. W and her father. As one would anticipate, Mr. Roberts’ offending behaviour has had devastating impact on Ms. W and her family. [ 118 ] I am mindful of the fact that Ms.

W suffered from a number issues prior to Mr. Roberts’ involvement, but I accept, as set out in her victim impact statement, that his actions exacerbated these challenges. In her statement she also speaks of being robbed of the last years of her childhood. Instead of experiencing things like prom, sports and time with her friends she found herself trapped within an illicit dysfunctional adult sexual relationship. Mr. Roberts robbed her of her final years of childhood.

Objective Seriousness [ 119 ] The objective seriousness of the crime is established by Parliament which has imposed a minimum jail sentence of 90 days and a maximum jail sentence of 18 months. Objectives of Sentence [ 120 ] The overarching duty of a judge, like myself, is to draw upon all the relevant objectives and principles of sentencing to determine a ‘just and appropriate’ sentence that is proportionate to the gravity of the offence committed and the moral blameworthiness of the offender. [ 121 ]

Section 718 of the Criminal Code states that the fundamental purpose of sentencing is to promote respect for the law and the maintenance of a just, peaceful, and safe society, along with crime prevention initiatives, by imposing sanctions that have certain objectives. [ 122 ] Sentencing is an individualized process in which the court must take into account not only the circumstances of the offence, but also the specific circumstances of the offender. [ 123 ] T he statutory objectives of sentencing are set out in s. 718 of the Criminal Code . [ 124 ] Although judges must consider all of the objectives and principles of sentencing set out in the Criminal Code , some objectives and principles will receive more emphasis than others depending on the nature of the offence committed. [ 125 ] No single sentencing objective or principle trumps the other.

Rather it is up to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. [ 126 ] The following objectives are paramount in any case involving the abuse of trust or authority and victimization of a child: 1.

Denunciation [ 127 ] Denunciation is way for society to express it’s condemnation of the offender’s conduct that encroached on society’s basic code. [ 128 ] It is meant to target the public and not just the offender; it attempts to persuade the public of the courts’ views of certain conduct as abhorrent. [ 129 ] This objective is grounded in the notion that the sentence imposed on the offender influences the public’s perception of the crime. [ 130 ] Mandatory minimum jail sentences are a means of advancing this objective. [ 131 ] In the case at hand, Mr.

Roberts lack of knoweldge that what he was doing was e illegal and some of the comments of his supporters, validate my opinion that there still remain segements of our population who still simply do not comprehend how abhorrent this type of behaviour really is. 2. General Deterrence [ 132 ] General deterrence is intended to discourage potential offenders and serve an educative function to the general public. The theory of general deterrence is that people who learn about the sanctions imposed upon people like Mr.

Roberts, will weigh the pros and cons before committing a crime and the harsher the punishment, the less likely they will choose to commit the crime. [ 133 ] Although some, like Mr. Roberts’ counsel, challenge the notion that general deterrence is effective, general deterrence is a

codified objective of sentencing, and is alive and well in this country. [ 134 ] Emphasis on general deterrence will usually result in the offender being punished more severely, not necessarily because the offender deserves it, but because it becomes important to send a message to others who might be inclined to engage in similar conduct. [ 135 ] Other objectives of sentencing which are also of importance include: 3.

Specific Deterrence [ 136 ] Simply put, the purpose of specific deterrence is to discourage recidivism in the individual offender based on shock and fear of further punishment. [ 137 ] In the case at hand, given the collateral consequences suffered by Mr. Roberts, I am satisfied that specific deterrence does not need to weigh heavily in my analysis. 4. Rehabilitation [ 138 ] The rehabilitation of an offender can often provide the best protection for society. It is especially important for first time offenders.

However, it must not displace the objectives of denunciation and general deterrence when it comes to sentencing offender for victimizing a child. Sentence Principles [ 139 ] I must also apply certain sentencing principles, some of which are codified and others which arise through the common law. The principles of importance in this case are: 1. Proportionality [ 140 ] The sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 2.

Restraint [ 141 ] Ordinarily, an offender should not be deprived of liberty if less restrictive sanctions may be appropriate and reasonable in the circumstances. This is especially important when dealing with a first time offender. In cases where minimum sentences apply, the offender’s liberty should be deprived to the least extent possible in achieving the appropriate goals of sentencing. 3. Parity [ 142 ] Sentences should be similar for similar offences committed by similar offenders in similar circumstances; however, uniformity in sentences is always secondary to a fit sentence. 4.

Inflationary Floor [ 143 ] Another principle which is specific to this case and other cases where there is a minimum sentence is the “inflationary floor principle”. [ 144 ] Judges disagree on whether minimum sentences act as an “inflationary floor” setting a new minimum punishment that is only available for the ‘best’ offender. [ 145 ] The inflationary floor theory or principle was expressed by Arbour J. in her minority concurring judgment in R v Morrisey, 2000 SCC 39 , when she said: By fixing a minimum sentence, particularly when the minimum is still just a fraction of the maximum penatly applicable to the offence, Parliament has not repudiated completely the principle of proportionality and the requirment expressed in s 718(2)(b), that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.Therefore, in my view, the manadatory minimum sentnece for firearms-related offfences must act as an inflationary floor, setting a new minimum punishment applicable to the so-called “best” offender whose condut is caught by the provisions.

The mandatory minimum must not becoem the standard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances. The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions.

[146] In short, the principle stands for the propostion that minimum jail terms have an inflationary effect upon sentences. Not onlymust the “best” offender who commits the least serious offence suffer the minimum, but nastier offenders who commit worse offencesshould receive a heavier penalty than the minimum. [147] Although the inflationary floor principle has not been formally endorsed by the Supreme Court of Canada, it has found supportin some appellate courts.

It did receive a degree of approval by the British Columbia Court of Appeal in R v Ghua, 2012 BCCA 423 , R vDRW, 2012 BCCA 454 and R v BCM, 2008 BCCA 365. [148] In R v Delchev, 2014 ONCA 448 at para. 19, the Ontario Court of Appeal in obiter also concluded that the inflationary floorprinciple is a legitmate prinicple of sentencing. The Court said: …the mandatory minimum sentence for firearms related offences must act as an inflationary floor, setting a new minimum punishmentapplicable to the so-called “best” offender whose conduct is caught by these provisions.

The mandatory minimum must not become thestandard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances. The latterapproach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the principles ofsentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions. [149] However, in R v Lloyd, 2014 BCCA 224 (leave to appeal to the SCC granted) Mr.

Justice Groberman for the British ColumbiaCourt of Appeal cautioned against accepting the inflationary floor principle as an invariable rule of

interpretation. He points out thatsince maximum sentences are not only reserved for the worst offender and offence, it is doubtful that minimum sentences should bereserved for the best offender. [150] Mr. Justice Groberman makes a distinction between those minimum sentences that dramatically increase the severity of thesentence and fundamentally change the bottom end of the range versus the minimum that more closely reflect the previous range.

In hisopinion apart from the exceptional situation of an offender who would, but for the minimum sentence, have received a sentence wellbelow the normal range, the new minimum should have no effect at all. [151] Groberman JA makes the analogy of an actual floor simply being reinforced versus another which has been raised dramatically.Where the floor has only been reinforced, or slightly altered, no other structural changes will be required. [152] According to Mr.

Justice Groberman, determining whether the inflationary floor principle applies, one must first determine whatthe usual range was before the amendment. [153] In Lloyd, the court was dealing with a case of low-level drug trafficking where the accused had a prior related conviction.

TheCourt found that the minimum sentence of 12 months reflected the low-end of the sentencing range before the imposition of theminimum sentence regime and did not impose a new inflationary floor. [154] In another decision R v Aquitania, [2014] AJ No 641 (PC), Judge Allen found support for more flexible approach to theinflationary floor principle. He writes: Courts have struggled as how to apply the inflationary floor approach.

One manner of interpreting the principle literally, that themandatory minimum sentence is reserved for only the best offender, i.e., the offender who has no criminal record, pleads guilty to arelatively minor offence, and expresses remorse. This seems to be the approach taken in R v Johnson, 2010 ONSC 3213 , [2010]O.J. No. 2327 (Ont. Sup. Ct.) at para. 4. The second approach is that sentencing principles should be examined to determine whether the mandatory minimum sentence is a fitsentence. In R v M (Z.L.), 2011 ONSC 4051 , [2011] O.J. No. 3124 (Ont. Sup.

Ct.) Spies J. explored the meaning of the analysisof Arbour J. in Morrissey. Justice Spies explained at paras. 23-25: “In the context of the constitutional challenge before the court, Arbour J. was considering the constitutionality of the fact that with astatutory minimum, even the best offender must be sentenced to that minimum sentence. In that context she considered the facts of thecase before her where the trial judge was of the view that a fit sentence was three years and yet had to impose the minimum sentence offour years.

Although she accepted that four years was not grossly disproportionate and, therefore, not caught by s. 12 of the Charter, thiscase is an example of a case where, but for the minimum, the sentence would have been lower. Although the court must be mindful tomaintain the proportionality of relative punishments, in my view this illustrates why it would be wrong to arbitrarily decide that only the“best offender” as defined by the Crown in this case, can be sentenced at the minimum sentence.

This extract from Arbour J.’s decision must be read along with how she began this passage where she stated: To the extent possible, mandatory minimum sentences must be read consistently with the general principles of sentencing expressed, inparticular, in ss. 718, 718.1 and 718.2 of the Criminal Code. ... By fixing a minimum sentence, particularly when the minimum is stilljust a fraction of the maximum penalty applicable to the offence, Parliament has not repudiated completely the principle ofproportionality and the requirement, expressed in s. 718.2(

b) that a sentence should be similar to sentences imposed on similar offendersfor similar offences committed in similar circumstances (at para. 75). From this passage, it is clear that in determining a fit sentence, it is still important to consider the circumstances of each offender andeach offence. Although Parliament has set what has been described as a new inflationary floor, the general principles of sentencing stillapply in determining what, subject to this minimum or floor, an appropriate sentence is in all of the circumstances of each case.

Wherethe application of those principles suggests the minimum sentence ought to be imposed, the court should so order. Although this willlikely most often be appropriate in the case of the best offender as described by Ms. Malik, that does not necessarily mean the minimum

will not be appropriate in other cases. In my view, each case must be considered and determined on its own facts.” [155] Although this is far from settled, I believe that the approach suggested by Spies J. is the proper approach. It is the approach thatI intend to follow in this case. [156] After reviewing the appellate court dicta I am satisfied that the “inflaitonary floor principle” must be applied to the minimumsentence in the case at hand.

In determining a fit and proper sentence I must consider whether the aggravating factors make the minimumsentence too lenient. [157] Althought minimum sentence should not be imposed routinely, I am also of the opinion that the “best offender” does not requireme to imagine the most virtuous offender who has committed the most inoccuos offence and go up from there.

Cases Considered [158] I have carefully considered the following sentencing authorities provided by counsel: R v Cape, unreported, Victoria Ct Registry141727-2 (February 3, 2010); R v CS 2014 ONCJ 371; R v GFB, 2007 BCPC 363 , 2007 BCPC 0363; R v CM, 2000 BCPC 64;R v NM, 2009 BCPC 281; R v Aird, 2013 ONCA 447; R v MB, 2013 ONCA 493 [159] The range for this type of crime is broad. [160] Mr. Roberts’ counsel urges upon me to place much reliance on the Cape decision. I agree that the case appears to be moreaggravating than the case at hand.

In that case the accused did not plead guilty, there were two victims, and multiple acts of intercourseand the judge imposed a sentence of 90 days intermittent. [161] Defence counsel also relied on other cases where the circumstances could be considered in some respect more egregious thanthe case at hand. [162] However, I am mindful of the fact that since the decision of Cape, Parliament has seen fit to double the mandatory minimumsentence when the Crown proceeds summarily and increased the minimum sentence 8 fold when it proceeds by indictment. This clearlydemonstrates to me a changing of the goal posts.

That alone is enough to distinguish the two cases. [163] In the case of G.F.B., the court specifically pointed out it felt constrained by the joint submission and in C.S., Justice Baldwinspecifically states at paragraph 35 that the factors in the case were “unusual”. [164] Furthermore, it is apparent that sentences relating to the abuse of young people are rising as courts across Canada become morefamiliar with the horrific consequences for the victims. [165] Parliament has made it very clear that the protection of young people is a basic value of our society which the Courts mustdefend.

Section 718.01 codified where the offence involves the abuse or positon of trust or authority in relation to a child is anaggravating circumstance. Sexual offending against children is serious and offenders must be treated severely by the courts.

Intermittent Sentence [166] Although the sentence I intend to impose is outside the range of an intermittent sentence, it is prudent to address whether anintermittent sentence could adequately address the goals and principles of sentencing in this case. [167] Before a judge can Impose an intermittent sentence s/he must consider, the factors set out in section 732(1): ▪ age and character of the offender; ▪ the nature of the offence; ▪ circumstances surrounding the commission of the offence; and ▪ the availability of the appropriate accommodation in the jail to ensure compliance. [168] Both the nature of the offence and the circumstances surrounding its commission, persuade me a sentence served on weekends iswholly inappropriate.

Sentence

[ 169 ] The use of a vulnerable young person for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst of intentions. [ 170 ] Those who exploit their position of trust or authority over a young person for their own sexual purpose can expect little compassion from the courts. [ 171 ] The objectives and principles of sentencing cannot be adequately fulfilled by an intermittent sentence of 90 days followed by probation with strict terms. [ 172 ] A fit and proper sentence is 6 months jail followed by probation for two years. Absent the mitigating factors including Mr.

Roberts’ positive efforts towards rehabilitation I would have considered a more severe sentence. [ 173 ] Pursuant to

section 743.21 while Mr. Roberts is in custody he shall not have any contact directly or indirectly with KW. [ 174 ] The two year probation order will include the following conditions: 200 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 your 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. 201A Within 72 hours after completion of this or any other jail sentence or conditional sentence you shall report in person to the probation office located at 105 Martin Street, Penticton B.C. and after that you shall report as and when directed by the Probation Officer. 203 You shall reside at Unit 10 - 7915 Hesppler Road, Summerland, British Columbia, which is a residence that has been previously approved by your probation officer.

You shall not change your residence or telephone number at any time without first obtaining the written consent of your probation officer. 208 You shall have no contact or communication, directly or indirectly, with KW. 211 You shall not attend or be within 20 meters of any residence, school or workplace of KW except while in a moving motor vehicle in transit to somewhere else. 227 You shall attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the Probation Officer.

Without limiting the general nature of this condition, such intake, assessment, counselling or program may relate to: sexual offence prevention and psychiatric and psychological health and you shall comply with all rules and regulations of any such assessment, counselling or program. 300 You shall not occupy any position of employment or occupy any position in a volunteer capacity where you have a position of trust or authority over any female who is under the age of 18 years unless they are your own children or you are in the immediate presence of another adult who has knowledge of all the conditions contained in this order.. 301 You must sign any release of information forms as will enable the probation officer to monitor your attendance, and completion of any intake, assessment, counselling, or treatment programs.

Ancillary Orders 1. The offence you committed is a primary designated offence pursuant to

section 487.051 and you must provide a sample of your DNA.

2. Pursuant to

section 490.012, I order in Form 52 requiring you to comply with the Sex Offender Information Registration Act for a period of 10 years. 3. Pursuant to section 737(2) you must pay a victim surcharge of $50. You must pay this surcharge by April 1, 2016. 4. I am declining to make an order pursuant to

section 490.1 for the forfeiture of the Apple cellphone. This court only has jurisdiction to order forfeiture of offence related property upon conviction of an indictable offence. 5. I have also considered but decline to make orders pursuant to

section 110 and 161 of the Criminal Code . I am satisfied that you are not a risk to offending violently in the future and that the provisions of 161 have been adequately addressed by the terms of the probation order. ________________________________________ THE HONOURABLE JUDGE G.W. KOTURBASH