R. v. R.W.V. Date:, 2011 BCPC 471

Citation: R. v. R.W.V. Date: 20111215 2011 BCPC 0471 File No: 177668-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.W.V. BAN ON DISCLOSURE s. 486.4(1) and s. 486.5

(1) CCC ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.D. MILLER Counsel for the Crown: B. Lane Counsel for the Defendant: D. Gable Place of Hearing: Surrey , B.C. Dates of Hearing: July 7, 8, November 1, 4, 2011 Date of Judgment: December 15, 2011

[ 1 ] THE COURT: This offender was convicted by me, after a trial, of sexually assaulting L.S., age 42, in September of 2009. I gave Reasons for Judgment at that time and do not intend to go into them in great detail for this sentencing. [ 2 ] However, in

summary, the offender, age 41, was the husband of a friend of the complainant and known to the complainant for about eight years. There had been no relationship of consequence between them and no romantic relationship at all. The complainant is separated from her husband and lives in a basement suite in Langley with her two children. [ 3 ] The evening before the sexual assault the complainant had been with a female friend. She was home and in bed around midnight. Her children were with their father. At about 1:30 in the morning the offender arrived at her home.

He had been drinking and said he had been in a motor-vehicle accident, as well as a fight with his wife. He asked if he could sleep at the complainant's home and she offered her son's room. The offender agreed and gained entry. [ 4 ] As the complainant prepared the bed for the offender he began his assault upon her in an obvious effort to have sexual relations with her. This involved the offender grabbing the complainant, knocking her down, banging her head on the bed's footboard. The assault continued for quite awhile with the complainant physically and verbally resisting the offender's advances.

During the assault the offender picked the complainant up and threw her over his shoulder and carried her into her own bedroom. He threw her on the bed where he pinned her down and groped her under her pyjamas. The assault continued for about 45 to 60 minutes. During that time the complainant pleaded for the offender to leave her alone. She was crying. She made a hysterical-sounding phone call to the friend that she had been out with the previous evening. The complainant's injuries from this assault consisted of an injured or torn-off fingernail and many bruises, including a large one on her breast.

All these injuries were consistent with the violent assault that she described to me. [ 5 ] Eventually the complainant, by screaming and swearing and crying, persuaded the offender to leave her alone and leave her home. When he did she locked the door and phoned her friend again. That friend came over and took her to her own home.

She called the police the next day and the investigation began, including photos of the injuries that I outlined. [ 6 ] The offender returned to the complainant's home the next day and again tried to gain entry, but the complainant did not answer the door and he left. [ 7 ] The complainant, not surprisingly, was very emotionally upset by this assault, though the probation officer says she "does not experience residual emotional trauma at the present time." However, both she and her children are left frightened for their personal safety and fear the offender's return to their home. [ 8 ] The offender pled guilty in the year 2003 part way through a trial to breaking into his estranged wife's home and sexually assaulting her.

At that sentencing hearing the Crown sought a term of imprisonment of between three to five years. The sentencing judge instead imposed a conditional sentence order of two years less a day plus three years probation. [ 9 ] The reasons for sentencing were given to me, but are cited as R. v. V. (R. W.) docket number 43030 Chilliwack Registry.

It is to do a clear disservice to the reasons for sentencing to summarize them, but as they are easily available I think I can fairly say that the basis for concluding that despite what the offender had done on that occasion it was felt that allowing him to serve his sentence in the community would not endanger that community, was based in large part upon the opinion of Dr. D.G. Passey, a psychiatrist. Dr.

Passey said that the offender "suffered from undiagnosed and untreated Post Traumatic Stress Disorder and alcohol abuse." This condition was attributed to the offender's military service in Yugoslavia during the conflict there in the early 1990's. Further, Dr.

Passey said that "the prognosis for the future is good" and that "the probability of recidivism is extremely low and he does not now present any danger to the community." That optimistic prognosis was at least in part based upon the assumption that the offender would continue to abstain from alcohol and continue with therapy for his Post Traumatic Stress Disorder. [ 10 ] I have received an extensive report from Dr. Strangeland, a registered psychologist with the Forensic Psychiatric Services. It reveals he has continued with various therapies but he has resumed drinking alcohol.

With respect to the sentencing positions in regard to the matter now before me, the Crown says a period in jail of three to six months is appropriate with a probation order to follow. [ 11 ] Mr. Gable, for the defence, says that I should impose a suspended sentence. [ 12 ] Neither counsel provided authority for their position. Although Mr. Gable seemed to take some issue, it seems obvious to me that the recent amendments to the Criminal Code mean that a conditional sentence order is no longer available as a sentencing option.

Section 742.1 precludes a conditional sentence order for "a serious personal injury offence as defined in s. 752 ."

Section 752 (

b) includes sexual assault and the definition of a serious personal offence. [ 13 ] As I am not, however, satisfied that allowing the offender to serve his sentence in the community would not endanger that community, the question is moot. Mr. Gable's more forceful submission, however, was that a suspended sentence is available and that I should impose such a sentence.

While I agree that it is an option, I do not agree that it would be appropriate in this case with this offender. [ 14 ] When I take into account the facts of this case, together with what I know about the offender, I am convinced that a jail sentence is required to meet the sentencing objectives set out by Parliament, particularly in

Part 23 of the Criminal Code and by the various appellate courts that have spoken on these matters. I indicated to counsel that my understanding of the range of sentence for an offence and an offender such as are before me was different from the three to six months stated by the prosecutor. I said I would also be considering if a Federal penitentiary term in excess of two years was appropriate. [ 15 ] Upon reflection, I have considered that this case and this offender, while not being unique, are quite unusual and thus previous cases are of limited help.

I am very much guided by the two reports that I have been given, namely the pre-sentence report and the psychologist's report of Dr. Strangeland. It is clear from all that is put before me about this man that he continues to present a danger to the community and will until he properly deals with his drinking and his Post Traumatic Stress Disorder. I accept that he has not been

drinking for a while, but it is also clear that he continues to place himself in an environment where relapse is all too likely. His attitude on that issue does not give me any confidence.

Similarly, his re-offending after all the treatment he apparently went through since his 2003 conviction is very worrisome. [ 16 ] I need to address a number of factors when deciding upon the appropriate sentence, including deterrence, both specific and general, even though this offender is of an age where rehabilitation is generally no longer thought to be something that we can be optimistic about, I have concluded that his special circumstances continue to make this a relevant consideration. [ 17 ] I have concluded that a provincial sentence of 18 months imprisonment is the appropriate sentence here.

From that I subtract the two months as the amount to be credited for the so called "dead time" that he served.

This means that the sentence on the warrant of committal is to be 16 months. [ 18 ] I also intend to impose a three-year probation order and that probation order will contain the following conditions: be required to keep the peace and be of good behaviour and report to the court when required to do so; be required to report to a probation officer forthwith upon his release and thereafter as and when directed by that probation officer. [ 19 ] He will keep his probation officer informed of his residential address. [ 20 ] He will have no contact or communication, either directly or indirectly, with L.S. or any of her children.

He is not to attend at the residence, place of employment or place of schooling of any of them. [ 21 ] He will abstain absolutely from the possession and consumption of alcohol and those substances mentioned in the Controlled Drugs and Substances Act except in accordance with a prescription from a medical doctor. [ 22 ] He will attend for and accept such counselling as may be arranged for him by his probation officer in the areas of substance abuse and sexual offending. [ 23 ] He will not be found in possession of any weapon as that term is defined by the Criminal Code . [ 24 ] Anything about the probation order from either party.

Crown? [ 25 ] MS. LANE: Nothing, nothing in addition. [ 26 ] THE COURT: Mr. Gable? [ 27 ] MR. GABLE: No, thank you. [ 28 ] THE COURT: Insofar as ancillary orders are concerned, s. 109 is applicable here, and accordingly I am making a lifetime order prohibiting him from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. I take it your client has none of those things? [ 29 ] MR.

GABLE: No. [ 30 ] THE COURT: Okay, because having done that I have to give him a reasonable period of time within which he must surrender to a firearms officer, peace officer, or otherwise lawfully dispose of any such item he now has. As he has none, I make that forthwith. [ 31 ] Then, I did give you an opportunity to address me on the gun order and the DNA order, did I not, Mr. Gable? If not, is there something you want to add? [ 32 ] MR.

GABLE: I don't think there's anything I could usefully say at this point. [ 33 ] THE COURT: Yes, well this is a primary designated offence and so it is mandatory under s. 487.051(1). It is mandatory for me to make an order, and I do, on Form 5.03 authorizing the taking from the offender such samples of bodily substances that are reasonably required for the purpose of a forensic DNA analysis. And because I am putting him in custody, I do not think I need to say anything more about that, do I? No. [ 34 ] MR.

GABLE: No. [ 35 ] THE COURT: I will waive the victim impact surcharge given he is going to be in jail for some time. Anything else? [ 36 ] MS. LANE: Crown had requested a 20-year SOIRA order. I believe the forms are in the file. Require your signature and date. [ 37 ] THE COURT: Oh, I forgot about that. Mr. Gable, anything about that? [ 38 ] MR. GABLE: No. [ 39 ] THE COURT: You have made your client familiar with the significance of this order? [ 40 ] MR. GABLE: If I might have a moment. [ 41 ] THE COURT: Go ahead. [ 42 ] MR. GABLE: Yeah, I've explained that to my client previously.

He's confirmed he's aware of what the -- [ 43 ] THE COURT: Okay. He is probably registered in any event, but yes, I will make that order. Mr. V., you are obliged to read

this order when presented to you. Do you understand that? [ 44 ] THE ACCUSED: Yes, sir. (REASONS FOR SENTENCE CONCLUDED)