R. v. J.L.B. Date:, 2017 BCPC 222

Citation: R. v. J.L.B. Date: 20170504 2017 BCPC 222 File No: 44880-3-C Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.L.B. REASONS FOR SENTENCE OF HONOURABLE JUDGE S. KEYES BAN ON PUBLICATION 486.4(1) CCC RESTRICTED ACCESS Counsel for the Crown: J. Ball Counsel for the Defendant: K. Jones Place of Hearing: Prince George , B.C. Date of Hearing: May 4, 2017 Date of Judgment: May 4, 2017 [ 1 ] THE COURT: In this matter, I am going to be referring to the victim by her initial, the first initial of her surname, in order to

protect her privacy. On October 26th, 2016, J. B. pleaded guilty to the aggravated sexual assault of his stepmother, Ms. D., which took place on July 28th, 2016. It is my job today to impose sentence upon him. Circumstances [ 2 ] The Court was provided with an Agreed Statement of Facts which included the audio recording of Ms. D.'s call to 911, as the offence was taking place, photos of the scene, photos of Ms. D. and Mr. B. after the incident, hospital emergency records, and a sexual assault report by Dr. O'Malley, and the statement of Mr. B. to the police. [ 3 ] The victim, Ms. D., is the stepmother of Mr. B.

Her husband, Mr. B.'s father, died about four months before this offence took place after a marriage of 26 years. Ms. D. had been Mr. B.'s stepmother since he was a small boy. After her husband's death, Mr. B. moved into his stepmother's ground-level apartment to assist with living expenses. For a few days prior to the incident, Mr. B. had been making remarks to his stepmother that she should be his girlfriend now, saying words to the effect that since his father was gone, she was now his to have. Ms. D. refused his advances and told him that that would not happen. [ 4 ] On the evening of June 27, 2016, Ms.

D. was sleeping in her bedroom when Mr. B. entered the room in his underwear. She told him to leave. He got on top of her and tried to restrain her by holding her arms down, but she rolled out of his grasp. He tried to roll her over onto her back and tried to kiss her. She punched him in the nose causing a nosebleed. He fell off the bed and left the room. She used a toilet paper roll to wedge the door shut. [ 5 ] Mr. B. returned and tried to force the door open. Ms. D. had to use all her strength to push back on the door. I should note that Ms.

D. was 57 years old at the time of the offence, five-foot-three, and 100 pounds. Mr. B. was 33 years old, five-foot-nine, and 180 pounds. Ms. D. heard Mr. B. leave the house. So she went out of her room to lock the doors. [ 6 ] Believing she heard him returning, she retreated to her room and called 911. The call remained open and recording during the struggle that ensued. I have listened to that recording. It is extremely disturbing. Ms. D. can be heard screaming for help for several minutes amid sounds of a struggle. Mr. B. pulled her screen out of her window and climbed in from the outside.

She tried to escape, but the toilet paper roll she had wedged into place prevented her escape and she injured herself trying to kick it out of the way. She grabbed a metal curtain rod and struck Mr. B. with it and then ran away. He caught her and threw her into the corner of the room. He held her against the door by her throat and then hit her head against the wall. She struggled to remain conscious. [ 7 ] He took off her shirt by force and groped her breasts and tried to remove her underwear.

She kept her knees crossed to prevent him from removing her underwear, but her underpants became caught behind her knee which was badly twisted. He used such force that he caused deep bruising behind her knee. Mr. B. eventually got her underwear off and penetrated her vagina with his fingers causing her a lot of pain. He took off his own underwear and positioned himself on top of her in order to have sexual intercourse, but she continued fighting back.

He tried to flip her over onto her stomach in order to penetrate her from behind, but was unsuccessful. [ 8 ] She was screaming and he began hitting her in the head to stop her. Then he put his hand over her mouth and pinched her nose closed. She thought she was going to die. She bit his finger and then he replaced his hand over her mouth and bit her forehead. She told him she could not breathe and he briefly loosened his hand, but when he felt her move, he put both hands over her mouth and pressed his entire body weight on top of her. She thought she was going to die.

About that point, they could hear the police sirens approaching and he got off her and was sitting on the living room couch when the police arrived. [ 9 ] The photos of this scene show blood smears all over the floors, walls, and doors of Ms. D.'s room, the hallway and the living room, and her nightshirt as well as on Mr. B.'s body. There are clear signs of an enormous struggle. The medical report prepared by Dr. O'Malley confirms that Ms. D. suffered a broken tooth, bruising and abrasions all over her body. There was a brownish discharge in her vagina which may have been caused by Mr.

B. forcing his fingers into her vagina. Victim Impact [ 10 ] The Agreed statement of Facts included photos of Ms. D. and her injuries. She is a tiny, thin, delicately-built middle-aged woman. I do not exaggerate to say that most of her body was covered in bruises and abrasions. The bruises were particularly severe on her back, shoulders, and her legs. Ms. D. provided a victim impact statement and spoke to Mr. Weisbrod, the probation officer, about the impact of this offence on her. Many months after this offence, she still suffers from back and shoulder pain and may have to have surgery to address it.

She suffers from insomnia and panic attacks. She is afraid to sleep in her own bed for fear of attack. She now takes medication for pain and to help her sleep. She is afraid to go out in public. Unsurprisingly, she feels betrayed by Mr. B. She fears that he will find her when he is released. I accept that the impact of this offence on her life has been profound and she may never overcome the effects of it. Record [ 11 ] Mr. B. has a criminal record, primarily for property offences and breaching court orders. He has no prior convictions for sexual offences.

Presentence Report by Paul Weisbrod [ 12 ] I have the benefit of a Pre-Sentence Report prepared by Mr. Weisbrod. According to that report, Mr. B. is the eldest of two children. He was raised by his parents until the age of nine when they separated, after which he lived with his mother, his grandparents, or his father and stepmother, Ms. D. He suffered a brain injury as a result of a motor vehicle accident in his teens. He has a Grade nine education and a very limited history of employment. He has been supported most of his life through disability benefits. Mr.

B. has been abusing substances since he was 12 years old. He used cocaine, marihuana, and alcohol. [ 13 ] Although Mr. B. indicated no remorse or concern when he spoke to police about this offence, he told Mr. Weisbrod that he knows that this offence must have "messed her up" and wanted to tell her he was sorry. He expressed a willingness to go to sex offender

treatment. [ 14 ] Mr. B. has Aboriginal status through the Tsilhqot'in First Nation's Band, but told Mr. Weisbrod he has no real connection with the Band having lived most of his life off-reserve. He does not seek Aboriginal-focused treatment programs. Psychological Report by Dr. Lopes [ 15 ] Dr. Lopes prepared a Psychological Report with a risk assessment. When asked about the offence, Mr. B. minimized his behaviour in a most extraordinary fashion according to Dr. Lopes [as read in]: With regard to the offence itself, he provided no information.

However, when asked directly over repeated times about his level of violence during the crime, he completely denied it. He said, "I thought about sex. In my opinion, I didn't -- I didn't hurt her. I didn't punch her. I feel really bad. I'll be praying on it." When challenged on the available information, he stated, "I don't remember hurting her. I think she head-butted me and maybe she hurt herself." That excerpt is found at page 7. [ 16 ] After initially denying sexual thoughts about Ms. D., according to Dr. Lopes, Mr. B. later confirmed that he thought he did have sexual thoughts about Ms.

D. and was not going to deny it. Dr. Lopes expressed the following concern at page 8 of his report [as read in]: In this case, it would seem to me that he had developed sexualized desires for his stepmother and acted on them. Of particular concern is his level of aggression and persistence. His sexual arousal was not curtailed by his victim's level of distress or the fact that she had blocked his path, called 911, and remained viciously fighting back. [ 17 ] He also said [as read in]: Moreover, it seems that Mr. B. also shows no assumption of responsibility, guilt, or remorse.

He denies having been aggressive and does not want to assume responsibility for his actions or discuss them despite having already been found guilty. Likewise, he also greatly minimized his level of interaction with the police or problematic drinking. Overall, Mr. B. presents as a very concrete thinker who has no real insight into his crime or substance use. He shows no understanding of his risk factors, triggers, or cognitive distortions. [ 18 ] Dr. Lopes' diagnosed Mr. B. with substance abuse disorder, fetishism, and diminished cognitive capacity.

He scored at a moderate to high risk for future sexual recidivism. Position of Counsel [ 19 ] Crown counsel, Ms. Ball, submitted that the range of sentence for this offence is eight to 12 years and submits that a sentence of nine years would be appropriate in the circumstances of this offence. Mr. Jones, for Mr. B., submitted that a sentence of two years' new time, taking into account the time served, followed by a three-year probation order would be sufficient to meet the demands of justice bearing in mind the childhood abuse suffered by Mr. B. Law [ 20 ] Ms.

Ball provided me with several authorities to assist me in my deliberations including R. v. DaPonte , 2012 BCSC 52 ; R. v. Rao and MacFadden , 2012 BCSC 929 ; R. v. Morin , 2013 (A.B.P.C.); R. v. G.M. , 2015 BCCA 165 ; and R. v. Duncan , 2016 (B.C.S.C.). I was not provided with any authorities in support of the Defence position on sentence. [ 21 ] In DaPonte , a ten year sentence was imposed on the offender for entering through a ground-floor window and sexually assaulting a 12-year-old girl. It was similar to this case in that the assault was rough and involved digital penetration.

The offender placed a pillow over her head which restricted her breathing. The victim was cut by his knife in the struggle. The offender was a family friend and it was clear that the offence was premeditated because the offender brought masks made of duct tape with him. The offender had a lengthy criminal record. I find this case more serious than the case at bar because of the use of a weapon and clear evidence of premeditation.

I also note that the offender in that case did not have the mitigating circumstance of a guilty plea in reduction of sentence. [ 22 ] In Rao and MacFadden , a home invasion robbery by several young men turned into a multiple rape of the victim, an exchange student who lived in the house. The sentences imposed varied according to the particular circumstances of the various offenders, but ranged from ten to 12 years. The court in that case noted that the range of sentence for home invasions with violence and sexual assault attracts sentences of at least ten years and the range otherwise was eight to 12 years.

I find that offence more serious than the case at bar because of the clear premeditation and the additional offences of robbery. [ 23 ] In R. v. Morin , a sentence of nine years was imposed on an offender who broke into the home of the 79-year-old woman and attempted penile penetration repeatedly, but was unsuccessful. The victim resisted and the offender threatened to get a knife if she did not stop. [ 24 ] In G.M. , the B.C.

Court of Appeal stated that in a serious sexual assault case, the paramount sentencing objectives are denunciation and deterrence and, absent exceptional circumstances, a sentencing judge must give primacy to denunciation and deterrence. [ 25 ] In R. v. Duncan , an eight year sentence plus a long-term offender designation was imposed on an Aboriginal man who accosted a 66-year-old woman and digitally penetrated her anus. However, a weapon was used in that offence and the offender had prior convictions for sexual assault. Mitigating Circumstances

[ 26 ] Mr. B. pleaded guilty to this offence. Ms. D. did not have to relive this horrible experience at a trial thanks to his guilty plea. Aggravating Circumstances [ 27 ] Mr. B. violated a position of trust in attacking his stepmother who had raised him as a parent since he was a child. He attacked her in her own home and her own bed. This was a prolonged attack. He continued the attack despite her vigorous resistance. I agree with the Crown submission that the circumstances are no less aggravated because there was digital penetration rather than full intercourse. It is clear to me that Mr.

B. would have carried on until he got what he wanted had the police not arrived when they did. It is very aggravating that Mr. B. choked Ms. D. repeatedly in an attempt to force her compliance. She might well have died. She certainly feared that she would. Decision [ 28 ] I am gravely concerned about the prolonged violent nature of this attack. Although the timing of the attack may have been impulsive, the impulse to commit it had apparently been brewing for some time. Nothing dissuaded Mr.

B., not his stepmother's verbal refusal over several days, not her vigorous violent resistance, not a bleeding nose, not a barricaded door, not being clobbered with a pipe, not her screams, nothing, except the imminent arrival of the police. His behaviour indicates an extraordinarily single-minded determination to have sexual intercourse with his stepmother even if he had to choke her into unconsciousness to do it and yet, when he heard the police sirens coming, he stopped and sat quietly in the living room.

I can only conclude that his behaviour had more to do with preserving his own well-being than preserving hers. [ 29 ] I am also gravely concerned about Mr. B.'s choice of target, his stepmother. There are certain taboos common to all societies and the taboo against sexual relations with one's mother has got to be one of them. Mr. B. admitted in his statement that he was determined to get into her room and have sex with his stepmother. To my mind, his determination to have sex with his deceased father's wife is bizarre in the extreme and speaks to a profound sexual deviance. I agree with Dr. Lopes that Mr.

B. has a high risk to commit further sexual offences. [ 30 ] I have considered Mr. B.'s circumstances as an Aboriginal offender. Mr. B. has little connection with his Aboriginal heritage and was raised off-reserve. He says that his parents abused alcohol and that his father was verbally abusive to his mother. He has given a vague suggestion that he was abused in some fashion as a child, but did not want to talk about it to Dr. Lopes. He said he may have been sexually abused as a child, but said he could not remember, to Mr. Weisbrod. [ 31 ] I understand Mr.

Jones' submission that some people may feel that their upbringing was "normal" simply because the unhappy circumstances of their upbringing seemed so common place, they did not realize that others might have thought it miserable. Such a submission may well apply to Mr. B., but Mr. B. did not provide the underpinnings for such a conclusion. When specifically asked about his childhood by Dr.

Lopes, he said it was "not too bad, couple of things I don't want to share, pretty good life." When asked specifically about whether he has a history of abuse, he said, "A little bit," but, "I won't share that with you." Essentially, I am being asked to speculate that Mr. B. was abused as a child and that such abuse might have had an impact on his moral culpability for this offence. On so little evidence, I am not prepared to that. [ 32 ] On the subject of rehabilitation, I find that Mr. B. utterly lacks insight into his commission of this offence and has very limited cognitive capacity.

As a result, his prospects for rehabilitation are marginal. [ 33 ] This was a dreadful crime. It is unexplained by Mr. B. It was a violent prolonged sexual attack on a woman in her own home by a man whom she had helped to raise from young childhood. Ms. D. is unlikely to ever recover a sense of safety and security in her own home. Taking everything into account, I find that the sentencing principles of denunciation, deterrence, and the protection of the public by separating Mr. B. from society are the paramount considerations applicable to this case.

The circumstances of this offence and this offender require a lengthy sentence. [ 34 ] Mr. B., please stand. [ 35 ] I sentence you to nine years in prison less time served. [ 36 ] Now, counsel can assist me here. I calculate the time served from the date of the offence to today at 279 days. At 1.5 to one, that is 419 days which equals one year, 54 days. So the reduction in sentence, taking that into account, the leftover sentence would be seven years, 311 days, to go. [ 37 ] MS. BALL: That calculation seems right to me. [ 38 ] MR.

JONES: Yes, the math is as accurate as mine, so. [ 39 ] THE COURT: Okay, thank you, Mr. Jones. [ 40 ] Now, I assume that the Crown is seeking a number of ancillary orders? [ 41 ] MS. BALL: Yes, that is correct. [ 42 ] THE COURT: All right. So for this offence DNA is mandatory. So I will order that a sample of Mr.

B.'s DNA be taken and added to the database and I will make the order in this form. [ 43 ] Madam Clerk, it is Picklist Number 161, pursuant to s. 487.051(1) of the Criminal Code , I make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances by any peace officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the national DNA databank from J.L.B. by May 30th, 2017.

[ 44 ] Next, I understand that a firearm prohibition order in this case is mandatory -- [ 45 ] MS. BALL: Yes, that is correct. [ 46 ] MR. JONES: Yes, Your Honour. [ 47 ] THE COURT: All right. There will be a firearms prohibition under s. 109 of the Criminal Code . This is a first offence for this sort of offence. So it will be for ten years. Picklist Number 164, Mr.

B., you are prohibited from possessing any firearm, other than a prohibited firearm or a restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substance for a period of ten years, and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. [ 48 ] Next, I will hear submissions from counsel, but I am assuming Ms. D. would seek the protection of an order under s. 743.21 which is no communication from Mr. B. while incarcerated. [ 49 ] MR. JONES: No objection. [ 50 ] MS. BALL: Yes, absolutely. [ 51 ] THE COURT: All right.

Well, there will be an order to that effect. Mr. B. will have no communication directly or indirectly with Ms. D. during the period of his custodial sentence. [ 52 ] Lastly, there should be an order under the Sex Offender Information Registry, and Ms. Ball, do you have a form of order with you? [ 53 ] MS. BALL: One moment, Your Honour, I believe I had one done up for the previous sentencing hearing. I do not currently see it amongst all of my papers right now. I can -- [ 54 ] THE COURT: All right -- [ 55 ] MS. BALL: Yes. [ 56 ] THE COURT: -- well, it is something that has to be done. [ 57 ] MS.

BALL: Yes. [ 58 ] THE COURT: I need to sign it and Mr. B. needs to sign it. So we can stand down for a moment if you need time to find it. [ 59 ] MS. BALL: Yes, that would be great. Thank you very much, Your Honour. [ 60 ] MR. JONES: Thank you, Your Honour. [ 61 ] THE CLERK: Order in court. All rise. This courtroom is stood down briefly. [PROCEEDINGS ADJOURNED] [PROCEEDINGS RECONVENED] [ 62 ] THE CLERK: We are on the record, Your Honour. [ 63 ] MS. BALL: My apologies, Your Honour. I have prepared that SOIRA order for you. [ 64 ] THE COURT: Okay. [ 65 ] MS.

BALL: I will advise that, that because the maximum sentence for an aggravated sexual assault is life, the SOIRA order will apply for life. [ 66 ] THE COURT: Okay. [ 67 ] MS. BALL: And do you -- [ 68 ] THE COURT: Well, we will just wait for Mr. -- [ 69 ] MS. BALL: Yes. [ 70 ] THE COURT: -- B. [ 71 ] MS. BALL: Yes. Okay. [ 72 ] THE COURT: All right. [ 73 ] MS. BALL: Yes, Your Honour. [ 74 ] THE COURT: Let me see the order. All right. There it is. [ 75 ] MR. JONES: He has signed it, Your Honour.

[ 76 ] THE COURT: Thank you, Mr. Jones. [ 77 ] MS. BALL: Thank you. [ 78 ] THE COURT: All right. [ 79 ] MS. BALL: I believe that concludes the matter, Your Honour. Okay, thank you very much. [ 80 ] THE COURT: All done. [ 81 ] MS. BALL: All right. [ 82 ] THE COURT: All right, good luck, Mr. B. [ 83 ] MR. JONES: Your Honour, just before -- I was going to ask, also, that the report of Dr. Lopes accompany the warrant of committal. [ 84 ] MS. BALL: Yes. [ 85 ] THE COURT: Okay, then -- [ 86 ] MR.

JONES: It is of great assistance at the Classification. [ 87 ] THE COURT: -- typically, the Federal Corrections officers seek to get that information so -- [ 88 ] MR. JONES: Yes. [ 89 ] THE COURT: -- of course, I will order that the report of Dr. Lopes accompany the warrant of committal. [ 90 ] MR. JONES: Thank you, Your Honour. [ 91 ] MS. BALL: Thank you very much, Your Honour. [ 92 ] THE CLERK: Are the other counts stayed? [ 93 ] MS. BALL: Does it look like they were? I was not sure if they were stayed on the last -- [ 94 ] THE CLERK: No, you -- [ 95 ] MS.

BALL: Okay. [ 96 ] THE CLERK: -- stay them at the end of the proceeding. [ 97 ] MS. BALL: Great, thank you. [ 98 ] So, yes, Crown will direct a stay of proceedings on Count 2, 3, and 4 on that Information. [REASONS FOR SENTENCE CONCLUDED]