R. v. O.R.(F) Date:, 2016 BCPC 223

Citation: R. v. O.R.(

F) Date: 20160727 2016 BCPC 223 File Nos: 226885-1 226885-2-A Registry: Vancouver Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. O.R.(

F) REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: Joanna Medjuk Counsel for the Defendant: Adi Glouberman Place of Hearing: Vancouver , B.C. Date of Hearing: June 2, 2016 Date of Judgment: July 27, 2016

Introduction [ 1 ] The offender pled guilty to sexually touching a young person while being in a position of trust to that young person and to breaching a term of his release. The task for this court is to impose a sentence that is fit and appropriate having regard to all of the relevant principles and circumstances. Circumstances of the Offences [ 2 ] When the victim was eight years old, the offender began a relationship with the victim’s mother, S.S. The relationship resulted in two children and ended in 2004 when the victim was 12 years old.

Despite the relationship ending the offender had continued contact with the victim and her half siblings. [ 3 ] On December 16 th , 2011, the victim went to a high school winter formal dance. At the time the victim was weeks away from her 18 th birthday. When the dance was over the offender picked her up and on the way home the offender parked the car at which time the offender and the victim engaged in sexual contact.

In this regard the offender fondled the victim’s vagina and she stroked the offender’s penis until he ejaculated. [ 4 ] Between April and May 2012, the victim and the offender had a consensual intimate relationship. The victim’s mother learned of this relationship and the police were notified, who then contacted the offender and asked him to come to the police station for an interview. The offender cooperated and provided a complete statement. [ 5 ] The offender’s explanation for his actions was that he gave into temptation.

Apparently, prior to December 16, 2011, the victim and the offender had engaged in suggestive and inappropriate texts wherein the victim sent the offender suggestive photos of herself. [ 6 ] The offender was eventually charged and he was released on several conditions. One of the conditions prohibited the offender from having contact with the victim. Circumstances of the Breach [ 7 ] On August 8, 2015, the offender was at a family event when the victim showed up. Concerned about his no contact condition, the offender prepared to leave but the victim and others convinced him that it would be okay for him to stay.

When the evening ended the victim needed a ride home. The offender and others offered the victim a ride. She accepted the offer and while travelling together the police stopped the group. It was at this stage that the police learned of the no contact order. The offender was arrested and released. The Offender’s Background [ 8 ] The offender is 42 years old. He was born in El Salvador. His grandmother was his primary parent and when he was in his early teens he moved to the United States where he lived with his aunt. In 1995 the offender’s grandmother immigrated to Canada.

The offender visited his grandmother and in 1999 he obtained his Canadian permanent residency. [ 9 ] The offender has two children with S.S. and two with his current common-law partner. The offender and his partner have been together for eight years. He has bi-weekly supervised visits with the kids that he has with S.S. and he provides financial support. [ 10 ] The offender graduated from high school and he has one year of college studies. He is an experienced roofer and currently employed. He does not use substances and only drinks on occasion.

He does not have a criminal record. [ 11 ] The pre-sentence report confirms the offender is willing to attend programs, that he takes full responsibility for his actions and he has some appreciation as to the consequences of his actions on the victim. [ 12 ] A psychological assessment of the offender was performed and it is noted that the offender does not suffer from any major mental illness, that he does not meet the criteria for paraphilia, but that he has had some depressive and anxiety symptoms which are related to the legal proceedings.

He was found to be a low risk to re-offend. [ 13 ] The psychological report recommended an order preventing the use of substances because it was felt that substances particularly alcohol could exacerbate the offender’s risk of becoming disinhibited. There was also a recommendation that the offender attend a program for sex offenders. There was no explanation as to why the recommendation was made.

The court observes that, without counselling and without an abstention from alcohol, there have been no further offences by the offender, further, there is nothing in his history suggesting he has an alcohol problem or that he is easily disinhibited by alcohol. Essentially, the recommendations in the psychological report have not been supported and ignore the absence of a criminal record, the circumstances of the offence and the offender’s post offence history. Victim Impact

[ 14 ] After the offence the victim reported feeling depressed and having suicidal thoughts. She has not sought out counseling, nor does she wish to have any at this time. She hopes that the matter can conclude so she can move on with her life.

Position of the Parties [ 15 ] The Crown urges the court to impose a 6 month custodial sentence for the offence of invitation to sexual touching and a 7 day sentence for the breach of release conditions. [ 16 ] In support, the Crown argues denunciation and deterrence are the primary sentencing objectives with strong recognition for the aggravating fact that the offender abused a person under the age of 18 years and that the offender was also in a position of trust. [ 17 ] Counsel for the offender urges the court to recognize, the unique circumstances of the instant matter, the offender’s lack of criminal record and his remorse as factors justifying the imposition of the minimum sentence of 14 days for the offence of sexual exploitation and time served for the breach of recognizance.

Purpose and Principles of Sentencing [ 18 ] The purpose and principles of sentencing are found in ss. 718 – 718.2 of the Code . Plainly stated, these sections stipulate the intention and reasons behind sentencing. [ 19 ]

Section 718 of the Code outlines the fundamental purpose of sentencing as: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 20 ]

Section 718.01 mandates that the primary sentencing objectives for offences involving the abuse of persons under the age of eighteen years are denunciation and deterrence. [ 21 ]

Section 718.1 directs that a sentence must be proportional to the gravity of the offence and the degree of offender responsibility. [ 22 ]

Section 718.2 sates in part: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[ 23 ] In the instant case the primary sentencing objectives are denunciation and deterrence. The circumstances of the case and the offender’s background do not support a need for rehabilitation. I say this with the appreciation that the reports recommend counselling, however, the report is silent on why counselling is recommended. As such, one can only assume the recommendation is primarily due to the offence itself.

Given the offence was a one-time event, completely out of character for the offender, and without evidence of a long standing problem, I cannot conclude that counselling is needed or would help. [ 24 ] With respect to the gravity of the offence and the degree of offender responsibility, the Crown proceeded summarily and the offence was not predatory in nature. Further, threats were not employed to silence the victim or to commit the offence. Despite this, the victim was not 18 and the offender occupied a parental role.

Cases Submitted by Counsel [ 25 ] Counsel submitted several cases as an aid to identify an appropriate range of sentences. In considering the cases the court recognizes that “ranges” do not represent inflexible boundaries and that individual circumstances may justify a sentence above or below the range. [ 26 ] In R. v. D.R.W., 2012 BCCA 454 , the offender’s appeal of an 18 month sentence imposed after he pled guilty to sexual assault was dismissed. The conduct occurred over a five-month period and involved masturbation, fellatio, oral sex, sexual touching, and kissing.

The offender was 51 years old, educated without a related record and his guilty plea was not mitigating as the complainant had to testify at the sentencing hearing. Of note is the sentencing judge’s observation in that the accused manipulated and groomed the complainant and that there was an “extensive general sexualisation of their parent-child relationship.” [ 27 ] In R. v. Basil, 2002 BCCA 276 , the offender appealed a 3 year sentence that was imposed after she was convicted of two counts of sexual exploitation. The appeal was allowed and a sentence of two years was imposed.

The two male complaints were 14 and troubled when the appellant started grooming them. She gave them marihuana, alcohol and gifts. The relationship evolved to frequent incidents of intercourse. The appellant was 33; she did not have a criminal record and she had the support of family and friends. The sentencing judge found the appellant lacked insight and that she was highly manipulative. In allowing the appeal the court observed the circumstances of the offences were not so exceptional to justify a sentence of three years. [ 28 ] In R. v.

D.M.W., 77 B.C.A.C. 231 , the offender appealed a 9 month sentence of imprisonment after the appellant was found guilty of sexual assault and sexual exploitation. The appellant was the victim’s father and was raising the victim. When the victim was 15 years old the appellant entered a shower where the victim was. He rubbed her back and tried to touch her breasts. On another occasion the appellant entered a bed occupied by the victim and he rubbed her back, her sides and her buttocks. The appellant was under the influence of alcohol when he committed this offence.

The appellant had a twenty-year old conviction and at the time of the offence he was unemployed and suffering health issues. The stress associated to the problems in his life resulted in the abuse of alcohol. The court held the sentence imposed was within the range and not unfit. [ 29 ] In R. v. R.M., 2012 BCPC 530 , the offender pled guilty to sexual assault and breaching a term of his recognizance. When the victim was eight years old the offender, who was the victim’s father, placed his hands under the victim’s clothing and stroked her vagina on three to five occasions.

The breach of the recognizance occurred when the offender was observed in a car with the victim in circumstances that were contrary to his release order. The offender was 53; he was born and raised in Colombia and was a permanent resident. He was the sole income earner for the family and prior to sentencing he had started to take counselling. A 90 day intermittent sentence was imposed followed by probation for three years. [ 30 ] In R. v. Roberts, 2015 BCPC 266 , the offender pled guilty to sexual exploitation and a 6 month custodial sentence was imposed followed by probation for 2 years.

The offender worked in his family’s restaurant and the victim’s father approached the offender and asked if he would hire the victim. At the time the victim was 17 and suffering from depression. The offender hired the victim. At first, the offender flirted with the victim and this progressed to the offender kissing the victim. The relationship became sexual involving intercourse, oral sex and the use of a sex toy. There were numerous text messages between the victim and the offender and at the request of the offender the victim sent naked pictures of herself.

The sexual contact between the two occurred over 11 months and at a time when the offender knew the victim was abusing alcohol, suffering from depression, suffering from a bi-polar disorder, that she had suicidal ideations and that she had engaged in self-harm. The offender was 36; he had six children and he was separated. His explanation for his conduct was he thought his conduct was morally wrong but not legally wrong.

The sentencing judge declined to impose an intermittent sentence because he felt the nature of the offence and the circumstances surrounding its commission would make such a sentence inappropriate. [ 31 ] A review of the cases supports a sentencing range of 90 days intermittent to 3 years. It seems higher sentences are imposed in circumstances where the victim is very young; the conduct is very invasive; the victim is vulnerable by virtue of something in addition to their age; the offences occurred over a long period of time and the offender used threats to offend or conceal the offences.

Aggravating Factors [ 32 ] It is aggravating that the offender was in the role of a step-parent, albeit no longer living at the victim’s home at the time of the offence. It is also aggravating that the victim was under the age of 18 years at the time of the offence. Mitigating Factors [ 33 ] The offender pled guilty which is substantially mitigating. This is because he saved the state the expense in prosecuting him; he

has also saved the victim the discomfort associated with testifying and he has waived his constitutional right to have the state prove thecase against him beyond a reasonable doubt: R. v. Sandercock (1986), 1985 ABCA 218 , 22 CCC (3d) 79 (Alta. CA). I alsonote the offender has expressed remorse and demonstrated an understanding as to the harm he caused the victim and her extendedfamily. The offender has the support of family; he has no criminal record and he cooperated with the authorities.

Decision [34] Any offence where the offender abuses their position of trust for the purpose of sexually exploiting a person under the age of 18years requires a sentence that has the primary sentencing objectives of denunciation and deterrence. [35] This court recognizes some degree of denunciation and deterrence has been and will be achieved by the arrest, the courtappearances, the imposition of a criminal record, and the requirement that the offender participate with the Sexual Offender Registry: R.v.

D.E.S.M. (1980), C.C.C. (3d) 371 BCCA. [36] While this court is aware of the submission indicating there was a flirtatious relationship between the victim and the offender,the offender who was older and in a position of trust, had the duty to resist. This is reflective of social policy wherein the older personwho holds all of the power must and should decline. In R. v. Audet, (SCC), [1996] 2 SCR 171, the court stated atparagraph 23: 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, at p. 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. [Emphasis added.] [37] This approach reflects the need to protect young persons because of the different positions of power, maturity and stability thatexists between young persons and those in positions of trust. [38] In determining a proportional sentence, this court is of the view that the sexual exploitation of a young person is a seriousoffence.

This is because of the damage caused to young persons by sexually abusive behaviour. Moreover, such conduct involvestaking advantage of the young and vulnerable. Despite this, the offence in the instant case involved one incident with an older youngperson who was not troubled in that she did not suffer from emotional issues. [39] As to the degree of responsibility, the offender holds a high degree of responsibility.

He knew the nature of his position overthe victim and he knew the victim’s age. [40] As such and after considering all of the principles and circumstances, I am of the view that a term of imprisonment for a periodof 90 days to be served intermittently followed by probation for two years will address the purpose and principles of sentencing. Specifically, it will deter and denounce the offender’s conduct while being proportional to the gravity of the offence and the degree ofresponsibility.

I have considered the 14 day minimum and decline to impose it as such a sentence would fall short of meeting thesentencing objectives. [41] Accordingly, I direct that your first day of sentence will be served today. Thereafter, you will surrender as directed to anappropriate facility on Friday, July 29, 2016, at 6:00 p.m. where you will remain incarcerated until 6:00 p.m. Sunday, July 31, 2016, andon consecutive weekends until the sentence is completed. [42] While not in custody, you will be bound by a probation order with the following terms and conditions and for two years afterthe expiration of your sentence.

The terms and conditions of the order are as follows: Keep the peace and be of good behaviour; Abstain from communicating directly or indirectly with A.S. Appear before the court when required to do so by the court; Notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or your probationofficer of any change of employment or occupation; Provide your probation officer with your current residential address and if you change that address provide your probation officer withyour new residential address; You must report by no later than 4:00 p.m.

Thursday July 28, 2016, to a probation officer at 275 East Cordova Street Vancouver BC andthereafter as and when directed by your probation officer; Within the first 16 months of your probation order you must complete 100 hours of community work service. Such community workservice must be completed at the direction of and to the satisfaction of your probation officer. With respect to the offence of failing to comply with a recognizance I sentence the offender to 1 day with the record reflecting 2 days’time served and credit for 3 days.

Ancillary Orders [ 43 ] Pursuant to s. 487.051 – the offender must provide a sample of his DNA. [ 44 ] Pursuant to s. 490.012 – I order in Form 52 that the offender comply with the Sex Offender Information Registry Act for 10 years. [ 45 ] In all of the circumstances and recognizing that a victim fine surcharge would take away from the financial support the offender provides to his children the victim fine surcharge is waived. ____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia