R. v. A.T.R. Date:, 2011 BCPC 283

Citation: R. v. A.T.R. Date: 20111020 2011 BCPC 0283 File No: 55062-C-2 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A.T.R. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: Ms. N. Gregoire Counsel for the Defendant: Mr. H. Chambers Place of Hearing: North Vancouver, B.C. Dates of Hearing: October 3, 2011, Date of Judgment: October 20, 2011 [ 1 ] The defendant pled guilty to aggravated sexual assault on May 25, 2011.

He admits to having had unprotected sexual intercourse with two women between December 1, 2008 and February 27, 2010 without disclosing to them that he was HIV positive. One of them was pregnant with his child, and later breastfeeding, during the relationship.

Neither complainant has become infected with HIV to the date of sentencing. [ 2 ] Sentencing was put over for the preparation of a pre-sentence report and a psychological report, which have now been provided. [ 3 ] A.T.R. will be sentenced to a term of two years imprisonment followed by three years probation, and required to provide a sample of his DNA, and to register as a sex offender. It is important for those who wish to understand this decision to know the following. 1. Joint Submission [ 4 ] Experienced and respected counsel, Ms. Gregoire and Mr.

Chambers, have assessed the facts of the offences, reviewed the relevant cases and arrived at a joint position that this is the appropriate sentence. [ 5 ] The law requires that the Court pay deference to a joint submission made by experienced counsel and not disregard it unless satisfied the sentence is outside the applicable range: See for instance, R. v . Smith , 2004 BCCA 657 ; R. v . Gartner , 2010 BCCA 600 ; R. v . Wickstrom , 2011 BCSC 745 . [ 6 ] Ranges of sentence are established not by reference to the applicable maximum penalties but by relevant cases involving similar offenders and similar crimes:

Section 718.2 (b), Criminal Code . [ 7 ] Sometimes the reason for a plea agreement is not put on the record, but in this case counsel have provided reasons for arriving at the sentence I am urged to impose.

2. Case Law [8] As noted by Ms. Gregoire in her thorough sentencing submissions, the case of R. v. Cuerrier, (SCC), [1998] 2S.C.R. 371, established that while actual harm is not a necessary element of the offence of aggravated sexual assault, the defendant musthave caused a significant risk to the lives of the complainants by the acts of unprotected intercourse. It must be noted as well thatadvances in medical research and treatment have occurred since that case was decided in 1998. Thankfully, HIV can now generally betreated and held in check.

Medical science is better able to assess the risk to life that is posed by the virus, and better able to treat it, aswell. [9] The primary sentencing case relied upon by counsel is R. v. Nduwayo, 2010 BCSC 1467. In that case, Williams J. reviewedother related cases and arrived at a range of sentence. He observed that in cases where the complainants are not infected, the sentencewill be appreciably lower.

The factors relevant to where in that range a given offender falls include the number of incidents [and hencethe level of risk], the degree of culpability and intent, whether there has been a guilty plea, whether there is remorse and insight, and therisk of continued offending. [10] In Nduwayo, Justice Williams referred to the case of R. v. Mzite, 2009 BCSC, a case involving a jail sentence of two years forcounts in respect of which the complainants were not infected by the virus, although there were other counts involving infectedcomplainants for which the sentence was four years.

Williams J. observed that this more recent case was at variance with some of theprior cases, including R. v. Smith, already cited, but noted, as I have earlier observed, that medicine has made advances; and HIV is nowmore amenable to treatment. Williams J. viewed this development as a factor relevant to sentencing. [11] Williams J. also referred to the recent cases of R. v. Iamkhong, 2009 ONCA 478, which endorsed a sentence in the range of 2years, R. v. McGregor, 2008 ONCA 831, representing a sentence of 18 months; and R. v. Walkem, [2007] O.J.

No. 186, in which thesentence received was 22 months. [12] These cases, counsel say, support the range of sentence advanced by them in respect of A.T.R. 3. Difficulties with Proof of Risk [13] In the conviction decision of R. v. Nduwayo, reported at 2010 BCSC 1277, Williams J. held that the Crown needed to prove asignificant risk of serious bodily harm in order to secure a conviction for aggravated sexual assault. [14] I am advised that the Crown had potential problems with proof of its case against A.T.R.; in particular, difficulty quantifying therisk that he posed to these complainants.

Specifically, at the time when A.T.R. tested positive in 2003 his viral loads were too low fortransmission. Although they tested sufficiently high to transmit by late 2010, there is no way for the Crown to establish through medicalevidence at what point between those dates his viral load became sufficiently high to make him criminally responsible. [15] The risk of infection based on his 2010 viral load is quantified at a maximum of eight to 10 “transmissions” per 10,000exposures, assuming 100 exposures per year, or a risk of one partner infection per 1,000 exposures.

This is a “per exposure” estimatewhich is cumulative, i.e. each time a [non-infected] partner is involved, the risk would be about 1 to 1,000, but for 100 exposures withthe same partner, the risk would be 10%. The risk is heightened by the presence of a current sexually transmitted infection in eitherpartner. [16] Ms. Gregoire and Mr. Chambers submit that the sentencing position here is a compromise in light of the fact that the defendant’sviral load was not able to be ascertained at the time of the offences. Ms.

Gregoire says it is an open question what the defendant’s levelswere, as they can go from undetectable to high at any given time. If the viral load is undetectable it is highly unlikely that transmissionwould occur. [17] Ms. Gregoire supports A.T.R.’s guilty plea as appropriate, however. She submits that any risk of infection with HIV is such asignificant risk that the fraud committed by the defendant, by not advising, or in fact, actually deceiving one of the complainants, is suchthat the absence of proof of his viral load level may not have been fatal to the proof of the case. [18] Ms.

Gregoire points out, quite fairly, that there have been acquittals, notably R. v. Trott in the BCCA, where the risk was foundto be minimal. In light of the trial reasons in R. v. Nduwayo, counsel viewed the result of a trial as uncertain. The joint sentencingposition of counsel takes that into account, while acknowledging the significance of the risk A.T.R. may have posed. [19] If A.T.R.’s viral load was at the 2010 level when he was with either of the complainants, he would have posed a very significantdanger to these two complainants.

One would hope, and perhaps conclude in light of their testing negative, that the risk he posed was infact low or minimal. However, I do note that a lack of risk is not something for which A.T.R. can take credit, because at the time ofthese relationships he had no idea himself what risk he posed, and he took no steps whatsoever to address or control the risk. He also didnot permit the complainants to do so, by disclosing to them, or using condoms.

Not knowing himself what his levels were, he essentiallygambled with their health and their lives, and that of his child. [20] Nonetheless, the fact of risk is an element that the Crown is required to prove in order to establish guilt beyond a reasonabledoubt, and the Crown concedes that in this case, it may not have been in a position to do so. That is a significant factor in assessing theappropriate sentence and the effect of A.T.R.’s guilty plea. 4. Guilty Plea

[ 21 ] A.T.R. entered a guilty plea despite the potential problems with proof of the case against him, sparing the complainants the need to testify against him and saving the court time that would have been required to secure a conviction, if that were the result. The pleas were entered well in advance of the trial date. It is established law that a guilty plea merits a considerable reduction in sentence. 5. Victim Impact [ 22 ] Both complainants indicated a feeling of severe betrayal. The second only learned of A.T.R.’s status through a police media report.

Both declined to provide statements, but the second one, the mother of his child indicates no ill-will toward A.T.R. She hopes he will have learned from his actions that everything he does has consequences. The child is still in the care of the Ministry but she is hopeful of getting him back and resuming parenthood with A.T.R. She wishes no restrictions on his ability to contact her. 6. Attitude to the Offences and Risk of Reoffending [ 23 ] A.T.R. has expressed remorse, demonstrated understanding of the effects of his actions and takes responsibility for his actions, describing himself as reckless.

His attitude of responsibility is demonstrated by his entering guilty pleas on both counts in the face of the difficulties with proof outlined by the Crown. [ 24 ] The Crown takes the position that a statement in the pre-sentence report indicating that A.T.R. tends to minimize the victim impact is not supported by any factual observations, other than his observation that they did not contract HIV. Dr. Brown in the psychological report concluded that A.T.R. did not appear to have problems with empathy and is motivated to change and has a positive attitude towards therapy.

She later concludes that he has limited capacity for intimacy and empathy, which I took to be in a different context, the pre-offending period. [ 25 ] A.T.R. has been cooperative while on bail supervision. He has been assigned a case worker through Vancouver Coastal Health while on bail and that is of assistance to him and he is said to be responding well. He is willing to undergo treatment, and he intends to be compliant.

He has been taking medical treatment for his condition since the offences came to light. [ 26 ] While he is assessed as a high risk to expose other women to HIV unless treated or managed , the proposed sentence and A.T.R.’s demonstrated willingness to comply with supervision in the community will address this risk by firstly, isolating him from society, and secondly, requiring that his relationships be monitored by a probation officer following his release from imprisonment.

The psychiatric report notes as well that in A.T.R.’s case a number of factors that tend to indicate recidivism are not present. [ 27 ] The total period for which A.T.R. will be monitored by correctional authorities, including imprisonment and probation, will be almost five years, longer than could be achieved if A.T.R. were sentenced to imprisonment for a federal sentence of anything less than four and one-half years. The cases do not justify a sentence as high as that.

The Criminal Code prohibits probation being attached to a sentence longer than two years; hence this sentence will permit longer monitoring than would any longer sentence within the available range. In addition, A.T.R. will be monitored for the rest of his life through the sex offender registry, pursuant to

section 490.011(1)(a). 7. A.T.R.’s Background [ 28 ] A.T.R.’s personal background is set out in the materials filed with the Court and I will not go into it in detail now. It is sufficient to observe that he experienced a troubled and challenging childhood through various foster placements and group homes due to his mother’s mental health and substance abuse issues. He maintains a few close familial relationships but it is clear that his parents failed him, and the state was required to intervene. [ 29 ] He has had diagnoses of several behavioural and emotional disorders, as well as depression.

His childhood challenges are relevant to assessing the level of his culpability for these offences. Some of these disorders are now regulated by medication. [ 30 ] He became sexually promiscuous at an early age to compensate for intimacy deficits in his childhood. As a result he contracted HIV in 2003 at 22. He reacted with shock and then denial, and essentially ignored his status for the next several years, although his doctor had explained to him the risks and the need for disclosure.

He not only ignored any obligations he had to these partners, but gave no attention to his own health, seeking no treatment until after the offences came to light. He says he did inform some partners, but not the two complainants.

He said that he remained in denial and was not trying to harm them intentionally. [ 31 ] A.T.R. used non-prescription drugs during the offending period, but reports that he ceased using alcohol and drugs in 2009 and stopped dating entirely in 2010, abstaining from sexual relationships out of embarrassment and respect for the need for disclosure, which he anticipates will hinder his romantic prospects. [ 32 ] A.T.R. received a conditional discharge in May 2010, after these offences came to light, for an assault on the second complainant, the mother of his child.

The Ministry of Child, Family and Community Services became involved as a result of the assault allegation, and it was only through their involvement that the complainant became aware of A.T.R.’s status. 8. Culpability

[ 33 ] Measuring A.T.R. against the yardstick of other offenders who have offended in a similar fashion, he must be assessed as having moderate culpability. His background must be considered a factor that compelled him to seek intimacy at the expense of protecting the interests of his partners. He may be distinguished from an offender who offends in a more serial fashion or worse, with intent to harm. He describes his behaviour as reckless, and it may also be considered callous disregard. It is not as high on the scale as that described in the case of R. v.

Aziga, 2011 ONSC 4592 [para. 151] as someone who would “intentionally put their partners at mortal risk solely to satisfy their own immediate proclivities.” [ 34 ] A.T.R. may also be distinguished from offenders who continue to reoffend after repeated intervention by authorities such as the police or the medical profession. While he maintained his denials for a time when confronted, he did not continue to offend once the Ministry discovered the offence against the second complainant.

Conclusion [ 35 ] I am satisfied that counsel have considered all of the relevant factors and accurately applied the law to the facts of A.T.R.’s offences. The sentence proposed is within the applicable range, and appropriate for the circumstances of these offences and A.T.R.’s level of culpability, in my view. [ 36 ] A.T.R. is sentenced to a federal term of imprisonment of two years, followed by three years probation with the terms requested by counsel. He will provide a sample of his DNA while in custody and register for the Sex Offender Registry. __________________________________ The Honourable Judge C.

Baird Ellan Provincial Court of British Columbia