R. v. G.S.M. Date:, 2011 BCPC 167

Citation: R. v. G.S.M. Date: 20110311 2011 BCPC 0167 File No: 55206-2-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. G.S.M. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: R. Edwards Counsel for the Defendant: B. Mickelson Place of Hearing: North Vancouver , B.C. Date of Judgment: March 11, 2011 [ 1 ] THE COURT: The defendant has pled guilty to two counts of touching for a sexual purpose of a brother and sister, age seven to nine and nine to 11 respectively. The offences involve repeated sexual abuse over an approximately 18-month period.

It is common ground that the abuse ended when the female complainant made a partial complaint to her parents in the fall of 2007. Positions of Counsel [ 2 ] The Crown seeks a federal sentence of two-and-a-half to three years and the defence one of 12 to 14 months in the provincial system. Facts [ 3 ] I take the facts from the report of Dr. Bob Ley, a clinical and forensic psychologist well known to the courts, who provided an opinion regarding Mr. M.'s personality and psychological function and an assessment of his risk to reoffend. I am going to quote from that report.

This is the only portion of the reasons where I will refer to the children by name. In the remainder of my reasons, I will refer

to them as the complainants. It is from Dr. Ley's report, a somewhat graphic description of the facts, and I will just warn those present that if they do not want to hear them, now would be a good time to excuse themselves for about five minutes. [ 4 ] Dr. Ley states [as read in]: Based upon R.'s disclosures, it is clear that Mr. M. fondled and touched her genitals and vagina. As well, he performed oral sex upon her on a few occasions. Additionally, seemingly Mr. M. encouraged R. to fondle his penis on occasions. Once he ejaculated. As well, Mr.

M. sexually abused R.'s older brother T. by performing oral sex on T. on allegedly three occasions. Apparently, Mr. M.'s sexual abuse of R. was preceded by some grooming of her, as Mr. M. engaged R. in some sexual conversations such as inquiring if she knew the meaning of the word "fuck", and as well he showed her some adult heterosexual pornography. Typically, Mr. M. promised or gave R. and her brother small sums of money or other treats such as candies in exchange for their sexual compliance. Typically, the sexual abuse of the C. [phonetic] children occurred in Mr.

M.'s home, usually in his bedroom or the spare room in the basement. There were some reported incidents of Mr. M. sexually abusing T. and R. in his car. Also, seemingly, Mr. M. once performed oral sex on R. while she and her brother accompanied Mr. M. and Ms. D. [phonetic] on a Hawaiian vacation. By virtue of Mr. M.'s guilty plea, implicitly he confirms the substance of the complaints against him. In my interviews with Mr. M., his account of his sexual abuse with these children was largely similar to their disclosures with some slight exceptions. Mr.

M. informed me that R.'s estimate that she was sexually abused by him more than 80 times was a slight exaggeration, as Mr. M. contended that there were about 50-plus incidents of such sexual abuse. However, Mr. M. claimed that he performed oral sex upon R. on three occasions only and that most commonly his fondling of her genitals occurred on top of her clothing. Mr. M. stated to me [that is, Dr. Ley, of course] that he placed his hand on her flesh perhaps 12 to 15 times. Also, Mr.

M. contended that his sexual abuse of R. occurred for approximately an 18-month period when she was seven-and-one-half to nine years of age, and that the last incident of sexual abuse occurred in the fall of 2007, which was almost three years before R. disclosed her sexual abuse to her counsellor, who in turn contacted the police. [ 5 ] Mr. Edwards for the Crown highlighted the following additional facts. The defendant and his wife married in 1996. The wife was a close friend of the victims' grandparents and became particularly close to their mother after the grandmother passed away in 2000.

Their mother is the Ms. D. referred to in the former passage. The grandfather passed away in 2004, and the defendant and his wife grew into the role of surrogate grandparents. The children's parents were separated during the time when the abuse occurred. They reconciled in the fall of 2007. [ 6 ] There is some uncertainty about the timing of the initial disclosure. The defendant asserts that it was the final incident of abuse, and the Crown is not in a position to prove otherwise. This incident occurred at a family gathering.

The defendant was in a hot tub with the children and said to the female victim words to the effect of, "I want to take you out in the bushes and fuck you." She reported this to her parents. They confronted the defendant, and he acknowledged that he had said it but said he had not meant it. After that, the parents did not permit the daughter to be in his company, and they believed the issue was resolved.

A year or more later, the complainant made some disclosures to her counsellor, and these were reported to the police in early 2010. [ 7 ] The defendant was arrested in June 2010 and placed on a recognizance with the usual restrictions for offences of this kind.

The Crown related excerpts from the children's statements, which I will not relate, save to say that the female said she considered the defendant to be a really good family friend; that he attempted to persuade her not to tell by saying that she would never see him again and that she was not being molested; and that he would put on sex movies, but when someone came, he would switch them off and act nice. [ 8 ] With respect to the brother, I note he stated that the defendant told him about what he was doing to his sister and that he became afraid to tell because he thought the defendant would try to hurt his sister, or he would get into trouble because he did not tell right away.

He also talked of the defendant acting nice in front of his parents. Offender [ 9 ] The defendant is 67, born and raised in North Vancouver. In his adult life, he has been a respected member of the community, and the many reference letters spoke of his loving and caring relationships with his mother-in-law, daughter, grandchildren, nephews and nieces, friends and neighbours.

He was steadily employed for the most part until retiring relatively early in 1998, after which he spent considerable time helping others and entertaining and travelling with his wife. [ 10 ] His childhood is described as unremarkable with the exception of an experience with sexual abuse when he was 15 to 16 years old by a man in his forties, related in the pre-sentence report by Mr. Vito Simone. The defendant said he did not believe the incidents had a negative effect on him.

He went on to have lengthy marriages to two women, and there is nothing in the reports that is suggestive of any other predatory behaviour on his part. He denies ever having sexual attraction to children. [ 11 ] He has no criminal record, apart from a break-in at 18, but he did relate some additional youthful acting-out behaviour in his teens to the author of one of the reports. [ 12 ] The pre-sentence report describes minimal use of alcohol and no drugs other than medication for diabetes. Pre-sentence and Psychological Reports [ 13 ] As put by Dr.

Kropp in the psychological report, the defendant did not relate his criminal behaviour to his abuse as an adolescent, describing those incidents as essentially consensual and "not unpleasant." [ 14 ] The defendant has undertaken counselling voluntarily since his arrest with a Dr. Saulnier who provided information to both Mr.

Simone and Dr. Ley. Based on Dr. Saulnier's opinion, Mr. Simone concludes that the offences are opportunistic rather than predatory and that the defendant is remorseful, recognizes the harm he has caused, and though unable to offer an explanation for his behaviour, he realizes it was inappropriate. He is assessed as suitable for group sex offender therapy at Ford Mountain and/or in the community. [ 15 ] The conclusion in the psychological report is similar, and Dr. Kropp concludes that the defendant is a relatively low risk to reoffend. Dr.

Kropp does observe that there are some risk factors arising from the defendant having attributed his actions to some extent to sexualized behaviour on the part of the children. Dr. Kropp said he could find little evidence of this and concludes that "it seems plausible that the defendant himself might be responsible for at least some of the children's precocious behaviour." [ 16 ] The defendant maintained to both Dr. Kropp and Dr.

Ley that the incidents began when the female victim, seven at the time, straddled his lap, started rubbing back and forth causing him to have an erection and then said to him, "Are you getting a boner? Are you going to come?" following which he ejaculated into his pants. Whatever might be said about the plausibility of this particular event, it must be observed that the defendant has admitted to using pornography in his grooming of the children. Further, as he stated himself to Dr. Kropp, "That doesn't justify what I did." [ 17 ] Dr.

Kropp states that victim empathy and personal responsibility should remain at the forefront of his therapy. Dr. Kropp also says that he is struck by the defendant's remarkable lack of self-awareness while he was offending, the creation of cognitive distortions, and his level of sexual gratification as indicative of non-exclusive pedophilic interest that manifested when the opportunity arose.

These conclusions appear to be based on the defendant's assertions that over time the abuse became acceptable and commonplace to the children and to him, and that he told himself the children were not being hurt, that they seemed to be enjoying it. He stated as well that he felt derailed by a diminished sex life with his wife coupled with a continued need for sexual release. [ 18 ] Dr. Kropp's conclusions may be contrasted with those of Dr.

Ley who speaks of "suggestive evidence," based only upon the account of the defendant, I note, that the female victim was sexualized and perhaps sexually abused by others prior to the defendant's molestation of her. Dr. Ley concludes that there is "no doubt" that her sexualized behaviours with him before his abuse of her "created a foundation for the defendant's sexual arousal to her and then his sexual touching of her." [ 19 ] I must say that I find the initial scenario as described by the defendant to be highly implausible. Further, even if it did occur, and with all due respect to Dr.

Ley's contrary opinion, I agree with Dr. Kropp that it does not begin to explain the defendant's own reaction and subsequent actions over the ensuing year-and-a-half.

While the defendant professes not to be a pedophile or to have sexual attraction to children, the only normal and appropriate reaction to the child's behaviour as described by him would have been to withdraw at the very outset and report it directly to the parents. [ 20 ] Nonetheless, I do accept that the defendant has been doing some soul searching and wonders himself how and why these things could have happened, and he is now doing some investigation into the effects of his own admittedly less traumatic experience as a teenager.

And I make these remarks really only for the benefit of the defendant and the family of the victims. My negative assessment of the truthfulness of the defendant's explanation for commencing these offences does not enter into my determination of the sentence. Victim Impact [ 21 ] The father of the two complainants filed and read a victim impact statement to the court.

It was a very personal and powerful description of the devastation that child abuse wreaks within the immediate family, both on the children themselves and on their parents, who cannot help but question how they could have seen or prevented these events.

The sad reality is that they are rarely foreseeable or even recognizable as they happen, because it is the very level of trust and closeness attained by the offender that enables the abuse to occur. [ 22 ] It is said that the children will require years of counselling, that they are feeling singled out and victimized in relation to other children with whom the defendant has apparently had normal close relationships. The boy, now 15, is becoming isolated from his friends and has had thoughts of suicide. The girl, now 12, is resisting counselling.

Aggravating Circumstances [ 23 ] The aggravating features cited by the Crown were as follows. These were very young complainants, in their formative years. The defendant admonished them not to tell, a common feature in cases of this type. He groomed them with the use of pornography and sexualized conversation. He bribed them. He breached their trust and that of their parents and family. He abused his authority. The incidents were repeated over many months, particularly viewed from the perspective of the lives of these children. In the case of the female victim, they were frequent and numerous.

Mitigating Factors [ 24 ] Mr. Mickelson, for the defence, in his able submissions, cites the following mitigating features. The defendant pled guilty early in the process. He was cooperative with the police. He has exhibited remorse and insight into the effects of his actions and the need to discover why they happened. He is assessed as a low or a very low risk to reoffend. He has no relevant criminal record. There was no violence beyond that which is incidental to the nature of the offences. He is amenable to treatment.

He has experienced significant repercussions from the disclosure of the offences, and his offending behaviour stopped when it first came to light. He has been a constructive member of the community apart from these offences. The behaviour is said to be aberrant in relation to the way he has otherwise conducted his life, and he has numerous favourable references.

Cases [25] The cases cited by counsel were R. v. V., October 22, 2010, File No. 54283-1 (BCPC); R. v. T.R.D. [2010] B.C.J. No. 949(BCPC); R. v. P.A.T. [2008] B.C.J. No. 1386 (BCPC); R. v. M.S.C. [2006] B.C.J. No. 2660 (BCPC); R. v. R.N.S. 2000 SCC 7 ,[2000] 1 S.C.R. 149 (SCC); R. v. Stuckless, (ON CA), 111 O.A.C. 357; R. v. D.(D.), (ON CA),157 O.A.C. 323, and R. v. Goff, 2009 BCSC 1621. Most of the names are initialized because of the need for the ban on publication.

Thecases of T.R.D. and P.A.T. and others preceding them were decided before the amendments removing the possibility of a conditionalsentence order for a case of this type. One of those involved a single victim, and the other two involved two victims, in one of them,many years apart. [26] While I do not necessarily agree with the submission of the Crown that the amendment will cause an inflationary effect onsentences, the converse may prove to be the case; that it removes a deflationary effect. In any event, it is well documented in the casesincluding Lennax 2008 BCSC 1761, cited in R. v.

V., that the amendment simply codified the prior law. [27] The most comparable and persuasive of the cases cited in assessing the range, in my view, is that of R. v. Goff. While I note thatcase involved a joint submission for a period of 30 months, and the defendant was said to prefer the programs available in the federalsystem, Justice Ehrcke was required to assess and did assess the sentence as within the appropriate range and appropriate for the verysimilar offences committed in that case. Like this defendant, Goff had pled guilty and was willing to undergo treatment. He had nocriminal record.

The offending period was longer, but there were fewer incidents. The victims were both female, and there appears tohave been no oral sex. [28] The other cases are of assistance and define the applicable range for these offences as between one and three years. Each issomewhat distinguishable. Specifically, while there were aggravating circumstances present in R. v. V. that are not present here, theoffender's age and health were also significant factors in the two-year sentence that offender received.

I do not find out-of-provincecases to be particularly helpful, though I agree with the sentiment that there should be consistency in the level of condemnationthroughout the country. Assessment of Sentence [29] The assessment of sentence in these matters is a necessarily clinical process. It does not account for the devastating impact onthe victims. That is a given in every case whether the defendant recognizes it or not. Similarly, the sentence does not increase with thedefendant's lack of insight or recognition of the harm he has caused.

By definition, a person who offends in this fashion is at the timedevoid of natural empathy in relation to his victims or he would not have done it. In a sense, it would be worse if he recognized the harmand yet persisted. [30] As well, his newly gained insight after discovery of the offences and perhaps some counselling serves to reduce the future risk hemay pose, but as I will point out in a moment, I do not see it as a mitigating feature. The individual personal betrayal of a family and wifesimilarly are not factors that figure into the process of sentencing. They occur in many of the comparable cases.

Every case of this typeinvolves a breach of trust and a position of authority.

These, while statutory aggravating features, are common factors. [31] Given that non-custodial sentences are no longer available for this kind of offence, the process of sentencing now looks primarilyat how the offences compare with other similar cases, of which there are far too many, and where in the range or on the spectrum ofsentences imposed on other similar offenders the particular acts and surrounding circumstances line up. [32] The law concerns itself more with denunciation and deterrence than with overt punishment, and while deterrence is said to be afactor, it is doubtful that offenders of this type contemplate the possibility of federal time while perpetrating their offences.

Nonetheless,the cases admonish courts to impose sentences that will send a message to other potential offenders to dissuade them from acting whenthe opportunity arises. [33] The aspect of denunciation, which is akin to punishment, is to my mind the primary aim of sentencing in a case of this kind. It issaid to have an element of retribution, but it does not come close to addressing the harm caused from the perspective of either the victimsand their families or the community.

These are the kinds of cases where any sentence imposed by the court cannot come close toproviding either reparation or retribution in my view. [34] Sometimes the consequences to the offender of being caught, humiliated, and stigmatized in the community are cited asmitigating factors, as they have been here, but they are only natural consequences of the actions coming to light. One would think thoseconsequences themselves might be significant deterrents, but offenders of this type usually do not expect to be discovered and often takesteps to secure the silence of their victims, as in this case.

The consequences of discovery are simply additional punishment beyond thatwhich the court can impose: the loss of family support, community stature, in some cases, livelihood. Those, like victim impact, simplygo hand in hand with the offences, and sadly, vary little from case to case.

The offender's prior stature in the community is seldom amitigating feature, in my view. [35] For instance, while there are many favourable references here, the Crown ascertained that all but one of the authors wereunaware of the full circumstances when they wrote the letters, as the defendant had minimized his actions; not an unusual feature in thesecases.

Two of the original letters were subsequently withdrawn once the full facts were known. [36] In addition, whatever the offender's prior stature may have been, it is precisely his apparent trustworthiness and good characterthat disguised the risk he posed and enabled the offences to occur. It is a sad commentary, but it is often persons who volunteer andwillingly become involved with children, people who may seem “too good to be true,” that turn out to be predatory. The ironic effect ofthat is that those with completely innocent and well-meaning motives, like providing purely positive childhood experiences, become

suspect because of the kind of betrayal that occurred here. [ 37 ] One of the things the cases do emphasize in mitigation is the effect of the guilty plea, in particular where there may have been problems obtaining a conviction. That applies particularly in the case of a single complainant where the law essentially requires corroboration, and mere denial may suffice to secure an acquittal.

The principle is somewhat less applicable where there is more than one victim, but in a case such as this where additional trauma would be caused by requiring small children to testify, and there might be some concern with their ability to articulate what occurred, emphasis should be placed on the guilty plea as mitigation, in my view. [ 38 ] In addition, the offender's willingness to undergo treatment is commendable and either may be considered in mitigation, or at least it removes the aggravating feature of recalcitrance.

The risk to reoffend, which I accept is low or perhaps very low, is not in my view a mitigating circumstance. It reflects the absence of the aggravating feature of a high risk, which would engage the need to protect the public and isolate the offender. Those principles are not relevant here. The absence of a risk to reoffend is otherwise only relevant to whether a conditional sentence order is available and will not detract from the need for a denunciatory sentence, in my view.

Whatever risk the offender may pose to other children in the future, which hopefully will be addressed through extensive counselling while in custody, he was an obvious risk to offend against these two children, and it is for those actions that he is being sentenced. [ 39 ] In my view, the position of the Crown in this matter amply accounts for the mitigating factors. In particular, had the defendant not pled guilty, I would have imposed a sentence in excess of the upper range sought by the Crown.

I take into account that the defendant has spent eight days in custody since his remand at the close of submissions. [ 40 ] I will have you stand up now, please, Mr. M. The sentence will be one of two-and-one-half years less the eight days that you have already served, leaving a balance of just short of 129 weeks; in fact, 129 weeks less a day, and that will be served in a federal penitentiary. You may sit down, please, sir, while I go through the s. 161 order because it is fairly lengthy. [ 41 ]

Section 161 requires me to consider a term of restrictions while you are in the community following your sentence with respect to exposure to children in various scenarios. I will impose a term of 10 years under s. 161 to coincide with the Sexual Offender Registry Act order which has not already been imposed upon you. I am sorry, 20, not 10. And the s. 161 order prohibits you from: attending a public park or swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre. [ 42 ] Also it prohibits you from: (

b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years; or [ 43 ] You are also prohibited from: (

c) using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of 16 years. [ 44 ] And as I have said, that is for a period of 20 at this point. [ 45 ] There is a requirement that you provide a sample of your DNA if that has not already been taken.

I may have made the order on the last occasion, but it is a primary designated offence, and that will be ordered and that will be taken while in custody. [ 46 ] The materials suggested that Ford Mountain would be a good place for treatment and that there was a certain minimum period required for that, which really did not figure into the sentence in this matter, but I will recommend that you serve – [ 47 ] MR. EDWARDS: Provincial institution. [ 48 ] THE COURT: That was Ford. Ford is provincial. [ 49 ] MR. EDWARDS: Ford Mountain is a provincial institution. [ 50 ] THE COURT: Okay, sorry. [ 51 ] MR.

EDWARDS: So he will be classified at – [ 52 ] THE COURT: He will be classified for an appropriate institution – [ 53 ] MR. EDWARDS: At Matsqui. [ 54 ] THE COURT: -- where he can receive the treatment. [ 55 ] MR. EDWARDS: Which will likely be -- actually, I can't remember the name at this stage but there is only likely one that he will go to. [ 56 ] THE COURT: All right. And you are sure about that? I have not checked that in the pre-sentence report but the recommendation will not go Ford – [ 57 ] MR. EDWARDS: No, Ford Mountain is a provincial institution. That's why an 18-month sentence applies.

He will go to the regional reception centre. [ 58 ] THE COURT: All right. So we have two classifications, but for what it is worth, I can endorse the warrant of committal with

the recommendation that the offender receive treatment while in custody, or sexual offender treatment, while in custody, if you wish me to do that, Mr. Mickelson. [ 59 ] MR. MICKELSON: Yes, Your Honour. [ 60 ] THE COURT: Thank you. We are adjourned. [ 61 ] MR. EDWARDS: Thank you, Your Honour. [ 62 ] THE COURT: We will stand down. [ 63 ] MR. EDWARDS: Oh, victim fine surcharge. I imagine -- [ 64 ] THE COURT: Yes. Waived – [ 65 ] MR. EDWARDS: Thank you. [ 66 ] THE COURT: -- I think in the circumstances. [ 67 ] MR. EDWARDS: Thank you, Your Honour. (REASONS FOR SENTENCE CONCLUDED)