R. v. D.B.D. Date:, 2012 BCPC 324

Citation: R. v. D.B.D. Date: 20120622 2012 BCPC 0324 File No: 56537-2-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D.B.D. EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER BAN ON PUBLICATION 486.4(1) C.C.C; 486.4(3) C.C.C. RESTRICTED ACCESS

Counsel for the Crown: R. Edwards Counsel for the Defendant: V. Williams (as Agent for M. Foster) Place of Hearing: North Vancouver , B.C. Date of Judgment: June 22, 2012 [ 1 ] THE COURT: D.B.D. pleaded guilty to one count of sexual touching and one count of possession of child pornography on January 12th, 2012. The Crown proceeded summarily. [ 2 ] The sexual touching occurred in early 2008.

The victim did not disclose the touching until early 2011. [ 3 ] The child pornography was discovered in April of 2011 at his home after a search warrant was executed during the investigation of the touching offence. [ 4 ] The victim of the sexual touching was 11 going on 12 at the time of the offence. The accused and the victim's family resided in the same condominium complex. The accused befriended the mother of another young boy and insinuated himself into that boy's and then others' activities by offering to "help out". He picked up the boys from school. He took the boys out for fast food on occasion.

He made himself available to supervise the boys in the pool in the complex. The accused invited the boys to come to his home to use his computers. He also gave them food in his home. [ 5 ] The first incident occurred when the victim was in the accused's home playing on one of two computers he made available to the boys. Another boy was in a different area on the other computer. The accused knelt beside the victim, undid his pants and then masturbated him to ejaculation.

The victim described that he "froze" and continued to play the video game as the assault was occurring. [ 6 ] The second incident occurred in the pool. There were three or four boys in the area. The other boys went to the hot tub while the accused and the victim remained roughhousing in the pool. The victim said the accused became somewhat physically aggressive and so he pushed him away. The accused then took hold of him and pulled down his bathing suit and briefly fellated him. The victim got away and went to the hot tub and told the other boys what the accused had done.

As a result, an investigation was commenced, but at the time the victim did not disclose the sexual touching. [ 7 ] The victim said that at one point he borrowed a swimsuit from the accused and the accused took pictures of him in it which made him feel uncomfortable. On another occasion, one of the boys heard wet noises while playing on the accused's computer and turned to find the accused masturbating on the couch. [ 8 ] The child pornography was found in his home. There were 148 images. The images are of naked pre-pubescent and pubescent girls and boys in various sexualized poses or engaged in sexual activity.

Some of the boys reported seeing pictures of naked youths on the accused's computer when they were using it. [ 9 ] The victim himself has not provided an impact statement. He still refuses to talk about the incidents and has also refused to attend counselling. His mother reports that before the offences he was very happy, social and well-adjusted. He was doing well in school and very active in sports and other activities. Since the time of the offences he has become distraught, depressed and socially withdrawn. He has evidenced suicidal ideation. He cannot sleep. His self esteem has been significantly diminished.

He has trouble concentrating and his schoolwork has gone from A's and B's to failing. He does not engage in activities. He has interpersonal problems and often loses his temper with those around him. His mother is enraged, saddened, and feels overwhelmed by her emotions and the behavioural changes in her son. She is, not surprisingly, very worried about his future. [ 10 ] Mr. D. has a criminal history for a similar offence. The

summary of this matter in the Pre-Sentence Report is incorrect. I have had the benefit of reading the submissions and decision. He pleaded guilty to one count of sexual interference and was sentenced in January of 2010. He received a one-year conditional sentence and probation for two years. [ 11 ] The victim in that matter was his nephew who was 14 at the time of the offence. The offence occurred in July of 1994 when the accused took him on a camping trip. During that trip, they engaged in repeated sexual activity involving masturbation and fellatio.

The victim was willing and described that he was exploring his sexuality. [ 12 ] The police file on that matter was opened in 2007. The charge was laid in January of 2009. I am unaware of when the accused was first made aware of the investigation of those charges, but it would have been within a year after the incidents now before the court occurred.

He says he told one of the mothers at the complex what he had done. [ 13 ] What is of particular concern is that, through counsel, the accused asserted at that earlier sentencing that, "He's not a person who is concerned at all about any repeat offences, but has certainly taken it upon himself to deal with it in some way even in years past not just since the charge was laid." We now know, as did the accused at the time, this statement was at best misleading and he was clearly still at risk of re-offending because he had engaged in similarly exploitive and assaultive behaviour recent to the time of that sentencing hearing. [ 14 ] A Pre-Sentence Report and psychiatric assessment were prepared for the current matter.

The psychiatric report was challenged, and I agree that it does not appear to be a fair or balanced report. I have not accorded weight to those areas challenged by counsel for the accused. It should be borne in mind that the interviews with this accused followed his completion of sexual offender treatment and while he was undertaking sexual offender maintenance counselling.

[ 15 ] Mr. D. is 65. He is single, has never married and does not have any children or dependents. He now lives in an adult only complex in Kelowna. He is in relatively good health, although he does take medication for anxiety. He obtained a teaching degree from university but has never taught school. Instead, he pursued a career for 27 years as a bus driver for a local municipality. There are letters of reference which have been filed which demonstrate that he was a very good employee and was well liked and respected by his colleagues. He also has friends and some family who continue to support him.

He resigned from his employment as a result of the previous investigation and then conviction. He is now retired. [ 16 ] He has little contact with his immediate family. It would appear his upbringing was somewhat tumultuous and difficult. He admits to having sexual intercourse with a younger sister when he was 19 and she was 14. One of his brothers reports that he, the brother, also had sex with a female sibling.

The accused alleged he was sexually assaulted as a young boy, but has also denied ever being sexually abused. [ 17 ] He reports that he considers himself to be bisexual and has had sexual partners of both genders over his adult life. His first homosexual relationship began when he was 20. His partner was a 15-year old boy. When he was 30, he engaged in a sexual relationship with a 16-year-old girl. He acknowledges a historical attraction to Caucasian males, 14 to 15 years of age. [ 18 ] The Pre-Sentence Report refers to the discharge

summary from the sexual offender treatment program. He gained some insight and was engaged and compliant. He was seen to be either low-moderate or moderate high risk to reoffend depending on the criteria used. The doctor opined that: Regardless of risk, Mr. D. certainly presents as having the ability to control and self-manage his behaviour.

His success or lack of it in the future will be a direct factor of his choice. [ 19 ] There is nothing to indicate whether the accused disclosed his behaviour in 2008 with this victim during that treatment. [ 20 ] The accused described that he saw his behaviours with the boys in the complex where he lived as "helpful and kind". He said he was not planning on offending and denies he was engaged in grooming. He did acknowledge that his motivation for touching the victim was selfish and sexual. He described to the psychiatrist that his offending behaviour resulted from an "error in judgment".

He said he cared for his victim and was acting benevolently towards him and, "He believed that since it felt good to him, it must feel good to them, too." [ 21 ] I agree with the conclusion in the psychiatric report that the accused continues to defuse his responsibility for his conduct. I find Mr. D. was engaged in a pattern of behaviour designed to build a relationship of trust in him with the boys and with their parents. He did so in order to gain access to the boys, whether consciously or subconsciously, because of his sexual attraction to them.

He well knew of his hebephilic predilections and must have appreciated the risk of engaging in sexual involvement when he began swimming with them and having them in his home. Through counsel, he now acknowledges he put himself in a high risk situation. [ 22 ] His insight into his own behaviours and motivations remains limited to the extent that he said he only masturbated when the boys were in his home because he did not think they would see.

What is missing from his analysis is that he was masturbating in his home because he was sexually aroused by the mere presence of the boys. [ 23 ] I find that although his behaviour may be described as opportunistic, there is also a predatory aspect to it which involved a non- sexual form of grooming. It is also clear that the accused continues to lack insight into the profound nature of the damage his conduct has caused the victim.

He says he hopes the victim was not significantly impacted and can move forward with his life. [ 24 ] The description of the affects on the victim provided by his mother is consistent with what we now know to be the emotional and psychological sequelae of sexual interference with children and adolescents. [ 25 ] Sexual offences have been described as "shattering" the innocence and trust of the victims. Often victims and their loved ones will suffer the ongoing effects for many years and, for some, their wellbeing is permanently impacted.

This young boy's mental and emotional health has been despoiled by this accused's perverse sexual needs. The cost of this accused's momentary sexual pleasure has been the years of distress already experienced and may well mean many more years of pain for the victim. [ 26 ] The accused said that a friend downloaded the child pornography and the files in which they were found support this assertion. He said he had forgotten he still had it.

He said he did not see the possession of these images as significant and he had not distributed them. [ 27 ] The aggravating factors in this matter are the age of the victim and the accused's prior history.

I also find it aggravating that he knowingly placed himself in a position where he could act out on his sexual deviancy. [ 28 ] The mitigating factors are the guilty plea and that he has been compliant and engaged with sex offender treatment and has benefited to some degree from that treatment. [ 29 ] Crown suggests that an appropriate sentence would be nine months in custody followed by a lengthy period of probation. They are also seeking an order under SOIRA , a DNA sample and a s. 161 prohibition. [ 30 ] Counsel for Mr.

D. suggests that a 60-day sentence is appropriate to be followed by continuing sex offender treatment and counselling while on a lengthy probationary term. He points to the fact that the accused has been bound by court orders since being placed on bail for the earlier offence and will remain bound by those terms until January 2014. As he has been fully compliant with those orders, he is a candidate for community-based disposition. [ 31 ] The accused says he now recognizes that he requires external controls and has chosen to live in an adult-only community to reduce any contact with youths.

He says he is terribly sorry and does not want to re-offend.

[ 32 ] Defence counsel suggested that the sentence would not likely have been different if this matter had been dealt with at the same time as the earlier matter. I cannot agree with his submission. The earlier sentencing proceeded on the basis that the accused had acted out many years ago, had dealt with this issue and was not at risk to re-offend. [ 33 ] As already alluded to above, sexual offences against children are abhorrent and deserving of condemnation by our society.

Any sentence imposed for such an offence must be denunciatory and must send a clear message that any such conduct will be met with significant punitive consequences. [ 34 ] In R. v. Stuckless, [1998] 41 O.R. No. 3177, at paragraph 44, the Ontario Court of Appeal said: Sexual abuse is

an act of violence. When committed against children, the violence is both physical and profoundly psychological. It is coercive and exploitative conduct, and represents the use of compulsion against someone who is defenceless. As Moldaver J. stated in R. v. McF., . . . I cannot conclude that [the accused] should be treated in a more lenient fashion simply because he refrained from the use of threats of physical harm or the infliction of limited and measured amounts of force. ...

I must again reiterate the feelings that I have expressed in similar cases where the lack of serious physical harm has been advanced as a factor to be considered in mitigation. The crimes of incest and sexual assault are inherently violent. They can and often do have a crippling effect upon the psychological and emotional well-being of the victim.

Conduct which brutalizes the mind can be far more devastating, painful and long-lasting than conduct which causes injury to the body. [ 35 ] The range of sentence for such offences is broad and depends on all of the particular circumstances of the offence and the offender. In R. v. J.L.C. ,

(2012) BCSC 623, at paragraph 31 and 32, Mr. Justice Goepel said: In R . v . C . G . D ., [cite following], . . . at paras. 38-53, [Griffin J.] provided a detailed review of prior sentences in cases of child sexual abuse.

She noted that the case law indicated a wide range of sentences imposed in cases involving sexual assault on children and the sentence range depended on the circumstances of the offence, including the severity, type, frequency and duration of the assaults, and the circumstances of the offender, including past criminal behavior, whether there are any mitigating circumstances such as the offender pleading guilty or seeking treatment, or aggravating circumstances such as the offender being in a position of trust.

At para. 51 she summarized the authorities: [51] While there is a range of sentences imposed for sexual assault, certain common themes are clear from the case law, namely, that the sentencing goals of deterrence and denunciation must be foremost in these cases absent special circumstances. It is now well understood that sexual assault has short-term and frequently long-term effects on the child. The immediate harmful effects are to rob the child of his or her innocence by violating the child's physical being and emotional trust in the safety of the world.

But it is also now well understood that often a sexual assault on a child will have a profound long-lasting effect on the child's development, negatively impacting the victim's future relationships and psychological health as an adult. Society condemns sexual assault of children, even more so when the child was violated by a parent, the one person in the world who is supposed to be devoted to protecting and keeping the child safe. In R. v. M.(E.) , [cite following] . . .the Honourable Judge Ball summarized at para. 8 the factors to be taken into account in sentencing perpetrators of child sexual abuse: ...

Those factors include the age of the victim, the duration and frequency of the sexual assaults, the criminal record of the offender, the effect on the victim and the presence or absence of collateral violence, threats and grooming of the victim, an early guilty plea sparing a child from testifying, or an expression of remorse. See also R. v. B.S.B., [2008] B.C.J. No. 2227 . [ 36 ] The Crown relied on R. v. Humchitt , a decision of this court, reported at 2011 BCPC 391 . In that matter, there was a trial. The offender was 29 and was a stepparent to the victim who was 10. There was one incident of touching.

The accused had no record. He had not been assessed and had refused to be interviewed. He was of First Nations heritage. A six-month jail term was imposed to be followed by three years probation. [ 37 ] In R. v. Raymond , 2011 BCPC 37 , the court imposed a six-month custodial sentence and two years probation with respect to a 44-year-old stepfather who offended against an eight-year-old child on several occasions. Much of his offending occurred when the child was asleep and involved touching his penis to her body or touching her vagina as he put her to bed.

He was a low risk to reoffend and had been specifically deterred. He had no criminal history and had entered a guilty plea. [ 38 ] In R. v. Bargiacchi , 2010 BCPC 117 , a 24-year-old male with no record pleaded guilty to two counts of sexual touching involving two different victims. The first incident involved masturbation and fellatio and the second involved touching the victim's penis while he slept. The accused was a youth group leader and the victims were in his group. A sentence of seven months custody and three years probation was imposed. [ 39 ] The Crown provided the court with R. v.

Tait , 2006 BCPC 595 , dealing with the issue of the harm occasioned by child pornography, where at paragraphs five and six, Judge Baird Ellan, as she then was, said:

I usually deal next in sentencing with the issue of victim impact. While this is no direct victim here, in submissions, both counsel recognized the peril that possession of this material creates perpetuating the victimization of children by providing a ready market for such images. Clearly, any condonation or acceptance of possession or publication of sexual images of children in any medium serves to normalize the behaviour depicted in them and, I might add, to potentially desensitize observers to the repugnance of it. These aspects were covered amply by Ms. Herron in her able submissions to the court. . .

Accordingly, while possession itself has no direct victims, there are clear victims in the photographs and merely downloading the images adds to the likelihood that there will be more. In R. v. Jakobsen , [2006] B.C.J. No. 2008 , Madam Justice Stromberg-Stein said: Possessors of child pornography create a market for those who abuse and exploit children. Eliminating a market for child pornography will go far to eliminating the motivation to harm children who are violated, used and abused in the production of such repugnant material.

Those who possess child pornography perpetuate the harm to society in general and to vulnerable children in particular. R. v. Lamb , 2011 BCSC 349 was provided to assist in determining an appropriate sentence on the count of possession of child pornography. In that case, the 45-day minimum was imposed. The offender had a relatively small collection. He had no previous history and had undertaken his own rehabilitative efforts.

He was found to be at low risk to reoffend. [ 40 ] Denunciation and deterrence are the principles of sentence which must be given significant weight in determining an appropriate sentence in this matter. The accused has a prior conviction for an offence that occurred long before the charges now before the court arose and which was dealt with prior to the current charges being laid.

Even taking into account the acceptance of responsibility and remorse, which is evidenced by the accused's guilty plea, the circumstances are such that there continues to be a need to protect the public and specifically deter this offender. A sense of responsibility must be instilled in him and he must continue to work towards understanding the very serious harm he has occasioned.

He also needs to become more self-aware about his motivations for having contact whatsoever with young people. [ 41 ] Taking into account the range of sentence reflected in the case law provided as well as my own experience with such matters and taking into account all of the circumstances of the offence of sexual touching and this offender, I find that a sentence of nine months imprisonment is appropriate and, indeed, lenient. [ 42 ] That custodial term will be followed by probation for three years, the maximum period allowed by law. [ 43 ] On the count of possession of child pornography, there will be a concurrent sentence of 45 days. [ 44 ] There will also be an order under the provisions of the Sexual Offender Information Registration Act for 10 years, an order that the accused provide a sample of his DNA, an order under s. 161(1)(a), (

b) and (

c) for life. [ 45 ] The terms of the probation will be that you must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must report within 72 hours of your release from custody in person at 100-233 West First Street in North Vancouver and report thereafter as and when and where directed. [ 46 ] You must reside as directed by your probation officer and you must not change that residence without the prior written permission of your probation officer. [ 47 ] You must have no contact, direct or indirect, with M.A. or any member of his immediate family.

You must not attend within a three-block radius of any home, school or place of employment at which you know M.A. or any member of his immediate family to reside or attend for work. [ 48 ] You must not directly or indirectly contact or communicate with or be in the presence of any person under the age of 16 or who appears to be under the age of 16 except for incidental contact in a public place or with the prior written permission of your probation officer or in the company of an adult person approved of in advance by your probation officer.

You must carry your supervisor's written permission or written approval on your person throughout any such contact. [ 49 ] You shall attend for, accept and complete to the satisfaction of your probation officer any treatment to include, but not limited to, sex offender treatment or psychiatric or psychological counselling or programs, including attending as directed at any forensic psychiatric outpatient clinic.

You must not attend at any public park, swimming pool or other recreational facility where persons under the age of 16 are present or can reasonably expect to be present, or a daycare centre, school ground, playground or community centre except in the presence of an adult person approved of in advance by your probation officer.

You must carry your supervisor's written approval on your person whenever attending to such a location. [ 50 ] For the record, you are prohibited for life from attending at a public park or public swimming area where persons under the age of 16 years are present or can be reasonably be expected to be present or at a daycare centre, school ground, playground or community centre, from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16, and from using a computer system within the meaning of s. 342.1(2) for the purpose of communicating with a person under the age of 16. (REASONS FOR SENTENCE CONCLUDED)