R. v. Wright Date:, 2011 BCPC 350

Citation: R. v. Wright Date: 20111101 2011 BCPC 0350 File No: 58531-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOHN DAVID WRIGHT BAN ON PUBLICATION Pursuant to s. 486.4 Criminal Code of Canada REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W.A. YOUNG Counsel for the Crown: C. Kramer Counsel for the Defendant: G. Gill Place of Hearing: Chilliwack , B.C.

Date of Hearing: November 1, 2011 Date of Judgment: November 1, 2011 A corrigendum was released by the Court on December 8, 2011; the corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] THE COURT : Mr. Wright has pleaded guilty to two counts being the following: Count 1: From the 1st day of January, 2006 to the 29th day of July, 2010 inclusive, at or near Chilliwack, in the Province of British Columbia, did sexually assault C.L., contrary to s. 271 of the Code .

Count 3: From the 1st day of January, 2006 to the 29th day of July, 2010, inclusive, at or near Chilliwack, in the Province of British Columbia, did sexually assault B.D., contrary to s. 271 of the Code .

[ 2 ] The accused touched the first complainant, C.L., in a sexual manner over a period of three years. The accused was a friend and lived in the same Rosedale trailer park as the child C.L., who was about nine years of age when the sexual touching commenced. [ 3 ] The second complainant, B.D., was ten years old when he told the police that the accused had sexually touched him as well. [ 4 ] The Crown seeks a period of two years’ incarceration and a period of probation for three years. [ 5 ] The defence seeks a 12-month sentence and is not opposed to a three-year period of probation.

The defence does not submit that a conditional sentence order is appropriate, given the contents of the TSR. [ 6 ] Furthermore, while the Crown agrees that a conditional sentence order is available to the accused given the time frame in which the offences occurred, the Crown is opposed to a conditional sentence order. [ 7 ]

Section 742.1 of the Code was amended in 2007 to include reference to a serious personal injury offence.

Section 752 of the Code now defines a serious personal injury offence to mean in this case (

b) an offence or attempt to commit an offence mentioned in s. 271. [ 8 ] The matter was adjourned for the preparation of the TSR and further psychiatric information.

The Crown filed as well a pre- sentence report, a psychiatric assessment, and the victim impact statements. [ 9 ] I would like to turn to the facts. [ 10 ] The matter came to light when one of the victims, C.L., disclosed to his sister on July 17, 2010, that the accused had touched him for three years in a sexual manner. [ 11 ] The family was having a birthday party for the complainant's mother and the child, C.L., did not want the accused to be present at the party.

The accused was a friend at the time and all the parties lived, as I have already mentioned, in the same trailer park in the Rosedale area. [ 12 ] The accused would in essence play with the two complainants. He would fix their bikes, take them fishing, and otherwise have them visit him in his trailer, most especially when his wife was not present. The accused lived a couple of doors down from C.L. [ 13 ] C.L.'s parents were surprised by the allegation.

The parties also mentioned it to the parents of the other child as they knew that the other boy, B.D., also spent time with the accused. [ 14 ] The father of B.D. lived in the trailer park and his son, B.D., lived with him one-half of the time at that location. [ 15 ] C.L. is now 14 years of age and was 13 when he disclosed the offences in July 2010. B.D. is now 11 years of age and was ten when he made his disclosure.

C.L. was nine years of age when the offences commenced, and B.D. was about eight or nine when the offences commenced with respect to him. [ 16 ] C.L. has known the accused since he was about four years of age. His family has lived in the trailer park for about 11 years. [ 17 ] About three years ago, C.L. slept over at the accused's residence. The sexual touching first occurred when C.L. was sleeping on the couch. He had fallen asleep on the couch. C.L. had come over for the evening as there had been a fire going on in the accused's backyard.

C.L. then went into the accused's trailer, fell asleep while he was watching a movie, and woke up to find the accused rubbing his penis underneath his clothing. The accused told the boy it was all right and "Just go back to sleep". C.L. thought he was about ten years old at the time. This occurred sometime in 2007. C.L. said it happened in the spring or the summertime. [ 18 ] Over the course of the next three years, C.L. slept over at the accused's house every two weeks. Mrs. Wright would be gone each time. At first the touching started at night.

The child was a heavy sleeper and he would wake up to find a lotion on his penis that had not been there beforehand. C.L. saw that the accused had a bottle of lubricant that he had in the living room. C.L. thought that the accused had touched him at night. There were times when C.L. would wake up and other times when he would not. The one consistency is that there was the use of lubricant either when C.L. was awake or sleeping. [ 19 ] Then the touching changed from occurring at night time to occurring in the day time. C.L. would come over in the afternoon and watch television with the accused.

The accused would masturbate the child at least once or twice a week during the week day, and then C.L. would sleep over at the accused's trailer once or twice every two weeks. [ 20 ] The accused would also touch C.L. during the times they sat outside at the fire pit. The accused would take down his own pants and masturbate himself during the sessions at the fire pit in his backyard. [ 21 ] C.L. told the accused to stop. The accused on occasion would stop and yet on other occasions would not. C.L. recalls there was one occasion when he asked the accused to stop and he would not do so.

The accused applied more force to keep the child in position. C.L. indicated that on this occasion the accused used enough force to hold him down on his penis, but not enough force to leave a bruise. [ 22 ] On other occasions, C.L. would move. He would push the accused away on more than one occasion or C.L. would make an excuse to leave the trailer. This activity went on over a three-year period before the child told his parents. [ 23 ] Then on one occasion closer to 2009 or 2010, the other child, B.D., spent the night at the accused's trailer along with C.L.

Apparently the accused had tickets to a hockey game; he asked the boys to go to the game. The two boys then went with him to see the game and they were planning on spending the night at the accused's trailer. The children watched a movie with the accused. The accused touched both of the boys on this particular evening. The complainants pushed the accused away. The boys stayed that night and then left in the morning.

[ 24 ] Mr. and Mrs. L. felt that they were friends with the accused and would see him often in what was a small trailer park community where people came to rely on one another in order to ensure their children were safe. At that time, the L.'s knew that C.L. did not have many friends, and when the accused took their son to the hockey games, they were happy that C.L. was doing something. The accused often took C.L. to hockey games and to the campfires in the backyard. The L.'s were happy to see their son participate in those sorts of activities.

The accused's reputation in the trailer park was that he was a decent person. [ 25 ] Then there was one occasion in July of 2008 when the accused told C.L.'s father that he would never do anything to C.L. and would not harm him. Mr. Wright said this to Mr. L., Sr. on a couple of occasions and that he hoped the father would believe him. [ 26 ] The accused would also have other outings around the park. He would fix bikes with the children and go to the bottle depot with them. In other words, he was in a position of trust with respect to the children.

The parents trusted him with their children. [ 27 ] B.D. was two years younger than C.L. and the theory of the Crown is that the accused was grooming B.D. to replace C.L. who was getting older. B.D. was about ten or 11 when the incidents occurred. [ 28 ] There are three specific incidents that B.D. related to the police. Also, B.D. was not at the trailer park as much as C.L., because he was only there when he was visiting his father. [ 29 ] The first incident occurred when B.D. was over at the accused's trailer watching television in the living room. The accused came out of his bedroom with no clothing.

There were just the two of them in the trailer at the time. The accused was sitting there. B.D. felt uncomfortable about the situation. The accused did not say anything to the child; B.D. was on a nearby chair in the living room. B.D. left shortly afterwards. He recalled this occurred when he was about eight or nine years of age. [ 30 ] The second occasion occurred when the accused took B.D. to his place of employment at Mountain Institution which is a local jail. During the course of the car ride, the accused asked B.D. to get naked and he said no.

They arrived at the jail and then returned to the accused's residence. [ 31 ] The third occasion was at a sleepover at the time of a hockey game. B.D. remembers watching a movie, the accused went to have a shower, came out naked, and tried to invite B.D. and C.L. to take off their clothes. [ 32 ] C.L. said to the police that the accused touched each of the boys on this occasion, although B.D. was silent on this particular point.

B.D. did fall asleep while he was watching the rest of the movie. [ 33 ] The accused was cooperative in speaking with Forensic Services and admitted that he did touch B.D. on this last occasion. Thus, as a result of the accused's admission, the Crown submits that the accused touched B.D. at least once or twice and indeed a third time. [ 34 ] The accused acknowledges the facts; the only difference is that C.L. thought that force was used on one occasion, but this is not how it was perceived by the accused.

The accused takes the position the force used was less than what was perceived by the child. [ 35 ] The Crown filed two victim impact statements prepared by J.L., the father of C.L., and N.H., the mother of B.D. [ 36 ] In his statement, J.L. advises that C.L. has been affected emotionally as a result of these incidents. He does not want to leave the house, and has gained weight as a result. He is sad, withdrawn, and unhappy. He does not sleep well, and does resist going to school at least once a week. The family is clearly upset with the accused as he had been a grandfather figure to C.L.

The view is that the abuse stole C.L.'s childhood. The family wants no contact with the accused. [ 37 ] In her statement, N.H. states that the accused has affected B.D. and his family's well-being. The child's trust has been taken away from him. Also, Ms. H. states that the accused lied to her and said her son was okay. Ms. H. feels she did not protect her son. She states that she will find it hard to trust another adult around her children. B.D. wants to move forward and forget the experience.

The family does not want contact with the accused. [ 38 ] I would like to turn to the pre-sentence report. [ 39 ] The accused is 58 years old. He is one of five children. There is no suggestion of any history of physical or sexual abuse. He has kept a good relationship with all but one of his siblings. He has regular contact with a brother and a sister as they live locally. All of his siblings are aware of the offences and remain supportive of their brother. [ 40 ] The accused is separated from his wife of 34 years.

The overall breakdown of their relationship had been occurring for several years prior to the offence. The offence was the final catalyst for separation. Their relationship deteriorated due to financial difficulties and also the accused's misuse of alcohol which continued until he was placed on community supervision as a result of being on bail. [ 41 ] The accused earned his grade 12 education from Chilliwack Senior Secondary. He then attended B.C. Vocational School and earned his cook training certificate. He is now unemployed. [ 42 ] Prior to these charges he worked at Ford Mountain as a cook.

He is no longer able to maintain that employment. He has a positive employment history, but is also described as being apathetic towards employment. He intends to wait until his sentence is concluded before moving forward with new employment. He plans to set up his own business, and is currently on Social Assistance. [ 43 ] He described the relationships with the complainants as a friendship. His wife and C.L. apparently did not get along. The accused has reported no mental or physical health issues.

He has attributed his loss of sexual interest to the breakdown in his relationship with his wife and his misuse of alcohol. He denied any sexual interest in the complainants and any sexual fantasies about them. That particular remark in the pre-sentence report appears to be different than what is contained in the assessment. [ 44 ] He described himself as an alcoholic. He knows his use of alcohol is a problem. He stated that at the time of the offence he was

consuming up to four bottles of rye a week in addition to beer. He would start drinking early in the morning and continue all day. He appears to have insight into the negative effects of his use of alcohol. Alcohol negatively impacted his marriage, health and finances. He does not appear to blame his offence on the consumption of alcohol, but he acknowledged that it influenced his decision-making. [ 45 ] Since the offence, he states that he has maintained abstinence through willpower. However, he has not attended any type of counselling or programming to address his alcohol misuse.

It would thus appear that counselling for substance abuse would be an appropriate term of any probation. [ 46 ] In terms of the complainants' families, Mrs. L. advised the probation officer that her son has attended counselling and is no longer willing to attend. She believes her son may now be ashamed of his body as a result of this offence. He is starting to act out. She also explained that they did not know the accused prior to the relationship he developed with their son. She and her husband were introduced to the accused as a result of the relationship that the accused had with their son.

P.D. reported that the offence has negatively affected their son. [ 47 ] The accused has no prior court history. He has complied with community supervision while on bail. He states he is open and willing to attend the B.C. Community Corrections Sexual Offender Treatment Program and the bi-weekly Sexual Offender Maintenance Program held at the Chilliwack Probation Office which runs the length of any community supervision order for a sexual offence.

He has also expressed insight into the need to address his alcohol use, admits he needs assistance in learning how to maintain his abstinence, and to manage the factors which have contributed to his misuse of alcohol.

He states he is willing to attend for any community programming or programs as ordered by the Court to address his alcohol abuse. [ 48 ] The pre-sentence report sets out the various programs available to an offender, both in the provincial and federal systems. [ 49 ] A sex offender sentenced to less than two years in jail will serve his sentence at Ford Mountain, otherwise if the accused is sentenced to a federal term of incarceration the accused will either be classified to RHC or the medium security at Mountain Institution. [ 50 ] The program offered in the provincial system is considered a low intensity program and is similar to the program offered in the community.

A minimum sentence of 12 months is recommended for the provincial program. [ 51 ] When a sex offender is sentenced to a community supervision order and subject to counselling, Corrections refers them to the Forensic Psychiatric Services Commission for their Sex Offender Treatment Program. In Chilliwack, this program is offered once per year.

After the completion of this program, the sex offender will then be required to attend a regular Sex Offender Maintenance Group facilitated by probation officers in the community, and regular attendance will be required to enhance gains made in treatment and to assist in integrating their plans into practical use. [ 52 ] The probation officer states the accused appears to have some insight into the impact his offence has had. He states he is happy he was caught and an end was put to his behaviour so the children could get help. Residents in the trailer park now ignore him.

He states he accepts responsibility for his offences. However he appears to have limited insight into the underlying factors that contributed to his behaviour. He appears to minimize some of his responsibility in the offence which is expressed through his belief that some of the sexual behaviours were initiated by the complainant C.L. To his credit, he states he is the adult and should have dealt with the situation in a more appropriate manner.

Alcohol was also suggested by him as a contributing factor. [ 53 ] The probation officer suggested helpful probation terms, and I will get back to that in a few minutes. [ 54 ] I would like to turn to the psychological assessment. [ 55 ] During the interview for this assessment, the accused admitted that he had sexually assaulted the boys. He had at least weekly masturbated C.L. for a period of three years. The victim's statement also indicates that sometimes the accused was touching himself at the same time, but the accused did not confirm this. These incidents stopped when the victim was 13.

He knew the boy well, since the boy was five years of age, and they had a close relationship. He told C.L. not to tell anyone about these incidents. [ 56 ] He also told the other victim, B.D., to get naked in front of him three times and to touch his private parts, but the child refused to comply with the accused's invitation.

He also touched and rubbed the boy's penis once or twice. [ 57 ] In the interview, the accused stated that he did not know why he engaged in this type of behaviour and said that he did not feel sexually aroused before masturbating the complainant, C.L., but rather described his actions as horseplay. He agreed that he used to grab the child's penis. However, he admitted that he felt good as a result of masturbating his victim.

In the end he thought that he had grabbed the child's penis because it was there. [ 58 ] The complainant indicated that the accused's behaviour escalated from taking off the child's clothes and touching him at night to masturbating the child during the day, one to two times per week, and then finally masturbating himself in front of the child. [ 59 ] The accused stated that he pleaded guilty to the sexual assault charges because he indeed felt guilty and was willing to take responsibility for his actions.

He said that what he was doing was wrong and he stated that this afternoon, but in spite of this he kept engaging regularly in sexually inappropriate behaviours but could not stop then before being arrested. He states that he regretted his deeds and that he was unable to understand why he acted that way.

He mentioned that the masturbation calms him down and that he sometimes masturbated while fantasizing about fondling the complainants' penises. [ 60 ] He stated that his brothers represent one of his main sources of support after the charges; that he had lost contact with his adult son after his arrest; he advised that he was able to maintain employment except for the stressful periods when he drank; and he got into debt. He had held a variety of jobs. He stated that he always consumed alcohol when he touched the complainants.

He reported that after he was charged that he stopped using alcohol, he said "cold turkey". He has not used illicit drugs. [ 61 ] The accused has not been hospitalized and never been assessed for any psychological difficulties. He was cooperative with the

report writer, but not forthcoming in offering information. He does not suffer from a major psychiatric disorder. [62] He appears to meet what is called the DSM-4 criteria for alcohol abuse and paedophilia, sexually attracted to males. He appearsto be vulnerable to stress and tends to use sexual activity as a way of dealing with that stress. He needs to develop more healthy stressmanagement techniques. [63] He was tested with two risk assessment measures, one being the Static 99-R, the other being SVR-20.

The accused scored asbeing at a relatively low risk of future sexual offending using the Static 99-R, and using the SVR-20, he was scored as having a moderaterisk to re-offend in the absence of adequate intervention. [64] The factors the later assessment considered were sexual deviation, relationship problems, recent employment problems, alcoholabuse, possible escalation in the frequency of the assaults, multiple sexual offences, mild to moderate stress related to anxiety, and loss ofa social support network. [65] The testing might underestimate his risk at this time.

Other risk factors were his self-reported inability to stop his behaviourknowing it was wrong, his lack of insight into the motivation of his deeds, the duration of the offence being once or twice per week overa period of three years, his abusing his victims in the context of a trusted relationship, and possible use of some force. [66] The report writer stated the following: Considering the assessment of static and dynamic factors in this case, our opinion is that if Mr.

Wright were released today withoutfurther treatment, his risk of sexually re-offending would be relatively moderate-high, particularly if provided the opportunity. [67] His risk could be lowered with effective treatment and managed in the community. [68] The report makes a number of recommendations which include substance abuse treatment and prevention, Sex OffenderTreatment Program and Prevention Program, a psychiatric assessment and treatment, although if possible medication, and then individualcounselling to focus on issues of stress management, as well as increasing his social effectiveness, and support to find a job. [69] Just turning to the TSR, the TSR advises that the accused has not subscribed to a phone service that supports the use of theelectronic monitoring program, and defence counsel agrees that a conditional sentence order is not workable given his particularsituation. [70] Turning to the further update from Forensic Services. [71] The further update from Forensic Psychiatric Services advises that given his moderate-high risk to re-offend, he would be bestsuited to attend the following federal programs: (

a) a federal modular treatment program based on an inmate's needs determined at the parent institution; and (

b) a relapse prevention program which is a follow-up maintenance program in the parent institution, and follow-up programs in thecommunity upon release. [72] The provincial programs are designed for offenders with low to moderate risk to re-offend and may not be the most suitable forhim at this time.

They are the treatment program at Ford Mountain Institution in Chilliwack, which program requires a minimumcommitment of nine months, treatment services through Forensic Services Commission upon release to the community, and relapseprevention programs through Community Corrections. [73] Now I am going to turn to submissions. [74] The Crown submits that the principles of sentencing here are denunciation and deterrence as well as rehabilitation.

She refers tos. 718.01 of the Code which sets out that when the Court imposes a sentence for an offence that involves the abuse of a person under theage of 18, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [75] The Crown also points out two aggravating factors found in s. 718.2 of the Code, being that: (

a) the offender in committing the offence abused a person under the age of 18; and (

b) the offender in committing the offence abused a position of trust in relation to the complainant. [76] The Crown also points out s. 718.1 of the Code which states that a sentence must be proportionate to the gravity of the offenceand the degree of responsibility of the offender. [77] The Crown also relies on the decision of R. v. S.K.A., 2004 BCPC 586 , 2004 BCPC 0586 a decision of Judge Ball fromSurrey. [78] In S.K.A., supra, the accused had entered guilty pleas to three counts of sexual assault. The three victims were either stepchildrenor biological children of the accused.

The accused had been in a position of trust with each of the complainants in that case. The factsthere are somewhat different in that the complainants were all young girls. There was also psychiatric information referred to in S.K.A.The defence in S.K.A. asked the Court to consider a conditional sentence order.

The Court stated at para. 55 that: 55 Given the serious and escalating nature of the invasive offences committed in a serial fashion by this accused, and the opinion of[the psychiatrist] concerning the risk of recidivism, the lack of insight of [the accused] into the offences which he has committed, I amsatisfied that the community is at risk if the accused were to serve his time in the community.

[79] The Court concluded that the reprehensible and moral blameworthy conduct of the accused in S.K.A., supra, could not besanctioned other than by a sentence of jail, followed by a period of probation.

The proposed conditional sentence order would not meetthe sentencing principles nor the need for protection of the public because of the serial nature of the offences against young persons overwhom the accused exercised authority and with whom he was in a position of trust. [80] The offences in S.K.A., supra, were of significant duration and the accused also continued with the grooming of another victim.The Court in S.K.A sentenced the accused to a term of two years less a day, plus three years probation. [81]

Section 731 states that probation can be imposed in addition to a sentence of imprisonment for a term not exceeding two years. [82] Here, in mitigation, the Crown agrees that this was an early guilty plea and there has been no need for the complainants and theirfamily members to testify. Also, there is a reference in the reports that the accused was glad that C.L. told someone so that the behaviourwould stop. Another positive factor is that the accused is prepared to undergo treatment. [83] The Crown points out that the complainants were 13 and ten years of age at the time they spoke with the police.

They are youngand the incidents have had a traumatic effect on them. Also, the offences involved planning in that the accused availed himself of thechildren when his wife was not present. [84] The accused advises that he does not know why he did what he did. He seems to demonstrate a lack of insight into his behaviour,so thus while he is asking for help, he has shown some difficulties with insight. He has shown an inability to stop, so thus there is aconcern stressed by the Crown that he has an inability to stop the behaviour which he knows is wrong.

That, the Crown submits, puts thepublic at risk for further offending. [85] The Crown also points out that the accused eventually did tell his wife and brother-in-law that he had committed these acts.

TheCrown expresses concern that the accused mentions he would often drink and would consume alcohol before or during the sexualtouching. [86] The psychiatric assessment points out that the accused shows several high risk indicators for future sexual violence and there arevarious treatment possibilities being proposed with follow-up in the community. [87] The Crown seeks a two-year federal sentence, given the serious circumstances, his relative lack of insight, and his beingdiagnosed at the moderate to high end of risk to re-offend. Relapse prevention can be offered in the community as part of probation.

Theaccused in S.K.A., supra, showed low to moderate risk whereas the accused here has been diagnosed at the higher end of risk to re-offend. [88] The Crown distinguishes the defence cases. [89] The defence case of R. v. A.S.D., 2005 BCCA 463 was delivered prior to the amendments to the Criminal Code as toaggravating factors, as well as s. 718.01. A 12-month sentence was upheld. The accused's risk of re-offending was low to moderate. [90] In the second case, R. v.

Caza, (B.C.C.A.) a two-year sentence was in fact affirmed. [91] The Crown seeks ancillary orders being a DNA order, a SOIRA order for 20 years, a firearms prohibition pursuant to s. 109 for aperiod of ten years, a s. 161 prohibition with respect to parks and pools for at least ten years, and lastly an order pursuant to s. 743.21 thathe not communicate with the complainants and their family members. [92] I am going to turn to the defence submissions. [93] Defence counsel submits that this is an appropriate case for a 12-month period of incarceration plus probation.

He has pleadedguilty in a timely manner, has expressed remorse to the families and the complainants, has no prior criminal record and recognizes that heneeds professional help. [94] Counsel submits that the accused is not trying to minimize his behaviour and has been forthright with the writer of the psychiatricassessment. He admits the facts as stated by the Crown. He does acknowledge he engaged in sexually inappropriate behaviour. [95] The defence disagrees with the Crown's submission that the accused has shown no insight into his behaviour.

Rather, the defencesubmits the accused is a person who is struggling with behaviour he knows is wrong, but he has not learned the requisite coping skills. [96] Counsel submits that the accused is willing to accept treatment. The defence submits that if the accused is given the necessaryprograms found in the provincial system, he will do well in treatment and that he has the intellect to benefit from those programs. He alsoacknowledges that he consumed alcohol when he touched the complainants. However, he takes the position that he has been able to quithis drinking.

The Crown submits that the accused still needs substance abuse counselling. [97] The accused is on Social Assistance at present but otherwise he has worked for a living, and his family members are aware of theoffences. [98] Defence counsel submits that the risk factors now are not as great as enunciated in the psychological test referred to as the Static99-R. [99] Defence counsel in essence takes issue with the assessment that the accused is at a high risk to re-offend in the future.

Shesubmits that the Sex Offender Program in the provincial system and thence in the community will provide sufficient rehabilitation forhim. She initially submitted that the psychological assessment seems to recommend that he could serve his sentence in the community,but I note that particular reference could have had other

interpretations and it was for that reason that I ordered the update from ForensicServices.

[ 100 ] Defence counsel relies on R. v. A.S.D. , supra , and R. v. Caza , supra , in her argument that a period of 12 months would be a fit sentence. She argues that the provincial programs would provide sufficient rehabilitation.

Counsel submits it would be improper for this Court to take into consideration that the treatment regime might well be better for him in the federal system. [ 101 ] In the alternative, the Crown points out that a two-year sentence is not an unfit sentence, considering all the factors including that the accused's needs would best be met by the programs in the federal institutions given the recommendation that because he is at a moderate to high risk to re-offend, the most suitable programs exist in the federal system. [ 102 ] The defence went on to submit that if the accused was given a federal sentence that he "might shut down" which I take it to mean that he would not benefit from programs designed for serious offenders.

The defence thus submits that the accused would benefit more in the provincial programs. [ 103 ] However, the Crown points out that it is mere speculation that the accused would not benefit from the programs in the federal system. [ 104 ] Lastly, the accused agrees with a three-year period of probation to continue with the relapse prevention programs in the community. [ 105 ] The offence of sexual assault carries a maximum sentence of ten years when the Crown elects to proceed by Indictment which it did here. [ 106 ] There are a number of mitigating circumstances. [ 107 ] Firstly, the accused has pleaded guilty to these offences so that the young complainants need not testify.

He has no prior record. He has expressed remorse, and has indicated a willingness to take the necessary Sex Offender Treatment Programs and relapse prevention counselling. He accepts the facts outlined by the Crown. He has also shown insight into the need to address his alcohol abuse. He states that he is willing to attend substance abuse counselling. He has maintained abstinence through will power since the offence. The accused also appears to have some insight into the impact his offending behaviour has had on the complainants. He states that he is happy he was caught and an end was put to his behaviour.

He was cooperative also when speaking with Forensic Services. [ 108 ] Now turning to the aggravating factors. [ 109 ] The accused appears to minimize some of his responsibility in the offences, in that he expressed the belief that some of the sexual behaviours were initiated by the complainant, C.L. Alcohol was also a contributing factor. [ 110 ]

Section 718.01 of the Code sets out that when a court imposes a sentence for an offence that involves the abuse of a person under the age of 18, it shall give primary consideration to the objectives of denunciation and deterrence. Also, there are the two aggravating factors found in s. 718.2 of the Code that: (

a) the offender in committing the offence abused persons under the age of 18; and (

b) the offender in committing the offences abused a position of trust in relation to both complainants. [ 111 ] It is also clear that C.L. has been profoundly affected as a result of these incidents. He has become withdrawn and unhappy. The L. family is of the view that the accused stole their son's childhood. Likewise, the accused has negatively affected B.D. B.'s trust and innocence are gone. [ 112 ] There is no question but that the accused abused a position of trust with respect to two young complainants.

The offences are serious, invasive, and of an escalating nature over a three-year period with the one child.

There is the further concern that the accused demonstrates a moderate to high risk to re-offend. [ 113 ] Considering the sentencing principles of denunciation and deterrence, the level of moral blameworthiness, the aggravating and mitigating factors, the cases to which counsel have referred, and the reports, I impose a sentence of two years with respect to Count 1, and a concurrent sentence of six months with respect to Count 3. [ 114 ] I am not satisfied that the sentence should be served in the community.

I am satisfied, given the moderate to high risk to re- offend, that there is a safety concern if the sentence were to be served in the community. I am also satisfied that a conditional sentence would not be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Code . [ 115 ] There is also a further period of probation of three years with the following terms: 1. Mr. Wright, you are to keep the peace and be of good behaviour. 2.

You are to report within 48 hours of your release to a probation officer at the office of Chilliwack Community Corrections, 45960 Wellington Avenue, in Chilliwack, B.C. and thereafter report as and when directed by your probation officer. 3. You are to reside at a residence approved of by your probation officer and not change that address without prior written approval of your probation officer. 4. You are to have no contact, directly or indirectly, with C.L. or B.D. or any member of their families. 5.

You are not to attend within a 100 metre radius of the residence, school or workplace of C.L. and B.D. as may be known to you. 6. You are not to have contact direct or indirectly with any person under the age of 16 years.

7. You are not to attend within 300 metres of any park, playground, school ground, swimming area, daycare, recreation/community centre, library or any other place where children under the age of 16 can reasonably be expected to be present including other places identified in writing by your probation officer. 8. You are also to participate in and successfully complete any substance abuse counselling or treatment program, and any other counselling or educational program as may be directed by and to the satisfaction of your probation officer. 9.

You are not to seek, maintain or continue any employment whether or not the employment is remunerated or volunteer in a capacity that involves being in a position of trust or authority towards any child under the age of 16 years. 10. You are to participate in and successfully complete any individual and/or group therapy/counselling and/or programs for sexual offenders as directed by and to the satisfaction of your probation officer which may include the Sexual Offender Treatment Program and the Sexual Offender Maintenance Program. 11.

You are not to possess any weapons or firearms defined by the Code . [ 116 ] There will also be the following ancillary orders. [ 117 ] There is a DNA order to be provided pursuant to s. 487.04 of the Code . [ SOIRA ORDER ] [ 118 ] There is a firearms prohibition pursuant to s. 109 for a period of ten years. [ 119 ] There is a s. 161 order that you be prohibited from attending 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 a daycare centre, school ground, playground, or community centre.

This order is to be in effect for a period of ten years from the date on which you have completed the two-year sentence. [ 120 ] Lastly, there is an order pursuant to s. 743.21 that you be prohibited from communicating directly or indirectly with the complainants and their family members during the custodial period of the sentence. [ 121 ] Lastly, I waive the victim fine surcharge. ________________________ W.A.

Young Provincial Court Judge CORRIGENDUM – Released December 8, 2011 [1] This corrigendum to my Reasons for Judgment issued on December 8, 2011 is to correct numbering at para. 115, as there are two item “10’s.” and should instead read items “10” and “11”, as follows: 10. You are to participate in and successfully complete any individual and/or group therapy/counselling and/or programs for sexual offenders as directed by and to the satisfaction of your probation officer which may include the Sexual Offender Treatment Program and the Sexual Offender Maintenance Program. 11.

You are not to possess any weapons or firearms defined by the Code . [2] All other wording is to remain the same, with no further changes.