R. v. McPherson Date:, 2013 BCPC 250

Citation: R. v. McPherson Date: 20130322 2013 BCPC 0250 File No: 58706-2KC Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RICHARD WALTER SAMUEL McPHERSON BAN ON PUBLICATION Pursuant to s. 486.4(1) Criminal Code of Canada ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE YOUNG Counsel for the Crown: A. Ormiston Counsel for the Accused: D. Silverman

Place of Hearing: Chilliwack , B.C. Date of Hearing: October 29, 2012, January 30, March 8, 2013 Date of Judgment: March 22, 2013 [ 1 ] THE COURT: I found Mr. McPherson guilty of the following charges: Count 1: Assault of G.T. on February 11, 2011 Count 2: Sexual assault of G.T. on February 11, 2011 Count 3: Assault of S.O. on February 11, 2011 Count 4: Sexual assault of S.O. on February 11, 2011 Count 5: Assault causing bodily harm of W.H. on February 11, 2011. [ 2 ] The issue on this sentencing is the length of time to be imposed. The Crown proceeded summarily.

The Crown seeks a sentence of four years in addition to ancillary orders, in particular, a DNA order with respect to Counts 2 and 4, and a Sex Offender Information Registration Act order pursuant to s. 490.011(1)(a)(16). [ 3 ] The Crown submits that the sentences should be consecutive with respect to the three complainants, given the distinct nature of the offences. [ 4 ] The defence submits that I should consider a provincial sentence; in essence time served. The accused has been in custody since March 10, 2011 so in essence two years plus 12 days.

The defence invites the Court to impose a period of probation to assist Mr. McPherson to attend a possible program in Surrey which could provide tertiary care for him. However, the defence also acknowledges that this is a difficult sentencing given Mr. McPherson's cognitive difficulties and that the range of sentence of four years being proposed by the Crown is not an unfit sentence. [ 5 ] The defence does acknowledge that the federal parole system may well be able to link Mr.

McPherson to the proposed tertiary care program in Surrey which program the accused would need in order to cope in the community. [ 6 ] The defence does not oppose the ancillary orders being sought. [ 7 ] I want to turn to the facts. [ 8 ] Mr. McPherson resided at the Sto:lo Elders' Lodge as did G.T., his girlfriend. The other two complainants worked at the Lodge. Ms. O. worked as a care aide and Mr. H. was a security guard at the Lodge. [ 9 ] I found that the accused struck Ms.

T. in her bedroom; he had gone into her room to visit her, and hit her with his open hand across the left side of her face as she was standing in front of the television set. I also found that the complainant, Ms. T., did not consent to his prior attempt at sexual intercourse with her in the room or his touching her breasts. I found that the complainant was afraid of the accused and that she did not consent to any sexual activity. [ 10 ] Mr. McPherson kept saying that God had sent him and he was angry. The complainant had never seen the accused behave like that in the past. She did not want Mr.

McPherson to become more violent with her and so she agreed in essence to have sex with him. Ms. T. is in her mid-seventies. She has health issues, being arthritis and diabetes. She has been in a relationship with Mr. McPherson since May of 2010. She did not receive any physical injuries as a result of this incident although she was fairly shaken. [ 11 ] Ms. T. left her room and she saw the security guard, W.H., and the other complainant, Ms. O., in the hallway of the Lodge. [ 12 ] Mr. McPherson then punched the security guard Mr. H. in the face, and grabbed Ms. O. by the hair.

The security guard was 64 years of age. Ms. O. sought his help at the Lodge. He proceeded with Ms. O. to look for Mr. McPherson. They could not initially find him in his room and then saw him in the hallway with only a t-shirt on and nothing else. He also saw Ms. T. in the hallway. [ 13 ] Mr. H. did not say anything to the accused until the accused touched Ms. O. at which point Mr. H. told the accused he could not do that. Mr. McPherson then hit Mr. H. with a closed fist on the right side of his face. Mr.

H. fell down and had to sit on a ledge along the wall. [ 14 ] The medical report that was filed as an exhibit stated that Mr. H. had a fracture of the inferior orbital rim on the right side of his face, a mildly depressed fracture of the anterior maxillary rim, a two-part fracture of the sinus wall, as well as other fractures to his face. [ 15 ] The photographs of Mr. H. indicated extensive redness to his right eye, his nose, his right cheek and his upper mouth area. He had to be off work for a couple of weeks and had trouble breathing as a result of his injuries. [ 16 ] Ms.

O. was 27 years of age when she testified. She weighed about 135 pounds at the time of the incident and she was about 5 feet, 4 inches in height. She wore a nurse's uniform that night and was working in the Lodge office when Mr. McPherson came to the office window. He was wearing only a t-shirt and a pair of boxers. He seemed disoriented and asked Ms. O. when his mother and uncle would be coming home. She told him that they did not live there. [ 17 ] Mr. McPherson reached out to grab Ms. O. as if to hug her. She put her hand up and asked him what he thought he was doing

and he said, "Just come here and kiss me". Ms. O. told the accused he was being inappropriate and that she did not think her boyfriend would like it or that Ms. T. would appreciate it either. [ 18 ] Ms. O. observed that Mr. McPherson's head was shaking up and down and she sensed that something was wrong. She could not smell any alcohol on him. She asked him if he had been drinking and then he made a thrusting motion with his hips back and forth and his arms were moving at his side. [ 19 ] A few minutes later, Mr. McPherson also grabbed his penis over his clothing and shook it.

This was still in the general area of the office. Ms. O. went into her office and locked the door and tried to phone Security. She believed that something was not quite right about the accused. She also called her manager at home. [ 20 ] A few minutes later, she let the security guard, Mr. H., into the Lodge. She asked him to come with her to check around to see where Mr. McPherson had gone and to ensure that the other elderly residents were safe. They then went into the hallway. [ 21 ] She and Mr. H. were about halfway down the second hallway when Ms.

T.'s unit door opened and she ran out into the hallway and said, "Get him away from me. He just slapped me in the face". Ms. T. was upset. Mr. McPherson was behind her. She was wearing a housecoat and Mr. McPherson had a t-shirt on and nothing else. [ 22 ] Ms. O. saw Mr. McPherson grabbing at Ms. T.'s arm. Ms. O. told Mr. McPherson to find his underwear and to put it on. She told him not to grab Ms. T. Mr. McPherson grabbed Ms. O.'s left arm with one of his hands and bent down and sniffed at her crotch area. She pushed him away with her hand on his shoulder.

He stood up and proceeded with his hand to grab her crotch area. She tried to get Mr. McPherson to let go of her but he would not do so. He backed up with her until she was up against the wall. He placed his hand between her legs over her pants in the area of her vagina. He held his hand in that position. She backed up to get away from him and told him that he was being inappropriate and that "You do not touch anyone like that". [ 23 ] Ms. O. then walked to Ms. T. and put a hand on her to lead her down the hallway to a side door where the laundry room was located as she wanted to lead Ms. T. to safety. Ms.

O. got Ms. T. to the laundry room and was about to shut the door when the accused pushed his way into the room with Ms. T. and was trying to shut the door. Mr. H. was outside the laundry room door. [ 24 ] Ms. O. was not sure if the accused was trying to pull or push her out of the laundry room but he had his hand on her left arm. She tried to explain to him that the laundry room was a secure place for Ms. T. The accused held on to Ms. O.'s arm at which point Mr. H. told the accused not to do that; "You don't grab people like that". Ms. O. then called 9-1-1 on her cell phone. [ 25 ] It was at that point that Ms.

O. saw Mr. McPherson repeatedly strike Mr. H. in the face. She saw blood coming out of Mr. H's face before he dropped against the wall beside the laundry room. Mr. H. just slid down the wall to the floor. She described how Mr. McPherson punched Mr. H. in the face as hard as he could hit him, using both fists at least four times. [ 26 ] At that point, Mr. McPherson then came after Ms. O. She got into the main hallway. He was behind her with his fists flying. All she knew was that she had to protect her face so she had her arms up to block the blows to her face.

She kept her back to him and he tried to reach around to punch her in the face. She tried to protect her face, however, he punched her in the jaw and she ended up against one of the walls which was a bank of windows. He stood behind her using both of his fists. He threw her across the hallway; he grabbed her from behind and tossed her. She ended up sitting on the floor. She landed on her buttocks. [ 27 ] Ms. O. saw Mr. McPherson standing in front of her and she covered her head with her arms. She was on her knees with her arms up over her head trying to protect herself and Mr.

McPherson was behind her with both of his fists punching her hard in the back of her head. She tried to talk with him, telling him that he needed to stop this. She was concerned that he would knock her out. He would reach down with both of his hands and grab her hair and pull her up by the hair to where she was standing on her knees. He then let get of her hair and punched her again in the back of her head. He repeated the blows. [ 28 ] Ms. O. testified that the punches felt like a thousand pound brick coming at the back of her head and she had no idea how long this lasted.

She knew she had to get out of the situation so when Mr. McPherson again pulled her up to her knees on the last occasion, she managed to get a foot up and ran to the laundry room at the end of the hall. She shut the door. [ 29 ] At that time, Ms. O. saw Mr. H. sitting outside of the door bleeding. She described how Mr. H. seemed disoriented and just sitting there with his head dripping blood over his shirt. She described how she was terrified and worried about the other residents. [ 30 ] It took the police about 15 minutes to arrive. The police wanted Ms. O. to find clothing for the accused and so she and Ms.

T. found clothes for him to give to the police. [ 31 ] Ms. O. described her injuries as being a lump on the back of her head, bruises on her knees, scratches on her cheek, a scratch on her nose, a sore spot and then a bruise on the left side of her jaw, bruises on her arms, a sore wrist and a sore back that lasted for a considerable period of time. She was diagnosed as having a severe form of whiplash which could have come from being thrown or having her hair pulled and then her neck thrown back repeatedly. She has also had trauma counselling on a regular basis. She was on anti-depressants and anxiety pills.

She was also given painkillers at the hospital. The police asked Ms. O. to search the accused's room. She did so and did not find any alcohol but rather a Tylenol and an aerosol can of Febreze. [ 32 ] She agreed she had never seen Mr. McPherson behave in this fashion towards her in the past. He did smell of alcohol, but his head was shaking up and down. [ 33 ] Constable Farlin dealt with Mr. McPherson at about 12:30 in the morning. He observed that the accused showed signs of intoxication. In particular, that he was unsteady on his feet. He made no sense and he was giggling. She wanted him seen medically.

He also tried to grab the officer's thigh at one point in time and the officer had to tell him not to touch her. [ 34 ] The first officer on the scene, Constable Ruiz, thought that the accused was intoxicated by alcohol. He was not standing straight

and was mumbling. The officer asked for clothing in order to dress him. He was unsteady on his feet and he was swaying. [ 35 ] Constable Lownsbury conducted an investigation the following day. She observed that Mr. H. had blood on his face coming from his nose. The blood was dry but fresh and there were significant bruises on his right eye which was very swollen. He was in shock. [ 36 ] While Ms. T. appeared to be shaken and crying, the officer encouraged Ms. T. to attend a hospital but she advised she was fine. Ms. T. had redness along the cheekbone on the left side of her face. [ 37 ] On the other hand, Ms.

O. also had a red bruise in the middle of her back and redness in her hairline. She also had a red line on her right shoulder and redness on her face and cheeks and a bruise on her left jaw line. She also had bruising on her arms and redness on her knees. [ 38 ] Constable Lownsbury had contact with the accused at the Detachment where she observed he had swollen knuckles on his right hand and there were bruises forming on the knuckles. She took a statement from Mr. McPherson, who said he did not sexually assault Ms.

T. and that they had had consensual sex but he agreed he hit her once. [ 39 ] The accused went on to say that he did not remember hitting anyone or even having sex. He did not remember hitting the security guard and in essence did not remember what had happened. He agreed he had used crack cocaine and marihuana beforehand. The position of the defence is that Mr. McPherson does not remember this incident. [ 40 ] The officer thought that Mr.

McPherson was showing signs perhaps of early onset dementia or Alzheimer's, that he suffered from seizures, and that he had an alcohol problem and also "huffed", which means sniffing on aerosol cans. He also had a history of using marihuana. [ 41 ] I want to turn to the victim impact statement of Ms. O. [ 42 ] Ms. O. described how she arrived to work that particular evening only to have her soul shattered and that her life has not been the same since. She will not forget the impact that Mr.

McPherson has had on her life. [ 43 ] She states that she needs anti-depressants to survive daily living and anti-anxiety medication for panic attacks. She has been diagnosed with post-traumatic stress disorder and depression. She has found it difficult to participate in family or friend functions. Her relationship with her then boyfriend ended as a result of this incident. As well, her own father has been affected. [ 44 ] After the event, Ms. O. gained weight and she has been on a variety of different medications. She has experienced neck and back pain.

She was advised by a specialist that she had severe whiplash as a result of Mr. McPherson throwing her and grabbing her many times by her hair. [ 45 ] She has not been able to return to her employment at the Sto:lo Lodge as a result of this traumatic event in her life. [ 46 ] I have not received a victim impact statement from the other two complainants, although Ms. T. did speak with probation. [ 47 ] I would like to turn to the pre-sentence report. [ 48 ] Mr. McPherson is 63 years of age. He was born in Fort Simpson, Northwest Territories. He had three siblings.

His mother was a member of Misikew Cree First Nation and his father is a member of the Liidlii Kue First Nation. He was raised in a non-traditional manner and did not participate in cultural events. [ 49 ] At the age of 12 he developed tuberculosis and was hospitalized in Edmonton for a year and when he tried to repeat his Grade 7 he dropped out of school. It was at this time that he began to consume alcohol on a regular basis.

He continued to reside in Hay River into adulthood and struggled with alcohol addiction. [ 50 ] At the age of 40 he had a common-law relationship which resulted in one son with whom he has had no contact. He admits that alcohol was a factor in the deterioration of his relationship. He also divulged another long term relationship which lasted for several years. That partner died from heart failure. [ 51 ] In 2010, he moved to Sechelt to live in a trailer with a friend and then shortly thereafter moved to the Sto:lo Elders' Lodge in Chilliwack. He could not explain how he ended up in the Lodge.

He has expressed a desire to return to the Lodge upon his release, however, he will not be able to return to the facility given this incident. He does not know where he can live. [ 52 ] He also expressed the desire to continue his relationship with Ms. T. upon his release. She is open to receiving letters from him but initially did not wish to continue their relationship. The Crown advises however that Ms. T. is now willing to have Mr. McPherson return to reside with her. She is currently living in North Vancouver.

She has expressed trouble sleeping and also she did express concern to probation about her safety. [ 53 ] Mr. McPherson was on social assistance prior to this accident. He has never been diagnosed with any mental health disorder or learning disorder but he believes that he has suffered from depression in his life and he admits to using alcohol. He broke his hip during his period of current incarceration. He suffers from a brain disorder caused by excessive alcohol use. He also suffers from alcohol related seizures. He struggles to recall past events in his life and is repetitive in his answers.

He had difficulty expressing timelines. [ 54 ] He also reports having a long history of alcohol abuse. He also admits to having consumed shaving lotion, hair spray, and other household items later in life and admits to using marihuana in the past couple of years. He denied the use of any hard drugs and his Corrections file states he may have also experimented with huffing or inhalant abuse. He denies that usage. However, as I have stated, the police did report that there were a copy of bottles of Febreze found in his room.

He has been hospitalized several times in his life due to complications from his alcohol use and he admitted that he has never completed counselling or treatment for substance misuse.

[ 55 ] Mr. McPherson has a criminal record of impaired driving convictions, assaults, including assault causing bodily harm in 1979, and property related offences. The majority of his convictions stem from alcohol use. His court history indicates he has failed to comply with court orders in the past. [ 56 ] Turning to attitude, Mr. McPherson asserts he is willing to attend any counselling or programs deemed necessary by the courts. He has been quiet and compliant in jail. He appeared to understand the hurt he has caused to the victims but he was unable to show any insight into the offences.

He did not remember anything and did not know how he got to jail. He did express remorse for his actions and appeared upset about the offences. [ 57 ] Mr. McPherson is of aboriginal heritage and the report writer proposed various aboriginal treatment facilities available to him, being for example, Round Lake Treatment Centre, a program in Agassiz, or a substance abuse treatment centre at Lantzville which has a four- to six-month wait before entry.

Counsel are not proposing that I consider any of those particular programs. [ 58 ] The report writer points out that the accused has a lack of positive social supports and that he would benefit from residing in a structured facility that could deal with his particular mental or physical needs. He has displayed poor problem solving and impulse control.

The lack of control appears to be directly connected to his substance abuse over a long period of time. [ 59 ] The report writer also suggested several community-based programs such as the Riverstone Detox Program, a Chilliwack Addictions and Prevention Services Program or CAPS, and the SAM or Substance Abuse Management Program. Counsel are not asking that I consider any of those programs given the accused’s particular cognitive difficulties. [ 60 ] The report writer also suggested that if Mr.

McPherson received a sentence of two years or more in the federal system, he would first be sent to the Regional Reception Assessment Centre in Abbotsford and that they would profile him over a period of eight to ten weeks to provide information for classification and to establish a plan. [ 61 ] A sex offender is normally sent either to maximum security at the Regional Treatment Centre or to medium security at Mountain Institution.

After the successful completion of either a high or moderate intensity sex offender program, an offender may attend the National Sex Offender Maintenance Program, the goal of such program being to expand and incorporate treatment gains and to revise the self-management plan. [ 62 ] The federal based programs use a cognitive behavioural approach and deliver the programming in a group style setting with individual intervention. [ 63 ] An individual who is sentenced to less than two years in jail will serve his sentence at Ford Mountain Correctional Centre.

There, the offender will participate in a 12-week sex offender treatment program designed to reduce and manage their risk for sexual offending. [ 64 ] In the community, the Forensic Psychiatric Services Commission provides a sex offender assessment and treatment program on an outpatient basis to offenders serving on community supervision orders. This is a 12-week low intensity program and it is offered once per year in the fall. [ 65 ] I would like to turn to the psychological reports. The two reports have been prepared dated October 12, 2012 and December 4, 2012. [ 66 ] In the October report, Dr.

Stangeland relates that medical records suggest that there is a strong possibility that Mr. McPherson's seizures relate to complications from heavy alcohol use. He is taking Dilantin, an anticonvulsant medication, but he reported that he still has occasional seizures. He advised that he started abusing alcohol when he was 13 and that he drank heavily most of his adolescence and into adulthood. He also admitted to drinking substances that contain alcohol such as shaving lotion and hair spray. He would often end up in hospital. He is reported to having a history of using inhalants although he denied this.

He admitted to using marihuana prior to coming into custody. Medical reports indicate that he was once addicted to crack cocaine. He also has a poor memory as I have already stated. [ 67 ] Testing indicated that vocabulary knowledge fell in the low average range and he has also significant cognitive impairment with regard to information processing and problem solving. His capabilities in this regard were only briefly evaluated but it would appear that his cognitive capabilities fall in the low to extremely low range of abilities.

Memory testing suggested significant levels of impairment. [ 68 ] The results of psychological testing and his history strongly suggest a diagnosis of substance-induced persisting amnestic disorder arising from alcohol abuse. [ 69 ] Mr. McPherson also has numerous physical complaints and health concerns and his level of depression was reported to be at least moderate. It is possible that the symptoms he reported are associated with states of delirium that he has entered as a result of alcohol abuse. [ 70 ] The psychologist considered the factors that could be considered possible risk variables.

Using the Risk Assessment Rating System, it was the expert's opinion that Mr. McPherson represents a low to low moderate level of risk for violent behaviour when he is not under the influence of alcohol. This would include both sexual and non-sexual violence. However, when he uses alcohol, his risk for violence must be considered to be substantially higher. At that point, his risk for violent behaviour probably falls in the high range. He must thus abstain from substance abuse in order to manage his risk for violence. [ 71 ] On the last page of the report, Dr.

Stangeland stated the following: In terms of risk management, the most critical factor is an appropriate residential placement with adequate supervision and support. Richard needs placement in a facility capable of dealing with individuals suffering from dementia who pose some risk for violence and other inappropriate conduct. It might be difficult to find such a facility but placement in any alternative resource would substantially

increase risk for violence. There needs to be tight control over his access to alcohol and other substances containing alcohol orintoxicating chemicals. Given his memory impairment, he is unlikely to gain substantial benefit from treatment programs. [72] On p. 10 of the report, the psychologist opines that Mr. McPherson might well be socially isolated and to have few closeinterpersonal relationships; that he probably has limited social skills and he may have difficulty interpreting subtleties of socialcommunication. His thought processes involve a great deal of confusion and he has difficulty concentrating.

He is overly preoccupiedwith physical problems, or there could be genuine health concerns. [73] The second report filed in December was based on further information concerning his criminal record. The information abouthis record confirmed the doctor's conclusion that he presents a high risk for violence when he is intoxicated and is at a low to lowmoderate risk for violence when he is not drinking. [74] The new information did not change the psychologist's opinion which is that it is important that Mr.

McPherson reside in afacility that has the capacity to cope with his particular specialized needs, that he has appropriate medical management of his condition,and that he maintain abstinence from alcohol use. [75] I want to turn to the submissions of counsel. [76] At the outset of my reasons, I referred to the positions of counsel, but I would like to deal with their submissions in furtherdetail. [77] The Crown advises that Mr.

McPherson had been in custody since March 10, 2011 so in essence she is inviting me to give Mr.McPherson credit on a one-for-one basis for what is two years and 12 days. [78] The accused was originally released on bail on this matter but a 524 warrant was issued shortly after his release as he did notcomply with the reporting condition. The bail supervisor found Mr. McPherson to be unsupervisable and he was rearrested on thewarrant. [79] The Crown seeks a global sentence of four years. She submits that Counts 1 and 2, being the assault and sexual assault of Ms.T., arose from the same incident.

The Crown accordingly invites the Court to enter a judicial stay of proceedings with respect to Count 1,being the charge of assault of Ms. T. The Crown seeks a 15-month sentence with respect to Count 2. [80] She seeks a 15-month consecutive sentence with respect to the assault on Ms. O., being Count 3, and a 15-month concurrentsentence with respect to the sexual assault of Ms. O., being Count 4. [81] Lastly, she seeks an 18-month consecutive sentence with respect to the assault causing bodily harm of Mr. H. [82] The Crown submits that Counts 3 and 4, being the assault and sexual assault of Ms.

O., are separate and distinct offences andthus there is no need to enter a judicial stay of proceedings with respect to one of those counts which can be dealt with concurrently. [83] The Crown also invites the Court to impose consecutive sentences with respect to the offences involving the three complainants.She relies on the following decisions in considering the sentencing principles, the totality principle, and the range of sentences forsimilar offences being: R. v. Solowan, 2008 SCC 62 , [2008] 3 S.C.R. 309; R. v. Raj, [2010] B.C.J. No. 1320; R. v. Innes, 2008ABCA 129 , [2008] A.J. No. 346; R. v.

Golden, [2009] M.J. No. 366; R. v. O.B., [2008] O.J. No. 4423; R. v. Sackanay, (ON CA), [2000] O.J. No. 885; R. v. J. (C.A.), [1987] B.C.J. No. 596 (C.A.); R. v. Berikoff, [1994] B.C.J. No. 1997 (C.A.);R. v. Rufus, [2009] B.C.J. No. 1977; and R. v. R.R.M., 2009 BCCA 578 , [2009] B.C.J.

No. 2528. [84] The Crown submits the applicable sentencing principles are both general and specific deterrence as well as denunciation andthat where there are multiple complainants and distinct offences, as here, the totality principle is an important factor where the lawmandates a number of consecutive sentences. [85] The Crown expressed concern about Mr. McPherson's cognitive and memory problems as well as his unusual behaviour at thetime of the offences. All of the witnesses stated he was acting strangely. There is an indication in the evidence that he was intoxicated insome fashion but by what is unclear.

He does present a high risk for violence when he is intoxicated. [86] Counsel are aware of a program in Surrey which is a type of tertiary care program for persons who cannot live unassisted, butthe program was not prepared to take Mr. McPherson without the approval of Fraser Health Authority, which approval has not as yetbeen obtained. In order for Mr. McPherson to be admitted to this particular tertiary care program, reports would have to be prepared andthe matter referred to management.

All of this will require time and could potentially be part of a release plan by the National ParoleBoard. [87] Both counsel submit the accused requires a structured environment and is not able to benefit from counselling because of hiscognitive difficulties. Realistically speaking, Mr. McPherson is not a candidate for probation, given that he would not have the capacityto report on a regular basis.

I note that he has spent his time in pre-sentence custody in the medical wing of the institution given hisparticular health issues. [88] Defence counsel acknowledges that this is a difficult sentencing, given the limited resources in the community. As counselpoints out, Mr. McPherson's prognosis is not good and his health has declined during the last two years of his being in custody. Defencecounsel acknowledges that Mr.

McPherson is brain damaged due to severe alcohol misuse over a long period of time and now suffersfrom seizures, perhaps as a result of falling off his bunk, in other words, partly exacerbated by that while he has been in custody. [89] Defence counsel submits that specific deterrence is a difficult factor for the Court to take into account, given his cognitivedifficulties, and that any sentence would better address general deterrence and denunciation.

[90] The defence acknowledges that the Court is really left with no alternative but to consider a period of custody but that it is alsoopen to the Court to impose probation in addition to any period of custody. [91] Defence counsel agrees that the tertiary care program in Surrey might better become part of parole if a federal sentence isimposed, but counsel submits it is also open to the Court to consider the tertiary care facility referral process as part of a probation orderin conjunction with attendance perhaps at Chilliwack Mental Health on an outpatient basis. [92] Defence counsel has drawn my attention to R. v. Ipeelee, 2012 SCC 13 and points out that s. 718.2(

e) of the Criminal Code is aprovision designed to ameliorate the problem of over-representation of aboriginal people in Canadian prisons and to encouragesentencing judges to take a restorative approach to sentencing. [93] The Court in Ipeelee, supra, points out that when sentencing an aboriginal offender, a judge must consider the factors outlinedin R. v. Gladue, (SCC), [1999] 1 S.C.R. 688. However, in sentencing aboriginal offenders a Gladue Report isencouraged which contains specific information tailored to the circumstances of the offender. That report is a sentencing tool and ishelpful to the judge when considering s. 718.2(

e) of the Code. [94] Here, defence counsel has not sought to pursue the preparation of a Gladue Report despite Mr. McPherson's aboriginalbackground given his unique cognitive difficulties. Thus, defence counsel has been candid in submitting that the sentencing options opento the Court are limited in that Mr. McPherson will not be able to gain rehabilitative assistance from the usual offender treatmentprograms offered either in custody or in the community.

So in other words, sentencing alternatives are few given his profound cognitivedifficulties. [95] Also, defence counsel has not provided any alternative realistic living arrangement for him.

It simply at this time does not existapart from the tertiary care facility which requires approval by Fraser Health, which approval I have been advised cannot be obtainedprior to the sentencing. [96] The defence does not object to the ancillary orders sought by the Crown. [97] Now, just turning to my analysis. [98] The relative principles of sentencing include firstly the fundamental purpose of contributing to respect for the law and themaintenance of a just, peaceful and safe society. The relevant objectives in this sentencing are denunciation as well as specific andgeneral deterrence.

The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, andwith sentences for other similar offenders for similar offences committed in similar circumstances. [99] Given Mr. McPherson's aboriginal heritage, I am also mindful of s. 718.2(

e) of the Criminal Code that all available sanctionsother than imprisonment that are reasonable in the circumstances should be considered for all offenders with particular attention to thecircumstances of aboriginal offenders. [100] In R. v. Ipeelee, supra, the Supreme Court of Canada reaffirmed the special sentencing approach with respect to aboriginaloffenders. I am mindful that this

section requires the Court to use a different method of analysis in determining a fit sentence foraboriginal offenders. Judges are encouraged to take judicial notice of the systemic and background factors affecting aboriginal peoplegenerally and I do so. However, I do not have any case specific information regarding the accused other than the information containedin the pre-sentence report and the psychological assessments.

Counsel chose not to pursue the preparation of a Gladue Report given Mr.McPherson's particular difficulties. [101] The Gladue principles on their own do not necessarily justify a different sentence for the aboriginal offender but they do providethe context for considering case specific information. So in sentencing Mr. McPherson, I have some case specific information but not thebenefit of a complete Gladue Report. [102] I am satisfied that the sentence should be consecutive with respect to the three complainants in that the offences are distinct.

Imust also determine if the aggregate of the four years proposed by the Crown is unduly harsh or disproportionate. I find that theaggregate of four years is not disproportionate given the gravity of the offences and the circumstances surrounding them. [103] Turning to an assessment of the gravity of the offences and Mr. McPherson's degree of culpability, I note the followingaggravating factor: that Mr. McPherson abused his partner, Ms. T. She was elderly and not in a position to resist Mr. McPherson'sadvances in the safety of her own room.

Physical and psychological damage has also flowed from the gravity of the offences. [104] Ms. O. has been profoundly affected by the assault and sexual assault upon her person. She found the unexpected attack to beterrifying. She was in the process of doing her job, only to find that the incident has left her unemployable as a care aide. She has alsoreceived significant neck and back injuries. [105] Lastly, Mr. H. received numerous fractures to his face and was off work for a period of time.

He has also had trouble breathingas a result of his injuries. [106] In mitigation, the accused clearly has profound cognitive difficulties which doubtless had a role to play on this occasion. He hasalso developed serious physical problems. [107] The witnesses described something being wrong and he may have been intoxicated.

He does not remember what happened andhe probably is not able to benefit from the treatment programs offered in the various institutional settings. [108] However, in my view, the aggravating features of these offences outweigh the mitigating factors and dictate a further period ofincarceration. I am also mindful that Mr. McPherson has a prior related record for assault causing bodily harm and assault.

[ 109 ] He has been in custody since 2011. That is a total of two years and 12 days. I am prepared to give credit for one day for every day in custody for the pre-sentence time in custody. Thus, I find that Mr. McPherson has already served the equivalent of a sentence of two years and 12 days. [ 110 ] Lastly, I am not satisfied that Mr. McPherson can serve the sentence in the community on a probation order. He requires a secure placement in which to live and such placement has not been proposed other than a possible tertiary care facility in Surrey which may or may not take him once his sentence is concluded.

Also, he is not in a position to comply with reporting to a probation officer in a regular fashion and is not likely to benefit from any programming offered in the community. [ 111 ] So, Mr. McPherson – actually, you do not need to stand nor am I asking you to stand, but that is fine you can remain seated, sir. [ 112 ] I agree with the Crown's submission that the assault of Ms.

T. arose out of the same incident as the sexual assault of her and accordingly I enter a judicial stay of proceedings with respect to Count 1. [ 113 ] On Count 2 – and Madam Clerk I will read slowly here for your benefit – I sentence you to 15 months for the sexual assault of G.T., but I reduce that to two months and 18 days to take into account 12 months and 12 days you have already served but the record should reflect your actual sentence is 15 months but reduced. [ 114 ] On Count 3, I sentence you to 15 months consecutive for the assault of Ms.

O., but I reduce that to three further months consecutive to take into account the additional 12 months you have already served. [ 115 ] On Count 4, I sentence you to 15 months concurrent with respect to the sexual assault of Ms. O., but I reduce that to three months concurrent to take into account the time you have already served while in custody. [ 116 ] Lastly, on Count 5, I sentence you to 18 months consecutive for the assault causing bodily harm of Mr. H. [ 117 ] I also make the following ancillary orders. [ 118 ] Firstly, there is a DNA order pursuant to s. 487.051.

I make an order authorizing the taking of a number of samples of bodily substance from you that is reasonably required for the purposes of forensic DNA analysis. [ SOIRA ORDER] [ 119 ] Lastly, pursuant to s. 109(2)(

b) of the Criminal Code I order that you be prohibited for life from possessing any firearm, crossbow, prohibited weapon, ammunition and explosive substance. [ 120 ] I waive the payment of the victim fine surcharge. [ 121 ] So I should ask first of all Ms. Ormiston is there anything that you want to add or say with respect to this? [ 122 ] MS. ORMISTON: No, Your Honour. [ 123 ] THE COURT: Okay. Mr. Silverman? [ 124 ] MR. SILVERMAN: No. [ 125 ] THE COURT: All right. ____________________ W.A. Young J.