R. v. B. and S. Date:, 2014 BCPC 94

Citation: R. v. B. and S. Date: 20140416 2014 BCPC 0094 File No: 58984-2-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. T.S.B. M.S. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE MERRICK Counsel for the Crown: L. H.

Counsel for the Defendant: M. S. Place of Hearing: North Vancouver, B.C. Date of Hearing: October 8, 2013 Date of Judgment: April 16, 2014 [1] THE COURT: T.S.B.is charged with sexual assault contrary to s. 271 of the Criminal Code. On one occasion, Mr. B. engagedin

an act of oral sex with R.K. who was 13 or 14. Mr. B. and R.K. were cricket players and knew each other from the local cricket club. The two walked together in a forested area near the cricket club. It was in that area where the offence occurred. Mr. B. knew R.K. wasunder the age of 18 at the time. He stopped the interaction because he felt it was wrong. [2] Crown counsel submits that a period of incarceration for six months is appropriate and does not oppose a conditional sentence. Defence counsel submits that a conditional discharge is appropriate.

General Sentencing Principles [3] Sentencing is an individualized process in which the court must take into account not only the circumstances of the offence, butalso the specific circumstances of the offender. Although the court must consider all the principles of sentencing set out in the CriminalCode, certain principles will receive more emphasis depending on the nature of the offence committed; see R. v. Ralph, 2014 BCSC 467. [4]

Section 718.01 of the Criminal Code codifies the principle that where an offence involves abuse of a child, primaryconsideration in sentencing is denunciation and deterrence. The sentencing principles of restraint and rehabilitation of the offender,while still operative, are given secondary status; see R. v. Ralph, see also R. v. D.W., 2012 BCCA 454 , [2012] B.C.J. No. 2646(B.C.C.A.), and R. v. F.R., [2010] N.S.J. No. 344 (N.S.P.C.). Mitigating Factors 1. Mr. B. pled guilty to the charge; 2. Mr. B. has no criminal record; 3. Mr.

B. is remorseful, is ashamed of his actions, accepts responsibility, and has provided a written letter of apology to R.K. andher mother; 4. Mr. B. has suffered the ruin and humiliation as a result of conviction and has shamed his family; 5. Mr. B. was entirely cooperative with authorities; 6. Mr. B. was assessed and has been determined to be a low risk to reoffend. [5] Defence counsel submitted that the adverse publicity that Mr. B. has suffered is an additional mitigating factor that I shouldconsider. With respect, I disagree. Adverse publicity is not a mitigating factor; see R. v. Ralph.

Is a Discharge Appropriate? [6] There is no question that the imposition of a conditional discharge is in Mr. B.'s best interest. The issue is whether or not theimposition of a discharge would be contrary to the public interest. In my view, the range of sentence for an offence under s. 271(1) of theCriminal Code permits consideration of the imposition of a conditional discharge. [7] In Mr. B.'s case, his counsel submits that the principles of restraint and rehabilitation favour the imposition of a conditionaldischarge.

In support of his position, defence counsel referred me to the Nova Scotia Provincial Court decision of R. v. J.W., [2010]N.S.J. No. 379. The accused in that case who was 18 was granted a conditional discharge for sexual assault that involved inappropriatetouching and that was characterized at the low end of the range. [8] I note however that the court in that case did not specifically refer to s. 718.01 of the Criminal Code.

That said, the publicinterest in the deterrence of others does not preclude the judicious use of the discharge provisions of the Criminal Code; see R. v.Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A). [9] In balancing Mr. B.'s interest and the societal interest in order to determine whether the granting of a discharge would be in Mr.B.'s best interests and not contrary to the public interest, I have given careful consideration to the extensive mitigating factors. However,I do not consider the offence committed by Mr.

B. to be at the low end of the range for this type of offence. [10] Parliament has determined that children, regardless of their level of physical development and their willingness to consent to theactivity, are unable to do so because of their level of immaturity. Children are vulnerable and need to be protected from adults whowould take advantage of this vulnerability. Mr. B. was aware his behaviour was wrong. He is the adult. He took advantage of thevulnerability of a child. This is a serious offence.

The primary consideration in this sentencing is denunciation and deterrence. [11] Accordingly, I have concluded that it is contrary to the public interest to grant a discharge and I decline to do so. Havingdetermined that Mr. B. will have a criminal record for this offence and will be registered in the Sex Offender Information Registry, theprinciples contained in s. 718.01 of the Criminal Code have been satisfied.

[12] Considering Mr. B.'s young age, 19 at the time of the offence, the extensive mitigating factors, and the sentencing principles ofrehabilitation and restraint, I have concluded that a jail sentence is not warranted. [13] Mr.

B., would you please stand. [14] I hereby suspend the passing of sentence and place you on probation for a period of 12 months. [15] Pursuant to s. 732.1 of the Criminal Code, you shall keep the peace and be of good behaviour. [16] You shall appear before the court when required to do so by the court. [17] You shall notify the court or your probation officer in advance of any change of name or address and promptly notify the courtor probation officer of any change of employment or occupation. [18] No later than 4:00 p.m. today, you shall report in person to the probation officer at the probation office at 100, 233 West 1stStreet, North Vancouver, British Columbia, and after that, you shall report as and when directed by the probation officer.

The probationofficer shall excuse you from further reporting under this order upon the satisfactory completion of the community work service that Ishall order. [19] You shall have no contact or communication directly or indirectly with R.K. [20] Under the direction and the supervision of the probation officer, you shall successfully complete 50 hours of community servicework. Such work shall be completed by December 31st, 2014, but as I have stated, once the community service work is done, yourobligation to report is concluded. [21] This is a primary designated offence.

Pursuant to s. 487.051(1), I make an order in Form 5.03 authorizing the taking of thenumber of samples of bodily substances by any peace officer for the Province of British Columbia that is reasonably required for thepurpose of forensic DNA analysis and registration in the national DNA databank from T.S.B. [22] Pursuant to s. 487.051(4), I further make an order in Form 5.041 that Mr. B. shall attend -- and when are appropriate days? [DISCUSSION RE DNA REPORTING CONDITION] [23] THE COURT: Then what I will do is make the order that Mr.

B. shall attend at the RCMP detachment in Surrey no later thanat 4:00, May 1st, 2014, and submit to the taking of the samples. [24] MR. S.: Thank you, Your Honour. [25] THE COURT: Pursuant to s. 490.012(a), there will be registration in the Sex Offender Information Registry for 10 years. [26] The victim fine surcharge applies; time to pay is two months. [27] You can have a seat, sir. M.

S. [28] M.S. has pled guilty to the offence of using a computer to communicate with R.K., a person he believed was under the age of 16for the purpose of facilitating the commission of certain offences under the Criminal Code which is contrary to s. 172.1(1)(

b) of theCriminal Code. Mr. S. had inappropriate sexual conversations with R.K. over Facebook. Those conversations involved the exchange ofexplicit chats and photographs. The conversations occurred for approximately six weeks. R.K. was 13 or 14 at the time. [29] Crown counsel submits that a period of incarceration for three to four months is appropriate and does not oppose the impositionof a conditional sentence. Defence counsel submits that a conditional discharge is appropriate. The General Sentencing Principles [30] The general sentencing principles that I referred to with respect to Mr. B. equally apply here.

Sentencing is an individualizedprocess in which the court must take into account not only the circumstances of the offence, but also the specific circumstances of theoffender. Although the court must consider all the principles of sentencing set out in the Criminal Code, certain principles will receivemore emphasis than others depending on the nature of the offence committed; see R. v. Ralph, 2014 BCSC 467. [31] As I previously noted, s. 718.01 of the Criminal Code codifies the principle that where an offence involves the abuse of a child,primary consideration in sentencing is denunciation and deterrence.

The sentencing principles of restraint and rehabilitation of theoffender, while still operative, are given secondary status; see R. v. Ralph; see also R. v. F.R., [2010] N.S.J. No. 344, a decision of theNova Scotia Provincial Court, and R. v. D.W., 2012 BCCA 454 , [2012] B.C.J. No. 2646, a decision of our Court of Appeal. Mitigating Factors 1. Mr. S. and R.K. never met; 2. There was no violence nor were there threats of violence; 3. Mr. S. pled guilty to the charge; 4. Mr. S. has no criminal record;

5. Mr. S. is remorseful, is ashamed of his actions. He accepts full responsibility, and has provided a written letter of apology toR.K. and her mother; 6. Mr. S. has suffered the ruin and humiliation as a result of conviction and the shame to his family; 7. Mr. S. has lost employment because of this conviction; 8. Mr. S. was entirely cooperative with the authorities; 9. Mr. S. was assessed and has been determined to be a low risk to reoffend. [32] As with Mr. B., defence counsel submitted that the adverse publicity that Mr. S. has suffered is an additional mitigating factorthat I should consider.

With respect, I disagree. Adverse publicity is not a mitigating factor; see R. v. Ralph. Is a Discharge Appropriate? [33] There is no question that the imposition of a conditional discharge is in Mr. S.'s best interest. The issue is whether or not theimposition of a discharge would be contrary to the public interest. [34] In my view, the range of sentence for an offence under s. 172.1 of the Criminal Code is 12 to 24 months in jail depending onaggravating and mitigating factors.

A sentence greater than 12 months may be appropriate where there is a related criminal record, amoderate risk of reoffending, and few mitigating factors. A sentence of less than 12 months will only be appropriate where there are, asin this case, particularly mitigating factors; see R. v. Amiee, 2010 BCSC 1463. [35] Counsel for Mr. S. submits that the principles of restraint and rehabilitation favour the imposition of a conditional discharge. The public interest in the deterrence of others does not preclude the judicious use of the discharge provisions of the Criminal Code; seeR. v.

Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A). [36] In balancing Mr. S.'s interest and societal interest in order to determine whether the granting of a discharge would be in Mr. S.'sbest interest and not contrary to the public interest, I have given careful consideration to the extensive mitigating factors. However, thisis a serious offence. [37] As I previously stated, Parliament has determined that children, regardless of their level of physical development and theirwillingness to consent to the activity, are unable to do so because of their level of immaturity.

Children are vulnerable and need to beprotected from adults who would take advantage of this vulnerability. [38] This is especially so in a case such as this where there is a considerable age disparity between the offender and the child. Mr. S.was in his mid-20s at the time of this offence. Moreover, Mr. S. continued the offence even though R.K. asked Mr. S. if their activitywas legal. Instead of stopping, he told her not to tell anyone.

These are aggravating factors. [39] Considering the aggravating factors and that the primary consideration in this sentencing is denunciation and deterrence, I haveconcluded that it is contrary to the public interest to grant a discharge and I decline to do so. [40] I agree with Crown counsel that a period of incarceration is warranted in this case. Considering the mitigating factors, asentence of less than 12 months is appropriate. I am satisfied that these mitigating factors permit a sentence in the range suggested byCrown counsel, but no lower. [41] Mr.

S., would you please stand. [42] I hereby sentence you to 90 days to be served by way of a conditional sentence order pursuant to s. 742.1 of the Criminal Codeas it then was. The conditions are as follows.

The mandatory conditions pursuant to s. 742.3(1) of the Criminal Code. [43] Sir, you shall keep the peace and be of good behaviour. [44] You shall appear before the court when required to do so by the court. [45] No later than 4:00 p.m. today, you shall report to a conditional sentence supervisor at the probation office at 100, 233 West 1stStreet, North Vancouver, British Columbia, and you shall thereafter report as and when directed by the supervisor and in the mannerdirected by the supervisor. [46] You shall remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from thecourt or the supervisor. [47] You shall notify the court or the supervisor in advance of any change of name or address and promptly notify the court or thesupervisor of any change of employment or occupation. [48] When you first report to the supervisor, you shall inform him or her of your present residential address and phone number andyou shall not change your address or phone number at any time without first providing written notice to your supervisor. [49] You shall have no contact or communication directly or indirectly with R.K. [50] Commencing tomorrow, April 17th, and continuing until May 31st, 2014, you shall obey a curfew by being inside of yourresidence between the hours of 8:00 p.m. to 8:00 a.m. each day except as follows: (

a) with the written consent of the supervisor, such consent is to be given only for compelling personal, family, or employment

reasons; (

b) when travelling directly to or returning directly from your place of employment or while in the course of your employment; you shall provide the supervisor with written proof of employment if requested to do so; and (

c) in the event of a medical emergency and then when only travelling directly to or returning directly from a hospital emergency ward. [ 51 ] From June 1st until the completion of this order, you shall obey a curfew by being inside of your residence between the hours of 10:00 p.m. and 6:00 a.m. each day, again with the permitted exceptions that I just referred to. [ 52 ] You will register for the Sex Offender Information Registry. It will be for a period of 10 years pursuant to s. 490.012 (

a) of the Criminal Code . [ 53 ] MR. S.: I do not think we made submissions on SOIRA with respect to this offence and I do not believe, and I would have to go back and look at it, that it is an automatic registration, but I do not have my original notes. Maybe my friend can assist on that? [ 54 ] MS. H.: It is mandatory under -- [ 55 ] MR. S.: On conviction. [ 56 ] MS. H.: Yes, 490.012(a), and the duration for 10 years, 490.013(2). [ 57 ] MR. S.: Okay. [ 58 ] THE COURT: What is your submission with respect to DNA with respect to this offence? [ 59 ] MS. H.: I thought -- yes, I asked for both on both. So the DNA is also a primary offence. I am sorry. This

section is also a primarily designated DNA offence -- [ 60 ] THE COURT: Yes. [ 61 ] MS. H.: -- under s. 487.04(a). [ 62 ] THE COURT: Yes, so pursuant to s. 487.051(1), I make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances by any peace officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the National DNA Databank from M.S..

And, pursuant to s. 487.051(4), I further make an order in Form 5.041 that M.S. shall attend on or before May 1st, 2014, at 4:00 p.m. at the RCMP detachment located in Surrey and submit to the taking of the samples. [ 63 ] The conditional sentence order will then be followed by a period of probation for 18 months.

There will be the statutory conditions. [ 64 ] Sir, you shall keep the peace and be of good behaviour. [ 65 ] You shall appear before the court when required to do so by the court. [ 66 ] You shall notify the court or probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 67 ] You shall have no contact or communication directly or indirectly with R.K. [ 68 ] With respect to counselling, I have considered whether counselling is appropriate, but based on the reports that were filed and the recommendations there, I am not satisfied that the Probation Service has a one-on-one counselling service that would be of assistance to Mr.

S. and I exercise my discretion and decline to impose any counselling for Mr. S. [ 69 ] The victim fine surcharge applies. Time to pay is two months. [ 70 ] MS. H.: Thank you, Your Honour. That is everything I have before you this morning, and I think that is everything on the criminal list that I have for your courtroom today. [ 71 ] THE CLERK: Your Honour, I do have a notation that, on March 7th, Count 2 was stayed by Crown. At this point, Count 4, I do not have anything. [ 72 ] MS. H.: Oh, it should be. Count 2 and Count 4, I direct a stay of proceedings on them. [ 73 ] THE CLERK: Thank you. [ 74 ] MS.

H.: Thank you. [ 75 ] MR. S.: I will take Mr. S. and B. to the registry. Thank you. [ 76 ] MS. H.: Thank you, Your Honour. [OTHER MATTERS SPOKEN TO]

[PROCEEDINGS ADJOURNED] [PROCEEDINGS RECONVENED] [OTHER MATTERS SPOKEN TO] [ 77 ] THE COURT: Did I miss something? [ 78 ] MS. H.: You did not miss something, but we are going to ask you to make a slight variation on the curfew and reside requirements so Mr. S. can continue with his job -- [ 79 ] THE COURT: Okay, yes. [ 80 ] MS. H.: -- when there is a break or you are -- [ 81 ] THE COURT: We might as well just do it now, so... [ 82 ] MS. H.: All right. [ 83 ] MR. S.: Your Honour, there were some submissions made -- just recalling the S. and B. matter. There were submissions made with respect to Mr.

B.'s employment and they were probably relatively brief during submissions. Mr. B. works Monday to Friday in Victoria on a project and we can -- I do not think it was your intention to have Mr. B. lose his employment. [ 84 ] THE COURT: No, it was definitely not my intention. [ 85 ] MS. H.: Mm-hmm. [ 86 ] MR. S.: The first issue is that the time of his employment, he starts work at 7:00 a.m. and ends at 5:30. There is no issue with the back end of the curfew.

The issue is at the front end of the curfew, Monday to Friday, and I would ask that if we could amend that time to -- how long does it take to get to work from where you -- [ 87 ] THE ACCUSED: Ten minutes. [ 88 ] MR. S.: So maybe 6:30 a.m. Monday to Friday -- [ 89 ] THE COURT: Why do we not just say 6:00 a.m.? [ 90 ] MR. S.: Okay. [ 91 ] MS. H.: That is agreeable -- [ 92 ] THE COURT: Yes. [ 93 ] MR. S.: It is agreeable. [ 94 ] THE COURT: So that there is not -- [ 95 ] MS. H.: -- and do that daily? [ 96 ] THE COURT: Yes. [ 97 ] MS. H.: Okay. [ 98 ] MR.

S.: I did not think that -- the curfew is usually more about the nighttime than the morning -- [ 99 ] THE COURT: Yes, exactly. [ 100 ] MR. S.: -- time anyhow. [ 101 ] MS. H.: Exactly. [ 102 ] MR. S.: The other issue is this, and it may provide some clarity to the conditional sentence supervisor. Monday -- Sunday night to Thursday, he resides at the R.H Motel in Victoria and he can provide that address to his conditional sentence supervisor and they can certainly do curfew checks there just as easily as they can at the residence in Surrey.

The request would be, and I do not think my friend is opposed, that he reside at an address to be provided to his conditional sentence supervisor or the R.H. Motel, identify that specifically so that it is clear that the conditional sentence supervisor is not exercising discretion to not permit him to reside -- [ 103 ] THE COURT: Yes, and I agree with that as well. [ 104 ] MS. H.: So he can have two residences.

[ 105 ] THE COURT: Yes, I agree with that, as well. [ 106 ] MS. H.: So the R.H. Hotel in Victoria -- [ 107 ] MR. S.: R.H. Motel -- [ 108 ] MS. H.: Motel -- [ 109 ] MR. S.: -- in Victoria -- [ 110 ] MS. H.: -- Victoria. That is agreeable. [ 111 ] MR. S.: -- either/or and he will provide the address of the R.H. Motel to his probation officer -- [ 112 ] THE COURT: Yes. [ 113 ] MR. S.: -- or to the supervisor. [ 114 ] THE COURT: And I realize I missed one condition. There should be the condition that Mr.

S. shall present himself at the door at his motel or his alternate residence at the request of a peace officer who attends there for the purpose of determining his compliance with the curfew conditions. [ 115 ] MR. S.: And that condition -- that condition makes logical sense, Your Honour. [ 116 ] THE COURT: Yes. [ 117 ] MR. S.: Thank you. [ 118 ] MS. H.: And then I think there is one other slight variation, which is the curfew ends at 8:00 p.m. and, on Fridays. I understand Mr. S. returns from the Island to Vancouver -- [ 119 ] MR. S.: Oh, and sorry, with his mother -- [ 120 ] MS. H.: -- but -- [ 121 ] MR.

S.: -- and they generally catch the 7:00 p.m. ferry. [ 122 ] MS. H.: So if, "Except on Fridays, 10:00 p.m.," is that enough time? [ 123 ] THE ACCUSED: More than enough. More than enough. [ 124 ] THE COURT: Yes, then except -- [ 125 ] MS. H.: Except Fridays, the curfew would be 10:00 p.m. to 6:00 a.m. If that is agreeable with the Crown if that is agreeable with Your Honour. [ 126 ] THE COURT: You know what, just to make it simple, the start time throughout the order will be -- the curfew will be 10:00 p.m. to 6:00 a.m. starting tomorrow -- [ 127 ] MS.

H.: Okay. [ 128 ] THE COURT: -- for the entirety of the order -- [ 129 ] MS. H.: Okay. [ 130 ] THE COURT: -- because otherwise it gets too confusing and it sort of takes away a bit of the deterrent effect if everybody has got to be checking which day of the week it is and -- [ 131 ] MS. H.: All right. Thank you. [ 132 ] THE COURT: -- then if Mr. -- [ 133 ] MR. S.: And I think what we know from Mr. S.'s report is, I mean, he is generally -- [ 134 ] THE COURT: Yes, and if -- [ 135 ] MR.

S.: -- either working or he is in his residence. [ 136 ] THE COURT: -- and it was -- it was definitely not my intention and clearly not my intention to interrupt employment. So I will make the curfew starting tomorrow, 10:00 p.m. to 6:00 a.m. daily. [ 137 ] MS. H.: For the entire 90 days? [ 138 ] THE COURT: For the entire 90 days with the same exceptions, as well. [ 139 ] MR. S.: Thank you, Your Honour, and I will have Mr. S. carefully read this.

[ 140 ] THE COURT: And more importantly, Madam Clerk, did you get all that? [ 141 ] THE CLERK: I believe so, Your Honour. [ 142 ] THE COURT: Okay, I can help during the break. [REASONS FOR SENTENCE CONCLUDED]