R. v. D.C.E. Date:, 2012 BCPC 491

Citation: R. v. D.C.E. Date: 20121017 2012 BCPC 0491 File No: 59921-3C; 60024-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D.C.E. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE DICKEY BAN ON PUBLICATION Pursuant to s. 486.4(2) Criminal Code of Canada Counsel for the Crown: L. Stevens Counsel for the Accused: R. Dhanu

Place of Hearing: Chilliwack , B.C. Date of Hearing: October 17, 2012 Date of Judgment: October 17, 2012 [ 1 ] THE COURT : D.C.E. has pleaded guilty to a single count of touching, for a sexual purpose, of a young person to whom he was in a position of trust. Crown has proceeded indictably. He has also pleaded guilty on separate Information to two counts of threatening. [ 2 ] Crown's position is that a fit sentence is in the range of three to five years.

The Crown argues that in the present circumstances the higher range is appropriate. [ 3 ] Defence argues that a sentence of two years is appropriate and in the alternative, if I accept the range proposed by Crown, that a fit sentence is three years. [ 4 ] Crown also seeks a number of ancillary orders which I will refer to later. The Offences [ 5 ] I will first deal with the more serious of the offences, the sexual touching. [ 6 ] The offender was the stepfather of the complainant. They lived together in a blended family since the stepson was ten years old.

The D.C.E. family lived a strict and traditional life. [ 7 ] Crown alleges that there were nine sexual encounters between the accused and the stepson, each incident more violent than the one before. The age of the complainant when these encounters started is uncertain, but it appears that the complainant was between the ages of 12 and 14. There appears to be an agreement that they stopped when the stepson was aged 16.

The offender says the incidents occurred over a two year period when the victim was between the ages of 14 and 16, and for the purposes of this sentencing, I accept that. [ 8 ] The first incident described occurs when the victim is in the bathroom brushing his teeth and the father came in. The father came in and asked the victim to remove his pants and the victim refused. The mother walked in and the victim told her what was happening and the incident stopped. [ 9 ] The next incident occurred in a barn while the offender and victim were working together.

The offender pushed the victim and forcefully removed the victim's shirt, pants and underwear. The father stated that he was going to teach the victim how to masturbate. The victim screamed and kicked in an attempt to get away. The father tired and left to obtain lubricant, but took the victim's clothing. The victim attempted to hide, but the father returned with a flashlight and found the victim. The victim continued to avoid the father and fight back and the father eventually gave up. In the struggle, the victim's pants and belt were broken.

The father apologized for this incident a few days later. [ 10 ] The next incident occurred in the same barn, but the victim says this time his father was trying to get him to ejaculate. The victim says that there was a struggle and again his belt was broken. He says his father pushed him and slammed his head into the ground. The victim says he screamed and yelled, and after two hours, the offender finally stopped. [ 11 ] The next incident was similar, but he says his father unbuttoned his pants so the pants would not be damaged, and pulled them off. [ 12 ] He said there were two incidents inside their house.

The father tried to convince the victim to perform oral sex on the father. The victim refused and tried to get away. The father caught him and pulled him through the house towards the bathroom. The victim tried to get away, kicking and screaming the whole time. He says that his father then grabbed him by the throat and choked him. He eventually pushed him into the washroom, closed the door, and pulled off the victim's pants and pulled off his own. The offender then tried to have anal intercourse with the victim.

The victim continued to struggle and the offender finally gave up. [ 13 ] The next incident occurred when the victim says he was in his bedroom. The offender at this point appears to take a different approach in an attempt to get what he wants. He offered the victim more leniency on the computer, with showers, and with friends attending the home. He also promised it would not happen again. The victim initially refused, but eventually acceded after 45 minutes. The offender then performed oral sex on the victim. [ 14 ] The next incident occurred in a barn.

The offender again offered more leniency to the victim as he had done before, and in addition, could purchase a Play Station 3 and games. After a lengthy period of time, the victim agreed and the offender performed oral sex on him. [ 15 ] The next incident occurred in a barn. The victim had a friend coming over later in the day. The offender told the victim that he was not going to pick the friend up until the victim allowed him to perform oral sex on him. The victim describes this as one of the most violent sessions.

The victim says that he "freaked out" smashing his fists against metal, throwing buckets and was so mad that "I was going into like mental -- mental shutdown, freaking out". The offender during this did nothing, but watch. The offender then pulled the victim's pants to the ground and pushed the victim to the ground. The offender performed oral sex on the victim. [ 16 ] The next incident occurs in a barn. The offender told the victim that he had purchased condoms and wanted to perform anal intercourse on the victim. The victim refused. Another person then appeared at the barn.

The offender and victim then left the barn but

returned when the other person had left. The offender refused to take the victim home until the victim agreed to allow him to perform anal intercourse on him. The victim became quite upset, but eventually decided he had no choice and agreed. [ 17 ] The next incident was in the house. The offender told the victim that he wanted to have sex with him. The victim responded by saying that “the easiest way to get out of this is suicide". The victim says the offender said to go ahead. The victim then went and grabbed a knife, pointed it towards himself and then pointed it towards the offender.

He says the offender did not flinch. The offender performed oral sex on the victim and then demanded the victim perform anal intercourse on the offender. The victim refused; the offender ripped off his clothes, but the victim refused to participate. The offender finally left. [ 18 ] The victim believes that there were nine incidents in all, although I count ten including the first incident in the bathroom.

He says, his father after these incidents in most cases, would come to him and say he was sorry, that he did not know why he did it, and he would try and stop. [ 19 ] The offender gave a lengthy statement to the police. He admitted to the incidents described above, with similar detail as that provided by the victim. [ 20 ] D.C.E. has also pleaded guilty to two counts of threatening. The circumstances of these offences arise when D.C.E. was on bail. He was living at the time in a trailer, on a farm, that was on the property of the complainant.

He requested of the property owner to allow him to move a piano into his trailer; she refused. When she refused, he threatened to punch her in the face and to burn down her house and farm buildings. D.C.E. admits the threats, except that he did not say he would burn down either the house or farm buildings. The second count of threatening occurs when the accused repeats the threats to the daughter of the complainant. The Offender [ 21 ] The offender is presently aged 36. He was married at the age of 20 and divorced approximately 10 years later.

There are three children from that marriage, presently aged 14, 12, and 11. [ 22 ] He married the complainant's mother approximately five years ago. She has two children, the complainant aged 16, and a daughter aged 11. The offender believes that this relationship will continue once he is released from custody. His wife is unsure of this. The complainant continues to reside with his mother. [ 23 ] The offender has a Grade 5 education. He has worked for the past 22 years on an almost full-time basis as a farmhand or general labourer.

If released from custody, he has work available at either a family-owned farm or wood milling shop, although it is reported that a 14-year-old boy works at the shop. [ 24 ] He describes very limited social interaction during his formative years and was limited to family and work on the family farm. In this environment, he received no sex education.

He is part of what is described as the Reform Christian Community. [ 25 ] The offender states that he has chosen a heterosexual lifestyle, but finds men attractive and finds pleasure in sexual activities with men. [ 26 ] The offender has a criminal record with six convictions that are dated and not strictly related to the matter before me. There are no assaults or threats, although there is one conviction for forceful entry, for which he received a suspended sentence. His last conviction was in 2004.

In the pre-sentence report, it is indicated that these convictions all arise out of the breakdown of his first marriage. [ 27 ] The author of the pre-sentence report states that the offender minimized the impact of the offence on the victim.

He states the offender argued that although the victim was initially resistant, he took enjoyment from the interactions. [ 28 ] The author says the offender stressed to him that he did not believe he offended against a child, describing the victim as physically mature, with a "grown man's work ethic". [ 29 ] The author also states that the subject did not report any understanding or insight into "any personal harm or impact" of the offence on the victim. The offender was aware of the impact on his family and the church community and how this may affect him.

The offender accepted, however, that he was responsible because he was the adult in the relationship. [ 30 ] In the psychiatric report, the author stated that there was nothing to suggest that the offender was remorseful. Counsel for the offender argues that he has shown remorse through his guilty plea and I accept this. [ 31 ] The opinion of the psychiatrist, Dr. LaTorre, is that D.C.E.'s risk of sexually re-offending is moderate to moderate-high if, "he is placed into a similar situation and he does not successfully complete effective treatment".

The doctor was of the opinion that this risk can be reduced to low to low-moderate, if he successfully completes sex offender treatment and does not have access to "vulnerable youngsters, over whom he has a position of trust or authority". Principles of Sentencing [ 32 ] The principles of sentencing are set out in s. 718 to 718.2 of the Criminal Code . [ 33 ] Crown presented me with four cases that talk of the appropriate range and sentencing principles which should be given emphasis in this type of situation. [ 34 ] In the case of R. v.

Pappas , 2005 BCSC 1431 , the accused was convicted of sexual assault and, while in a position of trust, sexually touching a young person. Both offences arose from the same set of circumstances. The victim was the stepdaughter of the offender. The offences included sexual touching, oral intercourse, and sexual intercourse. The offences started when the victim was 11 or 12 and ended when she was 17. The aggravating factors included the vulnerability of the victim, drug use, threats and intimidation, the

period of time over which the offences occurred, the offences occurred in the home, and the offender was the stepfather of the victim. Hewas described as not a "serious risk to re-offend". The sentence was five years. [35] In the case of R. v. D.E.L., 2006 BCPC 79 , 2006 BCPC 0079, the accused was convicted of two counts of touching a13-year-old for a sexual purpose and a sexual assault. The victim was the daughter of the offender's common law partner. The incidentsoccurred over a six month period. The assaults included masturbation, sexual intercourse, digital penetration, unwanted touching, andfondling.

The offender was aged 35, denied the offences, suffered from alcohol and drug abuse and suffered from a closed head injury. [36] Dr. LaTorre assessed the risk of the offender in a similar way as to the matter before me. The Court concluded that a Federalsentence was required to address the principles of deterrence and denunciation. The Court adopted the following passage from thedecision of R. v. Chaput, [1996] B.C.J.

No. 2661 para. 7 (B.C.C.A.): The Court has, time and time again, said that offences of this type must be severely punished in order to protect children and especiallydaughters and stepdaughters and to express the community's concern and condemnation for this type of behaviour. [37] The sentence was four years. [38] In R. v. W.E.G., 2006 BCPC 151, the accused was convicted of sexual assault, and being a person in a position of trust thattouched, for a sexual purpose, a young person. The offences occurred over a six year period during which the offender was the stepfatherto the victim.

The offender was found to have touched the victim starting with kissing and progressing to intercourse. He did not useovert force but did not accede to her demands to stop. He had no record. The Court found that he was a good candidate for rehabilitationwith good support within the community. In balancing denunciation, deterrence, and rehabilitation, the sentence was 30 months. [39] The last case presented by the Crown was R. v. T.B.M., 2012 BCSC 286. The accused was convicted of sexually assaulting aboy causing bodily harm. The offender was the stepfather of the three-year-old victim.

It was a single incident of buggery and oral sexthat caused tearing and bruising to the child's anal area. Griffin J. in T.B.M. points out that because the offence involved a person underthe age of 18 that the principles of denunciation and deterrence must be given primary consideration (s. 718.01). The other principlesreferred to were that the sentence must be proportionate to the gravity of the offence, the degree of responsibility of the offender, andmust take into account both mitigating and aggravating factors.

An aggravating factor was that the victim was under the age of 18 andthe offender was in a position of trust (s. 718.2(a)). The sentence must also be similar to sentences imposed on similar offenders forsimilar offences in similar circumstances (s. 718.2(b)). The Court found the appropriate sentence to be one of four years. [40] Defence has provided me with five decisions for my consideration. [41] In the case of R. v. R.S.H., [2005] B.C.J. No. 1393 (BCSC.), the offender was convicted of sexual assault of a friend's childwhen the child was between the ages of five and seven.

The assaults occurred on several occasions and involved the offender rubbing thegenital area of the child with his hand or penis. The offender had no prior criminal record. A psychiatrist's opinion on risk to re-offendwas very similar to the matter before me. The offender was sentenced to 22 months custody. [42] In R. v. C.G.D., [2009] B.C.J. No. 580 (BCSC), the offender pleaded guilty to sexually assaulting a young girl repeatedly over asix year period starting when the girl was age five. He was also convicted of inviting a 12-year-old girl to touch him for a sexualpurpose.

The offender was the stepfather of the victim at the time of the assaults. The assaults included oral sex and rubbing of herbuttocks with his penis. Griffin J. concluded that there were at least several hundred instances of abuse over the six year period. Griffin J.found that the admission of guilt both to the police and the Court was a significant mitigating factor. Also mitigating was that theoffender since being reported sought treatment and appeared to be highly motivated. The sentence was three years. [43] In R. v. C.M.D., [2003] B.C.J.

No. 1705 (B.C.S.C.), the offender was convicted of sexual assault and sexual touching of hisnine-year-old niece. The offences consisted of a number of incidents of fondling and three occasions of vaginal and anal penetration. Theoffender was sentenced to 18 months. Crown sought a two year sentence with a lengthy period of probation. The sentence was 18 monthsand three years probation. [44] In R. v. M., [2000] B.C.J. No. 860 (B.C.S.C.), the offender was convicted of two counts of sexual assault involving two youngvictims. The offender was the stepfather of the victims.

Sexual touching started when the children were aged 10 and ended when theywere 17. For one of the girls the sexual assaults were repeated, progressing to digital penetration and intercourse. Satanove J. in M.,stated that in circumstances where there is no other aberrant behaviour in the home, and no acceptance of responsibility, that thesentencing principles of denunciation and general deterrence are paramount with the sentencing principles of specific deterrence andrehabilitation secondary (para. 13). The offender was said to have had a stellar background.

Satanove J. found the appropriate sentence tobe one of two years custody and three years probation. [45] In R. v. D.A.C., (BC CA), [1998] B.C.J. No. 196 (B.C.C.A.), the offender was convicted of grossindecency and a sexual assault of a person under the age of 14 years; his stepdaughter. His stepdaughter was between six and 13 whenthe offences occurred. These offences progressed from fondling, masturbation, oral sex and concluded with

an act of sexual intercourse.The offender was also convicted of sexual assault of a 17-year-old. The appeal was allowed and the offender was sentenced to two yearsless a day for the offences involving the stepdaughter and six months concurrent for the other offence. The Court noted that the sentencethey imposed was at the low end of the range. Analysis [46] Although I must consider all of the principles referred to in s. 718 to 718.2, I find the critical principles are general deterrenceand denunciation, with secondary consideration to specific deterrence and rehabilitation.

In this framework, the sentence must beproportionate to the gravity of the offence, the degree of responsibility of the offender, with consideration to both the mitigating andaggravating circumstances of this sentence. The sentence must also be similar to sentences imposed on similar offenders for similaroffences in similar circumstances.

[ 47 ] The gravity of the offence is high because of the aggravating factors present. This includes the significant force used by the offender on the victim; that the offender was in a position of trust; that the victim was aged 14 to 16 when these offences occurred and was vulnerable; and that the incidents were numerous and occurred over a two year period of time. [ 48 ] It is significantly mitigating, however, that the offender made an early admission to the police of these offences and entered an early guilty plea.

This has saved the victim from attending court and in a public forum, retelling many sensitive and private details of what occurred between him and the offender. It has also saved court time. [ 49 ] The moral blameworthiness or culpability of the offender is high. The offender forced himself on the victim in places that were secluded, allowing him a lengthy period of time to mentally or physically break the will of the victim. The offender in the initial incidents used a significant degree of force against the victim.

He then changed his approach and used coercion and extortion with a lesser degree of physical force to convince the victim to comply. This was all done when the offender was in a position of trust as the stepfather to the victim. [ 50 ] I find the victim during these incidents was in a position of vulnerability. The offender would tell the victim that if he complied, it would be the last time but then would break his promise. [ 51 ] Rehabilitation is one of the principles which I must consider when sentencing D.C.E.

The author of the pre-sentence report sets out the different programs offered to promote rehabilitation and the sentences required to complete each. [ 52 ] The Defence argues that a fit sentence for an offence and offender cannot be increased to satisfy the length of a program offered by Corrections. Likewise, however, a sentence cannot be reduced to a point where it is unfit because the programs of a shorter period are offered that can assist with rehabilitation. [ 53 ] I find the length of the program can only be considered if the length is within what is otherwise the range of a fit sentence.

A fit sentence of course will have to consider public safety and what effect rehabilitation may play in that consideration. [ 54 ] In this case I find that the length of the programs do not assist me in determining the appropriate sentence, as their length is less than what I find is within the range when I consider the offence, the offender, and the application of the principles of sentencing. [ 55 ] I find in reviewing the cases provided to me and the circumstances of this offence and offender that this case falls at the higher end of the sentencing range.

It falls in this range because the degree of force used by the offender against the victim was extreme and reoccurring. As noted before, however, I find the admission and guilty plea by D.C.E. to be significantly mitigating. [ 56 ] In all of the circumstances of the offence and the offender and applying the principles found in s. 718 to 718.2 , I find the appropriate sentence before reduction for time served is four years. D.C.E. is to be given credit for time served of seven months and ten days. His sentence therefore on the offence of sexual touching will be three years, four months, and twenty days.

If not for the mitigation of the guilty plea, the sentence would have been five years. [ 57 ] I find the appropriate sentence for the two threatening charges to be 30 days concurrent to one another and concurrent to the sentence for sexual touching. I keep in mind the principle of totality in determining that these sentences should run concurrent. [ 58 ] With respect to the ancillary orders, I understand the Crown seeks and the defence does not oppose orders for SOIRA , DNA and a firearms ban.

These ancillary orders attach to the offence of sexual touching. [ 59 ] The SOIRA order will be pursuant to ss. 490.012 and 490.013 and will be for a period of 20 years duration. D.C.E., while in custody you shall provide a sample of your DNA for the inclusion in the DNA Databank. [ 60 ] There is also a prohibition with respect to firearms and that will be pursuant to s. 109. That will be for life.

That means, D.C.E., that you are prohibited for life from possessing all firearms, crossbows, prohibited weapons, restricted weapons, prohibited devices, ammunition, prohibited ammunition, or explosive substances together with any authorizations, licences, or registration certificates for such items. [ 61 ] That is my decision. [ 62 ] THE COURT: There will be a prohibition with respect to s. 161.

What that means, D.C.E., is that for a period of ten years you are prohibited from attending a public park, public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, or school ground, playground, or community centre. Do you understand? [ 63 ] D.C.E.: Does that include like church? [ 64 ] THE COURT: I am not going to give you legal advice at this point in time D.C.E.

So, what I would do is, I would suggest that if you want to have that clarified, certainly when that period of time when you are released from custody you may be on parole, so there may be certain conditions which are placed on you, which restricts your freedom to attend church. Certainly if you need that clarified, speak to counsel and they may be able to assist you and they may also be able to attend court at that point in time, just to clarify that issue for you. [ 65 ] The victim fine surcharge is waived. [ 66 ] MS.

STEVENS: Stay of proceedings on the remaining counts on the Informations. ______________________

R.C. Dickey J