R. v. Borromeo, 2023 BCPC 265

Citation: R. v. Borromeo 2023 BCPC 265 Date: 20231026 File No: 70424-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. ALAN CLARO BORROMEO BAN ON PUBLICATION Pursuant to s. 486.4(1) of the Criminal Code ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. GALATI Counsel for the Crown: A. Ward Counsel for the Defendant: D. Tarnow

Place of Hearing: North Vancouver , B.C. Date of Hearing: October 26, 2023 Date of Judgment: October 26, 2023 [ 1 ] THE COURT : I have had an opportunity now to review both the psychiatric assessment report and the presentence report a bit more carefully than I had been able to in my previous review of them. Also, I have had a quick look at the cases I am provided with. [ 2 ] Mr. Borromeo has pleaded guilty to having surreptitiously recorded a 21-year-old female while she was nude or partially clothed. The offence occurred, it appears, on nine occasions, while the victim was residing at the residence of Mr.

Borromeo as an international student, and this was in or about August of 2022. [ 3 ] By way of how the offence was committed, Mr. Borromeo installed a camera, which appears to have been disguised as a toothbrush charger, in the bathroom shared by his teenaged daughter and the victim. The camera was ultimately discovered; the videos subsequently were discovered in a disc in that camera; it was provided to the police; and in due course Mr.

Borromeo was charged. [ 4 ] The aggravating factors described by Crown counsel are that the offence required a degree of planning and that it occurred on nine separate occasions; that the victim was a vulnerable young woman who reasonably expected a high degree of privacy in her bathroom and who, undoubtedly, was negatively impacted, at least psychologically, to some degree, notwithstanding that she has not provided a victim impact statement. [ 5 ] With respect to mitigating factors, Mr. Borromeo appears to have immediately cooperated with the authorities in the course of the investigation.

He has pleaded guilty at essentially the earliest opportunity, sparing the victim having to testify, sparing the courts and the time it would take to have a trial, and, in the process, foregoing a potential Charter issue that may have provided a defence. Further, he has abided by his bail conditions, and he has been and is currently engaged in ongoing marital counselling. It appears, from the materials and from the submissions, that marital problems that Mr.

Borromeo was experiencing may have contributed to his offending behaviour. [ 6 ] The psychiatric assessment was very detailed, and I am not going to refer to it in any detail, but it indicates that Mr. Borromeo is a low risk to reoffend sexually, and that, if he does reoffend, he would be likely to do so by way of a non-contact sexual offence, similar to what he has now pled guilty to. [ 7 ] He is 43 years old and has been employed on a long-term basis as a homecare worker. He does have the support of his family, and, to the extent that I was able to tell, he has other supports in the community as well.

He has no prior criminal record but, most significantly, as the filed reports describe and I accept, he is truly remorseful.

He has some insight into why he offended, and he has some appreciation of the negative impact his actions have had on the victim. [ 8 ] In all of the circumstances, the Crown does not seek anything more than a probationary sentence, on the basis that that type of sentence, with appropriate conditions, would address the sentencing objectives of deterrence, denunciation, and rehabilitation, which I agree are the primary considerations for this offence, which, again I agree with the submission of Crown counsel, is a moderately serious offence, in respect of which Mr.

Borromeo has a moderately high degree of moral culpability. [ 9 ] On the other hand, Mr. Borromeo seeks a conditional discharge and is prepared to abide by whatever conditions are thought to be appropriate, including sexual offence counselling. Counsel have provided several cases which I have now reviewed, albeit briefly. [ 10 ] I am satisfied that a conditional discharge is an available sentence for this offence and in the particular circumstances of this offence, and I am also satisfied that it would clearly be in Mr.

Borromeo's best interests to avoid the stigma of a criminal record and the possible effect it might have on his employment. [ 11 ] With respect to the test for a conditional discharge, as set out in all of the cases, the higher hurdle for Mr. Borromeo to climb is whether a discharge would not be contrary to the public interest. With respect to the cases, several of them involve similarly situated offenders in similar offending circumstances, and discharges were granted in many of those cases. [ 12 ] I do wish to refer, as I have in the past, to one passage from one case, and those were the comments made by Mr.

Justice Hill as set out in paragraph 16 of the R. v. Eastwood decision, 2018 ONCJ 469 . Those comments are as follows:

(1) Discharges are not restricted to trivial matters;

(2) Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction;

(3) Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration;

(4) A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge. [ 13 ] In the case at bar, the offence, as I have already indicated, is not trivial, but it is not at the most serious end of the spectrum either. Further, it appears that Mr. Borromeo's actions were out of character and, as described in the psychiatric assessment, it appears that marital intimacy deficits contributed to the offending conduct.

Further, given the nature of his employment, there is, in my view, a realistic possibility that a criminal record may have a negative effect on his employment. [ 14 ] The most obvious differences between a suspended sentence and a discharge, in my view, are the stigma of having a criminal record and, in many cases, the potential for collateral consequences. Specific deterrence is not a significant factor with respect to Mr. Borromeo, given everything that I have heard and the rehabilitative steps that he has already engaged in.

Although general deterrence and denunciation are often better served by the imposition of a criminal record, those objectives are attenuated by the significant

consideration that must be given to the principle of rehabilitation in all of the circumstances in which Mr. Borromeo finds himself. [ 15 ] Again, referring to the cases, there are significant differences between this case and R. v. Downes , 2020 BCSC 177 , where a discharge was not granted.

In that case, the offender was found to be in a position of trust with respect to victims who were under the age of 18 years and where there was evidence that those victims suffered a significant impact from the offending. [ 16 ] Further, as indicated in the report, there was nothing indicating an event in the offender's life which may have triggered his behaviour. I find the circumstances of the offence and the offender were significantly more aggravated in Downes than in the case at bar. [ 17 ] Taking into account everything that I have briefly referred to, I find that a conditional discharge for Mr.

Borromeo is not contrary to the public interest. [ 18 ] So Mr. Borromeo, if you could stand, please. [ 19 ] The proportionate sentence for you on this offence is a conditional discharge for a period of 30 months. During that time, you will be bound by the probation conditions as follows. The statutory conditions, which will be read and explained to you by a justice of the peace, because I am going to have you sign the order, will apply.

The further conditions I am imposing are as follows. [ 20 ] You are to report in person to a probation officer at #100 233 West 1st Street, in North Vancouver, by 3 p.m. tomorrow, which is October 27, 2023, and, thereafter, you are to report as directed. [ 21 ] You are to provide your current residential address and your phone number to your probation officer and you are not to change either your place of residence or your phone number without giving prior written notice to your probation officer. [ 22 ] You are not to possess any device capable of recording images, except you may possess a cell phone registered in your name, but you must provide the phone number to your probation officer; further, you must allow your probation officer, upon request, to inspect any stored photographs or videos in that cell phone. [ 23 ] You are to have no contact or communication, directly or indirectly -- And can you spell the name of the complainant for the record? [ 24 ] CNSL A.

WARD: I can. I just need one moment. I'll provide that, Your Honour, in just a moment, if you want to -- [ 25 ] THE COURT: Sure. [ 26 ] CNSL A. WARD: -- keep going. [ 27 ] THE COURT: Okay. Now, I am going to interrupt myself here, in any event.

My intention is, given that he has a female student residing right now at his residence, given the circumstances as they have come about over the -- since he was charged, there has not been any incident and that he has had a female student residing at his residence, the condition that I am going to impose is that, after she leaves, he not have any further female students for the duration of the probation order. [ 28 ] So when was that anticipated? Mr. Tarnow, I think you said that -- [ 29 ] CNSL D. TARNOW: It could be -- [ 30 ] THE COURT: -- she had asked -- [ 31 ] CNSL D. TARNOW: -- by the end of the month.

She's looking for another place. [ 32 ] THE COURT: Yes, fair enough, but if she is looking for another place -- if I say after November 30 that will give everybody plenty of time? [ 33 ] CNSL D. TARNOW: She asked for January. [ 34 ] THE COURT: Okay. The end of January? [ 35 ] CNSL D. TARNOW: January 1? [ 36 ] THE ACCUSED: January 1. [ 37 ] THE COURT: Okay. All right.

So the next condition will be: after January 1, 2024, you are not to permit any female who is not a member of your extended family to reside in your residence. [ 38 ] At the direction of your probation officer, you are to perform 50 hours of community work service in the first 12 months of the probation period. [ 39 ] At the direction of your probation officer, you are to attend for counselling, including attending at a forensic psychiatric services facility for assessment, counselling and, with your consent, treatment as may be recommended. [ 40 ] Now, those are all of the conditions that I had in mind, unless counsel have any further submissions. [ 41 ] CNSL A.

WARD: So it -- so no reporting to forensics, or did I -- did Your Honour impose that and I missed it?

[ 42 ] THE COURT: Yes, that was the last thing I said. [ 43 ] CNSL A. WARD: Oh, you did. Okay, sorry. [ 44 ] CNSL D. TARNOW: There was only one other thing. That when the police came into his residence, they took a number of devices -- [ 45 ] THE COURT: Oh. [ 46 ] CNSL D. TARNOW: -- including his laptop. They gave back everything except the laptop. So there's no request for forfeiture. I just want to make sure it's coming back to him. Apparently, his daughter -- [ 47 ] CNSL A. WARD: No request -- [ 48 ] CNSL D. TARNOW: -- needs it -- [ 49 ] CNSL A. WARD: -- for forfeiture, no, Your Honour.

There were -- there was nothing found on the -- on the laptop. [ 50 ] THE COURT: I have to say, Mr. Tarnow, I have had little success in making any orders that the police have followed with respect to returning items. [ 51 ] CNSL D. TARNOW: Yes. Well, sometimes it helps. [ 52 ] THE COURT: If that is by consent, given that there is no formal application before me, I will make the order. [ 53 ] CNSL D. TARNOW: Thank you. [ 54 ] CNSL A. WARD: Thank you. So there's nothing to stay and there are no ancillary orders. I think the DNA is secondary and I'm not seeking it.

So I believe that's it. [ 55 ] THE COURT: That is good, because I would not order it. [ 56 ] CNSL D. TARNOW: Will that be -- [ 57 ] CNSL A. WARD: I read your mind. [ 58 ] CNSL D. TARNOW: -- done today? That order be typed up today? [ 59 ] THE CLERK: Yes. [ 60 ] CNSL D. TARNOW: All right. I'll take -- [ 61 ] THE COURT: Okay. Now, I am requiring him to sign the order. [ 62 ] CNSL D. TARNOW: Yes, I heard that. [ 63 ] THE COURT: I want to bring home the -- [ 64 ] CNSL D. TARNOW: Yes. [ 65 ] THE COURT: -- full import of it to him. [ 66 ] CNSL D. TARNOW: I understand.

I'll take him down there and show him where he has to wait. [ 67 ] THE COURT: Okay. Thank you very much for the helpful submissions -- [ 68 ] CNSL D. TARNOW: Yes, thank you. [ 69 ] THE COURT: -- both of you. [ 70 ] CNSL A. WARD: Thank you. (REASONS CONCLUDED)