R. v. D.A.R. Date:, 2011 BCPC 500

Citation: R. v. D.A.R. Date: 20110819 2011 BCPC 0500 File No: 70573-2-KC Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BAN ON PUBLICATION 486.5(1) CCC REGINA v. D.A.R. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE TAKAHASHI Counsel for the Crown: D. Pope Counsel for the Defendant: J. Gordon Place of Hearing: Kelowna , B.C. Date of Hearing: August 19, 2011 Date of Judgment: August 19, 2011

[ 1 ] THE COURT: Mr. R. has pled guilty to three charges, unlawful confinement, assault causing bodily harm, and threatening. The events took place in the summer of 2009 and the victim in each case was L., his then common law partner. [ 2 ] With respect to the unlawful confinement, the circumstances are that in the last week of June 2009, Mr. R. forced L. into a bedroom and had her clothes removed. He told her that he was going to show her how he was going to deal with her attitude and forced her on her stomach, duct taped her hands behind her back and her ankles together. Then he put tape over her mouth.

Following that, Mr. R. put tape over her nose cutting off her air supply. He asked her how she liked that, then removed and applied it several times more. [ 3 ] She struggled when he threatened to put her in the crawlspace. So he lowered her four feet down into a crawlspace under the back of the bedroom closet and threatened to leave her there. Eventually he brought her up and told her that was what happened when she struggled. L. was terrified by the events. [ 4 ] With respect to Count 2, assault causing bodily harm, the circumstances are that on July 2, 2009, after an argument, L. slept in a separate bedroom.

She woke to find Mr. R. in the room naked. He forced her mouth open and put his penis inside her mouth. This caused her to gag and struggle for breath. He did this because he did not like her attitude. Then Mr. R. forced anal intercourse on her while she yelled at him to stop. This was punishment for not finishing the meal he had cooked. One hour later, he forced anal intercourse on her and caused her to bleed from the anus. [ 5 ] Later, Mr. R. refused to apologize because he felt that L. needed to show him more respect. Over the next five days, he tried anal intercourse once more.

She tried to flee, but he grabbed her by the hair and ripped some from her head. She said she had two to three bald areas on her head from those assaults. [ 6 ] During the five days, several times L. resisted sexual advances from Mr. R. When she struggled, he held her hands over her head and bit her on the back. She had bruises on her wrists and thighs and bite marks on her back. [ 7 ] Six to eight times during this period, Mr. R. pinned her to the bed and put his hands over her nose and mouth. Once she lost consciousness and another time she saw pinpricks as if she was going to lose consciousness.

She was bruised from the struggle. [ 8 ] Count 3, the threats, the circumstances are that Mr. R. sent L. text messages threatening anal intercourse and to putting her in the crawlspace with spiders. Near the end of the relationship, he said he would kill her if she cheated on him or if she left him. [ 9 ] The positions of counsel on sentencing are L., after many discussions with Crown counsel, asked Crown to resolve this matter. She had testified at the preliminary hearing and was apprehensive about testifying again and especially did not want to do that in front of a jury.

L. wanted the Crown counsel to make a deal. Her ultimate goal was to never have contact with Mr. R. [ 10 ] Crown counsel submits that a fit sentence would be a $2,000 fine and two years probation. Defence counsel disagrees only to a clause in the probation order that would prevent his client from using the Kelowna Airport. In spite of the slight difference, it would be proper to treat this as a joint submission as to sentence. [ 11 ] On the issue of whether the joint submission should be accepted, I consider that the lawyers involved are experienced.

I am not bound by the submission, but it should not be lightly rejected. [ 12 ] Generally, a joint submission or a joint recommendation should be accepted if it is within the appropriate range of sentence, but even if outside that range, it should be given serious consideration. The proposed sentence should not be pronounced if it is unreasonable, contrary to the public interest, and would bring the administration of justice into disrepute. [ 13 ] With respect to the participation of L. in the sentencing proposal, I am guided by the Court of Appeal in R. v. F. , [1994] B.C.J. No. 3087 .

This is a case of domestic assault and threats. At paragraph 6, Mr. Justice Lambert, as he then was, stated: Sentences must be imposed in this kind of case that serve as a deterrent to people who might think that entry into and continuance of an abusive relationship is permissible or forgivable. In that context, this was said in R. v. S. (8 September 1986) Victoria Registry, VI00338 (B.C.C.A.): "I wish to say particularly in this case that society has a deep interest in this kind of conduct.

It is not a private matter between the parties to the relationship nor a matter that goes away if there is forgiveness within the relationship. The kind of conduct endangers and imperils society. In addition the guardians of the social interest, the people involved in social work and the police who are called out and into these situations, must have the protection of the law and the understanding that these offences will not be ignored by society or that forgiveness by one spouse will not put an end to the offence. Other people are at risk. Children are at risk and the neighbours are at risk.

The nature of the assaults can escalate to the point where they are completely unbearable." [ 14 ] Ryan, Justice of the Court of Appeal, at paragraph 10 wrote: Although the effect of a crime on a victim is often taken into account when sentence is imposed, the attitude of the victim towards the length of the sentence cannot be taken into account.

When the state intervenes and an accused's conduct is deemed criminal, his conduct is a crime against society and it is therefore the public, not the private interest which must be served by the sentencing process. [ 15 ] In considering this joint submission, the three charges arise out of different transactions that occurred on different days within a two-week period in late June and early July 2009. Defence counsel has presented cases where suspended sentences and probation were meted out for convictions of unlawful confinement, assault causing bodily harm, and threatening.

The circumstances disclosed in most of those cases, however, were distinguishable from those in this case. The range that I must consider must be the range established by convictions for crimes committed in circumstances similar to those involving this accused and this victim.

[ 16 ] Unlawful confinement can range from being allowed loose in a large room to being buried in a coffin. In this case, L. was bound, gagged, and her air was intermittently cut off which locates this closer to the coffin than the large room. [ 17 ] To lower L. into a dark confined space where she would have been helpless to scream or signal for help added another horrifying element to the transaction. To torment her using her phobia to being suffocated against her was a calculated breach of trust. [ 18 ]

Section 718.2 of the Criminal Code deems that abuse of a common law partner is an aggravating circumstances. [ 19 ] With respect to the assault causing bodily harm, counsel for Mr. R., pointed out firstly, that Mr. R. pled guilty to assault causing bodily harm, not to sexual assault. There are sexual aspects to putting his penis in her mouth and to anal intercourse and those acts would constitute violations of the sexual integrity of L. but I must sentence Mr.

R. for assault causing bodily harm, not for sexual assault causing bodily harm. [ 20 ] The transactions that made up this charge constituted a terrorization that lasted five days. Similar to the unlawful confinement, the indignities forced on L. in this count were intended to intimidate, terrorize, degrade, and humiliate her.

Unlike Count 1, this count involved inflicting actual pain and physical harm, not just extreme mental and emotional abuse and, as well, it took place over a prolonged period. [ 21 ] The aggravating aspects of the threats are the actions described in the previous counts gave substance and reality to the threats to kill. They showed that Mr. R. was devoid of empathy towards L. [ 22 ] He exhibited behaviour that exceeded all conventional bounds of behaviour towards other human beings and, in that respect, showed he had the capacity to kill her as he had threatened.

The threats were meant to frighten L. and keep her in the relationship. [ 23 ] Mitigating circumstances are facts that justify consideration of a lesser sentence and they include that Mr. R. has no previous convictions and he has pled guilty. [ 24 ] A guilty plea means that the Crown is excused from having a trial, but more significantly, the victim, L., would not have to undergo the stress, embarrassment, and humiliation of recounting the events in public. In this case, the guilty plea came after L. testified at a preliminary hearing.

Even so, she will not have to testify further and credit must be acknowledged for that. [ 25 ] A guilty plea can be an acceptance of responsibility and expression of remorse and the first steps towards rehabilitation. [ 26 ] The information provided by Mr. R.'s sexual partners before and after these matters indicate that Mr. R. did not act like this with them. This suggests that these behaviours were out of character for him. [ 27 ] Mr. R., as well, was arrested on July 7, 2009, and remained in custody until released nine days later. This was the first time he had ever been confined. [ 28 ] Mr.

R. has no previous record and is gainfully employed. A record would likely restrict his work outside Canada and imprisonment would cause the end of his work and his company. [ 29 ] Mr. R. has abided by his no-contact bail condition and has settled the financial matters with L. through a payment of $12,000 which was very beneficial to her. [ 30 ] With respect to range, and I will consider first the threatening, the threats were made in circumstances where Mr. R. had shown he was capable of carrying them out.

The circumstances, however, are not exceptional other than the threats threatened the repetition of assaults he had already committed against the victim. [ 31 ] The range of threats in these kinds of circumstances would be a suspended sentence to four months imprisonment and an extended period of probation to effect rehabilitation and to enforce no contact with L. [ 32 ] I accept the joint submission for Count 3 and sentence Mr. R. on Count 3, Mr.

Clerk, to a suspended sentence, probation for 12 months which will include that he report to the probation office in Kelowna by telephone within 24 hours of his release and thereafter as directed; reside as directed; have no direct or indirect contact with Ms. K.; and finally not go to the residence, workplace, or educational institution of Ms. K. [ 33 ] The circumstances of Counts 1 and 2 described callous emotional and physical degradation of another human being. In the first count, Mr.

R. stripped, bound, and gagged L., then -when she was completely at his mercy- he toyed with her by intermittently stopping her from breathing. On the second count, he forced her to endure painful and humiliating bodily violations as well as numerous suffocations. [ 34 ] The suffocation theme is significant as L. had previously told Mr. R. she had a phobia against suffocation. Mr. R. used this knowledge to realize her greatest fear and maximize her terror. [ 35 ] This was cruelty towards another human being that served no purpose except the diversion and private purposes of Mr.

R. [ 36 ] The maximum penalty for unlawful confinement and assault causing bodily when charged by indictment is 10 years imprisonment. Mr. R. has no previous convictions and the allegations while serious are not the most serious of their type. [ 37 ] The sentences must by their quality and strength deter Mr. R. and others from similar acts.

I find that a sentence for each of these charges that does not include imprisonment cannot adequately express the societal condemnation and denunciation that such conduct deserves and requires. [ 38 ] The joint submission proposes sentences for Counts 1 and 2 outside the range for the type of charges and nature of the

circumstances in this case. [ 39 ] The circumstances of the unlawful confinement and assault causing bodily harm disclose behaviour that is so appalling that the proposed sentences would be so disproportionate to their seriousness that such sentences would be unreasonable, contrary to the public interest and, if adopted, would bring the administration of justice into disrepute. I decline to accept the joint submissions for Counts 1 and 2. [ 40 ] The range for sentence for the unlawful confinement in these circumstances would be between 12 months and three years.

The appropriate range for the assault causing bodily harm because of the protracted nature of the acts and repeated choking would require a range between 18 months and three years. [ 41 ] The position of Crown dictates that I should consider the lower end of the ranges. [ 42 ] Defence counsel submits the offences occurred over a short time so the sentences should be concurrent or served at the same time.

On the other hand, the first two counts describe different offences that arose out of different and discrete transactions, albeit against the same victim, so concurrent sentences would not necessarily acknowledge both offences. [ 43 ] Finally, I must consider totality; that is, the sentence should not be so overwhelming or oppressive that Mr. R. is reduced to a state of hopelessness. Counsel for the defence has presented an able and enticing submission on behalf of the accused, but I cannot accept it. [ 44 ] Mr.

R., for Count 1, unlawful confinement, I sentence you to 12 months jail. [ 45 ] For Count 2, I would sentence you to 18 months consecutive to Count 1, but considering totality and that Counts 1 and 2 occurred over a short period, I reduce that to 12 months jail consecutive. [ 46 ] In addition, for Count 1, there will be three years probation with the same terms as probation for Count 3 as well as provisions that you take assessment, counselling, and programs as directed. [ 47 ] This gentleman will be confined so a victim fine surcharge would act against him or it would be a hardship on him.

That will be waived on all counts. [ 48 ]

Section 490.011(1) includes as a designated offence s. 279 which includes unlawful confinement. However, Crown made no application so there will be no SOIRA order. [ 49 ]

Section 109 of the weapons prohibition applies to Count 2, at the very least, so there will be a 10-year order under Count 2, Mr. Clerk. [ 50 ] Count 2, is a primary designated offence so the gentleman will provide a DNA sample. [ 51 ] I will not consider the application of 109 and the DNA provisions to Count 1 because they have already been taken care of by my designation under Count 2. [REASONS FOR SENTENCE CONCLUDED]