R. v. Hamade Date:, 2012 BCPC 80

Citation: R. v. Hamade Date: 20120106 2012 BCPC 0080 File No: 73801-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. COREY JORDAN HAMADE BAN ON DISCLOSURE s. 486.4(2) CCC ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. R. GARDNER Counsel for the Crown: S. Domaradzki Counsel for the Defendant: G. Harris Place of Hearing: Abbotsford , B.C.

Date of Hearing: February 21, September 2, 2011 Date of Judgment: January 6, 2012 [ 1 ] THE COURT : This is an oral judgment of the court. [ 2 ] I realized, after the past 25 minutes or so, that in order to write a really clear judgment I would probably need a lot more than a half an hour, but this matter is now more than 18 months old.

The accused, the accused’s family, the community, the victim, I think everything should be brought to an end today or, for a better way of putting it, a decision should be given today. [ 3 ] The complainant in this case was 15 years of age, the accused was 28 years old at the time. He got to know the complainant when he was a student teacher at her school. The police became alerted shortly after the events occurred, that is what led to Mr.

Hamade being charged under s. 153 of the Criminal Code that he did, for a sexual purpose, invite, counsel or insight the complainant, a person under the age of 16 years, to touch, directly or indirectly, with a part of his body. [ 4 ] As everyone agrees this was a highly inappropriate relationship between the accused and the 15-year-old complainant. It was

originally disclosed to a counsellor who quickly alerted the police. The police interviewed the complainant who told them that she had a schoolgirl crush on the accused and had, at one time, asked to be a Facebook friend. They later communicated by e-mail. The e-mails initially were non-sexual in nature but they culminated in the events of May 31st, 2010, when he asked her to lift up her shirt and expose her breasts. He then asked her to meet him at the Apollo gym parking lot so they could engage in

an act of oral sex. [ 5 ] The Crown’s position is that a period of incarceration is warranted, given the 18-month maximum penalty on a

summary conviction prosecution. They have also asked the court to impose two years probation with an emphasis on counselling. [ 6 ] The Crown has submitted that there are aggravating circumstances in this case as set out in the victim impact statement, which I note was written in the summer of 2010. The victim was understandably traumatized and eventually transferred to another school. The aggravating factors, the Crown has argued, are that the accused was in a position of trust, this was

an act of child abuse and deliberate risk-taking by the accused who made highly inappropriate advances to a vulnerable teenage girl. [ 7 ] The Crown acknowledges that the accused has no prior criminal record. He is now 29 and it is a generally positive pre-sentence report where he has demonstrated some remorse, empathy and insight into the crime he has committed. [ 8 ] The Crown has referred the court to three separate cases, but having reviewed them I have concluded that the accused’s behaviour in those cases were far more serious, far more reprehensible than in the case at bar. In the R. v.

Kydyk case, a decision of the Ontario Court of Justice in July 2005, the accused communicated on the internet with an undercover police officer who was posing as a 13-year-old girl. The accused was 39 years of age at the time. A meeting was set-up to lure the accused to a particular meeting place at which time he was arrested. The police subsequently seized the accused’s computer which had a number of videos that had been deleted, but they showed young children being sexually assaulted by adults. [ 9 ] The court was also referred to the Ontario Court of Appeal decision in R. v.

Folino, a decision given in April of 2005 where the accused pled guilty to one count of child luring, contrary to s. 172(1) of the Code . He was sentenced to a term of imprisonment of nine months followed by three years probation, and was made the subject of a SOIRA order.

The sentencing hearing proceeded in that case on the basis of an agreed set of facts whereas the 35-year-old appellant, over a period of 19 days, using a fictitious name, had six live chats on the internet and sent e-mails to a person who he believed was a 13-year-old girl named Jessie but who turned out, once again, to be an undercover police officer. In the chat sessions the appellant engaged in sexually explicit conversations with Jessie, the undercover operator, including asking what kinds of sexual acts she would perform on him, and repeatedly suggesting that they should find a private place to meet.

During one chat session he stated that he was 34 years old and acknowledged that he could get into trouble due to her young age. In another session he suggested that she penetrate herself digitally that night in preparation for the meeting. He then sent her a photograph of himself and a picture of his private parts. [ 10 ] The Crown referred to the case of R. v. Y.B.T. in which the accused in that case was convicted of criminal misconduct against his young daughter, and once again in that case our Court of Appeal decided that a SOIRA order would be appropriate.

I must have left that other Court of Appeal case back in my chambers, but as stated during oral argument, that involved a chiropractor who was sexually groping his patients while they were undergoing chiropractic treatment, so in my view it is distinguishable on that basis. [ 11 ] As defence counsel has pointed out, this was an incident that occurred in the early mornings of one date where the accused exercised extremely poor judgment trying to arrange a 2:00 a.m. dalliance.

Having heard the circumstances, it is difficult to imagine a set of circumstances when they begin by saying it is difficult to imagine this happening without a number of things coming into place, one of course would be the 15-year- old girl slipping out of her residence at two o’clock in the morning which probably was not going to happen, and as defence counsel has pointed out, the two, the accused and the complainant, became involved in certain role playing which is set out in the exhibit that has been provided by the Crown. [ 12 ] The accused has suffered greatly as a result of his arrest.

It has been submitted by defence counsel he was within three months of completing his degree from the University of British Columbia. He was a former quarterback at W. J. Mouat high school with the Abbotsford Air Force in the B.C. Junior Football League and played at the University of British Columbia as well, and he had a promising career ahead of him at one point as a teacher.

After his arrest, his picture was on the front page of the Vancouver Province and this has obviously caused not only him but his family a great deal of embarrassment in the community, and it has certainly undermined his ability to find suitable employment.

He has abandoned his pursuit of a career as an educator, and defence counsel has emphasized that this was a single communication that was made by someone exercising extremely poor judgment. [ 13 ] He has now, despite his arrest, commenced full time and is regularly engaged in employment, the shipping department, which is a vocation that is probably below his intellectual abilities and not really in keeping with the amount of formal education that he has achieved.

As counsel has pointed out, he never did engage in any sexual assault or touching whatsoever of the complainant, and as I have observed, a lot of things would have had to come into place for such a thing to happen. [ 14 ] He has been on strict bail conditions for the past 18 months and has not violated any of the conditions. [ 15 ] One of the primary issues for the court to decide is whether or not the accused is a sex offender and should he be registered as one under the Criminal Code . [ 16 ] In my view, given that this was a single incident, or albeit he acted in an immature manner, in a manner that demonstrated somewhat of a lack of understanding on a moral basis of the difference between right and wrong, he has taken steps since then to rehabilitate himself.

It is important to note that the accused has pled guilty to this matter. This matter has been delayed for a number of reasons but none directly attributable to the accused that certain things were going to happen prior to sentencing, which is understandable, especially including the psychological counselling that the accused has sought and which assisted him to the point where he gained some insight into his immoral and illegal behaviour. [ 17 ] It is also significant that a number of members of his family are here to support him today and they are fully cognizant of the reason he is before the court.

Notwithstanding that, they are here to support him and, in my view, will assist him in his rehabilitation.

[ 18 ] The defence has submitted that to require the accused to register as a sex offender would be grossly disproportionate to the circumstances of this case. The Court of Appeal did discuss this issue in R. v. Y.B.T. , as I said, a May 2006 case where the trial judge took the view that because the entirety of the respondent’s criminal conduct was against his young daughter, the respondent was an opportunist rather than a predatory stranger. I am not even convinced that the accused was being an opportunist in this particular situation in proposing something that was highly unlikely to happen.

I think he was, in my view, engaging in highly immature and highly inappropriate behaviour, but this occurred in the early morning hours over the internet. [ 19 ] So, is this crime of a sexual nature? Yes, it is, but not to the extent that the number of designated offences as set out in the Criminal Code would be.

Taking into consideration the fact of the accused’s personal circumstances, his level of education, his employment record, his lack of prior criminal record, I am of the opinion that to require him to register would be grossly disproportionate to the public interest. [ 20 ] It is my obligation to incarcerate him; the issue before the court is simply for a period of how long. The Crown is not opposed to 90 days be served intermittently.

The defence has asked the court to consider a sentence closer to the statutory minimum of 14 days. [ 21 ] Taking into account all the circumstances of this case, the submissions of counsel, the impact that it had upon the victim, the relevant case law and the provisions of the Code , I have concluded that an appropriate sentence would be 21 days to be served intermittently, to be followed by two years probation.

I agree essentially with the recommendations that have been made and the pre- sentence report which is very helpful to the court. [ 22 ] The conditions on your probation, sir, is that you are to report on or before noon on Monday, that is January the 9th, to Community Corrections here in Abbotsford, and thereafter as and when directed and in the manner directed by your probation officer. [ 23 ] You shall reside at a residence approved of by your probation officer and not change that residence without the prior written consent of your probation officer. [ 24 ] You shall have no contact, directly or indirectly, with the complainant.

I will not say her name publicly, but it will be included in the probation order.

You shall not attend the residence, school, or place of employment of the complainant as may be known to you. [ 25 ] You shall not contact or communicate directly or indirectly, or be alone in the presence of any female person other than family members that you know to be or who reasonably appear to be of the age of 16 years or less. [ 26 ] You shall not attend at [name and address of school]. [ 27 ] You shall attend for, participate in and successfully complete any such assessment, counselling or programming as directed by your probation officer and without limiting the generality of this condition, such counselling or program may, in the discretion of your probation officer, include the Sex Offender Treatment and Maintenance Programs. [ 28 ] I am going to direct you to provide a sample of your DNA. [ 29 ] The victim fine surcharge will apply. [ 30 ] MS.

DOMARADZKI: Your Honour, instead of the Rick Hansen, could it be recorded as no go to [name of school] instead? [ 31 ] THE COURT: I'm sorry, yes. Delete Rick Hansen, yes, it will be the [name of school]. [ 32 ] Anything further, counsel? [ 33 ] MR. HARRIS: Just so that we could quantify the victim surcharge, Your Honour. [ 34 ] THE COURT: Oh, I'm sorry. I said 21 days intermittently. [ 35 ] MR. HARRIS: And the times, thank you. [ 36 ] THE COURT: I do not have the table before me as to what the victim fine surcharge is. [ 37 ] MR.

HARRIS: We’ll find out from the registry. [ 38 ] THE COURT: More importantly, he is just going to be classified today, is that correct, Mr. Sheriff? [ 39 ] MR. SHERIFF: The sheriffs will transport him to North Fraser Pre-Trial Centre and classification will happen there. He should be released later tonight. [ 40 ] THE COURT: All right.

And I am going to direct that he serve that sentence intermittently at the North Fraser Correctional Centre commencing Friday, January 13th at 6:00 p.m. to Sunday, January 15th at 6 p.m., and on each weekend thereafter until the sentence is completed. (REASONS FOR SENTENCE CONCLUDED)