R. v. G.J.R. Date:, 2014 BCPC 340

Citation: R. v. G.J.R. Date: 20140905 2014 BCPC 0340 File No: 75804-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. G.J.R. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K.D. SKILNICK BAN ON PUBLICATION s.486.4(2) CCC RESTRICTION ON ACCESS s.490.012 CCC Counsel for the Crown: K. Jansen Counsel for the Accused: R. Ballantyne

Place of Hearing: Abbotsford , B.C. Dates of Hearing: May 8, 9, June 20, November 7, 2013 Date of Sentence: September 5, 2014 [ 1 ] THE COURT : I am next going to turn to the offence for which I convicted G.J.R. on file 75804-1. Again, it is my intention that I will address the issue of the length of the custodial sentence.

I do not intend to place G.J.R. on a probation order because it will be redundant to the other ones I have already placed him on. [ 2 ] I convicted G.J.R. of the offence that between the 1st day of September, 2008 and the 31st day of December, 2009, at or near Abbotsford, in the Province of British Columbia, he did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of the person identified as S.R., a person under the age of 16 years, contrary to s. 151 of the Criminal Code . [ 3 ] The facts supporting that offence were set out in written reasons that I read into the record and filed in this court on November 19th, 2013, and I will not repeat those other than to say that the facts, as I found them, related primarily to the first memory of inappropriate touching, which occurred on two occasions in 2008, what has been referred to as the "kitchen incident" and what has been referred to as the "Solarcaine” incident".

I also made mention in the facts about some later incidents that were complained about. I do not propose to repeat those facts but I am relying on the facts as I found them at trial. [ 4 ] A person convicted of an offence under s. 151 of the Code where the Crown has proceeded by Indictment faces a range of sentence from between 45 days and ten years' imprisonment. In this case, Mr.

Ballantyne is urging me to adopt a sentence of between the range of 90 days and nine months but with the emphasis being at the lower end of that range and, in particular, a 90-day sentence, and that that sentence be permitted to be served intermittently. The Crown is advocating for a sentence in the range of between nine months and 12 months, which, of course, would take the sentence outside of the range for an intermittent sentence. Because this is an offence that carries a minimum penalty, a conditional sentence order is not an option. [ 5 ] The Criminal Code directs that in sentencing G.J.R.

I take into account a number of factors.

The Code says, at s. 718, that: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: to denounce unlawful conduct; to deter this offender and other persons [likeminded] from committing similar offences; to separate offenders from society, where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims and to the community; and, to promote a sense of responsibility in offenders, and acknowledge of the harm that they have done to victims and to the community. [ 6 ]

Section 718.01 is of particular application in this case because it says that: When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [ 7 ] This is, in fact, such a case where the victim of this offence was under the age of 18 and was certainly abused by the actions of the accused, as I have found them. [ 8 ] It is a fundamental principle of sentencing under s. 718.1 of the Code that: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 9 ] I will speak on that a bit more later in my reasons.

I would also note that, in s. 718.2 of the Code: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender... [ 10 ] Included in those, in what are considered aggravating circumstances, are evidence that the offender abused a person under the age of 18 years, that the abuse was committed on a person to whom the accused was in a position of trust or authority and I find both of those to be aggravating circumstances that are present on the facts of this offence. The Code also directs that:

A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 11 ] Counsel have provided me with a number of authorities and while no facts of two cases are ever identical, there are certainly some principles that I will be referring to in those cases that apply in this case. The Code goes on to say that an offender should not be deprived of liberty, if less restrictive sanctions may be available.

In this case, as I have stated, the minimum penalty is a period of incarceration so this is not a case where there are available sanctions other than imprisonment. [ 12 ] On the authorities that counsel have provided to me, there are a number of principles of sentencing in this type of offence that I want to refer to very briefly. In a decision from the Supreme Court of this province, R. v.

M. , [2000] BCSC 683, Madam Justice Satanove of that court said at paragraph 13: It is clear from the case law that in sexual assault convictions -- - and I generalize that to include sexual offences - -- where there has been no other aberrant behaviour before or after the offences in the home , and no acceptance of responsibility by the offender , the sentencing objectives of specific deterrence and rehabilitation should take second place to the objectives of denunciation and general deterrence, which should be paramount. [ 13 ] In R. v.

B.S.B. , [2008] BCJ No. 2227 , referred to in the reasons of the Honourable Judge Giardini in the case of Humchitt , [2011] BCPC 391. Mr. Justice Romilly, who everyone has acknowledged to be a very thorough and very knowledgeable member of the B.C. Supreme Court, has listed a number of factors that the court has to consider in sentencing an offender for sexual offences.

Those factors include: The nature and extrinsic gravity of the offence which is effected by, in particular, the use of threats, violence, psychological threats and manipulation etc. [ 14 ] In this case, I note that I am sentencing G.J.R. for not one offence but a series of offences and while it is not suggested that threats or violence were used, he was certainly in a position of authority to the victim of this offence. [ 15 ] "The frequency of the offences and the time period over which they were committed," is another factor and, again, I found that this was not an isolated offence, that there were a number of offences, which were committed.

A significant factor that Justice Romilly next refers to is: The abuse of trust and the abuse of authority which are involved in the relationship between the offender and the victim. [ 16 ] This is a case where the victim was the stepdaughter of the accused. The accused was in a position of trust over her and up until the commission of these offences, the evidence was that the victim, while she was the stepdaughter of the accused, she considered him to be her father and, of course, little girls ought to be entitled to expect to be protected by their fathers and not harmed in this manner.

The next factor to be considered is: The disorders underlying the commission of the offences: the offender’s psychological difficulties, disorders and deviancy, intoxication, etc. [ 17 ] We have had the benefit of a report by Dr. Stangeland that I will refer to with respect to risk assessment. I will comment more on that at length. I also note that I have found that this is an offence which the accused's cocaine use at the time no doubt played a

part in adversely affecting his judgment to the detriment of S.R. Another consideration is: The offender's behaviour after the commission of the offence: confessions, collaboration in the investigation, immediate involvement in a treatment program, potential for rehabilitation...compassion and empathy for the victims... [ 18 ] I want to pause there and state that this is a case where the accused denied the offence and continues to deny the commission of the offence and I agree with Mr.

Ballantyne's characterization that this is not an aggravating circumstance; it is simply the case that I cannot give him the benefit that I would to someone who accepted responsibility for the offences and who had apologized for the specific conduct to the victim of the offence. [ 19 ] The time between the commission of the offence and the guilty verdict can be a mitigating factor depending on the offender's behaviour, his age, social integration and so forth. I am mindful that the circumstances that led to the prosecution of this offence.

Often these types of offences, because the victims are children, are not discovered immediately and there is some lag and I am mindful of the way that this case has proceeded to trial. [ 20 ] The victim is a final consideration that Mr. Justice Romilly mentions. ...the gravity of the attack on his or her physical or psychological integrity reflected by, in particular, age, the nature and extent of the assault, the frequency and duration of the assault, the character of the victim, his or her vulnerability (mental or physical handicap),

abuse of trust or authority, lingering effects, etc. [ 21 ] In this case, I would agree with Mr. Ballantyne's characterization, although I think the word that I would use to describe the victim of this offence is that she is very resilient. She is very remarkable in light of what has happened to her, the fact that she maintains such strength and such strong character after having been victimized under these circumstances certainly speaks very well of her character, of her ability, of her strength. She has also indicated to the court that the offences have had a lasting effect on her.

In her words, they have robbed her of her childhood. She says that she has suffered a great deal of distress. She has felt conflicted and torn apart by her fears, feelings and thoughts. The offences have had an adverse effect on her self-esteem and her well-being and her adjustment socially. [ 22 ] In the pre-sentence report, when interviewed by Ms. Kobell (phonetic), the victim says that she feels ashamed and embarrassed about what happened to her. That is particularly troubling because, of course, she has done nothing that she should feel ashamed of.

She is the one who was entitled to be protected by a parent and she is the one who has been victimized by someone that she ought to have felt trust in. S.R. told Ms. Kobell that she feels guilty and disgusted with herself and feels worthless. She had been resistant to counselling because she says she would rather talk to people who she finds to be supportive. She goes on to tell Ms. Kobell that she has been affected emotionally and mentally about what has happened to her and she wants to have closure so that she can move on.

She also states that the hard part for her was that G.J.R. was a father figure and the only dad that she knew. The incident has affected her ability to trust and it has affected her perception of how others judge her. She also has made it clear that she doesn't wish to have any contact with G.J.R. in future. [ 23 ] G.J.R. is 44 years of age and will turn 45 on November 5th of this year. He was born November 5th, 1969. Ms. Kobell has prepared again a detailed report setting out G.J.R.'s background, his attitude towards the offence, and she also makes some recommendations.

G.J.R. has a 14-year-old son that considerable reference has been made to and has a strong bond with his son. It should be stated that it has not been suggested that there has been any improper or untoward behaviour towards his son. [ 24 ] G.J.R. told Ms. Kobell that he did not have any sexual interest in children or in young, developing females. That is a remarkable statement, first of all, given the circumstances of this offence and given what we later learned about his accepting responsibility for the offence involving V. K., who was, at the time, 16 years of age.

From the manner in which the camera was operated, the focus of that camera, it was quite clear what interest G.J.R. had and, as I say, that he would make such a statement is rather hard to accept. [ 25 ] G.J.R. also indicates that he feels that he does not have a problem with substance abuse. He says that he stopped using cocaine. He did so without any outside assistance. He maintains that he only used a small amount of the drug. [ 26 ] With respect to his acknowledgment of the circumstances of the offence, G.J.R. denies that the offence occurred and emphatically states that it never happened.

Again, I repeat, while G.J.R. is not to be given a greater penalty because of the fact that he has maintained his denial of the offence, it is simply the case that I cannot reduce his sentence, as I would in the case of someone who accepted responsibility for the offence and had some empathy. [ 27 ] The report was prepared by Dr. Stangeland, a registered psychologist with the Forensic Psychiatric Services, in which Dr.

Stangeland concludes that: G.J.R. presents as a low level of risk for future sexual misconduct. [ 28 ] Now, it is interesting to note that at the time that this report was prepared, G.J.R. had not pled guilty of the offence involving V.K. and it is difficult to understand or to theorize or speculate, I should say, what Dr. Stangeland's opinion might have been if the doctor had been aware that G.J.R. subsequently accepted responsibility for that offence as well. I do not intend to prolong this issue. I had contemplated getting a revised report based on that knowledge to see how that would affect Dr.

Stangeland's conclusions. I do not intend to do that because I do not think it is anybody's interests, G.J.R. or as well as the victims to the offences, to further prolong sentencing but I do make that comment that -- because I know one place in the report, Dr.

Stangeland thinks it unlikely that there would be any escalation and yet we have evidence before the court that the escalation went from voyeuristic activities, from observing and the use by way of videotaping of a teenage girl for the purposes of his sexual gratification, that there was an escalation from that behaviour in 2006 to an escalation of the behaviour of sexual touching. [ 29 ] Counsel have provided me with a number of cases with a range of sentence and I think certainly the range that counsel have suggested in this case is within the appropriate range.

There are circumstances in which a 90-day intermittent sentence may be appropriate for this type of offence. There are certainly also circumstances where a 12-month jail sentence would be appropriate for this type of offence as well. [ 30 ] In taking into account the aggravating and mitigating circumstances, I take into account as very egregious the breach of trust which was involved in this offence.

As I have indicated, daughters ought to be able, and particularly daughters of the age that S.R. was at the time of these offences, ought to expect protection from their parents, protection from their fathers and that they will not be abused in the manner that occurred with S.R in this case. There is a high level of moral blameworthiness in this offence because of the position of trust which existed on a vulnerable child. [ 31 ] I am also concerned about the lack of any empathy. G.J.R. provided a letter to the court speaking for himself with respect to the offence.

I noted that this letter was completely self-centred. I say that it was egocentric in the sense that G.J.R.'s perception about this offence was how it had affected him not how it may have affected S.R. He talks about his depression. He talks about his medication. He talks about how it is going to affect him. He says, and I quote: Being charged and convicted of a crime like this is the worst thing that could have happened to me and it will follow me for the rest of my life.

What is lacking in the letter is any understanding of how an offence of this nature will continue for the rest of her life to affect S.R. and how this can be among the worst things that can happen to a child. [ 32 ] In mitigation, I take into account that G.J.R. has been a productive employee, that he has a strong work ethic. I take into account, subject to the qualifications that I have mentioned previously, the risk assessment of Dr. Stangeland. With respect, I do not agree with the submissions of Mr.

Ballantyne that the location of the touching is of significant difference in terms of the imposition of sentence.

What I focus on more is the residual and lasting effect that the commission of this offence has on S.R. under the circumstances it was committed and that the fact that her belief that her father, or the person she considered to be her father, would always protect her, would never harm her, how that was shattered and how that is going to affect her for the rest of her life, both in the relationships she forms and the trust that she builds or the trust that she is unable to build and the mental scars that she carries for the rest of her life. [ 33 ] In balancing all of those considerations and taking into account the considerations on sentencing under the Criminal Code , and in particular, as I am directed to do, the considerations of denunciation of unlawful conduct and deterrence of this in other likeminded offenders, and also in taking into account that where a sentence involves the abuse of a child, as has occurred in this place, the primary consideration is to be the objectives of denunciation and deterrence. [ 34 ] In taking into account the aggravating and mitigating circumstances that I have listed previously, but particularly the egregious way in which the breach of trust occurred in this case, that a child lost the trust of a parent under circumstances where she ought to not only felt protected but ought to have been protected, in my view, an appropriate sentence for this offender for this offence under these circumstances is one of a ten-month jail sentence and I sentence G.J.R. accordingly. [ 35 ] I am going to make an order pursuant to s. 161 of the Criminal Code .

Before I do that, as I have stated previously, this sentence is to be served first, following which his sentence on Information 78946 can be served consecutive to that. [ 36 ] I am going to make an order under s. 161 of the Criminal Code and that

section of the Code directs that I am to make an order prohibiting G.J.R. from attending any public park or swimming area in which persons under the age of 16 may be present or can reasonably be expected to be present, or at any daycare centres, schoolground, playground or community centre. He is prohibited from obtaining or continuing any employment, whether or not the employment is remunerated or becoming a volunteer, in a capacity that involves a position of trust or authority towards persons under the age of 16.

He is prohibited from using or obtaining a computer system, as that term is defined in the Criminal Code , for the purpose of communicating with any person under the age of 16. Those are the mandatory conditions and that order is in effect for a period of -- maybe Crown can help me here. [ 37 ] MS. JANSEN: It's open to Your Honour. I believe that it's anywhere up to... [ 38 ] MR. BALLANTYNE: Can you just make it no longer than the sentence? He has no history of being a pedophile. [ 39 ] MS. JANSEN: It's up to life or any shorter duration in sub (2). [ 40 ] THE COURT: Okay.

I am going to direct that that will be a five-year order. [ 41 ] Pursuant to s. 490.01(2) of the Criminal Code , I am required to make an order, and I do make an order -- [ 42 ] MS. JANSEN: And Your Honour, in relation to the SOIRA, it's a 20-year period based on the fact that the maximum term of imprisonment is ten years. [ 43 ] THE COURT: Right.

I am going to make an order in Form 52 of the Criminal Code requiring G.J.R. to comply with the Sexual Offender Information Registry Act for a period of 20 years. [ 44 ] Finally, I am going to make an order under s. 487.051 that a sample of his DNA be taken forthwith in one of the methods proscribed under the Criminal Code by a person authorized to take that sample under the Criminal Code for inclusion into the National DNA Databank and that sample is to be taken forthwith. [ 45 ] MS.

JANSEN: And the only additional ancillary order I would mention, Your Honour, was the s. 109 prohibition order -- [ 46 ] THE COURT: Oh, yes. [ 47 ] MS. JANSEN: -- which, because it's the violence or attempted in the sexual integrity, is -- falls within that bracket.

So I'd ask Your Honour to consider a prohibition order of, say, ten years, pursuant to s. 109. [ 48 ] THE COURT: Yes, I am going to make an order pursuant to s. 109 of the Criminal Code directing that for a period of ten years G.J.R. is not to possess any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. [ 49 ] MR. BALLANTYNE: I was going to say that he has a 14-year-old son. [ 50 ] THE COURT: Yes. [ 51 ] MR.

BALLANTYNE: Is he going to be -- he's banned from any school functions and assisting his son in any way in that -- [ 52 ] UNIDENTIFIED SPEAKER: Hockey games. [ 53 ] THE COURT: I think that is what the Code requires. In his no-contact order, I specifically limited that to female persons because of the fact that I was cognizant that there may be activities with his son but, as Crown points out, those are mandatory orders that I am required to make and so he will have to live within those.

K.D. SKILNICK Provincial Court Judge