R. v. D.M.V. Date:, 2015 BCPC 224

Citation: R. v. D.M.V. Date: 20150723 2015 BCPC 0224 File No: 77282-2C Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D.M.V. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: R. Antonuk and S. Montgomery Counsel for the Accused: H. Gawley and D. Ferguson Place of Hearing: New Westminster , B.C. Date of Hearing: July 23, 2015 Date of Judgment: July 23, 2015

[ 1 ] THE COURT (ORALLY): The person before the court today for sentencing is D.M.V. D.M.V. has previously entered guilty pleas to three counts on Information 77282-2C. That Information was sworn on October 23rd of 2013. [ 2 ] Count 2 charges D.M.V. with the offence of, for a sexual purpose, touching, directly or indirectly with a part of his body or an object the body of a complainant, A.O., a person under the age of 16 years, contrary to s. 151 of the Criminal Code .

For purposes of efficiency, I will refer to that type of offence as a "sexual interference" offence. [ 3 ] For count 4, a range of August 1st to August 31st of 2013 inclusive is given to identify the time of the offending. Count 4, also the subject of a guilty plea by D.M.V., is a sexual interference offence involving a complainant identified as A.L. [ 4 ] The third and final count that is the subject of a guilty plea is count 6, which was amended by Judge Walters on August 11th of 2014.

That count charges D.M.V. with obtaining for consideration, or communicating for the purpose of obtaining for consideration, the sexual services of two complainants, A.L. and C.C., persons under the age of 18 years. [ 5 ] So the sentencing today of D.M.V. is a sentencing that addresses the guilty pleas to those three offences. [ 6 ] The Crown proceeded against D.M.V. by indictment on all three counts. Guilty pleas were entered on the first day of a preliminary inquiry to counts 2, 4 and amended 6.

Minimum sentences under s. 151 of the Criminal Code for counts 2 and 4 are one year of incarceration, and the maximum is ten years. The minimum sentence under s. 212(4) for amended count 6 is six months and the maximum is five years. CIRCUMSTANCES OF THE OFFENCES [ 7 ] I turn to the circumstances of the offences. [ 8 ] The timeframe for the sexual interference offences is August 1st to 31st of 2013.

The timeframe for the communication with persons under the age of 18 for the purpose of obtaining sexual services for consideration is June 1st to September 10th of 2013. [ 9 ] Counsel filed a Statement of Agreed Facts for the purposes of this sentencing. It is a lengthy document. I am going to provide a somewhat compressed

summary of those agreed facts. [ 10 ] The investigation of D.M.V. that ultimately led to his charges flowed out of an investigation of another person, T.G., a 20-year- old male, that preceded it. T.G. was arrested in September of 2013 on a charge of sexual interference with a person under the age of 18. That person is identified as S.W.

T.G. was 20, S.W. was 15 and in the course of investigating the activities of T.G., the police investigation branched out and was extended to include an investigation into the activities of D.M.V. [ 11 ] T.G. and S.W. are young people who "hang out" at the SkyTrain station in New Westminster, and the complainants in the matters involving D.M.V. that has him in court today are also young people who form part of the same group of friends who "hang out" at the New Westminster SkyTrain station. [ 12 ] Beginning in June of 2013, D.M.V. infiltrated that group of young people.

Indeed, he made himself a member of that group of young people, spending time with them at the SkyTrain station on a daily basis. He supplied them, from time to time, with alcohol and with narcotics. [ 13 ] At this time, D.M.V. owned a pornography business. That business operated a website called Hotcamz. The business specialized in the uploading of images of young girls having sex or performing sexual acts before a camera, with the images then being uploaded to the Hotcamz website in order to satisfy the interests of viewers of that website who were prepared to pay to watch the images. [ 14 ] Mr.

Antonuk, for the Crown, was careful to say that there was nothing about that business that was illegal, per se , although many might take offence at the thought that such a business would operate. In saying that, Mr.

Antonuk was, of course, observing that provided the persons displaying themselves for these purposes on the website were of an age where they could properly consent to engage in such commercial activity, there was nothing illegal, per se , about the website. [ 15 ] There was an uncontradicted assertion made more than once in the course of sentencing submissions that D.M.V., through his incorporated entity that operated the Hotcamz website, generated for himself an income of approximately $500,000 per year. [ 16 ] D.M.V. told his victims about his corporate activities, about the Hotcamz website and about the fact that he was in the business of selling pornography for profit.

In doing so, he was not dishonest or fanciful. He really is or was a pornography businessman running a pornography business. He actually had a website up and running, and people truly did pay him to view women performing sex acts before a camera. [ 17 ] This business context for D.M.V.'s offences is important. It is important generally, and it is particularly important with respect to count 6, the count that charges him with communicating for the purposes of obtaining sexual services from complainants C.C. and A.L.

What he was doing there was offering these underage young girls money to perform sexual acts in front of his company's camera. He was looking, in other words, to build inventory for his highly profitable business using images of these young girls as new potential inventory. [ 18 ] So I repeat, these claims that he could bring the complainants A.L. and C.C. into some income was not just bravado.

He actually had a site that was an operating site and it was generating substantial revenues and an income for D.M.V. of $500,000 per year. [ 19 ] I return now to the investigation that led to the investigation resulting in charges against D.M.V.

[ 20 ] T.G. was D.M.V.'s employee. T.G., part of this group of young people who hung out at the SkyTrain station in New Westminster, who was arrested on a charge of sexual interference with S.W., a 15-year-old, was employed by D.M.V. to recruit girls to perform for his website. So we can see that the charge in amended count 6 fits into the larger picture of D.M.V.'s ambitious and profitable commercial exploitation of young women -- girls -- including through the efforts of others he engaged to serve as recruiters. [ 21 ] The investigation of T.G.'s activities, as I have said, led to the investigation of D.M.V.

The charges that are before me now for sentencing D.M.V. involve three victims, A.O., A.L. and C.C. [ 22 ] I turn to count 2. Here, the victim is A.O., a 14-year-old girl. D.M.V. has entered his plea to a s. 151 offence involving her. She was part of the group of friends that hung out at the SkyTrain station in New Westminster. I do not think it can be said too often that she was 14 years old. [ 23 ] D.M.V. did not know A.O. before he infiltrated the group, but he came to know her as a result of doing so. D.M.V. told A.O. that he was associated with organized crime and, in particular, with the Hells Angels.

He also told her that he owned a porn site. D.M.V. often bought drugs for A.O. and other items, as well, including a cell phone. D.M.V. clearly knew A.O.'s age. [ 24 ] D.M.V. had intercourse with A.O. on one occasion. On that occasion, A.O. had consumed significant quantities of sherry and had smoked a good deal of marihuana.

I pause to say that neither the sherry nor the marihuana were supplied by D.M.V. to A.O., but he was aware she had consumed them. [ 25 ] In her impaired state, D.M.V. took A.O., another young person, B.D., a boyfriend of one of them, to the graveyard at the old British Columbia Penitentiary site. It is a private place; some might say even a sacred place. While there, he invited A.O. to come back to his house. B.D. warned her not to go, but she did not heed that warning. [ 26 ] While there, he told A.O. that "he could make her horny and that he knew she wanted it". Her reply was, "Go for it," and what followed was

an act of sexual intercourse between the two. The sexual behaviour involved both digital penetration of A.O. by D.M.V., and also oral sex performed by A.O. on D.M.V., in which he asked A.O. if he could "put his penis in her mouth as far as it could go". D.M.V. did not wear a condom throughout this encounter. [ 27 ] A.O. was clearly in a state of intoxication at the time, and while, on the agreed facts, she was a willing participant, she did not, of course, have the legal capacity to consent, in part because of her age.

Then, of course, there is the fact that her state of intoxication further compromised her ability to consent. [ 28 ] I turn to count 4. This is another sexual interference count. The complainant in count 4 is A.L. She was a 15-year-old girl at the time, and also part of the group that hung out at the New Westminster SkyTrain station. D.M.V. often supplied her with alcohol and drugs, and he was well aware of her age. [ 29 ] D.M.V. had sex with A.L. on one occasion in the presence of others, including her boyfriend. Another observer was C.C., one of the two complainants in count 6.

While hanging out with A.L. and C.C. and A.L.'s boyfriend, D.M.V. supplied A.L. with drugs, either Dexedrine or ecstasy. D.M.V. took A.L. and her boyfriend to the same B.C. Penitentiary graveyard. She was high on drugs that he had supplied to her. In the graveyard, he removed her clothing and his own in order that they might use them as blanket. Then he had sex with A.L., a 15-year-old girl. There was penetration of A.L.'s vagina with D.M.V.'s penis, and D.M.V. also penetrated A.L. anally. This all unfolded in the presence of A.L.'s boyfriend.

He tried to intervene to stop, but he was too addled by the illicit substances that he had consumed, together with A.L., to be able to intervene effectively. Although A.L., in her state, did not try to stop D.M.V. from doing what he did to her, she would not have had sex with D.M.V. without having consumed the drugs that he supplied to her. [ 30 ] I turn to count 6. Here, the complainants are the same, A.L., of whom I have just spoken, and C.C. C.C. was 16 years of age.

Over the course of the time that he insinuated himself into the midst of this group of friends, which included A.L. and C.C., he offered to A.L. to provide her with false identification so that she could be employed by his porn company and appear, through the use of that false identification, to be a person of age and legally able to be part of his stable. He offered to supply her with this identification so that she might perform videotaped sex acts for display on the internet, including sex acts with other persons involved and without.

To her credit, A.L. declined that offer. [ 31 ] C.C., the other named complainant in count 6, was essentially dealt with in the same way. D.M.V. told C.C. that he was part of an organized crime ring. He told her while they were hanging out that he owned and ran a porn business and that he was looking for girls under the age of 18 to work for it. He offered her $200 to perform sex acts for filming and uploading to the website. He told her that she could become a main performer on the website. To her credit, she, too, declined D.M.V.'s offer.

D.M.V. frequently asked C.C. to have sex with him, but, to her credit, she also declined that offer. EFFECTS OF THE OFFENCES UPON THE VICTIMS [ 32 ] I turn to the subject of the effects of these offences upon the victims. [ 33 ] No victim impact statements were provided to the court in the course of sentencing, but the court can reasonably infer that the adverse impact of D.M.V.'s offending upon his victims has been considerable. [ 34 ] I will have more to say later, but these were manifestly very young teens who were vulnerable and at risk. Through his actions, D.M.V. has contributed to their loss of innocence.

He has contributed to the denigration of their childhood years. The form his sexual misbehaviour took with his victims was particularly degrading. I observe that in every sense he viewed his victims as commodities, depersonalizing them and subordinating their humanity and their dignity to his business interests and to his own unworthy urges. [ 35 ] His conduct regarding amended count 6 was that of a particularly odious type of entrepreneur. He sought to add these young girls, aged 15 and 16, to his stable, to his inventory.

He sought to induce them to degrade themselves so that he could satisfy the prurient interests of viewers of his website -- viewers with a particular taste for child pornography -- and thereby take his income even higher than

the half a million dollars a year that that website was generating for him already. [ 36 ] There can be no room for doubt that the encounters that the victims had with D.M.V. will have left psychological scars that will compound the difficulties that they already carry with them as impressionable, at-risk youth. [ 37 ] And I will add that, indirectly, these offences have inflicted harm upon society as a whole.

It is a sad but inescapable truth that victims of this kind of offending -- stripped of their pride, of their sense of self-worth -- sometimes go on to adopt criminal lifestyles of their own, often fuelled by illicit drug use. They self-medicate, they become dependent on illicit substances. While it cannot be known what ultimately will come of the victims here, it is a fair inference that D.M.V.'s conduct has, at the very least, increased the risk that some or all of them may stray further into criminality and thus become a greater risk, in turn, to law-abiding members of society at large.

For the effects of his conduct upon his victims, and indirectly upon society at large, D.M.V. is now answerable before this court. CIRCUMSTANCES OF THE OFFENDER [ 38 ] I turn to the circumstances of the offender. [ 39 ] D.M.V. is now 28. He was 26 at the time he committed the offences for which he is now being sentenced. [ 40 ] D.M.V. has been married twice. He was previously divorced from his first wife and he is currently estranged from his second.

He has a conviction for assaulting his second wife and a conviction for breaching a condition of his probation order requiring him to have no contact with her. [ 41 ] Counsel's submissions about D.M.V.'s past, his relationships with his family and others, and so on, often diverge significantly from what he has said to have told his Pre-sentence Report ("PSR") writer and the psychologist who assessed him on these subjects. [ 42 ] Counsel for D.M.V. submits that his client has no subsisting relationship with his father or his one sibling, but that his mother, who lives in Calgary, remains supportive of him.

This does not square with what he reported about the size of his family or contact with them to the writer of the PSR or to the psychologist who assessed him. For example, he told the psychologist that he remains close to both of his parents.

I will not go into all of the details in respect of which the accounts differ, but as the report writers have acknowledged, D.M.V. is not a very reliable historian and he sometimes tends to say what he believes will best serve his own interests. [ 43 ] D.M.V.'s mother disapproves of the conduct that now has him in custody and before the court for sentencing, but counsel submits that she stands by him and is willing to receive him back into her home when he is released. [ 44 ] Counsel submits that D.M.V. has had a turbulent upbringing.

However, D.M.V. is reported to have told the PSR writer and the psychologist that his upbringing "would best be described as okay". D.M.V. has instructed his counsel that he was subjected to physical, emotional and sexual abuse as a child. In particular, he instructs his counsel that over a four-year period he was sexually abused by two of his mother's boyfriends, starting at the age of five.

D.M.V. has further instructed his lawyer that the sexual abuse occurred five to seven times daily over that four-year period. [ 45 ] Crown counsel concedes that the Crown has no evidence to challenge that last contention, but he also suggests that, employing the yardstick of common sense, one might justifiably view with scepticism the suggestion that the sexual abuse might have occurred at such a high frequency and over such a long period.

I agree with Crown counsel in that respect. [ 46 ] It is contended on D.M.V.'s behalf that this protracted experience of five to seven abusive sexual encounters daily with his mother's boyfriends was entirely unknown to his mother. This, I say with the greatest respect, is difficult to believe.

Such an horrific pattern of sexual abuse in D.M.V.'s history would also have been expected to have triggered more than one line in his seven-page PSR and a different generic description of his own upbringing than "okay" -- the one he used when being interviewed by his PSR writer and by the writer of his psychological assessment: "My upbringing was okay". [ 47 ] Similarly, while there is a generic reference to abuse at the hands of his mother's boyfriends in the psychological report, D.M.V. apparently did not make specific mention when being interviewed by the psychologist of any sexual abuse at all, much less five to seven incidents daily over four years, and he referred to the period of generic abuse as being for two years only. [ 48 ] D.M.V. is reported to have completed high school and part of one year at college.

He worked briefly for a time-share company before taking up a business career in the pornography industry in 2008. As I have mentioned, his pornography career was built around a company that he incorporated to operate a website called Hotcamz.net. It live-streams images of women performing sex acts to paying customers. D.M.V. has instructed his lawyer that in the first year of operation and -- I think this cannot be said too often -- his website generated an annual income for him of $500,000.

He told the PSR writer that his income continued for some time at that level annually. [ 49 ] The charge on count 6 of the Information -- that is, the communication with persons under 18 for the purpose of sexual services for consideration offence -- ties into this business enterprise because D.M.V. has admitted through his guilty plea to that count that he sought to persuade his victims, whom he knew to be underage, to perform sexual acts on camera for his live-streaming customers. [ 50 ] D.M.V. comes before the court with a youth and adult record.

The offences are mainly compliance offences and, thus, of limited relevance. However, in 2000 he was convicted of a sexual assault against an 11-year-old boy when he was 13. More recently, as I have noted, in May 2013 he was convicted of assault simpliciter against his second wife. Indeed, he was on probation as a result of that latter conviction when he committed the offences for which he is being sentenced now. [ 51 ] This most recent offending shares some things in common with the offences now at bar inasmuch as, like those offences, it entails a victim who was a female and well-known to D.M.V.

Due to its age, the earlier sexual assault conviction must, for sentencing purposes, be treated with some caution. But the fact that it was a sexual offence, a sexual assault, and the fact that the victim was a child makes that earlier offence a cognate offence and requires it be given some consideration in the course of the present sentencing, and so I do give it some consideration.

[ 52 ] The subjects of remorse and insight did not figure directly in counsel's submissions on behalf of D.M.V. They do come up in the PSR, however. The writer of that report concludes that D.M.V. has no interest in addressing underlying causes for his offending through counselling or treatment. This, the writer says, shows that D.M.V. has little or no insight into his offence pattern. [ 53 ] Similarly, and quoting from page 6 of the PSR: There was little or no commentary with respect to the impact this event has had on his victims.

Neither does he present with any sincerity or remorse for his actions other than to say he feels horrible, but is quick to draw attention to what he plans to do after he completes his sentence. [ 54 ] The writer of the psychological report concerning D.M.V., at page 10, expresses similar scepticism about the sincerity of D.M.V.'s professed remorse and regrets, saying: It is believed that [D.M.V.’s] present statements are also self-serving and his remorse is more a result of his legal consequences than a feeling of guilt or victim empathy. [ 55 ] D.M.V. has been, on the material before me, a prolific polysubstance abuser across much of his life, although he apparently declines to consume alcohol.

As to his psychological makeup overall, the report filed at sentencing states that D.M.V. is diagnosed with a substance-abuse disorder, a paraphilic disorder (in particular a demonstrated interest in hebephilic sexual activity), a history of ADHD, and as having traits of a personality disorder. Significantly, for today's purposes D.M.V. has been assessed to be at moderate to high risk to commit sexual offences in the future.

MITIGATING FACTORS [ 56 ] I turn to mitigating factors. [ 57 ] There is not a great deal to talk about under this heading, but guilty pleas were entered by D.M.V. to all of the counts for which he is being sentenced today. They were not entered early. Rather, they were entered on the first day of the preliminary inquiry scheduled for those charges. But counsel were, indeed, in discussions well before that date and Crown had, indeed, been alerted to those forthcoming pleas, so witnesses were denotified.

Because of the guilty pleas, the victims especially were spared the ordeal of a trial of these very troubling charges.

Overall, a great deal of potential trauma, expense and inconvenience was spared by the guilty pleas being made. [ 58 ] Crown acknowledges that it would have been difficult to get the victims in this case to testify, given the sensitive subject matter of their anticipated testimony, and so those difficulties were avoided, as well -- a factor that amplifies the effect of the pleas. [ 59 ] While the mitigating force of D.M.V.'s guilty pleas would have been even greater if they had come sooner, because even more anguish for the Crown witnesses, and more expense and inconvenience would have been spared, those guilty pleas still carry some considerable mitigating force. [ 60 ] I turn to aggravating factors and I begin with those that are statutory in origin. [ 61 ]

Section 718.2(a)(ii.1) identifies abuse of a person under the age of 18 as a statutory aggravating factor. That is plainly in play here. All victims were under the age of 18. [ 62 ]

Section 718.2(a)(iii) provides that where an offender, in committing an offence, abuses a position of trust or authority in relation to the victim, that is an aggravating factor. Clearly, D.M.V., in his grooming of his victims, cultivated in them a relationship of sorts -- an element of trust of him of sorts -- and then abused that trust, engaging, in my view, s. 718.2(a)(iii). [ 63 ] There are also common law aggravating factors to consider in this case. One of them is the use of violence and threats of violence. D.M.V. did this when committing the s. 151 offences, the sexual interference offences.

It cannot be denied that the manner in which D.M.V. sexually assaulted his victims non-consensually was harsh and degrading and violent, particularly the anal penetration of 15-year-old A.L. [ 64 ] With respect to threats, the use by D.M.V. of references to his association with organized crime can, I think, be fairly said to embody some of what is embraced by the notion of a threat.

It is a fair inference that by identifying himself with persons who are notoriously violent and who notoriously engage in many and varied unlawful activities, D.M.V. gained ground in bringing his victims under his influence by making them fearful of what might happen to them if they did not cooperate with him. [ 65 ] Lack of genuine remorse or insight is a common law aggravating factor and, as noted, neither the PSR writer nor the psychologist who did the psychological evaluation could detect in D.M.V. any genuine remorse regarding the appalling predatory treatment of his victims.

Both report writers also commented on the lack of insight D.M.V. has into his offending and the causes for it. Predictably, given that lack of insight, he shows no interest at all in engaging in counselling or treatment to address the underlying root causes of his offending and his antisocial and predatory behaviour.

It follows that the risk that he will offend is much higher. [ 66 ] I am going to read into the record a quotation from page 5 of the PSR and then a similar passage from the psychological assessment. [ 67 ] Turning first to page 5 of the PSR, the writer of that report, Stacy Russell (phonetic), says this under the heading Attitude and Receptiveness to Previous and Proposed Interventions :

[D] has been supervised on previous court orders where his risk was deemed to be high, with minimal participation in community programming to address risk factors. Currently, [D] -- [ 68 ] I pause to say “[D]” is D.M.V. -- [D] does not present any willingness to address his risk factors, nor does he suggest he would benefit from any mode of intervention at this time. He presents with no interest in counselling or programming to address any of his deficits, specifically addressing criminal history and sexual offences. [ 69 ] And then in the psychological assessment prepared by Dr.

Evan Lopez (phonetic), reading from page 10 of 14: When asked if he had any information that he felt should be added to this assessment, he asked that his remorse be mentioned. He then stated, 'I feel that what I did was wrong and there was no justification or valid reason. I took advantage of a situation that I helped create.' He said that he feels bad for both of his victims because he has been there before. When he was challenged on his statements, he mentioned that he was self-serving, that he did not think of anything other than I could get my needs met .

But now he is truly sorry and wishes that he could take it back. To this end, it is believes that [D.M.V.’s] statements are also self-serving and that his remorse is more a result of his legal consequences than a feeling of guilt or victim empathy. [ 70 ] As regards insight, further up the page: He presented an unrealistic lack of insight in his case when he mentioned that he does not feel a need to have sex anymore or even have a relationship. When challenged on this inconsistency, he mentioned that he has gotten ordained and wants to follow a spiritual life.

However, he added that if his ex-wife wanted him back, he would go back in a heartbeat, but that he does not see it happening. According to [D.M.V.], his own business in the porn industry for the last five years, married a webcam actress, although there is conflicting information on this point, has had sex with minors, has strong allegations of deeper involvement in illegal sex.

However, according to him, this short period of incarceration has been sufficient to have transformed him into a spiritual teacher and an ordained spiritual leader. [ 71 ] A callous disregard for the harm caused to victims is a common law aggravating factor. Everything that I have said about lack of remorse and insight speaks equally to D.M.V.'s callous disregard for the effects of his offending on the vulnerable young people that he chose as his victims. The means of the assaults, involving anal penetration, oral penetration "as deep as he could go" -- these were particularly degrading.

The victims' legal incapacity compounded by the effects of stupefying substances shows a very callous disregard by D.M.V.'s for his victims and for the harms that he inflicted upon them. [ 72 ] Preplanning and premeditation is a common-law aggravating factor. D.M.V. went about his offending in a cunning and purposeful way. There is nothing impulsive or spur-of-the-moment about what he did. He set about with a deliberate plan to infiltrate the group of youth that included his victims who habitually hung out at the New Westminster SkyTrain station.

He insinuated his way into their midst to gradually built up a relationship with them by plying them with drugs. He characterized himself as a member of an organized crime group, and slowly and insidiously he brought them further and further under his influence. The word "grooming" is used in the psychological report, and the psychologist acknowledges that this pattern speaks to his having a higher risk of reoffending.

At any point along the way over the course of a two month period, he could have abandoned this project, but this was just business for D.M.V. and his victims were just commodities to be exploited both for his personal gratification and, he hoped, for profit. This is preplanning at a very high and sophisticated level and, as such, it is significantly aggravating. COUNSEL'S RECOMMENDATIONS [ 73 ] I turn to the recommendations of counsel with respect to sentence. [ 74 ] Crown counsel recommends as regards counts 2 and 4 -- those being the sexual interference offences -- two years each, and as to count 6, one year.

Crown counsel argues that all sentences should be consecutive, but then the global sentence should be reduced by one year to a total of four years to take account of the totality principle. To the extent that D.M.V. has spent time in custody awaiting sentencing, Crown acknowledges that his time served should be increased by a factor of 50 percent to give him time-and-a-half credit. [ 75 ] Crown counsel also recommends a period of probation of 18 to 24 months' duration, during which D.M.V. would be required to keep the peace and be of good behaviour, report, reside, take counselling and treatment.

There would be the obvious no contact, no-go elements. There would be constraints on his use of the SkyTrain. [ 76 ] By contrast, counsel for D.M.V. recommends, on count 2 and count 4 -- the sexual interference offences -- 15-month incarceration sentences concurrent with each other. Then, as to count 6, the communicating count: 16 months consecutive to counts 2 and 4, with time served credit at 1.5. He had no submissions to make with respect to probationary terms.

STATUTORY PURPOSES AND OBJECTIVES OF SENTENCING [ 77 ] I turn to the various dictates that govern the process of sentencing found at s. 718 and following of the Criminal Code . [ 78 ]

Section 718 states 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 and peaceful society by imposing just sanctions. I am mindful of that general purpose in sentencing D.M.V. [ 79 ] The objectives of sentencing specified in s. 718 include denunciation, which is the formal, emphatic expression of disapproval of the criminal behaviour of the offender. That is, a sentence must condemn. [ 80 ] Then there is deterrence, both specific and general. The sentence I impose on D.M.V. must make it less likely that he will commit offences of this kind in the future or eliminate that possibility altogether.

It also must send a message to the community at large that offences of this kind are treated seriously by the criminal justice system and that those who may be tempted to engage in such behaviours can expect meaningful consequences for their actions. [ 81 ] A sentence must, in proper circumstances, provide safety and security to society by separating the offender from society. [ 82 ] A sentence must make provision for the rehabilitation of the offender so that once the sentence has been served, changes will have been wrought in the character and the psychological makeup of the offender that improve the likelihood that the offender will carry on living in a law-abiding fashion thereafter and, as a result, not expose members of the community to future risks. [ 83 ] A sentence can make provision for reparations for harm done to the victims or the community.

A sentence must promote a sense of responsibility in offenders like D.M.V., plus an acknowledgement of the harm they have done to victims and society generally. [ 84 ]

Section 718.01 is important in this case because it provides that if a victim is under 18, the primary consideration given as regards sentencing objectives is given to the objectives of denunciation and deterrence, and I have that very clearly in mind in sentencing D.M.V. [ 85 ]

Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The circumstances of the offending here that I have gone to some trouble to describe reveal offences that are grave indeed. These offences were committed against young, at-risk and plainly vulnerable girls, in part to serve Mr. D.M.V.'s own unworthy urges, and in part to fuel the machinery of his half-million-dollar-a-year pornography business through the provision of child participants in online displays of sexual behaviour for paying customers.

The moral blameworthiness of D.M.V. in respect of theses offences is remarkably high. [ 86 ] I am mindful of the principle of restraint that is revealed in certain provisions of the Criminal Code . An offender must not be deprived of his or her liberty if less-restrictive sanctions may be appropriate in all the circumstances, and I am mindful of the principle of commonality, which provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

THE AUTHORITIES [ 87 ] I turn to the case law that has been presented to the court in respect of D.M.V.'s sentencing by Crown counsel and by defence counsel. Before specifically addressing those cases, I will make the observation -- which is almost a trite observation -- that, of course, every case is unique. Every offender is unique. Every set of circumstances bringing an offender before the court for sentencing is unique. There is no case law involving direct point-to-point correspondence to the case at bar to which I can turn for guidance.

I would say that this case is even more unique than most because of its most unusual facts. [ 88 ] So with respect to the s. 151 offences, the sexual interference offences, the case law seems to suggest a range starting at about 15 months at the low end to an upper end of three years or perhaps a little more. I take that from R. v. Lamb , 2013 BCCA 372 , from R. v. Aimee , 2010 BCSC 1463 , and R. v. Florence , 2010 BCSC 1010 . [ 89 ] In Lamb , the accused was in his mid-twenties, like D.M.V. There was one complainant in her early teens, like the complainants here.

The case involved internet luring and sexual interference, and drugs were a factor in Lamb , as is the case here. [ 90 ] One aggravating factor in Lamb is not present in the case at bar. Mr. Lamb had just been released after having committed a similar offence. But it is arguable that the case at bar displays other aggravating factors: the grooming; the predatory exploitation; the degradation; one of the offences occurring in a graveyard; the anal penetration; the oral penetration "as deep as he could go". And in Lamb , there were no implied threats.

So I say, looking at Lamb , a low end in the range of 15 months is probably low on these facts. [ 91 ] In R. v. Florence , the ages were similar in the sense that the offender was 24 and the victim was 15, and, as here, there was the administration of a stupefying substance, in that case alcohol, and then attacks committed while the victim was defenceless by reason of the ingestion of alcohol. Mr. Florence was sentenced to three years and four months of incarceration. Like D.M.V., Mr. Florence lacked insight, so he was at a higher risk to reoffend, as is D.M.V. But Mr.

Florence was aboriginal and had no record, both factors favouring lower sentences. [ 92 ] R. v. Aimee also involved a luring plus s. 151 sexual interference offence. The offender was 29 and the victims were 14 and 16. Mr. Aimee received three years each for the sexual interference offences there, although when combined with the luring and obstruction sentences and adjusted for totality, a global sentence of four years was the result. The offender in Aimee was considered to be a low risk to offend, and he had no record. D.M.V. cannot say either of those things. [ 93 ] With all respect to Mr.

Gawley, I found the defence cases that were presented for my consideration to be less helpful than those presented by the Crown. R. v. Bennett is a very early decision, unreported, so it can be cited to August 11th, 1993, Victoria Registry No. V101884. It involved vastly less serious sexual interference than the sexual interference committed by D.M.V. There was no intercourse, there was no degradation, there was no use of drugs. That case shares so little in common with the case at bar that I find not much in it to assist me in the present exercise. [ 94 ] R. v.

Craig , 2013 BCSC 2098 , too, is readily distinguishable. The offender there had no record, the offender there used no

alcohol or stupefying substances to subdue his victims and make them incapable of offering resistance. That offender was at a low risk to reoffend which not the case for D.M.V. There was no degradation. Degradation is a hallmark of D.M.V.'s offending. There was no overarching pattern of exploitative and predatory behaviour involving the grooming and cultivating that D.M.V. displayed. The offender in Craig took proactive steps to deal with his underlying issues; that is not the case with D.M.V. The court saw a range for an offender like Mr. Craig of 15 months to two years. He got 15 months.

This all simply reinforces my view that something substantially higher is appropriate in the case at bar. [ 95 ] R. v. B.C.L. , 2010 BCCA 183 , and R. v. Lennax , 2008 BCSC 1761 , involved offenders in a position of trust of varying kinds, and the dynamics in those cases were demonstrably very different from the dynamics in the case at bar. These were child exploitation cases and they involved offending that was odious, to be sure, but I accept Crown counsel's submission that these kinds of cases have little to offer the court in a case like this one. I agree with Mr.

Antonuk's "apples and oranges" submission in that regard. The parallels between those cases and the case at bar are simply too few. [ 96 ] Madam Justice Fisher, the sentencing judge in Aimee , took a similar view. Aimee is a case that does have parallels to the case at bar, and Lennax was cited to her Ladyship by the defence there, as it has been to me here. In that regard, Madam Justice Fisher said: I did not find Lennax very helpful, as the facts there were of a very different character than those in this case.

The accused was a daycare worker convicted of three counts of sexual touching of a six-year-old child in his care... [ 97 ] In Aimee , Madam Justice Fisher did, however, have recourse to Florence , as do I. Florence is a case closer on its facts to Aimee and to the case at bar, and I take much more from Florence of assistance to me than I can find in either B.C.L. or Lennax . [ 98 ] As regards the s. 212(4), communication for a sexual purpose offence, I have been provided with no authorities either by Crown counsel or by defence counsel.

I just say by way of reminder that this particular count relates to D.M.V.'s unsuccessful attempt to persuade two of the underage victims to perform sex acts for his video streaming website. Submissions were also very limited on this count. [ 99 ] I found a case called R. v. Johnson , 2008 SKQB 2004 -- a Saskatchewan Queen's Bench decision -- in which the accused entered a guilty plea to charges of possession of child pornography and obtaining for consideration the sexual services of a person under the age of 18 years, contrary to s. 212(4) of the Code .

The accused was 50 or so when he began taping his consensual albeit illegal sexual encounters with the then 14-year-old complainant. The accused had a related criminal record and the offences occurred over a considerable period of time. He was sentenced to three months' imprisonment on the possession charge, to be served consecutively to the nine-month sentence on the s. 212(4) charge.

In addition, on his release he was placed on probation for three years. [ 100 ] The Johnson case provides some guidance, although the minimum sentence of six months was not yet in place when Johnson was decided. [ 101 ] Crown recommends a year consecutive; defence recommends a 16-month sentence consecutive. Here, there were two victims, not one, which suggests a stiffer sentence. But I have not lost sight of the fact that both of the victims resisted and did not comply with D.M.V.'s unworthy wishes, which suggests perhaps a milder sentence is appropriate for the s. 212(4) offence.

SENTENCE [ 102 ] So I come now to the determination I have reached as to what the appropriate sentence is in the circumstances for all the counts to which D.M.V. has pleaded guilty. Before getting to that, I will ask counsel to tell me what actual time in custody has now been served so that I can make the appropriate adjustments to give credit for time served. [ 103 ] MR. GAWLEY: Your Honour, if I may. [ 104 ] THE COURT: It is 11:05.

I think perhaps what I will do is stand down for the morning break so that counsel can get their information together on time served and tell me what D.M.V. is entitled to by way of credit. I would also be interested to hear from counsel -- inasmuch as I am going to pass a global sentence on all three of these offences -- if counsel believe that the credit for time served should be allocated in part to each of the three offences. If they can do the math and tell me what they think should be allocated in that regard, I would find that helpful. So we will stand down for the morning break.

We will return at 11:20 to conclude the sentencing of D.M.V. [ 105 ] MR. FERGUSON: Thank you, Your Honour. [ 106 ] MS. MONTGOMERY: Thank you, Your Honour. (PROCEEDINGS ADJOURNED FOR MORNING RECESS) (PROCEEDINGS RECONVENED) [ 107 ] MS. MONTGOMERY: Shannon Montgomery for the provincial Crown. Recalling the D.M.V. matter. [ 108 ] THE COURT: Thank you. [ 109 ] MS. MONTGOMERY: My friend and I have discussed, and D.M.V. has been in custody since September 17th of 2013.

By my calculation, that is about one year, ten months and six days to this point, and so that's -- and at time and a half, that's 22 months and the six days, or so 33 months at time and a half overall, so that would be about two years, nine months and nine days that has been spent in custody, and that is the time-and-a-half credit.

[ 110 ] THE COURT: So it is 33 months and nine days? [ 111 ] MS. MONTGOMERY: Yes. And in the Crown's submission, the appropriate method to take would be to calculate a sentence for each of the three counts and then calculate a global number that has any totality principles applied to it, so any reduction taken, and then take the time served off of that -- [ 112 ] THE COURT: Off the global. [ 113 ] MS.

MONTGOMERY: -- rather than looking at each of the individual counts. [ 114 ] THE COURT: There is no need, then, to specifically allocate time served to particular counts that attract particular custodial sentences in the Crown's view? [ 115 ] MS. MONTGOMERY: Not in the Crown's submission, no. [ 116 ] THE COURT: Okay. Do you share that view, Mr. Ferguson? [ 117 ] MR. FERGUSON: We agree with my friend -- [ 118 ] THE COURT: Thank you. [ 119 ] MR. FERGUSON: -- and it should be taken off the global sentence. [ 120 ] THE COURT: I will just do a little bit of math here. Just bear with me. [ 121 ] All right.

Well, taking into consideration everything I have said to this point relating to the circumstances of the offences, the effects of the offences on the victims, the circumstances of the offender, the mitigating and aggravating factors to which I have made reference, the positions of counsel, the guidance that can be taken from the case law that was put before me and the case law that I ran down myself, the helpful contributions of the PSR writer, Stacy Russell, and the psychological assessment report writer, Dr.

Evan Lopez, I have come to the following conclusions with respect to the appropriate sentence to impose on D.M.V. [ 122 ] With respect to count 2, and this is the sexual interference count with respect to the victim A.O., I impose a custodial sentence upon D.M.V. of 28 months. [ 123 ] With respect to count 4 -- the sexual interference charge against D.M.V. with respect to the victim A.L. -- I impose a custodial sentence upon D.M.V. of 28 months consecutive to count 2. [ 124 ] With respect to count 6 -- the communication for the purpose of obtaining for consideration the sexual services of minors, those being A.L. and C.C. -- I impose a custodial sentence upon D.M.V. of 14 months consecutive to counts 2 and 4. [ 125 ] Added together, these custodial sentences for counts 2, 4 and 6 total 70 months in custody.

But having regard to the totality principle, I reduce that 70 months by 18 months, to yield a global sentence on all three counts -- that is, counts 2, 4 and 6 -- of 52 months; that is to say, four years and four months. [ 126 ] Now, counsel have confirmed to me that up to until today, the date of sentencing, D.M.V., on these charges, has spent 22 months and six days in custody. He is entitled at law to one-and-a-half-times credit for that time spent in custody awaiting sentencing, and that yields credit for time served at 33 months and nine days.

D.M.V.'s 52-month global sentence in this matter must accordingly be reduced to take account of credit for time served, and if we subtract that dead time for which he is entitled the credit -- that is to say, 33 months and nine days -- from the 52 months, we are left with 18 months and 22 days of additional time that D.M.V. must spend in custody to serve his sentence in full. [ 127 ] Then there is the issue of probation. D.M.V. will, following the conclusion of his time in custody pursuant to his custodial sentence, be placed on probation for a period of 24 months.

During the time he is on probation, he must keep the peace and be of good behaviour and report to court when required to do so. [ 128 ] D.M.V. must report forthwith upon his release from custody in person to a probation officer at number 103-80A Sixth Street, New Westminster, British Columbia, and thereafter as and when and where and in the manner directed by his probation officer. [ 129 ] D.M.V. must reside where directed by his probation officer and not change his residential address without first obtaining the written consent of his probation officer. [ 130 ] D.M.V. must enrol in, participate in and complete such counselling and treatment as his probation officer directs.

This counselling and treatment may include counselling and treatment respecting D.M.V.'s propensity to commit sexual offences against children, and counselling and treatment with respect to his use of illicit drugs.

This counselling and treatment may include counselling and treatment offered in a residential treatment facility. [ 131 ] Now, I do not have the real names of the victims and I will pronounce this order with respect to no contact and no-go elements using their initials in the knowledge and belief that when the order is drawn, the actual names will be inserted so that there can be no room for any doubt or confusion about what limitations govern. [ 132 ] D.M.V. must have no contact whatsoever, directly or indirectly, with A.O., A.L. or C.C., even with their consent. [ 133 ] D.M.V. must not be found within 50 metres of any residence, place of employment, place of education or place of habitual attendance known to him for any of A.O., A.L. or C.C.

[ 134 ] D.M.V. must not be found on the premises of any SkyTrain station. [ 135 ] By the end of the first year of his two-year period of probation, D.M.V. must complete 125 hours of community service to the satisfaction of his probation officer. [ 136 ] Now, I have not received submissions from either counsel on ancillary orders like, for example, the provision of DNA samples, SOIRA orders, and so forth. I wonder if counsel have come today prepared to make submissions in that regard, and if they need to stand down briefly so that they can gather their thoughts, I am content to do that. [ 137 ] MS.

MONTGOMERY: Your Honour, I can say I don't have any information from Mr. Antonuk as to his intentions with respect to those orders. I would suggest the Crown likely would be seeking those orders. [ 138 ] THE COURT: Well, hang on, I have a

summary of Mr. Antonuk's submissions. A DNA order and a SOIRA order for 20 years is what his

summary says that the Crown is asking for. I do not think I heard that from him, but I see it now in his written submissions. [ 139 ] MS. MONTGOMERY: Thank you, Your Honour. [ 140 ] THE COURT: I believe a DNA order in these circumstances is mandatory. Do you want to check that, please, Ms. Montgomery? [ 141 ] I will stand down briefly so counsel are -- [ 142 ] MS. MONTGOMERY: Thank you, Your Honour. [ 143 ] THE COURT: -- not feeling the pressure of me sitting here, and you can also confer with your learned friend and see if you are in agreement with each other on these last points. [ 144 ] MS.

MONTGOMERY: Thank you, Your Honour. [ 145 ] MR. FERGUSON: Thank you, Your Honour. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [ 146 ] MS. MONTGOMERY: Thank you, Your Honour. My friend and I have discussed, and are in agreement, that this is a primary designated offence as far as DNA is concerned. [ 147 ] I would like to raise the issue, as well, of whether a s. 109 firearms order is necessary.

Under sub (1)(a), it is mandatory for ten years for an indictable offence in the commission of which violence against a person was used, threatened or attempted and for which that person may be sentenced to imprisonment for ten years or more. It does seem -- [ 148 ] THE COURT: Sorry, I have just come to the

section now. [ 149 ] MS. MONTGOMERY: Yes. [ 150 ] THE COURT: What subsection are you relying on? [ 151 ] MS. MONTGOMERY: Section 109(1)(a). I know that Your Honour did characterize the event as involving some threats of violence or a spectre of violence with the young girls, so I did want to bring that to Your Honour's attention to see if that is a mandatory prohibition order in Your Honour's opinion in the circumstances. [ 152 ] THE COURT: Okay. So a mandatory DNA because it is a primary designated offence. You are asking for a SOIRA order for 20 years. [ 153 ] MS. MONTGOMERY: Yes, Your Honour. [ 154 ] THE COURT: And a s. 109(1)(

a) firearms prohibition. [ 155 ] MS. MONTGOMERY: Yes. And I believe on a first conviction of this sort, it is a ten-year mandatory and -- [ 156 ] THE COURT: I am sorry? [ 157 ] MS. MONTGOMERY: It is a ten-year mandatory -- [ 158 ] THE COURT: Yes. [ 159 ] MS. MONTGOMERY: -- for that s. 109. [ 160 ] THE COURT: Okay. Mr. Ferguson, do you have a position on Crown's recommendations? [ 161 ] MR. FERGUSON: Well, it's my understanding that the DNA order is mandatory. As I've said, I have no instructions from Mr.

Gawley on this particular matter and I'm not attuned to the nuances of this file aside from what Your Honour has put forth today in his reasons. Mr. Gawley's understanding was that there were no more submissions to be made by Crown or defence and that's why he sent

myself today, having no knowledge of the file. [ 162 ] THE COURT: Well, what Mr. Gawley will have received will have been the

summary of Crown's submissions that was prepared by Mr. Antonuk in which he says, in paragraph 6: In conclusion, the Crown seeks a sentence of four years minus time served at a rate of one to 1.5, a DNA order and a SOIRA order for 20 years. [ 163 ] So there is no mention there of the firearms provision, but I do not recall hearing anything from Mr. Gawley in opposition to any of those elements, and certainly if he took objection, I would have expected to have heard something from him.

It seems to me, then, in those circumstances, what needed to be said has been said as regards ancillary orders, SOIRA and DNA, but that leaves s. 109(1)(a), which, on your friend's submission, is mandatory in the circumstances of this case. On your reading of s. 109(1)(a), is this mandatory in this case? [ 164 ] MR. FERGUSON: Well, I would point to -- what I would think my submission would be on this, having not spoken to Mr. Gawley and I think he would agree, is that Your Honour has characterized the offences in a particular way.

This is a discretionary imposition of this ancillary order based on consideration of how the particular offence has been characterized, whether there was violence involved. So I think I would leave it at that and leave it in Your Honour's hands at Your Honour's discretion as to how Your Honour sees -- characterized the particular offences that D.M.V. has pled guilty to. [ 165 ] THE COURT: Certainly D.M.V. has been convicted of sexual interference offences for which the maximum term of imprisonment is ten years. So that satisfies one element of s. 109(1)(a).

I have said in my sentencing reasons that I consider that there were, in effect, threats of violence involved in the transactions between D.M.V. and his victims as a result of his reference to his claim to associations with the Hells Angels with organized crime. So certainly the characterization I have given to the evidence and the agreed facts placed before me would bring this matter within s. 109(1)(a). [ 166 ] So I am minded to impose the s. 109(1)(

a) ten-year firearms prohibition unless I hear something to suggest I ought not to. [ 167 ] MR. FERGUSON: I think it really depends on Your Honour's characterization of those offences, and you have found that there were threats, so... [ 168 ] THE COURT: Okay.

So I am making what I consider to be a mandatory prohibition order, firearms prohibition, under s. 109(1)(a), that being that for a period of ten years, D.M.V. is prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of ten years. [ 169 ] [ SOIRA ORDER] [ 170 ] There then remains to my understanding only one other matter, and that is the victim fine surcharge. [ 171 ] MS. MONTGOMERY: The Crown has no submissions, Your Honour, with respect to the -- [ 172 ] THE COURT: Mr.

Ferguson? [ 173 ] MR. FERGUSON: No submissions. It's my understanding that Your Honour is bound by the Code to impose it. I will just say I'm not attuned to D.M.V.'s ability to pay at this point. [ 174 ] THE COURT: Well, we know that until not so long ago, he had a $500,000 a year porn business functioning. I expect that it is within his ability to pay. Ms. Montgomery, what is the outside limit in terms of time to pay? [ 175 ] MS. MONTGOMERY: I know that many different judges take a different view on that matter. [ 176 ] THE COURT: Well, I think that is proscribed under the Regulations . [ 177 ] MS.

MONTGOMERY: Yes, the -- [ 178 ] THE COURT: There is a limit of some number of months, and I am hoping you will be able to remind me of what it is. [ 179 ] MS. MONTGOMERY: I believe it may be two months, but that could just be for

summary offences. I'm not sure if it's a different number for indictable offences. And that is, of course, from the time that the person is released from custody. [ 180 ] THE COURT: Well, D.M.V. has generated substantial wealth from his activities prior to going into custody. I do not believe a case can be made that it would impose any particular hardship upon him to require him to pay that swiftly. I will order that the victim fine surcharge be paid by August 31st of 2015. [ 181 ] Do counsel have any further matters for me to consider or to address? [ 182 ] MS.

MONTGOMERY: No, Your Honour, not with respect to D.M.V. The Crown will also order stays of proceeding on the outstanding counts, Your Honour. [ 183 ] THE COURT: Okay. So just so the record is clear, the Crown is staying proceedings on counts 1, 3, 5, 7 and 8 of Information 77282-2C, is that right? [ 184 ] MS. MONTGOMERY: That's correct, Your Honour. Thank you.

(ORAL REASONS FOR SENTENCE CONCLUDED)