R. v. S.M. Date:, 2014 BCPC 363

Citation: R. v. S.M. Date: 20141215 2014 BCPC 0363 File No: 78197-3C Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S.M. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE B.G. HOY Ban on Publication:

Section 486.4(2) CCC Ban on Publication:

Section 490.011(2(

b) CCC The above

section is quoted on the Order to comply with Sex Offender Information Registration Act (under the actual

Section 490.011(1) Counsel for the Crown: T. Shaw Counsel for the Accused: J. Reveley Place of Hearing: Abbotsford , B.C.

Dates of Hearing: October 24, November 28, Date of Sentence: December 15, 2014 [ 1 ] THE COURT : The issue posed in this Charter challenge is whether the capping of pre-sentence custody at a rate of 1.5-to- one, pursuant to the Truth in Sentencing Act , TISA , violates s. 11(

i) of the Charter given the dates of the offences. The Crown concedes that with respect to Count 3, none of the acts complained of were committed after February 20th, 2010, the date the TISA came into force. [ 2 ]

Section 11(

i) of the Charter reads as follows: 11. Any person charged with an offence has the right (

i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing to the benefit of the lesser punishment. [ 3 ] Prior to the TISA there was no legislative framework governing the computation of pre-sentence custody time. This was left to the discretion of the court.

In that process many variables were weighed, including the reasons for the delay, the type of custody, and the availability and access to rehabilitative resources. [ 4 ] For the defendant, he has been in custody since November 1st, 2012 when he was arrested in New Brunswick. He arrived at North Fraser Pre-Trial Centre on November 7th and consented to his detention on December 6th, 2012. He has now been in custody for about 25 months.

Of that time period, approximately seven months was spent in segregation, largely due to the nature of his offences which included sex assaults, and his concern over his personal safety because of threats from other inmates. He had been assaulted on one occasion. His placement in segregation was at his behest. [ 5 ] Part of the delay to this date was a change in counsel on May 7th, 2013. By August 27th, present counsel confirmed he was acting on behalf of the defendant. A month later a focused preliminary hearing was scheduled for May 2014. Next, re-elections occurred and guilty pleas were entered.

A hearing was held over two days to determine the facts of the plea, which concluded on June 27th, 2014. Following this, the Charter issue was set for hearing which finalized on November 28th, 2014. Throughout his pre- sentence custody he has had access to and successfully completed several life-skill courses and has received skill-based training in tailoring. [ 6 ] Section 719(3) of the Code allows for pre-trial detention to be assessed on a ratio of one-to-one.

Subsection (3.1) increases this to a maximum of 1.5-to-one if the circumstances justify such an enhancement. [ 7 ] The defence submits that this has altered the sentencing regime such that s. 11(

i) of the Charter is invoked as past practice would allow for a wide range of dead-time assessment which included credit exceeding 1.5-to-one. [ 8 ] The Crown has submitted that before a Charter challenge can be considered, one must first determine whether the impugned provision is one that attracts Charter scrutiny in the first place. In support, R. v. Lloyd , 2014 BCCA 224 was referred to. It dealt with the question of whether the mandatory minimum of one-year incarceration for a repeat offender of the offence of possession for the purposes of trafficking was constitutional.

Groberman, J.A. noted at paragraph 42 these words: The fact that a party has standing to make a constitutional argument [however] does not compel a court to rule on that argument. There is a general (though not invariable) principle that courts avoid making constitutional pronouncements when cases can be decided on less esoteric bases.

Adding to this at paragraph 44 the court stated: Before embarking on the constitutional inquiry, therefore, the court should consider whether the impugned provision would have any effect on the sentence to be imposed. [ 9 ] The court focused on whether the sentence that had been imposed of one year was fit. They noted that given the range of sentences on an offender with a profile of the type possessed by Lloyd, 18 months' incarceration was determined to be appropriate, rather than one year.

It was concluded after a review of the sentencing authorities the minimum sentence mandated by the amendment to the Code did not alter the jurisprudence of the low-end range of sentencing of a year to 18 months; thus the mandatory minimum of one year had no impact on the sentence the defendant received. [ 10 ] The same type of reasoning can be applied to the defendant. I do not find that the TISA changes any punishment that might be imposed; all it has done is set out the legislative limits for pre-sentence detention which had previously been left to the discretion of the court.

Furthermore, there has been no variation in the type of sentence he might otherwise receive, for an assessment of pre-sentence detention has never been a sentencing factor affecting the duration of an appropriate term of incarceration. [ 11 ] In the circumstances, I find it unnecessary to embark upon a determination of the Charter question. [ 12 ] Turning next to sentencing, the defendant has pled guilty to three counts of sexual assault upon two girls, S.S.B. and J.M.F., and one assault with a weapon on a boy, J.P.F. [ 13 ] In the course of this hearing there was an agreed statement of facts relating to S.S.B.

Evidence was called to determine the nature of the sexual conduct relating to J.M.F. As matters evolved, the facts relating to J.P.F. were different from the agreed statement of facts. No evidence was called on this count, other than what was related to this court of the incident by the defendant as against J.P.F.,

and given the conflict, it is the only evidence that this court relies upon. [ 14 ] S.S.B. was nine years old when the offence first occurred in 2006 and they continued until she was the age of 13 in 2010. They involved the defendant touching her vaginal area, buttocks and her chest. He would frequently be naked and would masturbate as he touched her. He had her rub her own vaginal area. These incidents occurred multiple times. Some of his conduct was as frequent as once every one to two weeks, and was persistent in his pattern as he touched her after her showers.

There was no digital or penile penetration. [ 15 ] J.M.F. is now 33 years old and gave evidence. I have already made my finding of facts and as such I do not intend to review them in any depth or detail at this stage. I note that the defendant acknowledged sexually touching her three times as she came out of the bath. J.M.F. recalls she was then about five or six years old. From my findings of fact, there are three more incidents. The years over which they occurred were until she was approximately 11. In one he had her wear her mother's two-piece teddy. As he lay naked, he directed her to masturbate him.

In another she had returned home from school to change her clothing as she had soiled them from diarrhoea. He asked why she was not at school, demanded that she come to the couch, had her drop her pants and then digitally penetrated her. He stated to her not to say anything, otherwise he would hurt her mother and brother. In another incident after an argument over snacks, he came into the bedroom, opened his robe and attempted to put his penis in her mouth, saying that this was her snack. [ 16 ] For J.P.F., he is the brother to J.M.F., the assault had occurred when he was six years old.

He had spanked him on his bare buttocks with a belt that had left a welt. What precipitated this was a loss of his temper when J.P.F. lit candles on a television. [ 17 ] His involvement with these children came about as a result of his relationship with their respective mothers. For S.S.B., he was with her mother for 14 years. They commenced their relationship in 1995. She had two children from a prior union and together they have one child, a son, who is now 11 years old. As for J.M.F. and J.P.F., they lived with the defendant and their mother for three years.

There was a gap of about three to four years between these two relationships. [ 18 ] Historically, by his first spouse of 12 years, there are two children. The defendant currently is 62 years old. His criminal record shows one prior conviction from 1989 for assault where he received a conditional discharge. [ 19 ] In attempting to understand why these offences had occurred, the defendant explained, through the PSR and the psychological reports, that he was angry at these respective women for their infidelity. He used these children as the median through which to express his anger.

He otherwise denies any sexual attraction to children. Furthermore, while denying that he has an addiction issue, he stated he was drunk every time he touched one of the children. [ 20 ] It is of interest to note the observations of the psychologist at page 9 where he analysis this with these words: His actions and arousal are inconsistent with this explanation. He goes on to also state this: There is little doubt that he is sorry for his actions, however, he presents a lack of insight and requires a deeper understanding of his motives and likely deviant pattern of arousal.

Of note, the psychological report concludes that his likelihood of recidivism is low, but would become higher if he is in a set of circumstances where he has access to children without accountability. [ 21 ] Looking to other aspects of the defendant's background, he was molested when he was ten years old by his 17-year-old babysitter. While he notes he had a happy childhood, he also describes family violence when, as a teenager, he witnessed the aftermath of an assault by his father upon his mother.

It is from this experience, he says, he knows what it is like to be a victim, and with that in mind he expresses his remorse for these offences through his guilty pleas. [ 22 ] While in custody he has successfully completed all 18 modules of life-skills courses. He is currently pursuing other programs offered by the remand centre.

He has also availed himself of a course on sewing and now works in the tailor shop where he teaches others his new skills. [ 23 ] He has some health issues related to high blood pressure and diabetes for which he takes medication. [ 24 ] One unusual aspect that the defence submitted in mitigation was that the offences against S.S.B. would not have occurred if the complaint made by J.M.F. in 1992 had been properly investigated. This peculiar part of the circumstances does establish that J.M.F.'s statement to the police was misplaced.

For whatever reason, the investigation was not further pursued until J.M.F. made a complaint again of recent date. I do not agree with the view of the defence that this lapse would necessarily result in an outcome as the defence suggests. It is mere conjecture which this court will not speculate upon. [ 25 ] As I consider these circumstances, counsel have referred me to various authorities. As has been stated on numerous occasions, sentencing is a very case-specific process bearing in mind the sentencing provisions of the Criminal Code and circumstances of the offence and the offender.

In this process I am also mindful that these offences span several years during which the Code provisions have changed over time. There have been shifts in the types of penalties that might be imposed. Denunciation and deterrence are now codified as the primary considerations for offences of abuse against children. Abuse of trust has also been deemed to be an aggravating circumstance. [ 26 ] The authorities referred to by counsel are R. v. D.L.W. 2014 BSSC 43, R. v. K.V.E. 2013 BCCA 521 , R. v. Berry 2014 BCCA 7 , R. v. W.J.S. BCPC 450, R. v. J.R. 2009 BCPC 200 , R. v. D.C.E. 2012 BCPC 491 , R. v.

R.N.S. 2000 SCC 7 , R. v. R.O.A. 2007 BCSC 525 , R. v. S.K.A. 2004 BCPC 586 , R. v. Wright 2011 BCPC 350 , and R. v. Shaw 2005 BCCA 485 . [ 27 ] For the defendant, he bears a high degree of culpability. There are two distinct time periods when he offended against his two stepdaughters. For J.M.F. it was for about five to six years; For S.S.B. it was about four years. This is a protracted period of time. It is

plain he abused his position of trust as their stepfather to sexually intrude into their lives. He did so on the pretext of helping them with their bathing, or would otherwise touch them in circumstances where he created for himself the opportunity for his sexualized misconduct. His interaction with J.M.F. at times was planned, as demonstrated by the incident where he had her wear the teddy. His conduct of digital penetration and his attempt to put his penis in J.M.F.'s mouth are aggravating features of his offending. There is as well the fact that he had sought silence from J.M.F. through threats of violence.

As a final note of his pattern of offending, his frequency was accelerating with S.S.B. [ 28 ] It is acknowledged that through his guilty pleas, his personal statements to the court, to the psychologist and to the probation officer, his expressions of remorse are heartfelt. He is sorry for his conduct. As a point of interest, I am uncertain if that sorrow relates to a genuine understanding of the extreme pain and confusion he has put these victims and their family through, plus the destruction and abuse of the trust they gave him, or if it is his personal loss of contact with his three biological children.

He describes in the PSR a very close, loving relationship with his three children. For his two older children, they have withdrawn from him due to these offences. As for his 11-year-old son, there is a no-contact order in place. [ 29 ] As noted, the psychologist was also of the opinion that he seems not to have real insight into his offending. Furthermore, the psychologist's view that there are likely deviant patterns of arousal is an opinion this court shares.

There is the observation by the probation officer that the defendant seems to justify his offending behaviour by blaming his alcohol consumption as a primary contributor for his conduct, yet at the same time he denies having addiction concerns. [ 30 ] Upon the totality of the circumstances, denunciation and deterrence are at the forefront in sentencing. Aggravating the set of circumstances is his abuse of his position of trust. These are not isolated incidents, but rather protracted periods of time of sexually intruding into the lives of two young girls at a very vulnerable time in their lives.

There is evidence that points to an acceleration of his offending patterns. [ 31 ] The sentence imposed is a global one of five years. As between the various counts and prior to credit for dead time, they are as follows: Count 1, two-and-a-half years; Count 2 and 3, two-and-a-half years concurrent to each other but consecutive; and Count 4, the assault, 45 days concurrent. [ 32 ] I will allow pre-sentence credit at the rate of 1.5 to 1. He has been in custody since November 1st, 2012. In the result, his credit time to this date of sentence equals 1,161 days.

The new time yet to be served is 664 days. [ 33 ] The other orders made are as follows: I make an order that a sample of his DNA be provided with respect to Counts 1, 2 and 3 pursuant to s. 487.051(1). It is a primary designated offence. [ 34 ] I also make a SOIRA order pursuant to s. 490.013(2)(

b) for 20 years. [ 35 ] All right. Thank you. That concludes sentencing. [ 36 ] MR. REVELEY: Thank you, Your Honour. [ 37 ] MR. SHAW: I wasn't the Crown at the original sentencing, so I apologize if I'm stating things that shouldn't be stated, but there was a firearms count as I understand it, mandatory, a firearms prohibition mandatory on s. 109. [ 38 ] THE COURT: Right. I have neglected that and I should include that. [ 39 ] MR.

SHAW: And that would be number 4 for ten years, and then there were discretionary counts which would also be of ten years for the other Counts 1, 2, and 3, but 4 would be mandatory. [ 40 ] THE COURT: Yes. And thank you for reminding me of that. [ 41 ] MR. SHAW: Sometimes it gets missed. And the other issue was s. 161 is a discretionary, sometimes called a "parks and pools" order, and that again is left up to the court, and it would be for ten years if it were appropriate. [ 42 ] THE COURT: Yes. That would be appropriate in the circumstances, and I am going to make that order. [ 43 ] MR.

SHAW: And finally, and I apologize again, I wasn't the original Crown, so I'm mis-stepping I apologize to you, but as I understand there are 664 days remaining? [ 44 ] THE COURT: Yes. [ 45 ] MR. SHAW: And that would allow therefore for a period of probation to be attached in -- I have a list from my colleague of terms that would attach to that were it appropriate. And I -- there had been some dialogue with the defence as to what those terms could be had they been appropriate, but we weren't sure because we weren't sure how the end -- sentence calculation would end up.

So I'm happy to put those suggested terms to the court, particularly in light of the finding that there is a greater risk of recidivism where there is access to children. [ 46 ] THE COURT: Well, I am certainly prepared to listen to further submissions on that point. (SUBMISSIONS BY COUNSEL) [ 47 ] THE COURT: Proceeding with the terms of a probation order, the term will be for two years. The conditions are these: Keep the peace and be of good behaviour.

Upon your release report in person to a probation officer forthwith, thereafter as directed. [ 48 ] You shall provide your address to your probation officer and not to change your address without his or her prior approval

[ 49 ] No contact, direct or indirect, with S.S.B, J.M.F., J.P.F, or their immediate families. [ 50 ] No contact, direct or indirect, with any person under the age of 16, except in the presence of a person approved of by your probation officer. [ 51 ] You must attend and successfully complete such counselling or programs as directed by your probation officer. [ 52 ] Further, you must not be in a relationship with any woman with children under the age of 16 unless you have forthwith advised such person of this conviction, and that you shall forthwith advise your probation officer of any such relationship. [ 53 ] And those would be the terms of this order.

I have reflected on the other ones that counsel of commented on such as the non- consumption and so forth, and I am not going to deal with that in the terms of this probation order. I will leave that with probation to deal with as they address various rehabilitative elements dealing with addiction concerns. [ 54 ] I have had, on reflection, and while I indicated earlier that a 161 order should go, given the content of this probation order I have decided not to impose a 161 order. [ 55 ] MR. SHAW: Thank you. [ 56 ] THE COURT: The only other matter I wondered about were the surcharges.

I do not know whether that applies in this instance, or not? [ 57 ] MR. REVELEY: I could sate for Your Honour that they're certainly prior to the -- becoming mandatory, and considering is S.M.’s inability to pay, certainly presently, I'd ask it be waived. [ 58 ] THE COURT: Yes, they probably do not apply, given the offence dates. I was just going to say, if it does, I do not think it does, but if it does, for each of the respective counts I will note that any surcharge to be paid, to paid forthwith, on each count one day running concurrent to each other and concurrent to the sentence I have imposed.

If it applies. B.G. HOY Provincial Court Judge