R. v. J.W.C. Date:, 2015 BCPC 88

Citation: R. v. J.W.C. Date: 20150121 2015 BCPC 0088 File No: 78344-1, 79105-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.W.C. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY BAN ON PUBLICATION 486.4(2) CCC RESTRICTED ACCESS Counsel for the Crown: C.D. Hagen Counsel for the Defendant: P.A. Gibb Place of Hearing: Nanaimo , B.C.

Date of Hearing: January 21, 2015 Date of Judgment: January 21, 2015 Introduction [ 1 ] THE COURT (orally): J.W.C has pleaded guilty to an allegation on an indictment that on or about the 29th of October 2013, at or near Nanaimo, in the Province of British Columbia, he did sexually assault S.F.S., contrary to s. 271 of the Code . [ 2 ] He has also entered a plea of guilty to an allegation on a separate information that on or about the 7th of June 2014, that he did commit theft of a credit card, the property of Claude Ricard, of a value not in excess of $5,000; that is contrary to s. 334 (

b) of the Criminal Code . [ 3 ] J.W.C. is before me for the purposes of sentencing on these matters. [ 4 ] The matter relating to the sexual assault of the named complainant, S.F.S., is, of course, the more serious of the two offences.

I will spend a great deal of my time in terms of outlining the sentence on that matter and then at the end deal with the admitted allegation of the credit card theft. [ 5 ] For the purposes of these reasons for judgment, I shall refer to J.W.C as the "Offender" and I will refer to the named complainant, S.F.S., as the "Victim." Circumstances of the Sexual Assault Offence [ 6 ] Crown has outlined the circumstances with respect to this first matter. Those circumstances have been laid out in considerable detail.

No issue is taken with respect to those circumstances as it relates to the allegations of the sexual assault. Accordingly, I find those circumstances to be the facts in this matter, and they are sufficient to support a plea of guilty to the allegation of the sexual assault. [ 7 ] I will briefly summarize those circumstances as explained by Crown. [ 8 ] The Victim in this case at the time of the alleged offence was 15 years of age. She was the stepdaughter of the Offender. She and her family, including her mother, had resided with the Offender for approximately a period of five years.

The Offender stood in a position of trust with respect to the Victim insofar as she considered him to be a father, and he considered himself to be the stepfather of the Victim. [ 9 ] The Victim disclosed on or about October 29, 2013, that she had been sexually assaulted by the Offender.

This disclosure was made to a school counsellor and also to an educational assistant at the Victim's high school where she was in grade 10. [ 10 ] The offence circumstances as revealed both in the disclosure by the Victim to the school officials as well as to the police indicate that the Offender called the Victim into the living room of the apartment which she shared with her family and the Offender. She was awakened by the call. She was instructed by the Offender that she could sleep on the couch located in the living room area. He had her lay down on her side.

At the time of entering into the living room, she was wearing her pyjamas, underpants, a t-shirt, and a brassiere. [ 11 ] The Offender turned off the lights and then told the Victim that she was to move over. They lay together in a spooning position, at which point the Offender commenced to rub the breasts of the Victim under her clothing. He asked her if she liked that, and she replied that she did not feel comfortable. Accordingly, he stopped rubbing her breasts but then proceeded to start rubbing her vagina.

He pulled down the pyjama bottoms and underpants of the Victim and at that point inserted two fingers into her vagina. It was indicated by Crown that the rubbing continued for approximately 10 minutes, at which point the Offender stopped, shouted an expletive, and then told the Victim to pull up her pants and to go to bed. He then went outside. [ 12 ] The Victim, in her statement to the officials, indicated that she was fearful of the Offender, and she was afraid that he was going to rape her. She also indicated that nothing like this had ever occurred before, prior to the offence.

She had never been fearful of and, in fact, had, from what I understand, a close relationship with the Offender. [ 13 ] The information is incomplete with respect to the Victim. No victim impact statement was obtained. There was some resistance, and I would say reluctance, on the part of the mother to permit her daughter to be questioned further. However, the indication from Crown is that there are some developmental delays on the part of the Victim. Although in grade 10 and approximately aged 15 at the time of the offence, she functions at a chronological equivalent of seven or eight years younger.

However, it also appears that she is physically mature. [ 14 ] When she was examined at the local hospital later in the evening of the day that she disclosed the offence, there were no visible injuries. However, the Victim complained of pain in her vaginal area as a result of the offence. [ 15 ] Those circumstances are not challenged; it is clear from the circumstances that there has been considerable emotional harm rendered on the child victim in this case. That is certainly not at issue and from my understanding, I expect is fully conceded in the submissions I have heard from defence.

There is no doubt that the relationship involving the Offender within the family of the Victim has totally deteriorated, and the suggestion has been made that the family has moved from this area and therefore is no longer resident within the Nanaimo area. Circumstances of the Offender [ 16 ] The Offender in this case has been the subject of a pre-sentence report. That pre-sentence report was completed on November

25, 2014, by Justin Olson, a probation officer with the Nanaimo Corrections office. It is a complete report which details a number of aspects of the life of the Offender. What is missing from the pre-report and apparently was overlooked was the completion of something in the nature of a psychological assessment of the Offender, in order to deal with his risk at reoffending in matters of this nature.

However, notwithstanding the absence of that psychological assessment component, the pre-report is a useful report and to which I will make further reference. [ 17 ] The pre-report does confirm that the Offender has had other families in his life and has been in other domestic relationships, over a number of years. In those relationships, he has himself been the natural father of two children who are presently aged 23 and 21. He has, of course, also been in other relationships, including the relationship of which the Victim is a stepdaughter. That relationship had been one subject of some challenges.

Many of these challenges related to alcohol issues from which the Offender suffered.

Both in submissions received from defence counsel as well as described in the pre-sentence report, there is an indication that the Offender acknowledged his issue with alcohol and to the author of the report described himself as "a weekend drunk." [ 18 ] There was at one time a significant addiction to drugs, including cocaine, when the Offender was between the ages of 20 and 30, but apparently he has not been utilizing drugs such as cocaine for a significant period of time; however, he apparently still partakes of the use of marihuana. [ 19 ] At the time of the offence, the Offender self-reports that he was not under the influence of alcohol on the night in question. [ 20 ] The Offender made statements to the police, having been questioned fairly shortly after the alleged offence took place.

He expressed remorse. He took responsibility. He appeared to have some insight as to the offences that had occurred. He wrote two letters, by way of short notes, to the Victim in and around the time that he was being questioned by the police and had given a warned statement. In the letters to the Victim, he expressed remorse and accepted responsibility. [ 21 ] That theme is also contained within the pre-sentence report.

The pre-sentence report, under the heading "Attitude and Understanding Regarding Offence," states as follows [as read in]: Generally, his recollection of events is consistent with the police report. Subject stated he pled guilty because he sexually assaulted his stepdaughter. At the time of the offence, he admitted he was sexually attracted to his stepdaughter. When asked how he feels about the offence, [the Offender] stated, "I feel sickened by myself. I feel low and have regrets" and "It won't happen again." Further, he stated, "I ruined [the Victim's] life and her whole family.

I feel so bad for what I did to her." Subject says he needs to face what he did and take responsibility. He sees a need for sex offender programming and is willing to take such counselling. [ 22 ] The pre-sentence report also confirms that the Offender has, since the incidents leading to these charges, continued to reside in the Nanaimo area with his mother and her youngest, blind son. The Offender has been offering assistance with the care of his mother and the youngest son who is described as "legally blind". [ 23 ] The Offender has completed his grade 10, but he dropped out of school.

He did not obtain his high school diploma or equivalency, but he did eventually get his GED and then fairly recently completed an administrative assistant program at a local business college during which he incurred student loans in the amount of $14,000. [ 24 ] He has had a pattern of short-term employment at various labouring jobs.

However, he has been unemployed for the last year and a half while assisting his mother who suffers from chronic obstructive pulmonary disease and of course looking after his legally blind brother. [ 25 ] Under the heading of "Behaviour/Emotional Status," in the report there is a candid admission by the Offender when he describes himself in the following terms [as read in]: He described himself as being heterosexual and he is attracted to both adolescent and adult women. [ 26 ] He self-reports good physical health and no serious illnesses or injuries and reports good mental health. [ 27 ] The Offender does have a criminal record.

It is very dated. The most recent offences date back to 1990 and 1997, one being a theft under $1,000 in October of 1990 for which he received a six-month jail sentence and six months' probation, and then in 1997, in the month of November of that year, he was convicted of possession of a narcotic for the purposes of trafficking for which he received a $1,000 fine and two years' probation. [ 28 ] There are no similar or relevant convictions to the sexual assault matter that is presently before me. Position of Crown on Sentencing [ 29 ] The Crown seeks a custodial sentence.

There is a mandatory minimum sentence that is required under s. 271 of the Criminal Code , which reads as follows: 271. Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding 10 years and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of one year; or (

b) an offence punishable on

summary conviction and is liable to imprisonment for a term not exceeding 18 months and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of 90 days.

[ 30 ] In this case, Crown has proceeded by indictment, and accordingly, the provisions of s. 271 (

a) are apposite. [ 31 ] Crown submits that a fit sentence in this matter would be one year to 15 months of incarceration, which Crown indicates places their suggested sentence at the lower end of the range. With respect to further provisions of any sentence, Crown is recommending a two-year probation order with specific terms. Also Crowns is seeking a number of other orders, including mandatory orders flowing from an offence of this nature, which would include a SOIRA order. Authorities Relied Upon By Crown [ 32 ] The Crown has relied upon and referred me to a number of decisions.

I will briefly summarize those decisions, first of all by listing them as follows: R. v. H.K. , 2014 MBQB 18 , a decision of the Manitoba Court of Queen's Bench; R. v. Rennie , 2013 BCSC 909 , a decision of the British Columbia Supreme Court; R. v. D.B.D. , [2012] B.C.J. No. 1904 , a decision of the Provincial Court of British Columbia; R. v. Humchitt , 2011 BCPC 391 , again a decision of the Provincial Court of British Columbia. Crown has also referred me to two fairly recent decisions of the British Columbia Court of Appeal. The first one is R. v. D.R.W. , 2012 BCCA 454 , and the second case is R. v.

Rich , 2014 BCCA 24 . [ 33 ] The R. v. H.K. case is not binding upon me but is instructive insofar as it deals with an offence and circumstances not highly dissimilar to those before me. In the R. v. H.K. case, the accused was 38 years of age and had no prior convictions. He was convicted of sexual interference with a complainant who was aged 14 at the time and was the accused's niece. The surrounding circumstances of the offence occurred on two occasions: first was when the accused squeezed the breasts of his niece and brushed his hand across her pubic area.

A second offence took place a week later when he encountered the complainant in the laundry room while she was wearing a housecoat and he asked her to remove it, and she complied, while at the same time the accused commented on the victim's breasts. [ 34 ] The court in R. v. H.K. reviewed a number of cases and at the conclusion of the case observed that the range for sentences for this type of offence was 90 days to 27 months and accordingly upheld the one-year sentence and two years of probation that were imposed upon the accused in that case.

The court took some time to review a number of cases which are specifically referred to at paragraph 16. Those cases, a number of them arising out of the Alberta Court of Appeal, can be briefly described in the following terms: R. v. M.G.F. , 2010 ABCA 102 , in which the Alberta Court of Appeal upheld an 18-month sentence for sexual interference with a 10-year-old stepdaughter by an accused. The accused in that case was a first offender, but he admitted that there had been prior incidents.

The sexual interference consisted of rubbing the vagina of the victim over her clothes. [ 35 ] The next case referred to is R. v. C.P.S. , 2010 ABCA 313 . There, the accused was living with the mother of the eight-year-old complainant. Again, it was a case of sexual interference and touching of the complainant's genital areas on two occasions. There was an aggravating factor insofar as the accused in that case spanked the complainant when she objected to being touched and warned her not to tell anyone.

The Court of Appeal increased the sentence of three months to 27 months' duration. [ 36 ] The next case referred to is R. v. Johnson , 2010 ABCA 287 . The victim in that case was 14 years of age. The accused in that case touched the complainant, putting his hands down the front of her pants while they were seated beside each other on the bus. The Court of Appeal found the actions to be predatory and deliberate and increased the sentence of 90 days to 12 months. [ 37 ] The final case referred to by the Manitoba Court of Queen's Bench was that of R. v. F.M. , 2009 ONCA 485 .

There, the court sentenced the accused to 17 months for sexual interference with respect to a seven-year-old neighbour. The sexual interference was occasioned when the accused pulled down the victim's pants and performed cunnilingus on her. [ 38 ] In R. v. H.K. , the Manitoba Court of Queen's Bench makes the following observations at paragraph 20: [20] The above cases illustrate a range of 90 days to 27 months for the offence before the court. While 18 months is the maximum term available in this case, as Solowan , supra [see R. v.

Solowan , 2008 SCC 62 ], explains, the fact that the Crown proceeded summarily here does not mean the sentence should be scaled down. Of course, one may search the facts of each of the above cases and find both similarities and differences with the case at bar. Nevertheless the cases show that the sentence imposed here is not a "substantial and marked departure" from sentences imposed for similar offences and similar offenders. Rather, it is within the appropriate range. [21] The Code makes a term of incarceration mandatory for this offence.

While the term imposed here may not have been the sentence that I would have imposed if I were sitting as a trial court; sitting as an appellate court, absent an error in principle, it is not one with which I can interfere. [ 39 ] The other cases noted above and relied upon by Crown, include the R. v. Rennie decision wherein a sentence of two consecutive 11-month terms of incarceration were imposed for sexual interference with a five- and a six-year-old child who were the children of a woman with whom the accused in that case was living at the time of the offence. [ 40 ] Another decision, R. v.

D.B.D. , is a case decided before the mandatory minimum provisions; that case involved an 11-year-old child who was victimized with the result being that there was a sentence of nine months imposed for sexual touching. [ 41 ] The last case, R. v. Humchitt , again decided prior to the mandatory minimum provisions, resulted in a six-month jail sentence for the sexual interference of the child victim in that case. [ 42 ] The two decisions also referred to me by Crown, namely, R. v. D.R.W. and R. v. Rich , are instructive for some of the guidance they provide when dealing with matters of this nature.

The facts in the D.R.W. case are not particularly similar in nature to the matter before me, but I note that Madam Justice Saunders states the following at paragraph 41. After observing that the offence could not be dealt with on the basis of there having been penetration or sexual intercourse, she then notes as follows: Nonetheless, in my view, the behaviour in the instant case is egregious. The rather clinical descriptions of the behaviour which is admitted, to some degree, mask the forbidden nature of Mr. D.R.W.'s actions, and his admitted knowledge, from the beginning, that his behaviour was wrong.

I would go so far as to say the fact, or not, of penetration is not really the measure of the offence, and what is in

issue in a case involving a breach of the trust at the heart of the child-parent relationship is the extent to which that relationship was violated, the duration of that violation, and the offender's appreciation of that violation as the behaviour continued. We are here concerned with the offence of sexual assault, which is a generic offence that may apply in respect to a complainant of any age, over-laid with the abuse inherent in the youth of the complainant, over-laid with the breach of trust in the family relationship. [ 43 ] Again in R. v. Rich it involved a young victim of 14 years of age.

The offender had a minor criminal record but was assessed as being low risk. A sentence of two and one-half years' imprisonment was imposed by the trial court, and that was upheld to be a fit sentence. In the court's analysis, Justice Groberman makes the following observations at paragraph 15: [15] I would reject the contention that the sentence is unfit. The accused's offence was a very serious one. The fact that the accused was the victim's father is a particular aggravating factor. The accused breached his position of trust, and took advantage of his child's vulnerability for his own purposes.

He ought to have been protecting his daughter; instead he was taking advantage of her. The offence occurred over an extended period, and only ended when the victim ran away from home. [16] The accused had not, at the time of sentencing, taken responsibility for his wrongdoing, instead minimizing it.

He did not have insight into his distorted attitudes ... [18] I also agree with the Crown's observation that "as society becomes more aware of the impact of sexual abuse on children, there has been an escalation in the severity of sentences imposed where children are the victims of sexual offences", a proposition for which the Crown cites R. v. Allen , 2012 BCCA 377 at para. 57 . . . Position of the Offender on Sentencing [ 44 ] The sentencing position adopted by the Offender is that the mandatory minimum sentence of 12 months is a fit sentence.

No issue is taken with respect to the additional and ancillary orders that are being sought in this matter. Reference is made to the pre- sentence report. Reference is also made by defence to statements made by the mother of the Victim to the police. Clearly, the Offender was a very important part of their family up to the offending events. He was clearly in a position of trust, well loved, and well integrated into the family.

There was no indication, based on the mother's reports contained in her statement to the police, of any offences or untoward behaviour that had occurred during the lengthy period of time that the Offender resided with the family.

Accordingly, defence counsel says that the behaviour of the Offender in this case may be viewed and described as opportunistic rather than predatory, and further says that there are no aspects involving any grooming of the Victim in this case. [ 45 ] The suggestion is made, in the absence of any formal psychological assessment, that I can assume from the remorse that has been expressed by the Offender and the fact that in the pre-sentence report he indicates a willingness to undergo treatment, I should therefore conclude that he will be at a low risk to offend.

I heard directly from the Offender, and I will deal with that aspect shortly. Given the admitted circumstances contained in the pre-sentence report, I am being urged to impose only the mandatory minimum sentence. Defence says such a sentence properly reflects the aggravating factors which should be taken into account in this case. Furthermore, the mandatory minimum reflects what should be accepted as the fit sentence given the nature of the offence, the limited time frame of the offence, and as well as the remorse that has been genuinely demonstrated. [ 46 ] I did hear directly from the Offender.

He strikes me as being genuinely remorseful. He acknowledges how sorry he is for what has occurred to the Victim in this case and the damage that he has done to her and to her family. He expresses a willingness and is ready to accept his punishment as meted out by this court. He does acknowledge that he has not, to this point, taken any counselling on his own volition, but he has filled his time by taking courses to improve his education and hopefully his ability to gain employment upon his release from jail.

Statutory Framework [ 47 ] The Crown points out that the sections of the Criminal Code that I should be applying are first of all under s. 718.01 which indicates that a court, when imposing a sentence for an offence that involves the abuse of a person under the age of 18 years, must give primary consideration to the objectives of denunciation and deterrence beyond the other purposes of sentencing that are set out in s. 718 .

Crown also directs me to s. 718.2 (a) (iii.1) which requires me to take into consideration the following as an aggravating factor, that is: (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation. [ 48 ] Also of great importance is the provision of s. 718.2 (a) (iii), and that aggravating factor relates to a consideration of the evidence that the Offender, in committing the offence, abused a position of trust or authority in relation to the Victim.

Then there is the provision contained in s. 718.2 (a) (ii.1), that is, consideration of the evidence that the Offender, in committing the offence, abused a person, in this case again, under the age of 18 years. [ 49 ] I am also directed, in addition to those statutory aggravating circumstances, to the provisions of s. 718.2 (b) , which indicates that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Aggravating Factors and Mitigating Factors [ 50 ] In this case, I accept Crown's submission that the aggravating factors include the touching and rubbing of the Victim's breasts and the digital penetration of her vagina. I also take into account the position of trust that the Offender held in this family and specifically with respect to the Victim. She has clearly been negatively impacted to a very high degree by the offence. I am also mindful that she is a young person who apparently has some intellectual deficits, which makes her increasingly vulnerable to the offence committed upon her by the Offender.

[ 51 ] I also must consider mitigating circumstances in this case. I accept Crown's suggestion of a mitigating circumstance being the early guilty plea which avoided the necessity of the Victim testifying in this case. I also accept as a mitigating circumstance Crown's admission that there appears to be remorse, genuine remorse, being expressed by the Offender and that such remorse was demonstrated very early on, including at the time that he was being questioned by the police and provided the apology letters to be delivered to the Victim.

Sentence on Sexual Assault [ 52 ] Having regard to all of the circumstances with respect to this matter, and having regard to the genuine remorse that has been expressed, I am of the view that an appropriate sentence in this matter would be the mandatory minimum sentence of one year of incarceration, and I will so impose that sentence. [ 53 ] In addition to that, I will, as Crown has suggested, impose a two-year period of probation. The terms of the probation order I will outline; but first I will ask J.W.C to please stand. [ 54 ] J.W.C, you will have the opportunity during your incarceration to seek counselling.

You will have the opportunity to have other services provided to you to assist you in rehabilitating yourself. I am confident that you will take full advantage of those, but you will also be bound by a probation order, following your release, for a term of two years. I want to make it clear to you that the terms of the probation order must be regarded by you as things you will do, not things you may do.

Failure to abide by the terms of a probation order could give rise to further charges and may result in further incarceration. [ 55 ] The terms of the probation order will be as follows: [ 56 ] You shall keep the peace and be of good behaviour. [ 57 ] You shall appear before the court when required to do so by the court. [ 58 ] You shall notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 59 ] Within 72 hours after completion of your jail sentence, you shall report in person to a probation office, at the address to be provided to you, here in the city of Nanaimo, province of British Columbia, and after that, you shall report as directed. [ 60 ] When first reporting to the probation officer, you shall inform him or her of your residential address and your telephone number.

You shall not change your address or your telephone number without first notifying and obtaining the written consent of your probation officer. [ 61 ] You shall remain in the province of British Columbia unless you have first obtained the written consent of the probation officer to go elsewhere. [ 62 ] You are not to have contact, directly or indirectly, with the Victim, whose full name will be set out in the probation order, or her immediate family members. [ 63 ] You shall not attend at or within 100 metres of any known residence or place of employment or place of education of the Victim or of any members of the Victim's immediate family. [ 64 ] You shall attend, participate in, and successfully complete any assessment, counselling, or program as directed by the probation officer, including but not limited to the sex offender program. [ 65 ] You are to attend Forensic Psychiatric Services or Mental Health Services at the direction of the probation officer. [ 66 ] I am going to impose a further condition under s. 161 of the Criminal Code .

You shall not attend at a public park or a public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or any daycare centre, schoolground, playground, or community centre. [ 67 ] You shall not seek, obtain, or continue any employment, whether or not the employment is remunerated, or become or be a volunteer in a capacity that involves being in a position of trust or authority towards a person under the age of 16 years. [ 68 ] I am going to also impose the mandatory DNA order.

That will be under s. 487.04(i.1). [ 69 ] I am going to impose a SOIRA registration on you pursuant to s. 490.011(1) (a) (ii), and that is mandatory. It is a designated offence under s. 267. The requirement for registration will be also under s. 490.013(2) (

b) for a duration of 20 years. That is due to the fact that Crown has proceeded by way of indictment in this matter. [ 70 ] I am imposing upon you a s. 109 firearms prohibition order for a period of 10 years. [ 71 ] I am imposing an order under s. 491, which is an order requiring the mandatory forfeiture of any weapons in your possession. Do you have any weapons at all? [ 72 ] THE ACCUSED: No, I don't. [ 73 ] THE COURT: All right. Thank you. [ 74 ] I am also imposing an order under s. 743.21. You are not to have any contact with complainant or any member of her immediate family while you are in custody.

[ 75 ] Crown has also sought, and I have included, the two ancillary orders under s. 161 (

a) and (

b) in the probation order. Are you seeking for that to be also a separate ancillary order? [ 76 ] MS. HAGEN: I'm sorry, Your Honour? [ 77 ] THE COURT: Do you want the orders that I made under s. 161 (

a) and (b) , which I have put into the probation order -- [ 78 ] MS. HAGEN: Probation order. [ 79 ] THE COURT: -- do you want those also in a separate ancillary order? [ 80 ] MS. HAGEN: I think it's fine. They're in the probation order. [ 81 ] THE COURT: All right. So they will have a duration of two years. All right. [ 82 ] Is there anything further with respect to what is being sought with respect to those orders? [ 83 ] MS. HAGEN: No, Your Honour. Offence of Theft Under $5,000.00: Circumstances and Sentence [ 84 ] THE COURT: All right.

Then turning to the second offence, which is committing the theft of the credit card in a value not in excess of $5,000, Crown has outlined the circumstances in that matter, which are not disputed. I find those to be the facts and they are sufficient to support a plea of guilty. In that particular case, the Offender used a friend's credit card for the purposes of extracting money out of, as I understand it, a bank machine. The total amount obtained was $500. The matter is aggravating in the sense that he defrauded a friend. However, he makes a full admission of his guilt in this matter.

I will impose upon him a custodial sentence of 30 days to be served concurrent with the charges on the sexual assault. [ 85 ] I will make a standalone restitution order requiring that the Offender pay through the clerk of the court for the credit of Claude Ricard the amount of $500, and that is to be paid before December 31, 2016. [ 86 ] Do you want me to include a no-contact with him or not? [ 87 ] MS. HAGEN: No. He will have no contact with him while he is in jail. I think that's -- [ 88 ] THE COURT: All right. So that will be the terms of that sentence.

That leaves only the issue of the victim fine surcharges on these matters. Any submissions on that? [ 89 ] MR. GIBB: There will be no prospect of his paying that. [ 90 ] THE COURT: All right. So are you inviting me to make an immediate order for payment of the victim fine surcharges on each of the two offences? [ 91 ] MR. GIBB: Yes. [ 92 ] THE COURT: He is not in a position to pay, will not pay, and has no intention of paying; is that correct? [ 93 ] MR. GIBB: No, he -- [ 94 ] THE ACCUSED: I'd like to be able to, but I don't have the finances to come up with right now. [ 95 ] THE COURT: All right.

Well, you are not going to be able to do it within the period that I can extend it, so I will impose an immediate order for payment at the invitation of Mr. Gibb, and I will sentence the Offender to one day to be served concurrently on each of the victim fine surcharges, and that is to be served concurrent with the other sentences that I have imposed upon you. [ 96 ] Anything further? [ 97 ] MS. HAGEN: No, Your Honour. Thank you. [ 98 ] MR. GIBB: No, thank you. [ 99 ] THE COURT: Thank you. (REASONS CONCLUDED)