R. v. Marini Date:, 2014 BCPC 288

Citation: R. v. Marini Date: 20140422 2014 BCPC 0288 File No: 79601 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PATRICK MARINI REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K.D. SKILNICK BAN ON PUBLICATION

Section 486.4(1) CCC

Section 485.5(1) CCC RESTRICTION ON ACCESS

Section 490.012 CCC Counsel for the Crown: S. Domaradzki

Counsel for the Accused: C. Terepocki Place of Hearing: Abbotsford , B.C. Dates of Hearing: December 10, 11, 12, 2013 Date of Sentence: April 22, 2014 [ 1 ] THE COURT : Patrick Marini has been convicted on Abbotsford court file 79601-1 of an offence contrary to s. 281 of the Criminal Code . He was convicted of an attempt to unlawfully take the child, who has been identified as N.R., from the care of his parents, contrary to s. 281 of the Criminal Code .

Section 281 of the Criminal Code creates this offence and makes it an indictable offence.

That is, of course, the more serious of categories of offence under the Criminal Code and it proscribes a penalty of up to ten years of imprisonment for a person who is convicted of this offence. [ 2 ] The innocence of children is something that is precious and highly valued by our society and, therefore, in sentencing persons who threaten those values and who commit an offence under this section, the law has set out that deterrence and denunciation are very important sentencing principles and, of course, counsel have acknowledged this as well. [ 3 ] In sentencing Mr.

Marini for the offence that he has been convicted of, I am guided by a number of parts of the Criminal Code and I am going to review some of those just very briefly.

Section 718 of the Criminal Code , as counsel has pointed out, directs that the fundamental purpose of sentencing is to contribute respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions that have the following objectives: denouncing unlawful conduct, deterring the specific offender and other like-minded persons from committing offences, separating offenders from society where necessary, assisting in the rehabilitation of offenders, providing for harm done to victims or to the community and promoting a sense of responsibility in offenders an acknowledgment done to victims and the community.

Again, as counsel have pointed out, for an offence of this nature, deterrence and denunciation are particularly important. The prospect of harm coming to a child is something that not only harms the child and the family but the community as a whole and it is something that the community as a whole finds abhorrent. [ 4 ]

Section 718.01 of the Criminal Code says that when a court imposes a sentence for an offence that involves the abuse of a person under the age of 18, it shall give primary consideration to the objectives of deterrence and denunciation of such conduct. [ 5 ]

Section 718.1 of the Criminal Code says that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 6 ]

Section 718.2 of the Criminal Code says that a sentence must be increased or reduced to account for any relevant aggravating and mitigating circumstances that relate to the offence or to the offender and I am going to go over both the aggravating and mitigating circumstances of this offence. That

section of the Criminal Code also says that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances and that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders with particular attention to the circumstances of Aboriginal offenders. [ 7 ] Mr. Marini was convicted of this offence at trial. He was convicted after a trial of this matter after the child and the child's mother were required to testify.

A conviction after trial is not an aggravating circumstance, nor is it a mitigating circumstance. I cannot give Mr. Marini the same credit I would to someone who accepted responsibility prior to trial, but he is not to be penalized by virtue of the fact that a trial was held. I just simply cannot give him the credit I would to someone who accepted responsibility and spared the child the requirement of having to come to court and testify. [ 8 ] Counsel had referred to a number of mitigating circumstances surrounding this offender and this offence. These include Mr.

Marini's age, the state of his health, the fact that the offence mercifully was interrupted prior to any physical harm occurring to the child. There was no violence, there was no weapon, and there was no threat. Counsel also points out that this was a very brief attempt. Counsel also notes Mr. Marini has support in the community. A number of persons have written letters on his behalf.

After his release by the British Columbia Supreme Court in November of this year for a period of approximately six months, he has been compliant with the terms of a bail order. [ 9 ] The aggravating circumstances surrounding this offence are, firstly, that the offence was committed just a few months after Mr. Marini had been placed on a conditional sentence order for a sexual assault against a teenaged boy.

A conditional sentence order is a sentence which allows an offender the rare privilege of serving his sentence in the community and it is predicated on the belief that the offender can be trusted within the community to abide by the terms of his conditional sentence order. Mr. Marini violated that trust by committing this offence and by violating conditions of his conditional sentence order just months after being placed on that order. [ 10 ] The accused was under both the conditional sentence order and he was also under an order under s. 161 which restricted his liberty.

Specifically, the order stated that he was to have no contact, direct or indirect, with any person aged 16 or under unless he was in the company of another adult who was aware of the conditions of this order. In defiance of that order and flaunting that order, Mr. Marini approached and spoke with the child, N.R., in the library and Mr. Marini sought to situate himself in an area of the library specifically designated for children notwithstanding that he was on a court order for committing an offence against a child. [ 11 ] Notwithstanding the fact that these orders were very specific and very clear as to what Mr.

Marini was not supposed to do and notwithstanding the very clear violations of these orders, Mr. Marini, even up to the point of his interview for the pre-sentence report and for the psychological report, minimized the offences and protested his innocence in the face of the fact that he had so deliberately defied and flaunted court orders. [ 12 ] Mr. Marini served five months in custody. By my count, from June 28th to November 18th is 144 days. The Criminal Code , s. 719, entitles him to some credit for that. There is a debate as to whether he should be given credit at the rate of a day-and-a-half for each

day in jail or one day for each day in jail. I am mindful of the discretion given to the court and I am mindful that very recently, earlier this month, the Supreme of Canada had overturned what was the previous state of affairs were, presumption was that he would be credited day-for-day. The Supreme Court of Canada in a case called R. v.

Summers stated that statutory rules for parole eligibility and early release do not take into account time spent in custody before sentencing and, therefore, the rationale that recognizes pre-sentence detention almost always needs to be credited at a higher rate than one-to-one to ensure that the offender who is released after serving two-thirds of his sentence serves the same total amount of time in jail whether or not he is released on bail.

The court also takes into account the qualitative rationale from his credit recognizing the conditions in detention centres tend to be harsher than correctional facilities. [ 13 ] The court went on to say in that case that the loss of early release is generally a sufficient basis to award credit at a rate of one- and-a-half-to-one unless, of course, the court is satisfied that the offender would not get early release. In this case, I think had Mr.

Marini pled guilty and began serving his sentence immediately, I have no reason to believe that he would not receive the same credit as other offenders and I intend to credit him with the time served that he spent in custody on the basis of one-and-a-half days for each day in custody. [ 14 ] I take into account that the psychological report prepared by Dr. Stangeland indicated a risk assessment. I have to say it is somewhat of a surprising risk assessment in the sense that Dr. Stangeland concluded that Mr. Marini is, in the doctor's words, "a low-to- moderate risk for future sexual misconduct".

I say that is surprising because of the fact that Mr. Marini was already on a court order, two court orders, in fact, if one includes the order under s. 161 and the conditional sentence order when these offences were committed. While I appreciate that Dr. Stangeland has itemized the factors, certainly there were some factors that bear greater weight than others and the fact that a previous conditional sentence order did not deter Mr.

Marini from approaching the young boy in a public library, as was done in this case, and asking that boy to accompany him without notification of the child's parents or consent or permission of the child's parents causes me to question the conclusion with respect to the risk of re-offending. [ 15 ] There is a troubling aspect, of course, and that is that the recent conviction that Mr. Marini had received for sexual assault involved an assault on a young boy. It involved the touching of that boy's penis and yet notwithstanding the repulsive nature of that offence, in his interaction with the doctor, Mr.

Marini tended to present himself as a victim. There are portions of the report that are particularly troubling. Page 17 of the report, in speaking of that earlier offence, according to Dr. Stangeland, the accused said that he admitted to touching the boy's penis but insisted that it was the boy who initiated the kissing who rubbed against him. The general tone of the discussion was to place responsibility on the boy and, again, that is certainly troubling. [ 16 ] Also, page 9 of the report, with respect to this offence, Mr. Marini was on two court orders.

He was on a conditional sentence order that prohibited him from approaching this child and he was on an order under s. 161. There was a deliberate flaunting of those orders and yet Mr. Marini tells the doctor: Knowing I am not guilty, I just find it absolutely horrendous that I should have to go to jail for it. [ 17 ] There is a profound hypocrisy here that Mr. Marini passes himself off as a man of God and yet refuses to admit his complicity in these offences.

The lack of honesty and integrity, while, as I say, passing himself off as some sort of spiritual advisor, is particularly troubling. [ 18 ] The family of the child have presented a victim impact statement and it certainly demonstrates, as might reasonably be expected, the profound sense of shock and disbelief and the manner in which this offence has shook them because their child, who they think is safe in a library, is approached by someone who has recently been convicted of sexual offences against a young boy.

Knowing that their child was in that vulnerable state has obviously adversely affected this family. [ 19 ] It is against this background that Mr. Marini is being sentenced. The case law suggests a range of sentencing. In terms of the time, the cases that I have reviewed suggest anything from six months to 30 months. I was referred to one case in which a conditional sentence order was proposed as an appropriate resolution. In this case, I find that it is not appropriate to let Mr. Marini serve his sentence on a conditional sentence order.

I reach that conclusion because he was already on a conditional sentence order at the time that this offence was committed. He was also on an order under s. 161. These failed to deter Mr. Marini from approaching this young boy. These failed to garner his respect or to earn any deference from him and I do not have any confidence that a conditional sentence order that I pronounce would merit any greater response.

The Criminal Code , s. 742.1 says a conditional sentence order should not be imposed if I am not satisfied that it would protect the community or if it would not be consistent with the principles of sentencing.

For the reasons that I have mentioned, and particularly the fact that this offence was committed when the accused was on a conditional sentence order, I have no confidence that a fresh conditional sentence order would protect the community or would be consistent with the principles of sentencing. [ 20 ] I am mindful that there are kind persons in the community who are willing to step into the breach and take some responsibility for Mr.

Marini but those persons would be under no obligation and could certainly withdraw that benevolence at any time. [ 21 ] In my view, in imposing sentence, as counsel have stated, deterrence and denunciation are of primary importance, particularly where, as here, the accused has flaunted court orders, has put a child at risk, has caused considerable apprehension to the child's family. [ 22 ] The Crown seeks a sentence in the range of two years. The range of sentence, as I say, based on the case law, is between six months and 30 months.

I take into account a number of factors, including the accused's age, the fact that I am sentencing the accused for an attempt as opposed to a completed offence. I am taking into account as well, though, the circumstances including the accused, the attitude of the offender, and the minimization of the accused in accepting responsibility for the offence. In my view, an appropriate range of sentencing is in the range of 12 to 15 months. [ 23 ] I am going to sentence the accused to 14 months. I am going to credit him with having served the equivalent of seven months in custody.

That takes into account the 144 days that he has served is credited at time-and-a-half and I am giving him credit for the

equivalent of seven months having been served in custody so he will serve a further seven months in custody. [ 24 ] I am mindful of counsel's submissions with respect to probation. I should also say that this sentence, while his conditional sentence order is currently suspended pending the hearing before Judge Hoy, in my view, this offence that I have sentenced him for is a fresh offence and, therefore, should not be served concurrently with any sentence.

Given that Judge Hoy will be the last to pass sentence, I cannot fetter Judge Hoy's discretion but I will make my thoughts known on that. [ 25 ] I am mindful of Crown's concerns about whether or not a -- you want to interrupt? [ 26 ] MS. DOMARADZKI: If I can address that. Given Your Honour's decision of seven months, there will be -- if Judge Hoy agrees that the CSO should be revoked, that would be 15 months. It would be less than the two years and most certainly probation could be imposed. [ 27 ] THE COURT: There should be probation to follow and I will also make some ancillary orders as well.

The probation order will be for a period of three years because, given the vulnerability of the youth of the community and the concerns I have about the accused's lack of acceptance of responsibility and deference to court orders, I think the order has to be for the maximum length of time, which is three years. [ 28 ] The order will require him to keep the peace and be of good behaviour. [ 29 ] He is to appear before this court when required to do so. [ 30 ] He is to notify the court or the 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. [ 31 ] He is to report in person to a probation officer, by the end of the next business day following his release from custody at the office of Abbotsford Community Corrections at 2865 Cruickshank Street in Abbotsford, B.C., and he shall thereafter report as and when directed by his probation officer and in the manner directed by his probation officer. [ 32 ] He shall reside at a residence approved of by his probation officer and not change that residence without the prior approval of his probation officer. [ 33 ] He shall have no contact or communication, directly or indirectly, with N.R., or with any of the members of N.R.'s immediate family. [ 34 ] He shall not attend any residence, school or workplace of N.R. or of any of the members of N.R.'s immediate family, as such locations may be known to him, or within 100 metres of such locations. [ 35 ] He shall have no contact or communication directly or indirectly or be alone in the presence of any male person that he knows to be or who reasonably appears to be under the age of 16 years unless he is in the company of another adult approved of by his probation officer who is aware of the conditions of this order. [ 36 ] He shall not attend at any public park, school ground, daycare centre, swimming pool, playground, skating rink, community centre, recreation centre or public library where persons under the age of 16 are present or might reasonably be expected to be present. [ 37 ] He shall not seek, obtain or continue any employment whether or not that employment is remunerated or voluntary that involves being in a position of trust or authority towards persons who are 16 years of age or under. [ 38 ] He shall attend religious services only if he is in the company of another adult who is aware of the conditions of this order and who is approved of in writing by his probation officer. [ 39 ] He shall attend for, participate in and successfully complete any assessment, counselling or programming, as directed by his probation officer.

Without limiting the generality of this condition, such counselling or program may, at the discretion of his probation officer, include sex offender treatment and maintenance programs. [ 40 ] I am going to make an order pursuant to s. 161 of the Criminal Code prohibiting the accused from: (

a) attending any public park or public swimming area where persons under the age of 16 are present or can reasonably be expected to be present or at any daycare centre, school ground, playground or community centre; and (

b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years. That will be a lifetime order. [ 41 ] I am also going to make an order pursuant to s. 490.012 in Form 52, requiring the accused to comply with the Sex Offender Information Registration Act . That will be a lifetime order. K.D. SKILNICK Provincial Court Judge