R. v. A.E.B. Date:, 2016 BCPC 100

Citation: R. v. A.E.B. Date: 20160331 2016 BCPC 0100 File No: 80012-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A.E.B. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY BAN ON PUBLICATION 486.4(2) CCC RESTRICTED ACCESS Counsel for the Crown: L.M. Mascolo

Counsel for the Defendant: K.D. Bradshaw Place of Hearing: Nanaimo , B.C. Date of Hearing: March 31, 2016 Date of Judgment: March 31, 2016 INTRODUCTION [ 1 ] THE COURT: A.E.B. is before me. Mr. A.E.B. has entered a plea of guilty to amended count 3 on Information 80012-1. The allegation is that from April 1st, 2015, to the 8th of June, 2015, that he did sexually assault K.B., contrary to s. 271 of the Criminal Code . [ 2 ] Although the information is marked by way of indictment, Crown has proceeded summarily with respect to the offences before me. [ 3 ] Having understood that Mr.

A.E.B. (the “offender”) would be entering into a guilty plea with respect to this matter, Crown has been working with defence counsel and they have come up with a joint submission with respect to the sentencing on this matter. I will deal with the terms of the sentencing later. FACTS Circumstances of the Offence [ 4 ] There are two sources with respect to the circumstances surrounding this offence. Crown has laid out what are the agreed circumstances. There is a pre-sentence report which was prepared on January the 18th, 2016, by Rick Hines, Probation Officer, of the Courtenay Probation Office.

In addition there is a pre-sentence report and psychological/psychiatric assessment report completed January 14th, 2016, and authored by Dr. Avery Ferguson, a registered psychologist with the Forensic Psychiatric Services Commission, Nanaimo Regional Clinic. [ 5 ] The circumstances that are set out in those reports go beyond what are the admitted circumstances in this case. The admitted circumstances are that the victim in this case, K.B., was 13 years of age at the time of the offence. She is the child of the domestic partner, at that time, of the offender.

They had been residing together with the child victim and a younger daughter of the mother of the victim in this case. [ 6 ] The circumstances indicate that the offender in this case began to have a physical attraction to the victim, K.B. In his own description, given to the authors of both the pre-sentence report and to the psychological assessment report, he began to groom the victim for sexual activity. That proceeded from touching on an intimate basis, with the use of creams which were rubbed on the body of the child victim, and which eventually led to him stroking her breasts.

There is an admission that he put cream on to her pubic area and touched the outside of her vagina. [ 7 ] There is also an admission that he rubbed the victim underneath her shorts and there is an admission that there were three or four occasions on which he touched the outside of the vagina and two situations where he rubbed the breasts of the child. [ 8 ] The matters progressed to the point where he and the child victim, at his behest, showered together.

The child had previously not expressed any interest in doing so and this was, again, part of the grooming process that was taking place in this particular situation. During the showering it was admitted that he used his hands on her breasts and rubbed soap on them. There are further allegations made by the victim which are not admitted and which are not taken into account in terms of coming up with an appropriate disposition in this matter. [ 9 ] The child victim reported the events to her mother. The police were contacted.

The offender was arrested and very shortly thereafter gave a complete statement to the police, indicating that he had participated in this conduct and that he felt remorse about it. He indicated that he did not want to speak to a lawyer and it was his intention to get help for what he perceived as an issue that had gone beyond his control. [ 10 ] The net result was that he indicated at an early stage, that he would be entering a guilty plea with respect to this matter; that guilty plea was again confirmed today at the outset of the sentencing hearing.

Circumstances of the Offender [ 11 ] As previously indicated, I have a pre-sentence report and a psychological/ psychiatric assessment. Based upon the pre-sentence report and the submissions from counsel, it is indicated that the offender is 53 years or age. He has natural adult children from a first relationship and marriage. He has a stepdaughter from his second relationship.

He has grandchildren by both his natural children, as well as through his stepdaughter. [ 12 ] He has had extensive work history, although it has been marred by incidents of being fired, but mostly, he has fulfilled a vocation in the car industry, having apprenticed in the motor vehicle parts and service business, or has worked in related sectors of that industry. [ 13 ] He was originally born and raised in the United Kingdom and moved to Canada. He has worked in various parts of the

Province of British Columbia. He was at the time of the offence, in a relationship with the mother of the victim. He indicated, in both his pre-sentence report and in the psychological assessment that as a 15 year old, he had been exposed to some sexual exploitation by a person whom I understood to be an employer. That apparently occurred over a period of some two or three years. [ 14 ] He did not consider himself to have been abused because he had received money.

However, on reflection I think it is clear that it was certainly a defining moment in his life. [ 15 ] He has struggled with alcohol abuse and addiction. He is a self-confirmed alcoholic. He has had significant problems dealing with his drinking; it seems to be on a highly regular basis and then becomes a question of quite heavy drinking on weekends. He says that alcohol has been an issue with his offending behaviour, both in this case, and as I understand it, may have been an issue in the previous conviction that he obtained back in 2001 when he was approximately 38 years of age.

At that time he was convicted of sexual assault. [ 16 ] He was sentenced to one day and then was placed on a two-year probation order as a result of that prior offence. During that probation order he was taking sexual offender treatment. However, the reports seem to indicate that he did not gain a great deal from that particular program. However, the files for Corrections and Probation do indicate that he did attend and apparently seemed to be an engaged participant in the program at that time.

However, there seems to be a suggestion from him that he does not recall much about that particular program. [ 17 ] The psychological assessment that was prepared on him makes certain observations, based on tests and assessments that were conducted. He is placed in the low-risk for sexual violence but he is placed in the medium-risk category for sexual recidivism, as a result of the tests conducted and based upon the opinions expressed by Dr. Ferguson. [ 18 ] The risk factors are dynamic in nature.

That is, they are changeable and these risk factors appear to be tied in both with the type of lifestyle that the offender has been leading and based, I would suggest, on his significant alcohol consumption. It seems to be a common theme throughout both of the two reports. [ 19 ] The offender does express remorse; that is clear in the reports. However, there is a suggestion in both reports that there may be a lack of insight on his part about how his actions may have affected the victim. There is a suggestion that in some sense he may be minimizing some of his offending behaviour.

However, there also does appear, on his part, to be a genuine expression of remorse for having both breached the trust of the child and also, of course, breaching the trust of his domestic partner, being the mother of the child, as a result of the offence.

JOINT SUBMISSION ON SENTENCING [ 20 ] The joint submission I have before me is that this matter can be dealt with appropriately through a custodial sentence of actual jail time of six months, followed by a two-year probation order, on terms that have been set out in the presentence report. [ 21 ] Crown has proceeded summarily on this matter and hence I understand that the mandatory minimum sentence is significantly less than what would have been the sentence had the Crown proceeded by way of indictment. Having proceeded summarily the mandatory minimum sentence would have been 90 days.

What is being suggested, of course, is the sentence of six months, which is approximately double the time than the mandatory minimum provision. [ 22 ] Part and parcel of the reason for that duration is that it will permit the offender to obtain treatment, possibly at Ford Mountain, which has a comprehensive sexual offender treatment program. I am being asked and I will, in my conclusions, make a recommendation that he be considered for that particular program. [ 23 ] Crown has asked for some ancillary orders. No issue is taken with respect to those orders.

Also, a prohibition order, pursuant to s. 161 is being sought. No issue is raised with respect to those prohibition orders. [ 24 ] I did express to counsel some concern as to whether or not there were some case authorities which would show that this joint submission falls within an appropriate range. I have been provided jointly by defence and by Crown, with two decisions which seem to be similar on their facts, and both involving a level of breach of trust. [ 25 ] The first decision that has been referred to me is the Supreme Court of British Columbia decision of R. v.

Maxmenko, a decision out of Port Alberni, 2015 BCJ No. 2611 ; 2015 BCSC 2224 . That was a case of a person in a position of trust and authority inappropriately touching his 12-year-old grand-niece. It was touching of her bare breasts on two occasions, putting his hands into her pants and onto her bare buttocks as well as lifting her shirt to expose her breasts and taking inappropriate photos of her. Mr. Maxmenko had a related prior conviction.

His guilty plea came very late in the proceedings. [ 26 ] The result of that particular disposition was an effective sentence of six months jail with five-and-a-half new months of imprisonment after credit for time served and 18 months' probation, with some ancillary orders. [ 27 ] The second case that is being referred to me is R. v. G.J.R. , a decision of our Provincial Court, 2014 BCPC 340 . In that case, it was a sentencing following trial. There were aggravating circumstances, and specifically an accused individual in a position of trust to the victim, being that of a step-father.

At paragraph 34 of that decision the Honourable Judge Skilnick says, as follows: In taking into account the aggravating and mitigating circumstances that I have listed previously, but particularly the egregious way in which the breach of trust occurred in this case, that a child lost the trust of a parent under circumstances where she ought to not only felt protected but ought to have been protected, in my view, an appropriate sentence for this offender for this offence under these circumstances is one of a ten-month jail sentence and I sentence G.J.R. accordingly. AGGRAVATING AND MITIGATING CIRCUMSTANCES

Aggravating Circumstances [ 28 ] The offender in this case was in a position of trust to the child. Secondly, the child was emotionally attached to the offender. The third was that the child was being groomed by the offender over a period of time. In other words, there was a plan on his part to engage in the sexual activity and to accelerate that sexual activity. [ 29 ] The next aggravating factor is that the child, apparently, has learning disabilities. At the time of this offence taking place, she appears to have been quite naïve.

She was not sexually active and so she was, I think, a person of great vulnerability; there is also the fact that she was of tender years. Simply the duration of the offences over an extended period is aggravating. Mitigating Circumstances [ 30 ] From a mitigation perspective, I accept that there has been an early guilty plea. There has been cooperation by the offender with respect to the investigation and dealing with the charges.

I do accept that there is genuine remorse, but of course, subject to the suggestion that there may be a lack of full insight and awareness as to what is the underlying cause of this offence. There has been post- offending attempts to obtain help and Mr. A.E.B. has engaged in some treatment. [ 31 ] The next mitigating factor is that he is desirous of taking treatment and resolving his issues. A further mitigating factor is that he has held stable employment and has been a contributing member of society. [ 32 ] I am mindful of the previous criminal conviction and the circumstances of that conviction.

Without minimizing it, that offence appeared to be a case of sexual groping of a 15-year-old female. CONCLUSIONS ON SENTENCING [ 33 ] Having heard the submissions, I accept as a fit sentence what is suggested by way of a joint recommendation and that is a custodial sentence of six months. I will make the recommendation that the custodial time be served at the Ford Mountain Institution. I consider the sentence to be at the low end of the appropriate range especially given all the aggravating factors and specifically the duration of the grooming and also the duration of the offences.

However, I am also particularly very mindful of the early guilty plea in this case; early guilty pleas were not forthcoming in the two case authorities placed before me by counsel. [ 34 ] There will be a two-year probation order that will follow. The terms and conditions I will outline below. [ 35 ] If you can stand, please, sir? [ 36 ] So, following your six months custodial sentence, there will be the two-year period of probation. The terms and conditions will be as follows and I am using the numbering system of the Pick List. [ 37 ] Number 200: You shall keep the peace and be of good behaviour.

You shall appear before the court when required to do so by the court. You shall notify the court or your probation officer in advance of any change in name or address and promptly notify the court or the probation officer of any change of employment or occupation. [ 38 ] Number 202: Within 72 hours after completion of your jail sentence, you shall report in person to -- I am just going to pause for a moment -- this is a Courtenay matter. Where is he to report; Nanaimo? [ 39 ] MS. MASCOLO: Perhaps he should report where he is directed, to the closest probation office.

I mean, he is -- the reason the report was out of Courtenay is because that is where Mr. A.E.B. is residing. [ 40 ] THE COURT: Right. [ 41 ] MS. MASCOLO: But I am not sure where he will be -- [ 42 ] THE COURT: All right.

Well, I will frame it in this fashion. [ 43 ] You shall report in person to the probation office nearest the place that you are released from custody and after that, you shall report as directed. [ 44 ] 205: When first reporting to the probation officer, you shall inform him or her of your residential address and telephone number. [ 45 ] 206: You shall not change your address or telephone number without first notifying and obtaining the written consent of the probation officer. [ 46 ] I am going to add a further condition that any residence in which you reside will be approved of in advance by your probation officer. [ 47 ] I am going to make a further condition based on 216, with some variations, that you shall respond personally and immediately -- I am sorry - that should be Number 215. [ 48 ] 215: You shall present yourself at the door to your residence when any peace officer or probation officer attends there for the purposes of determining your compliance with the terms of your probation order and for the purposes of monitoring compliance with the probation order. [ 49 ] I am going to make the following provision.

[ 50 ] After -- and I take it that Mr. A.E.B. is consenting; correct? [ 51 ] MS. MASCOLO: Yes. [ 52 ] THE COURT: He shall attend, participate in any psychiatric, psychological assessment and/or counselling as directed by a probation officer, including sex offender treatment (SOTP) and subsequent sex offender maintenance program (SOMP), and he will comply with all rules and regulations and conditions of any such program or assessments. [ 53 ] I am also going to impose a condition based on 242.

I will actually use the wording right out of the pre-sentence report. [ 54 ] You shall not be in the presence of any child under the age of 18 years unless the place where you are in is a public place, which is open to all members of the general public and is actually being frequented by other members of the general public. You may have contact with your grandchildren, but only in the presence of their mother and with her consent.

The mother of each grandchild must be advised of your offences, as confirmed by your probation officer, prior to any contact. [ 55 ] I further order that you shall not attend within 30 metres of a playground, school ground, swimming area, recreation or community centre, library, or any other place where children under the age of 18 may be present, except with the prior written approval of your probation officer, a copy of which will be on your person and in your possession. [ 56 ] I am going to make a further no-contact order based on number 219: You shall not have any communication or contact directly or indirectly with the victim, K.B. -- the full name will be set out in the form of the order -- born [date of birth removed for publication]. [ 57 ] The next provision will be 223: You shall not attend at any place which you know to be the residence, school or workplace of KB. [ 58 ] The next condition will be 227: You shall not possess or consume any alcohol or any controlled substance, as defined in s. 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician. [ 59 ] The next provision will be 228: You shall not possess or consume any alcohol nor be under the influence of alcohol outside of your residence. [ 60 ] Is a counselling condition being sought other than the sexual offender? [ 61 ] MS.

MASCOLO: Well, the condition as outlined in the pre-sentence report says, you shall participate in any psychiatric, psychological assessment and/or counselling. So it is covered. Yeah. [ 62 ] THE COURT: All right. So it is covered. Thank you. [ 63 ] I believe those are all the conditions that were being sought with respect to the probation order. Is that correct? [ 64 ] MS. MASCOLO: Yes. [ 65 ] THE COURT: All right. Is that correct, Ms. Bradshaw? [ 66 ] MS. BRADSHAW: Yes. [ 67 ] THE COURT: All right.

Then Crown is seeking some ancillary orders. [ 68 ] There will be a SOIRA order with a duration for life and there will be a mandatory DNA order.

I am going to make the order, that is the s. 110 order, for all items listed in that section, for a duration of five years. [ 69 ] I am also going to make the requested prohibition order, under s. 161 of the Criminal Code ; that prohibition order will have a duration of three years and the order will be on the following terms: [ 70 ] You are prohibited from attending 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 a daycare centre, school ground, playground or community centre. [ 71 ] THE CLERK: I think it may be

section -- [ 72 ] THE COURT:

Section 161 (a). [ 73 ] THE CLERK: Sub (a)? [ 74 ] THE COURT: Yeah. [ 75 ] THE CLERK: Okay. [ 76 ] THE COURT: Do you have that? [ 77 ] THE CLERK: Yes. [ 78 ] THE COURT: Okay. So this under the Code ; correct? [ 79 ] THE CLERK: Yeah. That is what I need, is the Code number and sub (a)? [ 80 ] THE COURT: Sub (a). There will be a further provision under Sub (

b) of the same section: You shall be prohibited from

seeking, obtaining or continuing any employment, whether or not the employment is remunerated or becoming, or being a volunteer in a capacity that involves being in a position of trust or authority towards a person under the age of 16 years of age. [ 81 ] Sub (c): From having any contact including communication by any means with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate and provided that he may have contact and communication with his grandchildren, but only in the presence of the mother of those grandchildren, and with their consent.

The mother of each grandchild must be advised of your offence must be advised of your offences prior to any contact. [ 82 ] I think that is satisfactory and I think those are all the conditions that are being sought. Is that correct? [ 83 ] MS. MASCOLO: Yes, Your Honour. (REASONS FOR SENTENCE CONCLUDED)