R. v. Putt Date:, 2017 BCPC 415

Citation: R. v. Putt Date: 20171129 2017 BCPC 415 File No: 85873 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DONALD WILLIAM PUTT REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K.D. SKILNICK BAN ON PUBLICATION

Section 486.4(1) CCC Counsel for the Crown: E. Sabourin Counsel for the Defendant: M. Finch Place of Hearing: Abbotsford , B.C. Date of Hearing: May 23, 24, 2017 Date of Sentence: November 29, 2017

[ 1 ] THE COURT : Donald William Putt was convicted at trial on May 23rd, of this year on two charges. These are historic offences. They were committed 43 years ago on U.S. Independence Day, July 4th of 1974. Mr. Putt was convicted on Count 1 of the offence as it existed in the Criminal Code at the time, an offence under s. 156 of committing an indecent assault on another male person who was identified by his initials D.S. [ 2 ] The second count, Mr. Putt was convicted of an offence under s. 157 as it existed in the Criminal Code at that time and that was an offence of gross indecency.

Those offences are no longer part of the Criminal Code . They have been replaced with new offences but because they are historic offences, Mr. Putt was convicted under the Criminal Code as it existed at the time. [ 3 ] I will not review the facts in considerable detail, but the victim of these offences is now 57 years of age. At the time, 43 years ago, he was 14 years of age. He had his birthday at the end of May and these offences occurred on U.S. Independence Day. [ 4 ] The offences occurred in the home of the victim. His father was a friend and co-worker of Mr. Putt.

On the night of July 4th, as the victim was watching fireworks, he was living in a home that looked south across the U.S. border and he had a view of the fireworks display and he said that as he was doing that in his bedroom, the accused came up behind him, reached around with his left hand, said a few things to him and then he fondled the victim's penis. [ 5 ] The victim testified that at the time he was shocked and scared but was reluctant to report the offence for a number of reasons including the relationship between Mr. Putt and his father.

This offence did not come to light until, as counsel had pointed out, Mr. Putt became notorious for other offences and it triggered a memory for the victim. As a result of that, he reported the matter to the police. Having heard his testimony and that of Mr. Putt, I am satisfied beyond a reasonable doubt the offences have been committed. [ 6 ] On sentencing the accused, I am taking into account a number of requirements under the Criminal Code .

Section 718 of the Criminal Code says that the fundamental purpose of sentencing offenders is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have a number of objectives. One of those is to denounce unlawful conduct and the harm done to victims and the community caused by unlawful conduct. The second is to deter this offender and other like-minded persons from committing offences. The Code requires that offenders be separated from society where necessary.

The sentence should look at rehabilitation of offenders; it should look at reparations for harm done to victims or to the community; and it should present a sense of responsibility in offenders. [ 7 ] The Criminal Code says in s. 718.01 that where the court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, the primary consideration should be the objectives of denunciation and deterrence.

In s. 718.1, it says that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 8 ] I will not go through all of the other sentencing provisions but, generally, the Criminal Code says that I should take into account both aggravating and mitigating circumstances. [ 9 ] In this case, I take into account that at the time of the offence the accused had no previous record. That is of less significance in this type of offence because of the fact that this is an offence for which, and particularly in 1974, the offence was one that was difficult to detect.

In particular, it was an offence the nature of which often came down to the word of an adult versus a child and as a result of that, it was a very difficult offence to prosecute at the time. [ 10 ] The accused has a subsequent criminal record and I note that he has recently been sentenced on two occasions.

The accused has an unfortunate propensity to have a sexual attraction to persons below the age of consent and his inability to control himself in that regard has led to transgressions of the law for which he has been convicted. [ 11 ] Most notably, this sentencing was delayed while the accused was awaiting sentence before Her Honour Judge Young in Chilliwack and I note that on October 19th, about six weeks ago, Judge Young sentenced Mr.

Putt to a global sentence of four years and that is for two offences that occurred in the 1980s, also historic but not as dated as this offence. [ 12 ] It is an aggravating circumstance that, while there may be some debate about whether this can properly be characterized as Mr. Putt being in a position of trust, I think it is fair to say that the family of his co-worker trusted him in their home. They invited him into their home and it was reasonable for them to assume that no harm would come to their son as a result of inviting Mr.

Putt into the home and the courtesies that were extended to him and regrettably, that trust was violated. [ 13 ] The victim of this offence has provided a Victim Impact Statement and despite the passage of time since the commission of the offence, he indicates that the offences had an adverse psychological effect on him.

He set that out in his Victim Impact Statement and he also made reference to that in the course of his testimony as well, as to the struggle that he has had, the difficulties he has had, as referenced in his Victim Impact Statement, with the consumption of alcohol, with his self-esteem and with other aspects of his life including guilt over not speaking out sooner.

It has necessitated his attendance for counselling and he has quite wisely availed himself of counselling that has been available to him through an employee assistance program. [ 14 ] The victim for this offence has asked for an ancillary order under s. 736 of the Criminal Code , that there be a restitution order. He places the value at $44,000. I do not, in any way, mean to minimize or downplay the amount of harm that the victim has received from this offence. An order under s. 736 of the Criminal Code is typically awarded in circumstances where the evidence has provided a direct economic loss.

For example, something is stolen from somebody, money is embezzled from a bank account, the amount is readily identifiable or there is property damage and the bill is submitted as to what the cost of repairing the damage is. Restitution is normally awarded under those circumstances. I will not go so far as to say the

section of the Code precludes the order that Mr. S. is seeking, but in order to do so and to fix the amount he asked, at a very minimum there would have to be a hearing with respect to some sort of psychological opinion with respect to the damages that D.S. has sustained. [ 15 ] I am not going to make the restitution order but by doing that, I am not precluding him from pursuing any civil action that may be open to him in presenting that evidence in court.

[ 16 ] The other aggravating circumstance I have mentioned is the record. There are three convictions. They are subsequent to this offence but two of the offences are historical in the sense that they are over 30 years old and I take that into account. [ 17 ] I take into account a number of mitigating circumstances as well. Before I get into the mitigating circumstances, I should say that Mr. Putt did not plead guilty for these offences. That is not an aggravating circumstance. He is entitled to the presumption of innocence. He is entitled to have a trial.

It simply means that I cannot give him the same credit that I would to someone who had accepted responsibility for the offence. As I mentioned to Mr. Finch, I think in this case because of the passage of time, because of the fact that this offence has occurred 43 years in the past, because of Mr. Putt's age and the effects on memory, I think his failure to remember or acknowledge the offence cannot be taken as an aggravating circumstance under these circumstances. It is simply a neutral circumstance. [ 18 ] There are some mitigating circumstances, as I have mentioned.

I have reviewed the records of the institution where he has been imprisoned and I take into account that the records show him to be a model prisoner.

The records of the guards at the institution go beyond just simply monitoring his movements and actually speak quite positively of his behaviour while in the institution. [ 19 ] I take into account, as well, that there are letters from his family indicating that, in terms of his family life, the person that is depicted in the criminal record is not the person that was present in the home and I note there are letters from all of his children and from other relatives indicating that there was no indication of the psychological character defect that is at the root of these offences.

There is no indication of that forming part of the family life and I take that into account as well. Understandably, the family are hurt by the revelations that have come forward. [ 20 ] I take into account, as well, that there has been an additional consequence to that that will be imposed by this court. That being the fact that there has been, to a very great extent, a public shaming for the offences that have been committed. I have taken into account the news reports that have been provided, not only in local newspapers and local media, but also in international media. One of the materials that Mr.

Finch has provided is a report from the Sydney Morning Herald. I note that also it came to the attention of persons in Germany and so there has been a very great and significant public shaming of Mr. Putt as a result of his conduct. [ 21 ] I am taking into account all of those factors, mitigating and aggravating, in imposing a sentence. [ 22 ] There is a request that I give consideration to a period of concurrent time. I am going to decline to do that for three reasons.

First of all, as Crown asserts and defence admits, there is no nexus, either in time or otherwise, to the offences for which Judge Young has recently sentenced Mr. Putt. These offences occurred years previously and they occurred to a different victim. [ 23 ] I am concerned, in particular, with respect to the offence of a sexual assault on a young person that the imposition of a concurrent sentence under these circumstances would leave the impression that the court does not value or does not consider as important the experience of the victim in this case.

I think, for that reason, it needs to be treated as a separate sentence. [ 24 ] I am also not satisfied that had this sentencing been before Judge Young, her sentence would have remained unchanged and I that the Crown would have argued for an increased sentence. (Sentencing on this was not before Judge Young because there were separate trials and I was the trial judge in this matter. Therefore, Judge Young was not able to sentence on this matter).

For those reasons, I do not see that this as an appropriate matter for a concurrent sentence and I think a period of consecutive time is called for. [ 25 ] The Crown submits that the appropriate range of sentence for this offence is one of three to five months. The defence submits that the range of sentence should be between one to three months consecutive if consecutive time is to be awarded. [ 26 ] In my view, I think the Crown's range is appropriate, but I think the lower end of that range is called for under the circumstances.

As I say, the reason I gravitate to the lower end of that range despite the fact of there being a trial in this matter, is because of some of the post-offence conduct of the accused. When I say post-offence, I am talking about since his arrest, his conduct in custody. I note that he has sought counselling and sought the involvement of a local pastor to help him to address the defect of character that has been at the root of this offence. [ 27 ] For those reasons, the sentence that I am going to impose is one of three months consecutive to the sentence imposed by Judge Young.

Counsel have acknowledged that any time spent on remand for this offence has been used up in terms of the sentence that he was placed on by Judge Young. The sentence will be one of three months without any credit for pre-sentence custody. [ 28 ] I am also going to make two mandatory orders. [ 29 ] First of all, I am going to make the order that the accused be placed on the Sexual Offenders Information Registry, the SOIRA registry. I appreciate that this is somewhat redundant to the order made by Judge Young last month when she placed the accused on that registry, I think for a lifetime term.

What is the duration that the Crown is seeking for this offence? [ 30 ] MS. SABOURIN: I believe it is going to be a lifetime. [ 31 ] THE COURT: I think given that this is now his third or fourth conviction, depending on the counts, that the Code requires it to be a lifetime. I will make that order under s. 161. Crown can submit the formal written order as a desk order and I will sign that. [ 32 ] I am also going to make an order that Mr. Putt's DNA be taken for inclusion into the National DNA Databank.

This is a mandatory DNA offence and I am going to direct that the sample be taken by a peace officer or other person authorized to take that sample. The sample is to be taken in one of the methods prescribed in the Criminal Code . I note that, again, the Code generally prescribes that if Mr.

Putt's DNA is already on file, as I suspect it is from the previous offences, that the sample may not be required as being redundant but, in any event, I will make that order out of an abundance of caution. [ 33 ] I will make an order directing that the victim fine surcharge for these offences be payable forthwith and that in default he serve the default time in custody. That time can be served concurrent with his other sentence. I am making that order because it is quite

apparent that for the next few years he will not have the ability to earn an income and to pay that. [ 34 ] Are there any other orders that either counsel are asking for? [ 35 ] MS. SABOURN: No, Your Honour. [ 36 ] MR. FINCH: No, Your Honour. [ 37 ] THE COURT: I think that will conclude the matter then. I want to thank counsel very much. K.D. SKILNICK Provincial Court Judge