R. v. S.L.D. Date:, 2017 BCPC 349

Citation: R. v. S.L.D. Date: 20171128 2017 BCPC 349 File No: 85888-1 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S.L.D. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G. KOTURBASH Counsel for the Crown: P. O'Neil Counsel for the Defendant: D. Johnson Place of Hearing: Kelowna , B.C. Date of Hearing: November 2, 2017 Date of Sentence: November 28, 2017

Introduction [ 1 ] Mr. D. pled guilty to touching his daughter for a sexual purpose contrary to

section 151 of the Criminal Cod e and breaching an undertaking contrary to

section 145 . [ 2 ] Mr. D. began sexually assaulting his daughter when she was 6 until she reached the age of 10. The abuse involved fondling, having his daughter perform oral sex on him and on one occasion having her lie naked on top of him. [ 3 ] The Crown seeks a sentence of six years while counsel for the accused urges this court to impose a sentence of four years. Circumstances of the Offence [ 4 ] Mr. and Ms. D. have four children; three sons and a daughter.

Their daughter E. is the victim of the sexual touching. [ 5 ] The touching started in 2012 when E. was 6 and lasted until 2016 when she disclosed to her mother. E. is now 12. [ 6 ] The touching started with a kiss to her lips and over time, progressed to E., on at least four occasions, performing oral sex on her father. The incidents usually occurred in E.’s bedroom. [ 7 ] Mr. D. also showed his daughter pornography on his phone and computer. [ 8 ] Following a separation in 2015, Mr. D. left the family home and moved into a basement suite. His children, including E., spent overnights at the basement suite.

During the overnights, E. would sleep in her father’s bed. [ 9 ] In the summer of 2016, E. recalls an incident when her father removed her clothing, laid on his back and placed her on top of himself so his penis touched her vagina, while he fondled her buttocks. She said the incident lasted for approximately 15 minutes. [ 10 ] In addition to oral sex, E. also touched Mr. D.’s penis with her hand. [ 11 ] Eventually E. began to express reluctance in going to her father’s place and her mother asked her what was wrong. E. told her mother what Mr. D. had been doing and she confronted him.

Initially he responded angrily and denied any wrongdoing. [ 12 ] He threatened to kill himself. Police were called and located him near a lake. Inside his vehicle police found a notebook in which Mr. D. wrote that he planned to kill himself and said goodbye to his children. [ 13 ] Mr. D. would spend a few days in hospital before being discharged. [ 14 ] He was arrested and released by police. His release conditions included a prohibition from possessing any device capable of accessing the internet. On August 15, 2017, police found him in a parked vehicle with a cell phone and arrested him.

He has remained in custody for a total of 105 days. Victim Impact [ 15 ] According to E.’s mother, aside from some anxiety, E. has not demonstrated any ill effects of the abuse. However, E.’s victim impact statement tells another story. Clearly she is struggling with the shame and stigma of what occurred, and the conflicting emotions of her love for her father and anger for what he did. She also wonders what will become of her family, and what others will think.

Despite her tender years, E. expresses concerns that she may find it difficult forming loving and caring relationships with other adults as she grows older, and wonders whether anyone will ever be capable of loving her. [ 16 ] E. has not gone to any counselling. Her mother says there are plans for counselling but wants to wait until the criminal matter is concluded. It is difficult to know what help she will require, and to know exactly how these events will affect her as she gets older.

One can only hope that she will not suffer from suicidal ideation, substance abuse, and other mental health difficulties that are common among victims’ of sexual abuse. Circumstances of the Offender [ 17 ] Mr. D. is 32 years old. He would have been between 26 and 30 years of age when he committed his crimes against his daughter. [ 18 ] A teenager sexually assaulted Mr. D. when he was eight years old; otherwise, his childhood was unremarkable and positive. [ 19 ] He has always maintained stable employment.

Prior to his incarceration he was working as an electrician. [ 20 ] He has never been diagnosed with any mental illness, or any addictions to alcohol or drugs. However, he does admit having persistent and repetitive sexual impulses or urges that he experiences as irresistible or uncontrollable, leading to repetitive sexual behaviours (such as watching pornography or engaging in sexual conversations with unknown women on the internet). The behaviours first developed in adolescence.

He says they have consumed a lot of time and that he engaged in them while disregarding the risk for physical or emotional harm to him or others. Although he was acutely aware of this problem, he did not seek treatment or counselling until after being charged. [ 21 ] Pre-sentence and psychological reports were prepared. Both writers expressed concerned about Mr. D. limited insight into his offending behaviour. He could not explain why he began a sexual relationship with his daughter, beyond describing it as an inappropriate expression of love.

At one point, he described his daughter as a “mini” version of his wife, resulting in a feeling of love

that he should not have had. [22] He said that he knew from the outset that what he was doing was wrong but was unable to stop. He rationalized continuing bytelling himself that the “damage was already done”; “he was guilty, so what’s the matter”; and “I was already screwed … so may as wellsee how far it can go.” [23] During his interviews with the report writers, he minimized the harm by reiterating that he always had his daughter’spermission, and that she liked it.

He pointed out that although he informed his daughter that what they were doing was wrong, that hewould go to jail and the family would be ripped apart if someone found out, she continued to approve of the wrongful behaviour. [24] He told the author of the pre-sentence report that he could have kept the relationship hidden forever but chose not to so he couldtry and reconcile with his wife. He credits himself with telling his daughter what they were doing was wrong, and treating her differentlyto prompt her disclosure to her mother. [25] Mr.

D. told the psychologist that he is not a bad person, and although he does not believe he belongs in jail, he is resigned to thefact that he will be incarcerated. [26] The psychologist describes Mr. D.’s behaviour as opportunistic, rather than predatory, but says his risk of recidivism is high. She said that if he participates and fully engages in treatment, his risk could potentially decrease to moderate rather than high. AlthoughMr. D. told the psychologist he did not see much benefit to treatment, he told the court he is willing to participate and wants to get well. [27] Mr. D. does not have a criminal record.

Crown’s Position on Sentence [28] The Crown argues that a sentence of six years in jail for the sexual touching offence is appropriate and a further seven days forbreaching the undertaking. The Crown relies on the following cases in support of their position: R. v. F.S., 2017 BCCA 354; R. v.D.R.W., 2012 BCCA 454; R. v. R.E.L., 2010 BCCA 493; and R. v. R.A.J., 2010 BCCA 304. The Crown also seeks a number of ancillaryorders. Accused’s Position on Sentence [29] Counsel for the accused argues that a sentence of four years is more appropriate and agrees with the Crown’s recommendationof seven days for the breach.

Counsel relies on the case of R. v. O.M., 2009 BCCA 493. Objective Seriousness of the Offence [30]

Section 151 of the Criminal Code carries a mandatory minimum sentence of 1 year and provides for a maximum sentence of 14years in jail. Primary Objectives and Principles of Sentencing [31] The primary considerations in sentencing offenders for the sexual abusing children in a trust relationship are denunciation,deterrence, and protection of society, particularly defenceless and vulnerable children. Rehabilitation, although always an importantconsideration, takes on a secondary status; it simply is not a primary consideration. In R. v.

L.F.W., 2000 SCC 6 , [2000] 1 SCR132 at para. 31, Madam Justice L’Heureux Dubé explains why when she writes: . . . I do start from the premise that sexual assault of a child is a crime that is abhorrent to Canadian society and society’s condemnationof those who commit such offences must be communicated in the clearest of terms. As to moral blameworthiness, the use of a vulnerablechild for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst of intentions. [32] Ultimately, the sentence I impose must be proportional to the gravity of the offending behaviour and Mr.

D.’s moral culpability. This requires both a careful examination of the circumstances of the offence and the offender to ensure the “punishment fits the crime.” Aggravating and Mitigating Factors [33] In determining an appropriate sentence, I must onsider all accurate, relevant, and reliable information about the offence and Mr.D. This will include any aggravating and mitigating factors, which would tend to increase or decrease the gravity of the offence and hismoral blameworthiness. Mitigating Factors 1. Guilty Plea [34] Mr. D. entered an early guilty plea and spared his daughter from testifying.

In cases such as this, where the child’s word wouldhave been pitted against her father’s, and the nature of the testimony to be given, the plea is worthy of substantial weight. 2. Remorse [35] Although I accept that Mr. D. is sincerely remorseful for his actions, I am mindful of his tendency to minimize the impact hisbehaviour had on his daughter. 3. No Prior Criminal Record 4. The Absence of Vaginal Penetration

[36] This is not a mitigating factor, but rather an aggravating factor that is not present. Its absence does not automatically relegateMr. D.’s behaviour to the lower range of sentences. In R. v. Hume, 2016 BCCA 230 at paragraphs 37 - 41, the Court of Appeal made thefollowing observation: [37] In Worthington, this Court upheld a sentence of four years’ incarceration for the appellant’s sexual assault of his stepdaughter. The Crown had not proven that the sexual abuse involved penetration.

In upholding the sentence, the Court emphasized the appellant’smoral culpability and the particular circumstances of the case: [41] … The offence must be taken as not to have included penetration or sexual intercourse. Nonetheless, in my view, the behaviourin the instant case is egregious. The rather clinical descriptions of the behaviour which is admitted, to some degree, mask the forbiddennature of Mr. Worthington’s actions, and his admitted knowledge, from the beginning, that his behaviour was wrong.

I would go so faras 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 thetrust at the heart of the child-parent relationship is the extent to which that relationship was violated, the duration of that violation, andthe offender’s appreciation of that violation as the behaviour continued.

We are here concerned with the offence of sexual assault, whichis a generic offence that may apply in respect to a complainant of any age, over-laid with the abuse inherent in the youth of thecomplainant, over-laid with the breach of trust in the family relationship. [Emphasis added by Garson J.A.]” [37] I agree that whether or not there is a vaginal penetration, is not, as the Court put it, “the measure of the offence”. Indeed, whenit comes to young children, whether the perpetrator puts his penis in the child’s mouth or vagina, the crimes are equally abhorrent. 5. Gainfully Employed 6.

The Support of His Family 7. The Impact on the Family Unit [38] Mr. D. was an important provider for his family. He has three other children who miss him. His family will be affected by hisincarceration. Their interests, however, cannot be a primary concern. In R. v. Spencer, (CA), Mr. Justice Doherty,describes role the impact on the offender’s family has in sentencing when he states at para. 47: The fact that Ms.

Spencer has three children and plays a very positive and essential role in their lives cannot diminish the seriousness ofher crime or detract from the need to impose a sentence that adequately denounces her conduct and hopefully deters others fromcommitting the same crime. Nor does it reduce her personal culpability. It must, however, be acknowledged that in the long-term, thesafety and security of the community is best served by preserving the family unit to the furthest extent possible.

In my view, in thesecircumstances, those concerns demonstrate the wisdom of the restraint principle in determining the length of a prison term and the needto tailor that term to preserve the family as much as possible. Unfortunately, given the gravity of the crime committed by Ms. Spencer,the needs of her children cannot justify a sentence below the accepted range, much less a conditional sentence. Aggravating Factors 1.

Nature of the Acts and Escalation of Invasiveness [39] There were multiple forms of contact that escalated from a kissing on the lips to requiring his daughter to perform oral sex onhim and simulating intercourse by having his penis touch her vagina. 2. Breach of Trust [40] When one considers the actual circumstances of the offending behaviour, the gravity of the touching is underscored. Not onlyis forcing a child between the ages of 6 and 10 to engage in fellatio itself an egregious form of child abuse, the abuse here wasperpetrated by a parent, the very person to whom a child looks for protection and care. 3.

Age and Vulnerability of the Victim [41] E. was at a very tender age when the abuse started and very vulnerable throughout the duration of her father’s offendingbehaviour. 4. Impact on the Victim [42] It is difficult to fully assess the impact Mr. D.’s actions will have on his daughter. As noted by the victim impact statement,despite only being 12, E. has the mature insight to know that there are more struggles ahead for her and that she will be dealing with theeffects of her father’s actions for the rest of her life. 5. Frequency and Duration [43] The offending behaviour was not a single isolated incident.

Rather it carried on over a period of years. Not only does thisincrease the severity of the impact on the victim but demonstrates Mr. D.’s inability or unwillingness to control and end his behaviour. 6. Grooming Behaviour [44] Mr. D. engaged in grooming activities such as showing his daughter pornography. 7. Psychological Manipulation [45] Mr. D. told his daughter that if anyone found out he would go to jail and it would rip the family apart. He intimated to thereport writer that he was deserving of credit because he did this in an effort to dissuade his daughter from continuing their “relationship”.

Despite this claim, it is not lost on this court that his actions would have encouraged her to keep their secret quiet, a burden no child should ever have to carry. 8. Location of the Offence [ 46 ] Most of the offending behaviour occurred in E.’s bedroom, or in Mr. D.’s basement suite, both places that she ought to have been, and had the right to feel safe. 9. Lack of Insight [ 47 ] Mr. D.’s lack of insight and motivation for treatment are not aggravating but rather mitigating factors that are not present. They demonstrate some challenges for future rehabilitation and Mr.

D.’s ability to lower his risk of recidivism. [ 48 ] Both report writers describe how Mr. D. minimizes his behaviour by saying that his daughter gave him permission to continue. When asked by the psychologist whether he would be willing to undergo treatment, he replied that he did not see a huge benefit and would rather work through it with his daughter. At the sentencing hearing, Mr. D. said that he was willing to go treatment and take counselling and that he misspoke when he was speaking to the psychologist.

Although his explanation was wanting for credulity, I accept that he will likely, albeit reluctantly, participate. Sentence Range [ 49 ] In the case of sexual assault of children the variables are considerable, the backgrounds of the offenders are often very different, the range of offending behaviour is broad, and the nuances of the relationship between the victim and the offender are varied, all of which make identifying a precise range difficult. [ 50 ] Despite this difficulty, the courts have tried to address the range. In R. v.

O.M., 2009 BCCA 493 at paragraph 11 , the court said this: Prolonged sexual abuse of a child requires a denunciatory sentence. The cases in the range of four to seven years reflect this. [ 51 ] Some of the cases relied on by the Crown reflect more serious circumstances. The cases relied upon are: R. v. E.S. , 2017 BCCA 354 (7.5 years for 5 years of sexual assaults including frequent instances of forced sexual intercourse resulting in the victim becoming pregnant); R. v. R.A.J. , 2010 BCCA 304 (8 years, for 8 years of sexual assaults including anal intercourse, and physical assaults - after trial); R. v.

R.E.L. , 2010 BCCA 493 (5 years, for 6 years of sexual assaults including oral sex, digital penetration and sexual intercourse). [ 52 ] The Crown also relies on R. v. D.R.W. , 2012 BCCA 454 , in that case, the accused pled guilty to sexually assaulting his teenage step-daughter over an 18-month period. The assaults involved, kissing, touching, having her masturbate him, oral sex to each other and rubbing his penis against her vagina. The offender had taken counselling before sentencing.

Although he received credit for pleading guilty, the court pointed out that the victim had not been spared the ordeal of having to testify at a sentencing hearing. The Court of Appeal upheld a sentence of 4 years. [ 53 ] The case relied upon by counsel for the accused is R. v. O.M. , 2009 BCCA 287 . Counsel argues that despite the circumstances in O.M. being more egregious than those in the case at hand, the Court of Appeal increased the sentence from 2 to 5 years and did not go as high as 6 as recommended by the Crown here.

In O.M. , the accused was sentenced to 5 years for prolonged sexual assaults including sexual intercourse over 13 years commencing at infancy. He had a prior conviction for sexual assault. There were also some mitigating factors; the accused had been sexually abused by both his mother and her partner, and demonstrated a very strong commitment towards treatment. [ 54 ] With respect to O.M. , I am mindful that the decision is almost a decade old.

Since that decision we have witnessed multiple changes to the Criminal Code emphasizing harsher sentences for these types of crimes, and the sentences imposed appear to be increasing in severity across the country. [ 55 ] Other cases that I have considered are R. v. Wesley, 2014 BCCA 321 and R. v. R.J.B. , 2016 BCCA 428 . In the former case the accused was sentenced to 5 years for sexually assaulting a 7 - 8 year old child over 2 years. The assaults did not include intercourse. The accused although in a position of trust, was not in the same position that a father would have been.

He had co-opted the child’s aunt into helping him commit the offences. From the standpoint of the principles enunciated in Gladue, the accused had a very sympathetic background and was of limited mental abilities. He had a criminal record which included three prior assaults and an aggravated assault. The psychiatrists reported deemed him to be a very high risk to reoffend. [ 56 ] In the latter case of R.J.B. , the appellant sexually assaulted his mentally disabled daughter over four years, starting when she was 10 years old. The assaults occurred 1-2 times per week. There were no mitigating factors.

The appellant did not plead guilty, continued to deny the offence, demonstrated no empathy for the complainant or insight into his own behaviour, and had a previous conviction for sexually offending against another daughter from his first marriage (which he also continued to deny). Because of her disability, the victim provided little detail regarding the nature of the assaults beyond saying her father would lie on top of her with his penis against her vagina. The accused was not an ideal candidate for treatment, and considered a high risk to re-offend.

The Court of Appeal reduced the sentence from six to four years and commented that the sentence fits within the range of sentences imposed for sexual assaults involving similar offenders and similar circumstances. Pre-Sentence Custody [ 57 ] Mr. D. has been in custody for 105 days. There are no statutory bars to enhanced credit and I grant him credit of 158 days. Sentence

[ 58 ] After considering the circumstances of the offence, Mr. D.’s own circumstances, the submissions of counsel and the case law, I am satisfied that on count #1 on Information 85888 a fit sentence is 5 years or 1,825. Mr. D. has been in custody for 105 days and I am granting him enhanced credit of 158 days. The sentence is 1,667 days. [ 59 ] There are the following ancillary orders: 1. $200 victims’ of crime surcharge. I am extending the time to pay to 12 months following your release from custody. 2. Sexual touching is a primary designated offence. Pursuant to

section 487.051(1), I make an order in Form 5.03 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National Databank. 3. Pursuant to

section 109 you are prohibited from possessing: any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years, and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. 4. Pursuant to

section 490.012, you are required to comply with the Sex Offender Information Registration Act for 20 years. 5. Pursuant to

section 743.21(1), you must have no contact or communication directly or indirectly with E.D. while you are in custody except through a lawyer. 6. Pursuant to

section 161 of the Criminal Code , you are prohibited for 15 years from:

a) attending a public park or 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;

b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves a position of trust or authority towards persons under the age of 16 years;

c) having contact or communication with a person who is under the age of 16 years, except his own children that he has as of today’s. Except in the following circumstances: 1. During lawful employment, with the circumstances of employment being approved in advance in writing by the court, your probation officer, your parole officer, a member of the Royal Canadian Mounted Police, or the person to whom you are reporting under the Sex Offender Information Registration Act . You must carry a copy of the written permission with you. 2.

As approved in advance in writing by the court, your probation officer, your parole officer, a member of the Royal Canadian Mounted Police, or the person to whom you are reporting under the Sex Offender Information Registration Act . You must carry a copy of the written permission with you. [ 60 ] On Information 247955 count #1 the sentence is 7 days to be served concurrently. [ 61 ] There is also the following ancillary order: 1. $100 victims’ of crime surcharge. I am extending the time to pay to 12 months following your release from custody. _____________________________ The Honourable G.

Koturbash Provincial Court Judge