R. v. J.L.H., 2018 BCPC 221

Citation: R. v. J.L.H. 2018 BCPC 221 Date: 20180808 File No: 86304-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. J.L.H. PUBLICATION BAN PURSUANT TO S. 486.4 OF THE CRIMINAL CODE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Crown: R.S. McLeod Counsel for the Defendant: R. Ballantyne Place of Hearing: Abbotsford , B.C. Dates of Hearing: May 11, 2018 and July 9, 2018 Date of Judgment: August 8, 2018 [ 1 ] J.L.H. (“Mr.

H.”) has entered a guilty plea to Count 1 of this two Count Information, wherein on or about May 12, 2017, at or near Abbotsford, in the Province of British Columbia, did sexually assault M.E., contrary to s. 271 of the Criminal Code . Mr. H. appears

before me for the purposes of sentencing. [ 2 ] Mr. H. was observed by his wife sexually assaulting the disabled adult in their care. Mr. H. was forthcoming and made full disclosure at the time of the offence. The victim, that being M.E., is [omitted for publication] years of age, however, has the mental capability of a six-year-old, and some reports indicate the mental capacity of a 13-year- old. She resides in the home of Mr. and Mrs. H., along with another disabled adult, for whom Mrs. H. is a caregiver. Mr.

H. knew that the victim suffered from a mental disability, he knew that historically she had been sexually assaulted, and being in a position of trust, he took advantage of that position. [ 3 ] The victim was interviewed with a worker present. The victim disclosed that Mr. H. entered her room, kissed her, placed his hands in her pants and rubbed her buttocks; that she told him to stop. She pushed Mr. H. away and cried. He refused to stop. This was observed by his wife, and Mr. H. thereafter left the room. The victim disclosed that this had also occurred one week prior, with Mr.

H. touching her buttocks and her breasts. Mrs. H. reported this immediately to her employer. Mr. H. turned himself in to the police and provided a voluntary statement. Mr. H. self-disclosed that in the one month prior, he had hugged and kissed the victim, had placed his hands on her back and in her pants, and had touched her breasts while she was clothed. He disclosed that sometimes he did this more than one time per day, and that it occurred every couple of days. He admitted that he knows that the victim has a mental health disability. He apologized for any pain that he caused. [ 4 ] Of note, Mr.

H. was well aware of the victim’s fragile mental health disability and that the victim had been sexually abused by others in the past. [ 5 ] Mr. H. appears before this Court with no criminal record. [ 6 ] Crown Counsel reviewed both the Victim Impact Statement and an updated Statement, wherein the victim is in counselling, and is now sleeping better and not so angry. The initial Victim Impact Statement dated June 2017, disclosed that the victim has said that she is sad, afraid, suffered from bad dreams, angry, and that Mr. H. violated the trust.

She further disclosed that she had to take medication to sleep and assist her, that she is afraid in her home, that she no longer wishes to see him, and there is a hand drawn picture by the victim of her face hand drawn with tears coming from her eyes. The Updated Victim Impact Statement discloses that she is no longer as angry, that counselling has assisted her. [ 7 ] Crown Counsel reviewed the Forensic Psychiatric Services report dated March 29, 2018, wherein it was disclosed that much of what Mr. H. reported was not directly corroborated by independent sources.

He self-reported that: he has been married for 12 years; that they care for two disabled adult females and that he has not engaged in sexual relations with his spouse for over five years. He admitted to inappropriately touching and groping the complainant; he acknowledged that the victim has the mental capacity of a six-year-old child; and he acknowledged that the victim was incapable of giving informed consent. He reported that in the past he attended to see a psychologist and psychiatrist, that he attended a “Porn Addiction” group, and he is currently attending counselling in Chilliwack.

However, the writer of the report on page 6 notes that “he still shows difficulties identifying his triggers and still uses a number of cognitive distortions”, he is currently on medication to lower his libido. He admitted to the offence, however, on page 7, it notes that “… he still shows a number of cognitive distortions” and endeavoured to assign blame to the victim. He was assessed as a “very low risk for future sexual recidivism” (page 9). Defence counsel provided a medical-legal report from Dr. Mangat, a family physician to challenge the contents of the report prepared by Dr.

Lopes, a registered psychologist, however, I respectfully disagree and find a number of omissions in the report of Dr. Mangat. I place considerable weight upon the report from Dr. Lopes. In the report of Dr. Lopes dated March 29, 2018, the accused was interviewed on March 18, 2018, wherein he acknowledged to Dr. Lopes that he was unsure of the number of times that he had touched the complainant, but acknowledged that it was every “couple of days” and sometimes more than once per day (page 2). Dr.

Lopes notes that the accused still sought to place blame on the victim stating that the complainant is “a little promiscuous and I guess she tempted me and I gave into it.” It is very clear that there was no consent given to the accused to do what he did to the complainant. The complainant was incapable of giving informed consent and the accused was very much aware of that. The accused denied any substance abuse, however, as noted herein, the accused was frequently taking his medications at double the prescribed dose. Most notably on page 7 of the report of Dr.

Lopes, the psychologist finds, “….he was quick to understand his offence. It is also noted that he has attempted to blame his offences on a mistake of medications and having been in a fog when he committed his acts.

However, there is little chance of that having been the case given that he sought out the victim and was careful to keep it a secret over multiple instances.” He is noted to be a very low risk for future sexual recidivism. [ 8 ] There is a Pre-Sentence Report dated March 28, 2018, wherein it was disclosed: • he married his current spouse in 2005; • he does not intend to live in the same residence as his spouse until she retires from her employment and position of trust; • he suffers from degenerative disc disease; • he served an extensive amount of time in the US military in the past; • he suffers from depression; • he self-reported that he is remorseful for his actions; he reported that he was on medication at the time of the offence which he believed clouded his judgment and he was in what he described as a “fog”; and • he is 68 years of age. [ 9 ] He also self-reports that there is no concern with alcohol or substance misuse, however, the accused was taking some of his medications at twice the prescribed dosage by his own choice and conduct.

In the course of his interview the accused admits his guilt and declared his remorse, however, continued to fail to accept full responsibility for his actions blaming the VA medical caregivers for being over medicated, however, he failed to disclose to the writer of the PSR that he was over medicating himself over and above the prescribed dosage. The PSR notes that he suffers from a degenerative disc disorder, has had a number of back surgeries, suffers from

depression, and has been attending counselling. [10] Defence counsel produced, in the midst of the sentencing hearing, a late in the day expert medical report prepared by Dr.Mangat who is a family physician, with such report dated June 29, 2018. He is a family physician and does not have any specificmedical speciality thereafter. He deposed in his report that he reviewed the historical medical records of the accused that were furnishedto him by the spouse of the accused. He first saw the accused in September 2017, and since such time has seen him 13 times.

His reportprovides an opinion about the impact that the medicines that the accused was prescribed had on the accused. He notes that the accusedhas severe depression, has multiple psychiatric co-morbidities, that one medication was prescribed from 150 mg to 225 mg daily,however, the accused admitted that he was taking up to 300 mg daily and there was no explanation afforded for doing so.

The accusedsuffers from low testosterone, and there is a notation that his VA medical physician sought to reduce his self-administered injectionsfrom every two weeks to every three weeks, however, the accused self-administered testosterone weekly. Again, there was noexplanation afforded for him doing so. Prior to the offence, he was taking oxycodone, Gabapentin and a number of other medications. Dr.

Mangat wrote that the combination of some of the medications contributed to the accused having memory problems, however, itfailed to address or explain why the accused was in some cases, doubling up his self-administration of medication both orally and byinjection. This was not due to a medical misdiagnosis. Page 4 of the report of Dr. Mangat notes that the accused “…states he does notremember very clearly what had happened.

He remembers being fully clothed and touching the resident in between her panties and herpants”, and thereafter it states, “he subsequently left the house and reported what he had done to the police.” It is most certainlyconflicting in nature to report that one does not remember clearly what happened, but then distinctly remembers the sexual touching, andthereafter goes to the police and makes a full voluntary statement. In addition, in his voluntary statement to the police on May 13, 2018,Mr. H. stated, “I did wrong. I took it to the extreme.

It was easier to take advantage.” I am unable to accept the finding of Dr. Mangaton page 5 of his report, wherein he concludes that “…different jurisdictions resulted in a fragmentation of clinical records…”; when inactual fact, while perhaps there should have been more diligent monitoring, the troubling fact is that the accused resided with his wifewho is a trained retired nurse, and he was self-administering both orally and by injection, a plethora of prescription medications at doublethe prescribed dosage. That is not the fault of a fragmented system.

The report notes that he suffers from the side effect of medicationswith an added cognitive impairment and fragmented medical monitoring. However, the accused has failed to disclose to Dr. Mangat thatthe accused groomed the complainant, and admitted that he sexually touched her on a number of occasions prior to being physicallycaught by his spouse. This was not a one-off incident. The accused failed to disclose to Dr. Mangat his voluntary statements as notedabove that were made to the police immediately after the offence date. The accused led Dr. Mangat to believe that this offence hadoccurred only one time.

In addition, the self-reporting and finding by Dr. Mangat that the plethora of medications clouded Mr. H.’sjudgment and memory conflicts with the fact that he immediately turned himself in to the police after the incident, and he admitted thecircumstances in the PSR and the report of Dr. Lopes. To this day, Mr. H. continues to deflect and blame others and minimize thegravity of the offence to which he is before this Court. [11] Crown Counsel reviewed both the aggravating and mitigating factors. Those aggravating factors include that Mr.

H. was in aposition of trust over an adult female with childlike cognitive functions, and he knew that she had been sexually abused in the past. Mitigating factors include that he confessed immediately, he removed himself from the home, and he has been actively engaged incounselling. He has no criminal record and entered a guilty plea. [12] Crown Counsel seeks to rely upon the decision of Regina v. Plehanov, [2017] B.C.J.

No. 2386, wherein the British ColumbiaSupreme Court imposed a six-month period of incarceration, followed by a 24-month Probation Order, for an offence involving a six-year-old girl who knew the accused through church. He rubbed her buttocks twice and touched her groin. He had no prior record. Hesuffered from major depression and he was considered to be a moderate risk to re-offend. Similar to the matter before me, this victimhad childlike mental capabilities.

Distinguishing this decision is s. 718.01 of the Criminal Code, as it involved an offence of abuseagainst a person under the age of 18 years, and therefore the objectives of both denunciation and deterrence were to be emphasized. However, so too, I am guided by s. 718.2 of the Criminal Code, wherein if an accused has abused a person, and in doing so has abused aposition of trust or authority, that this is an aggravating factor for sentencing.

In the Plenahov decision, at paras. 93 - 95, the Court didnot depart from a custodial sentence, noting that it considered the age of the victim, the nature, duration and frequency of the assaults,whether a position of trust was used, the effect on the victim, an early guilty plea, an expression of remorse, the offender’s insight andtreatment taken thereafter, and that there were no exceptional circumstances that would warrant a deviation from a custodial sentence. InRegina v. Careen, 2012 BCSC 918 , [2012] B.C.J.

No. 1271, the British Columbia Supreme Court declined to impose aConditional Sentence Order and imposed a period of 60 days of intermittent incarceration to be followed by a 12-month Probation Orderfor an offender who sent a series of sexually explicit text messages to a female student. Mr. Careen was 52 years of age. He submitted adearth of reference letters, he would never teach again. He was found to be a low risk of recidivism and sexual violence. The offenceinvolved a sexual activity while he was in a position of trust over young students. He was exposed to harshly by the media.

He had anoutstanding academic teaching record and had strong support in the school community, despite the conviction. In imposing the sentence,the Court held at paragraph 33: …[R]anges of sentences are meant to be guidelines, rather than straitjackets, and the appropriate sentence must ultimately be conditionedby the particular circumstances of the offence and offender and the goals of sentencing that require the greatest emphasis based on thosecircumstances. I note, however, that Careen, is distinguishable on the facts that it involved sexually explicit text messages, wherein in the matter beforeme, Mr.

H. physically touched the victim, on multiple occasions. In the British Columbia Supreme Court decision of Regina v.Maxmenko, [2015] B.C.J. No. 2611, the accused had a related prior record. He twice put his hands on his 12-year-old family member,including touching her bare breasts, and put his hands onto her bare buttocks. The Court imposed a sentence of 5.5 months incarcerationto be followed by an 18-month Probation Order. The Court found that he suffered significant financial and emotional loss, he hadentered a guilty plea, and that he was in a position of trust.

Finally, Crown Counsel reviewed the British Columbia Provincial Courtdecision of R. v. J.L.B., [2017] B.C.J. No. 195, wherein the Court imposed a conditional discharge with 18 months’ probation for anoffender with no prior records, he faced deportation, it involved an adult female victim on one occasion and a complainant who was notin a vulnerable place. The Court placed significant emphasis on the fact that a conditional discharge would reduce the likelihood of himbeing deported, and that it believed that the sentence imposed would address deterrence.

In addition, the offender had attended a numberof sexual offender treatment sessions prior to sentencing. However, in the J.L.B. decision, the complainant did not have any mentalhealth disabilities, the complainant was not vulnerable, and it was not a repetitive act in nature as the accused has done in the matter

before me. [13] Defence counsel has produced a number of character reference letters in support of Mr. H. [Omitted for publication]Counselling treated Mr. H. with counselling sessions, and it noted that initially, when he reported that his medication regime impactedhis cognitive ability, it confirmed that Mr. H. is suffering from depression, that he regularly attended sessions from October 2017through to January 2018, and that he was making, “good progress” (page 2) in addressing the self-awareness of the offence. This, ofcourse, is markedly different from the Pre-Sentence Report.

There was a reference letter from a friend who has known Mr. H. since2003 and is a former correctional officer who described Mr. H. as being very upset and confused, that Mr. H. is grappling with his timein the US military. There were letters of support from friends and that the offence was what was called as being “completely out ofcharacter” for Mr. H., that there has never historically been any concern about his moral character or work ethic.

His daughter wroteabout him working multiple jobs while in the US military, that he attends church, that her father is remorseful, and that he has abided byhis bail terms. His current spouse wrote a letter of support stating that he became depressed after multiple back injuries; he was slowlylosing his memory and recall; that the US Veterans’ Affairs failed to provide support to Mr. H., including sending incorrect dosages ofhis medications. However, of troubling note, Mrs.

H. appears to place some of the blame upon the victim and writes, “I’m not sure ifyou are aware that [M.E.] always has displayed poor/weak social barriers. She has been unable at times to determine who/when to greetpeople and I have observed her hugging men on the street who are complete strangers,” and that she “referred her back to her counsellorto ask about forgiveness”. [14] Defence counsel relies on the Provincial Court of British Columbia decision of R. v.

T.J.H., 2012 BCPC 115 , 2012BCPC 0115, which was cited in the J.L.B. decision to support a conditional discharge, noting that the accused has acceptedresponsibility, that he did not go looking for a victim, and was described as being an opportunist, that the Court was mindful it needed tosend a message that such behaviour is not acceptable, and that it was required to address the principles of sentencing. This isdistinguishable, in that in the matter before me, Mr.

H. was in a position of trust, he sexually assaulted a disabled adult, and he sought herout, and in doing so, sought her out more than once by his own admission. Defence counsel also relied on the Provincial Court of BritishColumbia decision of R. v. B.L., 2011 BCPC 254 , 2011 BCPC 0254, wherein B.L. fondled the breasts of the complainant andtouched her groin, all while the complainant was telling him to stop. The offence was not reported to the police for a number of months.

In the B.L. decision at para. 13, the Court noted: It is acknowledged in many of the cases that it is possible to craft a sentence which meets the principles of general deterrence anddenunciation, promotes a sense of responsibility in the offender, and makes some reparation when that sentence is in the form of aconditional discharge. In the seminal case, R. v. Fallofield, the two-prong test is first to consider whether or not it is in the accused’s bestinterest. It is only if the sentencing judge is satisfied that to do so is not contrary to the public interest that it is appropriate.

There are, ofcourse, multiple facets to the public interest. The discharge provisions were enacted to insure that not everyone is stigmatized by acriminal record when they have made a mistake, and I accept the submissions of defence counsel…that there were issues, with respect toconsent, for trial. [15] Defence counsel submits that Mr. H. is a long-term permanent resident of Canada, and that a criminal conviction may makehim subject to an Exclusion Order. I am cognizant of case law as it pertains to such, and have given it limited weight.

Sexual assault is asignificantly aggravating offence in this country which must be addressed in the principles of sentencing for consideration. [16] I am mindful of s. 718 of the Criminal Code, which articulates the purpose and principles of sentencing that is to protectsociety, maintain respect for the law, and to impose just sanctions where applicable and required to do so.

Unlawful conduct is to bedenounced; there must be consideration of the harm done to the victim, rehabilitation is to be considered, one must provide reparationsfor harm done to the victim and the community, and there must be a sense of responsibility undertaken by the offender.

Section 718.2 ofthe Criminal Code specifically articulates that a sentence shall take into consideration evidence that the offender abused a position oftrust or authority, and Mr. H. most certainly did so. This is an articulated statutory aggravating factor, and the Court must considersimilar sentences on similar offenders. An offender should not be deprived of liberty, and all other sanctions must be considered prior toimposing incarceration. I have carefully considered the principles of sentencing of deterrence, denunciation and rehabilitation. [17] Defence counsel respectfully submits that Mr.

H. should have a conditional discharge imposed upon him and relies upon thecase law from the Provincial Court in 2012. I respectfully disagree. There is a dearth of case law from the British Columbia SupremeCourt more befitting of the sentence to which Crown Counsel has convinced this Court, which is a Conditional Sentence Order. Theaccused groomed the complainant. He was in a long-term position of trust as a support person for his spouse in the home where the twofemales resided.

He knew that the complainant had some mental deficits wherein her mental capabilities were that of a child, and heknew that the complainant had been historically sexually assaulted in her past. He clearly groomed her and violated that position oftrust. He readily admitted to doing to what he has entered a guilty plea, and admitted that he had done so on many occasions in the past.

Defence counsel seeks to convince this court that a conditional discharge is appropriate and should consider that the childlike qualities ofthe complainant being at a mental capability of 13 years of age make her, in his words, “promiscuous.” I am not convinced, and that isan unacceptable characterization. Being outwardly friendly and wishing to hug by the actions of a complainant do not make one“promiscuous”. In this instance, the complainant specifically told Mr. H. to stop and he refused to do so. Mr. H. violated the position oftrust that he held.

After reviewing the case law, considering the principles of sentencing, and applying such to the factors before me inthis matter, I am satisfied that a fit and proper sentence is to impose a conditional sentence upon Mr. H.. Given his elderly age, hishealth, his early guilty plea and quick admission, his attendance at counselling prior to any plea entered, I am satisfied that this is a fitand proper sentence to be imposed. I am not convinced, as Mr. H. endeavours to convince this Court now, that he was in a haze and didnot have clear judgment, and that some fault lays with the complainant.

His voluntary statement to the police and the report of Dr. Lopesclearly contradicts that path. [18] After carefully considering all of the foregoing, I am satisfied that a six-month Conditional Sentence Order with the followingterms and conditions is appropriate:

a) Keep the peace and be of good behaviour;

b) Appear before this Court as and when required to do so;

c) You are required to report in person to your Conditional Sentence Supervisor in Abbotsford, British Columbia no later than 2 p.m. on August 10, 2018 and thereafter no less than one time per month in person;

d) At your first reporting, you are to provide your Conditional Sentence Supervisor with your residential address and telephone number and do not change that without the prior written consent of your Conditional Sentence Supervisor;

e) For the first sixty days of this Order you are not to be outside of your place of residence between the hours of 6 p.m. to 6 a.m., save and except if you physically have on you case specific written consent from your Conditional Sentence Supervisor only for compelling reasons. Thereafter, for the balance of this Conditional Sentence Order you are not to be outside your place of residence between the hours of 10 p.m. to 6 a.m., save and except if you physically have on you case specific written consent from your Conditional Sentence Supervisor only for compelling reasons.

Should you be required to be outside your place of residence for a medical emergency, you are to provide written evidentiary documentation within 48 hours of such absence to your Conditional Sentence Supervisor. You are to present yourself to the front door of your residence or to your telephone forthwith should a peace officer, Conditional Sentence Supervisor or curfew compliance agency attend or telephone your residence to determine with compliance of this condition;

f) You are to enrol, attend and successfully complete to the satisfaction of your Conditional Sentence Supervisor any and all such counselling and assessments as so directed which at a minimum shall include the Sex Offender Treatment Programme;

g) You are to abstain absolutely from the possession and consumption of alcohol and those drugs as defined by the Controlled Drugs and Substances Act , save and except you have on you a valid prescription, duly authorized to you in your own name by a licenced physician, and if so, you are required to follow those directions and instructions as so directed by your physician for the administration of such medication;

h) You are to have no contact, directly or indirectly, with M.E.;

i) You are not to go within a one block radius of any known, or may come known to you residence, workplace, place of school and place of worship of M.E.;

j) You must not engage in activities, volunteer work or employment that could bring you in contact with persons under the age of 16 years, or adult persons with mental disabilities without the written permission of your Conditional Sentence Supervisor and when so engaged, you must physically carry this permission on you at all times; and

k) You must carry a copy of this Order and any written permission from your Conditional Sentence Supervisor with you at all times when you are outside your residence. If a peace officer stops you for any reason, you must immediately provide the peace officer with a copy of this Order and written permission without being requested to do so. [ 19 ] This shall be followed by a 24-month Probation Order with the following terms and conditions:

a) Keep the peace and be of good behaviour;

b) Appear before this Court as and when required to do so;

c) You are required to report in person to your Probation Officer in Abbotsford, British Columbia no later than 72 business hours of the commencement of this Probation Order and thereafter no less than one time per month in person;

d) At your first reporting you are required to provide to your Probation Officer your residential address and telephone number and do not change that without the prior written consent of your Probation Officer;

e) You are to have no contact, directly or indirectly, with M.E.;

f) You are not to go within a one-block radius of any known or may become known to you, residence, workplace, place of school and place of worship of M.E.;

g) You must not engage in activities, volunteer work or employment that could bring you in contact with persons under the age of 16 years, or adult persons with mental disabilities without the written permission of your Probation Officer and when so engaged, you must carry this permission;

h) You must abstain absolutely from the possession and consumption of alcohol and those drugs defined by the Controlled Drugs and Substances Act , save and except unless you have a prescription, duly authorized to you in your name by a licenced physician and if so, you are required to follow those directions and instructions as so directed by your physician for the administration of such medication; and

i) You are required to attend, enrol, and successfully complete to the satisfaction of your Probation Officer any and all such counselling and assessments as so directed. [ 20 ] In addition, in accordance with ss. 490.011 and 490.012 of the Criminal Code , as this is a primary designated offence, you shall be on the Sex Offender Information Registry for a period of ten years. [ 21 ] In accordance with ss. 487.051(1) and 487.04 of the Criminal Code , as this is a primary designated Order there shall be a DNA Order. [ 22 ] These are my Reasons.

_________________________________ The Honourable Judge K. Arthur-Leung Provincial Court of British Columbia