R. v. N.A.M. Date:, 2016 BCPC 190

Citation: R. v. N.A.M. Date: 20160628 2016 BCPC 190 File No: 8819-1-K Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA ( Youth Criminal Justice Act ) REGINA v. N.A.M. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Ms. Adrienne Murphy Counsel for the Defendant: Mr. Kenneth Sommerfeld Place of Hearing: Kamloops , B.C. Date of Hearing: June 21, 2016 Date of Judgment: June 28, 2016

[ 1 ] N.A.M. has pleaded guilty to one count of inviting, counselling or inciting S.I., a person under the age of 16 years, to touch for a sexual purpose contrary to s. 152 of the Criminal Code ; and to one count of sexual assault of S.I. At the time of the offence, N.A.M. was 17 years old. He had been in a relationship with S.I. She was 13 years old and in Grade 8. The age difference was of such significant concern to N.A.M.’s peer group that they attempted to discourage him from the relationship.

S.I.’s peer group were concerned about the controlling and manipulative behaviours they observed N.A.M. exercise over her. [ 2 ] The allegations of sexual touching and assault occurred over a period of time when they were in and out of a relationship. N.A.M. began biting S.I.’s skin when they were cuddling, causing bruising and sometimes bleeding. She lied when people noticed the marks. She felt others would not understand that he loved her despite doing this. She thought she loved him too. After about six or seven times, she told him he was hurting her and she did not like it.

He did stop. [ 3 ] On one occasion, he took S.I. to a room that seemed to be a storage room. He locked the door and papered the window. N.A.M. asked her to touch him. She said it was not a good idea. He said no one would find out and it would be their secret. The secrecy is similar to that noted in the offence he committed against his young male cousin previously. S.I. said she was 13 and did not know what to do. N.A.M. took her hand and put it on his genitals. She pulled away. He put her on a table to smell her genitals. The entire incident was upsetting to S.I.

When they parted, she felt he was angry with her for not cooperating. [ 4 ] He also persuaded her to skip school one day. They went to an alley in a remote area of Peterson Creek. He asked her to take off her pants. She did not want to. He got angry and said “Take them off you bitch”. She complied. He sat down and told her to sit on him. He forced his penis inside her. She was in pain but he did not stop until he noticed she was bleeding.

He did not say so but she felt he was angry about the blood. [ 5 ] He admitted having various sexual fantasies including urinating in a person’s mouth, which he thought were typical fantasies. On the other hand, he knew his peers would not agree. [ 6 ] On another occasion, N.A.M. asked S.I. for oral sex. She said no. He forced her to her knees to comply and urinated in her mouth, living out one of these fantasies. [ 7 ] N.A.M. told S.I. he was bisexual, that he was afraid to lose her and was ashamed of this aspect of himself. There was a boy S.I. knew in her grade. N.A.M. was getting close to him.

This boy was referred to on sentencing as J. J. told S.I. that he and N.A.M. were engaged in sexual relations. N.A.M. denied the relationship with J. Eventually the relationship with J. ended. That N.A.M. is bisexual or had a relationship with a male is not a relevant factor except that having a relationship with a male broadens the nature of his potential offending. This is particularly so since his first offence involved a young male cousin. [ 8 ] S.I. spoke to her victim impact statement at sentencing.

She related how, though she is a good student, she has had issues keeping her attention on her education because she dwells on N.A.M. and whether she will run into him. She spoke of the distress caused to her when her peers would bring up his name in conversations, and particularly when they referred to the relationship they had. Initially, following the assault, S.I. wanted only to go to bed and sleep. She has lost trust in other relationships, both romantic and with her friends. Even her relationship with her mother was strained briefly after the incident was reported.

S.I. suffered from anxiety leading to emotional breakdowns. She had panic attacks as well as emotional and physical pain. [ 9 ] S.I. described her Grade 9 year as terrible. While her own peers were asking after N.A.M., his friends were calling her vulgar names. Ultimately, S.I. was driven to change schools, no longer feeling safe at [omitted for publication]. [ 10 ] The hardest challenge for her was overcoming her self-hatred and blaming herself. She struggled with thoughts of suicide because she could not deal with her pain anymore.

It has impacted her sensitivity to her appearance including being unable to wear dresses or anything that might draw attention to herself. When she encounters N.A.M. in public, she would “have a knot that keeps twisting in my gut and it feels as if my heart will jump right out of my chest”. These assaults have had a tremendous impact on S.I. [ 11 ] During this time, N.A.M. was being counselled pursuant to a court order as a result of a conditional discharge he received for sexual touching of his young cousin.

There was a pre-sentence report prepared in January 2012 and a psychological report prepared in December 2011 with respect to that offence. The psychological assessment prepared by Dr. Richards observed in her conclusions: Although he did not threaten or physically force his cousin to participate, and both interactions were quite brief, it is of some concern that N.A.M. sat against the door of the room during the offence, effectively preventing his cousin from leaving without complying with his request.

There is no evidence that N.A.M. has committed other sexual offences, nor that he experienced any sexual abuse himself. [ 12 ] That psychological assessment also highlighted N.A.M.’s background, including that he was raised by his mother and his grandparents; that there had been concerns since early childhood of his ability to engage socially with peers; and that he was hyperactive, talkative and somewhat wilful.

An earlier assessment had revealed mild limitations in his intellectual ability and he had been diagnosed with an autism spectrum disorder, attention deficit hyperactivity disorder, oppositional defiant disorder, Tourette’s disorder and considerable anxiety. Dr. Richards concluded by encouraging a lengthy period of probation in order to ensure successful completion of his treatment program, and assessed N.A.M. at a relatively low risk of re-offence at that time.

The psycho-social report prepared at the same time by community nurse, Robyn Grattan, observed that N.A.M.’s mother, K.M., believed that the offences occurred out of curiosity. However, Ms. Grattan observed that the sexual offences happened more than once and he was aware that his behaviours were wrong. [ 13 ] The pre-sentence report prepared by the probation officer observes that N.A.M. admitted telling his cousin “it’s our secret”. The report observes that while N.A.M. recognized that what he did was “extremely” wrong, he did not really appreciate at the time of the events that it was wrong, adding “I guess”.

On that occasion, N.A.M. had pushed out of his mind the incidents until they were

discovered. He appreciated the hurt he caused to his family and the rift that it had created in it. He believed counselling was the appropriate response for him. This is the same position he takes today. [ 14 ] The forensic psychological pre-sentence assessment prepared for these offences applied a number of tests which concluded, among other things, that N.A.M.’s autism, if present, is not a significant factor. It also concludes that N.A.M. is assessed as a moderate- high to high risk of sexual offence recidivism.

This is mitigated by reduced access to underage females and males by reason of his no longer being in school. The report clarifies that sexual attraction to pre-pubescent or pubescent females have not been established and the offending behaviour may have been associated more with opportunity than sexual preference. [ 15 ] Dr.

Joneja highlighted the factors contributing to the high risk of violent re-offending, being N.A.M.’s history of violence; problems with self-awareness and insight; problems with employment and employability; attitudes that condone the violence; difficulties with stress or coping; specific neuro-cognitive deficits; difficulties with intimate and non-intimate relationships; personality features associated with a lack of empathy, antisocial tendencies, sensation seeking, and deceitful interpersonal styles; chronic and escalating sexual violence; possible sexual deviancy; and potential problems making and implementing pro-social life plans. [ 16 ] The most concerning elements of the psychological report are found in the following paragraphs: [21] According to the victim’s sister, N.A.M. “laughed in (her) face” and referred to her as a “stupid bitch” (Israel, 2014) when she warned him to stay away from the victim.

He reportedly responded to the victim’s mother with profanity when she warned him away from her daughter via social media ( ibid. ). The results of previous testing would suggest that N.A.M. experiences “intense anger” (Richards, 2011) that is sometimes suppressed and at other times expressed as sarcasm, criticism or oppositional attitudes ( ibid. ). It is likely that N.A.M. continues to experience difficulties associated with anger management. [22] N.A.M. began watching pornography at approximately 12 years of age (Stiles, 2016). According to N.A.M., he has not been victimised sexually.

N.A.M. considers himself to be heterosexual despite previous sexual relations with a male during the current offending period. He claimed that he was unable to recall all of his girlfriends because there were “too many to count on two hands.” He estimated having six sexual partners none of whom were considered girlfriends. He admitted to using protection only if his partner supplied it.

Reasons for not using protection with the victim despite the risk of pregnancy included not being able to afford condoms and no immediate access to free condoms. [23] From September to November of 2015, N.A.M. moved to Prince George with three of his friends. His friends assisted him with the cost of moving and rent and their new home. He moved with no job prospects and no vehicle. He claimed that he did not know the reason he was referred to as an “asshole” and ejected from the home. He accused his female roommate of “being a bitch,” speculating that he was unable to live up to her standards.

N.A.M. was able to obtain employment with [omitted for publication]; however, he was unable to afford to remain in Prince George and returned to reside with his mother and grandparents in Kamloops.

He claimed that he has recently submitted resumes to [omitted for publication]. [ 17 ] These passages reflect a malignant indifference to the harm he causes to others and a profound lack of insight into his conduct as it impacts his social relationships. [ 18 ] In the violence risk formulation, the following passages also present as particularly problematic amongst other clearly problematic factors present: [41] Early onset of violent conduct remains a risk factor because it suggests that maladaptive behaviour became incorporated into N.A.M.’s repertoire of techniques aimed at immediate gratification of needs or coping with conflict and frustration, probably at the expense of the development of more sophisticated and adaptive ways of coping… [42] Chronicity of violent offending is relevant to a future risk of violence because it suggests that offending is a frequently repeated activity that has not reduced in frequency or severity despite punishment or other adverse consequences.

Moreover, there is evidence of escalation in the acts of sexual violence perpetrated by N.A.M. which have become progressively more frequent, serious and diverse over time… [45] The victim claimed that N.A.M. previously mentioned his interest in urolagnia; however, he did not specifically mention urinating in her mouth. More significantly, N.A.M. did not obtain consent from the victim before performing this act nor did he provide any warning of his intention …Considering the lack of consent and disregard for the feelings of the victim, such behaviour may take on a somewhat sadistic tone.

At the time of interview, N.A.M. did not recall this particular incident. [46] Consideration for the presence of psychopathology potentially unrelated to executive functioning deficits is relevant due to the fact that N.A.M. was receiving counselling at Youth Forensic Psychiatric Services for the sexual assault of an underage age [sic] boy during the current offending period… Whilst N.A.M. may have consistently demonstrated difficulties generalising learned concepts to novel situations ( ibid .), continued sexual offending despite the receipt of remedial programming and substantial social support may suggest the presence of features associated with antisocial personality disorder and potential indicators of psychopathy such as irresponsibility, sensation seeking, and poor anger control as well as callousness, remorselessness, deceitfulness and fearlessness. [47] …Facets of psychopathy observed in N.A.M.’s assaultive behaviour may include premeditation, such as luring the victim under false pretences to a storage room in the music room and covering the window with a piece of paper before forcing her to touch his penis, as well as a tendency to be dispassionate, callous, or unempathic or perhaps even contemptuous or cruel (ie. with the use of verbal and physical violence) in his efforts to satisfy his sexual urges.

It may be interesting to note that the victim of the sexual assault in 2008 claimed to have been lured by N.A.M. with the promise of candy.

[ 19 ] The Crown seeks a sentence of two years less a day, plus a probation period of two years to follow. It is the Crown’s view that this will provide for a better balance of specific and general deterrence, protection of society, and rehabilitation. After some wavering between whether a federal sentence would be more appropriate or whether the programs offered at Ford Mountain Institution - where it is assumed N.A.M. would serve a provincial sentence - would be, Defence took the view that a provincial sentence would be more appropriate.

There is no question that the violent nature of this offending particularly against the backdrop of a prior offence and the fact that N.A.M. was still undergoing counselling, warrant a sentence in the top range of up to four years. Crown urged me to consider a provincial sentence citing the need for long term structured rehabilitation as well as the guilty plea.

Having heard S.I., whom I found eloquent and compelling, but deeply emotional, I am much persuaded that this guilty plea has saved her considerable distress that would come from testifying. [ 20 ] In seeking mitigating factors from counsel for N.A.M., I was left wanting. N.A.M. has taken no counselling independently of a court ordered regime. His only act in protecting society and curbing his behaviours has been to largely isolate himself at home. He has shown some pro-social progress by associating with a peer group that is more age appropriate.

He has been under no bail conditions since these charges first arose by way of a Promise to Appear. A significant amount of time has passed because of the time it took for the Crown to advance the charges and then for Defence to investigate sentencing options. Having said that, N.A.M. has, from the time the allegations arose, been determined to plead guilty. [ 21 ] When N.A.M. addressed the court, he expressed remorse and apologized for the harm he had caused to S.I. This is the first real indication of his insight into the harm he has caused her.

He also said he knew nothing of the harassment she suffered at the hands of his friends. Had he known, he would have made them stop. They had no right to say the things to her that they did. Their conduct cannot be an aggravating factor but this area of inquiry arose as I sought to find mitigating factors. That he seems to understand his behaviour requires rehabilitative counselling and that his conduct was criminal, is perhaps the most mitigating factor before me.

Without intensive rehabilitation, N.A.M. is a moderate-high to high risk to reoffend and so rehabilitation must be, in the interests of public safety, a paramount consideration. [ 22 ] For those reasons, I am imposing a sentence of two years less a day together with two years’ probation or 23 months and 29 days. The custodial sentence stated as a youth sentence is 719 days to be served 479 days closed custody by reason of N.A.M.’s age and 240 days in the community. The terms of the probation order to follow reflect the recommendations of the probation office, Dr.

Joneja and counsel, all of which recommendations informed me with respect to the appropriate sentence.

The terms for the two year probation order are as follows: a) 401A Within 12 hours after completion of your term of custody and supervision, you shall report in person to the probation officer at the probation office nearest your place of your release from custody, and after that you shall report as and when directed by the probation officer. b) 402C You shall reside at a residence approved by the probation officer and you shall not change your residence at any time without first obtaining the written consent of the probation officer. c) 407 You shall have no contact or communication, directly or indirectly, with S.I. d) 412 You shall not attend, at or be within 50 metres of any place which you know to be the residence school or workplace of S.I. except for: (

i) while on a highway in a moving motor vehicle in transit to somewhere else. e) 418 You shall have no contact or communication, directly or indirectly, with nor be alone in the presence of any person you know to be, or who reasonably appears to be, of the age of 16 years or less except in the presence of an adult third party, approved in writing in advance by the probation officer. f) 419 You shall not attend at any public park, school ground, daycare centre, swimming pool, playground, skating rink, community centre or recreational centre where persons of the age of 16 years or less are present or might reasonably be expected to be present, except in the presence of an adult third party, approved in writing in advance by the probation officer. g) 427 You shall attend, participate in and successfully complete any assessment, counselling or program as directed by the probation officer.

Without limiting the general nature of this condition, such assessment, counselling or program may relate to sexual offence prevention and adult forensic psychiatric counselling, and you shall comply with all rules and regulations of any such assessment, counselling or program. h) 336 You are required to make yourself available to the Royal Canadian Mounted Police for the purposes of providing a sample of your DNA pursuant to the Criminal Code , which is a primary DNA order. i) 337 You are directed to inform your probation officer of any ongoing intimate relationships with a person, male or female, including co-habitation, and consent to that person being informed of your sexual offending against children in the presence of the probation officer. j) 421 You shall not possess any pornographic materials or have any pornographic materials in your home or access any pornographic material on any internet connection. k) 415 You shall not possess or consume any alcohol or any controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician.

__________________________ S.D. Frame Provincial Court Judge