R. v. WJS Date:, 2012 BCPC 538

Citation: R. v. WJS Date: 20121213 2012 BCPC 0538 File No: 88331-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. W.J.S. BAN ON PUBLICATION Pursuant to s. 486.4(2) Criminal Code of Canada ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE BULLER BENNETT

Counsel for the Crown: A. Baldwin Counsel for the Accused: D. White Place of Hearing: Port Coquitlam , B.C. Date of Hearing: December 13, 2012 Date of Judgment: December 13, 2012 [ 1 ] THE COURT : WJS has pleaded guilty to three counts on Information 88331-1.

For the record, the Crown has proceeded by Indictment. [ 2 ] Count 1 is a charge that from the 7th day of September, 1997 to the 7th day of September, 1998, inclusive, at or near Maple Ridge, in the Province of British Columbia, he did for a sexual purpose touch directly or indirectly with a part of his body or with an object, the body of S.S., a person under the age of 14 years, contrary to s. 151 of the Criminal Code . [ 3 ] He pleaded guilty also to Count 3 that from the 14th day of March, 1999, to the 14th day of March, 2001, inclusive, at or near Maple Ridge, in the Province of British Columbia, he did for a sexual purpose touch directly or indirectly with a part of his body or with an object, the body of B.F., a person under the age of 14 years, contrary to s. 151 of the Criminal Code . [ 4 ] Finally, he has pleaded guilty to Count 10, that on or about the 30th day of January, 2012, at or near Maple Ridge, in the Province of British Columbia, he did assault C.H., contrary to s. 266 of the Criminal Code . [ 5 ] The circumstances – as they often do in these types of cases -- unfold backwards in time actually and I will start with the circumstances of Count 10. [ 6 ] The complainant, C.H., is WJS's biological daughter.

In January of this year, she was 18 years old. In the afternoon of January 30th, Ms. H. was in her bedroom watching television. She heard her father outside of her bedroom door. He said something that she did not quite understand or hear, so she went to the door and opened it. Her father much -- I would imagine -- to her surprise asked her what she was doing and at the same time had his hand down the front of his pants. He came into her bedroom and sat down beside her. Somehow managed to get into her bedroom.

He then told her to touch her own private parts and tried to pull her hand so that her hand went down the front of her pants. [ 7 ] She tried to get up off the bed, but WJS pulled her back down on the bed. During this, he asked his daughter if she wanted to see his private parts to which she said “no”. He responded with words to the effect of "You know you want to see it" and she maintained that she did not. [ 8 ] Ultimately, Ms. H. was able to free herself and got up and locked herself in a bathroom. WJS waited outside of the bathroom door for quite some time waiting for her to come out.

He did, while waiting outside of the bathroom, say he was sorry and that he would not do that sort of thing again. [ 9 ] Ms. H. later on that day packed up her belongings and her stepfather came and took her away. [ 10 ] So the nature of the assault is the grabbing and pulling at Ms. H. [ 11 ] Ms. H. told her mother and this became open in the family rather quickly the same day, January 30th. WJS' wife asked him if he had done anything inappropriate to other girls and WJS said “yes”, so the story unfolds. [ 12 ] Regarding Count 1, S.S., the complainant, is WJS's stepdaughter.

S.S. and her mother were living with WJS at the time. S.S. was about five years old. One day when she was about five years old, she was touched inappropriately. S.S. said that she and WJS were watching television. She sat on his lap and he put his hand down her pants and touched her vaginal area. [ 13 ] She made this disclosure on the same day and only on the same day that C.H. moved out of the residence. That was in January of this year.

So S.S. had kept this quiet for many, many years. [ 14 ] Although not part of the offence before me, I understand that when S.S. was ten years old, WJS tried to touch her breasts and made comments about the size of her breasts or the development of her breasts. She was able to push him away and nothing further happened, I gather. Since both of those incidents, S.S. has tried to forget what happened to her and what WJS did to her. Again, the story unfolds. [ 15 ] Turning now to Count 3. The complainant, B.F., was a friend of S.S. and C.H.

When B.F. was about six or seven years old, she went with her mother to visit the other two girls. Apparently, the three girls would have a great time running through the house while the adults were in one of the bedrooms smoking marihuana. [ 16 ] On one occasion, WJS came out of the bedroom into the living room where the three girls were playing. As the girls ran by him, he would reach out and grab them around their stomach and pull them onto his lap. According to Ms. F., this happened to her and when it did, WJS put his hand in her pants for not very long, apparently, and then let her go. According to Ms.

F., he did this to all three of the girls, but I note that that was not part of the circumstances on the other counts. [ 17 ] Sometime later apparently, WJS was in the living room with the three girls who were seated on a couch watching television. According to Ms. F., WJS moved his clothing so his penis came out of his shorts and in her view. He was doing this entirely on purpose.

[ 18 ] Again, not part of the charge, but circumstances read in by the Crown, when Ms. F. was about 13 years old, the girls were on a computer somewhere in the house. WJS had been watching them through a bedroom window. He saw what the girls were doing on the internet and confronted them and basically told them that he would not tell their mothers as long as everyone kept their secrets. [ 19 ] So those are the circumstances of the offences before me. [ 20 ] I am just going to state this for the record to make it clear.

With respect to Count 1, the offence against S.S., she was four or five years old at the time, and I take it from the circumstances that have been read in there was no specific physical violence as such. There was no penetration and apparently the incident may have lasted as long as 30 seconds. [ 21 ] I am told that this is an isolated incident, however, given the statement of Ms. F., I am very suspicious that there were other incidents of touching all three of the girls that are not before me.

I am stating for the record that although I am suspicious that there was other inappropriate and sexual touching, I can sentence WJS only on what has been alleged by the Crown today. [ 22 ] So with respect to Ms. S., I can sentence WJS only on one incident where there was touching of her vaginal area over clothing and no penetration and this lasted about 30 seconds. [ 23 ] Again, although I am very suspicious about there only being one incident with respect to Ms.

F. on Count 3, given her statement to the police and her description of things happening to the other girls, plus the touching of the breasts later, I still can only sentence WJS for what I have been told about and again that was his hands over her clothing touching her vaginal area. Again, no penetration, no touching of skin and the touching lasted 20 to 30 seconds. That is what I am told although I am suspicious otherwise, but I have to sentence WJS only on that basis; that is the law. [ 24 ] With respect to Ms.

H., again I can only sentence with respect to the assault alleged although I state for the record I am very suspicious that there was only one incident. [ 25 ] WJS does have a criminal record. There were convictions in the 1990s with theft under, break and enter, failure to attend court, theft under and possession of stolen property. The last conviction was in May of 1993. [ 26 ] Crown says there should be a jail sentence in the range of less than two years plus three years' probation.

Crown submits that a conditional sentence is an option given, I will come to WJS's low to moderate risk to re-offence and his willingness for treatment. [ 27 ] Defence counsel asks me to consider a conditional sentence order followed by probation and defence says that this is a joint submission. [ 28 ] I have had the benefit of several documents that have been marked as Exhibits and I will refer first to the pre-sentence report that was prepared. [ 29 ] According to the pre-sentence report, WJS is now I believe 43 years old if I have done my arithmetic correctly. He was born and raised in New Westminster.

He is the middle of three children. He described to the author a stable upbringing free of abuse or neglect. I understand also from the pre-sentence report that WJS did get into trouble when he was a teenager but nothing that caused his family any great concern. Apparently, according to WJS' mother there was nothing of concern regarding his sexual development. [ 30 ] Of concern though is this -- also raised in the pre-sentence report-- WJS reported to the probation officer that his first sexual experience occurred when he was about seven years old. He was molested by a teenaged male neighbour.

The sexual assaults occurred over about three weeks. There were several incidences of sexual touching and anal intercourse. WJS had not disclosed those sexual assaults to anyone until he was charged with the offences before me. Since the sexual assaults he suffered WJS, however, did go on to consensual sexual relationships with women who were age appropriate. [ 31 ] WJS has a GED certificate. He has had a fairly stable employment history over time. He has worked in a variety of positions in the construction industry.

I have the benefit of a letter from his employer in Penticton who confirms his employment since August 27th, 2012. He currently works for a company named Moduline Industries. [ 32 ] WJS was diagnosed with dyslexia at some point in his life. Otherwise, he has had no health issues aside from perhaps some heart issues earlier on which have since been resolved, [ 33 ] The forensic psychiatric report is very detailed and I must say one of the most thorough I have read in quite some time.

Although one gets the impression that WJS was minimizing his culpability and minimizing his involvement, I understand from defence counsel that WJS is very sorry for what he did do and now has some insight into the effects of his sexual assaults and assault for which he has pleaded guilty. [ 34 ] The psychologist involved in the assessment did a variety of tests on WJS and ultimately they concluded that WJS was at a low to moderate risk to re-offend. Of importance in both the pre-sentence report, the forensic psychiatric report, as well as submissions of counsel is that WJS has abused marihuana for several years.

He had been using marihuana prior to committing the offences before me, not that that is an excuse, not that that is a mitigating factor in my view, but it is an explanation as to how the offences came to be. Since being charged with the offences, WJS quit using marihuana cold turkey but I understand that he considers himself an addict. At times he was smoking in excess of 15 joints a day. [ 35 ] Also, unemployment has been a large factor in the offences committed by WJS. A large factor that runs coincidentally with his increased marihuana use.

So unemployment and marihuana use contribute to the risk to re-offend. [ 36 ] There were no mental disorders or other illnesses diagnosed. Since being charged with these offences, WJS has been living in Penticton. He has been living in a motel. I have a letter from the manager of the motel that states that WJS has been a good tenant and there have been no complaints about him.

[ 37 ] There are some mitigating circumstances, in other words, factors that are in WJS' favour for sentencing. First of all, he did plead guilty to the charges that have saved several people, especially the young women, from having to testify. Also, he had complied with the terms of his bail that have been quite rigorous from my reading. [ 38 ] Unfortunately, through all of this or as a result of this, WJS has been estranged from his family and he and Mrs. S. are going through a divorce. Fortunately though, WJS does enjoy some support from his mother and father.

They are both aware of the offences to which WJS has pleaded guilty. They support their son. [ 39 ] I should point out too that there was no indication of use or reliance on child pornography. I understand too that WJS has avoided the family members involved in these offences and he has respected their wishes. It is also in WJS' favour of course that he has not used marihuana since the charges were laid. [ 40 ] WJS is sorry for what he did do. Having read the victim impact statements he now has a better understanding of the effects of his actions.

He also understands I am told the need that he has for therapeutic interventions and treatment and he is willing to take those interventions and treatments. [ 41 ] There are aggravating circumstances or in other words factors that work against WJS for sentencing: 1. First of all, these are serious offences in and of themselves, very serious offences involving your stepdaughter, your biological daughter, and one of their friends. 2. The complainants were five or six years old at the time. They were children. 3.

The offences concerning the young children, almost babies, in my view is nothing short of child abuse. 4. Although the incidents as alleged by Crown were short in duration, they have had life-long effects. [ 42 ] I just want to read into the record the entire victim impact statement of S.S. I kept what happened to me a secret for so long. Perhaps I am partially blame for the severity of impact this crime has had on my life. As I have grown older, it has become easier for me to cope with everyday life however I still think about it every day.

I cringe at the memories of my younger self trying to hold it all together. I wanted it to end so badly. All I wanted was a normal life. I went through a period where I cut myself and contemplated how I could kill myself. I began drinking at an early age, drowning my fear and pain. I was so scared to be in my own home. I thought about how I could escape if he decided to attack me. I became so anxious I didn't want to go to school and pretend that I was a happy, normal girl. I didn't want to stay home and have to face him. Eventually, I became fairly good at hiding everything, pretending I was happy.

At times my emotions were too strong to hide so I isolated myself from my friends and spent many days and nights alone in my room. I didn't want to deal with the fact that my life was an entire fabrication. All of it was a lie. No one suspected that I was anything other than okay. My family, friends, everyone was fooled. I knew that eventually I needed to end the lie. I was being a coward and allowing my friends and family to live in a lie. I realized it would change everyone's lives around me. My home would be gone, my pets would be gone, and everyone would be left in the rubble. I feel the most pain for my mom.

She has always been the most spectacular mother and most amazing person that I know and I had to tell her the last 15 years of her life has been lies. Her life will never be the same. All she did for him, taking care of him through all his health issues, supporting our family while he was jobless and everything else she did and it was all a lie. Forever I will feel the guilt of allowing her to live in a lie for so long. All I wanted my entire life is to be loved, to have a father who cared for me. I will always have that void, always have the memories of my stepfather molesting me.

To this day, I struggle with myself. I try not to hate myself for being such a coward. I feel alone constantly. I don't want sympathy from anyone. I just want someone to listen and to understand me. To everyone who is impacted by these crimes I am sorry I could not find the strength that I could have changed everything. I hope we all get the help we need to move on and get to a point where we can go a day without thinking about it. [ 43 ] I also have a victim impact statement that was filed by Mrs. S., N.S. She wrote: Since I was 18 years old the only thing I needed to do was protect and provide for my daughter.

I thought when I met you [and I should add she is writing this to WJS] that you were a good role model for her: nice, caring, and non-aggressive, harmless. We were together for 13 years and had been through a lot but got through it all. What you have done has devastated my life. Every day I think about what you have done. I no longer trust anyone. The friendships I had with really good people have been strained to say the least. Not only did you hurt your family but you will never know the impact you've made on people who thought they knew you. I've lost my house, my animals, my husband, and my best friend.

I find myself crying for no reason any place, any time. The life I thought I would have forever is gone. My heart breaks for those girls. You made it so that they couldn't trust their own mothers having to keep this to themselves thinking they were sparing everyone else's feelings. It makes me sick to my stomach regularly to think of that and the impact it had on them. I feel like I will always be in shock over this.

What you have done will never be forgiven or forgotten. [ 44 ] According to the pre-sentence report, C.H. told the probation officer that she has suppressed the assault and prefers not to think about. She has not sought any counselling and is unsure if she will in the future. Ms.

H. does not want to have any contact with WJS and wishes that protective conditions to remain in place. [ 45 ] Again, according to the pre-sentence report, attempts to contact B.F. were unsuccessful so I do not have a report from her. [ 46 ] To repeat, because in my view it is very important, although fleeting in time the actions have had lifelong impacts on the complainants. Of course, WJS was in a position of trust being a parent or a step-parent. Also, there was an element of psychological force in urging the girls to keep it quiet.

[ 47 ] I have to impose a sentence on WJS that is a legal one. In other words, I cannot break the law; I have to impose a lawful sentence. In order to do that, I have to address certain purposes and principles of sentencing that are set out in the Criminal Code . [ 48 ] In sexual offences, especially where children are involved, I have to impose a sentence that will deter WJS and others from committing these sorts of offences.

I have to send a clear message that society denounces these sorts of offences, especially where young girls or young boys are involved, because they are the very most vulnerable members of our society and as a result deserve the greatest protection that we can give them. Also, with respect to sex offenders, the sentence must address rehabilitation. [ 49 ] Of course there has to be a jail sentence. Both counsel are correct in stating that. I have to bear in mind too that I am sentencing WJS for isolated incidents involving three different complainants.

I also have to accept the fact that although these were serious offences, they did not any form of penetration or physical force. [ 50 ] The forensic report as well as the pre-sentence report and submissions of counsel do set out a basis in my view for a therapeutic plan that will reduce the likelihood that WJS will re-offend. Also, I bear in mind his own remorse.

However, a plan can be put in place in the community to deal with the rehabilitative or therapeutic aspects of a sentence for him. [ 51 ] Can a jail sentence -- often called a conditional sentence -- served in the community address deterrence and denunciation? It is well established law now that even in sex offences such as these a properly crafted conditional sentence order can address the principles of sentencing that I have to address being deterrence and denunciation.

So given a properly crafted conditional sentence order, the risk to re-offend can be greatly reduced and the principles of sentencing can adequately be addressed. So there will be a conditional sentence. [ 52 ] Formally WJS, this is the sentence. It is on all three counts concurrent with each other. Jail of two years less a day to be served in the community by way of a conditional sentence order and these are the conditions: 1. You have to keep the peace and be of good behaviour. 2. Appear before the Court when required to do so. 3.

You will report to a supervisor in this building no later than 12:00 noon, Friday, December 14th, 2012 and thereafter when required by your supervisor and in the manner directed by your supervisor. 4. You will remain within the Province of British Columbia unless written permission to go outside of the Province is obtained from the supervisor. 5. You will notify your supervisor in advance of any change of name or address and promptly notify the supervisor of any change of employment or occupation. 6.

You will reside daily in a residence approved of by your supervisor and you will not change that residence without the prior written permission of your supervisor. 7. You will have no contact, directly or indirectly, with C.H., S.S., B.F., N.S., S.B. or D.M. except you may have indirect contact with N.S. through your legal counsel, a family justice counsellor, your supervisor, or a third party approved of by the family justice counsellor for the purpose of arranging and resolving matters of maintenance and property division. 8.

You will not go to the place of residence, place of employment, or place of education of C.H., S.S., B.F., N.S., S.B. or D.M. 9. You must abstain absolutely from the consumption and possession of alcohol or non-prescription drugs or substances referred to in the Controlled Drugs and Substances Act for which you do not have a prescription. 10.

You must attend, participate in, and accept such counselling and programming as directed by your supervisor, including but not limited to psychiatric and psychological assessments, programming and counselling through Forensic Psychiatric Services, sex offender treatment programs and counselling, drug abuse counselling, substance abuse counselling, residential treatment programming, and you will complete that counselling and programming to the reasonable satisfaction of your supervisor. 11. You must seek and maintain employment or attend such educational program as directed by your supervisor. 12.

You must not be in the presence of any person under the age of 18 years unless the place where you are is a public place which is then open to all members of the public and actually being frequented by other adult members of the general public. 13. You are bound by a curfew.

During the first year of this conditional sentence order, you must remain continuously inside your residence at all times except as follows: to travel directly to and from and while at your place of employment; travel directly to and from and while at scheduled appointments with your supervisor, counsellor, or health practitioner, except for medical emergencies and except with written permission from your supervisor specific to date, time and purpose and you must carry that written permission with you when you are outside of your residence during your curfew time. 14.

For the remainder of this conditional sentence order you must remain continuously inside your residence between the hours of 9:00 p.m. and 5:00 a.m. daily except with written permission from your supervisor specific to date, time and purpose, and you must carry that written permission with you when you are outside of your residence. 15. When you are outside your residence during your curfew with written permission from your supervisor, you must present that written permission to a police officer or supervisor or delegate upon demand. 16.

During the hours of your curfew, if any police officer, supervisor, or delegate knocks on the door of your residence to determine

compliance with this curfew, you must promptly present yourself at the door of your residence. [ 53 ] Those are the terms on the conditional sentence order. [ 54 ] That conditional sentence order is followed by a probation for a period of three years, again concurrent on all counts, Madam Registrar. These are the terms of the probation: 1. WJS, of course you have to keep the peace and be of good behaviour. 2. Report to Court when required to do so. 3.

You must report in person within 72 hours of completion of your conditional sentence order to a probation officer as directed by your supervisor and report thereafter as and when directed by your probation officer. 4. You will reside daily at a residence approved of by your probation officer and you will not change that residence unless you have the prior written permission of your probation officer. 5.

You will have no contact directly or indirectly with C.H., S.S., B.F., N.S., S.B. or D.M. except you may have indirect contact with N.S. through your legal counsel, a family justice counsellor, your supervisor, or a third party approved of by the family justice counsellor for the purpose of arranging and resolving matters of maintenance and property division. 6. You will not go to the place of residence, place of employment, or place of education of C.H., S.S., B.F., N.S., S.B. or D.M. 7.

You must abstain absolutely from the consumption and possession of alcohol or any non-prescription drugs or substances referred to in the Controlled Drugs and Substances Act for which you do not have a prescription. 8.

You must attend, participate in, and accept such counselling and programming as directed by your probation officer including but not limited to psychological and psychiatric assessments and counselling through the Forensic Psychiatric Service, sex offender treatment programming and counselling, drug abuse counselling, substance abuse counselling, residential treatment programs and you will complete that counselling and programming to the reasonable satisfaction of your probation officer. 9. You must seek and maintain employment or attend such educational program as directed by your probation officer. 10.

You must not be in the presence of any person under the age of 18 years unless the place where you are is a public place which is then open to all members of the public and actually being frequented by other adult members of the general public. [ 55 ] So those are the terms. [ 56 ] Now, there are ancillary orders. On Counts 1 and 3 those are primary designated offences so WJS, no later than December 31st, 2012, you will provide samples of your DNA to the Ridge Meadows RCMP Detachment. [ 57 ] MR.

WHITE: What is the day of the week, Your Honour, that Ridge Meadows had designated for collection of samples? [ 58 ] THE COURT: My note here says Ridge Meadows is Tuesdays and Thursdays from 9:00 a.m. to 10:00 a.m. but I do not know if that is correct. [ 59 ] MR. BALDWIN: Nor do I. [ 60 ] MR. WHITE: It might be best then if you order phone ahead just to ensure there is someone there.

Tuesdays and Thursdays I think is probably right but (indiscernible). [ SOIRA ORDER] [ 61 ] THE COURT: Yes, and given that I have found that there was a lack of physical violence anyway notwithstanding these were assaults, I am declining to make the s. 110 firearms prohibition. [ 62 ] The outstanding counts, please? [ 63 ] MR. BALDWIN: Crown directs stays of proceedings on each of the remaining counts. [ 64 ] THE COURT: Okay, thank you. [ 65 ] MR. WHITE: I just had one thing I'd like to mention, Your Honour.

I just wasn't sure, when I came to the second year I guess of the conditional sentence order, I just wanted to make sure whether it is limited to 9:00 p.m. to 5:00 a.m. except with the written permission of the sentence supervisor. I'm just wondering if there can be a work exception as well just because of his hours which are 1:30 p.m. to midnight. Just to make sure that he doesn't have to get written permission every time he's on a weekly basis or something like that, just the same exception, to travel directly to and from work. Just in case. I just think it would make it a little easier given his work hours.

Perhaps you don't agree, but – just so there's no question to the (indiscernible) [ 66 ] THE COURT: I think it is pretty clear, 9:00 p.m. to 5:00 a.m. except with written permission from the supervisor. So that's going to be up to WJS and the supervisor to work out. [ 67 ] MR. WHITE: Okay. Fair enough. (ORAL REASONS FOR SENTENCE CONCLUDED)