R. v. Marr

2004 BCSC 1769 R. v. Marr IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Marr, 2004 BCSC 1769 Date: 20041201 Docket: 45619-3 Registry: Chilliwack Her Majesty the Queen against Anthony George Marr (BAN ON DISCLOSURE) Before: The Honourable Mr. Justice Ehrcke Oral Reasons for Sentence December 1, 2004 Counsel for the Crown: J. Hempstead Counsel for the Accused: G. Dicken Place of Trial/Hearing: New Westminster, B.C. [1] THE COURT: The accused is before me today for sentencing on Count 2 of the Indictment, a charge of sexual assault of R.E.C. at or near Harrison Mills between January 5, 1983 and January 1, 1985. That conviction was registered on September 14, 2004, following a two-day trial. [2] The circumstances of the offence are described fully in my reasons for conviction. In brief summary, the accused who, at the time of the offence was in his early thirties, was working as a first-aid instructor and met the complainant's sister who was taking a first-aid course through St. John's Ambulance. She introduced the accused to the rest of her family, including her younger brother, the complainant. [3] The accused invited the complainant on a camping trip. The family thought there would be other boys on the trip, but it turned out that it was just the accused and the complainant. The accused drove the complainant to a place in the woods near Harrison Mills where they set up their tent. The complainant was 13 to 14 years old at the time. [4] During the night, the accused fondled the complainant's penis over his underwear on three to four occasions. This fondling was without the complainant's consent. Though he did not recall ejaculating, the complainant discovered semen on his underwear when he woke up the next morning. [5] The complainant did not disclose this incident because he was embarrassed and ashamed. Many years later, he eventually told his sister and the present charges were laid. [6] At the time of the incident, the accused had no previous criminal convictions. He has, however, subsequently been convicted of two criminal offences. On November 16, 1994, in Vancouver, he was convicted of sexual assault and sentenced to five months' imprisonment followed by 30 months' probation, and on March 14, 2001, in Vancouver, he was convicted of importing, distributing, selling or possessing for the purpose of distribution or sale, child pornography. On that offence, he was given a conditional sentence of 18 months followed by probation for three years. [7] In R. v. Johnston, [1989] BCJ No. 1542 (BCCA), our Court of Appeal held that in cases of historical sexual assaults where an early offence only comes to light many years later after subsequent criminal convictions have been registered, the court is not required to treat the offender on sentencing in the same way as it would if he were a first offender. Speaking for the court, Taylor J.A. said this: The fact that a person convicted of an offence has since the date of that offence committed similar offences cannot be regarded as irrelevant to the sentencing process. Other similar offences, whether committed before or after that for which an accused is being sentenced, may well be of considerable importance in determining the character of the accused, the extent, if any, to which there has been rehabilitation, the likelihood of rehabilitation in the future, the extent to which the accused is likely to be deterred by the fact of conviction, brief incarceration or a term of probation and - to some extent a factor related to all of these - the extent to which imprisonment is appropriate for the protection of the public against the commission of further similar offences by the accused. In dealing with other criminal conduct on the part of the convicted person the court must, of course, be careful that it sentences only for that offence of which the accused then stands convicted. It is of great importance that a convicted person not be sentenced for any other offence, prior or subsequent. [8] A little later, the court went on to say this: The court normally makes presumptions in the case of a first offender which cannot be made here. Those presumptions have in this case been rebutted by evidence properly called at trial which shows the accused to be an offender who is not deterred by conviction, nor by an initial period of imprisonment nor by the terms of a probation order. It shows him to be someone against whom young children plainly need protection and for whom, unfortunately, the hope of early and complete rehabilitation cannot reasonably be entertained by the court. [9] In the present case, the accused is now 54 years old. He was himself sexually abused when he was a child. He subsequently himself became an abuser, as the present conviction shows. He is now in failing health and lives with his parents on a disability pension. [10] A helpful pre-sentence report was prepared for this case on November 20, 2004. It describes the accused's health problems in this way: Mr. Marr's health is poor. His major infirmities include diabetes, depression and kidney failure. Dr. Madsen, Mr. Marr's family physician, coordinates his medical regime. He confirms Mr. Marr is in "poor health" and describes Mr. Marr's prognosis as "precarious". Dr. Madsen confirms Mr. Marr was hospitalized five times in 2003. In August 2004, Mr. Marr underwent cataract surgery on one eye. According to Dr. Madsen, Mr. Marr has severely reduced vision and could qualify as legally blind. Dr. Madsen reports Mr. Marr's health is greatly jeopardized by infections or viruses and comments that, because of this, Mr. Marr must maintain treatment and testing with his various specialists. Mr. Marr is on home dialysis therapy because of his failing kidneys. This consists of approximately nine hours every night hooking up to a Baxter home peritoneal dialysis unit provided by St. Paul's Hospital Renal Failure Clinic. It is noteworthy Mr. Marr attends probation interviews, medical and other appointments. Although he has reduced eyesight and uses a white cane, he is able to travel by public transit. Mr. Marr is also an avid computer game player and also views programs on his television in the evenings. [11] This offence has had a negative impact on the complainant. As described in the pre-sentence report, the complainant "is very distressed and wants to see Mr. Marr held accountable for his actions which caused him childhood and lasting trauma." [12] According to the author of the pre-sentence report, the accused describes no remorse or empathy for what he did to the complainant. [13] The pre-sentence report describes the psychological treatment that the accused has received and, in particular, his consultations with Dr. Tomita. The accused has been seeing Dr. Tomita once per month since December 2003. According to the pre-sentence report: Dr. Tomita comments he is not able to assess Mr. Marr's current risk. He says Mr. Marr tends to avoid attempts to focus on sexual behaviours, feelings and attitudes. Interviews are generally monopolized by Mr. Marr's apparent need to talk about his physical impairments. Dr. Tomita added he can find no reasons to exclude Mr. Marr from attending sex offender group treatment programs. [14] Crown counsel submits that a custodial sentence would be justified in this case, but submits that a conditional sentence followed by probation is also an appropriate sentencing option. If there is a conditional sentence, he submits it should be for the maximum period of two years less one day, followed by the maximum period of probation, namely three years. He submits that there should be house arrest for the first year. [15] Defence counsel submits that there should be a conditional sentence of 18 months, followed by probation for 18 months, and that house arrest should be for no more than six months. [16] As to conditions on a conditional sentence order, a number were suggested by the probation officer who prepared the pre-sentence report. Crown counsel and defence counsel are generally in agreement with those conditions, with a few exceptions, most notably relating to the use of a computer. The Crown submits that the accused should have no access to a computer in light of his conviction in 2001 for child pornography. Defence counsel submits, on the other hand, that such a condition is unwarranted on the facts of this case. I canvassed with defence counsel whether the other members of the accused's household - namely, his mother and father - would be inconvenienced by having no computer in their home. I was told that neither of them use the computer. [17] In all the circumstances, I am satisfied that the objectives of sentencing can properly be met in this case by the imposition of a conditional sentence for 20 months, followed by probation for two years. During the first 12 months of the conditional sentence, the accused will be required not to leave his residence, except to attend meetings with his probation officer, or for counselling, or psychological or psychiatric assessment or treatment as directed by his probation officer, or for emergency medical treatment, or for other reasons as permitted, in writing, by his probation officer. [18] After the first 12 months, that is, for the remainder of the conditional sentence, the accused will be bound by a curfew, requiring him to remain in his residence from 8:00 p.m. to 9:00 a.m. seven days per week. During the period of that curfew, he is not to leave his residence except for medical treatment. [19] The other conditions of the conditional sentence order, in addition to the statutory conditions, are based on the recommendations set out in the pre-sentence report, namely: 1) report within 48 hours of your release to Vancouver West Community Corrections Centre, 202-1855 Burrard Street, Vancouver, B.C., V6J 3G9; 2) reside in a residence approved of by the probation supervisor and not change that residence without the prior written approval of your supervisor; 3) actively participate and accept psychological/psychiatric treatment, assessment and counselling as directed by the probation supervisor; 4) actively participate in sex offender treatment/group programs offered by Forensic Services as directed by the probation supervisor; 5) actively participate in sex offender maintenance groups as directed by your probation supervisor; 6) you will not have in your possession, including at your residence, or have any access to, a computer; 7) you are to have no contact, directly or indirectly, with the complainant or any member of his family; 8) you are to have no direct or indirect contact with any person under the age of 16 years, except in the company of a person approved of by your probation supervisor in writing; 9) you are not to possess any pornographic material, including movies, photographs, magazines, and you are to allow your probation supervisor or a member of the police to inspect your residence to confirm your compliance with this condition; 10) you are not to be found on the premises of any school, playground, park, swimming facility or any public place where children under the age of 16 years can reasonably be expected to be found. [20] Except for the house arrest and curfew, those same conditions will apply to the probation order. [21] Crown counsel has requested a DNA order under s. 487.051 of the Criminal Code. The defence does not object to such an order. Accordingly, I make the order requested under that section. [22] Is there anything else? [23] MR. HEMPSTEAD: No. I was just indicating to the clerk that it would be the (a), 487, would be the (a). [24] THE COURT: Yes. Is there anything else? [25] MR. DICKEN: No, My Lord. [26] THE COURT: Thank you. (EXCERPT CONCLUDED) "W.F. Ehrcke, J." The Honourable Mr. Justice W.F. Ehrcke