R. v. Dorfer

2009 BCSC 202 R. v. Dorfer IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Dorfer, 2009 BCSC 202 Date: 20090205 Docket: 59596 Registry: Nanaimo Regina v. Franklin Shane Dorfer Before: The Honourable Mr. Justice Ehrcke Oral Reasons for Sentence February 5, 2009 Counsel for the Crown: J.C. Carpenter Counsel for the Defence: K.T. Karaszkiewicz Place of Trial/Hearing: Vancouver, B.C. [1] THE COURT: This is an application by the Crown pursuant to s. 753 of the Criminal Code, to have the accused, Franklin Shane Dorfer, declared a Dangerous Offender and sentenced to an indeterminate period of detention in a penitentiary in lieu of any other sentence. [2] Mr. Dorfer was tried by a court composed of judge and jury. He was found guilty on September 13, 2007, of breaking and entering a dwelling house and committing sexual assault therein, an offence for which Parliament has prescribed a maximum penalty of life imprisonment. [3] The Crown has complied with the procedural requirements for bringing this application. Mr. Dorfer was remanded for an assessment pursuant to s. 752.1 of the Criminal Code on October 12, 2007. That assessment was conducted by a psychologist, Dr. David Lawson, and his report, dated December 19, 2007, has been flied. On October 9, 2008, the Crown filed its notice and application along with the consent of the Attorney General of British Columbia. [4] The hearing of this Dangerous Offender application was originally set for May 2008. It was adjourned and reset for October 27, 2008. On October 21, 2008, it was adjourned at the request of the defence and reset to the current date. The Evidence at the Hearing [5] On the hearing of the application, the Crown called Dr. Lawson, who explained the contents of his report. The Crown also called Rampton Sadafi, a parole officer supervisor for Corrections Canada, who gave evidence about the availability of parole to various categories of offenders, the kinds of programs and treatment options available to violent sexual offenders, and the form of supervision provided for offenders on parole and for offenders subject to a Long Term Offender order. [6] The Crown also filed Mr. Dorfer's criminal record and materials detailing previous offences of robbery and breaking and entering and committing sexual assault that he committed on December 15, 1992. [7] The only witness called by the defence was Mr. Dorfer's mother, Francis Shorrocks. She gave evidence about her son's difficult childhood. She described instances when he was beaten by his stepfather, including one occasion when his arm was broken. She said her son left home when he was 13 or 14 years old, and over the ensuing years she had sporadic contact with him, sometimes visiting him when he was in custody. She said that during this last year she has had more contact with him as he has been calling her on the telephone. She said he now seems more upbeat, and she described how in the past he suffered from depression and was sometimes suicidal. The Predicate Offence [8] The offence of which Mr. Dorfer stands convicted involved breaking and entering the dwelling house of an 89-year-old woman who was asleep in her bed, and sexually assaulting her while possessing a knife. [9] Mr. Dorfer testified at his trial and admitted that he had broken and entered the complainant's home at around 3:30 a.m. on May 31, 2005, along with another man that he had been doing drugs with earlier in the evening. He admitted that he ransacked the house and stole about $60. He testified, however, that he was not the person who sexually assaulted the complainant. By their verdict, the jury clearly rejected his denial of responsibility for the sexual assault. [10] The complainant testified at the preliminary inquiry but was too ill to testify at trial. Her evidence from the preliminary inquiry was read in at the trial pursuant to s. 715 of the Criminal Code. She testified that she was in bed sleeping in her home and woke up to find a man lying on her chest. She tried to fight with him and he tried to get control of her hands. She saw the blade of a knife, but she still kept fighting. Finally the man ripped off her pyjama pants, and with one hand he rubbed her quite hard between her legs. She said she never did see him because he had her smothered. She believes she fainted. When she came to, he was gone. She tried to stand up but had to sit back down because she felt rocky. She phoned 911 and shouted hysterically that she needed help. Then she phoned her daughter-in-law. All her clothes were torn, and she walked into the kitchen naked, which is how she was found when the police arrived. She was taken to hospital. She said approximately $60 was stolen from her bedroom and $20 from the kitchen. [11] Although no victim impact statement has been filed, this was clearly a terrifying and traumatic experience for the complainant. The evidence of the police officers who attended and the photographs they took confirm that she suffered significant bruising to her arm and face. [12] Mr. Dorfer was arrested on June 6, 2005 and has been in custody since that date, a period totalling three years and eight months. Criminal Record [13] Mr. Dorfer has a lengthy record, starting as a youth in 1984. He was sentenced on ten different occasions as a young offender from June 13, 1984, until May 22, 1987, for narcotics, property offences, breach of probation and being unlawfully at large. He had six charges of break and enter or being unlawfully in a dwelling house as a youth. [14] His adult record starts on December 1, 1987, when he was sentenced to a total of 23 months on six charges of break and enter. On May 3, 1988, he received one year for possession of stolen property. On March 21, 1989, he was sentenced to six months jail in addition to seven months pre-sentence custody for break and enter and being unlawfully at large. On June 22, 1989, he received another three years for break and enter. On February 26, 1993, he was sentenced to four months for possession of stolen property and 15 months for break and enter, as well as three months concurrent for theft and possession of stolen property. On February 25, 1994, he was sentenced to seven years, six months and five years concurrent for break and enter and commit sexual assault and for robbery. On March 14, 1997, he was given six months consecutive for another break and enter. On May 26, 1997, he was sentenced to a further year consecutive for another break and enter, and on April 20, 2004, he was sentenced to two years less one day for two counts of break and enter, and one year for possession of stolen property. The December 15, 1992 Offences [15] Of all Mr. Dorfer's offences, the only ones that involve a similar kind of sexual assault and violence to the predicate offence before me are the offences for which he was sentenced on February 25, 1994. [16] He committed those offences on December 15, 1992. At around 5:00 a.m. on that date, Mr. Dorfer broke into the apartment of a 69-year-old woman while she was sleeping. He grabbed her hair, pushed her head into the pillow and told her not to look at him. He pulled the bed covers from the bottom of the bed and covered her head, saying, "Don't look at me and I'll not be hurting you." He pulled off her pyjama bottoms, spread her legs apart and forced her to have intercourse. He said to her, "I guess you haven't had this for a long time." He asked her how old she was, and she replied, "69." He later asked her if she had any money. He ejaculated and said, "Oh, that was good." He stole about $70 from her purse and left. [17] About an hour later the same morning Mr. Dorfer broke into the home of another woman who was 68 years old. She awoke to find him in her bedroom. She screamed, and he said, "Don't scream; I'm not going to hurt you." He then asked if she had any money. She told him where her purse was. He grabbed it and fled. [18] For those offences, Mr. Dorfer was sentenced on February 25, 1994, to seven-and-a-half years imprisonment on the break and enter and sexual assault, after being given double credit for the three months he had already spent in custody. The result was an effective sentence of eight years. He received a sentence of five years concurrent on the robbery, and a firearms prohibition for ten years. Dr. Lawson's Report [19] In his extensive report Dr. Lawson reviewed Mr. Dorfer's history with Corrections, including his previous mental health assessments and treatment. He noted that in preparing his report he was limited by the fact that Mr. Dorfer declined to be interviewed by him. He said: In the absence of an interview with Mr. Dorfer, my estimate of his risk of violent or sexually violent recidivism is based exclusively upon fixed or historical variables and I have had to rely exclusively on the documents provided for my review. Mr. Dorfer's Personal History [20] Dr. Lawson summarized Mr. Dorfer's personal history. He noted that he was born in Campbell River in July 1969 and that his natural father left before he was one year old. His mother then cohabited with a drug dealer, and she became a heroin addict. When Mr. Dorfer was four years old his mother gave custody of the children to their father, but they returned a year later. The children were not well-cared for and were often beaten by their stepfather, sometimes with belts, sticks and cords. As one probation officer described it, he "suffered an almost horrifically deprived childhood which encompassed both physical and emotional neglect and abuse...." [21] From the time he was 11 or 12 he often left home. He lived at times with his older siblings when he was not "hanging out on the streets". The abuse of various drugs and alcohol has been a part of Mr. Dorfer's life since he was a teenager. [22] Following his release on parole in early 1989 he worked for two months as a roofer. [23] Mr. Dorfer upgraded his education to Grade 12 while at Matsqui Institution. He reported that while in federal custody he completed three and one-half years of study in psychology and sociology by correspondence from Simon Fraser University. [24] He described himself as a self-taught musician who learned to play several instruments as well as writing and singing songs. In March 1994 he reported having played in a rock band that travelled in B.C. and Alberta for three months. Around this time he began free-basing cocaine. After quitting the band, he lived off the earnings of a girlfriend, who was said to be earning about $1,000 a day as a stripper and prostitute. [25] Although Dr. Lawson's report refers to a number of women with whom Mr. Dorfer was associated, he states that, "There is no consistent evidence in the documents available for my review that Mr. Dorfer was ever legally married or that he lived in a common-law relationship for a year or longer." He notes that Mr. Dorfer did have a four-year intermittent relationship with Ms. Evans, who bore them a daughter in 2002. Previous Assessments [26] Dr. Lawson reviewed a number of previous mental health assessments of Mr. Dorfer, starting in 1985. Dr. Williamson's assessment that year described Mr. Dorfer as immature and impulsive, having an apathetic, passive dependent pattern of adjustment to the world around him. As summarized by Dr. Lawson at page 19: The test results also suggested that Mr. Dorfer had episodes of acting out in an impulsive manner without consideration of the consequences for others followed by periods of guilt, remorse and anxiety for the difficulties he had caused both for himself and others. [27] In 1986 Mr. Dorfer had an inpatient assessment at the Forensic Psychiatric Services Commission. As summarized by Dr. Lawson at page 20: Psychometric testing suggested "...a person with anti-social values, capable of acting-out behaviour with little forethought followed by phases of guilt..."(p. 4). In addition, Mr. Dorfer appeared to have "...little sense of moral conscience..." (p. 2), low frustration tolerance and considerable difficulty in responding to the demands of school and socialization despite being average to above-average in intelligence. [28] After Mr. Dorfer's conviction in 1994 for the 1992 sexual assault, he was assessed by Dr. Brada, who saw evidence of strong substance abuse, impulsivity, mood swings and an aversion to being controlled. While the results suggested a personality disorder with strong histrionic and narcissistic traits and mild clinically significant depression, Dr. Brada noted that there were no indications of antisocial values or violence. [29] Mr. Dorfer underwent a further psychological assessment in 1996 by Dr. LaTorre, who offered a provisional diagnosis of antisocial personality disorder. According to Dr. LaTorre, Mr. Dorfer showed little empathy and no remorse. He lacked a well-developed relapse prevention plan. In his opinion, Mr. Dorfer posed a very high risk of recidivism without further treatment. [30] However, in 1999 Dr. Fairweather administered an updated version of the same personality inventory that Dr. LaTorre had used, and he found that Mr. Dorfer presented as genuinely remorseful about the sexual assault. He recommended release on day parole with a high degree of structure and close monitoring. [31] In his discharge summary from the Regional Health Centre in 2003, Dr. Au noted that Mr. Dorfer had depressive symptoms that did not meet the criteria for a chronic major depressive disorder or dysthymia. Dr. Au wrote that Mr. Dorfer's, "...insight is limited at best, hampered to a large extent by an externalizing pattern of attribution for his problems and refusing to acknowledge responsibility for his own behaviour or health..." The final diagnosis was poly-substance dependence, depressive disorder NOS, and antisocial personality disorder with substantial narcissistic traits. Dr. Au opined that treatment would be quite difficult unless Mr. Dorfer developed further insight and commitment for change. [32] In summary, Dr. Lawson wrote at page 40 of his report: The findings of the seven previous assessors are quite consistent both amongst themselves and with Mr. Dorfer's behaviour, self-report and criminal offending. All of the seven assessment reports, spanning the interval from 1985 to 2003, refer to Mr. Dorfer's substance abuse and although Dr. Penner described Mr. Dorfer's personality as "...relatively normal..." in 1985, all subsequent assessors referred to aspects of his personality that impaired his functioning and contributed to his offending. For example, every subsequent assessment made reference to Mr. Dorfer's impulsivity and all but one made reference to his antisocial beliefs and values. All but two assessors mentioned the importance of image to Mr. Dorfer or his narcissistic traits and at least one indication of his mood variability, restricted range of affect, suicidal ideation or self-harm. The general picture that emerges is that of a man who, in part because of his experience of neglect, abuse, violence, frequent relocations and separations in childhood, views the world as a potentially hostile environment where one must fend for oneself and view others with suspicion and mistrust. In fending for himself, Mr. Dorfer consistently displays a disregard for the rights of others suggesting to Dr. Friesen a lack of moral conscience (84). Behaviour and Treatment While in Custody [33] Dr. Lawson extensively reviewed the records of Mr. Dorfer's behaviour while in custody from 1985 until his arrest in 2005. He had no information for the period since then. One can fairly say there were ups and downs. He participated in a variety of courses and treatment programs over the years with varying degrees of success. There were discipline problems and problems with drugs. He spent periods of time in segregation. [34] The authorities frequently had fears that he was suicidal. For example, in September 2002 he was assessed for risk of suicide in view of an overdose of sleeping medication and heroin on the day of his arrest. According to Dr. Lawson (page 28): At this time he was described as very happy, optimistic about a future career as a musician, committed to abstinence from heroin for his daughter's sake and confident he could remain abstinent from heroin without treatment (147). He was reassessed, however, on September 20, 2002 after being informed of his parole revocation and was found to have lost hope for a musical career and to be at high risk of suicide (148). [35] Bouts of depression and threats of suicide are a frequent theme. In May 2004 he completed the Respectful Relationships Course, but in June 2004, he wrote to Ms. Evans that he wanted to die. He asked to be placed in segregation because he felt suicidal. Later that month he slashed both his wrists. In July 2004 he threatened to slash or hang himself if forced to relocate to another unit. Five days later he slashed both forearms and scratched words into his chest and stomach. By the fall his attitude and behaviour had improved. In October 2004, he participated in the Substance Abuse Management Course. [36] He applied for parole in November 2004. In his application he said he was benefiting from his medication for anxiety and depression as well as methadone. This was confirmed by the special needs counsellor at the Vancouver Island Regional Correctional Centre, who wrote that he was "a new man since he began medication." [37] On December 22, 2004, he was granted full parole, with conditions that he reside at Kinghaven Treatment Centre in Abbotsford, abstain from intoxicants and continue taking prescribed medication. Two days later he reported as directed to the Langley Community Corrections Centre and proceeded to Kinghaven. Unfortunately, arrangements had not been made for the transfer of his methadone therapy, and so he was refused admission and was instructed to return on December 29, 2004. [38] According to the testimony of his mother, Francis Shorrocks, Mr. Dorfer phoned her when he could not get in to Kinghaven. He told her he did not know what to do. She told him to go to the police, but they would not take him. As a result, he went to the home of Ms. Evans. He never returned to Kinghaven, and he failed to report to his parole supervisor. As a result, his parole was suspended on January 5, 2005, and he remained unlawfully at large until June 6, 2005, when he was arrested for the current offence. Response to Community Supervision [39] Mr. Dorfer has had 15 periods of supervised release, including probation, bail and parole. Five were when he was a youth and ten were as an adult. None was completed successfully. On 11 occasions he re-offended, and on four he violated his conditions. Following his first offence, all his subsequent offences were committed when he was either under some form of supervision or when he was unlawfully at large. [40] His 1992 offences of robbery and break and enter and sexual assault were committed while he was unlawfully at large following suspension of his parole. The current offence was also committed while he was unlawfully at large following suspension of his parole. [41] As Dr. Lawson noted: By my calculations Mr. Dorfer has spent less than four and one-half of the last 20 years in the community and before that served time in juvenile facilities. It should be no surprise that his adjustment to incarceration is better than to freedom in the community. [42] The time between the commission of his 1992 sexual assault and robbery and the current offence is 12 and one-half years. Less than three years of that time was spent out of custody. Dr. Lawson's Risk Assessment [43] Dr. Lawson employed a number of instruments to assess Mr. Dorfer's risk of re-offending. In his opinion, the most accurate predictor of violent recidivism is the Psychopathy Checklist - Revised (PCL-R), consisting of two factors, which Dr. Lawson explained at page 44: Factor 1 measures the extent to which the offender exhibits the interpersonal and affective traits typically associated with psychopathy including callousness, grandiosity and remorselessness. Factor 2 reflects the degree to which the offender has led a chronically unstable, antisocial and socially deviant lifestyle. The PCL-R score alone is not predictive of sexual recidivism, but a high score in a sexually deviant individual is associated with a high rate of sexual re-offending. [44] Mr. Dorfer's overall total score as measured by Dr. Lawson places him at the ninety-first percentile relative to other male federal offenders, while he ranked at the seventy-fifth percentile on Factor 1 and at the ninety-second percentile on Factor 2. Dr. Lawson expressed the opinion that, "These findings suggest Mr. Dorfer is at high risk of violent recidivism." [45] Dr. Lawson also used the STATIC-99 instrument, which produces an estimate of future risk based upon ten risk factors: prior sexual offences; current non-sexual violent offences; history of non-sexual violence; number of previous sentencing dates; age; victim gender; cohabitation for two consecutive years with a sexual partner; history of non-contact sex offences; length of acquaintanceship with the victim; and familial relationship with the victim. [46] Mr. Dorfer's STATIC-99 score was six. According to Dr. Lawson, persons with those characteristics, on average, sexually re-offend at 39 percent over five years and at 45 percent over ten years. The rate of violent recidivism (including sexual) for such persons is, on average, 44 percent over five years and 51 percent over ten years. This would put Mr. Dorfer in the top 12 percent risk category relative to other adult male sexual offenders. [47] In addition to these actuarial measures, Dr. Lawson also conducted a clinical risk assessment using the Sexual Violence Risk-20 (SVR-20) guidelines. His findings are set out at pages 45 to 46 of his report: With respect to the eleven psychosocial adjustment factors, there is. evidence on nine that Mr. Dorfer may be at risk of sexual recidivism. These factors are victim of child abuse, psychopathy, substance abuse problems, suicidal/homicidal ideation, relationship and employment problems, past non-sexual violent offences and past supervision failure. Of the seven factors related to sex offences, there is possible or partial evidence on two (use of weapons or threats of death in sex offenses and attitudes that support or condone sex offences) and definite evidence on three (physical harm to the victim, escalation in frequency or severity of sex offenses and extreme minimization or denial of sex offenses) that Mr. Dorfer is at risk of future sexual offending. Finally, Mr. Dorfer's failure to establish and maintain realistic plans for his future and his past negative attitude towards intervention also suggest he is at risk of sexual recidivism. The findings on the SVR-20 are consistent with the findings on the actuarial measures in indicating that Mr. Dorfer is at relatively high risk of future sexual violence. Dr. Lawson's Treatment Recommendations [48] At pages 46 to 47 of his report, Dr. Lawson set out his recommendations for treatment of Mr. Dorfer while he is in custody. He was not optimistic about the possibility of successfully managing the risk of Mr. Dorfer's recidivism out of custody. He wrote: In my view Mr. Dorfer could benefit from a repetition of the programs originally recommended in his correctional treatment plan. More specifically, I recommend he participate in maintenance programs for substance abusers and sexual offenders, life-skills training, emotions management and vocational skills training. During his previous incarcerations his program participation was severely disrupted as a result of four related factors: his depressed mood and/or suicidal ideation, fears for his personal safety, substance abuse and lack of motivation. If Mr. Dorfer is to benefit optimally from participation in correctional programs each of these factors must first be addressed. I recommend regular monitoring of his mood which can be accomplished by use of self-report measures and behavioural observations of such indicators as his work attendance and exercise adherence, as well as referral for antidepressant medication when indicated. Fears for his personal safety have arisen when he unexpectedly encounters incompatible inmates and this has occurred in several institutions in the Pacific Region. In view of the fact that incompatibles cannot all be identified by name, it may well be worth considering an inter-regional transfer for Mr. Dorfer. While there is no way of ensuring Mr. Dorfer abstains from illicit drugs while incarcerated, frequent, randomly scheduled urinalysis may assist him and inform clinical staff of his condition. By his own account as well as others', Mr. Dorfer is a talented musician, song-writer and poet and has undertaken these activities from time to time on his own. In my view, his interest and talent in these areas should be cultivated not only to enhance his mood, but also to maintain his motivation by making access to special instruction, mentoring and performance opportunities contingent upon program participation. This is similar to one of Dr. Williamson's recommendations in 1985. Finally, consistent with Mr. Cotfas' recommendation, it would likely be of benefit to Mr. Dorfer to maintain an ongoing counselling relationship with a qualified professional. While implementation of these recommendations would, in my view, maximize the likelihood of Mr. Dorfer's successful rehabilitation, it should be noted that his prognosis is poor. As poor as Mr. Dorfer's prospects are for successful rehabilitation as a result of programs and treatment while in custody, it would appear from his past behaviour that his prospects for successful maintenance of these new behaviours in the community is even poorer. As noted previously, he did not successfully complete any of his previous 15 supervised releases and either reoffended or violated his release conditions within 1 day to 5 months. Mr. Dorfer's institutional CMT, parole officers and the NPB have, in my view, been both imaginative and exhaustive in compiling release conditions to reduce his risk of recidivism. For example, a community assessment in 2001 notes that he was accepted by the Salvation Army CRF on release provided "...his taking the Relapse Prevention Program (SARP), which will entail his being restricted to the building until completion (approximately 2 weeks), followed by ATP (an 8 week residential treatment program); involvement in the Sex Offender Program; following psychological counselling; and taking cognitive and anger and emotions management booster programs on an as needed basis. In addition to his special condition to abstain from all intoxicants, the risk of the case will otherwise be addressed via Mr. Dorfer's correctional plan, which will involve the following: regular urinalysis; not going into bars or nightclubs; participating in substance counselling and/or programs; participating in anger and emotions management boosters on as needed basis; participating in cognitive living skills boosters on a needs basis; following psychological counselling; participating in the sex offender program; not being in direct or indirect contact with his victim(s), without the permission of his parole supervisor; refraining from meeting or communicating with any person whom he knows to have a criminal record, except as necessitated by residency at a community residential facility; monthly police reporting; 4 times per month contact with his parole supervisor; and engaging in academic/vocational upgrading and/or securing/maintaining steady and meaningful employment. Mr. Dorfer should also consider voluntary counselling with abuse counsellor, John Caulder..." (207, p. 2) Mr. Dorfer's parole on these conditions was suspended within three months of his release. [49] Dr. Lawson concluded that Mr. Dorfer's record of past failures while in the community bodes poorly for the future. He wrote at page 47: Ultimately it is not the exhaustive scope of Mr. Dorfer's conditions that will result in his successful reintegration into society, but his willingness and ability to abide by them over an extended period. Despite his apparent optimism about and commitment to his rehabilitation in the past and the support he has garnered from correctional professionals, clinicians, relatives and even his own lawyer, Mr. Dorfer's past record of failure on conditional release bodes poorly for his future in the community. The Legislation [50] The Crown's application is brought pursuant to Part XXIV of the Criminal Code dealing with Dangerous Offenders and Long Term Offenders. Some of the provisions of that part of the Code including s. 753 were amended on July 2, 2008. Both counsel for the Crown and counsel for Mr. Dorfer take the position that the provisions which govern this application are those that were in effect at the time of the offence, and not the current provisions as they have been changed by the 2008 amendments. [51] I agree with the position taken by counsel. Section 11(i) of the Charter of Rights would give the offender the benefit of the new provisions if they were more favourable to him in terms of punishment, but counsel are satisfied, and I agree, that taken as a whole, it cannot be said that the new provisions are more favourable to Mr. Dorfer. All references in these reasons to the provisions of Part XXIV are therefore to the provisions as they were prior to the 2008 amendments. [52] The sections of the Criminal Code relevant to the present application include the following: 752. "serious personal injury offence" means (a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, or (b) an offence, or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). 753. (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous offender if it is satisfied (a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint, or (b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. ... (4) If the court finds an offender to be a dangerous offender, it shall impose a sentence of detention in a penitentiary for an indeterminate period. ... (5) If the court does not find an offender to be a dangerous offender, (a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or (b) the court may impose sentence for the offence for which the offender has been convicted. ... 753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if ft is satisfied that (a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (b) there is a substantial risk that the offender will reoffend; and (c) there is a reasonable possibility of eventual control of the risk in the community. (2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if (a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), subsection 163.1(3) (distribution, etc. of child pornography), subsection 163.1(4) (possession of child pornography), subsection 163.1(4.1) (accessing child pornography), section 172.1 (luring a child), subsection 173(2) (exposure), or section 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault) or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been. convicted; and (b) the offender (i) has shown a pattern of repetitive behaviour of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to other persons or inflicting severe psychological damage on other persons, or (ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury pain or other evil to other persons in the future through similar offences. (3) Subject to subsections (3.1), (4) and (5), if the court finds an offender to be a long-term offender, it shall (a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for a term of two years; and (b) order the offender to be supervised in the community for a period not exceeding ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act. ... (6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted. In addition to these provisions of Part XXIV, I must also keep in mind the general purpose and principles of sentencing set out in of Part XXIII of the Criminal Code, particularly ss. 718, 718.1 and 718.2. Section 718 provides: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. Application of the Dangerous Offender Provisions to Mr. Dorfer [53] The offence of which Mr. Dorfer has been convicted is a serious personal injury offence as defined both in paragraph (a) and in paragraph (b) of s. 752. It comes within paragraph (a) because it is an indictable offence punishable by at least ten years imprisonment that involved the use or attempted use of violence against another person. It also comes within paragraph (b) because the offence of breaking and entering a dwelling house and committing the indictable offence of sexual assault therein necessarily includes the offence of sexual assault. [54] Section 753(1) provides that Mr. Dorfer may be found to be a Dangerous Offender if any one of the conditions set out in sections 753(1)(a)(i), 753(1)(a)(ii), 753(1 )(a)(iii), or 753(1)(b) are met. The Crown need only show that one of those conditions is met, not that all of them are: R. v. Lewis (1984), 12 C.C.C. (3d) 353 (Ont. C.A.). In the case of Mr. Dorfer, the Crown submits that all conditions are met, while the defence maintains that none of them are met. [55] I am satisfied that Mr. Dorfer's current offence comes within s. 753(1)(a)(i) and that he constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of the evidence of a pattern of repetitive behaviour as set out in that section. While it is true that his only offences involving violence and sexual assault are the current offence and those from December 1992, the similarity of the circumstances of those offences is sufficient to establish the required pattern of repetitive behaviour: R. v. Langevin (1984), 11 C.C.C. (3d) 336 (Ont. C.A.) at p. 348. Mr. Dorfer's offences show a distinctive and unusual pattern: breaking and entering the homes of women in their late sixties or older, and then assaulting them and stealing from them. [56] I am also satisfied that Mr. Dorfer comes within s. 753(1)(a)(iii). In R. v. Langevin the Ontario Court of Appeal held that brutality within the meaning of this section need not amount to what has been called "stark horror". Rather, as the court explained at p. 349: Conduct which is coarse, savage and cruel and which is capable of inflicting severe psychological damage on the victim is sufficiently "brutal" to meet the test. [57] The current offence, in which Mr. Dorfer sexually assaulted with a knife an 89-year-old woman in her own home resulting in significant bruising to her arm and face, is of such a brutal nature as to compel the conclusion that his behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint. [58] I am likewise satisfied that Mr. Dorfer comes within s. 753(1)(b). His conduct in the current offence, as well as his conduct in 1992 when he sexually assaulted a 69-year-old woman in similar circumstances, shows a failure to control his sexual impulses and a likelihood of causing injury, pain or other evil to other persons through a failure in the future to control his sexual impulses. The fact that some 12 and one-half years elapsed between those offences does not detract from this conclusion, in light of the fact that he was in custody for almost ten years of that time. The Long Term Offender Provisions [59] The statutory requirements for declaring Mr. Dorfer to be a Dangerous Offender are therefore met, but before finding him to be a Dangerous Offender and imposing an indeterminate sentence, I must first consider whether he may be found to be a Long Term Offender and whether the sentencing options available under the Long Term Offender provisions are sufficient to reduce his threat to the life, safety or physical or mental well-being of other persons to an acceptable level. [60] With respect to the statutory conditions for a Long Term Offender sentence set out in s. 753.1, I am satisfied that an appropriate determinate sentence for the present offence would be more than two years, and that there is a substantial risk that Mr. Dorfer will reoffend. The crucial issue, therefore, is whether there is a reasonable possibility of eventually controlling that risk in the community. As the Supreme Court of Canada wrote in R. v. Johnson, [2003] 2 S.C.R. 357 at para. 32: If the public threat can be reduced to an acceptable level through either a determinate period of detention or a determinate period of detention followed by a long-term supervision order, a sentencing judge cannot properly declare an offender dangerous and sentence him or her to an indeterminate period of detention. [61] In R. v. Wormell, 2005 BCCA 328, 198 C.C.C. (3d) 252, the British Columbia Court of Appeal rejected the notion that there is an onus on the Crown to prove beyond a reasonable doubt that it was not reasonably possible to control the risk posed by the offender through a Long Term Offender sentence. As Southin J.A. explained at paras. 32 to 33: [32] The task of the Court from beginning to end is to ask itself, "Am I satisfied that there is a reasonable possibility of eventual control of the risk in the community?" If the judge concludes that he or she is not so satisfied then the judge cannot designate the offender a long-term offender. [32] In my opinion, it is not right to approach this with burden of proof at the back of one's mind. Burden of proof, whether it is proof beyond a reasonable doubt or on a balance of probabilities, directs itself to determining past events. [62] The court can only find a reasonable possibility of eventual control if such treatment or control can be effected within the parameters of the appropriate fixed sentence and supervisory conditions within the community. Thus, in R. v. B.A.P. 2005 BCCA 121, 194 C.C.C. (3d) 476, Newbury J.A. said at para. 30: [30] In the case at bar, I would emphasize the word "reasonable" as a qualifier of "possibility" and the phrase "within the terms of the long-term offender provisions". Again, the Crown is not required to prove absolute intractability to meet its burden. If, as in this case, there is a "possibility" of future treatment, but it is unlikely that such treatment or control can be effected within the parameters of the appropriate fixed sentence and supervisory conditions in the community, a long-term offender designation is not appropriate. [63] Moreover, the evidence of treatability or control must amount to more than an expression of hope, and must be evidence specific to the offender. As Madam Justice Cronk wrote for the Ontario Court of Appeal in R. v. G.L. (2007), 225 C.C.C. (3d) 20 (Ont. C.A.) at para. 42: [42] I do not read Johnson as displacing the principle that, to achieve the goal of protection of the public under the dangerous offender and long-term offender provisions in the Code, evidence of treatability that (i) is more than mere speculative hope, and (ii) indicates that the specific offender in question can be treated within an ascertainable time frame, is required. The requisite judicial inquiry on a dangerous offender application, mandated by Johnson, is concerned with whether the sentencing sanctions available under the long-term offender provisions of the Code are "sufficient to reduce [the offender's] threat to an acceptable level." [Emphasis added.] The determination of whether an offender's risk can be reduced to an "acceptable" level requires consideration of all factors, including treatability that can bring about sufficient risk reduction to ensure protection of the public. This does not require a showing that an offender will be "cured" through treatment or that his or her rehabilitation may be assured. What it does require, however, is proof that the nature and severity of an offender's identified risk can be sufficiently contained in the community, a non-custodial setting, so as to protect the public. [64] In the recent case of R. v. Johnson, 2008 BCCA 149 at para. 73, the British Columbia Court of Appeal adopted those remarks as correct. [65] In 1994, Mr. Dorfer was sentenced to seven-and-a-half years imprisonment for the break and enter and sexual assault he committed in 1992. The trial judge gave him double credit for the three months he had already spent in custody, so the sentence was effectively a sentence of eight years. The current offence is disturbingly similar to that one. If I were to impose a determinate sentence for the current offence, it would have to be significantly greater than the sentence he received in 1994. [66] Counsel for Mr. Dorfer submits that a fit determinate sentence would be in the range of ten to 12 years, less credit for the time he has already spent in custody, which is three years and eight months. If double credit were given for that time, that would reduce the sentence by about seven years. Thus, counsel for Mr. Dorfer submits the appropriate sentence should be about three to five years additional incarceration. [67] I do not agree that such a short determinate sentence would be a fit sentence on the facts of this case. In R. v. Jones, 2000 BCCA 379, the British Columbia Court of Appeal upheld a sentence of 15 years for a break and enter where the accused committed a sexual assault. The accused had pleaded guilty, was remorseful, and was only 20 years old at the time. He had already spent five months in pre-sentence custody. In my view, if Mr. Dorfer were to receive a determinate sentence, it would have to be a sentence of at least 15 years, less credit for time already spent in custody. If he were given double credit for the time he has spent in pre-sentence custody, that would produce a sentence of about eight years additional imprisonment. If he were given only one-for-one credit, the resulting sentence would be approximately 11 years. [68] If Mr. Dorfer were given a Long Term Offender sentence, then a period of supervision in the community for up to ten years could be added to that period of incarceration. [69] Regrettably, I am unable to find in the evidence any basis to conclude that there is a reasonable possibility that the risk to others posed by Mr. Dorfer could be controlled in the community within the parameters of such a sentence. While there is always the chance that he will, with age, become less inclined to offend, or that he will become more motivated to take treatment, or that he will forever renounce the abuse of drugs, there is no evidence, specific to him, that suggests any likelihood that these things will actually occur. One may, and indeed I sincerely do, hope that these things will happen, but a mere hope that is not based on the evidence does not support the imposition of either a determinate sentence or a Long Term Offender sentence. [70] The most important sentencing objective in this case is the protection of the public. The only reasonably reliable way of achieving that objective on the evidence before me is to separate Mr. Dorfer from society for an indeterminate period. Sentence [71] Mr. Dorfer, would you please stand. [72] I find you to be a Dangerous Offender, and I sentence you to detention in a penitentiary for an indeterminate period. [73] Pursuant to s. 109(1)(a) of the Criminal Code, a firearms prohibition order is mandatory upon conviction for this offence. As this is not your first conviction leading to such a prohibition, the order pursuant to s. 109(a) shall be for life. [74] The Crown seeks an order under s. 487.051(1) of the Criminal Code for the provision of samples for DNA analysis. I am satisfied that it is in the best interests of justice to do so in light of your criminal record, the nature of your offence, the circumstances surrounding its commission and the impact such an order would have on your privacy and security of the person. There shall be an order under s. 487.051. [75] Finally, the Crown seeks an order under s. 490.012 of the Criminal Code requiring compliance with the Sex Offender Information Registration Act, S.C. 2004, c. 10. Despite affording you an opportunity to do so, no submission has been made pursuant to s. 490.012(4) that the impact of such an order upon you would be grossly disproportionate to the public interest as set out in that section. There shall be an order that you comply with the Sex Offender Information Registration Act, and pursuant to s. 490.01 3(2)(c), the order applies for life. The Honourable Mr. Justice W. F. Ehrcke