R. v. Richardson

2014 BCSC 2233 R. v. Richardson IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Richardson, 2014 BCSC 2233 Date: 20141113 Docket: X077000 Registry: New Westminster Regina v. Richard Elbertson Richardson Restriction on publication: Pursuant to ss. 486.4(1)(2) C.C.C. Restricted Access Before: The Honourable Mr. Justice Greyell Oral Reasons for Sentence Counsel for the Crown: C.G. Giles Counsel for the Accused: L.J. Helps Place and Date of Trial/Hearing: Vancouver, B.C. November 7, 12 and 13, 2014 Place and Date of Judgment: New Westminster, B.C. November 13, 2014 [1] THE COURT: On May 13, 2014, I found Mr. Richardson guilty of sexual assaulting B.Y. on five different occasions between January 4, 1983, and December 31, 1983, contrary to s. 246.1 of the Criminal Code, R.S.C. 1985, c. C-46 ("Code"), and of committing an act of gross indecency and a sexual assault on C.Y. between January 4, 1983, and December 31, 1983, contrary to ss. 157 and 246.1 of the Code. [2] Mr. Richardson is before me today for sentencing. The circumstances of the offences are set out in detail in my reasons for conviction which are indexed in R. v. Richardson, 2014 BCSC 996. I will summarize them briefly for the purposes of these reasons. [3] C.Y. and B.Y. were brothers who were brought up in Maple Ridge, B.C. Their parents separated when their mother moved to Edmonton. B.Y. lived with his father. His father was an alcoholic and, from the evidence, was uninvolved with B.Y. during his teen years. Mr. Richardson was a family friend of the brothers' mother. Mr. Richardson befriended B.Y. in 1983 when the latter was 15 years old after the time his parents had separated and B.Y. was living with his father. On five separate occasions that year when B.Y. went to Mr. Richardson's house to drink alcohol provided by Mr. Richardson or when he was looking for a place to stay with a friend, B.Y. slept overnight at Mr. Richardson's house. He was sexually assaulted on five separate occasions when Mr. Richardson entered the bedroom in which he was sleeping, crawled into the bed with him, fondled his penis, and engaged in other unwanted sexual acts described in my reasons for conviction. [4] In the case of C.Y., I found Mr. Richardson guilty of the offences of gross indecency and sexual assault committed when C.Y. was eight years old. The offence occurred on a day Mr. Richardson was babysitting C.Y. C.Y. had been put in Mr. Richardson's trust by his mother earlier that day. Mr. Richardson put his hands down C.Y.'s pants, touched his penis, then held his head, and attempted to have oral sex with him by placing his penis in C.Y.'s mouth. He then inserted his penis into C.Y.'s anus all the while holding him down by his face. C.Y. managed to push Mr. Richardson's head away and he then, under the circumstance described in my earlier decision, held Mr. Richardson essentially at gunpoint until C.Y.'s mother returned to pick him up. [5] The position of the Crown in these proceedings is that Mr. Richardson should be sentenced between six months and one-year imprisonment on the count relating to gross indecency against C.Y. and 18 months to two years on the count relating to sexual assault against C.Y., those sentences to run concurrently, but consecutively with the sentence the Crown seeks of between 18 months and two years for the sexual assaults committed against B.Y. The Crown notes the seriousness of the offences is reflected by the fact the Criminal Code contains maximum sentences of five years' imprisonment for the offence of gross indecency and a maximum sentence of ten years' imprisonment for the offence of sexual assault. [6] Counsel for Mr. Richardson says that given the unique circumstances of this case, and I will review those circumstances shortly, the time served by Mr. Richardson, which is roughly three years plus some number of days plus a period of probation, which I note is already in place under several Provincial Court sentencing decisions, represents a sentence which satisfies the principles of deterrence and denunciation, which Ms. Helps agrees are the primary principles of sentencing applicable in this case. [7] In support of their respective submissions, counsel have referred to the following authorities: R. v. R.S.H., 2005 BCSC 927; R. v. V.C., [2006] O.J. No. 3268; R. v. J.A.G., [2008] M.J. No. 162; R. v. Safaee, [2009] B.C.J. No. 1876; R. v. Rennie, [2013] B.C.J. No. 1061; R. v. D.L.W., [2014] B.C.J. No. 62; and R. v. Clarke, 2014 SCC 28. [8] 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. A sentence must be proportionate both to the gravity of the offence and to the degree of responsibility of the offender. Section 718 of the Criminal Code sets out a number of objectives a sentencing judge must consider when imposing sentence. Those objectives are to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders from society, where that is necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [9] Section 718.01 of the Criminal Code provides that the principles of denunciation and deterrence are the primary factors that must be taken into account in cases involving the sexual assault of a person under the age of 18 years. I am also required under s. 718.2 of the Criminal Code to taken into account relevant aggravating or mitigating circumstances relating to the offence or to the offender. In particular, I am required to take into account evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim and whether the offender abused a person under the age of 18 years. [10] There are other important sentencing principles which must be taken into account. A sentence should be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Where consecutive sentences are imposed, as they are in this case, the combined sentence should not be unduly long or harsh. An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstance. All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. [11] In all cases of sentencing, the court is required to take into account what is sometimes a difficult balancing act and that is the particular circumstances of the offence and the particular circumstances of the offender. [12] Let me turn to the particular sentencing factors I must consider in this case. [13] As outlined in my reasons for conviction and referred to again, both C.Y. and B.Y. were vulnerable young people at the time offences occurred. C.Y. was entrusted to Mr. Richardson's care as a babysitter when he was eight years of age. By committing the acts he did, Mr. Richardson was in breach of that trust. B.Y. was a 15-year-old who Mr. Richardson, as I found in my reasons for conviction, deliberately plied with liquor. B.Y. was shy and a sexually innocent teen without much parental influence in his life and vulnerable to Mr. Richardson's advances. Notwithstanding B.Y's protestations, Mr. Richardson sexually molested him on five different occasions. [14] Section 722(1) of the Criminal Code requires I take the victim impact statements into account in imposing sentence. [15] The Crown filed victim impact statements from both B.Y. and C.Y. The statements were read into the record during Crown counsel's submissions and I do not intend to read them again. It is clear, however, from those statements that Mr. Richardson's conduct has had a significant lifelong impact on both. They are now grown men. For long periods of their lives they have lived under the burden and the shame of Mr. Richardson's conduct. They, as innocent victims, have essentially tried to bury the effect of his wrongful assaults on them. The police advertisement and the ultimate trial have caused the scars and the memories of what happened to them to resurface and that, for each, has been a painful experience. Each have had nightmares. Each have had to seek counselling. Each say their relationships with others have been affected by Mr. Richardson's conduct and each have had to relive that experience by giving testimony in court. They are to be commended for their strength in coming forward with their complaints to see that justice has been done. [16] Mr. Richardson has a criminal record. It is a particularly aggravating factor in this case because he had at least three prior convictions for sexual assault in Port Coquitlam in 2005, 2009, and 2011. Those assaults postdate the offences which occurred in this case. Mr. Richardson was convicted for breach of an undertaking in Port Coquitlam in May 2011. Mr. Richardson has served time in jail arising from those offences, but as I read the record, most of that time was presentence time with credit being granted upon sentencing. There is an indication in the psychologist's report, to which I will refer shortly, that there have been a number of other criminal charges relating to similar offences, some of which have been stayed by the Crown, dating back as far as 1990. Mr. Richardson does not acknowledge any criminal responsibility for his conduct. There are circumstances peculiar to Mr. Richardson which may well explain why he does not, to which I will refer shortly. There are mitigating circumstances in this case which are pertinent to the issue of sentencing. [17] I have been provided with a psychologist's report prepared by Dr. Stangeland of the British Columbia Mental Health and Addictions Services Forensic Psychiatric Services Commission dated December 12, 2013. The report was prepared for the presiding judge in a Provincial Court proceeding. [18] Mr. Richardson is currently 63 years of age. The report provides background information about him. When Mr. Richardson was very young, he was involved in a significant motor vehicle accident which resulted in him sustaining a brain injury. There is also a suggestion he had viral meningitis. [19] As a result of the motor vehicle accident and the injury, at the age of five, he was placed in Woodlands School in New Westminster where he remained until he was 17 years old. While he was in attendance at Woodlands and a subsequent school he attended for two years, he was subject to what appears to be ongoing physical and sexual abuse by staff and inmates. He received a settlement amount from the Province of British Columbia as a consequence of such abuse. [20] The psychological report indicates that the results from global testing of intelligence and verbal comprehension place Mr. Richardson in the mild to moderate mentally handicapped range of abilities, that is, well below the first percentile for people his age. I will refer to several portions of Dr. Stangeland's report, some of which has been referred to by counsel. [21] At page 9 of the report under a section entitled, "Risk Assessment Instruments; Sexual Violation History; Chronicity of sexual violence," the doctor notes: Richard's history strongly suggests that he developed a pattern of sexual arousal to homosexual activities as a result of his sexual abuse while he was in Woodlands School as a youngster. His activities appear to typically involve covert, nighttime ventures and this appears to be a firmly established, longstanding pattern of arousal. [22] At page in a section which reads, "Physical coercion in sexual violence," the doctor's note is: Absent. There is no evidence of any physical coercion. Under, "Psychological coercion in sexual violence", the doctor notes: Absent. There is no evidence of any psychological coercion. In the case before me, there was evidence of both psychological and physical coercion. [23] Under point 10, a heading entitled, "Psychological Adjustment," the doctor notes under a subheading, "Problems arising from child abuse": Present. Richard's current sexual misconduct clearly relates to being the victim of sexual abuse while a resident at Woodlands School. [24] At page 12, he elaborated: With reference to Richard's risks, it is important to recognize that his offending involves acting out the type of sexual behaviour that he was exposed to when he was young and in Woodlands School. This is associated with a deeply ingrained pattern of sexual arousal that is likely to be activated whenever he is in a situation where he is resident with other males. Further, he has limited impulse control so that even if he recognizes that his actions are wrong, he is likely to still engage in them when he is aroused. If he is in a situation where he is living with another male or males, there is a high level of risk that he will act out sexually. This is not to suggest he should not have homosexual relationships. Rather, the source of concern is that he does not obtain consent prior to doing so. Risk for this type of sexual misconduct could be reduced if he were to live in a situation where there would be no other male residents or if there was a high degree of supervision in his residence. He goes on to say: With reference to other types of sexual behaviour, there appears to be relatively little risk. To date, there does not appear to be any indications of pedophilia, violent sex behaviours, inappropriate actions with women, or non-contact sexual behaviours, such as exhibitionism. [25] In the portion of the report entitled, "Conclusions and Recommendations," Dr. Stangeland wrote: In Richard's case, the appropriate response is likely to have more to do with prevention than with treatment. From a treatment perspective, he is not a suitable candidate for Involvement in the group Sexual Offender Program sponsored by Forensic Services. He could, however, be provided with some individual treatment within that program. It must, however, be borne in mind that his capacity for learning is limited and that treatment alone is unlikely to help him to deal with future risk situations. If he is in circumstances where other males are resident and there is no supervision, he would continue to be at fairly high risk for relapse. Given that no agency seems to have been involved with Richard since he left the care system at the age of 17, there is no care plan that has been devised to best meet his needs. This is something that needs to be in place. He continued: There needs to be a more complete review of residential possibilities in order to determine what is best for him. This would be best carried out by Community Living BC, the agency that is designated to provide services to people such as Richard. [26] In the next paragraph, he says: From a criminal justice perspective, there is nothing to be gained through incarceration. He appears to be a relatively pliable individual who would probably respond well provided that adequate structure and supervision is available. It is not realistic to think he will always make the best social judgments on his own and it would be useful to have some external structure, planning, and supervision in order to enhance his social and recreational involvement and to reduce the risk of inappropriate behaviour. The responsibility for these issues must, however, be considered to fall more on his caregivers than upon himself. It is important to establish who might best be able to resume responsibility and develop a care plan for him. If this is not to be Community Living BC, then that agency should at least be involved in overseeing the process. [27] Dr. Stangeland continued: From the perspective of the Court, it would be useful to have a community supervision order that requires Richard to reside as directed by his probation officer, to attend individual sex offender treatment programming, and not to have unsupervised contact with children under the age of 15 [sic, 16]. [28] As I said at the outset, I am required to consider the principles of deterrence and denunciation as the primary principles of sentencing applicable in this case. I must also, however, tailor those principles to take into account the particular circumstances of the offences and the circumstances of Mr. Richardson. [29] I have reviewed the authorities provided by counsel. The facts of this case are unique from those in the authorities counsel have referred to. The court authorities did not deal with accused person who faced the challenges which Mr. Richardson has. In essence, he is described by his psychologist as a mentally handicapped person who is unable to control his sexual impulses because of a deeply ingrained pattern of sexual arousal which was the result of sexual abuse while at Woodlands. [30] Mr. Richardson, would you stand, sir. Ms. Helps you may stand beside Mr. Richardson -- [31] MS. HELPS: Please, thank you. [32] THE COURT: -- if you think that is necessary. [33] MS. HELPS: Thank you, My Lord. [34] THE COURT: Mr. Richardson, having reviewed the authorities, having considered the submissions of Crown counsel and your counsel, the aggravating circumstances which I have outlined, the mitigating circumstances which I have outlined, you are sentenced as follows. [35] For the offences relating to C.Y., that is, the gross indecency count as set out in Count 3 of the indictment, I sentence you to six months' imprisonment. For the charge of sexual assault as set out in Count 4 of the indictment, I sentence you to 18 months' imprisonment. These sentences are to be served concurrently. [36] For the offence relating to B.Y., as contained in Count 5 of the indictment, I sentence you to 18 months' imprisonment to be served consecutive to the sentence imposed in connection with the sentence imposed on Counts 3 and 4. [37] Accordingly, I sentence you to a global sentence of three years' imprisonment. You will be entitled to credit for the time you have served while you were incarcerated using the formula of time and one half. I understand that you now have or soon will have sufficient credit to be released from custody. [38] One of the court's primary responsibilities in sentencing is, as far as possible, to protect the public. Having in mind the opinion of Dr. Stangeland, the submissions of your counsel, and the recent agreement that has been reached between the John Howard Society, Community Living, with the involvement of the public trustee in your affairs, there will be a further order that you will be on probation from your release from incarceration for a period of three years. [39] You may now be seated while I review the terms of that probation, but you need to listen carefully, sir, because you will have to comply with those terms. [40] You have a conviction for not complying with the court's terms. You must know, Mr. Richardson, that if you do not comply with the court's terms, you will be brought back before this Court and if you are found to be in breach of the terms, you will be sentenced for that breach and, given your record, sir, I venture to say the court which sentences you will look very closely at the matter. These are the terms and I will invite counsel's submissions or comment on these terms when I have gone through them. [41] You will keep the peace and be of good order. [42] You shall appear before the court when you are required to do so by the court. [43] You shall notify the court or your probation officer in advance of any change of name or any change of address, and you will promptly advise the court or your probation officer in the event you work of the name of your employer and of any change in your employment. [44] Now, counsel, is it the Maple Ridge address for reporting? [45] MS. HELPS: No, it will be Abbotsford, My Lord, and so what I would suggest is that at the conclusion of the proceeding that I provide to Madam Registrar the correct address, but it is the Abbotsford probation office, at least it will be. [46] MS. HELPS: Yes. [47] THE COURT: And within what time? [48] MS. HELPS: I would say within 72 hours of release so that that gives Community Living British Columbia the ability to get him there. [49] THE COURT: You are required to report no later than 72 hours following your release from incarceration at the probation office in Abbotsford, the address of which will be provided to you later today and, thereafter, you will report as and when you are directed by your probation officer. [50] You shall commence the term of this probation order by residing at 2065 Ware Street in Abbotsford. You are to obey the rules and regulations of your residence. [51] You are to have no guest present in your unit between the hours of 8:00 p.m. and 8:00 a.m. except with the permission received in advance from your probation officer. [52] You will have no one living with you at 2065 Ware Street without the approval given in advance of your probation officer. [53] You shall not change your residence at any time without first obtaining the written consent of your probation officer. [54] You shall remain in the Province of B.C. unless you have first obtained the written consent of your probation officer to go elsewhere. [55] You will present yourself to the door of your residence when any peace officer or probation officer attends there for the purpose of determining your compliance with the terms of this order. [56] You shall respond personally and immediately to the telephone when a peace officer or probation officer makes a telephone call to your residence for the purpose of determining your compliance with this order. [57] You shall have no contact or communication directly or indirectly with B.Y. or C.Y. [58] You shall not attend any public park, school ground, daycare centre, swimming pool, playground, skating rink, community centre, or recreation 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 who is approved in writing in advance by the probation officer. [59] You shall attend, participate in such counselling or program as directed by your probation officer. Without limiting the general nature of this condition, such assessment, counselling, or program may relate to sexual offence prevention and/or a program for sex offenders and you shall comply with all rules and regulations of any such assessment, counselling, or program. [60] Which RCMP detachment would take the -- [61] MS. HELPS: Abbotsford does not have an RCMP detachment, My Lord. [62] THE COURT: Yes. [63] MS. HELPS: It is the Abbotsford Police Services. [64] THE COURT: And 72 hours, within a week, what period of time following upon release? [65] MS. HELPS: I would think 72 hours would be appropriate for Community Living to get him there, and My Lord, the address of Abbotsford Community Corrections Probation Office is 2865 Cruickshank Street, in Abbotsford, British Columbia. [66] THE COURT: And you will advise Mr. Richardson. [67] MS. HELPS: Of course. [68] THE COURT: Yes. Mr. Giles, you had requested an Internet restriction? [DISCUSSION RE SECTION 161 CONDITIONS] [69] THE COURT: Mr. Richardson, you are required to attend the Abbotsford Police, Ms. Helps will provide you with the address, within 72 hours of your release from incarceration for the purposes of providing a sample of your DNA pursuant s. 487.051(2) of the Criminal Code. [70] Are there other terms of the probation order? [71] MR. GILES: I do not -- there is none that come to mind, My Lord. Those are all the conditions that the Crown was seeking. [72] THE COURT: I see little point -- and I think it was agreed yesterday there would be no restitution -- [73] MS. HELPS: That is -- [74] THE COURT: -- order, none sought, and -- [75] MR. GILES: No, none sought. [76] MS. HELPS: And the victim fine surcharge, as well, was waivable at the time of the offence. [77] THE COURT: Yes. [78] MS. HELPS: So I am asking for that to be waived. [79] THE COURT: I waive both. [80] MS. HELPS: Yes, thank you. [81] THE COURT: There will be a further separate order under s. 161(1)(a) of the Criminal Code prohibiting Mr. Richardson from attending a public park or a public swimming area where persons under the age of 16 are present or can reasonably be expected to be present, or a daycare center, school ground, playground, or community centre, and a further order under s. 161(1)(d) preventing him from using the Internet or other digital network to contact directly or indirectly either of the complainants, C.Y. or B.Y. [82] There will be an order registering him under the sexual offender registry as was sought. [83] Are there any other ancillary order or orders requiring clarification? [84] MR. GILES: Those are the only ancillary orders, My Lord. [85] MS. HELPS: My Lord, just with regards to 161(a), I had asked yesterday that there may be an exception, "If in the company of someone who is aware of his criminal record in case there are health concerns," so that Mr. Richardson can go with a supervisor either to a gym to work out or, alternatively, to a community centre to participate in an activity, which I understand may be a possibility. [86] MR. GILES: I had indicated that if that was a person previously approved by his probation officer, I would not be opposed. [87] THE COURT: If that person is approved by his probation officer, yes. [88] MS. HELPS: Yes, thank you. [89] MR. GILES: Just for the purpose of clarity, Your Lordship has made a global sentence of three years minus time served. The Crown's calculation of that time served given one-and-a-half times of credit would be two years, 11 months, and 20 days. So the sentence, new time, would be ten days; is that accurate, My Lord. [90] THE COURT: I assumed counsel would be able to work this matter out. [91] MR. GILES: Yes. [92] THE COURT: You are much more privy to the -- [93] MR. GILES: That I believe we are ad idem on. The purpose of seeking that on the record is, pursuant to s. 731 of the Criminal Code, a court can only make a probation order where a sentence is less than two years. The R. v. Mafi decision of the Supreme Court of Canada allows a court to make a sentence of new time after having calculated for time served and that being less than two years, the probation order stands. So I am seeking that in addition to time served, that -- and what that record reflects that time served being, that the additional time of adding up would make that ten days' new time. [94] MS. HELPS: That order can be done with a sentence of one day. The concern that I have, My Lord, is that the Court of Appeal has recently said that the time that has been applied needs to articulated on the record. So I just need to make sure that there is -- the time has been applied and articulated to the record. With the greatest of respect, the extra time that Mr. Richardson will spend in custody considering there is this plan in place, I am not sure that it is necessary, but of course in all of the circumstances, I think one day or 10 days will allow that probation order that My Lord spoke of to be put on the file. [95] MR. GILES: That is the position of Crown, as well. [96] THE COURT: As long as there is some additional time. [97] MR. GILES: No, as long as the three-year sentence that is given is reflected; that that was what would have been given before the calculation of -- [98] THE COURT: Oh, yes. Oh, yes. [99] MR. GILES: -- pretrial credit so that the sentence that is actually ordered -- [100] THE COURT: Indeed. [101] MR. GILES: -- by this court is a sentence of less than two years in order to make the probation order valid. [102] THE COURT: Yes. That is the case. Do you need any further clarification? [103] MR. GILES: That -- [104] MS. HELPS: No, thank you, My Lord, that is -- it just needs to be articulated on the record. [105] MR. GILES: Thank you. [106] MS. HELPS: Thank you. [107] THE COURT: Thank you, counsel, for your submissions. "Greyell J."