R. v. G.D.

2013 BCSC 2463 R. v. G.D. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. G.D., 2013 BCSC 2463 Date: 20131107 Docket: 35380-2 Registry: Prince George Regina v. G.D. and T.D. BAN ON PUBLICATION PURSUANT TO S. 486.5(1) C.C.C. Before: The Honourable Mr. Justice Tindale Oral Reasons for Sentence Counsel for Crown: C.P. Malfair Counsel for the Accused G.D.: C.K. Aartsen Appearing on her own behalf: T.D. Place and Date of Judgment: Prince George, B.C. November 7, 2013 [1] THE COURT: G.D. and his wife are charged with 18 counts relating to abuse allegations of six of their eight children on Indictment Number 35380-2. [2] G.D., after 10 days of trial, which included the entirety of the Crown's case and a witness on behalf of T.D., entered guilty pleas to six counts of common assault pursuant to s. 266 of the Criminal Code, one count for each of the six children named in the indictment. The specific counts that he pled to are Counts 13 through 18 on the indictment. All of these counts allege assaults occurring between September 14, 2006, and October 13, 2011. [3] Crown counsel is not proceeding with the more serious charges of unlawful confinement and assault with a weapon as they relate to the six children. [4] I am also advised that at the end of the sentencing proceeding, the charges against T.D. will be stayed. [5] By way of background, G.T. and T.D. have eight children. Their oldest two daughters were not the subject of any allegations of criminal offences. The children who are the subject-matter of this indictment are as follows: F.D., who is aged 17; J.D., aged 15; L.A.D. and L.O.D., who are twins and aged 13; O.D., aged 12; and R.D., aged nine. [6] G.D. is on a permanent disability and has not worked since 1983. He and his family survive primarily on disability benefits and social assistance income. [7] The D.'s homeschooled all of their children and, on the evidence, isolated themselves and their children from the outside world as much as they could. [8] The D.'s phoned the police as a result of difficulty they were having in controlling their son J.D.'s behaviour. Upon the police embarking on that investigation, it eventually led them to removing the children and these charges being laid. [9] G.D. has not seen his children since October of 2011. [10] Generally speaking, the children describe that if they were being disciplined, they would either be physically disciplined by G.D. striking them with his hand on the arms, legs, and face, or they would be hit with a long stick that has been described as a shoehorn. The children called this form of discipline "clacking." [11] The children also described that when they were disciplined, they would often be told to kneel on the floor for long periods of time. All the children described that this was painful to them. [12] There are different descriptions by the children as to the injuries they received, the number of blows that they would receive during any assault, and the frequency of these assaults. The evidence of the children in that regard is as follows. [13] J.D. described that he was clacked every day for maybe a year. He said that he would be hit 15 to 20 times by G.D. on his face, arms, and legs with an open hand and sometimes with a fist. He said that sometimes this would result in a bloody lip and often there would be bruises on his arms and legs. He also described an incident where he was hit and one of his teeth became loose. He described that one form of discipline would require him to sit on his knees for two to two and a half hours at a time. [14] He also testified that R.D. was hit a lot, beginning when she was three or four years of age. He also said that when she was hit, it was for 15 or 20 times and that he saw R.D. with bloody swollen lips and bruises on her body. He described that O.D. also received bruises and bloody lips and that she was put on her knees a lot. He described that L.A.D. was clacked a lot and that she would have bruises from this and a bloody lip on occasion. She was also hit 15 to 20 times during any assault. He described that L.O.D. was clacked as many times as L.A.D. He described that F.D. was clacked a lot. [15] R.D. testified that she was clacked sometimes with a stick and sometimes with an open hand by G.D. She described the worst place to get hit was on her legs and that she would have bruises on her arms and legs. She also testified that sometimes she had a bloody lip and nose. She was slapped on her mouth. She could not say how many times this occurred. She also described being placed on her knees for two hours on a number of occasions. [16] She testified that she never saw J.D. clacked or put on his knees. She said that F.D. was clacked on one occasion, and she saw L.A.D. clacked 10 times but did not see L.O.D. clacked at all. She also described that O.D. was clacked a lot. [17] L.A.D. testified that she was hit with a shoehorn and G.D.'s hand on her arms and legs. She said that this began when she was nine or 10 years of age, and it occurred two to three times per week. She said that she would have red marks from being clacked, but she did not believe she had injuries on her face or mouth. She said that if she was put on her knees, it would be for half an hour. [18] She saw R.D. being clacked, and she saw red marks on her arms and legs, though she said she never saw any injuries to R.D.'s face or lips, and she never saw her bleeding. She saw O.D. being clacked probably two times per week on her arms and legs, and she said that she had red marks and that she saw no injuries to O.D.'s face. She saw L.O.D. being clacked one time per week, and this would sometimes leave red marks which sometimes changed colour to purple or green. [19] F.D. testified that she was clacked mostly on her arms, legs, or back, though sometimes G.D. hit her on her head. She thinks that she was six or seven years or age when this started and that she was hit one time every two to three days. She said that there would be between five to 20 blows during these assaults. She described that sometimes they were hit with an open hand, a fist, or with a long stick. She said that being hit left injuries such as bruises or scratches and that sometimes she would have swollen lips and bleed from her mouth. She also described being placed on her knees for one to three hours. [20] She described R.D. as having bruises and a black eye as well as a bloody lip and scratches. She said that she saw G.D. hit her when she was four or five months old (that is referring to R.D.). She also described seeing O.D. being hit and receiving bruises and scratches on her arms, legs, and face. She said that she saw L.A.D. get hit every day and that she got in trouble more than the others. She also said that L.A.D. was hit in the same manner as R.D. and O.D. She said that L.O.D. was hit less than the others, maybe one time every two weeks, though she was hit in the same manner as R.D., L.A.D., and O.D. She also said that she had bruises and scratches on her arms, legs, and face. She said that J.D. was hit every day and had bruises as well as scratches, bloody lips, and a black eye. [21] O.D. testified that she and her siblings were hit by G.D. She said it was with an open hand or with an object. She said that sometimes they would have bruises but that the bruises would be on her legs. She thought she was first hit when she was approximately six years of age. She also testified that she had a swollen lip on two occasions after being clacked, and she said that she did not remember seeing anyone else with a swollen lip. She said, "You can't tell that you have it, but you can feel it." [22] L.O.D. had difficulty testifying, though she did confirm that all of her siblings, including herself, were clacked. She also confirmed that they would sometimes have marks on their bodies from this, though she could not provide any specific details of the injuries received. [23] It is clear on the evidence that all of these children were assaulted on more than one occasion which spanned a number of years. It is not clear to me whether or not injuries resulted from each of the assaults or whether there was only some occasions that injuries resulted. [24] I found L.A.D. to be a very persuasive witness. She does not remember injuries to any of the children's faces resulting in bleeding. Having said that, I do accept that J.D., F.D., and R.D., on occasion, did have bloody and fat lips. I also accept that on occasion, all the children, after being assaulted, had bruises on their arms and legs. I cannot find that any of these injuries occurred on every occasion that they were physically disciplined. I say that because of L.A.D.'s evidence, as well as the evidence of the children's grandmother, Mrs. D. She saw the children in person approximately one time per month while they were residing in Prince George, and she never noticed any bruising on them. I am mindful, however, of the fact that the children were told to cover up their bruises by their parents. However, as I said, I cannot find that they were bruised on every occasion that they were hit. [25] I do not have the benefit of any victim impact statements. However, I have heard the evidence of all of the children. It is clear to me that the incidents of clacking and being put on their knees were painful and upsetting to them. It is also clear and sad that there is no strong desire of any of the children to see their father. [26] I have also had the benefit of a pre-sentence report, which has been marked as Exhibit 2 on the sentencing hearing. [27] G.D. was born in the province of Quebec. Both of his parents are deceased, though he has three siblings that he still keeps in touch with. G.D. left home at the age of 17 and reported to the probation officer that he had difficulties in his adolescence at home and school and that his parents were alcoholics who were physically and verbally abusive to him and his siblings. G.D. moved from Quebec to Vancouver in 1988, and this is when he met T.D. [28] G.D. has a grade 8 education and has not worked since 1983 because of a permanent disability that he has. He suffers from scoliosis as well as a birth defect to his hip, permanent low back pain, and deterioration of his low back as a result of two accidents that he was in. He was also the victim of a robbery that resulted in severe facial fractures and him being in a coma. This occurred in 1989. [29] G.D. has a previous criminal record; however, the last conviction was in 1989. His convictions range from offences such as break and enter, assault, and trafficking in a narcotic. G.D., once he met his wife, appears to have changed that part of his life. G.D., on all the evidence, has a very limited insight into these offences. [30] The Crown takes the position that these are serious, prolonged offences against children which should result in incarceration for G.D. Crown's position is that I should sentence G.D. to one year in jail for each of the six counts, for a total of six years; however, taking into account the totality principle, the sentence should be reduced to four years in jail. [31] In the alternative, Crown says that if the court is of the view that the jail sentence should be less than two years, then they would seek a probation order with conditions for a period of three years. Crown also argues that a conditional sentence would not satisfy the principles of deterrence and denunciation given the significant aggravating factors present in this case. Crown's view is that there are no exceptional circumstances that would warrant departure from the general principles that offences such as these against children should attract custodial dispositions. [32] Mr. Aartsen, on behalf of G.D., reminds the court that G.D. is being sentenced for assault, not for unlawful confinement or assault with a weapon. He also argues that a disposition of less than two years' jail would be appropriate and that a conditional sentence would satisfy the principles of deterrence and denunciation. Mr. Aartsen tells the court that both G.D. and T.D. have started up a cleaning business which is apparently doing well. G.D. deals with the booking and promoting of this business. [33] He also argues that G.D. has suffered immensely as he has not seen his children since these incidents came to the attention of the authorities. He is in agreement with a lengthy probation order to follow any conditional sentence order. [34] Crown counsel provided the court with a number of sentencing cases. While these cases are useful for general sentencing principles, they are in relationship to more serious charges primarily involving convictions for assault causing bodily harm, sexual assault, and unlawful confinement. I have reviewed these cases, which are set out in the Crown's submissions on sentence, and as I said, other than the general sentencing principles, they are of little assistance in terms of the length of sentence in this case. Most sentencing cases have to be determined on their own facts. [35] Section 718.2 of the Criminal Code reads as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation . . . shall be deemed to be aggravating circumstances; (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [36] The aggravating factors in this case are the assaults on the children were assaults on people under the age of 18 and were assaults on people to which G.D. was in a position of trust. Also, the assaults occurred on a regular basis and over a prolonged period of time. The evidence also shows that these assaults had a significant effect on the children's self-worth and emotional development. [37] G.D. does have a criminal record. However, as I indicated, the last conviction was in 1989. G.D.'s criminal record will not play a significant role in my decision. [38] Crown counsel also argues that the violence towards the children by G.D. was part of a systemic long-term plan to force complete submission of the children in an effort to isolate his children. They also point to the fact that a shoehorn or stick was used in the assaults, and there was evidence that the children were told to cover up their injuries so that these injures would not be seen if the children were in public. [39] In my view, G.D. presents as an individual with considerable physical problems and a complete lack of understanding on how to raise and discipline children. I do not find that the violence was as a result of a plan to force complete submission of the children but, rather, as a result of frustration on the part of G.D. This is evidenced by his overreaction to relatively trivial infractions by the children such as playing or making a noise in the house. The evidence from the children is not that they were disciplined primarily to keep them from going outside. [40] Also, some consideration has to be given to the fact that G.D. did plead guilty, albeit near the end of the trial. There is some hope that G.D. is starting to gain some insight into the wrong that he committed. [41] The purpose of sentencing is set out in s. 718 of the Criminal Code. It says: 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. [42] Relevant to this case is s. 718.01 of the Criminal Code, which reads as follows: 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [43] Finally, s. 742.1 of the Criminal Code provides the following: 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if (a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 . . . [44] There are other preconditions to a conditional sentence being ordered, however, they are not applicable to this case. [45] The issue to be decided is what is an appropriate sentence and can it be served conditionally in the community. In my view, given the long-term abuse of these children who are under the age of 18 years, an appropriate sentence must deter and denounce G.D.'s conduct. An appropriate sentence, taking into account the nature of the assaults, G.D.'s personal circumstances, and principles of sentencing, would be a jail sentence of 18 months. G.D., however, is not a danger to the community nor a danger to the children given that they have been removed from his care. In my view, a conditional sentence, if properly crafted, is appropriate in the circumstances, provided that there is a significant house arrest component to the order to ensure the principles of deterrence and denunciation are met. [46] G.D., would you please stand up? [47] I sentence you to 18 months in jail on Counts 13, 14, 15, 16, 17, and 18, each count to be served concurrent, one with the other. That sentence, however, may be served in the community as a conditional sentence. The conditions of the conditional sentence are as follows: 1. You shall keep the peace and be of good behaviour. 2. You shall appear before the court when required to do so by the court. 3. You shall report in person to a conditional sentence supervisor no later than 4 p.m. today, November 7, 2013, at the probation office at #101, 250 George Street, Prince George, B.C., and you shall thereafter report as and when directed by the supervisor and in the manner directed by the supervisor. 4. You shall remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the supervisor. 5. You shall notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation. 6. When first reporting to the supervisor, you shall inform him of your present residential address and phone number, and you shall not change your address or phone number at any time without first obtaining the written consent of the supervisor. 7. You are to remain within your residence or on the lot on which your residence is located at all times for the first 12 months of this order, except as follows: first, at any time with the written consent of the supervisor obtained in advance. Such consent is to be given only for compelling personal, family, or employment reasons; next, in the event of a medical emergency, and then only when travelling directly to or returning directly from a hospital emergency ward. 8. You shall present yourself at the door to your residence when any peace officer or supervisor attends there for the purpose of determining your compliance with the house arrest conditions of this order. 9. You shall respond personally and immediately to the telephone when a peace officer or supervisor makes a telephone call to your residence for the purpose of determining your compliance with the house arrest conditions of this order. 10. You shall have no contact or communication, directly or indirectly, with R.D., L.A.D., L.O.D., J.D., F.D., or O.D. 11. You shall not possess or consume any alcohol or any controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act, except as prescribed for you by a physician. 12. You shall not possess any weapons as defined in s. 2 of the Criminal Code. Mr. Aartsen, does your client have any weapons he needs to surrender? [48] THE ACCUSED G.D.: No, never had. [49] THE COURT: Finally, Number 13, you shall attend, participate in, and successfully complete any assessment, counselling, or program as directed by the supervisor. Without limiting the general nature of this condition, such assessment, counselling, or program may include or relate to anger management, spousal abuse prevention, psychiatric and psychological health, or any such full-time attendance program as may be directed by the supervisor, and you shall comply with all rules and regulations of any such assessment, counselling, or program. [50] Those are the conditions of the conditional sentence. That is to be followed by a period of probation for three years. The conditions will be: 1. You shall keep the peace and be of good behaviour. 2. You shall appear before the court when required to do so by the court. 3. You shall notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. 4. Within 72 hours after completing your conditional sentence, you shall report in person to the probation office located at #101, 250 George Street, Prince George, B.C., and after that you shall report as and when directed by the probation office. 5. When first reporting to the probation officer, you shall inform him of your present residential address and phone number, and you shall not change your address or phone number at any time without first providing written notice to your probation officer. 6. You shall have no contact or communication, directly or indirectly, with R.D., L.A.D., L.O.D., J.D., F.D., and O.D. [51] Now, I am going to stop there, Crown. My intention was to put an exception in the probation term, except as through a third party approved in advance by the probation officer for the purpose of arranging, facilitating, or exercising access to your children in accordance with a Family Court order, so if there is an order at that point, and it is approved of by a third party. [52] MS. MALFAIR: Very well. Thank you, My Lord. [53] THE COURT: Do you have any submissions on that? [54] MS. MALFAIR: I just don't know if the Ministry will still be involved at that point, but I suppose they'll have a say into whatever Family Court order is in place, so. [55] THE COURT: All right. Well, it is going to be a third party approved of by the probation officer. [56] MS. MALFAIR: Thank you. [57] THE COURT: All right. Condition Number 7 - So there will be an exception during the course of the probation that there may be contact through a third party approved in advance by the probation officer for the purpose of arranging, facilitating, or exercising access to your children, that is, R.D., L.A.D., L.O.D., J.D., F.D., and O.D., in accordance with a Family Court order, so if there is an order to that effect. 8. You shall not attend or be within 100 metres of any place which you know to be the residence, school, or workplace of the children R.D., L.A.D., L.O.D., J.D., F.D., and O.D. except for while on a highway in passing in a moving motor vehicle in transit to somewhere else. 9. You shall not possess or consume any alcohol or any controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act, except as prescribed for you by a physician. 10. You shall not possess any weapon as defined in s. 2 of the Criminal Code. 11. Finally, you shall attend, participate in, and successfully complete any assessment, counselling, or program instructed by the probation officer, and without limiting the general nature of this condition, such assessment, counselling, or program may include or relate to anger management, spousal abuse prevention, psychiatric and psychological health, such full-time attendance program as may be directed by the supervisor, and you shall comply with all the rules and regulations of any such assessment. [58] That will be the conditions of the probation order. [59] Also, these are secondary designated DNA offences. Taking into account the criminal record of G.D. as well as the nature of the circumstances of the offence and the impact on G.D.'s privacy and security, I am going to exercise my discretion and make an order pursuant to s. 487.051(3)(b) of the Criminal Code authorizing the taking of the number of samples of bodily substances by any peace officer for the Province of British Columbia that is required for the purpose of forensic DNA analysis. Crown? [60] MS. MALFAIR: Sorry, just a couple of questions, My Lord. First of all, and I may have not heard it, was there ‑‑ was a no-go order with respect to the CSO? [61] THE COURT: I did not do that because there is no contact and he is basically on house arrest. [62] MS. MALFAIR: I see. Thank you, My Lord. And then my only concern with respect to the probation order is, does the court envision that the children would live with G.D.? What I'm thinking of here is, T.D., if she's the person who is the custodial parent, can, under the terms of the probation order, conceivably just move them all back in with G.D., and things can go back to the way they were at the time the children were apprehended. [63] THE COURT: Well, my view would be the ‑‑ any Family Court order would have to specifically state that G.D. can have access to these children, so if it says, for instance, he does not, then that would be the case. [64] MS. MALFAIR: I understand, My Lord, but what I'm conceiving is, if T.D., who all the charges are going to be stayed against, ends up being the custodial parent, she can consent to any access arrangement. She can just move the children back in because she ends up being the gatekeeper of that. That's the only Crown ‑‑ the Crown's concern ‑‑ [65] THE COURT: All right. What would you suggest? [66] MS. MALFAIR: I'm just asking whether the court envisions that during the term of probation the children would actually be residing with him anymore. [67] THE COURT: My view on this, really, it would be determined through the Family Court and whether or not ‑‑ I suppose I could put in an exception through a third party approved in advance by the probation officer for the purpose of arranging, facilitating, or exercising access to your children in accordance with a Family Court order and at the initiation of the children, that is, if they want that. [68] MS. MALFAIR: Thank you. That would be helpful. Thank you. [69] THE COURT: Mr. Aartsen? [70] MR. AARTSEN: The order you made was for house arrest for the first 12 months, I understand? [71] THE COURT: Yes. [72] MR. AARTSEN: You didn't say anything about what would happen the last six months of that order. I take it the other conditions other than the house arrest would still apply. [73] THE COURT: Yes, the other conditions. The house arrest is not to comply past the ‑‑ [74] MR. AARTSEN: All right. And would Your Honour consider ‑‑ [75] THE COURT: ‑‑ the 12-month mark. [76] MR. AARTSEN: ‑‑ sorry, Your Lordship consider waiving the victim fine surcharge in this matter in view of their rather limited finances? [77] THE COURT: Crown, any position on that? I think I am still in a position to, given the date of the offences. [78] MS. MALFAIR: No submission. [79] MR. AARTSEN: Yes. [80] THE COURT: All right. I will waive the victim fine surcharge given their financial situation. [81] MR. AARTSEN: Thank you. "R. S. Tindale, J."