R. v. Milne

2021 BCCA 166 R. v. Milne COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Milne, 2021 BCCA 166 Date: 20210414 Docket: CA47184 Between: Regina Appellant And Joshua Evan Milne Respondent Restriction on publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify the complainant, referred to in this judgment by the initials A.D. This publication ban applies indefinitely unless otherwise ordered. Pursuant to s. 16(4) of the Sex Offender Information and Registration Act [SOIRA], no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA. Before: The Honourable Mr. Justice Groberman The Honourable Mr. Justice Willcock The Honourable Madam Justice Dickson On appeal from: An order of the Supreme Court of British Columbia, dated December 3, 2020 (sentence) (R. v. Milne, 2020 BCSC 2101, Vancouver Docket 27834-1). Oral Reasons for Judgment Counsel for the Appellant, appearing via videoconference: J.A.M. Dickie Counsel for the Respondent, appearing via videoconference: B.V. Bagnall Place and Date of Hearing: Vancouver, British Columbia April 1, 2021 Place and Date of Judgment: Vancouver, British Columbia April 14, 2021 Summary: The respondent was sentenced to 12 months' imprisonment for sexual assault, two months' imprisonment consecutive for transmitting child pornography, less time served, and three years' probation. The Crown appeals, arguing the sentencing judge erred by treating the respondent's mental illness as a significantly contributing factor to the offences which attenuated his moral culpability and by characterizing his rehabilitative efforts as exceptional. Held: Appeal allowed. The presence of mental illness when the offences occurred was not sufficient to demonstrate that mental illness contributed to the commission of the offences. Evidence was required to show whether and to what extent such a contribution existed and whether the respondent's moral culpability was attenuated by that contribution. Additionally, the respondent's rehabilitative efforts were not exceptional. He continued consuming alcohol regularly, despite the fact that alcohol is a known risk factor for his reoffending, and had not engaged in recommended treatment. [1] DICKSON J.A.: On November 15, 2017, Joshua Milne, then 24 years old, sexually assaulted his 17-year-old ex-girlfriend, A.D. The sexual assault was prolonged, profoundly degrading and video-recorded by Mr. Milne on his cellphone. Two months later, he sent images of the sexual assault to a woman he was trying to impress, two of which showed A.D.'s face and, given her age, were child pornography. On December 12, 2019, he pleaded guilty to sexual assault and transmitting child pornography and, on December 3, 2020, he was sentenced to 12 months' imprisonment for the sexual assault, two months' imprisonment consecutive, less time served, for transmitting child pornography, and three years of probation. [2] The Crown seeks leave to appeal and appeals against the sentence. In Crown counsel's submission, the sentencing judge erred by treating Mr. Milne's mental health as a significantly contributing factor in the commission of the offence that attenuated his moral culpability and by treating his rehabilitative efforts as exceptional. She also submits that the sentence is demonstrably unfit and disproportionate to the gravity of the offences, Mr. Milne's moral culpability and the harm that he caused. As a result, she says, this Court should intervene and increase the sentence to 2 ½ years for the sexual assault and one year consecutive for transmitting child pornography, less time served credited at 4 ½ days. [3] I agree with the Crown that the judge erred in her treatment of Mr. Milne's mental health and rehabilitative efforts. For the reasons that follow, I would grant leave to appeal, allow the appeal and increase the sentence in the manner proposed by the Crown. Background [4] Mr. Milne and A.D. were in an intimate relationship throughout August, September and part of October 2017. When they met, A.D. lived in Kelowna and Mr. Milne was there on a break from his schooling at BCIT. In September, Mr. Milne returned to Burnaby and they continued the relationship, although A.D. found Mr. Milne needy and demanding. She tried to break up with him, but Mr. Milne claimed he would kill himself and A.D. feared he might follow through, so, for a while, she did not. [5] In early October 2017, A.D. became involved with a new partner. Shortly thereafter, she moved to Burnaby to live with him. However, she and Mr. Milne maintained contact and he continued to tell her repeatedly that he was considering suicide. [6] On November 14, 2017, Mr. Milne contacted A.D. and said he was feeling suicidal. In response, she went to his apartment to make sure he did not harm himself. After she arrived, they discussed their relationship. In the course of that discussion, A.D. told Mr. Milne they were on a break that might not end, but he would not accept it. [7] A.D. had to go to work the next morning. When she told Mr. Milne that she needed to go to sleep, he gave her a sleeping pill, which she willingly took. However, the discussion continued for two or three hours thereafter, and A.D. and Mr. Milne were both very emotional during the discussion. According to A.D., Mr. Milne's behaviour throughout was erratic and moody, laughing one moment and crying the next, which abnormal pattern she had observed in the preceding two to three weeks. [8] Eventually, A.D. told Mr. Milne she was exhausted. He asked if she trusted him, and, when she said that she did, he gave her an Ativan, an anti-anxiety and sedative medication. One of the effects of Ativan is anterograde amnesia, which is a lack of recall of events during the period of drug action. Another is a state of physical and mental impairment. Mr. Milne was aware of the effects of Ativan. [9] Within a few minutes of taking the Ativan, A.D. fell into a state of deep unconsciousness, punctuated by periods of impaired consciousness and incapacity. While she was in this state, Mr. Milne undressed her, bound her hands and ankles, blindfolded her and, over the next five hours or so, repeatedly sexually assaulted her. The sexual assault included acts of anal and vaginal penetration and fellatio. Mr. Milne documented these acts in photographic images and videos with his cellphone. [10] When A.D. awakened the next morning, naked and bruised, she knew something had happened, but could not recall much other than severe pain to her anus and vagina. She convinced Mr. Milne that she had to go home, so he accompanied her to her car and got in with her. However, he became concerned about A.D.'s ability to drive and he called the police, who attended and took A.D. to hospital. At the hospital, Mr. Milne falsely claimed that A.D. had tried to harm herself by overdosing on pills, which led to her detention under the Mental Health Act, R.S.B.C. 1996, c. 288. At some point later that day, she was released. [11] Mr. Milne was also admitted to hospital later on November 15, 2017, after reportedly attempting to harm himself. He was certified under the Mental Health Act on admission. He remained certified for approximately one week thereafter. [12] By November 16, 2017, A.D. had begun to recall some aspects of the sexual assault and the fact that Mr. Milne had filmed it. She went to the hospital, confronted him and asked for his phone and password, which he gave to her. When she looked at the phone, A.D. saw images of herself, completely naked and blindfolded, with her arms tied behind her back and ankles also bound, apparently unconscious. She also saw videos of Mr. Milne engaging in sexual intercourse with her vaginally and anally, and putting his penis in her mouth. In some of the videos, she appeared to be conscious, but unable to speak properly; in others, she appeared to be unconscious. In one of the videos, Mr. Milne ejaculated in A.D.'s mouth and told her that if she spit it out he would punish her. [13] A.D. did not consent to any of the acts depicted in the images and videos. She forwarded them to her own email address, and, a few days later, went back to the hospital and confronted Mr. Milne about what she had seen. He apologized, wept and told A.D. that he had been overdosing on pills for two to three days and did not remember doing those things. Later, A.D. confronted him again at the hospital, but, on that occasion, Mr. Milne was angry and emotional, and he told A.D. that she deserved what he had done to her. He also repeated his claim that he did not remember what he had done to her. [14] Eventually, A.D. reported the sexual assault to police. In March 2019, Mr. Milne was arrested and spent 3 ½ days in jail before being released on bail. Following his arrest, police experts extracted data from Mr. Milne's phone, including images and videos of the sexual assault of A.D., as well as messages that he exchanged with someone named Savana in January 2018 on an anonymous platform known as "Whisper Chat". During their exchange, Mr. Milne sent Savana six images, two of which showed his penis inserted in A.D.'s mouth. Those images meet the definition of child pornography. [15] In the first of the two child pornography images that Mr. Milne transmitted to Savana, A.D.'s eyes and nose are wrapped in a black cloth, she is lying on her back, face up, and her naked right breast is exposed. In the second, which is a close-up view of A.D.'s head and breast, a black blindfold obscures her eyes and nose. In the message that accompanied the images, Mr. Milne wrote "They come out blurry and bad when paused. The videos are better." He also sent other messages in which he wrote "Hahah. Tied her hands and feet and put the blindfold on and filmed facefucking her" and "Ahah whatever, I can't get good pics from the videos. Why am I even sending all these lol ". The Sentencing Hearing [16] Several exhibits dealing with Mr. Milne's background and circumstances, the circumstances of the offence and the impact of the offence on A.D. were filed at the sentencing hearing. These included an agreed statement of facts, a victim impact statement, a pre-sentence report, a forensic psychological report, six letters of support from Mr. Milne's family and friends and a letter from a mental health and substance abuse clinician. From these materials, the following details emerged. [17] Mr. Milne was 27 years old at the time of sentencing. He had no criminal record. He is an only child, raised by his father with only periodic contact with his mother, who suffered from bipolar disorder. [18] Mr. Milne was apparently a good student until Grade 10, when he began to skip classes, became anti-social and displayed mood swings. In Grade 11, he was diagnosed with a mental disorder and at the start of Grade 12, he quit school. He later enrolled in an electrical apprenticeship program and, in October 2020, he received his Red Seal certification as a journeyman electrician. His employer was supportive, aware of the charges and prepared to take him back based on his positive work attitude and abilities. His friends and family were also supportive. [19] Over the years, Mr. Milne has received various psychiatric diagnoses, including bipolar disorder, obsessive compulsive disorder, depression and borderline personality disorder, and was prescribed various psychotropic medications. In 2010, when he was 17, he was hospitalized following an incident related to a relationship break up and subsequent threats to his father with a knife. During that hospitalization, Mr. Milne was diagnosed with marijuana abuse and a Cluster B personality structure, as well as a history of animal cruelty and homicidal ideation. In interviews for the pre-sentence report and psychological assessment, he reported a history of self-harm, intermittent suicidal ideation and, from the ages of 19 to 24, alcoholism. [20] In speaking with the psychologist, Dr. Kreklewetz, Mr. Milne denied any history of psychotic symptoms and could not describe past episodes or symptoms of mania. He told her that, in November 2017, his depression was particularly pronounced, he was "eating Zopiclone like candy" and he did not know whom to reach out to so "it came out as my harassing [A.D.]." Regarding the sexual assault, he said a lot of it was blurred memory. He admitted to seeing the videos after the fact, but said he did not remember taking them. As to the second offence, he said he was "still low and just coming out of depression." [21] Mr. Milne acknowledged to the pre-sentence report author that he threatened suicide in the period leading up to the sexual assault, although a hospital document produced shortly thereafter indicated that he never truly wanted to end his life and "issued his suicidal threat so that his girlfriend, A.D., could speak with him and spend time with him." In the portion of the pre-sentence report headed "Attitude and Understanding Regarding Offence" the author wrote that Mr. Milne "explains his mental health and medication played a part in his offending. He said he did not fully understand his depression and how far he had fallen." Mr. Milne reported that, during this period, "doctors were 'switching and swapping out' different medications". As to the transmitting child pornography offence, he said he was not drinking at the time and did not understand the gravity of the situation. [22] Notably, Mr. Milne was hospitalized four times in October and November 2017 before he sexually assaulted A.D. These included a hospitalization on October 30, 2017 when police brought him in after being contacted by his friends who had received suicidal messages from Mr. Milne. On that admission, he was kept overnight, diagnosed with Chronic Dysthymia with Recurrent Depression, complicated by chronic substance abuse, and prescribed Pristiq and Zopiclone. He was also hospitalized on November 13, 2017, certified under the Mental Health Act, and discharged the next day. [23] As I have stated, Mr. Milne was admitted to hospital again on November 15, 2017, shortly after he sexually assaulted A.D., this time for an overdose "triggered by a conversation with his ex-girlfriend" whom he felt was "blackmailing him." Apparently, EMS attended at his apartment in response to calls from concerned friends and found Mr. Milne by three empty wine bottles, with access to a variety of prescription medications. The hospital records note a prior diagnosis of borderline personality disorder and a current diagnosis of adjustment reaction and borderline personality disorder, in crisis. Mr. Milne was prescribed Gabapentin for anxiety, follow-up appointments were scheduled and he was released from hospital on November 23, 2017. [24] After he left hospital, Mr. Milne attended a short-term assessment and treatment program, a substance use treatment program and, for a time, Alcoholics Anonymous. However, within a year he had resumed regular drinking. Following his arrest in March 2019, he complied with the conditions of his bail and expressed a willingness to attend for counselling for substance misuse, mental health and sex offender treatment. He also joined the Jehovah Witnesses "to try to be better" and took up line-dancing. He told Dr. Kreklewetz that he used pornography, but "not as much as when I was younger," and that he typically watches mainstream pornography, but will also search terms such as "anal and gangbang." As of April 2020, he reported drinking an average of six to ten drinks most days and taking Nalthrexone, a medication meant to suppress the urge to consume alcohol. [25] At the time of sentencing in December 2020, Mr. Milne was living with his father and grandmother in Kelowna. In June 2020, he began to attend at the Interior Mental Health and Substance Use Clinic on a regular basis. At that point, he was taking four prescription medications and had suffered no relapses, suicidal ideation or major depressive episodes since committing the offences. He expressed deep remorse for his actions and told Dr. Kreklewetz that he wants to make sure he does not "hit that point again and be that person" and that "I should have gone home (for support) when things got really bad." [26] Dr. Kreklewetz proffered these diagnoses: "Query Persistent Depressive Disorder and Major Depressive Disorder, recurrent; Rule Out Bipolar Disorder; Borderline Personality Disorder; Alcohol Use Disorder, current severity mild; Cannabis Use Disorder in sustained remission." She stated that Mr. Milne "minimized both the severity [of the offences] and his level of responsibility. There was indication of problems with Mr. Milne's level of self-awareness and insight." As to social adjustment, she noted an "indication of problems with intimate relationships." [27] Dr. Kreklewetz assessed Mr. Milne as presenting a moderate risk for suicide/self-harm and a moderate risk for sexual reoffending. She stated "it is apparent that Mr. Milne has yet to develop appropriate coping skills to manage relationship conflict and distress" and she identified factors that might increase his risk for violence and sexual violence, including not taking medication properly, sleep deprivation, substance or alcohol use, and perceiving loss or abandonment. Dr. Kreklewetz did not suggest that Mr. Milne's mental illness or misuse of medication caused or contributed to his commission of the sexual assault or the transmitting of child pornography. She recommended that Mr. Milne be referred for sex offender treatment programming, participate in individual or group psychotherapy, participate in further substance use programming, and take all prescribed medications as directed. [28] A.D. suffered predictable and profound harms as a result of the offences. In her victim impact statement, she stated that, among other forms of harm, she is unable to trust, she is afraid to leave her daughters alone with male friends or relatives and her physical relationship with her husband has been negatively impacted. She is also haunted by the images she saw of herself and the thought that they have been and could in future be shared with others. [29] At the sentencing hearing, Crown counsel sought a penitentiary sentence of 3 ½ years, apportioned as 2 ½ years for the sexual assault and one year consecutive for transmitting child pornography, together with several ancillary orders. In support of this submission, she emphasized the gravity of the offences and characterized Mr. Milne's moral culpability as extremely high, submitting "[Mr. Milne's] mental state at the time, under medication for depression and anxiety, does not excuse or mitigate that behaviour" or "justify the inhumane way that he treated A.D." She acknowledged that Mr. Milne's youth, lack of criminal record and guilty plea were mitigating factors, but submitted the fact that he was subject to a release order was not and pointed out that, since the offence, he was able to carry on with his life in an almost unrestricted manner. [30] For her part, defence counsel sought a suspended sentence with probation. In support of this submission, she highlighted Mr. Milne's "mental health issues," which she described as a relevant contextual factor but not an excuse. She focused on his misuse of prescription medication, but "only to say" that it could explain his lack of memory. She went on to submit that, while Mr. Milne's declining health may not warrant "a finding of extraordinary factors or extraordinary circumstances," it was relevant to sentence because "even if it's not a mental illness that leads to a full reduction in moral culpability, it is still something that can be considered as a factor." She also emphasized Mr. Milne's efforts to deal with his substance use and mental health, his commitment to bettering himself, his remorse and his significant family and community support. Reasons for Sentence [31] The judge's reasons for sentence were thorough and thoughtful. After a brief introduction, she outlined the circumstances of the offences and noted that Mr. Milne's emotional and physical state at the time were a significant contextual factor. She described the impact of the offences on A.D. and reviewed much of the information contained in the exhibits regarding Mr. Milne's past and current circumstances, including his history of mental health diagnoses. She also noted his longstanding substance use issues and the steps he had taken to address them. [32] The judge stated that Mr. Milne's continued drinking is worrying, but noted that he did not seem to have relapsed into mixing alcohol and prescription medications. She also noted his willingness to consent to further substance abuse counselling, if ordered to do so. As to Mr. Milne's mental health, she noted his history of behavioural problems, psychiatric diagnoses and intermittent suicidal ideation. Then she stated: [70] The accused's history of mental health issues and suicidal ideation, both when he was a teen and more particularly at the time of this offence are important considerations in assessing his moral blameworthiness for this offence. Significantly, he was experiencing acute mental distress, depression, and suicidal ideation at the time of his breakup with A.D. This is confirmed in his medical records as outlined in the PSR and Dr. Kreklewetz's report, which delineate at least four hospitalizations before this offence. [33] The judge went on to summarize Mr. Milne's hospitalizations in the period leading up to the sexual assault and observed that he had been prescribed a variety of medications. She noted that he was re-hospitalized on November 15, 2017 for an attempted suicide, described his post-discharge treatment and outlined Dr. Kreklewetz's diagnostic formulation and risk assessment in detail. [34] In considering Mr. Milne's expression of remorse, the judge quoted from Dr. Kreklewetz's report, including her observations that Mr. Milne "repeatedly described the offence as stemming from the deterioration in mental health at the time, rather [than] acknowledging a series of poor decisions ". In response, the judge stated that Mr. Milne's failure to understand the genesis of his behaviour fully was "no doubt limited by both his level of mental distress at the time of the offence, exacerbated as it was by his abuse of his prescription medication and other substances ," together with his lack of involvement in psychotherapy or sex offender therapy. She went on to find that Mr. Milne was genuinely remorseful and, with therapy, would likely develop a deeper understanding of his mental health issues, his substance abuse issues, and his offending. After reviewing the professional recommendations and the letters of support, she stated "the work Mr. Milne has done to improve and stabilize himself while on bail is a testament to his strength of character and desire to ensure he does not find himself in this situation again." [35] Next, the judge summarized the positions of the parties and the applicable legal principles. She noted that the usual range of sentence for a sexual assault committed in circumstances where the victim is rendered incapacitated and subjected to vaginal and anal penetration is between two and six years' imprisonment, absent exceptional circumstances. She went on to review the aggravating and mitigating factors and stated that Mr. Milne "has worked on stabilizing his mental health and is currently taking a course of prescription medication that appears to be assisting him with his anxiety and depression in a more beneficial fashion than at the time of the offence." Then she observed that when mental illness causes or contributes to the commission of an offence, it is a mitigating factor and a sentence may be reduced because the offender's moral culpability is attenuated, citing R. v. Badhesa, 2019 BCCA 70, and R. v. Williams, 2019 BCCA 295. [36] The judge concluded that Mr. Milne's mental health at the time of the offence was a significant contributing factor: [124] In this case, I can reach no other conclusion on the evidence than that the state of the accused's mental health at the time of the offence was a significant contributing factor to the commission of the offence. He suffers from a major depressive disorder which is recurrent and was acute in the weeks preceding the offence. He was previously diagnosed with suffering from bipolar disorder in his teens and in the weeks prior to the offence, although I acknowledge that Dr. Kreklewetz has ruled out a diagnosis of bipolar disorder. [125] Significantly, the accused was discharged from Burnaby General Hospital on November 14, 2017, where he had been certified under the Mental Health Act the day before. This was his fourth hospitalization over a four-week period. It appears from the PSR and Dr. Kreklewetz's report that he had been prescribed a variety of different prescriptions to assist him in dealing with his anxiety and depression, and that he misused his prescription medication at the time of the offence. He also suffers from a mild form of alcohol use disorder. [126] In my view, considering the totality of the circumstances, the defence has demonstrated that the accused's compromised state of mental health at the time of the offence in November 2017 contributed to the commission of this offence. It is a mitigating factor that reduces the accused's moral blameworthiness, and as such must be considered in the balancing required to arrive at a proportionate sentence: Williams. [127] I note that when mental health is a contributing factor to the commission of the [offence], the usual primary focus on the objectives of deterrence and denunciation are attenuated to some degree: Badhesa at para. 44 and Williams at para. 76. [Emphasis added.] [37] In imposing sentence, the judge repeated her conclusion that Mr. Milne's mental health at the time of the offence was a significant contributing factor in its commission. She stated that, while deterrence and denunciation must be emphasized, "notwithstanding the brutal nature of the sexual assault there are sufficiently compelling mitigating circumstances, including the fact that the accused's compromised mental health contributed to the commission of this offence and thereby reduces his moral blameworthiness, to reduce the sentence to below the usual range." She characterized the mitigating circumstances as "arguably exceptional" and the transmitting child pornography offence as decidedly dissimilar to typical child pornography transmission cases, which involve a collection of images shared with like-minded individuals. She also emphasized the importance of rehabilitation. In doing so, she stated that Mr. Milne's significant and objectively identifiable efforts to stabilize his mental health and effect his rehabilitation gave that principle enhanced significance. Among the efforts she listed were Mr. Milne's completion of his education, his employment and his stabilization of his mental health, as well as his efforts to address his substance abuse issues, his engagement in counselling and his genuine remorse. [38] In the result, the judge imposed a sentence of 12 months' imprisonment for sexual assault and two months' imprisonment, consecutive, less pre-sentence custody, for transmitting child pornography, followed by a three-year probation order. On Appeal Position of the Crown [39] Crown counsel submits that the judge erred by finding that Mr. Milne's mental health issues reduced his moral culpability. She says for mental illness to affect moral culpability there must be evidence, typically expert in nature, that the mental illness in question was a causal or contributory factor in the commission of the offence, citing Badhesa, R. v. Penttila, 2020 BCCA 63, and R. v. Pond, 2020 NBCA 54. However, in this case, she contends, the coincidental timing of Mr. Milne's mental health crisis and the sexual assault was the only fact the judge identified as establishing a causal link. In her submission, this was insufficient to support the finding. [40] In support of this submission, Crown counsel notes that, at the sentencing hearing, Mr. Milne only made a general claim that his mental health crisis was causal in nature. He also only linked his misuse of medication to his lack of memory, not to the offending behaviour. She also argues that the nature of both offences demonstrated that Mr. Milne was in control of himself and acting in a fully intentional way. [41] Crown counsel goes on to submit that, even if the finding of a causal relationship is supportable, the judge erred by failing to assess how the mental illness contributed to the commission of the offences. Referring to Badhesa, she says this was necessary for an assessment of how its impact attenuated his moral culpability. As to Mr. Milne's rehabilitative efforts, the Crown submits that the judge erred by characterizing them as "exceptional" when, at best, they were typical of many offenders. Further, she says, the judge failed to account for Mr. Milne's borderline personality disorder and risk of sexual reoffending, which were untreated, in assessing his rehabilitative efforts. Position of the Defence [42] Defence counsel submits that the judge's findings regarding Mr. Milne's mental state were fully supported by the evidence regarding his state of mind at the relevant time, including his multiple pre-offence hospitalizations and his post-offence Mental Health Act certification. He contends that the many mitigating factors listed by the judge showed that Mr. Milne had made considerable efforts to contribute meaningfully to the community, while avoiding any anti-social behaviour despite the challenges associated with his psychological disorder. All things considered, he says, the judge appropriately characterized Mr. Milne's efforts as extraordinary and carefully crafted the sentence to fit the whole of the circumstances. In his submission, her sentencing decision is entitled to appellate deference. [43] In support of his submission, defence counsel emphasizes the unique position occupied by the sentencing judge and the limited basis upon which appellate intervention is justified. He also emphasizes that sentence ranges are simply guidelines, not hard and fast rules. He goes on to argue that the judge carefully, methodically and transparently set out the principles of sentencing and applied them to the facts as she found them, based on the entire body of available evidence. Standard of Review [44] The applicable standard of review is uncontroversial. It is highly deferential. An appellate court may only intervene to vary a sentence if the sentencing judge made an error in principle that had an impact on the sentence or the sentence is demonstrably unfit: R. v. Friesen, 2020 SCC 9 at para. 26. An error in principle may include an error in law, a failure to consider a relevant factor or the overemphasis of a relevant factor. A sentence is unfit if it is so harsh or so lenient as to be wholly disproportionate to the seriousness and circumstances of the offence and the circumstances of the offender. Did the Judge Err by Treating Mr. Milne's Mental Health as a Significantly Contributing Factor in the Commission of the Offences that Attenuated His Moral Culpability? [45] Cases involving mental illness are inevitably and intensely fact-driven. While the presence of mental illness at the time an offence is committed is part of the relevant context, it is not automatically a mitigating factor. Rather, in each case, the judge must make a determination based on the whole of evidence on whether, and, if so, to what extent, the mental illness contributed to the criminal conduct and if it diminished the offender's moral culpability: Badhesa at paras. 35, 43-44; Pond at para. 38. [46] In my view, the judge erred by treating Mr. Milne's state of mental health as a significantly contributing factor in the commission of the offences that attenuated his moral culpability. I see no evidence in the record to support that conclusion. Although Mr. Milne's acute depression and misuse of prescription medication were undoubtedly relevant contextual factors, the only evidence that they played a contributing role in his depraved conduct in sexually assaulting A.D. and later transmitting the pornographic images was his own assertion to that effect and the temporal coincidence of his mental health crisis and the offences. However, Mr. Milne's assertion that his mental health and medication played a part in his offending was unsupported by any medical evidence to explain the nature and extent of the causal link or contribution, if any. [47] Without more, in my view, a mere temporal coincidence was an insufficient basis for an informed decision to be made as to the relationship between the state of Mr. Milne's mental health and his criminal conduct: see R. v. J.M.O., 2017 MBCA 59 at para. 73. As Justice Fitch observed in Penttila, "[t]he attachment of a medical label to an identified cluster of behaviours for diagnostic and treatment purposes does not mean that the diagnosis will always be mitigating": at para. 68. [48] This was not a case like Badhesa, in which a forensic psychiatrist testified that a combination of alcohol and acute psychotic depression marked by delusions, perceptual disturbances and auditory hallucinations both contributed, in a "chicken-and-egg" relationship, to the offender acting in an uncharacteristically violent manner: at paras. 8-12. As this Court went on to explain, in cases involving a combination of mental illness and intoxication "[d]etailed and specific medical evidence is essential to a proper understanding of their relationship if any, as well as their impact on the offender's moral culpability. Generalizations are insufficient": at para. 43. In my view, such evidence was absent in this case. Did the Judge Err by Characterizing Mr. Milne's Rehabilitative Efforts as Exceptional? [49] I also agree with the Crown that the judge erred by characterizing Mr. Milne's rehabilitative efforts as being so exceptional as to justify the imposition of a sentence that would ordinarily be considered too lenient to amount to a fit sentence. In my view, while many of his efforts were positive, most were typical for offenders and none were so above and beyond the norm that they were exceptional. [50] Further, in certain important respects, some of Mr. Milne's rehabilitative efforts were starkly inadequate. For example, despite the identified role of alcohol consumption in increasing his risk of reoffending and his long history of alcoholism, Mr. Milne continued to consume alcohol regularly while also taking prescription medication. In addition, despite the identified risk of reoffending, at the time of sentencing he had yet to undertake treatment for his borderline personality disorder or his sexual offending. What Is a Fit Sentence? [51] The foregoing errors clearly had an impact on the sentence. Accordingly, it falls to this Court to impose a fit sentence. [52] As the judge recognized, sexual violence involves the wrongful exploitation of the victim by the offender: Friesen at para. 89. As she accurately stated, the typical range of sentences imposed for serious sexual assaults against adults is two to six years: see, for example, R. v. G.M., 2015 BCCA 165; R. v. B.S.B., 2010 BCCA 40; R. v. Berry, 2015 BCCA 210. For children, the range is higher. As she also stated, the circumstances surrounding the transmission of the child pornography in this case were unlike those addressed in other authorities. [53] Mr. Milne violently exploited and degraded his former intimate partner, who was 17 years old at the time and attempting to help him. He took advantage of her trust, rendered her unconscious, and then objectified and violated her, both through his prolonged five-hour attack and by recording his actions on his cellphone. The following morning, rather than provide assistance given her debilitated state, he lied to authorities, which led to her certification under the Mental Health Act and involuntary detention in hospital. I agree with Crown counsel that the normative aspect of these actions calls for a sentence in the middle of the usual range for sexual assault. [54] I also agree that the circumstances surrounding the creation of the two images that Mr. Milne sent to Savana were relevant factors for consideration on the child pornography offence, so long as their transmission is not also treated as an aggravating factor on the sexual assault offence and is thus "double counted." Although they are plainly related, the harm visited upon A.D. in respect of the transmission of the images to the wider world differed from and was additional to the harm she suffered in respect of the sexual assault and the fact that Mr. Milne recorded his actions. [55] In my view, the recommendation made by the Crown at the sentencing hearing amounted to a somewhat low, but fit, combined sentence for the two offences based on their gravity, Mr. Milne's moral culpability and circumstances, and the applicable principles of sentencing. Disposition [56] In the result, I would grant leave to appeal, allow the appeal and increase the sentence to 2 ½ years for the sexual assault and one year consecutive for transmitting child pornography, less time served credited at 4 ½ days. [57] GROBERMAN J.A.: I agree. [58] WILLCOCK J.A.: I agree. [59] GROBERMAN J.A.: Leave to appeal is granted, the appeal is allowed and the sentence is increased to 2 ½ years for the sexual assault and one year consecutive for transmitting child pornography, less time served credited at 4 ½ days. "The Honourable Madam Justice Dickson"