R. v. R.L.W.

2011 BCSC 1363 R. v. R.L.W. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. R.L.W., 2011 BCSC 1363 Date: 20110401 Docket: 144444‑2; 144444‑2‑KB; 144444-3‑KA; 144444-4‑KA Registry: Victoria Regina v. R.L.W. BAN ON PUBLICATION PURSUANT TO S. 486.4 (1) OF THE CRIMINAL CODE OF CANADA, NO INFORMATION THAT COULD IDENTIFY THE COMPLAINANT IN THESE PROCEEDINGS SHALL BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY THESE REASONS FOR JUDGMENT HAVE BEEN EDITED FOR PUBLICATION PURPOSES Corrected Judgment: The text of the judgment was corrected at paragraphs 62 and 122 on November 7, 2011 Before: The Honourable Mr. Justice G.R.J. Gaul Oral Reasons for Sentence Counsel for the Crown: N. Jensen Counsel for the Accused: J. Watt Place and Date of Hearing: Victoria, B.C. March 4, 2011 Place and Date of Judgment: Victoria, B.C. April 1, 2011 [1] THE COURT: These oral reasons are subject to editorial revisions before their reproduction in final form. Such revisions may include grammatical or stylistic alterations or the inclusion of additional references to the evidence, authorities or submissions. In no manner will the results of my decision be affected or changed. Introduction [2] On 22 November 2010, I found the offender, R.L.W., guilty of the following offences: · on or between 20 July 2008 and 25 July 2008, he did have in his possession child pornography images, contrary to s. 163.1(4) of the Criminal Code (the "Code"); · on or about 20 July 2008, he sexually assaulted Ms. N, and in doing so caused her bodily harm, contrary to s. 272(2)(b) of the Code; and · on or about 20 July 2008, he did knowingly utter a threat to Ms. N to cause her death or bodily harm, contrary to s. 264.1(1) of the Code. [3] At trial, R.L.W. admitted that he possessed child pornography on the relevant dates set out in the charge against him. However, he denied sexually assaulting or threatening the complainant. [4] The defence argued that Ms. N had consented to all of the sexual activity that took place on the night in question or, in the alternative, that I should be left with a reasonable doubt as to whether she consented. In advancing its position, the defence suggested that Ms. N was either fantasizing or fabricating her evidence about the events of 19 and 20 July 2008, and in particular her evidence relating to the sexual assault. [5] I rejected R.L.W.'s evidence as being patently unreliable. On the other hand, I found Ms. N to be a credible witness and accepted her evidence. Having considered all of the evidence presented at trial, I was satisfied beyond a reasonable doubt of R.L.W.'s guilt on all of the above noted charges. [6] At the request of both the Crown and the defence, I ordered the preparation of a pre‑sentence report, including a psychological assessment of R.L.W. Given that R.L.W. is of First Nations descent, I also directed that the pre‑sentence report include or incorporate a "Gladue report", setting out R.L.W.'s aboriginal background and the First Nations factors the court needs to consider when sentencing an aboriginal offender (see: R. v. Gladue, [1999] 1 S.C.R. 688). [7] On 4 March 2011, the day set aside to hear submissions on sentencing, counsel called ahead three additional charges. These new charges all related to R.L.W.'s breaching terms of his judicial interim release. R.L.W. was arraigned before me on those charges and pleaded guilty to them. The sentencing hearing that followed incorporated all of the charges before the court. [8] In order to avoid confusion, I will refer to the possession of child pornography, sexual assault causing bodily harm and uttering threats collectively as the principal offences. [9] I heard comprehensive submissions on sentencing from both Crown counsel and counsel for R.L.W. and reserved my judgment until today. I have reflected upon those submissions and the arguments advanced by counsel and have considered the case authorities they provided me. I have also considered all of the evidence presented on sentencing and have reviewed the exhibits filed at trial, including the images and videos that were stored on R.L.W.'s computer. Evidence on Sentencing [10] The following exhibits were filed as evidence on sentencing: Exhibit 1 is a pre‑sentence report / Gladue report, dated 2 March 2011. Appended to this report is a psychological assessment of R.L.W. dated 24 February 2011; Exhibit 2 is the Victim Impact Statement of Ms. N, dated 17 November 2010; Exhibit 3 is a letter from Erin Gibson of the John Howard Society, Victoria, dated 28 February 2011; and Exhibit 4 consists of two Certificates of Completion from the Vancouver Regional Correctional Centre. The first, dated 26 November 2010, confirms R.L.W. successfully completed a "Respectful Relationships" course. The second certificate, dated 21 January 2011, confirms R.L.W. successfully completed a "Substance Abuse Management" course. Circumstances of the Offences Possession of child pornography, sexual assault causing bodily harm, uttering a threat to cause death or bodily harm [11] In the summer of 2007, Ms. N and R.L.W. began an intimate relationship. R.L.W. was 27 years old and Ms. N was 21. [12] The first few months of the relationship were pleasant. However, Ms. N eventually began to notice that when R.L.W. was under the influence of alcohol, he would become verbally abusive towards her. When he would regain his sobriety, R.L.W. would apologize for his conduct and behaviour towards Ms. N. [13] Eventually, R.L.W. disclosed to Ms. N. that he was an alcoholic. Ms. N decided she wished to help R.L.W. overcome this addiction, and consequently she went about finding community resources that would assist him in this regard. Notwithstanding her efforts, R.L.W. did not seek help or treatment for his addiction at this time. [14] On the evening of 19 July 2008, R.L.W. and Ms. N were together in downtown Victoria. At some point R.L.W. accused Ms. N of flirting with a friend of his and an argument ensued. Ms. N had been harbouring doubts about her relationship with R.L.W. and his accusation was sufficient to convince her to bring it to an end. Ms. N told R.L.W. that she was breaking up with him and that she wished to have her key back. This was a key to her apartment that she had given him previously. R.L.W. refused Ms. N's request. Ms. N then left R.L.W. and boarded a public transit bus to go home. Shortly thereafter, R.L.W. phoned Ms. N and pleaded with her to return to him. Struggling with her mixed emotions, Ms. N got off the bus and walked back to R.L.W.. [15] R.L.W. asked Ms. N to accompany him to a local nightclub so that they could talk. He also said that he would return her apartment key to her afterwards. Ms. N was focused on getting her key back, and consequently she agreed to accompany R.L.W.. Over the course of the evening and at various locations, R.L.W. consumed a significant amount of alcohol. Ms. N consumed alcohol also; however her state of sobriety was much better than R.L.W.'s. [16] Ms. N eventually agreed to R.L.W.'s request that she accompany him back to his residence. Ms. N did so in the hope that R.L.W.'s father, with whom R.L.W. resided, would persuade his son to return Ms. N's key to her. [17] R.L.W.'s father was not at home when R.L.W. and Ms. N arrived at the residence. Shortly after entering the premises, R.L.W. became violent with Ms. N. He ordered her to remove her clothes and then threw her onto the bed where he pinned her down, at times holding his hand over her mouth. [18] R.L.W. repeatedly asked Ms. N whether she had been unfaithful to him, and threatened that he would hunt her down and kill her if he found out that she had cheated on him. [19] R.L.W. insisted on having anal intercourse with Ms. N and threatened to rape her without a condom if she refused. [20] R.L.W. forced Ms. N to place a condom on him using her mouth, and over the course of an extended period of time, and from various positions dictated by R.L.W., he penetrated Ms. N's anus. [21] During the course of the assault, R.L.W. bit both of Ms. N's breasts a number of times. He also used her hair and a chain necklace she was wearing around her neck as a means of controlling and directing her actions. Ms. N was forced to perform fellatio on R.L.W., and at one point while doing so, she was compelled to view images of child pornography that were stored on his computer. [22] R.L.W. had difficulty reaching sexual orgasm and consequently he began masturbating while watching the child pornography that was stored on his computer. Shortly after climaxing, R.L.W. became sad and docile. Crying, he apologized profusely to Ms. N for what he had done to her. [23] R.L.W. begged Ms. N not to call the police and threatened to kill himself if she did so. R.L.W. wrote Ms. N a note admitting that he was addicted to crack cocaine and that his alcohol and drug consumption had impacted his thinking and actions. He also admitted that he had "raped" Ms. N and had forced her to watch child pornography. He concluded his note with the following: Still addicted to crack, struggling alcoholic, going to commit suicide. I love [the name N]. Good bye Grade 8 education. You're smarter than me. Hope you find someone better. [24] On 21 July 2008, Ms. N reported the sexual assault and the events of 19 - 20 July 2008 to the police. She also attended at the Victoria General Hospital where she was examined by a sexual assault nurse examiner. [25] The nurse who examined Ms. N and observed the following injuries: a reddened area above both tonsil beds with a small amount of petechiae above the right tonsil bed; a small linear abrasion behind each ear; a small reddened area on the back of the scalp; multiple reddened areas around the nipples that looked like bite marks; a reddened area around the posterior fourchette of the vagina; a reddened area around the circumference of the anus; and a small tear to the anus. [26] The pain Ms. N suffered to her arms and upper body as a result of the sexual assault persisted for a week or so. Urinating and bowel movements were painful for Ms. N for three weeks, and on some occasions bowel movements were accompanied by bleeding. The fissure in her anal region did not heal for approximately three weeks. [27] On 25 July 2008, R.L.W. was arrested at his home for, amongst other things, sexually assaulting Ms. N. [28] The police seized from R.L.W.'s bedroom a computer and other related media. A forensic analysis of the computer's hard drive disclosed that R.L.W. had downloaded and filed over 200 videos depicting children engaged in all sorts of sexual activities with adults. There were approximately 44 videos located on the computer's desktop, while the remaining videos were filed in three distinct folders. Some of the videos depict children who appear to be between the ages of two and four years old, while others have children who seem to be in their early to mid-teens. Some of the images illustrate forced anal and vaginal penetration of a child; while others depict a child fellating or masturbating an adult. One video involves an incident of bestiality where the child is bound to a bed frame. [29] R.L.W. admitted at trial that he possessed the video images on his computer prior to and during the relevant timeframe, and that the images constitute child pornography within the meaning of s. 163.1 of the Code. However, he denied that he forced Ms. N to view these images during the course of any sexual assault. Breach of undertaking, Information 144444‑KB‑2 [30] R.L.W. was released from police custody on 25 July 2008, on an undertaking to appear with multiple conditions. One of those conditions was to abstain from the consumption of alcohol. [31] In the early morning hours of 10 July 2010, R.L.W. was found in a local Victoria park in an advanced state of intoxication. He was unconscious and had obviously consumed a significant amount of alcohol. R.L.W. was arrested for breaching the term of his undertaking prohibiting him from consuming alcohol. He was released from police custody later that morning on the same terms as his previous undertaking. Breach of undertaking, Information Number 144444‑KA‑3 [32] On 29 July 2010, the police attended at a park in Saanich and located R.L.W. in an unconscious state. He was partially undressed and was clearly under the influence of alcohol. When he regained consciousness, R.L.W. informed the police that he had only had a couple of drinks that day. R.L.W. was held in police custody, after having been charged with breaching his undertaking. He spent seven days in custody before being released on 4 August 2010. [33] R.L.W. was released on his own recognizance with terms similar to his earlier undertaking, including one that prohibited him from consuming alcohol. Breach of recognizance, File Number 144444‑4‑KA [34] At or around midnight on 24 September 2010, the police found R.L.W. in a schoolyard at a Victoria school. It was evident to the police officers that R.L.W. had been drinking alcohol. He was arrested and subsequently charged with breaching the terms of his recognizance. [35] R.L.W. has consented to remain in custody on this charge since that date. Circumstances of the Offender [36] The pre‑sentence report and psychological assessment that were prepared for this sentencing provide a comprehensive history and description of R.L.W.'s upbringing and current circumstances. [37] R.L.W. was born in Victoria to parents who are of First Nations heritage. His father is a member of the Tseshaht First Nation and his mother is a member of the Penelakut First Nation. [38] R.L.W.'s parents were never married and did not live together after he was born. Both of his parents suffer from alcoholism. [39] In his early years of life, R.L.W. lived with his mother and her then partner. R.L.W. was physically abused in his mother's home and, as a result, he went to live with his father when he was about three years old. [40] R.L.W. and his father lived in the United States from approximately 1986 to 1991. During this time, R.L.W. was bullied at school and in his community because of his First Nations heritage. [41] R.L.W. was exposed to a sexual environment at a young age. By the time he was six years old, R.L.W. was masturbating and viewing pornographic movies and magazines. He was also engaging in sexual activity with the seven year old daughter of his father's girlfriend. His first experience of sexual intercourse was when he was 14 and it was with a girlfriend who he later found out was 11 years old. [42] R.L.W. and his father regularly visited relatives in Victoria and it was during one of these visits that R.L.W. was sexually molested by an older male cousin. R.L.W. was about nine years old when that occurred. [43] R.L.W. and his father moved back to Victoria in or around 1991. At that time, R.L.W.'s father was in a common-law relationship with a woman who had two children of her own. The relationship was a turbulent one with alcohol abuse being a significant factor. R.L.W. was present on at least one occasion when his father assaulted his common-law partner. R.L.W.'s father was arrested, charged, and served a custodial sentence as a result of that incident. [44] R.L.W. had difficulty concentrating at school and failed to complete Grade 8. He left school when he was approximately 16 years old. It was around this time that R.L.W. began using the Internet to view pornographic material. [45] When R.L.W. was 17 years old, he was again sexually molested by his older cousin after an evening where they had both consumed a significant amount of alcohol. [46] In 2007, R.L.W. began accessing and purchasing child pornography from the Internet and downloading the material to his personal computer at home. [47] Since the age of 14, R.L.W. has worked at various jobs, including construction labourer, retail sales, food services and hospitality, janitorial, landscaping, and clerical work. When he was arrested in July 2008, he was working at a local Victoria restaurant as a host. Just prior to his incarceration for having breached his recognizance, R.L.W. had been working as a clerk at a supermarket. [48] During his time in custody, R.L.W. has completed a "Respectful Relationships" course, as well as a "Substance Abuse Management" course. [49] The letter from Erin Gibson, an alcohol and drug counsellor with the John Howard Society of Victoria, dated February 28th, 2011, indicates that R.L.W. has recently requested to see her about developing a treatment plan for his addictions. [50] On 2 March 2011, two days before counsel made their sentencing submissions, R.L.W. apparently took steps to recommence his high school education. First Nation Ancestry / Background [51] R.L.W. is a member of the Penelakut First Nation. Although he has never lived on a Reserve, R.L.W. has been involved in First Nations activities, including ceremonial events such as potlatches and sweat lodges. He has also volunteered for the B.C. Aboriginal Networking and Disabilities Society and participated in the North American Indigenous Games in 2002. [52] The pre‑sentence report provides the following information regarding R.L.W.'s First Nations history, under the heading, "Sentencing Considerations for Aboriginal Offenders": The Penelakut First Nations Tribe is located in the southern Gulf Islands chain between Vancouver Island and the mainland of British Columbia. The Penelakut are part of the Coast Salish linguistic group. Starting in 1890 and continuing for almost a century, hundreds of Coast Salish children were sent to the residential school on Kuper Island. Kuper Island was renamed by the band last year and is referred to as Penelakut Island. The affect (sic) of this move resulted in loss of culture, identity, language and family which is felt to the present. While at residential school, the children experienced physical and sexual assault in addition to being minimally provided with food and clothing. The school closed 20 years ago, destroyed during 1982 and with the inception of the Residential School Project, First Nations people are now speaking out about what they endured. Penelakut Island is not open to the public and there are no commercial operations on the Island. Mr. Jack [a counsellor with the Penelakut First Nations on Kuper Island] informs there are approximately 600 band members who live on Penelakut. The Penelakut First Nation is governed by a chief and eight councellors (sic). Mr. Jack outlines the major issue with the band is unemployment in addition to suicide, substance misuse and lack of adequate housing. There is no restorative justice program... Substance Abuse/Addictions [53] Like his parents, R.L.W. suffers from alcoholism. R.L.W. has also struggled with addictions to narcotics, including cocaine and heroin. [54] R.L.W. began misusing alcohol and marihuana when he was approximately 14 years old. Shortly after that, he began experimenting with LSD. By the time he was 18 years old, he was also consuming psilocybin mushrooms. [55] R.L.W. first used Ecstasy when he was 27 years old. He also began using cocaine around this time. [56] R.L.W. has had approximately five alcohol‑related blackouts, at least one of which has resulted in his hospitalization. [57] R.L.W. informed the author of the pre-sentence report that he completed a residential treatment program for addictions at the Comox Valley Recovery Centre in 2000, and for three years thereafter he remained sober. He began drinking again in or around 2003, believing he could manage his alcohol consumption. R.L.W. acknowledged that he is an alcoholic and that "substances become problematic." [58] According to R.L.W., in November 2009 he attended the Tsow‑Tun Le Lum residential treatment centre on Vancouver Island for treatment of his addictions but was discharged shortly after his arrival because of his pending criminal charges. Psychological Profile / Assessment [59] A psychological assessment of R.L.W. was conducted by Dr. Anthony Dugbartey of the Forensic Psychiatric Services Commission. This assessment took place over the period of two days in December 2010 and February 2011. [60] In his report dated 2 March 2011, Dr. Dugbartey reviewed the clinical records of a number of healthcare professionals who have treated R.L.W. in the past. I will refer to them briefly. [61] In the fall of 1995, R.L.W., then around 15 years old, was referred to Dr. Leslie Marrion for psychotherapy relating to problems he was experiencing, including truancy from school and the misuse of alcohol and "recreational" drugs. R.L.W. was scheduled to have seven sessions with Dr. Marrion; however, he only attended four. [62] After her second session with R.L.W., Dr. Marrion recorded the following in her clinical records: Red flags. Feel [R.L.W.] is slippery, in denial about his problems, and in stage of nothing can hurt me. [63] Dr. Marrion discharged R.L.W. from her care in March of 1996 because he had failed to attend appointments with her and she had been unable to re-establish contact with him. [64] R.L.W. then attended psychological therapy with Dr. Robert Carey from January 2010 until July 2010. In a clinical record dated 26 July 2010, Dr. Carey records that R.L.W. described his life as follows: My life is spinning out of control - partying / drugs, got kicked out of dad's...smoking crack and heroin - got thrown in drunk tank, 3 weeks ago... I'm a hustler - asks for change for bus, sells (phony) drugs"...when I use, I'm a horrible person; people don't matter only drugs. [65] During the course of his psychological assessment with Dr. Dugbartey, R.L.W. completed the Personality Assessment Inventory (the "PAI"). This is a self‑report test of personality and psychopathology. Dr. Dugbartey describes the purposes of the test as follows: In addition to diagnostic assessment, the PAI has demonstrated utility for treatment planning and monitoring of response to treatment intervention. [66] The results of R.L.W.'s PAI led Dr. Dugbartey to conclude that: a) R.L.W. shows "an extreme elevation on a drug problem scale". b) R.L.W.'s "social, work, and personal roles and responsibilities are likely to be considerably impaired by his use of alcohol and drugs". c) R.L.W. "appears to have intermittent anxiety‑related symptoms". d) R.L.W. "endorses a constellation of items that individuals with an air of personal superiority would display in their interpersonal interactions with others. e) R.L.W. "does not appear to have much of an interest or motivation for treatment" and responded to the PAI "in a manner that is similar to that endorsed by individuals who see little need for behavioural change". f) R.L.W. "is quite likely to be deeply defensive and reticent to discuss his personal problems" and "the risk of [R.L.W.'s] early and abrupt attrition from psychological treatment is quite high". [67] Dr. Dugbartey also assessed R.L.W. using the Risk of Sexual Violence Protocol (the "RSVP"). In his report, Dr. Dugbartey described the RSVP as a "structured professional guide designed for appraising sexual violence risk." Having used the RSVP to assess R.L.W.'s circumstances and situation, Dr. Dugbartey summarized his conclusions as follows: In applying the RSVP, it is my formulation that [R.L.W.] presents with a high risk for sexual re‑offending. His pedophilic sexual arousal and sexual interests would not remit spontaneously, and he also appears to derive sexual gratification in sexual violence. His risk for sexual violence may be expected to escalate and become patently imminent under conditions of intoxication with alcohol or non‑prescribed psychoactive substances. Completed treatment of his sexual deviance, mandated abstinence from ingesting alcohol or any illicit substances, as well as very close correctional supervision that involves prohibitions from any contact with the victim or with young children are certainly worth considering. [Emphasis in original.] [68] Under the heading "Summary and Opinion", Dr. Dugbartey provided the following diagnostic and prognostic opinion of R.L.W. [R.L.W.] meets diagnostic criteria for Pedophilia, Nonexclusive Type. He also exhibits Sexual Sadism. There is ample evidence to support the diagnosis of Alcohol Dependence (In a Controlled Environment). There must be no expectation that [R.L.W.'s] deviant sexual interest would spontaneously subside. In fact, we know that if unchecked through sustained and high intensity treatment, the severity of the deviant sexual sadistic acts of individuals with sexual sadism progress over time. I have carefully considered the defendant's biographic account, his specific First Nations cultural values and mores, the circumstances of the current offences, all within the context of the specialized treatment options for sexual offenders with First Nations ancestry on Vancouver Island. I find no specific treatment programmes designed specifically to meet his risk-needs locally. The prudent course of action would be to consider, at least in the immediate to medium term, treatment options aimed at ameliorating his high risk for sexual reoffending. Victim Impact [69] During the course of her testimony at trial, Ms. N explained the massive emotional turmoil she had to struggle through after the events of 19 ‑ 20 July 2008. She had loved R.L.W. and could not understand why he had attacked her in the manner that he had. She felt hurt and emotionally torn between lingering feelings for him and the relationship, and the reality of what he had done to her. [70] I have perused the victim impact statement that Ms. N has prepared. She refers to R.L.W.'s sexual assault on her as an "attack", and I accept that as a fair description of what happened. The assault lasted a considerable amount of time and caused injuries to her throat, breasts, vagina, and anus. The fissure that was caused in the area of her anus took approximately three weeks to heal. [71] As a result of R.L.W.'s sexual assault of her, Ms. N has been diagnosed with post-traumatic stress disorder. She continues to seek professional counselling to deal with anxiety, nightmares, fears, and flashbacks. Ms. N notes in her victim impact statement: The accused has forever damaged and changed my life. Wherever I go, I am burdened with these horrific, repulsive, unwanted memories. I cannot escape reliving this attack. It has caused me so much emotional damage that my self-worth is lowered. I feel damaged and broken. [72] I have no difficulty in concluding that Ms. N has been significantly traumatized by the events of 19 - 20 July 2008, and that she will have to deal with the impact of those events over the long-term. [73] The fact that there are no victim impact statements before me relating to the other victims, and by this I mean the children in the child pornography images, comes as no surprise. Given the clandestine environment in which this material is produced and distributed around the world, and the frightfully young age of the victims, it is no surprise to me that the Crown has no "statements" expressing the harm caused to the children depicted in the videos found on R.L.W.'s computer. [74] Notwithstanding this unavoidable deficiency in information, I have found the observations of Madam Justice L'Heureux‑Dubé in R. v. Sharpe, 2001 SCC 2, instructive with respect to the harm child pornography causes to its victims. At paragraphs 158 and 169, Madam Justice L'Heureux‑Dubé explains : The very existence of child pornography, as it is defined by s. 163.1(1) of the Criminal Code, is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children. It preys on preexisting inequalities. ... Section 163.1 was enacted to protect children. Because of their physical, mental, and emotional immaturity, children are one of the most vulnerable groups in society, particularly with regard to sexual violence. Child pornography plays a role in the abuse of children, exploiting the extreme vulnerability of children. Pornography that depicts real children is particularly noxious because it creates a permanent record of abuse and exploitation. An analysis of the vulnerability of the group and their subjective fears supports Parliament's decision to prohibit child pornography. [75] I have also found the reasons for sentence in R. v. Kwok, [2007] O.J. No. 457 (OSCJ) [Kwok], of assistance in addressing the impact child pornography has on its victims. In Kwok, the court was provided with a "victim witness statement" from M.A., a Russian child who had been adopted at the age of five by her abuser "Matthew". For a period of five years Matthew treated M.A. as his sex slave and in doing so he took hundreds of pictures of her being sexually abused and traded them with others on the Internet. Matthew was eventually arrested and prosecuted by American authorities and is apparently serving a 75-year custodial sentence in the United States. [76] M.A.'s victim statement was important to the sentencing judge in Kwok, because a number of pornographic images of M.A. were found on the offender's computer. In sentencing the offender, Molloy J. considered M.A.'s statement and observed at paragraph 51: ... It [M.A.'s statement] is typewritten on the letterhead of a New York law firm and is unsigned. It is clear that M.A. is in fact one of the hundreds of victims of Mr. Kwok's crime. I have not met her and cannot be confident that these are her exact words as opposed to a paraphrase of her feelings on the subject written by someone else. However, the statement is a poignant description of the particularly heinous victimization of children that occurs when their degradation is photographed and placed on the internet. I am confident that these feelings would be shared by any child, or indeed adult, who was treated in this way. M.A.'s statement reads, in part, The absolute worse (sic) thing about everything that happened to me was that Matthew [her abuser] put my pictures on the internet. He traded them with other people like baseball cards. What kind of people want to see pictures of little girls being abused in this way?... I know that these pictures will never end and that my "virtual abuse" will go on forever. Usually, when someone is raped and abused, the abuse ends. But since Matthew put those pictures on the Internet, my abuse is still going on. Anyone can see them. People ask for them and are downloading them. Day after day. People want to see me abused. ... Child pornography is not a victimless crime. I am a victim and I still suffer everyday and every time someone sees me being abused. [77] Like Molloy J., I cannot be certain that the contents of M.A.'s victim statement are an exact record of her own words or that M.A.'s legal counsel did not paraphrase them for her. Nevertheless, in my opinion, what is attributed to M.A. is what one would expect a child, who has been sexually abused and exploited in the way M.A. was, would say. Position of the Crown [78] The Crown argues that the paramount sentencing considerations applicable to the present case are denunciation, specific and general deterrence, and protecting society from the offender. Moreover, the Crown submits that the Gladue factors should not play a significant role in the sentencing of R.L.W. on the principal offences, as they are serious offences and consequently no distinction should be made between an aboriginal and non‑aboriginal offender. The Crown acknowledges that those factors should influence the sentence to be imposed on R.L.W. for the breaches of his undertaking and his recognizance. [79] The Crown submits that the aggravated circumstances surrounding the sexual assault committed by R.L.W. justifies a significant period of imprisonment of between four to five years. [80] With respect to the threats directed towards Ms. N, the Crown asserts that a sentence in the range of two to three months would be appropriate. In advancing this position, the Crown concedes that the threats were directly linked to the sexual assault and therefore the sentence imposed for this offence should be concurrent to the sentence imposed for the sexual assault. [81] The Crown submits that a sentence of six to 18 months in prison for the possession of child pornography should be imposed, consecutive to the sentence for the sexual assault, because the possession of the illegal images preceded the date of the sexual assault. [82] Finally, with respect to the breach of undertakings and breach of recognizance, the Crown argues that R.L.W. should be sentenced to 15 days in jail for the first conviction, 30 days for the second, and 45 days for the third, all to be served consecutively, for a total of 90 days. Position of the Defence [83] While acknowledging that denunciation and deterrence are paramount considerations in the present case, the defence urges me not to overlook R.L.W.'s age, personal background, including his aboriginal ancestry, and his lack of any prior convictions. [84] The defence submits that a global sentence for the principal offences should be three years in prison. In arriving at this figure, counsel argues the sentence for the sexual assault should be three years in prison. The sentence for possession of child pornography should be five months, and the sentence for the threats should be three months. The defence further argues that all of the sentences should be served concurrently as they are linked to a single event or incident. [85] With respect to the breaches of undertaking and the breach of recognizance, the defence argues that the offences are more akin to nuisances than true crimes, given R.L.W.'s serious addiction to alcohol. Consequently, the defence submits that sentences of seven days for the first conviction, seven days for the second, and 14 days for the third, all to be served consecutively, would be appropriate in this case. These sentences would be served concurrently to the sentences imposed for the principal offences. The Law Purpose of Sentencing [86] Section 718 of the Criminal Code of Canada articulates the statutory purpose of sentencing. The section reads as follows: 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. Principles of Sentencing [87] Section 718.1 of the Code establishes the following fundamental principle of sentencing: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [88] This fundamental principle is the starting point in the sentencing process; however, it must be applied in conjunction with the following additional principles articulated in s. 718.2 of the Code: 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, ... (ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner, (ii.1) evidence that offender, in committing the offence, abused a person under the age of eighteen years, 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. Gladue Considerations [89] In Gladue, the Supreme Court of Canada judicially considered s. 718.2(e) of the Code, and in doing so created an analytical framework for judges before whom an aboriginal offender, like R.L.W., appears for sentencing. [90] At paragraph 66 of Gladue, the court observed: [66] How are sentencing judges to play their remedial role? The words of s. 718.2(e) instruct the sentencing judge to pay particular attention to the circumstances of aboriginal offenders, with the implication that those circumstances are significantly different from those of non‑aboriginal offenders. The background considerations regarding the distinct situation of aboriginal peoples in Canada encompass a wide range of unique circumstances, including, most particularly: (A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and (B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. [91] In recognizing that systemic and historical factors may explain why there is such a disproportionate number of First Nations inmates in Canadian prisons, the Supreme Court of Canada has made it clear that sentencing judges must consider whether there are other avenues beyond incarceration, for example, restorative justice initiatives or programs within the community, that can appropriately address the principles of sentencing. At paragraph 69 of Gladue, the court explained: [69] In this case, of course, we are dealing with factors that must be considered by a judge sentencing an aboriginal offender. While background and systemic factors will also be of importance for a judge in sentencing a non-aboriginal offender, the judge who is called upon to sentence an aboriginal offender must give attention to the unique background and systemic factors which may have played a part in bringing the particular offender before the courts. In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member. In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means. [92] In R. v Jacko, 2010 ONCA 452, Watt J.A. commented on the Gladue principles and analysis as follows: [62] The appropriateness of a sentence depends on the particular circumstances of the offence, the offender and the community in which the offender committed the offence. Predictably, this individualized focus in sentencing decisions spawns disparity among sentences for similar crimes: Gladue at para. 76; M. (C.A.) at para. 92. The "just and appropriate" mix of sentencing objectives, principles and factors will depend on the needs and current conditions of and in the community in which the offence was committed: M. (C.A.) at para. 92. [63] Another lesson from Gladue is that an aboriginal community will often understand the nature of the just sanction in a manner that differs markedly from non-aboriginal communities. Gladue acknowledges that, in appropriate cases, some traditional sentencing objectives will be correspondingly less relevant to the sentencing decision and the objectives of restorative justice will occupy a place of greater influence: Gladue at para. 77. [65] Restorative justice objectives do not trump other sentencing objectives in every case involving aboriginal offenders. Separation, denunciation and deterrence retain their fundamental relevance for some offenders who commit serious offences. As a general rule, the more serious and violent an offence, the more likely it is that the terms of imprisonment imposed on similarly-circumstanced aboriginal and non-aboriginal offenders will not differ significantly, and indeed may be the same. That said, in some instances of serious and violent crime, the length of a sentence of an aboriginal offender may be less than that imposed on a non-aboriginal offender: Gladue at paras. 79 and 80. Serious crime and the objectives of restorative justice are not incompatibles in the sentencing process - restorative justice objectives may predominate in the sentencing decision for aboriginal offenders convicted of serious crimes: R. v. Wells, [2000] 1 S.C.R. 207, at para. 49; R. v. Whiskeyjack (2008), 93 O.R. (3d) 743 (C.A.), at para. 29. [93] The observations of Watt J.A. in Jacko were adopted by Romilly J. of this court in R. v. N.G.H.N, 2011 BCSC 80. [94] In a recent decision of our Court of Appeal, R. v. Ladue, 2011 BCCA 101, Madam Justice Bennett provided the following assessment of the present state of aboriginal offenders in the justice system: [59] In my view, what is critical, fifteen years after the proclamation of Bill C-41, is the fact that the overrepresentation of Aboriginal people in prison is increasing. The decision in Napesis emphasizes the importance of sentencing judges taking the time to apply the principles as they relate to Aboriginal offenders. Consecutive/Concurrent Sentences [95] One of the points of contention on this sentencing hearing is whether any of the sentences I impose should be consecutive. [96] The test to determine whether sentences should be concurrent or consecutive is "whether the acts constituting the offence were part of a linked series of acts within a single endeavour": R. v. G.P.W. (1998), 106 B.C.A.C. 239 at para. 35. [97] In R. v. Li, 2009 BCCA 85, D. Smith J.A. considered the issue of concurrent and consecutive sentences and the need to ensure the fundamental principle of proportionality are respected. At paragraph 28 she concluded: Thus, there is a two-stage approach to sentencing an offender convicted of multiple offences. The first stage is to determine the appropriate sentence for each offence, and decide whether the individual sentences should be made consecutive or concurrent. If consecutive sentences are imposed, then the second stage is to determine whether the sentences, in the aggregate, offend the totality principle. If the sentence, as a whole, is unduly harsh or disproportionate, then the length of the individual sentences should be adjusted in order to arrive at an appropriate global sentence. Possession of Child Pornography [98] Section 163.1(4)(a) of the Code creates a mandatory minimum sentence of 45 days in jail and a maximum sentence of five years' imprisonment for possessing child pornography. [99] As a result of the amendments to the Code in 2005 that brought into force the mandatory minimum sentence for the possession of child pornography, a custodial sentence to be served in the community under a Conditional Sentence Order is no longer a sentencing option for this offence. [100] Crown counsel suggests that a range of sentence from six to 18 months is appropriate in the circumstances of this case. In doing so, the prosecution has relied upon the following case authorities: · R. v. G.(D.N.), 2007 BCSC 1999 [G.(D.N.)]; · R. v. B.(T.L.), 2007 ABCA 61; leave to appeal refused, [2007] S.C.C.A No. 136 [B.(T.L.)]; · R. v. Crone, 2009 BCPC 429; · R. v. Hopps, 2010 BCSC 1875 [Hopps]; · R. v. Strohmeier, 2007 ONCJ 141 [Strohmeier]; · R. v. Kwok, [2007] O.J. No. 457 (OSCJ) [Kwok]; · R. v. Jakobsen, 2006 BCSC 379 [Jakobsen]; and · R. v. Mallett, [2005] O.J. No. 3868 (OSCJ). [101] While I have considered all of these cases, I will only review a few of them here. [102] In G.(D.N.), the offender, who was of aboriginal decent, had on one occasion taken a number of photographs of his four-year old foster child. Some of the photographs depicted the child naked and exposing her vaginal and anal regions. After the photographs were discovered, the offender was charged with making and possessing child pornography. At trial, the offender was found guilty and convicted of both offences. On sentencing, the court found there was no evidentiary basis to conclude the offender was a pedophile or a danger to the public. However, the court concluded that the offender's manipulation of his foster-child amounted to a "serious exploitation and betrayal of trust." The court sentenced the offender to four months in jail, followed by three years probation. [103] In B.(T.L.), the 36 year old offender was the mother of the six year old victim. The offender suffered from cerebral palsy and this had a significant effect on her social, physical and emotional status. The offender had met a man named "Thomas" via the Internet who, amongst other things, began sending her electronic images of child pornography. The offender filed and stored these images on her computer. Thomas convinced the offender to sexually exploit and take pornographic pictures of her child. The offender sent these pornographic pictures of her child to Thomas. The offender eventually became concerned for the welfare of her child and consequently reported her criminal behaviour to the police. She was charged with and pleaded guilty to sexually interfering with her child and transmitting child pornography. The sentencing judge imposed a two year less a day custodial sentence, to be served in the community under a Conditional Sentence Order, followed by a three year period of probation. The Crown's sentence appeal was allowed and the conditional sentence was overturned. The Alberta Court of Appeal concluded that the appropriate sentence for the offences before it was four to five years in prison. However, given the significant mitigating factors in favour of the offender, the court concluded a sentence of 18 months imprisonment was appropriate in the circumstances. [104] In Hopps, the offender was convicted at trial of possessing and accessing child pornography. The offender was a 61 years old man who had "relevant prior convictions" and who had "a long history of viewing, accessing and possessing pornographic images." In addressing the horrible nature of child pornography, Brown J. eloquently observed at paragraph 16: These images are all highly disturbing to any right-thinking person, who would naturally hope never to see a child exploited in that way. They are the work of the most depraved of moral sensibilities, and constitute a callous violation of the childhood innocence every caring child naturally wishes for and strives to provide to every child -- "all the heaven that lies about our infancy," as the poet Tennyson put it. [105] Following what was essentially a joint submission, the court imposed a sentence of two years in prison. In acceding to the joint submission, Brown J. opined that the sentence was "very close" to the sentence he would have imposed in any event. [106] In Strohmeier, the 48 year old offender was charged with possessing approximately 20,000 child pornography images and 350 videos of child pornography. The offender had no prior criminal record and indicated at an early date that he wished to acknowledge his culpability and plead guilty. The sentencing judge concluded that a sentence of 18 months was appropriate. After giving the offender a credit of eight and a half months for the pre-sentence custody he had served, the court sentenced the offender to an additional nine and a half months in jail. [107] In Kwok, the 29 year old offender was charged and convicted of possessing over 2,000 images and 60 videos of child pornography. Mr. Kwok was a first time offender and continued to have the support of many of his friends. Moreover, the court found that, but for his problem with child pornography, the offender appeared to have been a person of good character. Notwithstanding these mitigating circumstances, Molloy J. concluded that a one year sentence was appropriate given the nature and extent of the pornography involved. [108] In Jakobsen, the 54 year old offender was charged and convicted of possessing child pornography. The images in question consisted of nine pictures and five videos that were discovered on his computer. The offender had previously served a nine month conditional sentence for sexually assaulting a child. Although the psychiatric evidence before the sentencing judge suggested the offender was a risk to reoffend, the court concluded that there were a number of factors, including the offender's stable employment record, his history of relationships with age‑appropriate females and the strong support he was receiving from his family and community, that mitigated the risk. The court imposed a six month custodial sentence. [109] Counsel for R.L.W. argues that the appropriate sentence in the instant case is five months in jail. In support of this position counsel relies upon R. v. Schneider, 2008 ONCJ 250 [Schneider], a case involving the possession of hundreds of child pornography videos. Although the offender in Schneider was sentenced to six months in jail, counsel for R.L.W. argues the facts of that case are more aggravating than those before me. In particular, counsel points to the greater number of child pornography images and the fact that the offender in Schneider had been previously convicted of making child pornography. While counsel is correct to point out these distinguishing features of Schneider, it is also important to note that the offender in that case entered a guilty plea at an early point in the proceedings and, unlike R.L.W.'s situation, the court had insufficient evidence before it to conclude one way or another whether the offender suffered from any type of sexual deviance. [110] In my opinion, the uniform theme that runs throughout all of the case authorities that have been presented to me is that child pornography is a plague on our community that must be addressed firmly by the justice system. I accept that over time the courts have come to a better understanding of the horrific dynamics involved in the production, dissemination, and possession of child pornography. Deterring those who would purchase and possess such dreadful material will go a long way to reducing or perhaps even eliminating the production of this material and the consequential harm that it causes to its child victims. [111] I find that the more recent case law reflects the court's growing concern with this type of crime. I find, on my reading of the jurisprudence, that the range of sentence for the offence of possessing child pornography is a broad one between four months and two years in prison. Sexual Assault Causing Bodily Harm / Uttering Threats [112] There is no mandatory minimum sentence for sexual assault causing bodily harm or uttering a threat to cause bodily harm or death. The maximum sentence for those offences is 14 years and five years imprisonment respectively. [113] The case authorities relied upon by the Crown indicate that the range of sentence for this type of violent sexual assault is between four and six years in prison. Those cases include: · R. v. D.(G.B.), 2008 BCPC 432, varied on other grounds, 2009 BCCA 115; · R. v. Morgan, 2003 BCSC 1766, affirmed 2004 BCCA 628; · R. v. Wren, 2004 BCCA 167; · R. v. Latreille, 2009 BCSC 1892; · R. v. Darling, 2002 BCCA 627; and · R. v. K.(C.), 2002 BCCA 233. [114] The defence suggests the range of sentence is more appropriately between three and five years in prison. Moreover, counsel argues that the higher end of the range is reserved for offences whose facts are more aggravated than those before me. In making this submission, the defence has relied upon the following cases: · R. v. D.T.K., 2002 BCCA 190; · R. v. G.A.L., [1992] B.C.J. No. 2529 (C.A.); · R. v. G.E.W., [1993] B.C.J. No. 1297 (C.A.); · R. v. Kerr, [1992] B.C.J. No. 1181 (C.A.); and · R. v. Khan, [1994] B.C.J. No. 724 (C.A.). [115] The Crown and the defence are in agreement that any sentence imposed for the threats that were uttered should be concurrent to the sentence for the sexual assault. Breach of Understanding / Recognizance [116] There is no mandatory minimum sentence for failing to comply with an undertaking or recognizance; however, the maximum sentence for such an offence is two years' imprisonment. [117] Neither counsel provided me with any case authorities relating to this type of offence. Mitigating Factors [118] I find the following to be mitigating factors on sentencing: · This is R.L.W.'s first conviction for a criminal offence; · R.L.W. has completed two courses whilst in custody, and he has very recently taken steps to recommence his schooling; · R.L.W. has recently contacted a substance abuse counsellor and has expressed a desire to seek treatment for his addictions; and · R.L.W. has, in the past, shown himself able to complete alcohol addiction treatment. Aggravating Factors [119] I find the following to be aggravating factors on sentencing: · the length, extent, and nature of the sexual assault R.L.W. committed on his girlfriend, Ms. N; · R.L.W.'s use of threats of violence during the course of the sexual assault; · R.L.W.'s use of child pornography and his forcing Ms. N to view the material; and · the significant and long‑term impact the offences have had on Ms. N. [120] The contents of the pre‑sentence report and the psychological assessment also cause me grave concern with respect to R.L.W.. In my opinion, those reports indicate that R.L.W. poses a safety risk to the community and I find that to be an aggravating circumstance as well. [121] The prognosis is not a positive one for R.L.W., and based upon all the evidence before me, I have no doubt that he needs a significant amount of intensive treatment and counselling to address all of his psycho‑sexual problems in addition to his substance abuse issues. Sentence [122] At paragraphs 80 and 81 of Gladue, the Supreme Court of Canada provided the following guidance for sentencing judges who are faced with crafting an appropriate sentence for an aboriginal offender: 80. As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community? What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing? What sentencing options present themselves in these circumstances? 81. The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances. There is no single test that a judge can apply in order to determine the sentence. The sentencing judge is required to take into account all of the surrounding circumstances regarding the offence, the offender, the victims, and the community, including the unique circumstances of the offender as an aboriginal person. Sentencing must proceed with sensitivity to and understanding of the difficulties aboriginal people have faced with both the criminal justice system and society at large. [123] R.L.W. is 30 years old. He was one month shy of his 28th birthday when he committed the principal offences that are before me. He is a man of First Nations heritage whose parents are survivors of the forced assimilation and physical and sexual abuse of the residential school era. Both R.L.W.'s parents have substance abuse problems, and this serious addiction has been passed onto their son. R.L.W. was exposed to a violent home life and witnessed first‑hand the problems and harm that can result from substance abuse. [124] R.L.W. was introduced to a sexualized environment at a very early age and was sexually victimized when he was young. [125] The Supreme Court of Canada in Gladue clearly articulated that the length of any custodial sentence for an aboriginal offender must be assessed carefully and there may be circumstances that warrant imposing a different or shorter term of imprisonment than one which would be imposed on a non-aboriginal offender for the same offence. The evidence before me indicates there are few, if any, alternative sentencing programs offered by the Penelakut First Nation. Notwithstanding that fact, I must still take into account the principles of restorative justice when crafting a sentence for R.L.W. (see: Gladue, paragraph 93). [126] I have applied the Gladue framework to the consideration of an appropriate sentence for R.L.W. In particular, I have considered his aboriginal ancestry and ethno-cultural affiliation, the social and familial factors that have influenced his growth and upbringing, as well as the systemic factors within society that may have played a role in his criminal behaviour. [127] Having done so, I have also kept in mind that the conventional goals of sentencing, such as deterrence, denunciation and protection of the community are as important for First Nations communities as they are for their non-First Nations counterparts. As the Supreme Court of Canada observed at paragraph 93 in Gladue: It is unreasonable to assume that aboriginal people do not believe in the importance of traditional sentencing goals such as deterrence, denunciation and separation, where warranted. In this context, generally, the more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non-aboriginal. [128] In my opinion, any reasonable member of the community would find child pornography repugnant and would expect the courts to deal with those found in possession of such material in a fair but firm manner. When I say "community", I mean the community as a whole and that includes First Nations as well as non‑First Nations members. Children are amongst the most vulnerable in our society. To purchase images of them being sexually violated is an offence that touches the soul of the community and calls for a strong deterrent and denunciatory sentence. [129] I find the sexual assault, including the threats uttered to Ms. N, to be a very serious and aggravated offence as well. It was a prolonged attack by R.L.W. on someone who was trying to end a relationship with him in a civil and respectful manner. The assault was fuelled by alcohol, but triggered by anger and jealousy. Forcing Ms. N to watch child pornography while she was being assaulted was a degrading and dehumanizing act on the part of R.L.W., disclosing personality traits that are gravely concerning to the court. [130] I am satisfied the circumstances of the sexual assault, threatening, and possession of child pornography place these offences at the higher end of the sentencing scale. In my opinion, notwithstanding his state of intoxication, R.L.W. knew what he was doing and went ahead and did it without any consideration of the lasting impact it would have on the woman who had once loved him or upon the children who had been used and abused during the course of the production of child pornography. For all of these reasons, I find R.L.W.'s moral culpability to be high. [131] I also find R.L.W. poses a present risk of re‑offending and is therefore a risk to the community. In reaching this conclusion, I have placed great weight on the contents of the pre‑sentence report and the psychological assessment of R.L.W., and particularly the observations and conclusions of Dr. Dugbartey with respect to R.L.W.'s prognosis and risk to re‑offend. [132] In my opinion, the principles of denunciation, deterrence, and protection of the community are paramount considerations in this case. [133] R.L.W., you will stand. [134] R.L.W., for the possession of child pornography, I sentence you to a period of imprisonment of 18 months. [135] For the sexual assault causing bodily harm of Ms. N, I sentence you to a period of imprisonment of five years. [136] For uttering a threat to cause death or bodily harm to Ms. N, I sentence you to a period of imprisonment of three months. [137] The sentences for the sexual assault and the threatening will be served concurrently, as I find they form part of a single incident. [138] You may have a seat. [139] In my opinion, the possession of child pornography is different from the other two principal offences. R.L.W. purchased, downloaded, and segregated the material into various files on his computer prior to the sexual assault on Ms. N. He then used this material during the course of the assault. [140] Applying the test set out in the case law, I am satisfied R.L.W.'s possession of child pornography was not part of a linked series of acts within a single endeavour, that endeavour being the sexual assault. Therefore the 18-month sentence I have imposed for the possession of child pornography will be consecutive to the sentences imposed for the other two principal offences. [141] With respect to the breaches of undertaking and the breach of recognizance, I am of the view that the Gladue factors that I have already articulated play a significant role in determining the sentences to be imposed. [142] All of the breaches relate to the over-consumption of alcohol. Substance abuse is a serious health and social concern for the Penelakut First Nation. The misuse of alcohol and other substances has caused great harm to the W. family and it continues to be a severe problem for R.L.W. [143] These familial and systemic factors place R.L.W.'s inability to abide by the specific terms of his release in a more fulsome context and I therefore impose the following sentences: on the first breach of his undertaking, I sentence R.L.W. to seven days in jail; on the second breach of his undertaking, I sentence him to 10 days in jail; on the breach of recognizance, I sentence R.L.W. to 14 days in jail. [144] The sentences for the breaches are to be served consecutively, one to the other, and consecutively to the sentences for the sexual assaults, threats, and possession of child pornography. [145] The total sentence therefore, prior to any deduction for pre‑sentence custody, is six years and seven months. Pre‑Sentence Custody [146] Prior to 22 February 2010, an offender who had spent time in pre‑sentence custody usually received a two‑for‑one credit. On 22 February 2010, s. 719 of the Criminal Code was amended, so as to limit the amount of credit an offender serving pre‑sentence custody can receive. For persons charged after that date and who spend time in pre‑sentence custody, the credit is now generally limited to one‑for‑one. [147] R.L.W. was arrested for breaching his undertaking on 29 July 2010. He remained in custody on that charge for seven days until he was released on 4 August 2010. R.L.W. was again arrested on 24 September 2010 for having breached the prohibition from consuming alcohol contained in his recognizance. He has been in custody ever since that day on that charge. [148] The Crown argues that the 195 days, up to today, should be initially calculated on a one‑for‑one basis, given that all of the breach charges arose after the amendments to the Code. I say initially calculates, because in the Crown's submission, the credit for pre‑sentence custody should be attributed first to the breach sentences. The remaining balance of days spent in pre‑sentence custody should then be credited against the sentences for the substantive offences on a two‑for‑one basis, given that those offences occurred prior to the enactment of the Code amendments. [149] The defence urges that R.L.W. should get double credit for the time he spent in pre‑sentence custody, because all of that time is directly attributable to the substantive offences which were committed before the Code amendments came into force. Moreover, the defence argues that the formula devised by the Crown is unnecessarily confusing and complicated. [150] I am persuaded the Crown's proposal is the appropriate course to adopt in the circumstances of this case. [151] R.L.W. has spent 195 days in pre‑sentence custody. I will give him a one‑for‑one credit for the 31 days he has spent in pre‑sentence custody on the three breaches. Applying this credit to the sentence I have imposed for those offences means R.L.W. has now served his sentence. [152] That leaves a balance of 164 days of pre‑sentence custody. I will give R.L.W. a two‑for‑one credit for this period of pre-sentence custody and that amounts to 11 months. [153] After applying that credit of 11 months to the 18-month sentence I have imposed for the possession of child pornography, R.L.W. will serve another seven months for that offence, consecutive to the five years he will serve for the sexual assault causing bodily harm. Ancillary Orders [154] The Crown submits that I should make a number of ancillary orders to the sentences I have just imposed on R.L.W. The defence takes no issue with most of them, and I will address those first. Firearms / Weapons Prohibition [155] Pursuant to s. 109(2)(a) of the Code, R.L.W. is prohibited from possessing any firearm, cross‑bow, restricted weapon, ammunition, and explosive substance for a period of 10 years following his release from prison. [156] R.L.W. is also prohibited, pursuant to s. 109(2)(b) of the Code, from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. [157] Madam Registrar, if I am going too quickly on these ancillary orders, please let me know. [158] THE CLERK: I'm fine, My Lord. [159] THE COURT: That deals with the firearms and weapons prohibition. Provision of DNA Samples [160] Pursuant to s. 487.051(1) of the Code, I make an order authorizing the taking from R.L.W., for the purpose of forensic DNA analysis, any number of samples of one or more of his bodily substances that are required for that purpose by the means of the investigative procedures described in s. 487.06(1) of the Code. Registration Under SOIRA [161] Pursuant to s. 490.012(1) and 490.013 of the Code, R.L.W. is required to comply with the provisions of the Sex Offender Information Registration Act for a period of 20 years from today's date. Forfeiture of Items Seized by the Police [162] Pursuant to s. 490.1 of the Code, I order that at the expiration of the appeal period Exhibits 4 and 8 on the trial are to be forfeited to Her Majesty In Right of the Province of British Columbia and disposed of by the Attorney General or Solicitor General of British Columbia in accordance with the law. Prohibition From Attending Public Parks, et cetera [163] The Crown argues that the circumstances of this case and the conclusions of Dr. Dugbartey regarding R.L.W.'s pedophilic tendencies and high risk for sexual re‑offending justifies an order under s. 161(1) of the Code. [164] R.L.W. objects to the imposition of such an order. His counsel argues that there is no need, as there is no evidentiary link between the offences R.L.W. has been found guilty of and the harm s. 161 is designed to protect against. In particular, counsel asserts that there must be evidence that R.L.W. has acted out his pedophilic sexual fantasies with children. [165] Counsel also submits that an order under s. 161 would severely limit R.L.W.'s ability to live and work once he is released from prison. [166] I disagree. R.L.W. has admitted that he masturbates while viewing child pornography. That tells me that he uses these images of children for his own sexual gratification. This fact, combined with the opinions of Dr. Dugbartey, is sufficient in my opinion to justify the order being sought by the Crown. [167] Consequently, pursuant to s. 161(1)(a) of the Code, R.L.W. is prohibited from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground, or community centre. [168] Pursuant to s. 161(1)(b) of the Code, R.L.W. is prohibited from seeking, obtaining and continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16. [169] Pursuant to s. 161(1)(c), R.L.W. is prohibited from using a computer system within the meaning of s. 342.1(2) of the Code for the purposes of communicating with a person under the age of 16 years. [170] Finally, pursuant to s. 161(2)(b) of the Code, the prohibitions under this section begin on the date R.L.W. is released on parole, mandatory supervision, or statutory release, and will end 10 years from that date. Victim Surcharge [171] Neither the Crown nor the defence addressed the issue of the mandatory victim surcharge under s. 737 of the Code. R.L.W. will be incarcerated for an extended period of time. He is therefore unlikely to have the means to pay the surcharge, and in my opinion there is no practical purpose in ordering him to pay it. [172] Therefore, pursuant to s. 737(5) of the Code, I am exempting R.L.W. from the obligation to pay such a surcharge. [173] All of these ancillary orders that I have just made will be prepared in writing, R.L.W., and you will be given copies of them. A justice of the peace will read the orders to you and will explain to you what may result if you do not comply with any of the terms. [174] Those are my reasons. "G.R.J. Gaul, J."