R. v. Leon

2014 BCSC 202 R. v. Leon IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Leon, 2014 BCSC 202 Date: 20140110 Docket: 60739-2 Registry: Chilliwack Regina v. Cameron William Leon Ban on Publication pursuant to ss. 486.4(1) Criminal Code of Canada Before: The Honourable Mr. Justice Joyce Oral Reasons for Sentence Counsel for the Crown: H.B. Waldock Counsel for the Accused: G. Gill Place and Date of Hearing: Chilliwack, B.C. December 13, 2013 Place and Date of Sentence: Chilliwack, B.C. January 10, 2014 Introduction [1] On August 27, 2013, a jury convicted Mr. Leon of the following offences committed on September 29, 2012: (a) One count of sexual assault causing bodily harm; and (b) One count of assault causing bodily harm. [2] At this stage, I must determine an appropriate sentence to be imposed on Mr. Leon for these offences. Circumstances of the offences [3] Because this was a jury trial in which the jury gave its decision without the need to provide any reasons, I am required under s. 724 of the Criminal Code, R.S.C. 1985, c. C-46, to determine the circumstances of the offences. I will not read s. 724 but it is to be taken as having been read. [4] The facts surrounding the commission of the offences as I find them to be can be summarized as follows. [5] The victim, Ms. J.M.E., was 19 years old at the time of the assault. On the evening of September 28, 2012, J.M.E. went to a nightclub in downtown Chilliwack where she met up with friends, danced, and consumed some alcohol although she did not drink to the point of being intoxicated. While at the nightclub, J.M.E. encountered Mr. Leon whom she knew from having gone to school with him. [6] At some point, Mr. Leon suggested that J.M.E. leave with him. Initially, J.M.E. said that she did not want to leave and she and Mr. Leon both remained at the nightclub. Eventually, J.M.E. left the nightclub with Mr. Leon. They walked a short distance down the sidewalk and went into an alley that led to a set of stairs at the side of the building. [7] On the stairway landing, Mr. Leon pressed J.M.E. to have sex with him, but she refused. Mr. Leon became angry, took off some or all of J.M.E.'s clothing and forced vaginal intercourse on her with such force that it caused her to bleed from her vagina. Eventually, Mr. Leon left the immediate scene and J.M.E. was able to put on her clothes. Before J.M.E. was able to leave the alley, Mr. Leon returned and assaulted her by punching her on her head and face. He then ran away. [8] J.M.E. was able to make her way back to the nightclub which was just closing where she saw a friend. The friend called J.M.E.'s father who came to the nightclub and took her home. He then took her to the Chilliwack Hospital where she was examined and then transferred to the Abbotsford Hospital to be examined by a sexual assault nurse examiner. [9] As a result of the sexual assault, J.M.E. sustained physical injuries including bruising and swelling of her labia majora, bruising and swelling and lacerations of her labia minora, a hematoma of her clitoris and bruising of her cervix. [10] As a result of the subsequent assault, J.M.E. sustained abrasions of her forehead, bruising to her right eye and right cheek, bruising on her neck and multiple bruises on both knees and her right hand. [11] The injuries to her vaginal area caused significant pain and took approximately three weeks to heal. The bruise to her right eye was also very painful and took about a month to heal. Circumstances of the offender Mr. Leon's background generally [12] The following information is drawn from the pre-sentence report ("PSR") authored by Mr. S. Hamar and the psychological report authored by Dr. LaTorre, both of which were filed in Court. [13] Mr. Leon was born in February 1993. He was 19 years of age when he committed the offences and is 21 years old now. Mr. Leon was born to Aboriginal parents, his father of the Ashcroft Band and his mother of the Sts'ailes or Chehalis Band. He has one younger brother. [14] Mr. Leon grew up on the Chehalis Reserve, but his family was apparently not involved in cultural activities. Mr. Leon described his father as a hard worker who always maintained employment and provided for the family. He told Mr. Hamar that violence in the home was commonplace when he grew up. He witnessed his parents fighting regularly and his parents used corporal punishment on the children. [15] Mr. Leon told Mr. Hamar that alcohol was not used in the home, but that his father was a regular user of marihuana. However, he told Dr. LaTorre that his mother had a problem with alcohol. Mr. Leon's parents separated when he was 18 years old; and after they separated, he resided on and off with both parents, living both on the Chehalis Reserve and in nearby Agassiz. [16] Mr. Leon described to Mr. Hamar that his peers while growing up both on and off the Reserve were generally negative influences. He and his friends drank, used drugs, stole, and picked fights for fun. Apparently, his one positive influence was his participation in a floor hockey team, but even with this team there was drinking if the team lost a game. [17] When interviewed by Dr. LaTorre, Mr. Leon described his childhood as difficult because he was bullied when he was younger and got beat up by his parents. Mr. Leon attended school on the Reserve and the other students called him derogatory names because he was more Asian than First Nations in appearance and because he had a stutter. He said that he was not picked on when he attended school off the Reserve during his senior school years. Mr. Leon was an average student but was suspended a number of times for fighting. [18] Mr. Leon began drinking alcohol at age 14. By the time he was 18, he was drinking on a regular basis, at times to the point of blacking out. Mr. Leon began using marihuana at the age of 12 and used that drug daily, up to the time he was incarcerated. He also used crystal methamphetamine and cocaine on a monthly basis, until being incarcerated. [19] Mr. Leon initially told Dr. LaTorre that he did not drink all the time, but went on to say that he consumed alcohol almost daily and that his typical consumption was about one-half of a 26-ounce bottle of hard liquor and 16 beers. I take that to be a daily average. He told Dr. LaTorre that alcohol tends to make him angry and that he has experienced a number of blackouts. [20] Mr. Leon informed Mr. Hamar that when he was 18 years old, he tried to attend a treatment centre to address his drug and alcohol use, but the facility was an adult only facility and he was not accepted into it. [21] Mr. Leon graduated from high school and thereafter obtained some certificates including the WHMIS certificate, a First Aid Level 1, and a Forklift Operator ticket. He also completed the Aboriginal Career Training Team program operated by Sto:lo Employment Services following which he obtained a summer job working at the community hall in Chehalis in 2010 as a Youth Worker. He also did some demolition work in Surrey. [22] At the time he committed these offences, Mr. Leon was receiving financial assistance through his Band. [23] Mr. Leon informed Mr. Hamar that on two occasions he tried to commit suicide, once by choking himself to death using a bicycle lock, and once by hanging. On the one occasion, his parents found him with the bicycle lock and removed it, and on the other the rope broke. [24] Mr. Leon reported to Dr. LaTorre that he had been sexually abused on two occasions by his 12-year-old friend during sleepovers, and once by a man who was in his late twenties during a sleepover at his friend's house. [25] Mr. Leon described having a five-year relationship with a young woman who is one year his junior. That relationship involved arguments as well as physical violence. Mr. Leon's criminal record [26] Mr. Leon has a prior criminal record as follows: · Possession of stolen property committed August 26, 2011, for which he was sentenced on January 12, 2012 to a conditional discharge and a 12-month probation order. · Sexual assault committed August 26, 2011, for which he was sentenced February 27, 2013 to one day in jail after credit for 30 days pre-sentence custody and a two-year probation order. · Assault committed September 21, 2011, for which he was sentenced September 10, 2012 and sentenced to a conditional discharge and a nine-month probation order. · Breach of recognizance or undertaking committed May 19, 2012, for which he was sentenced June 26, 2012 and given a suspended sentence and a six-month probation order. [27] The circumstances of the sexual assault that Mr. Leon committed on August 26, 2011 bear some similarities to the current offence. In that case, the victim was at home in the early evening watching television when Mr. Leon knocked on her door and invited her to go drinking which she declined. He then invited her to go with him to purchase some marihuana to which she agreed. They went to a place on the Reserve to try to buy marihuana. On the way, Mr. Leon tried to hold the victim's hand, but she would not allow it. Mr. Leon exposed his penis and asked her to touch it and she refused. Mr. Leon tried to kiss her but the victim looked away so Mr. Leon licked the side of her face. There was no one home at the place where they went to buy marihuana so they returned to the victim's home. On the way there, Mr. Leon pushed the victim into some bushes causing her to fall on her back. Mr. Leon exposed his penis and said that he was going to have intercourse with her. She tried to get up but Mr. Leon pushed her back down and pulled her shorts partly off her body. The victim screamed and pulled up her shorts. Mr. Leon tried to pull down her shorts again and the victim yelled at him again. Mr. Leon put his penis in his pants and walked away. He showed up later that night at the victim's home, but her brother told him to go home and pass out. [28] Mr. Leon was very intoxicated on that occasion. The following day, he sent the victim a Facebook message saying that he did not remember anything. [29] The assault on September 21, 2011 did not involve serious violence, but did involve Mr. Leon's girlfriend at the time. Psychological assessment [30] Dr. LaTorre assessed Mr. Leon's risk of re-offending using two psychological instruments, the Static 99-R and the Stable 2007. [31] The Static 99-R is an actuarial measure of relative risk of sexual offence recidivism. It consists of ten items and produces estimates of future risk based upon the number of risk factors present in any one individual. Mr. Leon scored eight on the Static 99-R putting him in the relatively high risk category for future sexual offending. [32] The Stable 2007 considers stable dynamic factors or factors that might change, but would require some effort such as therapy in order to change. [33] Dr. LaTorre opined that, "Overall, Mr. Leon would be considered, based on the STABLE-2007 results, to have a relatively High degree of Needs". Dr. LaTorre concluded: Overall risk/needs is determined by a matrix that considers both the STATIC-99-R and the STABLE-2007 results. According to that matrix, Mr. Leon's overall risk and needs in regards to sexual recidivism is considered to be relatively Very High presently. Mr. Leon's attitude toward the offence and acceptance of responsibility [34] With regard to Mr. Leon's attitude and understanding regarding the offences, he told Mr. Hamar that he could not recall the events in the alley because he was intoxicated and had also smoked marihuana, and was to the point of blacking out. That is consistent with his statement to the police. [35] In his pre-sentence report, Mr. Hamar stated: The Subject reports he knew the victim from school. He states he would like to take responsibility for the offence and his actions. [36] Mr. Hamar went on to state: When discussing the outcome of the court proceedings with this writer the Subject appeared more angry than remorseful. He stated, "I didn't have DNA on scene, they didn't find anything and they still found me guilty which is stupid." When asked if the Subject could provide insight into his behaviour he said, "I was found guilty so I just want to do my time". When asked what he thought the victim may be going through, [Mr. Leon] responded, "I don't think about it. They are out there, I'm in here". He provided no insight into the offence or remorse for his behaviour but stated he will do his time and attend any counselling or program directed by the Court. [37] When given the opportunity to address the Court at the conclusion of counsel's submissions during the sentencing hearing, Mr. Leon stated that he was sorry that he did what he did and that his actions were unthinkable. He said he was sorry for the family and for what he did to them. He said he felt bad for what he did. [38] I also note at the conclusion of the statement given to the police, Mr. Leon asked for a pencil and paper with which he wrote what he called a "sorry note" to the victim in which he stated that he was sorry for what he did to her and for all the pain he caused her and her family. He stated that he did not know what he was doing. He stated that it was wrong and that no person should ever do what he did. He said that she did not deserve what happened and that he hoped she could stay happy and keep positive. He promised to sober up and take courses to clean up his act. Effect of the offence on the victim [39] In her brief impact statement filed with the Court, J.M.E. said that because of these assaults she had to leave school and has not been able to return. She expresses the desire to be able to forget what happened and move on with her life, but has been unable to do so. She cannot forget what Mr. Leon did to her. Parties' positions on sentence Crown's position [40] Counsel for the Crown submits that in the circumstances of this case an appropriate sentence would be a custodial sentence in the range of three and one-half to five years' imprisonment which as I understand the Crown's submission is the length of sentence that ought to be imposed before giving credit for the time that Mr. Leon has spent in custody prior to sentence. [41] The Crown referred to four cases in support of its submissions with respect to a range of sentence. [42] In R. v. Pratt, 2011 BCPC 382, a relatively young man aged 21 at the time of sentence and 19 at the time of the offence, was sentenced to an effective sentence of five years for sexual assault causing bodily harm in the following circumstances. [43] Mr. Pratt stopped the victim, a young woman who was riding on a bicycle, and pushed her into a ditch where he began to assault her by hitting her about the head, knocking her helmet off and threatening to kill her. Mr. Pratt convinced her that he would stop assaulting her if she stopped resisting, so she cooperated. Mr. Pratt led her to a wooded area where he again hit her in the head and threatened to kill her. He then put her on the ground and sexually assaulted her. The assault included fellatio and digital penetration. Mr. Pratt was unable to have sexual intercourse with her although he tried. [44] Mr. Pratt pleaded guilty to the offence. He had a lengthy youth and adult record, primarily for motor vehicle and property offences, for which he had received numerous probation orders. A psychological report assessed Mr. Pratt as a relatively moderate risk of committing future sexual violence without further therapeutic or legal interventions. [45] In R. v. Allard, 2011 BCSC 915, the offender was convicted of six offences including choking with intent to commit sexual assault, sexual assault, and uttering threats to cause death or bodily harm. The circumstances of the offences are briefly summarized in para. 4 of the reasons for sentencing: [4] In summary, Mr. Allard had spent the evening drinking with friends first in a private residence and then in a pub. He had a knife clipped to his belt. He left the pub and began walking with Ms. T., who had been sitting at his table for part of the evening. When they walked into an alley, Mr. Allard became angry and said he had given Ms. T. money and asked her where that money was. When Ms. T. said she did not have any money, Mr. Allard grabbed her hair and started smashing her face against the fence and the cement. He put his arm around her neck, strangling her and trying to break her neck; that was the way Ms. T. described it. He dragged Ms. T. and pulled her pants down around her knees, the whole time she was fighting him. She said she was fighting for her life. Mr. Allard took his pants down and forced Ms. T. to perform fellatio. Mr. Allard repeatedly said, "I am going to kill you. I am going to kill you." Ms. T. believed he was going to do just that. [46] Mr. Allard was 28 years old; he had been raised in a stable home environment, had vocational training and had been working steadily before the incident. He had a previous record including a conviction for assault causing bodily harm, but none of the offences involved sexual assault. Mr. Allard received a sentence of 23 months in additional to the ten and one-half months spent in custody prior to sentencing. [47] In R. v. Dyck, [1986] B.C.J. No. 3278 (S.C.), the offender was convicted of sexual assault causing bodily harm to a prostitute. When the prostitute wanted to recant from his proposition for sex, he beat her with his fists before taking her outside where he forced her to perform fellatio and attempted intercourse before a police car drove by and caught him in the act. After giving credit for six months spent in custody, Mr. Dyck was sentenced to three years in prison. [48] Crown also referred to R. v. Sidhu, 2005 BCCA 65 which involved a conviction for aggravated sexual assault of a prostitute and use of a weapon while committing an assault. The circumstances of the offences as described by the sentencing judge are set out in para. 2 as follows: [2] The complainant was approached by the appellant not long after midnight on the night in question. She said that when the appellant approached her he appeared to be intoxicated and she therefore declined to deal with him. He, however, persisted in asking her for sexual activities and she continued to refuse. She testified that at this point he grabbed her and pulled her into an alley. There he tore off some of her clothing and told her she was going to have sex with him whether she agreed to or not. He was unable to perform sexually. At this point, he produced a bottle of whiskey he had been carrying in a bag. She said he consumed some whiskey. The complainant said she tried to escape from him while he was drinking, but she was unsuccessful. She said the appellant broke the bottle and came at her with the broken bottle and that as she put up her hands to protect her face she was cut on the hand by a fragment of the broken bottle. [3] According to her version of events, the appellant thereafter tried to have intercourse with her anally but was not successful. He again tried to have normal intercourse with her and was again unsuccessful. She said she managed to somehow get hold of the bottle and hit the appellant over the head but the blows seemed to have no effect on him. She did, however, manage to push him away from her and she ran out to Kingsway leaving behind some of her clothing and a wallet. She then flagged down a taxi. Although the driver would not accept her as a passenger, he said he would call her an ambulance. The taxi driver testified she appeared upset and was bleeding. Soon after, the appellant approached the driver, but the driver also refused to let him into the cab. [49] Mr. Sidhu committed the offences while he was on judicial interim release in respect of another sexual assault. The sentencing judge imposed a sentence of five years for the aggravated sexual assault and four years concurrent for the offence of use of a weapon while committing the assault which sentences were upheld on appeal. Defence position [50] The defence position is that a fit and appropriate sentence for Mr. Leon is an actual sentence at the high end of the provincial range, namely, two years less one day to be followed by a period of probation. An actual sentence of that length would amount to an effective sentence of just over 38 months. [51] Ms. Gill for the defence referred to one case, R. v. R.L.W., 2013 BCCA 50 (R.L.W.), where the offender received a sentence of five years in prison for assault causing bodily harm. Ms. Gill referred to R.L.W. more for its discussion of the Gladue principles which I will deal with later in these reasons than with regard to the appropriate range of sentence. [52] However, the circumstances in R.L.W., which Ms. Gill submits were far more egregious than in the present case, involved forced anal intercourse over a protracted period of time with the victim who was the offender's girlfriend and who had told him she was ending the relationship. The offender also bit the victim's breasts and forced her to perform fellatio while forcing her to view images of child pornography. Shortly after climaxing the offender became sad, apologized profusely, and wrote a note admitting his actions and stating that he intended to commit suicide. Pre-sentencing credit [53] With regard to pre-sentencing credit, Mr. Leon has been in custody since October 2, 2012. Thirty days of the time in custody was credited to Mr. Leon in respect of the sentence imposed on February 27, 2013, for the sexual assault that he committed on August 26, 2011. Therefore, Mr. Leon is entitled to credit of 14 months and nine days towards the sentence imposed in respect of these offences. Purpose and principles of sentencing General principles of sentencing [54] In determining an appropriate sentence for Mr. Leon, I need to consider the following principles: 1. Section 718 of the Criminal Code provides that 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. 2. Section 718.1 sets out the principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. 3. Section 718 also sets out a number of objectives that must be considered when sentencing an offender, including: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate the offender from society, where necessary; (d) to assist in rehabilitating the offender; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in the offender, and acknowledging the harm done to the victims and to the community. 4. Section 718.1 directs that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 5. Section 718.2 directs amongst other things that a sentencing judge must 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, ... (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 principles - general [55] As noted, s. 718.2(e) of the Criminal Code and the cases that have interpreted it impose a duty on a sentencing judge to take into account the personal and systemic factors uniquely relating to an Aboriginal offender that may have contributed to his offending when determining an appropriate sentence. [56] In R. v. Gladue, [1999] 1 S.C.R. 688 [Gladue] at paras. 80 and 81 the Supreme Court of Canada provided the following guidance with respect to factors the sentencing court must consider regarding Aboriginal offenders. I quote: [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. [57] The Gladue considerations were revisited and reaffirmed by the Supreme Court of Canada in a case called R. v. Ipeelee, [2012] 1 S.C.R. 433 [Ipeelee]. That case dealt with sentences imposed in two cases for breach of long-term supervision orders. At para. 59 Mr. Justice LeBel reminded us of the approach that needs to be taken with regard to Aboriginal offenders when he said: [59] When sentencing an Aboriginal offender, a judge must consider: (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 (Gladue, at para. 66). Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report (Gladue, at paras. 83-84). [58] With regard to the ability of the sentencing judge to take judicial notice of systemic factors affecting Aboriginal people, Mr. Justice LeBel said at para. 60: [60] ... To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. [59] In responding to criticisms that have been levelled against s. 718.2(e) including the criticism that it invites a reduction in sentence simply because the offender is an Aboriginal person, Mr. Justice LeBel stated at para. 75: [75] Section 718.2(e) does not create a race-based discount on sentencing. The provision does not ask courts to remedy the overrepresentation of Aboriginal people in prisons by artificially reducing incarceration rates. Rather, sentencing judges are required to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case. This has been, and continues to be, the fundamental duty of a sentencing judge. Gladue is entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point, Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process. Section 718.2(e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples. Neglecting this duty would not be faithful to the core requirement of the sentencing process. [60] Ipeelee also made clear that an Aboriginal offender need not establish a causal link between the background factors and the commission of the offence (see Ipeelee at paras. 81-83). [61] As the Supreme Court of Canada reminded us in Ipeelee, it is the duty of a sentencing judge to have regard to the Gladue factors for all offences including "serious" offences. At para. 85, Mr. Justice LeBel stated: [85] Whatever criticisms may be directed at the decision of this Court for any ambiguity in this respect, the judgment ultimately makes it clear that sentencing judges have a duty [and that word is emphasized] to apply s. 718.2(e): "There is no discretion as to whether to consider the unique situation of the aboriginal offender; the only discretion concerns the determination of a just and appropriate sentence" (Gladue, at para. 82). [62] Thus, while s. 718.2(e) does not create a race-based discount on sentencing, it is always necessary to have regard to the circumstances of an Aboriginal offender when crafting a fit and proper sentence for that offender in the circumstances of a particular case. Gladue factors in this case [63] I make some comments on the Gladue factors as they relate particularly to Mr. Leon. [64] Mr. Hamar's report indicates that Mr. Leon grew up in Chehalis, the traditional land of his mother's people, the Sts'ailes community. His father is also a First Nations person coming from the Ashcroft Band. While he was growing up, his parents did not practice cultural activities in their home, but when Mr. Leon was older, he was able to learn and participate in cultural practices through the Sts'ailes community including attending potlatches in that Chehalis longhouse. [65] Both of Mr. Leon's grandmothers attended residential schools. Although neither of them talked much about their experiences, I have no doubt that they had a negative impact on their lives. Mr. Leon's maternal grandmother apparently struggled with alcohol to such an extent that his mother and father apparently banned alcohol from their home. However, Mr. Leon told Dr. LaTorre that his father had a problem with marihuana and his mother had a problem with alcohol. It is not clear from the report, but his mother's abuse of alcohol may have commenced after she and her husband separated when Mr. Leon was about 15 years old. [66] Mr. Leon was exposed to the misuse of alcohol by other members of his family including his aunt, with whom he was drinking on the night he committed these offences, and by other members of his peer group on the Reserve. It is apparent that within his community Mr. Leon developed a serious alcohol abuse problem to the point that he was blacking out on occasion. [67] Mr. Leon did not apparently suffer the effects of race discrimination when he attended school off the Reserve, but he did suffer from discrimination within his own community on the Reserve because his facial features were different from the others. Mr. Leon's young life was so troubled that on two occasions he tried to commit suicide. [68] Although Mr. Leon did not involve himself in cultural activities when he was growing up, since being in custody he has participated in healing circles when the Native Liaison attends the institution where he has been placed. He expressed to Mr. Hamar a desire to continue connecting with his heritage and plans to engage in cultural activities whether in a custodial setting or in the community. [69] The Chief of the Sts'ailes Band informed Mr. Hamar that the Band Council has made a decision to ban Mr. Leon from returning to the community until he completes anger management, substance abuse counselling, sexual offending counselling, and the creation of a wellness plan. The Band has programs addressing addiction issues, but does not have a program that addresses sexual offending behaviour. [70] The Sts'ailes Telmexw Awtexw residential treatment centre program in Agassiz, British Columbia, is a culturally-based continuous intake residential treatment program for Aboriginal persons whose primary mission is to strengthen the First Nation participants' commitment to develop spiritually, mentally, emotionally and physically, while reducing the dependency on alcohol and/or drugs. The program incorporates cultural programming with general educational workshops dealing with issues such as addiction management, living skills, life management, anger management, intimacy and relationships, relapse prevention and after-care planning. Analysis [71] With this background in mind, I turn to the essential question that I have to determine. What is a fit and proper sentence for Mr. Leon for these offences? [72] I begin by noting the statutory maximum penalties. Sexual assault causing bodily harm carries a maximum penalty of 14 years' imprisonment and assault causing bodily harm carries a maximum penalty of ten years' imprisonment. [73] There are aggravating circumstances in this case: 1. First, although it may not have been a prolonged attack and appears to have been spontaneous, fuelled no doubt by Mr. Leon's heavy consumption of alcohol, the sexual assault was violent in nature, causing significant injury to the victim. It was committed on a young woman who had been Mr. Leon's friend and whose friendship he betrayed. 2. Second, Mr. Leon has a previous record of assaults including a sexual assault. 3. Third, at the time he committed the present offences, Mr. Leon was subject to three probation orders, at least one of which prohibited him from consuming alcohol or prohibited drugs, as well as an undertaking in respect of the August 26, 2011 incident by which he undertook to abstain from the consumption of alcohol and drugs. He was in breach of these conditions and undertakings when he committed these offences. [74] With respect to mitigating factors, the Crown suggests that Mr. Leon does not show any true remorse. That appears to be the conclusion of Mr. Hamar at the time of his interview with Mr. Leon. However, in my view, Mr. Leon's apparent lack of appreciation for the consequences of his actions and lack of remorse needs to be considered in the context of his own background. In my view, he lacks the advantage of being raised in a stable home environment where he could acquire the necessary moral and social skills to first of all restrain himself from engaging in criminal behaviour of this kind; and secondly, of a real grasp on how such conduct affects those upon whom it is inflicted. He was raised in an environment where abuse of drugs and alcohol and violence were the norm, not the exception. [75] In my opinion, Mr. Leon did display remorse and regret for the physical and emotional pain he caused the victim when at the end of his interview with the police he took considerable time to compose his sorry note. I also felt that he was being genuine when he expressed his regret in Court. [76] The Crown quite properly submits that the principles of denunciation, deterrence, and the protection of the public are particularly important in this case, but that does not mean, in my view, that the principle of rehabilitation should not also be a significant factor in the determination of an appropriate sentence. [77] While Mr. Leon has a troubling record as it relates to prior assaults of women, he is still a young man. In the opinion of Dr. LaTorre, he is at a high risk to re-offend without successful treatment. Such treatment could involve both intensive sexual offender therapy and intensive alcohol and drug abuse therapy. It appears that it will be important for Mr. Leon to engage in relapse or maintenance programs if his risk is to be successfully managed. [78] Defence counsel does not suggest that anything short of a custodial sentence would satisfy the principles of sentencing, even taking into account Mr. Leon's Aboriginal background. Indeed, a conditional sentence is simply not available under the law in this situation. Even if a conditional sentence were possible under the law, I would not be satisfied that it would provide the appropriate framework that would adequately address all of the principles of sentencing. [79] The difference in position between the defence and Crown is with respect to the length of the custodial sentence; and consequently, whether it should be served in a federal or provincial institution and the benefit of probation in the rehabilitation of Mr. Leon. [80] I agree with the Crown's submission that ordinarily a sentence in the range of three and one-half to five years would be appropriate for the offence of sexual assault causing bodily harm, considering the circumstances of the offence. [81] Taking into consideration all of the circumstances that I have described, including Mr. Leon's Aboriginal background and the case authorities provided by counsel, I am of the view that it would ordinarily be appropriate to impose a sentence at the low end of that range. An effective sentence of that duration would result in an actual sentence after giving credit for time spent in custody of about 28 months which he would have to serve in a federal institution. For a sentence of that length, a probation order would not be possible. [82] Defence counsel urges me to impose an actual sentence of two years less one day plus probation. That would amount to an effective sentence of about four months shorter than the low end of the range suggested by the Crown. [83] It is my view, based upon the report of Dr. LaTorre, that Mr. Leon would benefit more from the high intensity sexual offender program that is available to him at a federal institution than he would from the less intense programs that are available a provincial institution. [84] It is also my view, however, that a period of probation would be beneficial, if not essential, to successfully addressing Mr. Leon's risk of re-offending and his rehabilitation. [85] I believe that the best chance for successfully reducing Mr. Leon's risk of re-offending would be to impose a sentence that allows for both the more intense programs available at a federal institution, and a term of probation under which a probation officer could not only supervise his conduct in the community but also direct him to attend counselling programs including the relapse or maintenance programs with regard to both sexual offending and substance abuse. I expect those programs could include the Sts'ailes Telmexw Awtexw residential treatment centre program. [86] Probation can be ordered if I impose an actual term of imprisonment of two years, but not more. An actual sentence of two years would mean that Mr. Leon would serve the custodial portion of his sentence in a federal institution where he could undertake the more intensive sexual offender programs. [87] Therefore, in the circumstances of this case, I am going to impose an actual sentence for the offence of sexual assault causing bodily harm of two years to be followed by a term of probation of three years. The effective length of this sentence will be three years, two months and eight days. [88] For the offence of assault, I will impose a sentence of one year concurrent with the sentence for assault causing bodily harm. [89] I also order a period of probation of three years following incarceration the terms of which are as follows: (a) To keep the peace and be of good behaviour. (b) To appear before the court when required to do so by the court. (c) To notify the court or the probation officer in advance of any change of name, or address, and promptly notify the court or the probation officer of any change of employment or occupation. (d) To report to a probation officer immediately after being released from prison and to report thereafter when and in the manner directed by the probation officer. (e) To abstain from the consumption of alcohol or other intoxicating substances. (f) To abstain from the consumption of drugs except in accordance with a medical prescription. (g) To attend such counseling programs including sex offender and drug or alcohol treatment programs or employment programs as may be specified by the probation officer. (h) To not communicate with the victim directly or indirectly. [90] While it is not open to me to direct how Corrections Canada deals with Mr. Leon in prison, I will make a strong recommendation that he be processed through the classification process as quickly as possible, and that the high intensity sexual offender treatment program be made available to him as soon as possible, so that he can complete the program during the time of his incarceration. [91] I also make the following ancillary orders: (a) An order pursuant to s. 487.051(a) of the Criminal Code for the taking of samples of bodily substances for the purpose of forensic DNA analysis. (b) [SOIRA ORDER] (c) An order pursuant to s. 109(2)(a) of the Criminal Code prohibiting Mr. Leon from possessing: 1. Any firearm other than a prohibited firearm or restricted firearm and any crossbow, restricted weapon, ammunition and explosive device for a ten-year period following his discharge from prison; and 2. Any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. (d) An order pursuant to s. 743.2 of the Criminal Code that Mr. Leon not communicate directly or indirectly with the victim, J.M.E., while he is in custody; and (e) An order that upon the expiration of any appeal period, the victim's personal effects that were made exhibits at this trial be returned to her. [92] Now, unless there is anything further that counsel wish to raise - [93] MS. GILL: The victim surcharge, My Lord. [94] THE COURT: Pardon? [95] MS. GILL: The victim surcharge. I would urge Your Lordship to waive it. [96] THE COURT: Is it open to me to waive? [97] MS. GILL: It is because this offence pre-dates the coming into effect of the new legislation, My Lord. [98] THE COURT: Given the length of incarceration, I am satisfied that Mr. Leon will not have the ability to pay that victim impact surcharge and I will waive it for that reason. "B.M. Joyce J."