R. v. S.

2006 BCSC 2004 R. v. S. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. S., 2006 BCSC 2004 Date: 20060210 Docket: X066069-2 Registry: New Westminster Regina v. J.G.E.S. (BAN ON DISCLOSURE s. 486(3) CCC) Before: The Honourable Mr. Justice A.F. Wilson Oral Reasons for Sentence February 10, 2006 Counsel for the Crown: S. Rail; D. Sim Counsel for the Accused: R. Dickey Place of Hearing: New Westminster, B.C. [1] THE COURT: On March 29th, 2005, after fifteen days of trial on an indictment with three counts, Mr. S. was convicted on Count 1, which was the sexual assault of K.G. using a weapon, which occurred on or about August 6th, 2001 in Surrey, that charge contrary to s. 272(1)(a) of the Criminal Code. He was also convicted on Count 2, also contrary to s. 272(1)(a) of the Code, of the sexual assault of M.H., using a weapon, on or about October 7th, 2001, in Surrey. He was acquitted on the third count which alleged the sexual assault of K.P., using a weapon, in Surrey, on or about January 15th, 2003. [2] In the Reasons for Judgment on conviction, I did review the evidence on each count. Those Reasons are contained within the binder prepared by the Crown that has been marked as Exhibit S5 at Tab 18, pages 1 to 50, and I do not intend to repeat them. On each count, Mr. S. gave evidence, but I did not accept that evidence. On Counts 1 and 2, I was satisfied beyond a reasonable doubt that the Crown had proved its case. That was not the situation on Count 3. [3] The parties have agreed that the circumstances as set out in the Narratives prepared by the Crown are correct, and I will adopt those as a summary of the circumstances of the two predicate offences. So reading from Exhibit S5, in the chart at the front under Narrative: Count 1: S. was found guilty of sexually assaulting K.G. with a weapon. On August 6th, 2001, S. picked up G. in the area of 135th Street and 106th Avenue in Surrey where she was working as a prostitute. He drove her to a secluded area on Old Yale Road where he produced a knife and put his arm around her shoulder like a "headlock", by holding the knife to the left side of G's neck. S. then patted her coat as if looking for something. G. stated she had no money. S. replied that was alright. S. proceeded to push her bra above her breasts before moving in front of her and removing her pants and panties below her knees. Still holding the knife to her neck, he attempted vaginal penetration. He threatened to stab and kill her. After failing penetration, S. told her to flip over, so she did. He briefly attempted anal entry before engaging in vaginal intercourse from behind. During the intercourse, S. kept the knife to the side of G's neck. During the intercourse, he told her that she better like it, and to say that she did. He did not like the way she said it so he told her to say it again. After intercourse G. was told to get out of the vehicle. She exited the vehicle and he drove away. S.'s evidence at trial was that he was delivering drugs to her and that they had consensual sex in exchange for drugs that he never gave her. Count 2: S. was found guilty of sexually assaulting 17-year-old M.H. with a weapon. On October 7th, 2001, H., who was four foot 11 inches tall and weighed 93 pounds, went to the King George Highway SkyTrain Station that night to meet a friend. When she entered the building she saw S. loitering outside. When she later left the building without her friend, S. began to follow her. She crossed over King George and he crossed over behind her. Then he approached and asked her what time it was, and for a light. He put his right arm around her neck and shoulders, placing a knife to her throat. He said to her, "Shut up bitch, or I will kill you.'" With the knife to her neck he guided her to a wooded area just off King George Highway and down a hill where he tripped her to the ground, face down. S. removed her pants and bathing suit bottoms, pulled her hands behind her back and asked her how old she was and if she had any money. She told him she was 17 and had 70 cents. He said if she was lying to him, he would kill her. S. then inserted his penis into her vagina. She told him to stop, that it hurt. There was at least partial penetration: despite her hymen being intact, there was semen found in her vagina. He poked her in the buttocks with a knife at some point during this encounter, but did not break the skin. When he was finished, S. told H. that he would count to 100 and if she peeked, he would kill her then and there. He then fled. S.'s evidence at trial was that he had met her earlier that night at the Dell Hotel bar, where they danced and agreed to meet later that night. He said that he ran into her outside that night and that after kissing and grabbing each other they discussed having sex and she said that she was a working girl. He said they went down to the grassy area and she performed fellatio. He said that he had sexual intercourse with her for about only 20 seconds and stopped when she said it hurt. She then demanded $400 - $500 payment for the services, so he left. [4] The Crown seeks a total sentence on both of these offences of from ten to 12 years imprisonment. With double credit for the time served, which the Crown does not oppose - Mr. S. having been in custody on this matter from June 18th, 2003 to date, almost two years, eight months - he would be entitled to a credit for 64 months, so five years and four months. The Crown is seeking an additional period of prison time of from five to seven years. [5] The Crown also seeks to have Mr. S. designated as a long-term offender pursuant to s. 753.1 of the Code, with the maximum period of community supervision, which is ten years, after warrant expiry. [6] The Crown also seeks other orders: for a D.N.A. sample, lifetime firearms prohibition and registration in the sex offender registry. [7] Defence counsel submits that the appropriate period of additional sentence should be in the range of three to five years, which would be long enough to attend the programs recommended by Dr. Brink, the psychiatrist who provided a report in this matter. So the total sentence, using the two-for-one formula for time served in custody, would be from eight to ten years. Counsel made no submissions with respect to a finding that Mr. S. is a long-term offender, on instructions from him, leaving that to the discretion of the court. [8] There are pre-conditions to a finding that an offender is a long-term offender. Those are set out in s. 754(1) of the Code. First is the consent of the Attorney General; that has been met, filed as Exhibit S2. Second, notice to the offender of the basis for the application at least seven days before: there is no issue that that notice was delivered within the time required, and it has been filed as Exhibit S3. Finally, filing of the notice with the clerk of the court, and it was filed on August 8th, 2005. So I am satisfied that the preconditions for a long-term offender hearing have been met. [9] On April 14th, 2005, there was an order made by me on application by the Crown pursuant to s. 752.1 of the Code that Mr. S. be remanded to the Director of the Forensic Psychiatric Unit for assessment, to be used as evidence on the hearing. That assessment was done and a report dated June 22nd, 2005, filed on June 28th, 2005, which is now Exhibit S6. However, Mr. S. did not make himself available for the interview. [10] As stated by Dr. Brink on page 2 of that report: I did not have the opportunity to interview Mr. S., as would have been my preference. Had Mr. S. been made available for interview, I would have explored with him his family and background history so as to develop a more comprehensive understanding of the motivating factors which appear to have driven his antisocial and increasingly violent behaviour. An interview would also have afforded the opportunity to explore Mr. S.'s sexual preferences, a level of insight into his behaviour and to formulate a more specific opinion as to treatment needs and motivation for change. In my opinion, an assessment that includes a clinical interview results in a more comprehensive understanding of the individual, and thus an enhanced position from which to attempt to assist the court. Finally, I would have used an interview opportunity to ask Mr. S. to nominate sources for collateral information and to explore with him whatever fears or concerns he may have. The file information provided to me includes background information from his mother that she provided in a letter to the court in the course of a previous legal proceeding, as well as information provided in Ms. Bondar's report. [11] Ms. Bondar is an educational consultant who prepared an educational assessment on Mr. S. in 2000 at the request of his mother. [12] Continuing the quote: Mr. S. himself has also provided personal information in several of his statements to police officers. A fair volume of information about his background history is therefore available. However, my understanding of him is necessarily impoverished by the absence of a comprehensive clinical interview. [13] I will comment further on that in these reasons. [14] Turning, then, to a consideration of Mr. S. himself: the information about him is based, to a large extent, on Dr. Brink's report, which is taken from his review of the documents provided to him by the Crown, which are listed in the addendum to his report, and also the documents contained within Exhibit S5, the binder prepared by the Crown which was admitted, by consent, for the truth of its contents, and which I have reviewed, in particular, the report of Ms. Bondar, the educational consultant, and the predisposition report prepared in November of 1996. [15] Mr. S. was born on September 28th, 1979, so he was about age 22 when the predicate offences occurred, and he is age 26 now. He was born and brought up in Surrey. He had sporadic contact with his natural father in the early years, but little after age seven. His mother married Mr. S. who acted as his stepfather. He also has a younger half sister. There is no indication of physical or sexual abuse in his childhood. He is indicated as having a close relationship with his mother, who has been present through much of these proceedings, and also a close relationship with his grandmother and his grandfather or uncle. There is an indication of resentment of his stepfather: that his stepfather drank excessively, that there was verbal aggression and, in particular, that Mr. S. had to do more household chores after his step-father lost a leg in a work-related injury. He also mentioned at least twice, in interviews, alleged sexual abuse of his sister, for which he expressed some responsibility as he was not there to protect her. There is certainly nothing in his upbringing to explain the acts of violence or sexual deviance which have resulted in him being before the court. [16] With respect to his education, Mr. S.'s mother reported that he did well and particularly excelled at physical education. Ms. Bondar's report, however, notes that he attended five schools and that, apart from physical education, his marks were in the "C" range. But there are also indications of problems as early as Grades 5, 6 and 7 in the predisposition report of November of 1996. That report also indicates that Mr. S. reported running away from home when he was about age 15, which would have been when he was about in Grade 10. There is also an indication that he was suspended from L.A. Matheson Junior Secondary School. In Grade 11 at Queen Elizabeth Secondary, there were numerous absences from school and his marks were in the "D" and "E" range. [17] The post-disposition report indicates that Mr. S.'s parents took him out of school in February, 1996, because he was not attending. There is no indication of further formal education after that, although there is an indication that he took G.E.D. exams, so he may in fact have had some further education after that time. [18] With respect to employment, when Mr. S. left school, he worked for West Coast Amusements for a number of months. It has also been indicated that he worked stocking shelves; that he worked as a labourer on construction; that he worked for a waste disposal company; but it does appear that his employment was sporadic. There was also evidence in this trial that he was working selling illicit drugs. [19] With respect to drug and alcohol abuse, or use generally, that is one of the areas that Dr. Brink had some difficulty in determining. In the predisposition report, it was reported that he started drinking when he was age 13; that he also started the use of marihuana at that time; that he was drinking beer and hard liquor on weekends and smoking marihuana. In the interview for the predisposition report, he admitted trying cocaine, heroin, crystal meth and acid at age 16, but that was later denied. There was no indication of alcohol or drug impairment in either of the predicate offences. [20] Mr. S. does have an extensive criminal history. His first reported contact with the police was in March of 1996 - so when he would have been age 16 - when he is reported to have been a passenger in a stolen car, and was brought home by the police but not charged at that time. Since that time, there has been extensive involvement with the law which is summarized in the chart at the front of Exhibit S5. [21] For my own purposes, I have attempted to put those offences in chronological order based on the date of the occurrence of the offence rather than the date of conviction, and will refer to those. I am not going to refer to the narrative that is provided with respect to each, but I will for some of the more significant matters. [22] The first offence indicated is on August 6th, 1996. So that would have been when he was 16 years of age, and that is for possession of stolen property, his mother's cell phone. [23] Next, ten days later on August 16th, 1996, there was an incident resulting in a conviction for robbery, which related to taking a shirt from a 14-year-old, and telling him that it was not worth dying for. He served 29 days in custody for that offence as well as being placed on 18 months' probation. [24] Then the period of October 5th to 8th of 1996, there was an incident that resulted in a conviction for a breach of an undertaking as a result of failing to reside with his parents. In the period from October 9th to 14th, 1996, another breach of undertaking in failing to abide by his curfew. [25] On November 6th, 1996, while he was in custody pending the trial of the robbery matter, it is noted that he was involved in a fight in the Youth Custody Centre, and on November 7th, that he was violent with the staff in the Youth Custody Centre. There were no convictions arising from either of those incidents. [26] On January 3rd, 1997, there was another incident resulting in a conviction for breach of probation for failing to abide by the rules of the residence. While he was on probation, there are a number of alleged breaches, none of which resulted in convictions: January 24th, 1997, that he was away without leave from the host home in the Youth Futures program; February 13th, 1997, that he was smoking marihuana on a school outing; February 24th, 1997, that he was away without leave from the host home and there was $20 missing; March 14th, 1997, that he was under the influence of marihuana; on March 30th in 1997 that he was suspected of a breaking and entering and theft at the host home and so was no longer welcome to remain there. [27] On September 12th, 1997, there was an incident that resulted in a conviction of possession of stolen property, a motor vehicle. [28] Then on September 28th, 1997, incidents resulting in two convictions, the first for theft under $5,000 relating to money of his mother, and second, fraud under $5,000 relating to defrauding the credit union. [29] On September 28th to 30th of 1997, there were incidents resulting in a conviction for breach of probation as a result of attending the Surrey SkyTrain Station, and breach of his undertaking in failing to abide by his curfew. [30] On December 13th, 1997, there was an incident resulting in him being convicted of taking a vehicle without the owner's consent. [31] On January 22nd of 1998, there was an incident which resulted in him being convicted of uttering threats. That is one for which I am going to refer to the narrative. It provides: Count 1: S. pleaded guilty to uttering a death threat to a K.V. on January 23rd, 1998. V. and his friend B. walked by a parked car in which S. was a passenger. S. offered to sell B. "blow", (cocaine,) then noticed V. S. pointed at V. saying, "You're dead." S. exited the vehicle, produced an 8-10 inch knife from the front of his pants and pointed it at V. while walking toward V., who ran from the scene. S. then chatted with B. asking him about his and his cousin's welfare. Later: Witness O'H. told Police that two or three days after the threat incident he saw S.. S. told him that V. was "dead" because he had ratted him out and that the Police were looking for S.. [32] That incident does have elements that appear in a number of the other offences for which Mr. S. has been convicted, in particular, the use of a knife, or the production of a knife, and threats of death. [33] Then on June 30th, 1998, Mr. S. was found to have breached his probation in failing to do the community work service [34] On July 18th, 1998, there was an incident that resulted in a conviction for theft over $5,000, that relating to the theft of his mother's car. [35] On July 22nd, 1998, incidents resulting in two convictions, first, for possession of stolen property, a book of cheques, and second, for forgery, relating to a $125 cheque made payable to himself. [36] In the period of September 24th, 1998 to June 30th, 1999, there was a breach of probation in failing to complete his community work service. [37] May 21st, 1999, another breach of probation for failure to pay the restitution due to his mother. [38] Then, on July 8th, 1999, events which resulted in convictions for unlawful confinement and attempted robbery and resulted in a jail sentence of 20 months in jail together with three years of probation. The circumstances of those offences as set out in the narrative in Exhibit S5: Just before 9 a.m., S. confronted a 20-year-old woman in the underground parking lot of her gym as she exited her car. He brandished a knife, pushing her back toward her car. He threatened to kill her and demanded her car. He got behind her into the rear seat and held the knife to her stomach while he directed her to drive past King George SkyTrain Station and into the parking lot of the Days Inn on King George Highway. She soon saw a parked police car and signalled for help. She stopped the car and S. put the knife to her neck and threatened to cut her throat, demanding that she start the car. There was a brief standoff with police during which S. kept yelling, "Stay back or I'll cut", and "I'll break her neck." When she put her hand in between the knife and her neck, she received a small cut. He made more threats to kill her and stated he would not go back to jail, but ultimately threw the knife out of the car and she was able to get away. The victim suffered severe harm as a result. She thought he was going to rape her. S. was observed to have very wide eyes and to be breathing heavily, but he denied being under the influence of drugs, stating, "No, I don't do drugs. Just a shitty day." His counsel said that S. had been drunk the night before, and spent the night walking around because he did not wish to return to his grandmother's home drunk. He said that he was depressed about his life and financial circumstances, and that while walking through an underground parking lot, he saw the victim. He said this was an impulsive act. No explanation was provided for why he was carrying a knife, or for why he was in the underground parking lot of the building which housed Ms. V.'s "women-only" gym. [39] Then, on February 27th, 2001, there were events resulting in a conviction for breach of probation as a result of failure to report and changing his address. [40] Then the predicate offences that have resulted in the convictions in this matter arose while he was on probation. There were the two, the events I have already described, on August 6th, 2001, for which he was convicted of sexual assault with a weapon, and October 7th, 2001, for which he was also convicted of sexual assault with a weapon. [41] After those offences - so not matters that would be considered as prior record but matters that are relevant to the continuing risk to society - Mr. S. has had a number of other convictions. On February 7th, 2002, there was an incident resulting in a conviction for taking a vehicle without the owner's consent. [42] On May 27th, 2002, an event resulting in a conviction for robbery, and again, I will quote the narrative for that: S. pleaded guilty to robbing 31-year-old L.R. of her purse on May 27th, 2002, at approximately 6 a.m. R. was walking down King George just south of Queen Elizabeth High School. She was approached by S. who asked her for the time. He then grabbed her and dragged her into the nearby bushes and began to choke her until she was almost unconscious. S. punched and kicked R. in the head and face while demanding money. Unable to answer, R. was kicked three more times before S. grabbed her purse and fled the area northbound on King George. She yelled out that there was nothing in her purse except for "rigs" and makeup, but he kept going. She suffered red marks on her neck consistent with choking, red scratches on the left side of her face, and that side was also swollen. She complained of pain and swelling in and around her mouth area. She saw a police officer and described her attacker. The police officer saw S., who matched the description given by R. S. was placed under arrest. After pretending he was going to comply with police, S. began to flee, removing his outer shirt as he went. There was a foot chase. S. was eventually found crouching behind a bush, where he was arrested. [43] Then, while he was in custody pending trial, there were three events which did not result in convictions, but which resulted in disciplinary penalties on July 28th, 2002. He was found to be in possession of contraband. The contraband was three plastic "shanks", which I understand to be homemade knives. That was at Surrey Pre-trial. Then on August 17th, 2002, there was an event in which he was found to have punched and kicked an inmate, again at Surrey Pre-trial. Then on November 4th, 2002, kicking a door at the Fraser Regional Correctional Centre. [44] In terms of the chronology, in early 2003, Mr. S. did take a violence prevention program, which he completed in May 2003. However, during the period of custody, there have been other disciplinary matters which have not resulted in convictions, but that are recorded on the client log. On August 1st, 2004, he was found to be in possession of hash and marihuana in his cell; on September 23rd, 2005, to have assaulted another inmate; and, on November 16th, 2005, to have threatened to kill a correctional officer. [45] I have reviewed the client log which covers the period from September 22nd, 2002, to December 15th, 2005. As counsel for Mr. S. notes, there are also positive entries, for example, that he is polite and respectful. There are periods where there are no comments made for months at a time. I also take into account, in considering that, the institutional setting and the strict rules. But it is clear that Mr. S. has not been a model inmate. That is indicated by the fact that, on September 29th, 2005, he was transferred from the Fraser Valley Regional Correctional Centre, "for negative behaviour, history of problematic in-custody. Inmate has been known to be violent and disruptive, has an assaultive history with peers." [46] I also note at this point that, although there are marked similarities to the events that I have given narratives for in the events involving Ms. P. on January 15th, 2003, which resulted in Count 3 at the trial, and a Ms. G. on February 9th, 2003, I do not consider those events on this sentence. [47] It is also relevant, in terms of considering Mr. S.'s record, that he was in custody from May 27th, 2002 to January 8th, 2003, as set out in Exhibit S11. As I noted, he was arrested on this matter on June 18th, 2003, and has been in custody since. Particularly when one considers the periods of custody for a person his age, Mr. S. has a truly horrendous record. [48] Moving to the effect of the predicate offences on the complainants in the two counts for which Mr. S. was convicted: it has been admitted, and an admission filed as Exhibit S12, that the criminal actions of Mr. S. inflicted injury and severe psychological damage upon G.V., L.R., K.G. and M.H. I have also had the benefit of victim impact statements which are contained within Exhibit S5: those of Ms. V. and an update, which are at Tab 12, pages 10 and 10(a); that of Ms. G., Tab 18, page 51; and that of Ms. H. at Tab 18, page 54. Ms. G. did attend court and read her victim impact statement into the record. [49] I do not intend to quote those statements, but they certainly indicate common themes: a loss of trust of strangers; being fearful when the person was out at night, when that person was out alone, but especially at night; recurring memories of the event even many years afterwards; an adverse effect upon relationships, particularly involving intimacy; problems with sleep and nightmares; problems with depression and mood swings and headaches; and also, in the case of Ms. H., chest pains and trouble in breathing. [50] Dr. Brink gave the opinion that all three of the victims for whom victim impact statements are available had indications of post-traumatic stress disorder. Ms. G., in her victim impact statement, says that she is seeing a psychiatrist for counselling for post-traumatic stress disorder. As it is six-and-a-half years after the event, when Ms. V. did the update on her victim impact statement, and four years after the event when the victim impact statements of Ms. G. and Ms. H. were prepared, obviously Mr. S.'s actions have had long-term and possibly lifelong effects. [51] In a sentencing matter, it is always useful to go back to consider the basic principles as set out in s. 718, 718.1 and 718.2 of the Criminal Code. Under s. 718, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. In order to reach that purpose, a number of objectives are set out: (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 reparation for harm done to victims or to the community, and (f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community. [52] Section 718.1 provides, under the heading "Fundamental Principle": A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [53] The relevant portions of 718.2: A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (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; That is what is commonly referred to as "the totality principle". (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. [54] In this case, it is very difficult to find any mitigating circumstances in the offences themselves. Perhaps the only mitigating circumstances with respect to the offences is that Mr. S. was only 22 years old at the time, is 26 now. Events since then do provide some mitigation. He did take the violence prevention program, which he completed in May of 2003. He has admitted, through his counsel, many of the facts on the long-term offender hearing, including that his actions inflicted serious psychological damage upon Ms. V., Ms. R., Ms. G. and Ms. H. [55] There are, however, many aggravating factors with respect to the offences. The victims involved were vulnerable females, in the one case, a sex trade worker, and the other a small 17-year-old. The nature of the crimes indicate some degree of planning. They were not merely impulsive. For example, he drove Ms. G. to a secluded area and he waited for Ms. H. at the SkyTrain station. The offences both involved the use of a knife, not just as a threat, but actually putting it to the neck of both of his victims. That was combined with threats to kill each of them. His actions certainly show a callous disregard for the harm that he was causing to his victims. As I have already mentioned, he has a horrendous criminal record for a person of his age, particularly when one considers the time spent in custody. Other factors that are aggravating are that there was not any use of condoms, despite the vaginal penetration, thus raising the risk of pregnancy or sexually-transmitted diseases. Both of these offences occurred while he was already on probation. They are what I consider to be very serious offences and involve a high degree of moral culpability on the part of Mr. S. [56] The approach I am going to take to consider the sentencing is first to consider whether a long-term offender designation is appropriate; second, whether or not it is, the determinate period of imprisonment; and third, if the long-term offender designation is appropriate, the appropriate period of community supervision. [57] With respect to the long-term offender designation, the procedure as set out in s. 753.1(1) provides: (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that (a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (b) there is a substantial risk that the offender will reoffend; and (c) there is a reasonable possibility of eventual control of the risk in the community. (2) The court shall be satisfied that there is a substantial risk that the offender will re-offender if (a) the offender has been convicted of an offence under, among others, s. 272, sexual assault with a weapon, and (b) the offender (i) has shown a pattern of repetitive behaviour of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to other persons or inflicting severe psychological damage on other persons, or (ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences. (3) Subject to subsections (3.1), (4) and (5), (which are not applicable), if the court finds an offender to be a long-term offender, it shall (a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for a term of two years, and (b) order the offender to be supervised in the community for a period not exceeding ten years in accordance with s. 753.2 and the Corrections and Conditional Release Act. [58] And then subparagraph (6) provides: (6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted. [59] The leading case in dealing with long-term offender applications is the decision of the Supreme Court of Canada in R. v. Johnson, (2003), 177 C.C.C. (3d) 97, which sets out the approach to be taken with respect to both dangerous offender and long-term offender proceedings. As set out at paragraphs 23 and 28, the court is to be guided by the general principles of sentencing set out in the sections I quoted earlier. As set out in paragraph 24, the court does have a discretion to make the designation even if the statutory conditions are met. [60] The court then goes on to consider the exercise of that discretion, starting at paragraph 28. The court says: Like all discretion exercised in the sentencing context, a judge's discretion whether to declare an offender dangerous must be guided by the relevant principles of sentencing contained in ss. 718 to 718.2 of the Criminal Code. As mentioned above, these include the fundamental principle of proportionality contained in s. 718.1 and, most relevant to the central issue in the present appeal, the principle of restraint enunciated in ss. 718.2(d) and (e), which provide as follows: And those sections are then quoted. The joint effect of these principles is that a sentencing judge must consider the possibility that a less restrictive sanction would attain the same sentencing objectives that a more restrictive sanction seeks to attain. In this case, the sentencing objective in question is public protection: see for example Lyons, [1987] 2 S.C.R. 303 at p. 329, and Hatchwell v. The Queen [1976] 1 S.C.R. 39 ...in which Dickson J. (as he then was) wrote, at p. 43, that the dominant purpose of preventive detention is "to protect the public when the past conduct of the criminal demonstrates a propensity for crimes of violence against the person, and there is a real and present danger to life or limb". Absent such a danger, there is no basis on which to sentence an offender otherwise than in accordance with the ordinary principles of sentencing. The principles of sentencing thus dictate that a judge ought to impose an indeterminate sentence only in those instances in which there does not exist less restrictive means by which to protect the public adequately from the threat of harm, i.e., where a definite sentence or long-term offender designation are insufficient. The essential question to be determined, then, is whether the sentencing sanctions available pursuant to the long-term offender provisions are sufficient to reduce this threat to an acceptable level, despite the fact that the statutory criteria in s. 753(1) have been met. [61] In paragraph 30: ...the three criteria that must be established on a long-term offender application are: (i) it must be appropriate to impose a sentence of imprisonment of two or more years in respect of the predicate offence; (ii) there must be a substantial risk that the offender will reoffend; and (iii) there must be a reasonable possibility of eventual control of the risk in the community. [62] Then at paragraph 32: In those instances where both the dangerous and long-term offender provisions are satisfied, it may be that the sentencing sanctions available under the long-term offender provisions are capable of reducing the threat to the life, safety or physical or mental well-being of other persons to an acceptable level. Under s. 753.1(3), long-term offenders are sentenced to a definite term of imprisonment followed by a long-term community supervision order of a maximum of ten years in accordance with the Corrections and Conditional Release Act. Supervision conditions under s. 134.1(2) of the Act may include those that are "reasonable and necessary in order to protect society". The very purpose of a long-term supervision order, then, is to protect society from the threat that the offender currently poses -- and to do so without resort to the blunt instrument of indeterminate detention. [63] In R. v. Dow, (1999) 134 C.C.C. (3d) 323, at paragraphs 21 to 27, the British Columbia Court of Appeal identified the three elements of a finding under s. 753(1)(a) with respect to a dangerous offender (those not being identical to those required to a finding for long-term offender). The first is that there is a pattern revealed by repetitive behaviour; second, that the pattern contains an element that the dangerous behaviour has not been restrained in the past. That refers to the failure to restrain which is set out in s. 753(1)(a) relating to dangerous offenders and does not appear in the equivalent section relating to long-term offenders. That is s. 753.1(2)(b)(i). The third element is that the likelihood that the same behaviour in the future will not be restrained and will cause death or injury. [64] The court noted that there can be a finding, even if there are differences in the predicate offences, notwithstanding that, that a pattern can be established. [65] In R. v. Langevin (1984), 11 C.C.C. (3d) 336, (also involving a dangerous offender rather than a long-term offender proceeding), the Ontario Court of Appeal found a pattern of repetitive behaviour could be found based on only two incidents if there was sufficient similarity between them. [66] The Supreme Court of Canada in R. v. Currie (1997), 115 C.C.C. (3d) 205, at paragraph 42, noted that the Crown must prove beyond a reasonable doubt the likelihood of future danger that the offender presents to society, but not necessarily by reference to the specific nature of the predicate offences. But the British Columbia Court of Appeal in R. v. Wormell [2005] BCCA 328, on which application for leave to appeal to the Supreme Court of Canada was dismissed, [2005] SCCA 371, held that the Crown was not required to prove beyond a reasonable doubt that there was no reasonable possibility the offender would eventually be manageable in the community. [67] With a long-term offender application, what must be shown is that there is a reasonable possibility of eventual control of the risk in the community. That is dealt with by Madam Justice Proudfoot at paragraphs 31 to 33. She said this: I appreciate that in judgments of this court delivered before R. v. Johnson, the court has said, that the Crown was required to prove beyond a reasonable doubt that there was no reasonable possibility of eventual community control in order to established that the offender was a dangerous offender and not a long-term offender. (R. v. B.R.B., [2002] B.C.J. No. 2363, 2002 BCCA 420 paragraph 13). In my opinion, however, there is nothing in the Supreme Court of Canada judgment in R. v. Johnson to support the proposition that such a burden lies upon the Crown. The task of the court from beginning to end is to ask itself, "Am I satisfied that there is a reasonable possibility of eventual control of the risk in the community?" If the judge concludes that he or she is not so satisfied, then the judge cannot designate the offender a long-term offender. In my opinion, it is not right to approach this with burden of proof at the back of one's mind. Burden of proof, whether it is proof beyond a reasonable doubt or on a balance of probabilities, directs itself to determining past events. [68] Mr. Justice Hill of the Ontario Superior Court of Justice set out a useful statement of the test in R. v. Payne, [2001] O.J. 146 at paragraph 114. He said: The threshold for a dangerous offender finding is a current "likelihood" of causing future harm (s. 753(1)). In the calculus, while the court is entitled to consider treatability, the standard to be applied to the intersect of dangerousness and treatment is unstated. For example, must the court be satisfied to a certainty that treatment will curtail or control any subsisting dangerousness, or eliminate the danger altogether? Predicting further dangerousness is itself a complex enough assignment quite apart from the assessment of the efficacy of treatment. The answer may well lie in the text of the long-term offender provision which permits the court to sentence an individual as a long-term offender where there exists a substantial risk he or she will re-offend but "there is a reasonable possibility of eventual control of the risk in the community" (s. 753.1(1)(c)). Possibility does not of course require anything approaching certainty. [69] That is particularly relevant in this case, as I do have a real concern as to whether the risk to the community of Mr. S. re-offending can be controlled in the community even after intensive treatment in a federal institution. But I accept it as "a reasonable possibility". That test was accepted by Mr. Justice Davies of this court in R. v. D.R.M., [2002] BCSC 775. [70] The third requirement for a finding of a long-term offender was also considered in the Yukon Territorial Court in R. v. Schafer, [2003] YKTC 77 at paragraph 32, as follows: The third requirement, that there is a "reasonable possibility of eventual control of risk in the community" is more problematic. It is problematic in part because it requires an evaluation projected into the future. On the other hand, the standard to be met is a low one, namely "a reasonable possibility" that his risk can be controlled in the community. [71] Applying the tests, then, and that law, to the circumstances of this case, the first requirement that, under s. 753.1(1)(a), that the offence will result in a term of more years is certainly met and there is no issue about that. [72] Subparagraph (1)(b) relates to the substantial risk of re-offending, which will be satisfied under subparagraph (2)(a) if the person is convicted on an offence under s. 272, (sexual assault with a weapon), which has been met in this case, and the offender has shown a pattern of repetitive behaviour that shows a likelihood of causing death, injury or severe psychological damage to others, or by conduct in a sexual matter showing a likelihood of causing injury in the future. [73] Then the third part of the test is the reasonable possibility of eventual control of the risk in the community. [74] Consideration of the risk does require a review of the report of Dr. Brink, Exhibit S6, which will be read together with the responses to inquiries by Crown counsel, which have been filed as Exhibit S10. [75] First, some general comments about the report. I have already referred to the lack of an interview and Dr. Brink's comments on pages 2 to 3 in the report. There are other comments about that throughout the report; for example, on page 4, he said: In the absence of the benefit of a clinical interview, and since no comprehensive psychiatric or psychological assessment report has ever been prepared, I am at the disadvantage of having to formulate, from various sources, some understanding of this man's personality. [76] On page 10, under the heading, "Clinical Impressions and Diagnostic Formulation", he said: While a clinical interview would have assisted me in formulating a clearer understanding of personality and motivational dynamics as well as the willingness and ability to change, I relied upon available information in arriving at some opinion in this matter. [77] Then on page 13, under the heading "Risk Assessment": Ideally, risk assessment also includes a clinical interview, but I have not had that opportunity. This does not, however, preclude the formulation of an opinion of risk which I provide below. [78] There were also other comments in the course of his evidence, and in particular in relation to the administration of the Psychopathy Checklist Revised, which is referred to as the P.C.L.R. - and I will refer to it later - and the Risk for Sexual Violence Protocol, the R.S.V.P. Obviously, if Dr. Brink had more information, and more accurate information, for example, with respect to what he referred to as "pro-social relationships", his opinion might well be of more value and carry more weight. But he has done an extensive review of the materials, including interviews with Mr. S., for example, that in the predisposition report in 1996. [79] In R. v. Pedden, a decision of the British Columbia Court of Appeal, [2005] BCCA 121, on which application for leave to appeal to the Supreme Court of Canada was dismissed, the absence of an interview was considered at paragraphs 36 and 37. Madam Justice Rowles said: When Drs. Zoffmann and Lohrasbe were unable to interview the appellant, they were constrained in the professional opinions they were prepared to offer, that is, making a definitive diagnosis of a specific mental disorder. It seems to me that the reluctance of a psychiatrist to provide a professional opinion on diagnosis or treatment without interviewing the subject is readily understandable and must be respected. Moreover, as Madam Justice Newbury has observed, the Criminal Code does not require the Crown to prove a particular psychiatric diagnosis or to show that the offender will never be treatable in his lifetime. In my respectful view, it was open to the trial judge to draw inferences from the extensive evidence he had before him in order to reach a conclusion about the prospects for treatment within the time frame contemplated by the long-term offender provisions, even though the expert witnesses called by the Crown did not express definitive opinions about diagnosis or treatment. [80] That is not completely applicable to this case in that Dr. Brink did express definitive opinions that Mr. S. has an antisocial personality disorder and is at least at moderate risk to re-offend. Where it does come in is with respect to other diagnoses that he thought possible, but did not have enough information on to give a definitive opinion, particularly related to possible diagnoses of sexual sadism and substance abuse disorder. [81] The other general comments about Dr. Brink's report relate to information in the report which was not properly considered because it was not before the court, on the one hand, and information that was not in the report but was provided later, on the other hand. [82] With respect to the first, matters that were considered in the report, the first is referred to on page 10 and is referred to as "the G. matter". That is not relied on by the Crown. Then, at pages 17 and 18, there is a reference to the P. charge, Count 3 at this trial, and the G. incident in considering the chronicity of sexual violence. On the other hand, Dr. Brink did not have the victim impact statements of Ms. G. and H., nor the updated victim impact statement of Ms. V., nor proof of the completion of the violence prevention program in 2003. However, he was asked, in his evidence with respect to each of those matters if that would have affected his opinion, and said that it would not. He was not challenged on that, and I accept that to be the case. [83] Generally, with respect to Dr. Brink's opinions, they were not challenged and I do accept them. [84] THE COURT: I think I will take the break now and we will continue with the sentencing in about 15 minutes. (PROCEEDINGS ADJOURNED FOR MORNING RECESS) (PROCEEDINGS RECONVENED) [85] THE COURT: Before the break I was commenting on Dr. Brink's report and, as I say, his opinions were not challenged and I substantially accept them. He did provide a clinical diagnosis based on his view of the documents, where they were available, which is set out on pages 10 and 11 as follows: From my review of the available information, it seems that significant emotional and behavioural difficulties emerged during his formative years and have continued into his adult years. Mr. S. is now 25 years of age and has accrued a significant criminal record, a review of which suggests that he is an opportunistic, callous, and uncaring man who has been intimidating, brutal and violent in his interaction with others. While expressing motivation for change and rehabilitation during his earlier years, this clearly has not occurred, and despite repeated opportunity to work cooperatively with the probation officers and enrolment in the violence prevention program, he now stands convicted of sexual offences. [86] I interject at this point to note that he did in fact complete the violence prevention program which Dr. Brink was not aware of when he prepared that report. [87] Continuing on page 10: A review of available information indicates that Mr. S. is not afflicted with a major mental illness, but there is ample evidence of significant personality disturbance and Mr. S. qualifies for a diagnosis of antisocial personality disorder. This diagnosis requires evidence for a pervasive pattern of disregard for and violation of the rights of others occurring since the age of [and he corrected it to] 15 years, and, as indicated, by at least three of the following: (1) failure to conform to social norms with expected lawful behaviours as indicated by repeatedly performing acts that are grounds for arrest, (2) deceitfulness as indicated by repeated lying and the use of aliases or conning others for personal profit or pressure; (3) impulsivity or failure to plan ahead; (4) irritability or aggressiveness as indicated by repeated physical fights or assaults; (5) reckless disregard for the safety of self or others; (6) consistent irresponsibility as indicated by repeated failures to sustain consistent work behaviour or honour financial obligations; (7) a lack of remorse as indicated by being indifferent to or rationalizing having hurt, mistreated or stolen from another. In my opinion, Mr. S. has consistently failed to conform to societal norms as clearly attested by his criminal record. He has been impulsive as well as aggressive with repeated fights and assaults. He has demonstrated a reckless disregard for the safety of others and has been irresponsible in the manner that he has failed to sustain consistent work or honour financial obligations. While Mr. S. has in the past expressed remorse and contrition for his behaviour, it is likely that he regrets the negative consequences on him personally rather than true remorse for the harm inflicted on others. The diagnosis of Antisocial Personality Disorder requires an age of at least 18 years as well as evidence of Conduct Disorder with onset before the age of 15 years. As indicated earlier in this report, it is my opinion that Mr. S. did qualify for a diagnosis of Conduct Disorder during his teenage years. Antisocial Personality Disorder is generally considered to be a severe disturbance and poses a significant therapeutic challenge requiring intensive treatment for change. [88] Dr. Brink also noted as possible diagnoses, Sexual Sadism and Substance Abuse Disorder. As I commented earlier, he was not able to fully assess those without further information and an interview. [89] He then did a risk assessment using a variety of methods. Each has its weaknesses. The P.C.L.R. is not a good predictor of sexual violence recidivism. On cross-examination on his qualifications, Dr. Brink said it is a good predictor for violent offenders, that it has 80 percent accuracy, but is not so good for sexual offenders, but still has accuracy of 60 to 70 percent. But that is based on a North American male prison population, so presumably the level of psychopathy would be considerably higher than that for the population at large. It also seems to have a subjective element. For example, Dr. Brink omitted items 1, 2 and 13, but said other persons doing the test might include them. Whether he rated them as a zero, a 1 or a 2 was dependent on the information available and the clinician's assessment of it. So he said there was a range in the score that he arrived at of plus or minus 3. [90] The Static-99 is based on a study of 1300 inmates in the 1980s and 1990s who were either untreated or treated with programs Dr. Brink said are not as good as the present ones, the present ones being based on research being done since that time. [91] The R.S.V.P. is based on clinical experience and the accuracy and completeness of information. Again, there is a subjective element. It does not give a score from which an actuarial risk can be assessed, so it is also difficult to verify scientifically. [92] In cross-examination on qualification, Dr. Brink conceded that risk assessment is not an exact science, that every individual is difficult, and that it is hard to provide a risk assessment with confidence. However, he did use three different methods and came to consistent results, which does tend to give more weight than would the results of each test individually. [93] On the P.C.L.R., Mr. S. had a score of 27.5, which does not put him in the range of being a psychopath - that requires a score of over 30 - but does, even allowing the range of plus or minus 3, indicate significant psychopathic traits. On the Static-99, Mr. S.'s score of 5 puts him in the moderate to high-risk category. At page 16 of the report, Dr. Brink said: A score of 5 places Mr. S. in the moderate to high risk for future sexual offending. In this group, the sexual offence recidivism rate is 33 percent, five years post release, rising to 38 percent ten years after, and 40 percent 15 years after release. The Static-99 also allows for violent recidivism probability rate, sexual and non-sexual [as corrected], and Mr. S.'s score indicates that similar scoring individuals pose a 42% for violent recidivism after five years rising to 48% after ten years and 52% after 15 years. [94] I note that I made an amendment to change the latter statistic from non-sexual in accordance with Dr. Brink's evidence. Then it continued: The PCL-R score indicates a moderate to high risk for general and violent re-offending and a moderate to high risk for both non-violent and violent sexual offending as indicated by the Static-99. [95] The percentages from the Static-99 are likely unduly pessimistic because, as I noted earlier, it was based on a cohort of 1300, in effect, untreated offenders in the 1980s and 1990s. [96] But then he did the R.S.V.P., which is an assessment of 22 risk factors ranging from chronicity of sexual violence to problems with employment, and came to the conclusion, on page 24: An assessment of his risk for future sexual re-offending, using the RSVP, indicates that 15 of the 22 factors are either partially or fully endorsed while three items are omitted because of lack of information. Three of the five sexual violence history risk factors are either fully or partially endorsed, while three of the five psychological adjustment factors are either partially or fully endorsed. Similarly, three of the five mental disorder items are partially endorsed while all four of the social adjustment items were partially or fully endorsed, as are all three of the manageability items. The RSVP assessment therefore suggests that Mr. S. possesses at least a moderate risk for future sexual violence. [97] So his overall conclusion, then, continuing on page 24: From my review of available information and risk assessment, it is my opinion that Mr. S. requires a high level of effort and intervention to prevent him from committing future acts of sexual violence. In my opinion, there is at least a moderate risk that any future sexual violence would involve serious or life-threatening physical harm. While Mr. S. has not inflicted serious physical harm on any of his victims, his emotional volatility and proclivity for using edged instruments to ensure submission constitutes high-risk areas in which serious harm could easily occur. Mr. S. is presently incarcerated and therefore does not pose an imminent risk of sexual violence to women. However, should he be released to the community, I would recommend that immediate action be taken so as to prevent what I would consider a significant risk for serious sexual violence. In addition, I believe that he poses a definite and substantial risk of general non-sexual violence or criminality. It would, therefore, appear that an assessment of risk base on the RSVP is in broad agreement with that indicated by the Static-99 and the Psychopathy Checklist Revised, and also echo my clinical impressions of him. [98] As to what he meant by the term "significant risk", that is addressed in the letter in response to Crown counsel's inquiries, in which he said: By "significant", I mean "at least moderate". I use the term "significant" to include any risk that is not insignificant, thus, it could be low-moderate, moderate, moderate-high or high. Using the Static-99 alone, the risk for sexual re-offending (with or without treatment) is 33% during the course of the first 5 years after release, 38% over the first 10 years after release, and 40% over the first 15 years post-release. This, to me, would indicate at least a moderate risk. This opinion seems to be supported when the RSVP is used, although this instrument does not provide actuarial probability tables and invites the assessor instead to formulate an overall opinion having considered all 22 items. In my opinion, the risk for future sexual violence, considering clinical impressions, Static-99 and RSVP is at least moderate. [99] In his direct examination, Dr. Brink said: It is still the wisdom that the best predictor of future behaviour is past behaviour. And, of course, in Mr. S.'s case, that in itself raises a serious risk. [100] As to the prospect of eventual control of the risk in the community, that is dealt with also in the letter in response to Crown counsel. Dr. Brink said: From my experience with serious sex and violent offenders, I am cautiously optimistic and believe that there is reasonable possibility that he may well respond favourably to sex offender and other programs, and would likely be a manageable risk in the community following a lengthy period of incarceration. [101] So, based on Dr. Brink's opinions, which I accept, and also my own assessment of the evidence, I am satisfied beyond a reasonable doubt, under subsection (2)(b)(i) that Mr. S. has shown a pattern of repetitive behaviour which shows a likelihood of him causing death, injury or severe psychological damage to others in the future. That pattern is characterized by choosing as his victims vulnerable women; by the use of a knife; by robbery or threat of robbery; by sexual assault including rape; and by threats to kill. Not all of those elements appear in all of the more serious offences, the two predicate ones and the ones involving Ms. R. and Ms. V., but they do appear in both the predicate offences and they certainly show a clear pattern. [102] Under subsection (2)(b)(ii), for the same reasons, the conduct in the sexual matters for which he has been convicted, does show a likelihood of causing injury in the future. Again, I am satisfied of that beyond any reasonable doubt. [103] I thus am satisfied beyond a reasonable doubt, pursuant to subsection (1)(b), that there is substantial risk that Mr. S. will re-offend. That is of particular concern in light of the use of the knife and the threats to kill that have arisen in a number of his convictions. But I do also find, using the low threshold of "some possibility", pursuant to subsection (1)(c), that there is a reasonable possibility of eventual control of risk in the community, in light of the facilities which are available in the community for the supervision of a person under a long-term supervision order. [104] As noted in the Johnson case, even if the statutory criteria have been met, which I find they have, there is a discretion in the court to find that offender is not a long-term offender. I am satisfied in this case that the discretion should be exercised to find that Mr. S. is a long-term offender pursuant to s. 753.1, and I so find. [105] Moving then to the period of imprisonment to be imposed, the determinate sentence, the Crown has provided me with a number of authorities. First, on the general principles, the leading decision of the Supreme Court of Canada is in R. v. C.A.M. (1996), 46 C.R. (4th) 269. Chief Justice Lamer, in the context of a discussion as to whether retribution is a legitimate principle in sentencing, (which he found it is), said, at paragraph 80: Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more. [106] And in paragraph 81: Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicial sentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. [107] And then at paragraph 82: As a closing note to this discussion, it is important to stress that neither retribution nor denunciation alone provides an exhaustive justification for the imposition of criminal sanctions. Rather, in our system of justice, normative and utilitarian considerations operate in conjunction with one another to provide a coherent justification for criminal punishment. As Gonthier J. emphasized in Goltz, [1991] 3 S.C.R. 485, at p. 495, the goals of the penal sanction are both "broad and varied". Accordingly, the meaning of retribution must be considered in conjunction with the other legitimate objectives of sentencing, which include (but are not limited to) deterrence, denunciation, rehabilitation and the protection of society. Indeed, it is difficult to perfectly separate these interrelated principles. And as La Forest J. emphasized in L (T.P.) [1987] 2 S.C.R. 309, the relative weight and importance of these multiple factors will frequently vary depending on the nature of the crime and the circumstances of the offender. In the final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a "just and appropriate" sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender. [108] With respect to ranges that are set out for various offences, I have been referred to R. v. Bernier, a decision of the British Columbia Court of Appeal, (2003), 177 C.C.C. (3d) 137, in which Madam Justice Southin, at paragraph 42, set out that ranges are not conclusive, that the focus should be on the codified principles. [109] With respect to the length of the period of imprisonment, Crown counsel referred me to R. v. Blair, [2002] BCCA 205, leave to appeal to the Supreme Court of Canada dismissed, [2002] SCCA 250. That was a case involving a conviction for sexual assault. The trial court judge imposed a sentence of seven years in addition to the two years the offender had already spent in custody, (which would be equivalent to an eleven-year sentence, applying the normal two-for-one rationale), together with ten years supervision under a long-term supervision order. That decision was upheld two to one. Madam Justice Southin would have upheld the seven-year determinate sentence, but reduced the period of long-term supervision to five years. The appellant in that case had a lengthy criminal record, and the incident resulting in the conviction did involve a serious assault. [110] From the reasons for judgment at trial, which are quoted in paragraph 8 of the Court of Appeal decision, in particular subparagraphs (4) and (5): According to the complainant, the appellant shoved her to the ground and sat on top of her. The complainant said she was pleading with the appellant not to hurt her and she screamed out for help. She said that the appellant grabbed her by the hair and repeatedly slammed her head against the cement and had her by the shoulders and threw her up and down against the ground and against her car and another nearby car. She said that at one point the appellant held her head down against the lot surface and briefly stuck his tongue in her mouth. The appellant said in his evidence that he was angry at the complainant for attacking him, that he stuck his tongue out at her and it accidentally went between her lips. This was the activity that was alleged to constitute the sexual component of an assault. The complainant said that she was being choked by the appellant and she began to lose consciousness. At this point, the complainant heard a man saying, "What are you doing?" and then the appellant let go of her and fled...A waitress at the bar, who had observed the complainant immediately after the incident, described her condition as "brutal". She said that the complainant's clothes were ripped and torn, her shoulders were bruised and bleeding and she had a large bump on the back of her head. The waitress also said that the complainant was not intoxicated. [111] Counsel for Mr. S. seeks to distinguish that case on the basis of the aggravated nature of the assaults, but it is significant that it did not involve the use of a knife, there is no indication of death threats, and the sexual assault can only be referred to as a relatively minor one. If anything, the facts in that case are less egregious than the facts resulting in the convictions in this case. [112] Next is R. v. Muhammed, [2004] BCCA 396, which involved a sexual assault of a sex-trade worker with a weapon-the weapon in that case was a knife. The trial court judge imposed a sentence of five years, and considered the lack of remorse an aggravating factor. The Court of Appeal said that that is not an aggravating factor, that if there is remorse, it is a mitigating factor. However, they still upheld the five-year sentence. That case involved a 20-year-old offender. It is unclear if he had a criminal record, but he had what is referred to as "a difficult background". Mr. Justice Hall, in the Court of Appeal, did note the vulnerable position of people in the sex trade. [113] Then, in R. v. Brown, British Columbia Court of Appeal, [1991] B.C.J. No. 3527, the trial court judge imposed a sentence of nine years for a sexual assault while threatening the use of a weapon, a knife, and five years concurrent for unlawful confinement. That decision was upheld on appeal. I am referring to the headnote. The court emphasized that crimes of violence must be treated severely, particularly where they involve women. Here there was violence against the victim and the threat to use the knife on both her and her baby, a markedly aggravating circumstance. The appellant had no history of sexual assaults. His record indicated, however, that he had little regard for the norms of a civilized society. He did have convictions on two counts of assault. The purpose of the sentence here must be one to protect women by isolating and deterring persons who were capable of this type of behaviour. The sentence was not so high as to warrant interference. As noted, in that case there were no prior convictions for sexual assault. [114] The Crown also referred me to cases as to whether the sentence should be concurrent or consecutive, as they related to the totality principle. This was considered by the British Columbia Court of Appeal in R. v. G.P.W., [1998] B.C.J. No. 838. Mr. Justice Lambert, although dissenting in the result, at paragraph 35, after referring to the decision of the Supreme Court of Canada in R. v. (M.(C.A.) [1996] S.C.R. 500, R. v. McDonnell, [1997] 1 S.C.R. 948, commenting on the case I quoted earlier, said at paragraph 35: I understand that passage and its application to cases where the sentences are made concurrent or consecutive in accordance with principles which govern the intrinsic appropriateness of making sentences concurrent or consecutive; most usually, by deciding whether the acts constituting the offence were part of a linked series of acts within a single endeavour. But where the sentences ought to be consecutive, having regard to the nature and timing of the offences, but some are made concurrent in order to produce what is thought to be the just and appropriate total sentence, then the question for a Court of Appeal in relation to whether the sentences are properly made concurrent or consecutive, becomes absorbed for the Court of Appeal, as it was absorbed for the original sentencing judge, in the question of whether the totality of the sentences was a fit totality in all the circumstances. [115] In the M.(C.A.) decision of the Supreme Court of Canada, at paragraph 42, Chief Justice Lamer said: In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the "totality principle". The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. [116] In this case, there have been two convictions involving two separate events on two dates. They are certainly not part of "a linked series of acts within a single endeavour", in Mr. Justice Lambert's words, so I am satisfied that the sentence should be consecutive, rather than concurrent. But the approach must then be to consider the sentences together to determine if the aggregate sentence "exceeds the overall culpability of the offender", using Chief Justice Lamer's words. [117] Later on, in paragraph 42 in the M.(C.A.) decision, Chief Justice Lamer did adopt the statement of Clayton Ruby in his book on sentencing, (Principles of Sentencing, 2nd ed., 1979) at pages 44 to 45, in which he said: The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate "just and appropriate". A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects. [118] Defence counsel has referred me to two cases on the period of imprisonment. The first one is the decision of the British Columbia Court of Appeal in R. v. Chinnick [2005] BCCA 346. That case involved a guilty plea to a charge of sexual assault with a weapon, a knife. The sentence at trial was four years. The accused's appeal from that sentence was dismissed. Counsel for Mr. S. submits that the circumstances are very similar, in particular, to the sexual assault involving Ms. H. It involved a vulnerable female who was age 17, it involved the use of a knife, and there was an attempted rape. But there are significant distinguishing features in that case. The accused had no prior criminal record. He expressed remorse immediately. He appeared to express empathy after the assault. He pled guilty promptly and he was considered to be a moderate to low risk for re-offending. [119] The other case referred to by defence counsel is R. v. Niedermier, [2005] BCCA 602. In that case, the appellant appealed a five-year sentence on a conviction of four counts of unlawful confinement of women who were in the sex trade. One of those convictions was set aside. There were similarities in the circumstances in each of the offences, but the most serious is described in paragraph 3 as follows: The first confinement was the most serious. The victim went to a hotel with Niedermier. She was kept in a room there against her will for between 24 and 40 hours. During that time she was physically abused, sexually assaulted, and humiliated. Most of the time she was forced to sit naked on a chair with her hands tied behind her back. Niedermier insulted her, struck and choked her, and burned her with cigarettes. He took pleasure out of taunting and striking fear into her to the point where she was terrified of him and what he might do to her. The confinement ended only when the victim persuaded Niedermier to let her go and buy him some cigarettes. She was thereby able to escape. The jury convicted Niedermier on four counts: unlawful confinement, sexual assault, aggravated assault, and assault with a weapon. [120] The circumstances in all of the offences resulting in Niedermier's convictions were very degrading. The Court of Appeal in that case did note the serious criminal record of the offender. As it was expressed, this would not be "his first sentence to be served in a federal penitentiary." The court also noted his history of violence and taking advantage of women in the sex trade. So the Court of Appeal upheld the sentence, notwithstanding that one of the convictions had been set aside. [121] The case was distinguished by Crown counsel, as only the first case involving a sexual assault, the other convictions being for unlawful confinement. None of the cases involved a weapon like a knife or threats to kill the person. [122] In this case, Dr. Brink recommends extensive and intensive treatment for Mr. S., and considers him to be at least a moderate risk for re-offending. Much of that treatment, he indicates, is available only within the federal institutional setting, in particular, the sex offender treatment program. [123] On page 25 of his report, he says: Mr. S. requires intensive treatment for his personality deficits and sexual and non-sexual violent attacks on vulnerable persons. The intensity of treatment required is available neither in the community nor in provincial correctional facilities. A suitable program, however, is offered at the Regional Treatment Centre in Abbotsford -- He changed that to what is now the Pacific Institution. -- where a nine-month multi-faceted, intensive treatment program for personality disturbance, sexual deviance and general behavioural difficulties is available. In my opinion, this program offers the best prospect of providing Mr. S. with the intensity of therapeutic intervention that he requires. Some offenders are, however, unable or unwilling to benefit sufficiently from the program on their first effort and are required to repeat the program before reinforcing and practising their newly acquired insights and skills in a lower level security institution and in relapse prevention based follow-up. [124] He also noted that before taking that course, it would likely be necessary for Mr. S. to take two three-month lead-up courses. That is as noted at the bottom at page 25 said: It is the usual practice in Correctional Services Canada that seriously disturbed offenders are required to demonstrate success in lower level core programs such as the Living Without Violence and the Cognitive Skills program before they are deemed suitable for intensive sex offender programming. From my experience in Correctional Services Canada, the prognosis depends strongly not only on successful completion of an intensive treatment program, but also in participation in and demonstrated benefit from follow-up programming and the ability to demonstrate internalized acquired skills. In my experience, the institutional induction and assessment phases at federal incarceration, completion of core programs followed by intensive sex offender programming and subsequent relapse prevent-based programs, as well as demonstrated evidence of enduring benefits in lower security institutions, requires several years at least to complete and, at minimum, probably in the 3-5 year range. [125] It is on the basis of that comment that defence counsel makes his submissions as to the appropriate period of imprisonment in this case. [126] I note that, despite having successfully completed the violence prevention program, Mr. S., based on the client log of the time he has been in custody, still seems to be a violent individual. There is certainly no reason to think that he would proceed through all of the necessary courses without any stumbling blocks, particularly in light of his non-cooperation with the various programs while he was on probation, and his unwillingness to be interviewed with respect to the personality factors, by Ms. Bondar, on the forensic psychiatric assessment ordered on a previous conviction, or in the interview by Dr. Brink. In fact, there is no indication, apart from his completion of the violence prevention program, that Mr. S. has recognized his problems and is willing to take effective steps to remedy them. [127] Considering the nature of these offences, they were brutal, they were predatory and they involved terrorizing his victims. In terms of s. 718.1 of the Code, they are very grave offences and they indicate a high degree of responsibility of the offender. They are offences that call for both retribution and denunciation. However, the primary goal in this matter must be protection of the public. [128] With respect to Count 1 involving Ms. G., he preyed on a sex-trade worker, a person who is vulnerable. There was planning as indicated by taking her to a secluded area. He held a knife to her neck and he used force to attempt anal penetration and to perform vaginal penetration. After these events, he in effect dumped her in the secluded area, showing a callous disregard for the effect upon her which has, obviously, been very significant and long-term. [129] With respect to Count 2, the victim was a young woman, 17 years of age, and small, four-foot-eleven inches, 93 pounds. She was a virgin. Again, she was a vulnerable female. He held a knife to her throat; he poked her with the knife; he made threats to kill her. There was vaginal penetration, and then he left her lying on the ground, again showing a callous disregard for the effect on her. Again, there have been very serious effects in terms of long-term psychological injury. [130] So both of these offences are very grave offences. Both show a high degree of moral culpability on the part of Mr. S.. As I say, they call for denunciation of the acts as well as the deterrence of Mr. S. and others, and most importantly, call for protection of the public, which I am satisfied can only be done by a lengthy period of imprisonment. Women should be able to walk on the streets at night without fear of sexual predators like Mr. S.. I am not satisfied that there is any way that that risk can be minimized at the present time if Mr. S. is allowed back into the community. [131] I find that he does pose a significant risk to the public, and that he is likely to be such a risk despite the best efforts available at treatment through Corrections Services of Canada. So I consider this case to be on the upper end of the scale, more comparable to the circumstances in the Brown and Blair cases than to those in Muhammed, Chinnick and Niedermier. [132] I thus impose a sentence of nine years imprisonment on each count, to be served consecutively. However, in applying the principle of totality, that will be reduced in total to what appears to be the upper end of the scale for offences of the nature of those committed by Mr. S. So that will be 12 years. [133] He will be entitled to a credit of two-for-one for the time he has been in custody. I calculate that to the nearest month to be two years and eight months. So the credit will be five years and four months. So the further period of imprisonment will be six years and eight months. [134] Dealing next then with the period of community supervision under the long-term offender order, the Crown asks for the maximum of ten years. Dr. Brink also recommended ten years. He said that even after a lengthy jail term and involvement in intensive programs, there is still a need for a long-term period of supervision to minimize the risk to the public. He noted Mr. S.'s poor history of success in community supervision in the past and the need for relapse prevention programs. He also gave evidence that an antisocial personality disorder, such as that diagnosed for Mr. S., is very difficult to treat, that it does require what he called "a comprehensive restructuring of his life", enabling him to form new relationships, establish employment and develop some financial security. It was Dr. Brink's opinion that Mr. S. would not be able to do that without supervision. Again, I accept that opinion. [135] Dr. Brink noted that that supervision is not a punitive thing, but rather is intended to provide a support structure of significant benefit to Mr. S. He considered that Mr. S. needs more structure than he can impose himself, I am in agreement with that. [136] Ms. O'Flanagan, the parole officer, gave evidence of the supervision and facilities that are available. There is also information in the document that was filed as Exhibit S13. [137] With respect to the period for supervision, that was considered in the Blair case. It is the decision of the British Columbia Court of Appeal, [2002] BCCA 205, which I referred to earlier. The court noted that the period of imprisonment and the length of the supervision order are to be treated as separate sentences requiring different considerations. That is as set out by Madam Justice Huddart at paragraphs 36 and 37, which I do not think I need to quote. [138] She then went on at paragraphs 49 to 50 to say: Conditional release, under the Corrections and Conditional Release Act, S.C. 1992, c. 20, has as its primary goal the protection of society by way of release timing and conditions that promote rehabilitation of offenders and their reintegration into the community as law-abiding citizens (ss. 100 and 101). Special emphasis is given to the protection of society in the provisions relating specifically to long-term offenders (ss. 134.1 and 134.2). That emphasis is reflected in the provision of the Criminal Code making breach of a supervision order an indictable offence. An assessment of the risk of reoffending will be at the root of the determination of the appropriate period of supervision of a long-term offender, as it is to the designation itself. However, the emphasis will be on measures to control a risk already judged to be susceptible to "eventual control in the community". Evidence of past conduct and the possibility of effective treatment or burnout will be central to a trial judge's determination of what is needed by way of prevention measures following the expiry of the sentence for the predicate offence. The age, character, personal attributes, and family and community support will be relevant to the latter. The circumstances of the predicate offence will be relevant to the former. [139] She noted that there are protections for an offender. Those are set out in paragraph 57, in which she referred to the ability of the Supreme Court to reduce the length of the period of supervision on application by the accused or parole authorities upon proof of a reduced risk, and the ability of the National Parole Board to set conditions it deems appropriate from time to time for the protection of society. [140] In this particular case, take into account the opinion of Dr. Blair, that even after a lengthy period of intensive treatment, that Mr. S. will pose a significant risk to the community, if he is in the community. I considered his evidence regarding the difficulty in treatment antisocial personality disorder; the need for a structure when Mr. S. is released to the community; the programs and facilities that are available; the nature of the offences, and, the significant risk of re-offending and, in the event of re-offending, the potential for serious harm, both physical and psychological, to the victims that Mr. S. raises. I am satisfied in those circumstances that there should be a lengthy period of supervision in the community, and so I accept the recommendation of Dr. Brink that there be a ten-year period of supervision. [141] I am not going to make any recommendations with respect to the conditions as suggested by Dr. Brink and Crown counsel. I consider that the parole officer and the National Parole Board will be in a better position to set those conditions depending on Mr. S.'s progress while he is in custody. All of those suggested by Dr. Brink are ones which can be imposed if deemed necessary at the appropriate time by the National Parole Board. [142] Finally, the Crown seeks a number of ancillary orders which are not opposed and will be granted. First, there will be an order in Form 5.03 that authorizes the taking of samples and requires Mr. S. to provide any number of samples of one or more bodily substances as reasonably required for the purpose of forensic D.N.A. analysis, pursuant to s. 487.051(1)(a) of the Code. [143] There will be an order in Form 52 that Mr. S. comply with the Sex Offender Information Registration Act for a period of 20 years, pursuant to s. 490.012 of the Code. [144] Mr. S. will be prohibited for life from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, pursuant to s. 109. [145] Finally, there will be an order, pursuant to s. 760 of the Code that a copy of all reports and testimony given by psychiatrists, psychologists, criminologists and other experts, and the reasons for judgment on conviction and these reasons on sentencing, and a transcript of the trial be forwarded to Correctional Services of Canada. [146] That completes my reasons on the sentencing. Anything arising from either counsel? [147] MR. DICKEY: No, My Lord. [148] MS. RAIL: Just two points, My Lord. On the attribution of the counts, how should the record be endorsed with respect to Count 1 and Count 2 if Your Lordship is, in essence, providing a further six-year, eight-month sentence. Would that be on six years, eight months, concurrent on each count, 1 and 2? [149] THE COURT: No, I do not think it is necessary for me to do that. I found that they should be imposed consecutively, because they are separate incidents. I then applied the totality principle to reduce the total to 12 years, which is more than each individual one, and applied the credit to the total of 12 years to give the additional period in custody which I have set out, which is more than would be required on either of the individual offences if credit was given for the time in custody. I do not think it would be appropriate for me, having determined that the sentences are to be consecutive and then applied the totality principle, to then make them concurrent. [150] MS. RAIL: My Lord, with respect, it is required that the clerk be able to attach a particular number to each count. May I suggest that Count 1 could be three years, four months, consecutive to Count 1, which would also be three years and four months. [151] THE COURT: Yes. That is a reasonable way to deal with it, I think. The sentence is equal on both, the credit applies to both, so that would be a further term of imprisonment on each of three years, four months, for the total of six years, eight months. That seems a reasonable way to deal with it. [152] MS. RAIL: And may I also ask, My Lord, that the record reflect on each count that he has spent 32 months in custody, so that the criminal record reflects that in future. [153] THE COURT: Yes, all right. So he is entitled to half of the credit to each, so two years and eight months on each count. [154] MS. RAIL: Actually, My Lord, that might become confusing in the future because someone looking at the record would not realize that that is being counted twice. So it should read, on each count, 32 months in custody on each count. [155] THE COURT: Yes, that is the two years, eight months. [156] MS. RAIL: Yes, 32 months, because when one looks at that record in the future, we know it has to be doubled. [157] THE COURT: Okay. I cannot see that it makes any difference whether we call it 32 months or two years, eight months. [158] MS. RAIL: Oh, it does not matter. But just that it is attached to each of Count 1 and 2. [159] THE COURT: Yes. That is right, on each. [160] MS. RAIL: Thank you, My Lord. And just the last matter, I have a copy of the order under the Sex Offender Information Registry Act, and I will ask for the court to sign it on the bottom right box, the top box, and date it, and that it be filed. [161] THE COURT: Okay. Yes, this is the order in Form 52 under s. 490.012 and I have signed it. [162] MS. RAIL: Thank you, My Lord. I would ask that that be filed. [163] THE COURT: Yes. (EXCERPT CONCLUDED) "A.F. Wilson, J." The Honourable Mr. Justice A.F. Wilson"