



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Power,









2010 BCCA 21




Date: 20100114

Docket:
CA037574

Between:

Regina

Respondent

And

Harold
Garrett Power

Appellant

RESTRICTION ON
PUBLICATION:  AN ORDER HAS BEEN MADE IN THIS CASE PURSUANT TO SECTION 486.4 OF
THE
CRIMINAL CODE
THAT PROHIBITS ANY INFORMATION THAT COULD IDENTIFY THE
COMPLAINANT[S] OR WITNESS[ES] BEING PUBLISHED, BROADCAST OR TRANSMITTED.






Before:



The Honourable Mr. Justice Donald





The Honourable Madam Justice Levine





The Honourable Mr. Justice Lowry




On
appeal from:  Supreme Court of British Columbia, October 14, 2009
(
R. v. Power
, 2009 BCSC 1514, Vancouver Docket 24239)

Oral Reasons for Judgment




Appellant appearing In Person (in
  custody):






Counsel for the (Crown) Respondent:



S.J.
  Brown





Place and Date of Hearing:



Vancouver,
  British Columbia

January
  14, 2010





Place and Date of Judgment:



Vancouver,
  British Columbia

January
  14, 2010








[1]

LOWRY J.A.
: The
applicant seeks leave to appeal and, if granted, appeals a sentence of
18 months imprisonment followed by two years probation imposed on him by a
Supreme Court judge before whom he was tried and found guilty of one count of
sexual exploitation under s. 153(1)(a) as it stood at the time. He contends the
sentence is unduly harsh and the judge erred in not giving proper consideration
to a conditional sentence order. He also contends two terms of the probation
order are unnecessarily restrictive. The reasons given for the sentence imposed
are indexed as 2009 BCSC 1514.

[2]

The applicant is a 53-year-old criminal lawyer
who represented the complainant in Youth Court proceedings on various occasions
during 2004. The complainant was, at the time of the offence, an aboriginal boy
of 14 years of age. The applicant encountered the complainant coincidentally
one evening in August of that year after the complainant had been thrown out of
his house and was in need of a place to stay. The applicant invited him to
drive around with him for a time and then he invited him to spend the night at
his apartment. The judge described what happened as follows, referring to the
complainant as J.I.:

[8]  Mr. Power took J.I. to his
penthouse suite in New Westminster. In the living room of the suite was a pool
table and mini-fridge containing beer and other alcoholic drinks. Mr. Power
invited J.I. to play pool and offered him a cooler. J.I. accepted. He drank two
coolers at Mr. Powers invitation. He had never consumed alcohol before
that night. Mr. Power then told J.I. that his brother was visiting so J.I.
would have to sleep in Mr. Powers bed. J.I. agreed.

[9]  Mr. Power put on a pornographic
video in the bedroom. J.I. remained dressed in his soccer pants and t-shirt. Mr. Power
got undressed and into bed. After watching some of the video, Mr. Power
invited J.I. to masturbate. J.I. declined. Mr. Power then put his hand
down J.I.s soccer pants, following which he performed oral sex on J.I. J.I.
was too shocked and surprised to resist. He recalled ejaculating and then going
to sleep.

[10]  The next
morning Mr. Power gave J.I. money for breakfast and asked him to leave. No
such encounters occurred again. Neither spoke of the incident subsequently. Mr. Power
continued to represent J.I. from time to time for approximately 18 months. That
representation ended in the spring of 2006, when J.I. went to police at the
urging of adults he knew and gave a statement concerning the sexual interaction
with Mr. Power in August of 2004.

[3]

The judge then outlined the applicants
background which reveals that he has for many years suffered from alcohol abuse
and has long had a sexual attraction to adolescents. The judge reviewed and
quoted the more pertinent passages of the psychological assessment outlined in
a pre-sentence report furnished to the court. She stated in particular:

[22] 
Dr. Hervé noted that despite Mr. Powers assessed risk level,
treatment needs, and treatment prognosis, based on his recent community
functioning he appeared to be a good candidate for community supervision.

[4]

After reviewing the positions taken by the Crown
and the defence, the judge discussed the governing principles and then turned
to consider a conditional sentence having regard for the prerequisites
established in
R. v. Proulx
, 2000 SCC 5, [2000] 1 S.C.R. 61. She
considered that, although it was said the applicant may be an appropriate
candidate to serve his sentence in the community, he was assessed as a low to
moderate risk to re-offend, which gave her concern that he continues to be a
risk to the community. But she considered the greatest difficulty in imposing a
conditional sentence lay in the requirement that it had to be consistent with
the principles and purposes of sentencing. She recognized that, given the
nature of the offence, involving as it did the abuse of a young person, primary
consideration was to be given to the objectives of denunciation and deterrence.
The principle is now codified in s. 718.01 of the
Code.
The judge
expanded on the importance she attached to the unique position of trust and
dependency the applicant held as the complainants lawyer in concluding:

[52]  ... that a
fixed term of incarceration is necessary to bring home the significance of the
offence and the consequences that will be visited on those who commit such
offences.

[5]

The applicant says the judge failed to give
adequate reasons for refusing to impose a conditional sentence and failed to
give proper effect to the psychological assessment that he appeared to be a
good candidate for community supervision. But I see no merit in what the
applicant says in this regard. As I have outlined them, the judges reasons as
to why she considered the primary objectives of sentencing would not be
adequately addressed by other than a term of incarceration are clear and quite
complete. She did not overlook the psychological assessment but dealt
specifically with whether community supervision would be appropriate. As
indicated, she had concern the applicant posed a continuing risk to the community.
She said that on that aspect of the evidence it was a very close call but
ultimately rejected a conditional sentence on the basis of the mandated
objectives that she considered required incarceration. I see no basis on which
this Court should interfere with what was an exercise of the judges
discretion:
R. v. Proulx
at paras. 123-126 and
R. v. Labrash,
2006
BCCA 357 at paras. 21-22.

[6]

After deciding a term of incarceration was
warranted, the judge turned to consider the range of sentences for offences of
this nature and commented on the governing authority. She noted the applicant
had no criminal record but said there was no guilty plea or expression of
remorse to mitigate the sentence. She concluded:

[57]  I have already outlined the factors
which, in my view, require a definite prison term. The sexual assault took
place on one occasion only, but that cannot surely be viewed as a mitigating
factor. There was nothing impulsive about the assault. There was guile and
manipulation involved. It was a very serious and highly intrusive assault. Mr. Power
committed fellatio on J.I. Before that, he plied him with alcohol and showed
him pornographic videos. J.I. was sexually inexperienced before that time and,
most importantly, of course, Mr. Power had acted as J.I.s lawyer.

[58]  In this case, as noted, the sentencing
principles require the greatest emphasis on denunciation and deterrence. I have
considered the other principles, but these must receive the greatest attention.
As noted by Bennett J. in [
R. v. Lennax
, 2008 BCSC 1761] at
para. 45:

Children are entitled to be protected in
society and by our courts. The only way the courts can denounce such crimes [as
this] is by the imposition of a sentence.

[59]  As observed by Newbury J.A. in
R.
v. Ashley-Pryce
, 2004 BCCA 531, the case law reflects the very serious view
taken by the courts of offences involving the sexual exploitation of persons
under the age of 18 by persons in positions of authority or trust. In that case,
the Court of Appeal upheld a sentence of 18 months incarceration for a
healthcare worker who masturbated himself by holding the hand of an elderly
female Alzheimers patient. He was convicted of one count of sexual
exploitation under s. 153. He had pled guilty to the offence and, due to
the conviction, had to move his family from the small community.

[60]  While I am
not persuaded that a penitentiary term is appropriate in this case, I am
persuaded that a significant reformatory term is required. I will, therefore,
be imposing a sentence of 18 months followed by two years of probation.

[7]

The applicant says the judge overemphasized
denunciation and deterrence and made no mention of the prospects of
rehabilitation. This, he says, led her to impose a sentence that was unduly
harsh and unfit. He maintains the judge wrongly treated the absence of a guilty
plea as an aggravating factor and thus erred in principle.

[8]

Again, I see no merit in what the applicant
contends. I do not consider the judge to have treated the absence of a guilty
plea as an aggravating factor, but merely to have pointed out there was no
mitigating factor that could be attributed to an expression of remorse. Further,
in my view, there is no sound basis on which it can be said the sentence was unfit.
As the Crown points out, the applicant was in a unique position of trust and
the complainant was particularly dependent upon him at a very troubled time in
his young life. The applicant invited the complainant to his apartment for the
night even though he was sexually attracted to adolescent males. Given the
complainants age and circumstances, the applicant knew he was particularly
vulnerable and took advantage of him.

[9]

A couple of times in her reasons, the judge
referred to the offence the applicant committed as a sexual assault when she
ought to have said sexual exploitation, but her having done so is of no
particular consequence now. She was not confused about the charge. The sentence
imposed cannot be said to be inconsistent with what has been imposed for the
offence of sexual exploitation:
R. v Ashley-Pryce,
2004 BCCA 531.

[10]

The applicant says that two provisions of the
probation order are unnecessarily restrictive. The first, Condition 9,
prohibits his having contact with children under the age of 16 years unless
accompanied by an informed adult approved by his Probation Officer. He says the
provision need do no more than prohibit his being alone in the company of a
person under the age of 16 years. The provision is unduly broad and would be
adequate, and consistent with the offence of which the applicant was convicted,
if the worded as by this Court in
R. v. R.R.M.
, 2009 BCCA 578 consistent
with what the applicant seeks.

[11]

The second provision, Condition 11, prohibits
the applicant from attending playgrounds, school grounds, public parks,
community centres or other sites where children may congregate unless
accompanied by an informed and approved adult. The Crown acknowledges that the
words or other sites where children may congregate constitute a vague phrase
that is unnecessary, particularly given Condition 9.

[12]

I would grant leave to appeal but would dismiss
the appeal save that I would amend Conditions 9 and 11 of the Probation Order
so they provide:

Condition 9: You
shall not be in the company of any person under the age of 16 years, unless in
the company of an informed adult approved in advance by your Probation Officer.

Condition 11:  You are not to attend at playgrounds,
school grounds, public parks, or community centers unless accompanied by an
informed adult approved of in advance by your Probation Officer.


[13]

DONALD J.A.
: I
agree.

[14]

LEVINE J.A.
: I
agree.

[15]

DONALD J.A.
:
Leave to appeal is granted. The appeal is allowed to the extent of amending the
probation order as indicated in the reasons of Mr. Justice Lowry. The appeal is
otherwise dismissed.

The Honourable Mr. Justice Lowry


