






Citation:


R. 
          v. ONeill


Date:
20030120







2003 
          BCCA 35


Docket:


CA029630






Registry:  
          Vancouver






COURT 
          OF APPEAL FOR BRITISH COLUMBIA






BETWEEN:






REGINA






RESPONDENT








AND:






BRIAN PATRICK JAMES ONEILL






APPELLANT














Before:


The 
          Honourable Chief Justice Finch







The 
          Honourable Mr. Justice Lambert







The 
          Honourable Mr. Justice Thackray












In 
          Person


The 
          Appellant




F.G. 
          Tischler


Counsel 
          for the Respondent




Place 
          and Date of Hearing:


Vancouver, 
          British Columbia




January 13, 2003




Place 
          and Date of Judgment:


Vancouver, 
          British Columbia




January 20, 2003








Written 
    Reasons by:

The 
    Honourable Chief Justice Finch



Concurred 
    in by:

The 
    Honourable Mr. Justice Lambert

The 
    Honourable Mr. Justice Thackray


Reasons for Judgment of the Honourable 
    Chief Justice Finch:




[1]

Mr. ONeill, who appears in person, applies for leave to appeal, and 
    if leave is granted, appeals from the sentence imposed on him in B.C. Supreme 
    Court on 14 March 2002.  The appellant was sentenced to imprisonment for two 
    years less a day, and three years probation, for his conviction on one count 
    of sexual assault upon an 11 year old girl (M.R.).  A second count of sexual 
    assault involving a 14 year old girl (K.B.) was dismissed by the trial judge.  
    The appellant had served ten months in custody prior to the imposition of 
    sentence.  The effective sentence, if one gives double credit for the time 
    served, is about three years and eight months.

[2]

Before the sentencing judge counsel for the appellant agreed that two 
    years less one day, and three years probation, was an appropriate sentence.  
    But counsel submitted that the sentence should be served in the community 
    on conditions.

[3]

On this appeal, the appellant contends that the custodial sentence 
    is excessive, harsh and unfit, and that the probation order is unnecessary.  
    He says he did not agree with his counsels submission that two years less 
    a day was the appropriate length of sentence.  He says he has serious medical 
    conditions requiring treatment which is not being provided to him in prison.  
    He says he has successfully completed all programs offered to him while in 
    custody, that he is truly remorseful, and has apologized to the complainant 
    and her mother.

[4]

The circumstances of the offence are that at about 10:30 p.m. on December 
    20, 1999 the appellant was driving his truck in Surrey when he saw the two 
    girls out walking K.B.s dogs.  The appellant knew K.B. through her father.  
    K.B. asked for a ride.  The appellant agreed and drove to a beer and wine 
    store where he bought beer for himself and coolers for the children.  Next 
    he drove to a secluded area along the Fraser River where they walked the dogs.  
    They tied the dogs to the rear of the truck, and sat in the truck drinking 
    alcohol and listening to music.  K.B. then performed oral sex on the appellant.  
    The appellant testified that K.B. willingly did so in return for $20.

[5]

The appellant then grabbed M.R. by her long bangs and forced her head 
    down onto his penis.  M.R. tried to pull away but the appellant pulled harder 
    on her hair, causing more pain.  After the appellant ejaculated, M.R. got 
    out of the truck, spat on the ground, wiped her hand across her mouth and 
    then wiped it off on her sweat pants.  The appellant started to drive off 
    with the dogs still tied to the truck.  The girls ran after the truck and 
    untied the dogs, then ran to a nearby pub where they asked for help.  The 
    police later tested the sweat pants which proved to contain the appellants 
    semen.  The appellant denied that M.R. performed oral sex on him.

[6]

The appellant was 43 years old at the time of the offence and had accumulated 
    a record of 43 convictions including indecent assault in 1981, sexual assault 
    in 1987, assault causing bodily harm in 1976, 1981, and 1987, and assault 
    in 1991 and 1994.  In addition, the appellant has 17 alcohol or drug related 
    convictions.  While on bail in the case at bar the appellant violated his 
    recognizance by consuming alcohol.

[7]

The learned sentencing judge addressed the issue of the appellants 
    health and his need for medical attention:

[18] 
    It is argued that Mr. ONeill has been on a form of house arrest since August 
    3, 2001, and that I should look to those bail conditions as the underpinnings 
    of the conditions for a sentence to be served in the community. It is also 
    argued that Mr. ONeill has abstained from alcohol since October 14, 2000 
    because of cirrhosis of the liver arising from hepatitis, no doubt exacerbated 
    by his alcohol abuse.



[19] 
    While I have no medical evidence, I am told that Mr. ONeill is waiting for 
    a liver transplant, and that he has an appointment to see a specialist, Dr. 
    Henry Wong, on May 15 of this year.



. . .



[23] 
    Given Mr. ONeills concerns that he will not be able to obtain proper medical 
    treatment if he remains in custody, I have, as requested, received a letter 
    from Crown counsel addressing those concerns. I have also today heard submissions 
    from Mr. Ray. As matters presently stand, Mr. ONeill requires a blood sample 
    to be taken and tested every three months. Depending on the results of the 
    test, Mr. ONeill may or may not be placed on Interferon. If he is, the drug 
    is injected and he is required to take a pill. There is no suggestion that 
    Dr. Wong himself needs to take the blood sample or needs to test the blood 
    sample. Dr. Wongs role, as I understand it, at least to date, is to interpret 
    the blood sample.



[24] 
    I am satisfied that should Mr. ONeill require medical attention, he will 
    receive it. If, as Mr. Ray contends, Dr. Wong will not treat Mr. ONeill if 
    he is incarcerated and he requires treatment by Dr. Wong, that can be dealt 
    with when the occasion arises. As matters stand, I have nothing from Dr. Wong 
    indicating that to be the case.



[8]

As was the case before the learned sentencing judge, there is no evidence 
    before us to support the appellants submissions in respect of his health, 
    his need for medical attention or his inability to obtain the same while in 
    custody.  During the hearing Mr. ONeill handed up a bio-medical laboratory 
    report which reports a diagnosis of hepatitis C on a blood test.  Beyond 
    that we have nothing.

[9]

I do not consider that the learned sentencing judge erred in fixing 
    the length of sentence at two years less a day, or in concluding that the 
    sentence should be served in custody.  This was a serious sexual assault involving 
    a child who was given alcohol to drink, and who was physically forced into 
    performing the sexual act.  The appellant has a long criminal record, including 
    previous convictions for assault and sexual assault.  There is no medical 
    evidence to support the request for a conditional sentence.  Having regard 
    for sentences in other similar cases it cannot be said that an effective custodial 
    sentence of three years and eight months is outside the range of sentence 
    that is fit for this offence and this offender.

[10]

I 
    am similarly of the view that this was an appropriate case for the probation 
    order of three years duration that was made.  The order contains a condition 
    prohibiting the appellant from the consumption of alcohol, and the need for 
    such a condition and the power to monitor it was amply justified in the circumstances.













[11]

I 
    would grant leave to appeal but would dismiss the appeal.





The 
    Honourable Chief Justice Finch











I AGREE:







The Honourable Mr. 
    Justice Lambert











I AGREE:







The Honourable Mr. 
    Justice Thackray








