



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Rich,









2014 BCCA 24




Date: 20140116

Docket: CA041025

Between:

Regina

Respondent

And

Vincent Noel Rich

Appellant




Before:



The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Groberman




On appeal from: An
order of the Supreme Court of British Columbia, dated March 14, 2013 (
R. v.
Rich
, 2013 BCSC 760, Terrace Docket No. 29011)

Oral Reasons for Judgment




Counsel for the Appellant:



G. Botting





Counsel for the Respondent:



C. Lusk





Place and Date of Hearing:



Vancouver, British
  Columbia

January 16, 2014





Place and Date of Judgment:



Vancouver, British
  Columbia

January 16, 2014








Summary:

The accused was sentenced to
2½ years in prison following conviction on one count of sexual exploitation. He
appeals, arguing that the sentence is not a fit one, and also that the trial
judge ought to have considered his immigration status and imposed a sentence of
less than 2 years imprisonment to avoid the possibility of the accused losing
the right to appeal a potential removal order. Owing to subsequent changes in
the Immigration and Refugee Protection Act, those consequences may now apply to
any sentence of 6 months or more. Mr. Rich now seeks to have the sentence
imposed by the trial judge vacated and replaced by a suspended sentence with a
30 month period of probation. Held: Appeal dismissed. The sentence was in all
respects a fit one. A sentence of less than 2 years imprisonment would not have
been appropriate given the gravity and circumstances of the offence. It would
not be appropriate for this court to impose a suspended sentence with probation
on the basis suggested by the appellant, which would put the court in the
position of concealing the real nature of the sentence from the official
record.

[1]

GROBERMAN J.A.
: After a ten day trial, the accused was found
guilty of one count of sexual assault and one count of sexual exploitation in
respect of offences committed against his daughter, R.R., when she was between
14 and 16 years old. In accordance with a defence submission (with which the
Crown agreed) that the principle in
Kienapple v. The Queen
, [1975] 1
S.C.R. 729 applied, a conditional stay was entered in respect of the sexual
assault count, and a conviction was entered only on the sexual exploitation
count. The judge sentenced the accused to 2½ years imprisonment and he applies
for leave to appeal the sentence.

[2]

The accused, who was 50 years old at the time of sentencing, was born in
the United States and remains an American citizen. Although he was brought to
Canada as a young boy, and has lived in this country since that time, he has
never obtained Canadian citizenship. Originally, he feared that, because he had
been sentenced to a period of imprisonment in excess of two years, he might be
deported, and would have no right of appeal from a removal order. As a result
of amendments to s. 64 of the
Immigration and Refugee Protection Act
,
S.C. 2001, c. 27, a sentence of 6 months or more will probably now have that
effect. Mr. Rich's immigration status was mentioned in passing in a
pre-sentence report, but it does not appear that it was the focus of
submissions to the sentencing judge. It is not mentioned in her reasons for
sentence.

[3]

The accused argues that the sentence imposed is overly harsh. He places
particular emphasis on the possibility that he may be deported. He says, in the
circumstances of this case, a fit sentence would be a suspended sentence with a
period of probation. He says that, considering that he has now been in custody
for 10 months and is a good candidate for parole, substituting a suspended
sentence with probation of 30 months would be appropriate, as it would, for
practical purposes, impose the same punishment and treatment on him as was
imposed by the trial judge, without any immigration consequences.

[4]

The Crown takes the position that the sentence imposed was a fit one,
and says the appeal should be dismissed.

The Offence

[5]

The sexual exploitation charge was laid in respect of the accuseds
conduct towards his daughter, R.R. In June 1998, when R.R. was 14 years old,
her mother was hospitalized for a period of time following an emergency
caesarian section. While her mother was in hospital, the accused began to enter
R.R.s room (which she shared with her sister) at night. On these occasions, he
pulled R.R.s underwear down, moved her legs apart and touched her vaginal area
with his fingers. The assaults occurred while R.R.s sister was asleep.

[6]

After her mother returned home from the hospital, the accused continued
to engage in sexual touching of R.R. of the same nature, sometimes including
digital penetration of her vagina. R.R.s evidence was that the accused engaged
in such contact with her 40-50 times while she shared a room with her sister,
and on approximately 30 further occasions after she moved into her own room at
the age of 15. The incidents continued until R.R. ran away from home at the age
of 16.

[7]

The judge was satisfied beyond a reasonable doubt that the accused
engaged in the sexual contact alleged by R.R. While the judge did not come to
any conclusion as to exactly how many such events occurred, it is evident that
she accepted that it happened routinely. The sentencing appears to have
proceeded on the basis that there were dozens of instances in which the accused
engaged in sexual conduct with R.R. when she was between the ages of 14 and 16.

Circumstances of the Accused

[8]

Mr. Rich was 50 years old at the time of sentencing. He has a grade 11
education, and worked steadily throughout his life, primarily in the forest
industry. While he was a heavy user of marihuana, it was not suggested that
drug use or dependency played any role in the offence for which he was
convicted.

[9]

Mr. Rich had a criminal record, but it was described by the sentencing
judge as minor and dated and not relevant to the sentencing.

[10]

The accused had some letters of support from family members, though his
relationship with R.R.s mother broke down as a result of the allegations
against him. He had, at the time of sentencing, established a new relationship
with another woman, and supported her and her children and grandchildren.

[11]

The psychiatric assessment report provided to the court indicated that
the accused was at a low risk of reoffending.

[12]

The judge noted that the accused minimized or denied his sexual
violence, and expressed little remorse or empathy for R.R. She also noted that
the offences had had very serious impacts on R.R.s life.

[13]

The judge considered the defence submission that a conditional sentence
was appropriate, but rejected it. She considered that a sentence of less than
two years would not meet the objectives of sentencing.

Analysis

[14]

The accuseds primary submission is that the potential consequences of
the sentence on the accuseds immigration status ought to have been taken into
account by the sentencing judge. With considerably less vigour, in his written
submissions (though not in his oral argument) he contends that the sentence,
even absent immigration concerns, was unfit.

[15]

I would reject the contention that the sentence is unfit. The accuseds
offence was a very serious one. The fact that the accused was the victims
father is a particular aggravating factor. The accused breached his position of
trust, and took advantage of his childs vulnerability for his own purposes. He
ought to have been protecting his daughter; instead he was taking advantage of
her. The offence occurred over an extended period, and only ended when the
victim ran away from home.

[16]

The accused had not, at the time of sentencing, taken responsibility for
his wrongdoing, instead minimizing it. He did not have insight into his
distorted attitudes.

[17]

The accused does not cite any cases similar to the case before us in
which a suspended sentence has been imposed. While the accused cites a few
cases in which conditional sentences have been imposed in respect of sexual
crimes against children, I would say that such a disposition is unusual. In the
case before us, there are (absent immigration concerns, which I will come to)
no extraordinary factors that would make such a disposition appropriate.

[18]

I also agree with the Crowns observation that as society becomes more
aware of the impact of sexual abuse on children, there has been an escalation
in the severity of sentences imposed where children are the victims of sexual
offences, a proposition for which the Crown cites
R. v. Allen
, 2012,
BCCA 377 at para. 57. Few of the cases cited by the defence are recent ones.

[19]

The sentence imposed by the trial judge was well within the range of
appropriate sentences for this offence. Indeed, I would say that it is, in the
circumstances of this offence, a considerably more lenient sentence than might
have been imposed.

[20]

I turn, then, to the immigration issue. While it is now clear that
immigration consequences can be considered by a court in imposing a sentence,
it is equally clear that such consequences will not justify the imposition of a
sentence that is otherwise unfit:
R. v. Pham,
2013 SCC 15. While the
sentencing judge in this case did not expressly consider the immigration issues
raised on this appeal, she did consider the question of whether a sentence of
less than two years might be appropriate. She determined that such a sentence
would be insufficient in this case, particularly given the goals of deterrence
and denunciation.

[21]

I am of the view that the sentencing judge was correct in her analysis.
I acknowledge that there is some evidence before this court that the accuseds
rights of appeal in respect of a potential deportation order might be affected
by the length of the sentence. Nonetheless, I am of the view that the trial
judge was correct in finding that a sentence of less than two years would not
have been fit in this case. The concerns with respect to deportation do not
transform such a disposition into an appropriate sentence.

[22]

Mr. Botting has suggested that substituting, today, a suspended sentence
with a 30 month period of probation would, from a practical standpoint, not
change the actual conditions that Mr. Rich will face. If his sentence is left
unchanged, he will probably serve the next 20 months on parole. If a suspended
sentence is substituted, he will serve the next 20 months on probation, under
similar conditions.

[23]

Mr. Botting's submission requires this court to engage in an odd sort of
wilful blindness. We would, for the purposes of gauging the fitness of the
sentence, take into account the 10 months time served. For the purposes of
official records, however, that time would be labelled as probation, so as to get
around immigration laws. In my view it would be unseemly and inappropriate for
this court to engage in that sort of concealment and doublethink.

[24]

Our role is to determine whether the sentence imposed by the trial judge
was a fit one. In my view it was.

[25]

Accordingly, while I would grant an extension of time to apply for leave
and would grant leave to appeal, I would dismiss the appeal.

[26]

KIRKPATRICK J.A.
: I agree.

[27]

FRANKEL J.A.
: I agree.

[28]

KIRKPATRICK J.A.
: Leave to appeal is granted. The appeal is
dismissed.

The Honourable Mr. Justice Groberman


