



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. B.S.B.,









2010 BCCA 40




Date: 20100122

Docket:
CA036573

Between:

Regina

Respondent

And

B.S.B.

Appellant

RESTRICTION ON PUBLICATION: A
N ORDER
HAS BEEN MADE IN THIS CASE PURSUANT TO S. 486.5 OF THE C
RIMINAL CODE
THAT PROHIBITS ANY INFORMATION THAT COULD IDENTIFY A VICTIM OR WITNESS BEING
PUBLISHED, BROADCAST OR TRANSMITTED.

SECTION 16(4)
SEX OFFENDER INFORMATION AND REGISTRATION ACT
:
THIS SECTION PROVIDES THAT NO PERSON SHALL DISCLOSE ANY INFORMATION THAT IS
COLLECTED PURSUANT TO AN ORDER UNDER SOIRA OR THE FACT THAT INFORMATION
RELATING TO A PERSON IS COLLECTED UNDER SOIRA.




Before:



The Honourable Madam Justice Saunders





The Honourable Madam Justice Neilson





The Honourable Mr. Justice Groberman




On
appeal from: Supreme Court of British Columbia, November 7, 2008

(R. v. B.S.B
, 2008 BCSC 1526 New Westminster Registry X070471)

Oral Reasons for Judgment




Counsel for the Appellant:



M.D.
  Sanders





Counsel for the (Crown) Respondent:



W.
  Rubin, Q.C.





Place and Date of Hearing:



Vancouver,
  British Columbia

January
  19, 2010





Place and Date of Judgment:



Vancouver,
  British Columbia

January
  22, 2010




[1]

NEILSON J.A.
: The
appellant appeals his custodial sentence of two years less a day and three
years probation for sexual assault, imposed by a Supreme Court judge on
November 7, 2008. He says that the sentencing judge erred in deciding he was
not a suitable candidate to serve the custodial portion of his sentence in the
community pursuant to s. 742.1 of the
Criminal Code
, R.S.C. 1985,
c. C-46.

[2]

The facts underlying the appellants conviction
were summarized in the reasons for judgment dealing with his conviction appeal,
indexed at 2009 BCCA 520:

[2]        The complainant found herself
naked in the appellants bed one morning with no memory of how she got there or
what had happened the night before. She became increasingly troubled as the day
wore on and phoned the appellant. After some hesitation, he said they had sex
and that he wore a condom at the time. The complainant went to the hospital
where she was checked for sexual assault. The examining nurse found 19 bruises
and two vaginal tears. A vaginal swab and DNA testing revealed the presence of
the appellants semen. Although testing for the date rape drug was negative,
an expert testified that the drug quickly passes through the system and would
not have been detected in the interval between the event and the testing in
this case.

[3]        The complainant testified that
she went out with the appellant on one prior occasion, having made his
acquaintance under the name of Dion on the Internet. On the second occasion,
the evening in question, she accepted his invitation to join him and friends at
his home. The appellant, the complainant and another couple (referred to in the
evidence as Jo. and Me.) had a few drinks, a meal, and then the four of them
prepared to go out to a nightclub. At this point, Me. noticed that the
complainant was behaving strangely and made a lewd advance towards her. The
complainant testified that she was fading in and out. The two couples went to
a nightclub. The complainant has no memory of how she got there, and apart from
a few scattered recollections, no memory of what happened at the club.

[4]        According to Jo. and Me., her
behaviour on the dance floor was bizarre and embarrassing:  she was grinding
her buttocks into groins of both the appellant and Me., and moving her arms up
and down completely out of time with the music.

[5]        The appellant and the complainant
left the club on their own. The complainant could not remember leaving the
club, arriving at the appellants home or how she ended up in his bedroom. Her
only memory was of lying on the sidewalk, feeling unable to get up.

[6]        The
appellant testified that on the way home the complainant had vomited all over
her clothing, which he removed when they got there. He said she went into his
bed after vomiting again, passionately kissed him, fondled his penis and guided
it into her vagina. He explained his hesitancy on the phone with her the next
day because he was surprised that she would ask him if they had sex, given her
seductive behaviour in bed.

[3]

While the circumstances were suspicious, the
judge found there was no proof that the appellant had drugged the complainant. He
found the complainant credible and forthright. He made these findings as to the
appellants credibility:

[45]      I must
say that I have great difficulty believing anything the accused said in his
testimony. He lied when he told Cst. Chahil that he did not know Ka.; he lied
when he said he did not tell Ka. that his name was Dion; he lied when he told
Ka. that he had used protection during sexual intercourse with her; he lied
when he told the complainant that he was half French; and, he lied when he told
the complainant that she had taken off her clothes because she had vomited on
them. In addition to all of this, I find his description of how he was seduced
by Ka. to be simply ludicrous, given the circumstances.

[4]

The appellant was 30 years old at the time of
sentencing and had no criminal record. He had worked as a prison guard with
Corrections Canada since 1999, but lost his job and his hopes of becoming a
police officer as a result of the offence. He filed a large number of letters
that demonstrated strong support from his family and fellow employees. Two
women colleagues testified to his good character.

[5]

The Crown took the position that a four year
custodial sentence would be appropriate. The defence argued that the appellant
was a proper candidate for a conditional sentence order.

THE REASONS FOR JUDGMENT

[6]

The reasons of the sentencing judge set out a
comprehensive review of the principles that govern sentencing, including
conditional sentence orders. He reviewed authorities that dealt with similar
cases, and determined that an appropriate range of sentences for sexual assault
that involved intercourse was two to six years.

[7]

He used the list of fa
ctors from
R. v.
J.-J. L.
, [1998] R.J.Q. 971, 126 C.C.C. (3d) 235 (C.A.)
as
the framework for assessing the circumstances of the offence. He noted the
gravity and pervasiveness of sexual assault generally as a crime. He described
this
sexual assault as particularly heinous. He referred to it as a
rape and found the violence used was an aggravating factor. He observed that
the a
ssault had had a devastating effect on the complainant,
and
that the
appellant had shown no remorse or empathy
for her, although the judge emphasized that he did not consider the lack of
remorse an aggravating factor.

[8]

The sentencing judge stated his conclusion as to an appropriate
term of imprisonment in this way:

[48]      After instructing myself on the
law as enunciated above, I have concluded that the offence committed by this
accused should result in a period of imprisonment of two years less one day. I
conclude the such a sentence would be proportionate to the offence committed by
him and his degree of responsibility for it because of the following factors:

(a)        the
vulnerability of the victim;

(b)        the
insidious nature of the offence;

(c)        the
accuseds high degree of moral responsibility for the offence;

(d)        the requirement for the sentencing
principles of general deterrence and denunciation to be stressed.

[9]

He then turned to consider whether it would be
appropriate for the appellant to serve his sentence in the community, pursuant
to s. 742.1 of the
Code
, and
R. v. Proulx,
2000 SCC 5,
[2000] 1 S.C.R. 61. At the time of the offence, the amendment excluding sexual
assault from s. 742.1 had not been enacted. The sentencing judge focussed
on whether a conditional sentence would satisfy the requirements of deterrence
and denunciation, and whether it would endanger the safety of the community,
particularly women in the community. He concluded that a custodial sentence was
necessary:

[60]
With respect to the prerequisite
involving the safety of the community, the Supreme Court of Canada held at
para. 68 of
Proulx
, that the focus
of the analysis at this point should clearly be on the risk posed by the
individual offender while serving his sentence in the community.  The danger
to the public is evaluated by reference to (1) the risk of re-offence in
light of the conditions attached to the sentence, and (2) the gravity of
the danger in the event of a re-offence.

[61]      B.S.B. has no previous convictions.
This supports the proposition that he does not constitute a danger to the
public, but only in a simplistic manner. The nature of the sexual offence
committed by B.S.B. raises serious concerns for the Court. This was an offence
involving an accused who had non-consensual sex with a female when she was in a
very vulnerable state; this is an offence where the accused inflicted violence
on the complainant when he committed the assault upon her; this is a case where
the accused transmitted gonorrhoea to the complainant because he decided to have
unprotected sex with her. The Court must conclude that B.S.B. committed this
offence solely in order to satisfy his sexual desires. Obviously, B.S.B.s
behaviour raises serious concerns as regards the safety of the community. I
conclude that allowing B.S.B. to serve a period of imprisonment in the
community would result in the safety of women in the community being
endangered.

[62]      With respect to the
prerequisite involving the principles of sentencing, the Supreme Court of
Canada held in
R. v. Wells
, 2000 SCC 10,
[2000] 1 S.C.R. 207 at para. 29, that the court is to undertake a
comprehensive consideration of the principles of sentencing set out in
ss. 718 to 718.2 of the
Criminal Code
.
As in
R.A.R.
, the principles of
denunciation and deterrence are of prime importance in this case. In my view, a
conditional sentence
would fail to reflect the seriousness of
the offence committed by B.S.B. and would fail to satisfy the sentencing
principles of denunciation and general deterrence.

GROUNDS OF APPEAL

[10]

The appellant says the sentencing judge made
four errors in concluding that a conditional sentence would endanger the safety
of the community:

a) he found the appellant had transmitted
gonorrhoea to the complainant and treated this as an aggravating factor when
this was a disputed fact and the Crown had not proved it beyond a reasonable
doubt;

b) he erred in finding that the fact that
the appellant committed the offence to satisfy his sexual desires was an
aggravating factor;

c) he misapprehended the degree of violence
inflicted on the complainant during the offence, and erred in treating this as
an aggravating factor;

d) he rejected
uncontradicted psychological opinions that the appellant was not a danger to
society.

ANALYSIS

[11]

An appellate court must apply a deferential
standard of review in considering whether a sentence is fit. Sentencing judges
are given a broad discretion under the
Code
to determine what is a just
and appropriate sentence. They are uniquely placed to assess the submissions of
counsel, the social and community context for the offences, and the moral
blameworthiness of the offender. Absent an error in principle, failure to
consider a relevant factor, or over-emphasis of proper factors, a court of
appeal will intervene only if a sentence is demonstrably unfit:
R. v. M.
(C.A.)
, [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327 at paras. 89-92;
R.
v. L.M.
, 2008 SCC 31, [2008] 2 S.C.R. 163 at paras. 14-16.

1. Did the sentencing judge err in
referring to the transmission of gonorrhoea when this was a disputed fact?

[12]

This issue was raised for the first time in the
complainants Victim Impact Statement entered at sentencing. It stated:

The Sane Kit
that was conducted at Surrey Memorial Hospital brought back positive results
for gonorrhoea after the assault. Prior to September 2004 I had no Sexually
Transmitted Diseases. Dion could have had AIDS. Could you imagine if I was
diagnosed with AIDS for instance?  Then, truly, my life would have been taken
from me. Its such a heinous thought that someone would have not only done this
to me, but would also have the audacity not to use protection.

[13]

During submissions, the Crown raised the
positive test for gonorrhoea in the context of its argument that engaging in
unprotected sex during the crime was an aggravating factor. The defence replied
that it could not be an aggravating factor because there was no evidence that
the appellant had a sexually transmitted disease or was reckless as to that
possibility, or that he had transmitted it to the complainant.

[14]

The appellant says the transmission of
gonorrhoea was thus a disputed fact, and the Crown was obliged to prove it
beyond a reasonable doubt pursuant to s. 724(3) of the
Code
. It did
not do so, and the sentencing judge was therefore precluded from relying on it.
Instead, he improperly treated the transmission of gonorrhoea as an aggravating
feature, and also referred to it as a fact that militated against a conditional
sentence.

[15]

The appellant is incorrect in saying the
sentencing judge used this as an aggravating factor. He did, however, mention
it in his assessment of the gravity of danger to the community if the appellant
received a conditional sentence. Like the Crown, he raised it as a consequence
of having unprotected sex.

[16]

I agree the sentencing judge was wrong in doing
so. While he could consider the danger of unprotected sex in his analysis, the
question of whether the appellant transmitted gonorrhoea to the complainant
during that act was disputed, and had to be established pursuant to s. 724(3).

2. Did the sentencing judge err in
treating satisfaction of sexual desire as an aggravating feature?

[17]

The appellant says that satisfaction of sexual
desire is no more than a definitional element of the offence of sexual assault,
and the sentencing judge erred in treating it as an aggravating factor, or as
something relevant to community safety.

[18]

Taken in context, I do not find the comment
objectionable.
As set out previously, the sentencing judge was not
dealing with aggravating factors at para. 61 of his reasons where this comment
occurs.

[19]

As to the issue of community safety, the sentencing judges
reasons demonstrate that he was j
ustifiably disturbed by the
circumstances of this offence. A previously blameless young man with an
unblemished career in the justice system had committed a serious sexual assault
on a vulnerable victim in unusual circumstances. There was no indication that
substance abuse played a role in his actions.
The appellant and
complainant hardly knew each other, so it could not be explained by some
historical dispute or dynamic in the relationship. The appellant
lied to the complainant and the police. He had shown no remorse or
insight into the offence, and continued to maintain their sexual encounter was
consensual. In the context of assessing danger to the community, the judge was
trying to determine why this assault had occurred, and whether the appellants
behaviour was so unpredictable that he might offend again if he served his
sentence in the community.

[20]

In that context, I view the comment complained
of simply as the sentencing judges observation that there was nothing to
explain the assault other than the obvious  that the appellant wanted to
satisfy his sexual desires.

[21]

I would not accede to this ground of appeal.

3. Did the
sentencing judge misapprehend the evidence as to the degree of violence?

[22]

The appellant argues that the sentencing judge
misapprehended the evidence in concluding that this sexual assault was
heinous, and that the violence was an aggravating factor. The appellant
maintains that the degree of violence inflicted was no greater than the
violence inherent in the offence itself.

[23]

The injuries to the complainant were described
by the judge in his reasons for conviction. Ms. Hildebrand, an expert in
examining complainants of sexual assault, testified that the complainant had 19
recent bruises caused by blunt force on her arms, hands, breast, abdomen,
thighs, foot, back and pubic area. As well, her vagina was tender and had two
small lacerations. Ms. Hildebrand said that some of the injuries were
consistent with sexual assault, and the complainant ranked in the top third
with respect to the number of injuries she had observed in sexual assault
victims.

[24]

The complainants victim impact statement stated
that she was not able to cross her thighs for days due to the injuries.

[25]

The judge found the injuries had been caused by
the appellant, and that they indicated that the complainant had struggled to
resist his assault.

[26]

The appellant argues that Ms. Hildebrand
used an ultraviolet lamp to detect the 19 injuries, and some of them would not
have been visible without that aid. As a result, the severity of the injuries
is overstated. As well, he complains that nothing identified the population to
which Ms. Hildebrand referred in placing the complainant in its top third.
Without that, he says that evidence is meaningless and prejudicial.

[27]

I find no error in the sentencing judges
conclusions that this was a heinous assault and that the violence was an
aggravating factor. The list of 19 injuries includes many that were clearly
visible and painful. The sentencing judge found the complainant credible and
was entitled to accept her account of their impact on her. Their statistical
import was not a necessary component of his conclusion that the violence was
both an aggravating factor and a feature to be considered in the context of
community safety.

4. The trial judges treatment of the
psychologists reports

[28]

The appellant provided two reports from
psychologists at the sentencing proceeding. The first was an extensive
assessment from Dr. Williams, a clinical forensic psychologist. He
concluded that the appellant was not inclined to violence or hostility, and
statistically represented a low risk for sexual or violent recidivism.

[29]

The second was a report from Ms. Cherry, a
counselling psychologist who had seen the appellant for six sessions over the
two months between his conviction and his sentencing. Her report deals
primarily with the appellants personal circumstances and progress in coming to
terms with the changes in his life as a result of the offence. She provides her
view that he appears to pose no threat to anybody.

[30]

The appellant argues that the sentencing judge
erred in principle in implicitly rejecting this uncontradicted evidence.
Further, his failure to provide reasons for doing so precludes meaningful
appellate review.

[31]

The sentencing judges treatment of these
reports is confined to mentioning Dr. Williams conclusions in summarizing
the defence position, and later noting that there were a number of positive and
mitigating circumstances in the appellants circumstances. The judge did not,
however, enlarge on these.

[32]

I agree that it would have been preferable if
his reasons had explicitly dealt with these reports.

5. Was the sentence unfit?

[33]

I have concluded that the sentencing judge erred
in referring to a disputed fact, and I have found that he did not set out his
reasons for rejecting the psychologists reports. Despite those shortcomings,
this Court may only modify the sentence if it finds it was unfit. While the
presence of reasons will assist in that determination, their absence will not
automatically result in a reduction of the sentence. The issue is whether the
sentence was reasonable and fell within the expected range for sentences for
offences of this nature:
R. v. Shropshire
, [1995] 4 S.C.R. 227, 129
D.L.R. (4
th
) 657.

[34]

With respect to the reference to the
transmission of gonorrhoea, I am not persuaded that this played a significant
role in the sentencing judges determination of a fit sentence. As set out
previously, it arose in the context of the appellants unprotected sex with the
complainant. It was that reckless practice that was the prime concern. The
appellant had lied to the complainant about this, telling her he had used a
condom. Ms. Cherry described him as immature, and a long-time participant
in the bar scene, given to frequent one-night stands. In that context, the
trial judge could properly consider unprotected sex a legitimate concern with
respect to community safety. While the transmission of a sexually transmitted
disease as a result of such activity is an acknowledged risk, whether or not it
occurred here was not the primary point.

[35]

With respect to the sentencing judges treatment
of the psychological reports, although they suggested that the appellant was
not at risk to re-offend,
both reports were limited in the assistance
they could provide the judge. Dr. Williams noted that the appellant
continued to deny that he had committed the crime. Dr. Williams could
offer no insight into the reasons or motive for the assault, other than perhaps
the appellants feelings of inadequacy. Ms. Cherrys
report
similarly contains no suggestion that he has admitted responsibility for the
crime, or has any insight into it.

[36]

I am not satisfied that the sentencing judges failure to deal
with these reports in his reasons must lead to a modification in the
appellants sentence. This was an unusual offence. The appellants background
strongly suggested he was not a person who would commit a sexual assault. The
psychologists opinions regarding future risk point to that. Yet the appellant
did commit a serious sexual assault.
They were unable to
explain this. The appellants continuing denial, and the absence of any insight
as to why he committed the offence, significantly diminished their
psychological opinions as to his future risk.

[37]

Both parties have provided the Court with
authorities that deal with sentences in other sexual assault cases. The Crowns
authorities predictably affirm that a custodial sentence is appropriate. The
appellants recount cases in which the complainants were subjected to
devastating sexual assaults, but the offender received a conditional sentence.
While these cases provide some guidance in affirming the appropriate sentencing
range, each has its own unique constellation of circumstances and for that
reason they are of limited assistance. For example, in the five authorities
provided by the appellant, all involved offenders who were seriously
intoxicated at the time of the offence, and took steps to deal with their
substance abuse thereafter; four referred to family financial obligations as a
primary reason for deciding the offender could serve his sentence in the
community; and three had express findings that the offender did not present a
danger to the community. None of those factors is present in this case.

[38]

The appellant argues that his sentence does not
reflect the fact he lost his job and future employment prospects because of the
offence. He says this provided sufficient denunciation and deterrence and
supports his argument that incarceration is unreasonable. However, this
argument addresses individual deterrence. General deterrence remains a
significant consideration.

[39]

The sentencing judge properly found that this
was a serious offence, both in terms of its impact on the complainant and the
moral culpability of the offender. There was a factual foundation for his
concern that the appellant may present a danger to the community. He correctly
emphasized the importance of denunciation and deterrence in sentences for such
offences.
Having considered all of the circumstances, I am not persuaded
that the sentence is unfit.

[40]

I would dismiss the appeal.

[41]

SAUNDERS J.A.
: I agree.

[42]

GROBERMAN J.A.
: I agree.

[43]

SAUNDERS J.A.
: The appeal is dismissed.

The Honourable Madam Justice Neilson


