IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. Adubofour-Poku was convicted of sexual assault.  A sentencing hearing was held and the matter was adjourned so the court could consider counsel’s submissions and pronounce sentence.  The task for this court is to identify a fit and appropriate sentence.

[2]           Greater circumstances of the offence are included at; R. v. Adubofour-Poku, 2016 BCPC 426. 

[3]           In June of 2015, the victim, S.G. was at an after-hours club where she met the offender and L.A.  S.G. and the offender used cocaine and thereafter the group made their way to L.A.’s home.  Prior to entering the home, more cocaine was consumed. 

[4]           Once inside the home, the offender began touching and kissing S.G.  S.G. commented that she did not want to hook up and that she was on her period and at one point she said things such as, “I don’t want you doing this.”  The accused did not stop or make inquires rather he continued eventually removing S.G.’s clothes and performing oral sex and thereafter intercourse.  At one stage S.G. gave up protesting and “just went along with things.”  The offender performed intercourse and asked if he could ejaculate inside of S.G. and she said, “no.”  Despite being told “no” the offender ejaculated inside of S.G. 

[5]           S.G. did not provide a Victim Impact Statement.  Despite no victim Impact Statement, the fear and trauma that S.G. would have felt and suffered is obvious and does not require a Victim Impact Statement.  At the time of the offence she was 18 years old and a high school student.  Having listened to the evidence at trial and after considering the events as they unfolded I have no doubt that S.G. suffered extreme fear.  One can only imagine what is must have felt like to have her protestations ignored at a time when she was in a room with an almost stranger who was almost 20 years her senior.  Moreover, I expect she was fearful when the offender ejaculated inside of her. 

[6]           I have no difficulty concluding beyond any doubt that S.G. will suffer the emotional effects of what happened for the majority of her life.

[7]           The offender is 39 years old.  He enjoyed a positive and stable upbringing.  He graduated from high school and after high school he studied for two years at the University of Manitoba.  The offender has worked in the film industry on set design, in retail, at car dealerships and in construction.  At the time of the sentencing hearing he was not working.

[8]           The offender has had a long standing history of substance abuse.  He started drinking when he was nine or ten.  He acknowledges that when he starts drinking that he cannot stop.  The offender started using marijuana when he was teenager and this escalated to cocaine, crack and other opiates.  The offender has struggled to achieve sobriety and managed to remain substance free between 2010 - 2014.

[9]           The offender has had struggles with depression and anxiety and as a result he self-medicated with substances. 

[10]        In December of 2016, the offender tried a few recovery houses and eventually settled on Giving Back Society which is where he was living at the time of the sentencing hearing.  His future plans are to continue working on his recovery in order to build a strong foundation to live a healthy life.

[11]        With respect to his criminal history, the offender was convicted of sexual assault in 2000, and then commencing in 2015, he has convictions for; mischief, threatening, assault, theft, breach of probation and breach of a recognizance. 

[12]        A review of the offender’s record discloses; he was on probation when he sexually assaulted S.G., and he has previously committed offences while on judicial interim release.

[13]        Letters of support were filed on behalf of the offender.  Two of the letters confirm the offender’s residency at a drug recovery facility.  The remainder of the letters speak to the offender’s helping nature and his work in supporting others who have struggled with addiction.

[14]        The Crown argues a fit and appropriate sentence is an 18 month custodial sentence followed by 2 years of probation.  The Crown is also seeking an order that the offender be directed to comply with the Sex Offender Information Registry Act for life and a section 109 lifetime weapons prohibition as well as a DNA order.  The Crown opposes a conditional sentence order arguing it would fail to meet the requisite degree of denunciation and deterrence.

[15]        Counsel for the offender urges the court to impose an 18 month conditional sentence of imprisonment followed by probation for 2 years and she does not oppose the ancillary orders sought by the Crown.  In her submissions counsel for the offender focused the court’s attention on the circumstances of the offence, and the rehabilitative steps that the offender has taken.

[16]        Cases relied on by counsel have been reviewed by the court and include:

[17]        In reviewing the cases, it is clear the offence of sexual assault in summary proceedings typically attracts a custodial sentence in the range of 9 - 18 months.  I also observe conditional sentence orders have been imposed in certain circumstances.  Finally, when reviewing the cases I am reminded that sentencing is an individualized exercise and that no two offenders are the same.  I find those cases involving Indigenous offenders to be of minimal assistance given the special considerations that such cases require. 

[18]        The purpose and principles of sentencing are found in sections 718 - 718.2 of the Criminal Code.  The relevant portions of those sections are:

[19]        I find that denunciation and deterrence are the primary sentencing objectives in the instant matter.  In this regard, the violation and invasion of an individual’s personal integrity must be denounced and deterred.  Those, who for their personal gratification, sexually offend must know that the courts will treat such conduct seriously.  It is through the sentences imposed that the courts can contribute to a safe society for all persons. 

[20]        In addition to denunciation and deterrence, I do see some rehabilitative prospects for the offender.  I arrive at this conclusion because of his comments regarding the difficulty that substance abuse has caused him as well as his attendance at a recovery home.

[21]        In arriving at the appropriate sentence, I am mindful that a fundamental principle of sentencing is proportionality.  In this regard, I find the circumstances of the offence to be serious.  Specifically, the offender ignored all suggestions and comments indicating that S.G. was not consenting.  His persistence was a form of violence directed at S.G.’s personal integrity and robbing her of her right to say ‘no’.  I find the offender’s moral culpability to be high. 

[22]        As for the aggravating and mitigating factors, the offender’s related criminal record is aggravating.  It is also aggravating that the offender was on probation when he sexually assaulted S.G.  A further aggravating feature is the offender exposed S.G. to the fear of pregnancy by engaging in unprotected intercourse. 

[23]        In mitigation, the offender is trying to rehabilitate himself and from this it becomes clear that he sees a link between his offending and his substance abuse. 

[24]        The sentence that this court imposes must be the least restrictive that is appropriate in the circumstances and all sanctions other than imprisonment, that are reasonable, should be considered.  

[25]        With respect to the above, I decline to impose a conditional sentence of imprisonment because such a disposition would fail to meet the purpose and principles of sentencing.  While I acknowledge that a conditional sentence order can denounce and deter, the circumstances of the offence and the offender demand a high degree of denunciation and deterrence.  I say this, in part, because the offender received a conditional sentence for sexual assault in 2000 and it is clear that the sentence imposed at that time failed to deter him from committing the sexual assault that is before this court.  

[26]        It is important to observe that I am not making a finding that an individual who has previously received a conditional sentence order is disentitled to receive a second one for the same offence, rather, my observation is that in the circumstances of this case such a sentence would not achieve the requisite denunciation and deterrence, nor, would it be proportional to the seriousness of the offence and offender’s culpability.

[27]        After considering the purpose and principles of sentencing, the circumstances of the offence and the offender’s personal circumstances I impose a custodial sentence of 12 months and 11 days.  From this amount the record will reflect time served of 7 days with a credit of 11, thus, leaving a balance of 12 months.  Thereafter the offender will be on probation for 2 years.  It is my view that this blended sentence assist with rehabilitation while achieving the requisite degree of denunciation and deterrence.