IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Lydia Llanto has pleaded guilty to one count of assault of Malekah Kazemi, between November 3 and 5, 2016, contrary to section 266 of the Criminal Code.  She is now before the court for sentencing.  The offence for which she is being sentenced can be characterized as elder abuse as Ms. Llanto was the paid caregiver for the elderly victim, Malekah Kazemi, who suffers from Alzheimer’s Disease and is partially paralyzed due to a stroke.

[2]           Ms. Llanto had been hired by the Ms. Kazemi’s family in 2012 to provide in-home care for both Ms. Kazemi and her husband as both were elderly and Ms. Kazemi had been suffering the effects of Alzheimer’s disease, which had begun several years earlier.  Two years after Ms. Llanto began her employment with the family Ms. Kazemi suffered a stroke, which left her partially paralyzed.  After spending some time in hospital, her family then decided to move Ms. Kazemi to a care home with the intention to continue to employ Ms. Llanto as her companion in the care home. Ms. Llanto convinced the family to put her in a home in Coquitlam as that was more convenient for her to commute to, rather than a home on the North Shore where the victim’s husband was residing.

[3]           In November 2016 the victim’s son, Dr. Kamyar Kazemi became concerned about potential abuse of his mother when she asked him not to leave at the end of his visit with her and said to him, “this lady hits me”.  Due to her advanced Alzheimer’s and her paralysis she was unable to articulate any details.  Although he had not previously had concerns about his mother’s care, Dr. Kazemi decided to set up a video camera in his mother’s room to see what was happening.  When he watched the video afterwards he observed a number of instances of Ms. Llanto hitting Ms. Kazemi on the top of the head, on her face and on her legs.  She also appeared to make threatening gestures towards her, and in one case held up a fruit knife to her in a threatening way.

[4]           Dr. Kazemi then reported the assaults to the police, who arrested Ms. Llanto and seized the videos.

[5]           Several video clips were observed in evidence in the sentencing hearing.  Those show a clearly incapacitated Ms. Kazemi lying in a bed partially sitting up.  Ms. Llanto is mostly seen to be sitting in a chair next to her bed.  On several occasions she is seen to slap Ms. Kazemi on the top of her head seemingly without any reason or provocation.  The slaps do not appear to be made in anger, nor do they appear to be in response to the behaviour or actions of Ms. Kazemi, who appears largely docile in the video clips.  I am also advised that a number of the video clips that I did not view showed similar open handed slaps to the back of Ms. Kazemi’s head, as well as to her mouth and to her forehead.  These assaults did not appear to be particularly forceful if the victim was a young person, but to a fragile 88 year old woman they would no doubt be traumatic and potentially dangerous.

[6]           The video surveillance from which these video clips were obtained lasted only 72 hours.  Thus, the Crown suggests that what was seen is likely indicative of conduct that had been occurring for much longer than just those 72 hours as it was impossible for Ms. Kazemi to report any earlier assaults given her medical condition over the previous two years.  While that may be the case, this sentencing relates only to the assaults captured on the video and to which Ms. Llanto has pleaded guilty.  I am not able to consider other unproven assaults in my determination of a fit sentence.

[7]           I had the benefit of reviewing a Pre-Sentence Report, which was originally prepared on July 27, 2017 and updated on March 28, 2018.  That report discloses that Ms. Llanto is 41 years old.  She was born and raised in the Philippines.  She graduated from college in the Philippines in 1996 with a Bachelor of Science degree in commerce.  She was then married and had two children, a daughter and a son.  Due to limited work opportunities in the Philippines she sought out domestic and caregiving work abroad, which led her to employment with families in Taiwan, Hong Kong, Vancouver, Richmond and New Westminster, before becoming employed with the Kazemi family in 2012.

[8]           Ms. Llanto reports that her husband abused alcohol and would hit her when he was intoxicated.  As a result they separated several times before their final separation in 2008.

[9]           Ms. Llanto’s children and her estranged spouse joined her in Canada in July 2016, not long before this offence.  Her immigration sponsorship application required that her husband be included, despite their estrangement, or else she would have to submit a new sponsorship application, with its attendant delays.  Her daughter, now aged 20, has since returned to the Philippines to complete her nursing studies there, but plans to return to Canada in June.  Her son is now 18 years old and is attending grade 12 while living with Ms. Llanto.

[10]        Ms. Llanto remained separated from her husband after his arrival in Canada.  She obtained a divorce from him in March 2018 and he has now returned to the Philippines.  He does not pay any child support to Ms. Llanto for either of their children.  She has been in a relationship with her current boyfriend since 2012.

[11]        Ms. Llanto reported to the writer of the Pre-Sentence Report that at the time of the offence she was working very long hours and that she routinely slept at the care home.  Staff at the care home confirmed that she worked long hours there as a companion for Ms. Kazemi, often from 6:00 AM to 9:00 PM and sometimes would sleep there overnight.

[12]        Since the offence, Ms. Llanto has worked as a night shift cleaner at a Walmart, earning $12.00 per hour, working 30 hours per week.

[13]        Ms. Llanto expressed remorse for her actions to both the report writer and when invited to address the court during sentencing.  She has undertaken some counselling since the offence but has been unable to continue due to the cost, although she says that she remains open to further counselling.  She did not provide an explanation for her conduct beyond stating that she was working long hours and had financial stressors due to being the sole provider for her family and the stress of trying to obtain a divorce from her husband.  I did not however, understand her to be offering that as an excuse for her conduct.

[14]        Ms. Llanto has no criminal record.

[15]        Ms. Kazemi was not able to provide a victim impact statement due to her advanced Alzheimer’s disease.  However, her son provided a written victim impact statement as well as being interviewed for the pre-sentence report.  He also addressed the court directly in the sentencing hearing.  He stated that Ms. Llanto was a trusted and well-loved care aid for his mother for four years before the offence became known.  He says that viewing the abuse suffered by his mother in the video makes him imagine the years of abuse that she may have suffered and being unable to report it.  This causes him considerable guilt and shame and he is haunted by the images in the videos.  He further stated that in the last two years his mother suffered from multiple bruises that Ms. Llanto explained away as being caused by transfers to her bed.  He says that she also blamed his mother’s ill-fitting dentures as the cause of her facial pain and bleeding gums.  He now suspects these were caused by Ms. Llanto hitting and slapping her.  He described his mother as a very gentle woman who raised four sons without ever raising a hand to them.

[16]        The Crown seeks a jail sentence of 6 months, followed by 18 months of probation.  The defence says that a sentence to be served in the community, being a Conditional Sentence Order, for a period of 6 months would be a fit sentence, to be followed by 18 months of probation.

[17]        The sentencing principles that I am required to take into account in sentencing are set out in ss. 718 of the Criminal Code.  Section 718 provides that:

[18]        Section 718.1 states the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[19]        Section 718(2) requires that I also take into account any aggravating or mitigating circumstances relating to the offence or the offender.  Under ss. 718.2(a)(iii), the fact that an offender has abused a position of trust in committing the offence is expressly stated to be an aggravating circumstance.

[20]        Subsections 718(d) and (e) also require that an offender not be deprived of liberty if less restrictive sanctions might be appropriate, and that I must consider all available sanctions other than imprisonment, which may be reasonable and consistent with the harm done to the victim and the community.

[21]        The Crown relies on three cases in support of its position on sentencing.  The first is R. v. Christie 2016 BCPC 375.  In that case the offender had been employed as a licenced practical nurse in a senior’s residence.  He was convicted, following a trial, of three counts of assaulting three elderly residents of the care home, all of whom suffered from advanced states of dementia.  Two of the assaults were described as striking the private parts of two of the victims causing them obvious and great pain.  He caused a third victim to struggle and moan as he pressed his torso into her face, which he had previously covered with a blanket.  The assaults were described as “intentional, cruel, and frankly sadistic in their nature”.

[22]        The offender was 25 years old, with no prior record.  A number of individuals working in the care community provided letters indicating that the offences were out of character.  Just as in the present case, family members of the victims provided victim impact statements in which they expressed sadness, anger and guilt knowing that they had allowed their vulnerable parents to be put in such a situation of being abused.  They described a deep sense of betrayal.  After weighing the various factors, the sentencing judge determined that a sentence to be served in the community would not meet the sentencing objectives of general deterrence.  The offender was then sentenced to 6 months in custody followed by 18 months of probation.

[23]        The second case relied on by the Crown is R. v. Foubert [2009] O.J. No. 5024.  That case involved the sentencing of an offender following his guilty plea to assaulting four elderly residents in a senior’s care home in which he was employed as a personal support worker.  He also pled guilty to assaulting three co-workers.  The assaults against the elderly residents included throwing a man on a bed, lifting another by his armpits, despite the man’s protestations of pain, squeezing a man’s hand until it was swollen, purple and puffy, and forcefully kneeing a man in the hand to cause him to let go of his wheelchair, causing bruises and broken bleeding skin on his hand.  With respect to the co-workers, he picked up each of them, threw them over his shoulder and ran down the hall with them over his shoulder, despite their protests. 

[24]        The offender suffered significant extrajudicial consequences from the charges by losing his employment, as well as the humiliation resulting from media coverage of the case.  By the time of sentencing he was suffering from severe depression and expressed shame for his actions.  The sentencing judge determined that a conditional sentence would not be a fit sentence, and he was sentenced to 8 months in jail followed by probation for 2 years.  In arriving at that sentence the sentencing judge stated at paragraph 32:

[25]        The third case relied on by the crown is R. v. Xiao 2017 ONCJ 721.  In that case the offender pled guilty to assaulting an elderly man with dementia in a seniors care home, where the offender was employed as a personal support worker.  As in the present case, the assault was captured on a surveillance video that had been installed in the victim’s room by his family members.  The assault consisted of 11 strikes to the victim’s face with a closed hand or backhand motion.  The offender had no prior criminal history and was 44 years old with a wife and two young children.  He had been terminated from his employment as a result of the charges and was at the time of sentencing working for minimum wage at convenience stores.  The case also received considerable media attention, which the sentencing judge stated to have a denunciatory and deterrent effect on the offender.  The court concluded that while a conditional sentence order would not endanger the safety of the community, it would not adequately emphasize the primary principles of denunciation and deterrence applicable to the case.  In the result, the sentence imposed was 90 days, to be served intermittently so as to allow him to maintain his employment and to continue to financially support his family.  He was also subject to 18 months of probation.

[26]        Cases involving elder abuse are deserving of a strong denunciatory aspect in sentencing.  While sentences involving the abuse of children are required to give primacy to denunciation and deterrence given the vulnerability of children, similar considerations should apply to cases involving abuse of the elderly.  I agree with the following statement from Foubert at paras 30 and 31:

[27]        However, I must also give consideration to whether a sentence to be served in the community would be a fit sentence, in keeping with the principle of restraint described in ss. 718 (d) and (e).  There are three pre-conditions for the imposition of a conditional sentence.  Firstly, the sentence must be less than two years in duration.  Secondly, I must be satisfied that serving the sentence in the community would not endanger the community.  And thirdly, I must be satisfied that such a sentence would be consistent with the fundamental purpose and principles of sentencing set out in the Criminal Code.  It is that third pre-condition that was found to be lacking in the cases referred to above.

[28]        Turning to each of those cases, I find that the assaults described in Christie were clearly more serious assaults than were perpetrated by Ms. Llanto and in that sense the case is somewhat distinguishable.  Additionally, the offender in Christie did not benefit from the mitigating factor of a guilty plea. 

[29]        Similarly in Foubert the assaults were against four patients, in addition to three co-workers.  While the resulting sentence in that case was 8 months I also note that the sentence was comprised of 3 months for one assault of a patient and one month each consecutive for the other 3 patients.  A further two months consecutive was to be served for the assaults of his co-workers.  Thus the longest sentence for the assault of one patient was 3 months.  I also note that the assaults were arguably more significant in that case, resulting in swelling, bruises, and bleeding skin.  There was no evidence of actual injury to Ms. Kazemi in the present case.

[30]        I find the circumstances described in Xiao to be the most similar to those at bar, although no two cases will ever be identical.  That case resulted in a 90 sentence, to be served intermittently.

[31]        As in the above cases, Ms. Llanto’s lack of a criminal history is a mitigating circumstance.  Also a significant mitigating circumstance is her guilty plea and statements of remorse.  I note in particular that Ms. Llanto pleaded guilty at an early stage in the proceeding, prior to the Crown receiving the video footage.  I am advised that once the Crown received that footage and changed its sentencing position as a result, Ms. Llanto was given the opportunity to withdraw her guilty plea.  She apparently did so and then promptly pleaded guilty again.  I believe this to be an important acknowledgement of responsibility by her as she pleaded guilty before the inculpatory video footage was circulated.  She has also engaged in counselling until she could not afford to pay for any more.  I find her remorse and acceptance of responsibility to be sincere.

[32]        I am also mindful of the personal circumstances of Ms. Llanto, which include her being the sole provider for her son who is now in grade twelve.

[33]        Aggravating circumstances are that Ms. Llanto abused a position of trust, and the particular vulnerability of Ms. Kazemi, being unable to either protect herself or to report the abuse.

[34]        In weighing all of the circumstances of the offence and circumstances of the offender I find that I am unable to agree with the defence that a Conditional Sentence Order would meet the sentencing principles of denunciation and general deterrence in this case.  In order to give expression to those principles I find, on the facts of this case, that a jail sentence is necessary.  However, I find that a sentence which would allow it to be served intermittently is appropriate in all of the circumstances, which include the fact that Ms. Llanto continues to be the primary caregiver and financial support for her 18 year old son.  As stated in Xiao, the sentence is meant to apply to Ms. Llanto for the offence she committed, and not to her son.

[35]        As such, the sentence shall be 60 days imprisonment.  You must serve this sentence intermittently from Friday at 5:00 PM to Sunday at 5:00 PM on consecutive weeks starting on April 27, 2018.

[36]        At all times that you are not in custody on this order and until your jail sentence has been served in full, you are on probation with the following conditions:

[37]        Following the completion of your intermittent sentence you will also be subject to 12 months of probation, which shall include the following terms:

[38]        After considering the factors set out in s. 487.051(3) I have determined that a DNA sample is not required to be taken from Ms. Llanto.

[39]        With respect to the victim fine surcharge, in consideration of your diminished financial circumstances, I order that the fine be payable forthwith and that you be found in default and that you be sentenced to one day concurrent for the default.