IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           M.B., was convicted of sexual offences, assaults, threatening and breaches of a court order.  A sentencing hearing was held wherein the Crown sought a global sentence of eight years less pre-trial custody of 704 days calculated at 1.5 to one day served for a total of 1,056 days, thus, leaving a remaining custodial sentence of 5 years, 1 month.

[2]           In support the Crown directed the court’s attention to the seriousness of the offences, the duration of the offences, the serious breach of trust and the range of sentences for similar offences.  The Crown relied on the following authorities: R. v. D.N., 2018 BCCA 190, R. v. Hung, 2016 BCCA 230, R. v. T.A.D., [1995] B.C.J. No. 2653, R. v. R.A.J., 2010 BCCA 304.

[3]           Counsel for M.B. argued that the Crown’s sentencing position was excessive and that a fit and appropriate sentence was a sentence of time served which, with credit for pre-trial custody would be an effective sentence of 2 years 11 months.

[4]           In support, counsel for M.B. highlighted M.B.’s efforts while in custody, the absence of a related criminal record, and the need to preserve M.B.’s prospects for rehabilitation and reintegration into the community.  Counsel encouraged the court to apply the principle of restraint and she relied on the following authorities: R. v. D.H., 2018 BCPC 203, R. v. Vautour, 2016 BCCA 497, R. v. S.L.D., 2017 BCPC 349, R. v. Kovacevic, 2001 BCCA 302, R. v. L.H.S, 1999 BCCA 476, R. v. V.K.R., 2017 BCPC 33, R. v. R.J.B., 2016 BCCA 428, R. v. O.M, 2009 BCCA 287, R. v. P.G., 2016 YKTC 67.

[5]           After trial, I found M.B. guilty of the following offences:

[6]           A fulsome description of the factual findings are found in, R. v. M. B., 2018 BCPC 272.

[7]           The circumstances of the offences are briefly:

[8]           When E.D. was between the ages of 7 or 8 and up until she was 15 years old M.B. touched E.D.’s vagina, breasts and buttocks.  He also placed his penis in her mouth and he performed oral sex on her.  Further, M.B. would place E.D. face down and rub his penis on her bare legs and buttocks until he ejaculated.  He also attempted to penetrate her.  These incidents occurred on an almost weekly basis and there was a point where M.B. would show E.D. pornographic videos.

[9]           In the late spring of E.D.’s grade 7 school year, she was packing for the purpose of going on a school camping trip.  During her preparations M.B. grabbed E.D. and he tried to force her pants down.  When M.B. did this he had his pants down and his penis was erect.  M.B. stopped his assault when E.D.’s mother entered the room.

[10]        In the summer of 2015, M.B. attempted to grab E.D.’s breast and she responded by knocking his hand away.  This angered M.B. who responded by slapping, punching and kicking E.D.  E.D. suffered bruising and pain that lasted between 1 and 2 weeks.

[11]        On various occasions and typically during arguments, M.B. would strike E.L.  On one occasion, E.L. was laying on the floor and M.B. stood over her and punched her.  On June 4, 2010, M.B. assaulted E.L. by striking her which caused bruising, swelling and pain to her back.

[12]        M.B. would use threats of violence to prevent E.D. from disclosing the sexual abuse.  In this regard, M.B. regularly told E.D. that he would harm her mother (E.L.) and her brothers if she disclosed the sexual abuse.

[13]        M.B demanded sex from E.L. and she refused.  This refusal caused M.B. to become angry and, for the purpose of obtaining non-consensual sex, M.B. began choking E.L. thereby causing marks to her neck and blood to appear in the whites of her eyes.  The choking stopped when E.L. agreed to have sex with M.B.

[14]        K.L. who was a step-son to M.B., spoke back to him during an argument and M.B. responded by grabbing K.L. by the throat and threatening to kick him out of the family home.

[15]        On November 3, 2016, M.B. was released on a recognizance with conditions prohibiting him from having contact with E.D., E.L., R.L., and K.L. and from attending at their residence.  On November 4, 2016, M.B. entered the family home via an upper window and he ultimately asked E.L. for a set of keys.  The keys were retrieved by R.L. and given to M.B.

[16]        On January 26, 2017, M.B. who was bound by release conditions, attended the home of E.L.’s aunt.  While at the home M.B. stated the following, “If they did not get back together that he would kill all of them and then he would kill himself.”

[17]        The above offences were committed while M.B. completely controlled and dominated the entire family.  He regularly checked E.D.’s emails, he would unexpectedly attend at her school and he tried to monitor her every move.  Moreover, once it was apparent to M.B. that E.D. had disclosed the abuse, M.B. engaged in a pattern of hostility and blaming.  I also observe that M.B. continued to offend even after he had been confronted by E.L.  It is also noted that the threatening offence occurred while M.B. was bound by release conditions and that the breach of recognizance offence occurred within 24 hours of M.B.’s release from custody.

[18]        E.D. prepared a Victim Impact Statement and it was filed as an exhibit.  In her statement E.D. described the constant fear that she had.  She described knowing that the weekly abuse was approaching and feeling anxious and disgusted.  E.D. described her feelings of hatred and anger and how she was afraid to run away as she did not know what M.B. would do to her mother.

[19]        Also in her statement, E.D. described that, after M.B.’s arrest, her family was taken out of their family home and forced to live in hotels.  She found the situation to be terrible.  In this regard she wrote:

[20]        E.D. concluded her statement by acknowledging that she may never really know the impact of the abuse that she suffered.

[21]        In addition to the above, evidence was received during the trial whereby E.D. acknowledged that the abuse caused her to think about taking her own life.  As I watched E.D. testify it was obvious to me that she was embarrassed, ashamed, and traumatized over what M.B. had done to her.

[22]        E.L. also prepared a Victim Impact Statement, and in it she states that M.B. has hurt her physically, emotionally, psychologically, sexually and financially.  She described how approaching court dates would produce migraines, pain and panic attacks.  E.L. feels that she may never recover from what has transpired.

[23]        M.B. is 45 years old.  He was born in Iran.  His father is deceased and his mother is elderly.  M.B. had a religious upbringing and in 1992 to 1993 he was involved in religious teachings.  Prior to coming to Canada, M.B. worked in electronics, he did volunteer work and he worked for his father selling produce.  M.B. also spent 2 years in the Iranian army and between 2001 to 2005 he was a refugee in India where he helped others and acted as a United Nations’ interpreter.

[24]        In 2005, M.B. came to Canada.  While in Canada he worked delivering pizza, and he has done some volunteer work.  From the evidence at trial and based on counsel’s submissions, it appears that M.B. has a minimal Canadian work history and he has largely been unemployed.

[25]        M.B. has been in custody since February of 2017.  During this time he completed various modules related to the program, Essential Skills for Success.  These modules include, orientation, nutrition and health, money management, housing needs, and substance abuse education 1, 2, and 3.  He has also completed the Criminal & Addictive Thinking Workbook and the Socialization Workbook.

[26]        The purpose and principles of sentence are set out in sections 718 - 718.2 of the Criminal Code.  The fundamental purpose is that sentences should contribute to the respect for the law through the imposition of just sanctions that have various objectives (denunciation, deterrence, rehabilitation, separation from society if necessary, etc.).

[27]        A fundamental principle of sentencing is proportionality: section 718.1 of the Criminal Code.  Accordingly, any sentence imposed must be proportionate to the seriousness of the offence and the degree of offender responsibility.  Simply stated, the pursuit of sentencing objectives must not result in a sentence that is disproportionate to the seriousness of the offence or to the degree of the offender’s responsibility.

[28]        Additional sentencing principles are found in section 718.2 of the Criminal Code.  Significantly, any sentence imposed should be increased or reduced in order to account for any aggravating or mitigating circumstances.  As for aggravating circumstances, the Criminal Code directs that it shall be deemed aggravating where the offender in committing the offence abused a position of trust, or, if in committing the offence the offender abused a person under the age of 18 years and whether or not the offence involved the abuse of a common-law partner: sections 718.2 (a) (ii), (ii.1) and (iii) of the Criminal Code.

[29]        Finally, the Criminal Code also directs that similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances, and that combined sentences should not be unduly long or harsh:  sections 718.2 (b) and (c) of the Criminal Code.

[30]        Denunciation and deterrence are the primary sentencing objectives when imposing a sentence on an offender who sexually abuses a person under the age of 18 years of age: section 718.01 of the Criminal Code, R. v. R.A.J., 2010 BCCA 304 at paragraph 24, and R. v. O.M., 2009 BCCA 287.

[31]        In the circumstances of the instant case, this court, through the sentence imposed, must strongly denounce M.B’s crimes and send a message that those who use the vulnerability of children and their position of trust to perpetrate abuse for their own sexual gratification will receive a custodial sentence. 

[32]        I have considered the need for rehabilitation, however in the circumstances, the strong need for denunciation and deterrence overshadows this consideration.  Moreover, there has been nothing offered to suggest that M.B. is willing, needing, or amenable to rehabilitation. 

[33]        Dealing with proportionality, M.B.’s offences were serious.  The sexual offences involved the intrusion into the private and intimate physical integrity of E.D.  Such offences typically cause lifelong, emotional harm and trauma that tends to manifest throughout the victim’s life.  Essentially, the offence sentences the victim to years of suffering and recovery.  In the instant matter, M.B. committed his sexual offences against a young child.  His offending took advantage of E.D’s innocence and her trust.  He clearly left her confused and frightened.  The seriousness of M.B.’s offences is also attenuated by the fact that when E.D. resisted he responded with violence ultimately causing her bodily harm.

[34]        As for the notion that a sexual offence may not be serious because there was no penetration, I reject such antiquated and stereotypical thinking.  In this regard Madam Justice Saunders in R. v.  Worthington, 2012 BCCA 454 at paragraphs 41-43 stated:

[35]        In summary, the issue of the absence of penetration has no place in discussing the seriousness of a sexual assault involving children.

[36]        M.B. has a high degree of responsibility.  M.B. was a step-father to E.D., hence, he was cloaked in trust and yet he abused this trust by sexually exploiting E.D. on an almost weekly basis for approximately eight years.  Accordingly, the nature of the relationship, as well as, the frequency and duration of the abuse supports a finding of heightened responsibility.  In support I rely on R. v. T.A.D., [1995] B.C.J. No. 2653, where McEachern C.J.B.C. observed that the duration of the abuse underscores the seriousness of the offence and the moral culpability of the offender.

[37]        Similarly, in R. v. Vautour, 2016 BCCA 497, Madam Justice Kirkpatrick at paragraph 46, noted the frequency of the abuse and the duration of the abuse as being important factors in determining the gravity of the offence and the degree of moral culpability in cases involving a parent and a child.

[38]        I find the following to be aggravating:

[39]        I have difficulty identifying any mitigating factors.  Not having a related criminal record is not, in my view, a justification for reducing a sentence, rather, it is merely an indicator of an individual’s rehabilitative prospects.  A simple fact is, people are expected to be law abiding.

[40]        As for the programs M.B. took while in custody, I see this as minimally mitigating.  I arrive at this conclusion because the programs he took were not connected to his rehabilitation.  Specifically, the programs were not addressing issues related to his offenses.  At most, the programs are minimally applicable to M.B.’s eventual reintegration and for this reason I give the programs taken little weight.

[41]        I have carefully observed and listened to M.B. and I did not see signs of genuine remorse.  When given the opportunity to address the court M.B. stated;

[42]        In my view, the above falls markedly short of demonstrating genuine remorse.  It fails to indicate what he has learned or what he is sorry for.  Moreover, and despite E.L. being in the courtroom, M.B. never indicated to her that he was sorry specifically, for his actions against her or that he loved her.

[43]        For the reasons stated the mitigating factors are minimal at best.

[44]        I find that the range of sentences for cases of this nature ( the repeated sexual offences against a young child) is expressed in, R. v. T.A.D., [1995] B.C.J. No. 2653 stated at paragraph 9 where the court stated:

[45]        Counsel provided the court with several sentencing authorities.  Although I have considered all of them, I have only briefed those cases that are most consistent with the instant case.

[46]        In R. v. T.A.D., [1995] B.C.J. No. 2653, the Court of Appeal granted the Crown’s appeal and increased the offender’s sentence from 3 years to 6 years.  The offender was convicted at trial for sexual offences committed against his step-daughter.  The offences occurred frequently over a 9 year period.  The offender was 51 years old and he had an unrelated, dated, and long criminal record.

[47]        In R. v. R.A.J., 2010 BCCA 304, the Court of Appeal granted the Crown’s application to increase the sentence for sexual assault offences to 8 years.  The offender was convicted after trial for sexual offences committed against his daughter.  The offences occurred over an 8 year period and involved touching, digital penetration, oral sex, forced masturbation, a number attempts at anal intercourse and one occasion of anal intercourse.  The offender admitted to beating the victim at least twice per week and at times these involved striking the victim with his hand and belt which was sometimes associated to a sexual assault.  The offender did not have a criminal record, he had a steady employment history and he had been using drugs during some of the offending period.

[48]        In R. v. R.J.B., 2016 BCCA 428, the Court of Appeal allowed the offender’s sentence appeal and reduced his sentence from 6 years to 4 years.  The offender was convicted after trial for sexual assaults related to his daughter and her friend.  The offences relating to the daughter, who was mentally disabled, occurred once or twice per week over a four year period.  The appeal was allowed on the basis that the sentencing judge erred in finding that sexual intercourse had occurred weekly over the four years and then using this finding as an aggravating fact.

[49]        In R. v. O.M., 2009 BCCA 287, the Court of Appeal allowed the Crown’s sentence appeal and increased the sentence from a custodial sentence of 2 years less a day plus three years’ probation to a custodial sentence of 5 years.  The offender pled guilty to sexually abusing his daughter from the age of 2 or 3 years until she was 15 years of age (13 years).  The offences started with touching and by the time the victim was 6 years old there was sexual intercourse and digital penetration.  By the time the victim was between 11 and 14 years old the offender abused her on an average of five days a week and approximately three weeks out of every month.  When confronted by the police the offender confessed, his plea was at an early stage, and he was genuinely remorseful.  The offender suffered a chaotic upbringing and was sexually abused as a child.  He also had a related criminal record.  In granting the appeal the court observed that the sentence imposed failed to address the need to denounce the crime, but it also recognized the need to treat the offender with compassion because he had also been the victim of sexual abuse.

[50]        In R. v. Vautour, 2016 BCCA 497, the Court of Appeal allowed the Crown’s sentence appeal and increased the sentence from two years less a day (served conditionally) to imprisonment for 30 months.  The offender pleaded guilty to sexual offences related to the daughter of his girlfriend.  The abuse started when the victim was 5 years old and continued for four-and-a-half-years.  The offences were estimated to be in the hundreds and involved touching, digital penetration, oral sex and forcing the victim to touch him until he ejaculated.  In mitigation, the sentencing judge acknowledged the guilty plea, the expression of remorse, and the offender’s family and community support.  In granting the Crown’s appeal the court found that the sentence imposed was unfit because it was not proportional to the seriousness of the offence and the degree of offender responsibility and also because it also failed to adequately denounce the conduct.

[51]        In R. v. D.H., 2018 BCPC 203, the court imposed a sentence of 4 years after the offender pleaded guilty to sexually touching a young person.  At the time of the offences the offender was a foster parent to the female victim.  The offences occurred over a four year period when the victim was between 10 and 14 years of age.  The offender would enter the victim’s room one to two nights per week and sexually touch the victim, stimulate himself, and on at least ten occasions there was anal intercourse and fellatio.  At the time of sentencing, the offender was 54 years old, he had experienced an unpleasant childhood, he had a history of volunteer work, he expressed remorse, he had taken steps towards treatment and he had the support of his church.

[52]        In R. v. S.L.D, 2017 BCPC 349, the offender was sentenced to 5 years after he pleaded guilty to sexually touching his daughter.  The offences occurred over a 4 year period and involved fondling, having the victim perform oral sex on him and one occasion having her lie naked on top of him.  The offender was 32 at the time of sentencing.  He had been sexually assaulted as a teenager, he had stable employment and he had family support.  When imposing sentence the sentencing judge observed that the offender lacked insight, he minimized his behaviour and he displayed minimal motivation for treatment.

[53]        In R. v. V.K.R, 2017 BCPC 33, the offender was sentenced to 4 years after he pleaded guilty to sexually assaulting his daughter over a 4 year period commencing when she was between 10 and 14 years old.  The offences occurred almost every two weeks and involved touching, kissing, digital penetration and forcing the victim to masturbate him until ejaculation.  The offender was 67 at the time of sentencing (the offences started when he was 36) and he had a related conviction for offences post-dating the offences in issue.  The offender had a stable work history, he suffered from anxiety and diabetes, he was enrolled in a sexual offending relapse prevention program, and he had support from people in the community.

[54]        In R. v. P.G., 2016 YKTC 67, the offender was convicted at trial of sexual offences related to his step-granddaughter and to her friend.  For the offences involving the granddaughter, the offender was sentenced to 27 months imprisonment and to 12 months custody for the offences related to the friend.  The offences committed against the granddaughter involved touching her breasts, thighs and vaginal area.  These offences occurred over a 3 year period and occurred on many occasions.  As for the friend, the offence occurred on one occasion during a sleep over where the offender touched the victim’s breasts, stomach and vaginal area.  The offender did not have a criminal record, his work history was good and he had support in the community.

[55]        In considering the above cases I remind myself that sentencing is an individualized process and a sentencing court must consider the unique circumstances of the offences and of the offender: R. v. Ipeelee, 2012 SCC 13. 

[56]        Finally, counsel for M.B. sought to distinguish some of the cases on the basis that some the victims were the biological daughters of the offenders versus the instant matter where E.D. was a step-daughter to M.B.  I categorically reject that this type of distinction has any merit.  It matters not the origin of the relationship, rather, what is significant is the offender used his position of trust to abuse a vulnerable, innocent child and he did so for his own sexual gratification.  Whether the position of trust was formed biologically, or through relationship, fostering, adoption or employment, it does not matter.  All children deserve and have the right to be equally protected and not abused by those who they are trusted to.

[57]        M.B. breached his family’s trust and he regularly abused E.D. over a long period of time.  His conduct violated a fundamental societal value in that children are never to be used for sexual gratification.  Such conduct must be strongly denounced and deterred.  I place little weight on M.B.’s rehabilitation because he has not demonstrated any insight nor has he shown that he is genuinely remorseful.

[58]        I find all of M.B.’s offences were serious and that his level of blameworthiness is high.  In this regard, he had ample opportunity to stop his offending behaviour and yet he persisted on a regular basis over a long period of time.  I also, observe that the assault against K.L., although not physically damaging, was committed against a younger person who viewed M.B. as a step-father.  Lastly, the offences committed while M.B. was on judicial interim release may appear to be innocuous, however, they had the effect of frightening the family and the authorities.  The moral blameworthiness in relation to the breach offences is found in the thought and planning that went into them.

[59]        I have considered the sentence proposed by counsel for M.B. and I find that the imposition of the sentence suggested would be unfit because such a sentence would be disproportionately low.  I also find that the proposed sentence would also fail to adequately denounce and deter similar conduct.

[60]        Considering the authorities provided, I find that the instant case is similar in many respects to R. v. R.A.J., 2010 BCCA 304 wherein the Court of Appeal upheld an 8 year sentence.  Perhaps, the significant distinguishing feature is that the physical beatings in R.A.J. were described as occurring twice weekly and included the use of a belt, whereas in the instant case, the physical striking of E.D. did not involve this frequency nor was a belt used.

[61]        With all of the above in mind, I impose the following sentences:

[62]        I now turn to consider the totality of the sentences imposed.  I recognize that the combined sentences would result in a total sentence of 8 years and 4 months.  In my view the absence of a related criminal record, M.B.’s background and his willingness to take programs while in custody militates towards the conclusion that a sentence of 8 years and 4 months would be crushing.  Accordingly, I direct that all counts will be served concurrently thus resulting in a global sentence of 7 years.  From this amount the credit of 2 years 11 months will be deducted leaving a remaining balance of 4 years and 1 month.

[63]        Finally, and despite the sentence being slightly reduced, I am of the view that the purpose and principles of sentencing are still met.

[64]        Pursuant to section 487.051 of the Criminal Code, I make an order authorizing the taking of the number of samples of bodily substances that are reasonably required for the purpose of a forensic DNA analysis.

[65]        Pursuant to section 109 of the Criminal Code, I prohibit M.B. from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for 10 years.

[66]        Pursuant to section 743.21 (1) of the Criminal Code, M.B. is prohibited from communicating directly or indirectly with, E.D., R.L., K.L., E.L. and L.A.

[67]        Pursuant to section 490.012 of the Criminal Code, you are required to comply with the Sex Offender Information Registration Act for 20 years.