[1]           On September 17, 2018, after an eleven day trial, I convicted K.S.T. of the following offences under Information 24560-2-C, as follows:

[2]           After delivering my Reasons for Judgment, I invited submissions from counsel on whether any convictions should be judicially stayed on the basis of R. v. Kienapple,1974 CanLII 14 (SCC). With agreement of counsel, I ordered a conditional judicial stay of Count 1 (sexual assault) on May 9, 2019.

[3]           On September 17, 2018, I ordered a Presentence Report from Community Corrections and a Psychological Risk Assessment from Forensic Psychiatric Services Commission. On January 25, 2019, Probation Officer Leanne Whyte delivered a Presentence Report on behalf of Community Corrections.

[4]           The Psychiatric Risk Assessment was filed on December 31, 2018, and entered as Exhibit 1 in this sentencing hearing and the Presentence Report was entered as Exhibit 2. The Court also received a Victim Impact Statement which was entered as Exhibit 3 on the sentencing hearing.

[5]           The issue for the Court is to determine a fit and proper sentence taking into account all of the relevant purposes and principles of sentencing, the circumstances of the offence and the particular circumstances of the offender, K.S.T.

[6]           S.H. and her sister, S.D., lived with K.S.T. and his wife, M.G., off and on for six or seven years, beginning in approximately 2010 and ending in December 2016. Although S.H. and S.D.’s mother, R.H. was her niece, M.G. considered S.H. and S.D. as her grandchildren.

[7]           S.H. was born on [omitted for publication]. She was [omitted for publication] when she testified at trial on November 2 and 3, 2017; and about [omitted for publication] on August 21, 2018, when she was recalled for further cross-examination. She was between the ages of 9 and 12 during the offence period. She is now [omitted for publication].

[8]           S.H. and S.D. had a somewhat unstable upbringing, which is why they spent so much time with K.S.T. and M.G. Over the years, S.H. and S.D. lived in multiple residences. M.G. said that sometimes the girls would call in the middle of the night wanting K.S.T. to pick them up because of on-going parties at home. The girls felt safe at the T/G residence.

[9]           S.H. complained that while she was in his care, K.S.T. sexually abused her in a variety of different ways in a variety of different circumstances. The facts relevant to this conviction are set out in my Reasons for Judgment: in R. v. K.S.T., 2018 BCPC 238 (CanLII).

[10]        K.S.T. became a father figure to S.H. and S.D. and M.G. came to feel as though they were her own children. S.H. and S.D. referred to K.S.T. as [omitted for publication] and M.G. as grandma or granny. [Omitted for publication] for grandpa.

[11]        K.S.T. began intentionally and for a sexual purpose touching S.H. before January 31, 2016, when she turned 12 years old. The sexual touching carried on until S.H. disclosed the abuse to her mother on or about December 27, 2016.

[12]        At various times when he was alone with S.H. in [omitted for publication], K.S.T. intentionally and for a sexual purpose touched S.H.’s buttocks, vagina, or breasts.

[13]        On three occasions when he took S.H. for a side-by-side outing at or near [omitted for publication], K.S.T. attempted sexual intercourse with S.H., but did not succeed in penetrating her. He placed his exposed penis in her bare buttocks and on or near her vagina. During these incidents S.H. saw his penis. S.H. told K.S.T. to stop which he did eventually, but not immediately.

[14]        On at least three occasions, when S.H. wanted a favour from him, K.S.T. told her she would have to owe him. By owing him, he meant and S.H. understood him to mean she was to make herself sexually available to him.

[15]        One time, when he was letting S.H. drive his pickup at or near [omitted for publication], K.S.T. tried to kiss her and said, “Yummy, I want you.”

[16]        On either June 17, 2016 or July 20, 2016, while staying at the [omitted for publication] on an over-night trip to Prince George, K.S.T. intentionally and for a sexual purpose touched S.H.’s buttocks and/or vagina. This incident occurred when M.G. was in the casino and S.D. was in the shower.

[17]        On November 5, 2016, while staying in the [omitted for publication] in Prince Rupert, B.C., K.S.T. intentionally and for a sexual purpose touched S.H.’s breasts or buttocks and stuck his hands down her pants and touched her vagina. When S.H. told him to stop, he got mad and took away his phone she had been using. This incident occurred when S.D. was present in the hotel room and M.G. was in the casino.

[18]        One evening while she was at the T/G residence in [omitted for publication], K.S.T. intentionally and for a sexual purpose exposed his penis to S.H. and asked her to suck it. She said no, she didn’t want to, and K.S.T. told her to kiss it, which she did.

[19]        One evening at the T/G residence in [omitted for publication], K.S.T. came into the kitchen wearing shorts. He intentionally and for a sexual purpose asked S.H. to touch his penis with her hand. When she refused, he grabbed her hand and placed it on and moved it about his erect penis.

[20]        In December 2016, in the living room in the T/G residence, K.S.T. intentionally and for a sexual purpose touched S.H.’s buttocks and vagina while she sat on the arm of his chair watching him use his cell phone. S.D. was present and witnessed this incident. Both S.D. and S.H. told K.S.T. to stop and he denied touching S.H.

[21]        From time to time when hugging S.H. goodbye K.S.T. intentionally and for a sexual purpose touched S.H.’s buttocks and vagina. On one occasion K.S.T. told her he would “try and get inside her.”

[22]        K.S.T.’s personal circumstances are set out in the Psychological Risk Assessment Report (Exhibit 1) and Presentence Report (Exhibit 2).

[23]        K.S.T. was born on [omitted for publication], and is now 58 years old. He was raised by his parents and grandparents in Prince Rupert and [omitted for publication]. His family was very poor and his home plagued by conflict and domestic violence as a result of his parent’s alcohol abuse. Nevertheless, he grew up in his own family home.

[24]        K.S.T. has a grade 8 education. He was 15 when he left school and joined the work force. Over the years he has worked in carpentry, sawmill, fish hatchery, silviculture, logging, and seismic monitoring. At 42 he became certified as a heavy equipment operator and has worked in this trade ever since. In the last two to three years, K.S.T. worked for [omitted for publication] north of Stewart, B.C. as a truck driver and heavy equipment operator. He worked in camp on a rotating two-week schedule. K.S.T. was laid off on October 17, 2018, and is now in receipt of Employment Insurance.

[25]        K.S.T. lives with M.G., his wife of 33 years. It was a troubled marriage until K.S.T. stopped drinking 16 years ago. They have no biological children, however, they have raised a number of children of friends and relatives. M.G. has been supportive of K.S.T. and believes him innocent of the offences for which he has been convicted on September 17, 2018. K.S.T. spends much of his leisure time with his wife and working around his home.

[26]        K.S.T. began drinking as a teenager and stopped completely when he was 42 years old. He does not use street drugs and never has to any significant degree. K.S.T. has some physical health issues. He suffers from arthritis and takes medication for high cholesterol and heart palpitations. Dr. Wiebe observed that K.S.T. is overweight and appears older than his years. There is no suggestion K.S.T. suffers from any cognitive impairments.

[27]        K.S.T. has a dated criminal record. On [omitted for publication], he was convicted for driving while over .08. On [omitted for publication], K.S.T. was convicted of sexual assault and placed on a six-month conditional sentence order. This conviction arose as a result of K.S.T. pleading guilty to having sexual activity with a female victim at a party while they were both intoxicated, but she was unconscious.

[28]        The Court received a Psychological Risk assessment from Dr. David Wiebe a psychologist in the employ of the Forensic Psychiatric Services commission and a Presentence report prepared by Probation Officer, Leanne Whyte, of Terrace Community Corrections. In both reports, K.S.T. refused to discuss the offence with his assessors; otherwise, he willingly participated in the process.

[29]        The Court cannot consider K.S.T.’s refusal to discuss the offences with the psychologist or probation officer an aggravating factor in sentencing. In R. v. Funk, 2014 BCSC 383 (CanLII), Mr. Justice Davies held an offender’s residual right against self-incrimination as protected under s. 7 of the Charter of Rights and Freedoms, does not evaporate post-conviction. An offender cannot be compelled to adduce inculpatory evidence if he chooses not to do so. The offender cannot be punished for not fully participating in the assessment, nor can the Court make an adverse inference with respect to his refusal to participate: R. v. Donovan, 2004 NBCA 55. In this case, K.S.T. indicated he may wish to appeal the conviction and on advice of counsel declined to discuss the sexual offences for which he was recently convicted.

[30]        Dr. Wiebe opined that K.S.T. presents a moderate risk to sexually reoffend. In formulating this opinion, Dr. Wiebe relied on the Risk for Sexual Violence Protocol (“RSVP”), a set of structured professional judgment guidelines for comprehensive assessment and management of risk for sexual violence. Under the RSVP guidelines, the assessing psychologists considers up to 22 risk factors falling within five general categories: (1) sexual violence history; (2) psychological adjustment; (3) mental disorder; (4) social adjustment; and (5) manageability. With respect to K.S.T. specifically, Dr. Weibe considered the following risk factors: (a) the chronicity of sexual violence; (b) the diversity of sexual violence; (c) the escalation of sexual violence; (d) the psychological coercion in sexual violence; (e) the minimization or denial of sexual violence; (f) attitudes that condone or support sexual violence; (g) problems with self-awareness; (h) problems with stress or coping; (i) childhood traumatic experiences; (j) problems with intimate and non-intimate relationships; (k) non -sexual criminality; (l) problems with planning; and (m) problems with treatment.

[31]        Dr. Wiebe states his ability to provide a meaningful assessment of K.S.T.’s risk to reoffend was undermined by K.S.T.’s refusal to discuss the offences for which he was convicted on September 17, 2018. Dr. Wiebe states:

[32]        The Defence Counsel submits Dr. Wiebe’s opinion that K.S.T. is a moderate risk for future sexual offending is based upon stale-dated convictions, misinformation, and adverse inferences drawn from K.S.T. exercising his right to silence with respect to the index offences. The Defence raises the following concerns with Dr. Wiebe’s risk assessment:

[33]        In addition to the above list of deficiencies, Defence Counsel points to Dr. Wiebe misunderstanding the index offences. On page seven of his assessment report, under the heading, “Criminal History,” Dr. Wiebe referred to sexual assault charges that did not result in conviction. These were the same charges before the Court. At some point the Crown amended Information 24560-1 with Information 24560-2-C. The Crown stayed the lead Information and proceeded on the C information. Dr. Wiebe apparently did not know the offences charged on the lead and amended Informations were the same. With the agreement of the Crown and Defence, the Court excised this information from his report.

[34]        Unfortunately, it is difficult to know how his misunderstanding of K.S.T.’s criminal history may have influenced Dr. Wiebe assessing K.S.T. as a moderate risk to sexually reoffend. A similar situation arose in R. v. D.C.R., 2017 BCPC 202 (CanLII) in which the Court had to consider the impact of evidentiary errors on the psychologist’s risk assessment. The Court in D.C.R. determined such errors must go to the weight it gives to the psychologist’s ultimate opinion.

[35]        I am of the view the deficiencies and errors the Defence identified in Dr. Wiebe’s psychological assessment report are not insignificant. Accordingly, I find K.S.T. presents a lower risk for future sexual violence than that which Dr. Wiebe opines.

[36]        In her Presentence report, PO Whyte provided the Court with a thorough report on K.S.T.’s circumstances as an indigenous offender.

[37]        K.S.T. is a status member of the [omitted for publication]. He is a member of the [omitted for publication] clan and his wife, M.G., is a member of the [omitted for publication] clan. K.S.T. and M.G. have resided in [omitted for publication] for the past 33 years and have strong ties to their community. K.S.T. participated with his father in traditional hunting, fishing, and trapping. He spoke his traditional language to his parents and participated in feasts and other cultural activities. K.S.T.’s mother went to residential school, but she refused to speak of her experience. Still, K.S.T. believes it adversely affected his mother’s parenting ability.

[38]        K.S.T. grew up in poverty, witnessing alcohol and physical abuse within his home. When he was 10 years old, K.S.T. lost his older brother to a hunting accident. Because his parents were seasonal fishers, K.S.T. moved back and forth between [omitted for publication] and [omitted for publication]. He struggled with school until he left it permanently in grade 8. When 15 years old, K.S.T. joined the work force as a labourer to help his family make ends meet. At this time K.S.T. began drinking and abused alcohol for the next 27 years. He attended the Nechako treatment centre when he was 42 and has now been sober ever since.

[39]        Later in life, K.S.T. received training and vocational tickets which qualified him to work in the oil and mining industries. When he was 42 years old, K.S.T. became certified as a heavy equipment operator, and worked in this capacity for a number of years at the [omitted for publication] near [omitted for publication], B.C.

[40]        Section 722 of the Criminal Code directs a sentencing judge consider a victim impact statement for “the purpose of determining the sentence to be imposed.” In R. v. Berner, 2013 BCCA 188 (CanLII), the Court of Appeal held (at para. 12) that victim impact statements play an important role in the sentencing process. At para. 13, the appellate court in Berner stated, “the content of the statement is restricted to a description of “the harm done to, or loss suffered by, the victim arising from the commission of the offence.”

[41]        S.H. provided a Victim Impact Statement, which counsel redacted and entered as Exhibit 3 in this sentencing hearing. She describes the emotional impact of the offences upon her as follows:

[42]        S.H. does not report any physical injury, but does attend counselling with the Northern Society for Domestic Peace in Smithers to address the psychological and emotional impact of the offences. Her family bears the cost of transporting S.H. back and forth between [omitted for publication] and Smithers to attend the counselling sessions.

[43]        In this matter, the Crown has proceeded by indictment. In 2013 an offence of sexual interference and invitation to sexual touching charged under ss. 151 and 152 of the Criminal Code where the Crown has proceeded by indictment attracted a maximum term of imprisonment of 10 years and a minimum sentence of one year. On July 17, 2015, the Tougher Penalties for Child Predators Act, SC 2015, c 23, came into force. The Parliament legislated new penalties for sexual offences against children. The maximum sentence for ss. 151 and 152 when charged indictably were increased to 14 years and the minimum sentence to one year.

[44]        Recently, in R. v. Scofield, 2019 BCCA 3 (CanLII) and its companion case, R. v. Horswill, 2019 BCCA 2 (CanLII), the B.C. Court of Appeal held the mandatory minimum sentence set out in s. 151 was unconstitutional and of no force and effect.

[45]        Both before and after the 2015 amendments, the maximum sentence for s. 173(2) (exposing genitals to a child under 16), when charged indictably, was a term of imprisonment of two years and a minimum term of 90 days.

[46]        Section 718 of the Criminal Code, sets out the fundamental purpose of sentencing, which is to contribute, along with crime prevention initiatives, respect for the law and the maintenance of a just, peaceful and safe society, by imposing just sanctions, to have one or more of the following objectives: (a) denunciation; (b) deterrence; (c) protection of the public; (d) rehabilitation of the offender; (e) reparation to victims; and (f) promotion of a sense of responsibility in the offender.

[47]        Section 718 codifies the common law principles of sentencing: R. v. Nasogaluak, 2010 SCC 6 (CanLII), at para. 39.

[48]        Section 718.1 of the Criminal Code codifies the proportionality principle, which requires the sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender. The gravity of the offence refers to what the offender did wrong. It includes two components: (a) the harm or likely harm to the victim; and (b) the harm or likely harm to society and its values: R. v. Lacasse, 2015 SCC 64 (CanLII), at para. 130.

[49]        In R. v. Ipeelee, 2016 SCC 14 (CanLII), LeBel, J., states in para. 37, in part:

[50]        Section 718.01 of the Code directs the Court to give primary consideration to deterrence and denunciation when sentencing for any offence involving abuse of a person under 18. In R. v. R.J.B., 2016 BCCA 428 (CanLII) at para. 29. Justice Bruce held principle set out in section 718.01 is a codification of a pre-existing sentencing principle. In R. v. M.P.S., 2017 BCCA 397 (CanLII), Stromberg-Stein, J.A., for the majority of the B.C. Court of Appeal, cites with approval the following statement from Justice Abella (as she then was) in R. v. Stuckless, 1998 CanLII 7143 (ON CA):

[51]        Other important sentencing considerations are set out in section 718.2, which states a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Today, the Criminal Code legislates the following factors as aggravating: (a) Section 718.2(a)(ii.1) the young age of the victims; (b) Section 718.2(a)(iii) the offender was in a position of trust or authority in relation to the victim; and (c) Section 718.2(a)(iii.1) the offence had a significant impact on the victim.

[52]        Section 718.2(b) codifies the parity principle which holds sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances. In Ipeelee, the Supreme Court held the “parity principle . . . means that any disparity between sanctions for different offenders needs to be justified.”

[53]        Section 728.2(c) codifies the totality principle which holds that where sentences are imposed consecutively, the combined sentence should not be unduly long or harsh: a sentence should not exceed the overall culpability of the offender. It may offend the totality principle if it is substantially above the normal level of a sentence for the most serious of the individual offences involved, or its effect is crushing and not in keeping with the offender’s record and prospects: R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500.

[54]        Sections 718.2(d) and 718.2(e) codify the restraint principle which holds an offender should not be deprived of liberty if less restrictive principles may be appropriate and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders: s. 718.2(e).

[55]        R. v. Gladue, 1999 CanLII 679 (SCC), and R. v. Ipeelee, 2012 SCC 13, are the leading cases with respect to how s.718.2(e) should be applied, and the framework for sentencing indigenous offenders. The judge has a statutory duty imposed by s. 718.2(e) to consider the unique systemic and background factors which may have played a part in bringing the particular offender before the Court and the types of sentencing procedures and sanctions that may be appropriate because of the offender’s particular indigenous heritage. The offender is not required to establish a causal link between background factors and the commission of the offence before being entitled to have those factors considered by the sentence judge. Judges may take judicial notice of the broad systemic and background factors affecting indigenous people generally and case-specific information from the offender and the presentence reports.

[56]        K.S.T. is a member of the [omitted for publication] First Nations and therefore the principles relating to sentencing indigenous offenders as set out in s. 718.2 apply.

[57]        Sentencing is a highly individualized process: Ipeelee, at para. 38. In R. v. Knott, 2012 SCC 42 (CanLII), the Supreme Court held that "the purpose and principles of sentencing set out in the Criminal Code are meant to take into account the correctional imperative of sentence individualization."

[58]        In R. v. Scofield, 2019 BCCA 3 (CanLII) at para. 65, Harris, J.A. for the majority states:

[59]        Both the Crown and Defence have provided case law in support of their respective positions on sentence.

[60]        The Crown proposes a fit and proper sentence for K.S.T. is six years jail, together with various mandatory and discretionary ancillary orders. In support of its position, the Crown relies on the following authorities: R. v. M.P.S., 2017 BCCA 397 (CanLII); R. v. M.P.S., 2016 BCSC, 1175 (CanLII); R. v. Wesley, 2014 BCCA 321 (CanLII); R. v. Worthington, 2012 BCCA 454 (CanLII); R. v. R.E.L., 2010 BCCA 493 (CanLII); R. v. S.S.S., 2018 BCSC 2470 (CanLII); R. v. T.J.B., 2015 BCSC 855.

[61]        In R. v. R.E.L., 2010 BCCA 493 (CanLII) the B.C. Court of Appeal upheld a sentence of five years jail against an offender who sexually assaulted his stepdaughter over a six-year period. The offences began when the victim was six years old and continued until she was 12. The sexual assaults included fondling, oral sex, digital penetration, and attempted intercourse. The accused pleaded guilty, had no prior record, expressed remorse and sought treatment. In upholding the five-year sentence Hinkson, J.A., as he then was, observed that some of the cases to which he was referred and in which lesser sentences were imposed concerned historical sexual offences. He noted the principle of denunciation weighs particularly heavily in cases of offences perpetrated against children by adults in positions of trust. Referencing R. v. T.A.D. (1995), 68 B.C.A.C. 236, Justice Hinkson described the usual range for long-term, highly‑intrusive sexual abuse of a child by a person in a position of trust as “five to eight or nine years.” (In T.A.D., the Court increased the sentence from three to six years jail where the offender sexually abused his stepdaughter over a period of nine years. The abuse included acts of sexual intercourse when the victim was younger than 14.

[62]        In R. v. Worthington, 2012 BCCA 454 (CanLII) the offender was sentenced to four years jail for sexually abusing his stepdaughter when she was 14 and 15 years old. The sexual contact involved kissing, sexual touching, masturbation, oral sex, and rubbing his penis against her vagina once or twice a month over a period of 18 months. The accused admitted grooming the victim. He did not receive the benefit of a guilty plea because the victim has to testify in a Gardiner hearing. The B.C. Court of Appeal upheld the four year jail sentence. Although the Crown failed to prove the sexual abuse involved penetration the appellate court found Mr. Worthington’s behaviour egregious. Justice Saunders stated at para. 41:

[63]        R. v. Wesley, 2014 BCCA 321 (CanLII), the 27 year old indigenous offender committed three incidents of sexual assault on his girlfriend’s seven to eight year old niece. The abuse included having the naked child sexually touching him, touching her with a sexual object, and fondling. These offences took place over several months and did not include intercourse. On appeal, the Court found the sentence of five years was fit, but reduced it by 212 days to reflect credit for pre-sentence custody at a rate of 1:5.

[64]        In Wesley, Justice Saunders for the unanimous Court noted the offender, although in a position of trust, was not in the same position a father would have been. Nevertheless, Mr. Wesley had co-opted the child’s aunt into helping him commit the offences. Mr. Wesley also had a criminal record that included convictions for three prior assaults and an aggravated assault. The psychiatrists deemed Mr. Wesley to be a very high risk to reoffend. From the standpoint of the principles enunciated in Gladue, Mr. Wesley had a very sympathetic background involving many difficult and adverse factors. He also was cognitively impaired as a result of what may have been Fetal Alcohol Spectrum Disorder.

[65]        In R. v. T.J.B., 2015 BCSC 855, Justice Bruce convicted the offender after a trial of sexual offences against a nine to ten year old victim which occurred regularly over a one-year period between 2011 and July 2012. The offender was the son of a long-time family friend of the complainant’s family. The sexual abuse involved the offender fondling the victim’s genitals, having the victim rub his penis until ejaculation, pressing his penis against the victim’s anus until it became painful, kissing the victim’s chest and the victim kissing his chest, and clothed simulated sexual intercourse. The offender continued to deny the offences post-conviction and, as in this case, refused to speak to the psychologist or probation officer about the offences on the advice of counsel. T.J.B.’s supportive family also believed he was wrongfully convicted.

[66]        Justice Bruce found aggravating: (a) the victim’s young age; (b) the length and frequency of the abuse; (c) the breach of trust; (d) the nature and severity of the sexual touching; (e) the offender actively groomed the complainant for sexual touching; (f) the offender made threats and promises designed to ensure the complainant did not tell others about the misconduct; (g) the significant age difference between the offender and the victim; (h) the offender had a moderate to moderate-high risk for sexual recidivism; and (i) the harm caused to the victim and his family was severe and long lasting.

[67]        In T.J.B., Justice Bruce found mitigating: (a) the offender had no criminal record; (b) the offender was a young man; (c) the offender had otherwise been a law-abiding and contributing member of the community; (d) the offender had the support of his friends and family. Justice Bruce noted (at para. 35) the following neutral factor:

[68]        Justice Bruce concluded a fit sentence for T.J.B. was four years and six months. In reaching this conclusion she discussed (at para. 31) the inflationary effect of the most recent authorities on sentences for child sexual abuse:

[69]        In R. v. M.P.S., 2016 BCSC, 1175 (CanLII), aff’d R. v. M.P.S., 2017 BCCA 397 (CanLII) the offender was convicted of six sexual offences against his two step-granddaughters. Over a seven-year period, the offender engaged in ongoing and escalating acts of serious sexual abuse with one child, who was between 10 and 17 years old at the time. These began as touching and progressed to oral sex and partial penile penetration. The other grandchild was the victim of two incidents, involving digital penetration and oral sex, one when she was 13 and one when she was 15. The accused was convicted after a lengthy trial. The trial judge imposed individual sentences of seven years in regard to the first victim and a two year consecutive sentence in regard to the second victim. Applying the principal of totality she then reduced the sentence to eight years. Despite the offender's relatively advanced age (74) and related health problems, the Court of Appeal dismissed M.S.P.’s appeal from the global sentence of eight years, commenting that those factors had already been taken into account by the sentencing judge.

[70]        In R. v. R.J.B., 2016 BCCA 428 (CanLII), the offender sexually assaulted his mentally disabled daughter over four years, starting when she was 10 years old. The assaults occurred once or twice per week. There were no mitigating factors. The appellant did not plead guilty, he continued to deny the offence, demonstrated no empathy for the complainant or insight into his own behaviour, and had a previous conviction for sexually offending against another daughter from his first marriage (which he also continued to deny). Because of her disability, the victim provided little detail regarding the nature of the assaults beyond saying her father would lie on top of her with his penis against her vagina. The jury acquitted R.J.B. on the incest count, but convicted him of sexual assault. This outcome suggested the jury had some doubt as to whether the offender had sexual intercourse with the victim. The accused was not an ideal candidate for treatment, and considered a high risk to re-offend. The sentencing judge, who had not been the trial judge, erroneously considered actual sexual intercourse as an aggravating factor when that fact had not been established. B.C. Court of Appeal, citing on its earlier case in R. v. Hume, 2016 BCCA 230, commented a sexual assault’s seriousness is not dictated by the existence (or non-existence) of penetration. Nevertheless, the appellate court adjusted the sentence for the error by reducing it from six to four years. The appellate court found a four-year sentence satisfied the parity principle and fit within the range of sentences imposed for sexual assaults involving similar offenders and similar circumstances.

[71]        R. v. S.S.S., 2018 BCSC 2470 (CanLII), Justice Schultes convicted the offender of sexual offences against his granddaughter, when she was between six and 16 years old. He had no criminal record and given he was 80 years old at the time of sentencing, presented a very low risk to reoffend. Aggravating factors included: (a) the duration and frequency of the offending which terminated only with the loss of opportunity; (b) grooming; (c) sexual intercourse: (d) the offences occurred in the family home in the near presence of other family members; and (e) the offender was the victim’s biological grandfather and caregiver. In imposing a sentence of seven years jail, Justice Schultes noted that lower sentences for comparable abuse have usually been the consequence of a guilty plea.

[72]        The Defence acknowledges a federal sentence is necessary in this case, but submits a term of imprisonment of three years will suffice. The Defence objects to an ancillary order under s. 161(1)(a) of the Criminal Code which would prohibit K.S.T. from, “attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a day-care centre, school ground, playground, or community centre” or to an order under s. 161(1)(d) prohibiting K.S.T. from “using the internet.”

[73]        The Defence provided the Court with the following authorities: R. v. Allen, 2012 CarswellBC 2868, 2012 BCCA 377, para. 59, R. v. Anderson, 1992 CanLII 6002 (BC CA), 1992 CarswellBC 441, para. 19, [1992] B.C.J. No. 1580; R. v. Hilbach, 2019 CarswellBC 856, 2019 BCPC 73, para. 39; R. v. Campbell, 1995 CarswellBC 540, [1995] B.C.J. No. 1483, paras. 5-6; R. v. Ipeelee, 2012 SCC 13, paras. 80-88 ; R. v. G. (A.), 1998 CanLII 7189 (ON CA), 1998 CarswellOnt 3982, [1998] O.J. No. 4031, para, 58-59 ; R. v. McLean, 2014 CarswellBC 2018, 2014 BCSC 1293, para. 41; R. v. Dinn, 1993 CanLII 7745 (NL CA), 1993 CarswellNfld 62, [1993] N.J. No. 8, 104 Nfld. & P.E.I.R. 263, para. 18; R. v. Priest, 1996 CanLII 1381 (ON CA), 1996 CarswellOnt 3588, [1996] O. J. 3369; R. v. M. (R.E.), 2005 BCSC 698, 2005 CarswellBC 1271, paras. 27, 37-40; R. v. D. (C.G.) 2009 CarswellBC 750, 2009 BCSC 404; R. v. Bolderson, 2018 CarswellBC, 2018 BCPC 268.

[74]        R. v. Allen, 2012 CarswellBC 2868, 2012 BCCA 377, the B.C. Court of Appeal considered the application of s. 718.01 when deciding the fitness of a sentence for an offender convicted of possession of child pornography for the purpose of distribution or sale and sexual assault. Justice Stromberg-Stein, the sentencing judge, imposed a total jail sentence of 39 months. In doing so, she first considered denunciation, but went on to consider rehabilitation as an equally important objective. The Court of Appeal found that this approach was based on an incorrect premise. In increasing the offender’s sentence from 39 months to six years, Ryan J.A. stated that the sentencing judge had been “bound to give primary consideration and importance to the objectives of denunciation and deterrence in fashioning her sentence on both counts and, at least with respect to the assault count, was bound to find that the age of the victim was an aggravating factor” (para.51).

[75]        The Court in Allen reviewed cases from 2001 to 2012, and concluded (at para. 57) they revealed an escalation in recent years in severity of sentences imposed where children are the victims of sex offences. Justice Ryan makes clear that when dealing with offences involving the sexual exploitation of children, the Court must bear in mind the need for general deterrence and denunciation. She points out, however, that while retribution is an accepted sentencing principle, vengeance is not. She states at para. 59 and 60:

[76]        R. v. Anderson, 1992 CanLII 6002 (BC CA), 1992 CarswellBC 441, para. 19, [1992] B.C.J. No. 1580 is a case involving criminal negligence causing death and criminal negligence causing bodily harm. The Defence relies on para. 19 this authority for the proposition:

[77]        Anderson is often cited for Taylor J.A. comments at para. 29 and 30, on the mitigating nature of remorse:

[78]        In R. v. Hilbach, 2019 Carswell 856, 2019 BCPC 73, the Court noted at para. 39, “jurists have expressed scepticism about the efficacy of general deterrence as a sentencing objective. The Court referenced R. v. Horvath, 1997 CarswellSask 296 (SKCA), para. 46, R. v. Steen, 2018 BCPC 353 (CanLII), para. 15, citing R. v. Preston, 1990 CanLII 576 (BC CA).” I note this comment and the cases referenced relate to the issue as to the efficacy of denunciation and deterrence, general or specific, in relation to drug addicts who commit offences to feed their habits. Where attempts at denunciation and deterrence appear futile, it will be appropriate for a sentencing judge to focus on attempts at rehabilitation.

[79]        In R. v. Campbell, 1995 CarswellBC 540, [1995] B.C.J. No. 1484, the B.C. Court of Appeal reduced the offender’s sentence of two years less a day for sexual assault plus two years’ probation to six months. The offences occurred over a six-month period in 1986 and involved six acts of fellatio and one of anal intercourse performed on an 11-year-old victim. The offender was 22 years old at the time of the offence, which was approximately 10 year prior to his being charged. The offender pleaded guilty, received a favourable pre-sentence report, and made attempts at rehabilitation. Mr. Justice Carrothers for the appellate court found (at para. 5) the offender’s contrition, remorse, rehabilitation, and non-recidivism outweighed any anguish and torment of the victim. He goes on to state at para. 6:

[80]        R. v. G. (A.), 1998 CanLII 7189 (ON CA), 1998 CarswellOnt 3982, [1998] O.J. No. 4031, is a decision of the Ontario Court of Appeal on an appeal from conviction and sentence. The Defence relies on paras. 58-59, wherein Lambrosse, J.A. for the majority, stated:

[81]        Twelve years after handing down Gladue, the Supreme Court returned to the principles at play when sentencing indigenous offenders in Ipeelee. The Supreme Court expressed concern (at para. 84) that numerous courts had “erroneously interpreted” its decisions in R. v. Wells, 2000 SCC 10 (CanLII) and Gladue as having less significance when sentencing an indigenous offender for serious crimes. In Ipeelee, LeBel J. also dispelled the notion that Gladue principles amount to a race-based discount. He states at para. 75:

[82]        LeBel J. goes on to states at para. 84, in part:

[83]        R. v. McLean, 2014 CarswellBC 2018, 2014 BCSC 1293, Justice Romilly sentenced a 26‑year-old indigenous man to one year imprisonment and two years' probation for sexual assault. The offence occurred on October 28, 2012. The victim had attended a wedding and became very intoxicated. Mr. McLean had intercourse with her while she was unconscious. Mr. McLean was then assaulted by the victim’s brother who discovered him committing the offence. Mr. McLean grew up in the care of his alcoholic mother who was a residential school survivor. He had never lived independently and had a long criminal record that included two prior convictions for sexual assault against minors. A forensic assessment found him to be at moderate to high risk of reoffending. He was serving a conditional sentence at the time of the offence. Notably, he had been incarcerated for 16 months since then and had successfully completed several programs. The Court imposed a sentence of three years' imprisonment, less time served. The Defence references McLean for Justice Romilly’s following comments on the impact of a prior criminal record:

[84]        R. v. Dinn, 1993 CanLII 7745 (NL CA), 1993 CarswellNfld 62, [1993] N.J. No. 8, 104 Nfld. & P.E.I.R. 263 is a sentencing decision of the Newfoundland Court of Appeal. In that case, the offender was convicted of five counts of assaults on children in her foster care many years before she was charged. After entering guilty pleas she was sentenced to a total of two years jail. The offender was 79.5 years old with failing chronic but non-fatal disorders. Gushue, J.A. for the appellate court held (at para. 14) the passage of time does not itself diminish the seriousness of a crime from a sentencing viewpoint. As to the health, the fact an offender suffers from chronic disorders which posed no imminent danger is not “strictly relevant.”

[85]        R. v. Priest, 1996 CanLII 1381 (ON CA), 1996 CarswellOnt 3588, [1996] O. J. 3369; is a sentencing decision involving a youthful first offender. The Ontario Court of Appeal held emphasis on individual deterrence rather than general deterrence is particularly applicable in the case of a youthful first offender. Rosenberg J.A., for the Court stated:

[86]        In R. v. M. (R.E.), 2005 BCSC 698, 2005 CarswellBC 1271, paras. 27, 37-40; Justice Romilly convicted the offender of three historical sexual offences after a lengthy trial which ended in 2004. The sexual offences occurred 15 years before the sentencing hearing. The offences involved sexual contact when the victim was nine in 1973, which stopped when she became pregnant at 16 in 1981. Justice Romilly imposed an 18 month jail sentence. Although the Criminal Code provisions concerning sexual offences has changed since the offences in R. (M.E.), the importance of deterrence and denunciation in sentencing sexual offenders has remained constant. Justice Romilly states at para. 32:

[87]        R. (M.E.) was one of four cases Defence cited to the B.C. Court of Appeal in R.E.L. where the sexual assault of a person under the age of eighteen years resulted in either custodial sentences of periods of less than five years, or to conditional sentences. The Court of Appeal responded to those submissions at para. 19 in R.E. L.:

[88]        In R. v. D. (C.G.), 2009 CarswellBC 750, 2009 BCSC 404, the offender was convicted under ss. 271 and 152 of the Criminal Code involving two different victims. The victim of the sexual assault was the offender’s stepdaughter. The victim was five years old when the offences began and they continued for six years until she was almost 11. The victim reported it to her mother who chose to do nothing with the allegations because the offender assured the mother there was no abuse. It was only after a 12-year-old neighbour complained the offender lured her into his basement in an attempt to have sexual contact with her, the offender’s wife complained to the police about the sexual assaults upon her daughter.

[89]        At the time of the C.G.D.’s offences, the maximum sentence was 10 years and there was no legal minimum for sexual assault. The s. 152 offences attracted a 10-year maximum and a minimum sentence of 45 days jail. Justice Griffin reviewed and considered all the principles of sentencing. She held (at para. 32), the most significant factor which mitigated against the longest range of sentence for the crimes was the fact that once the offences were reported to the police, C.G.D. turned himself in, confessed to the crimes, and pleaded guilty. Justice Griffin states:

[90]        Also mitigating in C.G.D.’s case was that he sought out and enthusiastically participated in treatment by a specialist in treating sex offenders. Of course, he only took these positive steps once he had been reported to the police, even then C.G.D.’s comments to the probation officer show some attempt to minimize his own responsibility for his actions and to blame others in respect of both offences.

[91]        In R. v. Bolderson, 2018 CarswellBC, 2018 BCPC 268, the offender pled guilty to sexual touching two victims (s. 151 of the Criminal Code) M.B. and J.W. The offences against M.B. included him licking her vagina and stomach on about 10 occasions over a two-year period. Although M.B. never lived with Mr. Bolderson, he became somewhat as a father figure to her after her own father died. He engaged in some activity which could be characterized as grooming. On February 11, 2018, M.B. brought J.W. with her to the offender’s residence. They all lay on the bed together. The offender also licked J.W.’s stomach and vagina while she was naked from the waist down. M.B. told J.W. not to tell anyone about what had happened. At the time of the offence M.B. was between 6 and 8 years old and J.W. was nine. Mr. Bolderson was a 79-year-old retired tugboat operator.

[92]        The sentencing judge found particularly disturbing Mr. Bolderson justifying his actions by suggesting M.B. was also responsible for what happened. Judge Flewelling considered the purposes and principles of sentencing as set out in ss. 718, 718.1 and 718.2. She concluded that denunciation and deterrence, both general and specific, are paramount sentencing consideration in offences against young children, who are vulnerable and are entitled to the full protection of the law.

[93]        Given the seriousness of the offences, Judge Flewelling declined to reduce Mr. Bolderson’s sentence due to his ongoing medical condition. She relied on the B.C. Court of Appeal decision in R. v. W.M., 2010 BCCA 370 (CanLII) upholding a global five year sentence: 42 months for sexually assault including sexual intercourse of the offender’s step-daughter when she was between 13 and 15 years old at least 5 times; and an 18 month consecutive sentence for sexually assaulting, sometimes once per week, his younger step-daughter when she was 11 to 12 years old. W.M. suffered from severe psoriatic arthritis and sought leniency on the basis effective treatment could only be obtained outside prison. The Court of Appeal agreed with the sentencing judge the offender’s medical condition, although debilitating and painful, could not justify a reduction “given the circumstances of the offence.” Levine J.A. noted that the prison officials were making efforts to ensure the offender had the best treatment possible. Judge Flewelling stated at para. 54:

[94]        Judge Flewelling did not set out what she considered to be the appropriate sentencing range in the circumstances of Bolderson. She rejected the Defence’s position the global range was a term of incarceration between 9 and 14 months on the basis the majority of its authorities involved circumstances far less intrusive than the one before her. The Crown in Bolderson relied on R.E.L., Worthington, R v SB, 2017 CanLII 86654 Nfld PC and R v Miclash, 2001 BCCA 266, wherein the offender was sentenced to 5 years jail for sexually assaulting and causing bodily harm to a 3 ½ year old child.

[95]        Judge Flewelling found Judge Gorman’s decision in R v SB, 2017 CanLII 86654 Nfld PC most similar to the matter before her. In SB, after trial, Judge Gorman imposed a 2.5 year sentence for the offender sexually assaulting his ten-year-old step-daughter on one occasion by pulling down her pants and underwear, licking her vagina and making her lick his penis. In Bolderson, Judge Flewelling (at para. 60) imposed a total sentence of 39 months (27 months with respect to M.B. and 12 months consecutive with respect to J.W.). Upon taking into account the principle of totality, and “considering the most significant mitigating circumstance - his early guilty plea,” Judge Flewelling reduced Mr. Bolderson’s overall sentence to 30 months (2. 5 years) followed by a period of probation for three years with a number of restrictive conditions.

[96]        As previously noted, sentencing is a highly individualized process. The proportionality analysis requires the sentencing judge to go beyond considering the circumstances of the offender and the offence and weigh all of the aggravating and mitigating circumstances and collateral consequences. An aggravating factor will tend to increase the severity of the sentence; a mitigating factor will weigh in favour of a more lenient sentence. The Crown must prove all disputed aggravating factors beyond a reasonable doubt: R. v. Gardiner, 1982 CanLII 30 (SCC). The offender must prove all disputed mitigating factors on a balance of probabilities: s. 724(3)(d) of the Criminal Code; R. v. Dreger, 2014 BCCA 54 (CanLII).

[97]        Section 718.2(a) of the Criminal Code states a "sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender." For the most part, aggravating and mitigating factors relate to two categories:

[98]        The judge must also consider any collateral consequences arising from commission of an offence, the conviction for an offence, or the sentence imposed for an offence that impacts the offender: R v Pham, 2013 SCC 15 and R v Suter, 2018 SCC 34. The collateral consequences are not necessarily aggravating or mitigating factors under section 718.2(a) of the Criminal Code as they do not relate to the gravity of the offence or the level of responsibility of the offender. Nevertheless, they do speak to the personal circumstances of the offender. The consequences can flow from the function of legislation, or social, personal, or occupational implications. They sometimes result in disqualification from benefits or activities or other burdens and hardships that flow from a conviction. Collateral consequences cannot be used to reduce a sentence to a point where it becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender: Suter.

[99]        An aggravating factor that will induces a Court to impose a longer sentence may be one which is either statutorily or judicially recognized. Here there is no contest S.H. was between the ages of 9 and 12 during the offence period. Where the victim is under 18 years old, s. 718.01 requires the Court to emphasize the principles of denunciation and deterrence. A Court cannot, however, consider aggravating the fact the victim was under 18 where it is an element of the offence, unless the victim is very young. As I have directed a conditional judicial stay of proceedings on Count 1, I cannot consider aggravating the fact S.H. was under the age of 18 at the time of any of the remainaing offences charged under Information 24560-2-C.

[100]     The most significant aggravating factors in this case is the fact K.S.T. was in a position of trust vis-à-vis S.H. and many of the offences took place in S.H.’s home.

[101]     I accepted S.H.’s evidence at trial that K.S.T. told her not to have any more of “those talks” with her grandma. S.H. understood he meant that she should keep the sexual offending a secret. In R v Aquitania, 2014 ABPC 108. Judge Allen held the accused’s attempt to persuade the child victim to keep the offending behaviour a secret was an aggravating factor. It is even more aggravating when express or implied threats accompany the direction. In making this finding, Judge Allen relied on the Alberta Court of Queen’s Bench decision in R. v. S. (C.P.), 2010 ABCA 313 (CanLII).

[102]     Another factor present in this case which judges typically find aggravating in the context of sexual abuse is “grooming the victim”: SSS, at paras. 38 and 66; T.J.B., at para. 31; and R. v. D.L.W., 2014 BCSC 43 (CanLII), at para. 89.

[103]     Section 718.2(iii.1) provides that it is aggravating if an offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation. A sentencing judge can take judicial notice of the fact that sexual offences committed against children will likely cause psychological harm: R. v. McDonnell, 1997 CanLII 389 (SCC), R v Rosenthal, 2015 YKCA 6 (CanLII), 2015 YKCA , at para. 6. In this case S.H. suffered the type of emotional harm that is predictable and inevitable when sexual offences are committed against a young child over a prolonged period by a far older parental figure occupying a position of trust.

[104]     As a general rule, a guilty plea is mitigating as it can bring finality to the criminal proceeding, spare judicial resources, and reduces the trauma and inconvenience to the witnesses. The absence of a guilty plea is never aggravating.

[105]     K.S.T. did not plead guilty to any of the offences. He has a constitutional right to make full answer and defence and to require the Crown to prove its case beyond a reasonable doubt. To consider a “not guilty plea” as aggravating would in effect punish those who choose to rely on their constitutional right to a trial; R. v. Courson, 2013 BCSC 2163. An early guilty plea generally considered a sign of remorse, meaning regret for the offender’s wrongdoing. Whereas genuine remorse may be a mitigating factor, the absence of remorse is not aggravating: R. v. Dreger, 2014 BCCA 54; R. v. E.M.Q., 2015 BCSC 201 (CanLII), at para. 87.

[106]     Still, the absence of remorse can disentitle an accused to leniency which might otherwise have been extended. In other words, lack of remorse, like a “not guilty” plea, is a neutral factor. As Taylor J.A. indicates in Anderson, if an offender demonstrates remorse, then the Court may conclude the he or she has begun his or her journey to rehabilitation. To that extent, remorse may be treated as a positive circumstance that might reduce what would be an otherwise fit sentence for a particular offence.

[107]     In this sentencing, K.S.T. express remorse for the impact of his conviction on his wife. He has demonstrated no remorse for these offences against S.H. or insights into them. While this lack of remorse is not an aggravating factor, he is nonetheless deprived of the benefit that usually attaches to a guilty plea as a demonstration of remorse, as reflected in the sentencing authorities. In T.J.B., Justice Bruce indicates at para. 37, in such circumstances, the offender’s rehabilitation assumes far less importance than denunciation and deterrence.

[108]     Generally, a criminal record is an aggravating factor, particularly where an offender has a previous conviction for a related offence. K.S.T. has convictions from 1984 and 1985 for impaired driving and a conviction in 2002 for sexual assault. In my view the impaired driving convictions are so dated and unrelated they can be entirely disregarded. The present offences did not involve alcohol and K.S.T. has not had a drink in 16 years.

[109]     K.S.T. also has a conviction in 2002 for sexual assault from an offence which occurred in 1998. This conviction is very dated and the circumstances of the offence differ significantly from the ones for which K.S.T. is now being sentenced. In R. v. G.F., 2018 BCCA 339 (CanLII), the B.C. Court of Appeal at para. 45, cautioned sentencing judges not to give dated offences more weight than they properly deserve. In K.S.T.’s case, the gap in his criminal record confirms he is able to act in a pro-social manner, and that previous sentences were effective. In my view, this is an appropriate case to give effect to the gap principle. I consider K.S.T.’s criminal record neither aggravating nor mitigating, but rather as a neutral factor to be considered along with all the other circumstances: R. v. Georgiev, 2014 BCCA 246 (CanLII).

[110]     The absence of an aggravating factor does not equate to a mitigating factor: R. v. Holt (1983), 1983 CanLII 3521 (ON CA), leave to appeal to S.C.C. refused: S.C.C.A. No. 474. For example, the fact that K.S.T. did not succeed in penetrating S.H. is not mitigating: R. v. Hume, 2016 BCCA 230. Although penetration will always be aggravating in a sexual assault its absence does not discount the seriousness of the offence: R v Leroux, 2015 SKCA 48. It is a factor the Court must consider when determining the seriousness of the offence in question.

[111]     K.S.T. has had a long stable relationship with M.G. Generally, family support of this nature is considered mitigating as it promotes rehabilitation. I cannot find M.G.’s loyalty to K.S.T. mitigating in this case because she continues to profess K.S.T.’s innocence and blames S.H. Her manner of support may actually negatively impact K.S.T.’s rehabilitation: R v Pouce Coupe, 2014 BCCA 255 and T.J.B.

[112]     The most significant mitigating factor is K.S.T.’s indigenous heritage. He is a member of the [omitted for publication] First Nation and his mother went to residential school. K.S.T. experienced the kind of societal disadvantage specifically identified in Gladue: poverty, unemployment, interrupted education, family violence, intergenerational alcoholism, unemployment, and a criminal record. I am satisfied that those historical factors, both systemic within society and specific to K.S.T. likely played a role in his criminal behaviour.

[113]     In this case, the Defence argues M.G. is entirely dependent upon K.S.T. financially. If he were to receive a lengthy sentence, she would not be able to survive financially. The Defence says this is a collateral consequence which the Court ought to consider when formulating a proportionate sentence.

[114]     Arguably the loss of employment income as the result of imprisonment inevitably flows directly from the sentence and therefore its mitigating effect will be significantly reduced. Nevertheless, I accept that a lengthy prison sentence may have a more significant impact on K.S.T. because he was the sole source of financial support for himself and his wife. I accept his absence will cause her some emotional trauma as well.

[115]     K.S.T. is a 58-year-old status member of the [omitted for publication] Band of the [omitted for publication] First Nation. He is before me for sentencing after being convicted after trial for three sexual offences against S.H. These offences occurred on multiple occasions while K.S.T. was one of her primary caregivers. The sexual abuse started when S.H. was less than 12 years old and continued until she was almost 13. I find the following facts aggravating: (a) the frequency of the abuse; (b) the duration of the abuse; (c) the sexual abuse was highly invasive of S.H.’s privacy, bodily integrity, and security interests; (d) K.S.T. was in a position of trust in relation to S.H.; (e) many of the offences occurred in S.H.’s home; (f) the offences have had a serious and ongoing impact on S.H.; and (g) when she reported the abuse to his wife, K.S.T. cautioned S.H. not to make any further disclosure.

[116]     I find mitigating K.S.T.’s status as an indigenous offender. I take judicial notice indigenous Canadians have been disproportionately imprisoned and disadvantaged historically by colonialism, racism, and intergenerational trauma. I have considered the case specific information about K.S.T. which I have received from his counsel and the presentence reports. I am satisfied K.S.T.’s indigenous heritage diminishes his moral blameworthiness for the offences for which he is being sentenced.

[117]     I find neutral K.S.T.’s not guilty plea, lack of remorse, and dated criminal record. I do not consider the lack of penetration mitigating. I do not find K.S.T.’s health issues such as to warrant a reduction in his sentence.

[118]     As to the collateral consequences of K.S.T.’s sentencing, I am of the view that incarceration and loss of employment and employment income is an obvious and inevitable consequence of sexually offending a child. Nevertheless, I have given some weight to the implications of K.S.T. being the only breadwinner in his household.

[119]     In considering the appropriate sentence, I am mindful of the words of Madam Justice Saunders in which in Wesley at para. 14 and 25:

[120]     It is clear that in recent years courts at all levels decry the gravity of sexual offences against children and their devastating impact. In R. v. Vautour, 2016 BCCA 497 (CanLII), Justice Kirkpatrick for the B.C. Court of Appeal concluded (at para. 49) appellate intervention was justified to overturn a conditional sentence order of two years less a day in a sexual assault case as demonstrably unfit. Justice Kilpatrick commented (at para. 54) “for too long crimes such as this, involving children and inflicted by persons in a position of trust, have attracted unwarranted leniency. Sentences for sexual crimes against children are increasing as courts more fully appreciate the damage that sexual exploitation by adults causes to vulnerable, young victims.”

[121]     The increase in the severity of sentences imposed for sexual offences involving children has been noted in Allen, para. 57, R. v. Rich, 2014 BCCA 24 (CanLII), para. 18, R. v. K.R.J., 2014 BCCA 382 (CanLII) at paras. 32 to 33 (rev’d on other grounds 2016 SCC 31 (CanLII)), D.L.W., para. 69, R. v. E.M.Q., 2015 BCSC 201 (CanLII), R. v. Akumu and Boima, 2017 BCSC 1051 (CanLII), para. 47, R. v. Jaden, 2018 BCSC 1685 (CanLII), para. 54, R. v Callow, 2019 BCSC 242 (CanLII), at paras. 31 and 32. Nevertheless sentences for sexual offences against children still vary significantly depending on the circumstances of the case: R. v Clowry, 2018 BCSC 2032 (CanLII). In R. v. Holland, 2018 BCSC 2392 (CanLII), Justice Voith noted that at para. 51, in part:

[122]     In R. v. Angel, 2018 BCSC 1751 (CanLII), Justice Marchand noted (at para. 61) it is “difficult to define the range of sentence appropriate in cases of sexual interference because the circumstances vary so widely and because of the introduction of, increases to and setting aside of mandatory minimum sentences.”

[123]     I am of the view in this case, where the Crown has not proven penetration and there are relevant Gladue factors, a sentence at the lower end of the generally accepted range constitutes a just sanction.

[124]     I find a global sentence of four years and six months is a fit and proper sentence. I have considered the totality principle in making all sentences I imposed today to be served concurrently.

[125]     K.S.T., please stand.

[126]     For the offence of invitation to sexual touching charged in Count 2 of Information 24560-2-C, I sentence you to a term of imprisonment of four years and six months to be served concurrently to any other sentence I impose today.

[127]     For the offence of sexual interference charged in Count 3 of Information 24560-2-C, I sentence you to a term of imprisonment of four years and six months to be served concurrently to any other sentence I impose today.

[128]     For the offence of indecent exposure charged in Count 4 of Information 24560-2-C, I sentence you to a term of imprisonment of one year to be served concurrently to any other sentence I impose today.

[129]     Sexual interference (s. 151) and invitation to sexual touching (s. 152) are primary designated offences. Pursuant to s. 109(2) of the Criminal Code, you are prohibited from possessing any firearm, crossbow, restricted weapon, ammunition, and explosive substance for 10 years after release from your term of imprisonment. Under this same section, you are prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life, running from the date of this order.

[130]     Sexual interference (s. 151) and invitation to sexual touching (s. 152) are primary designated offences within the meaning of s. 487.04 of the Criminal Code. As such, pursuant to s. 487.05(1), I make an order authorizing the taking of a sample of bodily substance from you, for the purpose of forensic DNA analysis and inclusion in the national DNA databank. The samples will be taken from you while you are in jail and you must submit to the taking of the samples.

[131]     Under the authority of s. 743.21 of the Criminal Code, while serving your sentence, you are prohibited from communicating, directly or indirectly, with S.H. or any member of her immediate family.

[132]     Pursuant to s. 161 of the Criminal Code, after your release from custody, and for a period of ten years, I order that you are prohibited from:

[133]     Under s. 490.012(1) of the Criminal Code, I hereby make an order in Form 52 requiring you to comply with the Sex Offender Information Registration Act for a period of 20 years.

[134]     Pursuant to s. 743.2 of the Criminal Code, I order that a copy of these Reasons for Sentence be forwarded to the Correctional Service of Canada.