IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           T.P.L.H. was convicted of Sexual Assault Causing Bodily Harm, Unlawful Confinement, and Break and Enter at the conclusion of a trial.

[2]           The Crown and Defence are a long way apart in their positions on the appropriate sentence. Crown Counsel seeks a cumulative sentence of 12-14 years jail less the equivalent of approximately 3 years T.P.L.H. has served in jail before sentencing. Defence counsel submits 3 years jail less time served and 3 years probation is appropriate.

[3]           Counsel do not dispute the applicable range of sentence for the offences. They do differ on the degree of emphasis to be placed on the most applicable sentencing objectives.

[4]           T.P.L.H.’s personal circumstances are also a complicating factor. What complicates achieving a sentence that is proportionate to the seriousness of the offences and T.P.L.H.’s degree of responsibility for them is that T.P.L.H. was suffering from underlying mental disorders and intoxicated by crystal methamphetamine when he committed them.

[5]           To explain what I consider to be the appropriate sentence, I will summarize the circumstances of the offences, discuss T.P.L.H.’s personal circumstances, discuss the objectives of sentencing requiring emphasis, and the range of sentences handed down in previous cases for similar offences. I will then address how those objectives and the principles of sentencing apply to T.P.L.H.’s case. Finally I will pronounce his sentences.

[6]           At approximately 11:00 pm on August 31, 2018, 58 year old A.O.L.Y. was alone in her house when she heard a sound near the front door. Through a smoked glass window she could see a figure approaching her door wearing a hoodie. Thinking it was her son, she opened the door. It was T.P.L.H. whom she had never met before.

[7]           A.O.L.Y immediately tried to close the door but T.P.L.H. overcame her resistance. He pushed it open, entered, and closed it behind him. He said words to the effect that he just wanted to have sex, that he would pay her, and be gone.

[8]           A.O.L.Y tried to get away but he grabbed her. She fought back. While grappling, he punched her in the face and grabbed her by the back of her neck forcing her to the floor. At some point he punched her in the face again and pulled her hair.

[9]           T.P.L.H. forcibly removed her clothes. As he removed his clothes A.O.L.Y heard something heavy fall to the floor which she thought could be a weapon, possibly a gun. She felt she better comply with his intentions in order to survive given she was alone, did not know who he was, and his superior strength.

[10]        T.P.L.H. then forced sexual intercourse with her. She managed to open the front door at one point and screamed for help. T.P.L.H. pulled her back and locked the door. As the sexual assault continued A.O.L.Y screamed. T.P.L.H. told her to shut up, covered her mouth with one hand and put his other hand around her throat while lying on top of her. She said she was suffocating. As the assault continued, T.P.L.H. asked A.O.L.Y why she didn’t cry. The assault ended with T.P.L.H. forcing A.O.L.Y to perform oral sex on him. The entire ordeal lasted approximately 2 hours.

[11]        At the end, T.P.L.H. asked for water and whether A.O.L.Y was going to “charge him”. He said he was homeless, asked if he could sleep there, and that he would be gone in the morning. He said this was their first date and they would get married in the morning. He got dressed and fell asleep on the floor by the front door. A.O.L.Y. then left the house and called the police.

[12]        A.O.L.Y. sustained multiple injuries from the attack. They include petechial bruising on her forehead just below the hairline caused by something blocking blood flow out of the area, bruising to her neck, bruising and swelling over her left eye, a swollen upper lip, an abrasion to her inner lip, scratches on her breast, bruising to her arm, and abrasions to her elbows, her right hand, wrist, and knees. She also had swelling and bleeding to the lining of the opening of her vagina.

[13]        The impact of the offences on A.O.L.Y. extend beyond physical. She suffers generalized fear and anxiety. She has paid for counselling services and the installation of enhanced security features at her home. She has an ongoing fear that T.P.L.H. will return.

[14]        At the time of the offence, A.O.L.Y. had a downstairs tenant who was home and heard sounds that she now realizes were from the incident. The offences have affected her as well. She suffers anxiety and is excessively cautious and sometimes panicky when out at night alone. She missed work because of difficulty sleeping and feels guilt for not preventing or discontinuing the assault on A.O.L.Y.

[15]        T.P.L.H. is 47 years of age. He grew up without a father figure. His mother had mental health and substance abuse issues. He was virtually abandoned in his youth and abused physically and psychologically at a young age. He suffered a significant head injury when he was 12 requiring hospitalization for over a month.

[16]        T.P.L.H. is single and has 4 children all of whom are in the care of the Ministry of Children and Families

[17]        He finished grade 10. He has worked as a long haul truck driver but in recent years has been unemployed and collecting a disability subsidy.

[18]        T.P.L.H. has a criminal record including 12 convictions since 2002: 1 Assault Causing Bodily Harm; 1 Robbery; 4 Assaults including one of a Peace Officer and two of intimate partners; 2 thefts; 1 obstruction of justice; and 3 breaches of court orders. He has gaps in his record between 2003 and 2010, and mid 2012 to 2018. His last assault conviction prior to the offences was in June, 2012.

[19]        His only conviction after June 2012 occurred after the commission of the current offences. It was for Assaulting a Peace Officer that occurred on September 16, 2018, a little over two weeks after the current offences. He was sentenced to 2 months jail.

[20]        He attributes the gap in his criminal record between mid 2012 and 2018 to having stability, structure, and support at the time. He was living in Nanaimo B.C., working, had stable housing, and was accessing community services for his mental health among other things. When he lost his job and housing in 2017 he moved to the Lower Mainland and his mental health deteriorated through increased substance abuse.

[21]        There was some suggestion by Defence Counsel that T.P.L.H. may have First Nations heritage. The details of this assertion are scant. T.P.L.H. himself has no knowledge of an indigenous heritage but believes his maternal grandfather was indigenous because his maternal grandmother called him an “Indian” because he had “darker skin”. I do not consider Indigenous sentencing considerations applicable here given the uncertain details of any indigenous connection.

[22]        At the time he committed the offences against A.O.L.Y, T.P.L.H. had been homeless for months, sleep deprived, not taking medication for his mental health, and using lots of crystal methamphetamine, which in turn exacerbated his mental illness. In a statement to the court he said he was “really ill” at the time.

[23]        T.P.L.H. has been diagnosed with various mental disorders in the past and has a long standing addiction to hard drugs. I will discuss these conditions in more detail later in these reasons.

[24]        T.P.L.H. has been off drugs since being in custody on the current charges and intends to remain clean when released but wishes to do so through his own efforts and other treatment rather than group treatment.

[25]        T.P.L.H. told the court he is remorseful for the commission of the offences.

[26]        T.P.L.H. was assessed by Dr. Wang, a Forensic Psychiatrist with Forensic Psychiatric Services to gain insight into his mental illness, risk, and treatment prospects. The assessment was done and a report prepared in June, 2019, approximately one year ago.

[27]        As for his risk assessment, Dr. Wang found T.P.L.H. to be impulsive, have limited insight and, lacking in empathy and remorse regarding the impact of the offences on A.O.L.Y. He concluded that at the time of the assessment T.P.L.H. would be a high risk to reoffend and would require a: “high to urgent level of case prioritization”. Summarizing his risk assessment, he wrote at page 20 of his report:

[28]        At the outset, I wish to make some general comments about the complexity of sentencing T.P.L.H.

[29]        The overriding sentencing consideration is to contribute to respect for the law and the protection of the community and society.

[30]        A court must consider the objectives and principles of sentencing in ss. 718-718.2 of the Criminal Code and, an offender’s personal circumstances and the circumstances of the offence in order to assess their moral blameworthiness for its commission. This assessment will guide the court to arrive at a sentence that is proportionate to the gravity of the offence and the offender’s degree of responsibility. The process is individual to each case and each offender.

[31]        The objectives and principles of sentencing take into account the needs of the community and the offender. In the end, the sentence must balance these needs giving weight to some more than others depending on all of the circumstances of the individual case.

[32]        I will now turn to the sentencing objectives requiring emphasis in T.P.L.H.’s case.

[33]        All of the objectives of sentencing remain relevant including rehabilitation; however, for serious offences of the nature T.P.L.H. committed, denunciation and general deterrence require emphasis (R. v. Thurairajah, 2008 ONCA 91 (CanLII), [2008] O.J. No. 460, paras. 41-42). This emphasis intensifies with the seriousness of the circumstances surrounding the offences (R. v. Thurairajah). Given T.P.L.H.’s circumstances as outlined above, specific deterrence also requires particular emphasis as does retribution and the need to separate him from society.

[34]        A brief description of the concepts behind these objectives is worth stating.

[35]        The objective of denunciation is to communicate through the sentence society’s condemnation of an offender’s conduct (R. v. C.A.M., 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500).

[36]        Deterrence operates in a general way. Those that would break the law must know, and law-abiding citizens must be assured, that law-breakers will receive sentences which reflect the seriousness of their crimes (R. v. Johnson (1996), 1996 CanLII 3148 (BC CA), 112 C.C.C. (3d) 225 (B.C.C.A.))

[37]        The duration of the sentence must be long enough to dissuade an offender from committing a repetition of the offence.

[38]        Where the offender’s circumstances lead to the conclusion that they present a danger to the public if out in the community, then they should be detained in custody for a period of time sufficient to reasonably conclude that the danger has subsided (R. v. Downey, [2010] O.J. No.1038).

[39]        A sentence must not eliminate all hope or any incentive for an offender to commit to their rehabilitation. Rehabilitation of an offender in custody involves programs designed to equip them with the ability to make productive and law abiding choices when released.

[40]        Retribution is not specifically mentioned as a principle or objective of sentencing in s. 718 of the Criminal Code, however it is woven into the principles that are mentioned (C.A.M., at para. 79). Retribution in sentencing sanctions the moral culpability of an offender, and thus, the moral blameworthiness of an offender is an important consideration in determining the appropriate sentence.

[41]        Retribution should not be confused, however, with vengeance which plays no role in sentencing. Lamer, C.J., described retribution this way at para. 80 of C.A.M.:

[42]        Assessing the moral blameworthiness of T.P.L.H. requires consideration of his mental state at the time he committed the offences. I will turn to that discussion now.

[43]        I will state at the outset that I am satisfied on a balance of probabilities that T.P.L.H. was labouring under the effects of mental illness and crystal methamphetamine intoxication at the time of the offences. Before outlining the evidence of this, it is worth explaining in more detail why this is relevant at law in T.P.L.H.’s sentencing.

[44]        Criminal law sanctions are imposed on people who are assumed to act on their own free will including the condition they placed themselves in at the time of offending. Self induced drug or alcohol intoxication will rarely reduce an offender’s accountability for criminal conduct. The rationale is that deliberately putting oneself in an intoxicated condition is the product of intentional risk-taking that is dangerous and irresponsible and therefore blameworthy (R. v. Badhesa, 2019 BCCA 70 (CanLII), [2019] B.C.J.No. 271 (BCCA), para. 39).

[45]        When mental illness contributes to the commission of an offence it is considered a mitigating factor on sentencing because the offender’s moral fault for the offence is reduced. General deterrence as a sentencing objective requires less emphasis “because a mentally ill offender is not an appropriate medium for making an example of others” (Badhesa, para.42)

[46]        The situation is a little more complicated when an offender is suffering from an underlying mental illness in addition to intoxication and both contributed to the offence, even if indirectly. For example, if the underlying mental illness contributed to the person’s voluntary intoxication then it can be said, depending on the circumstances, that the combination of the two contributed to the offence (R v. Forner, [2020] B.C.J. No. 569 (BCCA), para. 28). As explained in Badhesa: (at para. 40)

[47]        The deliberateness of the decision to become intoxicated is thus diminished to the extent the decision was fuelled by mental illness (Forner, para. 30). This is because the mental illness may compromise the offender’s ability to make rational decisions

[48]        Reaching a proportionate sentence requires a sentencing judge to ascribe a degree of moral blameworthiness to an offender commensurate with the scope of the mental illness and “its overall role in the commission of the offence” (Badhesa, para.44)

[49]        The inquiry is fact driven (Badhesa, para. 43; Forner, para. 43). The quality of evidence required for a sentencing judge to make a reasoned determination was discussed in Badhesa, (at para. 43):

[50]        The offender’s conduct when committing the offence can also provide evidence of the necessary connection between their mental illness, intoxication and the offence (Forner, para. 42).

[51]        How this inquiry affects of the balancing of sentencing objectives was described in Badhesa (para.44):

[52]        In summary, when assessing an offender’s moral fault, the court needs to consider the extent to which their mental illness contributed to the offence - including their drug use that put them in the intoxicated state they were in when the offence was committed (Badhesa, para. 43; R. v. Ellis, 2013 ONCA 739 at para. 116; Friesen at paras. 22–32.

[53]        As mentioned earlier, I am satisfied that T.P.L.H.’s underlying mental illness, combined with his crystal methamphetamine intoxication contributed to the mental state that lead to his behaviour in committing the offences. I will now turn to the evidence of this.

[54]        In the aftermath of the offences T.P.L.H. made comments to A.O.L.Y. about being in a relationship and having a future together that were bizarre and not based in reality. He also asked her if she was going to “charge him” indicating some concept of reality.

[55]        T.P.L.H. began using cocaine at 18. He was off drugs for about 17 months at one point but has been a regular cocaine, opiate, and crystal methamphetamine user for years.

[56]        As mentioned earlier, T.P.L.H. was assessed by Dr. Wang in June, 2019. His mental health was assessed again in October 2019 by Dr. Robertson, another forensic Psychiatrist, for his opinion whether T.P.L.H. was not criminally responsible for the offences by virtue of a mental disorder. The psychiatric history that follows is gleaned from the reports of these two assessments.

[57]        In 2012 T.P.L.H. had two inpatient psychiatric admissions, the first after being certified under the Mental Health Act. During the first, the attending psychiatrist assessed him as having: “…a substance-dependent mood disorder with psychotic symptoms, and also it became more evident that he has ADHD and underlying personality disorder” He tested positive for opiates and cocaine in his blood.

[58]        He was readmitted a little over two months later for suicidal ideation and remained hospitalized for a little over a week.

[59]        T.P.L.H. was seen by various mental health professionals in 2012 and reported having among other challenges intermittent suicidal thoughts and auditory and visual hallucinations, and delusions. Dr. Laws performed a psychiatric assessment in September 2012 and concluded T.P.L.H.’s “perceptual disturbances” are “likely secondary to his long history of multi-substance use”. A later assessment by Dr. Breitman was inconclusive whether T.P.L.H. had a psychotic disorder or whether the psychotic symptoms he was experiencing were substance-induced psychosis.

[60]        T.P.L.H. reported to Dr. Breitman that he had experienced auditory hallucinations and delusions since 2005 even after being clean of drugs for up to 6 months. He said his psychotic symptoms improve when on anti-psychotic medication.

[61]        Dr. Breitman stopped monitoring T.P.L.H. in July, 2013. Her final diagnosis was: “Schizophrenia with a differential diagnosis of Substance Abuse Psychosis”

[62]        In August, 2017 T.P.L.H. was admitted to hospital for depression and suicidal ideation. He reported auditory hallucinations and associated delusions. He also reported using cocaine and crystal methamphetamine. He was assessed as “very scattered and floridly psychotic”. However, he responded well to psychiatric medication and was released the next day.

[63]        In November 2017 T.P.L.H. was taken to the hospital by police after reporting hallucinations, depression and thoughts of self-harm. He was certified under the Mental Health Act for psychotic assessment. He reported using heroin and crystal methamphetamine in the previous 36 hours. His reports of hallucinations were regarded as questionable and he was released from hospital.

[64]        In May 2018 he voluntarily attended hospital and admitted to auditory hallucinations and crystal methamphetamine use in the few days prior. He declined to participate in an urgent psychiatric consultation and left the hospital.

[65]        The next body of information comes from assessments and consultations while in custody after his arrest on the current charges.

[66]        During his initial intake screening at North Fraser Pretrial Center (NFPC) T.P.L.H. reported auditory and visual hallucinations and daily crystal methamphetamine use prior to his arrest. Dr. Murphy examined T.P.L.H. and reviewed some of the information I have already referred to. She diagnosed T.P.L.H. as having “psychosis that was likely secondary to crystal methamphetamine use”. She noted that psychosis from drug use can persist long after the last use.

[67]        The last note in T.P.L.H.’s health records from pretrial custody is dated April 25, 2019 and comes from a mental health and substance abuse nurse. He notes T.P.L.H.: “denied any immediate concerns. Stable mood, no (auditory hallucinations). No active psychotic thinking noted. Appears stable. Has no questions, concerns or conflicts…Functioning well on the unit”.

[68]        During his intake assessment for the assessment by Dr. Wang, T.P.L.H. reported experiencing auditory and visual hallucinations despite being clean of drugs for nine months.

[69]        Dr. Wang found T.P.L.H. exhibited acute symptoms of a major mental illness, however, the relative contribution of his substance abuse and mental illness to the offences was unclear.

[70]        Summarizing his opinion, Dr. Wang wrote (at page 19):

[71]        Dr. Robertson reported in October, 2019 that T.P.L.H. seemed much better than when he saw Dr. Wang. One area of improvement was his willingness to undergo treatment. He told Dr. Robertson that he was prepared to consider treatment because he no longer thought his hallucinations were caused just by his substance abuse as he still experienced them despite not consuming drugs in a while.

[72]        Dr. Robertson made a primary diagnosis of Crystal Methamphetamine Use Disorder. Secondary diagnoses were a Personality Disorder with borderline and antisocial traits, and a Psychotic Disorder. He also felt there was a “good possibility” T.P.L.H. has schizophrenia but his visual hallucinations do not fit as a typical symptom of schizophrenia. Dr. Robertson opined that these hallucinations could be the result of T.P.L.H.’s prolonged use of large amounts of crystal methamphetamine.

[73]        Dr. Robertson concluded that the psychotic hallucinations T.P.L.H. was experiencing around the time of the offences were primarily due to his crystal methamphetamine use. He also said that it was possible that an underlying psychotic disorder could also have contributed to his psychotic symptoms. However, he did not appear to be suffering from significant psychotic symptoms when the offences were occurring.

[74]        In the end, Dr. Robertson concluded that although T.P.L.H. was experiencing psychotic symptoms before and after the offences, at the time of the offences:

[75]        T.P.L.H.’s moral blameworthiness for the offences must be assessed acknowledging the interplay between his mental illness and drug intoxication even if calibrating with precision the relative contribution of each is impossible.

[76]        I will now to turn to sentences imposed in previous cases for similar offences.

[77]        I have been provided with case authorities to help situate where in the continuum of sentences T.P.L.H.’s ought to fall. Because sentencing is an individualized process, there are distinguishing features to the cases that have been provided. Nevertheless, I have read and considered them but do not find it necessary to discuss them in detail in these reasons.

[78]        The cases do set out in some instances a range of sentence. Before discussing the range of sentence they suggest, the significance of a “range” is worthy of comment. In R v. Nasogaluak, [2010] 1 S.C.R 2, Mr. Justice Lebel wrote for the court (at para.44):

[79]        I will now turn to the ranges mentioned in the case law.

[80]        The British Columbia Court of Appeal mentioned a range of sentence for sexual assault in two cases; R v. Pouce Coupe, [2014] B.C.J. No. 1338; and R v. R.L.W., [2013] B.C.J. No. 185. In Pouce Coupe the court described a broad sentencing range of two to six years for sexual assault involving intercourse. In R.L.W., the court endorsed a range of four to six years jail for more prolonged sexual assault causing bodily harm offences even where the violence, other than that inherent in the offence itself, was from threats as opposed to other physical means.

[81]        For sentencing purposes a distinction is drawn in the Criminal Code between breaking and entering a residence as opposed to another building, with breaking into a residence treated as more serious (s. 348(1)(d)). S. 348.1 of the Code makes knowing the residence was occupied at the time of the break in, and using violence toward an occupant, an aggravating factor on sentence. The heading in the Code for this section characterizes the offence as a “home invasion”.

[82]        In R v. Smith, [2020] B.C.J. No. 380 a range of 5-15 years was mentioned for violent home invasions with the upper 14-15 year range reserved for the most serious incidents which include murder and sexual assault. Mr. Smith, a youthful offender with no adult criminal record and questionable rehabilitation potential was sentenced to 10 years jail for a violent home invasion.

[83]        In R v. D.A.W., [2002] B.C.J. No. 1156 (BCCA), the accused and co-accused conducted a violent home invasion during which property was taken and one of the occupants was sexually groped by the co-accused while the accused confined the other holding a knife to his cheek. The accused pled guilty and was found to have not known a sexual assault would occur. He received a sentence of 10 years. The co-accused, who was serving a Conditional Sentence for Break and Enter at the time, received a 13 year sentence.

[84]        The court in D.A.W opined that a sentence range of 8-12 years was appropriate for planned violent home invasions as opposed to less serious cases where violence was not contemplated.

[85]        In R v. Jones, 2002 BCSC 583 (CanLII), [2002] B.C.J.No.1216 (BCCA), Mr. Jones received a 15 year sentence for a violent pre-meditated home invasion with a weapon, where the occupants were tied up, $40 and 8 marihuana plants stolen, and one occupant raped. Mr. Jones was 20 years old with an insignificant criminal record, had pled guilty, and was remorseful.

[86]        No case law was submitted by counsel regarding unlawful confinement. However the offence carries a maximum sentence of ten years jail.

[87]        As mentioned earlier, counsel do not dispute the applicable range of sentence for the offences or the most applicable sentencing principles and objectives. They do differ on the relative degree of emphasis to be placed on those principles and objectives. For example Defence counsel acknowledges that rehabilitation is not as much of a priority as other principles but asserts that T.P.L.H. has the potential for rehabilitation and thus the court should encourage it as much as possible through its sentence. The defence says a 3 year sentence and probation is appropriate.

[88]        On the other hand the Crown argues that denunciation, general deterrence, and separating T.P.L.H. from society require emphasis as opposed to rehabilitation. Further, that society’s abhorrence for this type of offence must be reflected through T.P.L.H.’s sentence which is why a 12 to 14 year sentence is appropriate.

[89]        S. 718.2(a) of the Criminal Code states as a sentencing principle that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or offender. I will turn to the aggravating and mitigating circumstances now.

[90]        Aggravating Circumstances

[91]        Mitigating Circumstances

[92]        Relating the offences to the objectives of sentencing, society would wish to denounce in strong terms the offences T.P.L.H. committed. Furthermore, the offences are extremely serious. In the pursuit of deterrence, the sentence must make a clear statement to potential offenders, and T.P.L.H. specifically, that such conduct will be treated harshly by any court. The consequences to any victim and the public at large are too great to do otherwise.

[93]        While all of the objectives and principles of sentencing are important, the case law is clear that denunciation and general deterrence require emphasis in home invasion cases with sexual assaults. That emphasis grows with the seriousness of the sexual assault (R v. G.M., 2015 BCCA 165 (CanLII), [2015] B.C.J. No. 762, at para. 17-18; R v. Thurairajah, at para. 42). Accordingly, denunciation and general deterrence require particular emphasis in T.P.L.H.’s sentence.

[94]        A.O.L.Y. was extensively sexually assaulted in the sanctuary of her own home in the dark of night. The offences severely shook her and her tenant. These types of offences, and the manner in which they were committed here, are of a nature that shakes an entire community. People expect and are entitled to expect that they can and will be safe in their homes. The offences committed by T.P.L.H. shatter that physical and psychological security.

[95]        Based on the totality of the evidence, I am of the view that T.P.L.H. presents a danger to the public if out in the community. I base this conclusion on a number of considerations. T.P.L.H.’s criminal record has a number of convictions for violent offences. I acknowledge the gaps in his record suggesting he can be law abiding but the incidents of assaultive behaviour span throughout his record. The nature and circumstances of the offences are horrific. The conclusions of the risk assessment performed by Dr. Wang and the other forensic psychological evidence before the court are troubling. T.P.L.H.’s psychological diagnoses suggest future long term intensive treatment is required but, according to the evidence, T.P.L.H. has either declined or been reluctant to submit to all of the necessary treatment. In my view, T.P.L.H. needs to be separated from society for society’s protection.

[96]        I will however discount T.P.L.H.’s sentence from what would otherwise be called for because of the influence his mental illness had on his mental state when he committed the offences. I acknowledge that the relative contributions of his crystal methamphetamine intoxication and mental illness to his mental state are not clear. This makes it difficult to ascribe with precision a degree of moral blameworthiness to T.P.L.H. commensurate with the scope of his mental illness and its overall role in the commission of the offence. However, the psychiatric evidence establishes that he was suffering from mental disorders at the time and should not be attributed with the same degree of moral fault as a rational decision maker who made a clear, conscious decision to place himself in the condition he was in. T.P.L.H.’s mental disorders were likely compromising which distinguishes him from a fully accountable offender for sentencing purposes.

[97]        The law is clear that a more lenient sentence than would otherwise be called for may be appropriate to reflect a diminished level of moral blameworthiness.

[98]        Under the circumstances, I give less weight than I would otherwise to the importance of deterrence and punishment and more to treatment and public protection concerns. That said, T.P.L.H.’s moral culpability for the offences may have been compromised by mental illness but it remains high nevertheless. The sentences imposed must reflect this.

[99]        The sentences I will impose do not ignore rehabilitation and I encourage T.P.L.H. to pursue and submit to rehabilitative programs – indeed he must. There is hope in this regard through his comments to Dr. Robertson that his views on treatment may be changing. He has also demonstrated an ability in the past to have significant periods of law abiding conduct when he has appropriate structure, stability, and makes use of rehabilitative supports. However, the importance of formulating a sentence that meets the other sentencing objectives discussed exceeds the influence of T.P.L.H.’s potential rehabilitation in the sentencing calculus.

[100]     In conclusion, I find a proportionate sentence to the gravity of the offences and T.P.L.H.’s degree of responsibility to be a cumulative sentence of 11 years jail. I will credit him with the time he has already spent in custody which is calculated to be 707 days. With enhanced credit at 1.5 days for every day served that amounts to 1,061 days, or 2 years, 10 months and 26 days. That time will be deducted from what would otherwise be the appropriate sentences. The 1 month and 4 days required to round up to 1 year shall be based on a 30-day month for the purpose of sentence calculation by corrections authorities.

[101]     The breakdown of the sentences shall be as follows:

[102]     All of these sentences shall be served concurrent to one another.

[103]     In addition to the jail sentence imposed, I make the following Ancillary Orders:

[104]     Count 1, sexual assault causing bodily harm, and Count 3, breaking and entering are primary designated offences in section 487.04 of the Criminal Code. Consequently, there will be an order pursuant to section 487.051 of the Code requiring T.P.L.H. to provide such samples of his bodily substances as are reasonably necessary for the purpose of forensic DNA analysis.

[105]     Attached to all Counts, will be a weapons prohibition. Pursuant to section 109 of the Criminal Code, T.P.L.H. is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance for life.

[106]     Count 1, sexual assault causing bodily harm, being a designated offence under s. 490.011(1), I will order T.P.L.H. under section 490.012 (1) of the Criminal Code in Form 52, to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10 for life.

[107]     For the duration of T.P.L.H.’s sentence, T.P.L.H. shall have no communication directly or indirectly with A.O.L.Y.