IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         On January 23, 2024, I convicted Mr. Istephan of the offence of voyeurism under section 162(1)(a) of the Criminal Code.  I must now sentence him for that offence.

[2]         On May 4, 2022, the complainant, Z.R. attended at a community centre in Sooke, British Columbia for her usual morning workout.  After swimming, she returned to a gender-neutral change room, where there were individual cubicles, each containing a shower and a place for changing clothes.  As she was getting dressed after her shower, she observed the shadow of a person in the adjoining cubicle, who appeared to be attempting to observe her by peering through the space between the bottom of the cubicle wall and the floor.  She fled in fear to the reception desk at the front of the community centre.  Police were called and arrested Mr. Istephan.  The evidence at trial convinced me that he was the person in the adjoining cubicle and that he had attempted to watch Z.R. as she showered and dressed.

[3]         Z.R. was terrified by the incident, and continues to suffer anxiety as a result of it, particularly when using public recreation facilities.

[4]         Mr. Istephan is 52 years of age.  He graduated high school in 1989 and successfully completed a 2-year program at a local community college.

[5]         In 2001, when Mr. Istephan was in his early 30’s, Mr. Istephan was charged with the offence of attempted kidnapping.  He attempted to pull a 13 year-old girl into his vehicle as she waited at a bus stop.  The following are extracts from report of the Forensic Psychiatric Services Commission, prepared to assist the court in assessing whether Mr. Istephan was fit to stand trial.

[6]         In 2007, Mr. Istephan was convicted of committing an indecent act in a public place by masturbating on a wharf in a popular swimming lake near Victoria, BC.  British Columbia Mental Health & Addiction Services were asked to interview Mr. Istephan to assist the court in sentencing Mr. Istephan for that offence.  Mr. Istephan refused to be interviewed for that purpose.  He received a 60 day jail sentence and 3 years’ probation.

[7]         Mr. Istephan was seen by a number of mental health professionals during the period 2001 - 2008.  He was cooperative with some and not with others.  The mental health professionals did not agree on a diagnosis.  They did note that he had suffered some physical damage to his frontal lobe, although the documents do not disclose the cause or extent of that damage. Several of them assessed him as a moderate to high risk to re-offend sexually.

[8]         In 2009, Mr. Istephan was convicted of a breach of his probation conditions by failing to complete a sex offender counselling program to which he had been referred by his probation officer.

[9]         In May, 2014, Mr. Istephan was convicted of a breach of his probation conditions by being within 200 metres of a school ground.

[10]      Mr. Istephan declined to be interviewed by the forensic psychologist assigned to assist in the preparation of the presentence report in this case.  The following passage appears in the presentence report:

[11]      Section 718.2(b) of the Criminal Code provides that “… a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances  …”.  Relying on that principle, Mr. Horne referred me to R v Russell 2019 BCCA 51; [2019] BCJ No. 168, in which Justice Stromberg-Stein said @ paragraph 39 that “…  the authorities reveal a broad range of sentences for a first offender who pleads guilty to voyeurism – from a conditional discharge, to a suspended sentence, to a conditional sentence order, up to two years’ imprisonment …”.  Mr. Horne also referred to the comprehensive review of sentencing decisions provided in R v Dastagir 2018 MBPC 44, and relies upon the principle that a mental disorder “… diminishes the responsibility of the offender …”: R v Ayorech 2012 ABCA 82 @ paragraph 12.  Mr. Horne submits that a conditional sentence order “… with extremely restrictive conditions …” would be appropriate in this case.

[12]      Mr. Conway submits that an 18-month jail sentence, followed by 3 years’ probation, would be appropriate.

[13]      The underlying flaw in Mr. Horne’s submission is that Mr. Istephan is not a first offender, he did not plead guilty and his refusal to participate in psychological assessment and treatment is unique, both in my experience and by reference to the authorities on which Mr. Horne relies.  He is a repeat offender who suffers from a mental illness and refuses to participate in medical procedures for assessment and treatment of his mental illness.  As a result, he poses a material risk to public safety.

[14]      I do not agree with Mr. Conway’s submission that denunciation and deterrence are the primary sentencing objectives in this case.  Rather, the most important objective in this case is to protect the safety of the public.  If Mr. Istephan were willing to participate constructively in mental health assessment and treatment, a conditional sentence directed to those objectives might be the best way to enhance public safety.  In view of his resolute and consistent rejection of such assessment and treatment, the only sentence available to provide some protection for the public is incarceration.

[15]      I observe that Mr. Istephan could be detained indefinitely in a mental health facility under the provisions of the Mental Health Act RSBC 1996, c 288.  However, those who administer the statute have been made well aware of Mr. Istephan and his condition, and have decided not to detain him, so that option for the protection of the public is not available in this case.

[16]      Because the Crown elected to proceed summarily, the maximum permissible sentence is 2 years less one day.  I would have been inclined to that sentence, were it not for the fact that Mr. Conway seeks an 18-month sentence.  As a general rule, I think it unwise to impose a longer sentence than that sought by the Crown.  I sentence Mr. Istephan to 18 months’ imprisonment.

[17]      I also impose a term of 3 years’ probation to follow his jail sentence, on the following terms.  Mr. Istephan must:

[18]      Mr. Istephan must provide a DNA sample on the request of any corrections officer.

[19]      Mr. Istephan must have no contact or communication, directly or indirectly, with Z.R. while he is in custody.

[20]      The victim fine surcharge will be waived.