Date: 19970414 Docket: CA022519 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA ORAL REASONS FOR JUDGMENT: Before: The Honourable Mr. Justice Lambert April 14, 1997 The Honourable Mr. Justice Hollinrake The Honourable Mr. Justice Donald Vancouver, B.C. BETWEEN: R E G I N A RESPONDENT AND: WAYNE ROBERT ANDREWS APPELLANT S.R. Buck appearing for the Appellant S. Bell appearing for the (Crown) Respondent [1] LAMBERT, J.A.: The applicant was charged with three incidents of sexual assault with respect to the same young woman. He pleaded guilty and was sentenced to 12 months imprisonment coupled with two years probation on these terms: 1) report to a probation officer within twenty-four hours of release and thereafter as directed by that probation officer or whichever probation officer takes over from him; 2) to attend for sex offender assessment and treatment as directed by your probation officer and complete any assignment required by the sex offender programme counseller to whom he reports to; 3) have no contact with children under the age of seventeen unless supervised and approved by a responsible adult; 4) not to coach or train personally or instruct children under the age of seventeen; and 5) you are to have no contact directly or indirectly with the complainant or any member of her family. [2] The circumstances of the three incidents were described by Crown Counsel in the sentencing proceedings and were not objected to by defence counsel and so Crown Counsel's description must be regarded as having formed the basis of the sentencing. The heart of the three incidents was put by Crown Counsel in this way: (a) ...the accused, Mr. Andrews, and Nicola were watching a movie sitting on the couch in his basement suite. He lived in the basement suite alone. She got up and said she was going to bed now and he stood up, hugged her and kissed her on the lips for, according to her Preliminary Inquiry transcripts, about one to two seconds. [3] The second incident was described in these terms: (b) She began playing the pachinko machine and he stood behind her and began rubbing her shoulders and back, and then his bed is just a few feet behind, he then pulled her down and she sits between his legs. They are both sitting on the bed and she's between his legs. He begins rubbing her back and then he moved his hands around the front and rubbed her breasts, on this occasion over her shirt and bra with both hands. She said at the Preliminary Inquiry that that continued for some ten seconds. [4] The third incident was described in this way: (c) Nicola woke up the next morning to Mr. Andrews grabbing her shoulders, saying "Wake up, Nick", and then he sat down behind her, began rubbing her back and then he slipped his hands this time under her clothing, under her tee-shirt, she wasn't wearing a bra, and rubbed her breasts again for about ten seconds. [5] It seems like within a day or two after the third incidents the applicant came to a realization that he was completely wrong in his behaviour and he decided to stop the incidents with this young woman. The young woman at the time of these incidents was 13 years old and he was 28 or 29 as I understand it. So he did stop and as far as we know there were no further incidents with this young woman and no other incidents with any other young woman. [6] In this particular case he was in a good relationship with the family and a relationship which must be regarded as having given rise to a position of trust on his part. That good relationship arose through the fact that he was a gymnastics coach and the mother of the young woman was an officer of the gymnastics club and so he had come to know the young woman through his coaching position as well and that position gave rise to a trust relationship between this man and the young woman who was in his care. [7] Having regard to the ages of the parties and the relationship of trust the offences must be regarded as serious offences. We have had an opportunity to read the Victim Impact Statements of the young woman and her mother which indicate the seriousness of these offences and the effect that they have had on this young woman and her family. [8] The elements working in favour of the arguments put forward on behalf of the applicant are that he came to a realization himself that what he was doing was wrong and stopped of his own volition and could be said to have gone into the path of rehabilitation by his own actions. He pleaded guilty which is consistent with that point of view though there was some delay in the guilty plea. It is important also that there were no other incidents brought to light. [9] Counsel for the Crown has indicated the importance of general deterrence in cases of this kind and that is not to be denied. [10] In the course of his reasons the sentencing judge said this: I am of the firm view that this accused requires a constant, steady and regular course of treatment. The only treatment that I see that would be of significance is at Stave Lake, and that treatment programme hopefully will assist him to rehabilitate. [11] In my opinion, the fact that the Stave Lake Programme is one year does not justify independently a sentence of one year for an offender of this type unless that is the appropriate sentence in relation to balancing all of the principles of sentencing including the necessity to achieve rehabilitation. But rehabilitation, as I have said, was well started in this case. In my opinion, imposing a 12 month sentence in order to achieve all of the steps of the Stave Lake Programme would be an error in principle. [12] In my opinion, particularly having regard to the fact that he stopped of his own accord and through doing so showed remorse and expressed remorse to the young woman through the fact that he pleaded guilty, the sentence in this case was not a fit one. I would grant the application for leave to appeal, I would allow the appeal, and substitute a sentence of eight months imprisonment for the sentence of 12 months imposed by the sentencing judge. I would retain the two year probation order on the same terms as were imposed by the sentencing judge. [13] HOLLINRAKE, J.A.: I agree. [14] RYAN, J.A.: I agree. [15] LAMBERT, J.A.: So ordered. "The Honourable Mr. Justice Lambert"