Date: 19980116 Docket: X047638 Registry: New Westminster IN THE SUPREME COURT OF BRITISH COLUMBIA HER MAJESTY THE QUEEN v. ABRAHAM ALOLFO CABRERA REASONS FOR SENTENCE OF THE HONOURABLE MR JUSTICE ROMILLY Counsel for the Crown: K. Houghton and W. Stevens Counsel for the Accused J. Richardson Place and Date of Hearing: Vancouver, B.C. January 14 & 15, 1998 [1] The accused pled guilty to the offence that: He, on or about the 5th day of September, 1995, at or near Port Coquitlam, Province of British Columbia, being in a position of trust or authority towards M.L., a young person, did for a sexual purpose, touch directly the body of M.L., a young person, with a part of his body, contrary to section 153 of the Criminal Code of Canada and against the Peace of Our Lady the Queen, Her Crown and Dignity. Facts [2] The facts in this matter are very simple. The 15 year old complainant was employed by the accused on a part time basis. The accused states that the complainant represented herself as being 17 years old. At any rate, while being employed by the accused as a telemarketer in his home business the accused began to give her back rubs. The young complainant felt uncomfortable about this activity but feared that she would lose her job if she protested. On the day alleged in the indictment, while the complainant was doing her duties, she walked over to a small fridge to get some juice. Her employer, the accused, without her consent, kneeled behind her and started to rub her back. He then guided her to the floor and eventually pulled down her tights to her knees, kissed her buttocks and her thighs and performed oral sex on her. During the incident neither the complainant nor the accused said anything. The complainant did not consent nor did the accused ask for her consent. Throughout the incident the complainant "froze" and cried silently. The accused was of the view that because the complainant did not cry out or resist that she was consenting. [3] After the oral sex, the complainant heard the accused undo his zipper and pull his pants down. Upon hearing this, the complainant got up, pulled her tights up and turned to see the accused in his blue underwear, with his pants around his knees. At that stage she began to yell at him, "I'm just a little kid". The accused replied, "No, you're not. You're a woman". The complainant said that she was only 15 years old. The complainant left the accused's office and never returned to work for the accused. [4] The accused, who is 50 years old and was married with one child at the time of the incident claims that he thought that the complainant was 17 years old and that she was in love with him. He also stated that a few days after the incident, the complainant come to his office and demanded the sum of $300.00 which was much more than she was owed. The accused paid this sum and considered it as some sort of "pay off". Position of the accused [5] The accused is a 50 year old businessman with no previous criminal record. He expresses great remorse for the crime and has pled guilty to the offence. He is the only bread winner in the family and his incarceration would cause severe hardship to his family. His counsel has filed many letters of support for the accused. [6] Counsel for the accused submits that, in the circumstances, I should impose a conditional sentence on the accused. These letters portray the accused as someone who is very involved in his community and his church. Position of the Crown [7] The Crown takes the position that the accused was in a position of trust when he committed this offence on this young lady. She further submits that this offence has had a devastating effect on the complainant. She submits that this is not a case where a conditional sentence is appropriate and that the accused should be incarcerated in a prison setting. In support of her position, Crown counsel drew my attention to R. v. D.L.M. (1995), 61 B.C.A.C. 307 (B.C.C.A.) where the accused was sentenced to 15 months imprisonment on a charge of sexual exploitation by a person in trust. Defence counsel argues, however, that there were aggravating circumstances in the D.L.M. case. He points out that in that case the court had to deal with an accused who was involved with many acts of sexual impropriety compared with the case at bar where there was only one act of sexual impropriety. [8] In support of his application for a conditional sentence, counsel for the accused drew my attention to the following cases: R. v. Smith (May 15, 1989) Vancouver CA010423 (B.C.C.A.); R. v. Miranda (April 7, 1988) (B.C.Co.Ct.); R. v. Virtue (April 3, 1989) (B.C.Co.Ct.); R. v. R.G. (July 21, 1989) Victoria V00997 (B.C.C.A.); R. v. Phillip R. et al (June 18, 1989) (B.C.Prov.Ct.); R. v. D.E.S.M. (1993), 80 C.C.C. (3d) 371 (B.C.C.A.); R. v. S.(D.); R. v. C.(M.W.) (1997), 117 C.C.C. (3d) 289 (B.C.C.A.); R. v. Webb (January 14, 1994) (B.C.S.C.); R. v. L.(G.) (November 4, 1988) Vancouver CA009371 (B.C.C.A.); R. v. Smart (1992), 14 B.C.A.C. 73 (B.C.C.A.); R. v. E.C.S. (May 23, 1997) (B.C.Prov.Ct.). [9] Before deciding what sentence I should impose on the accused, it may be helpful for me to first canvass the purposes and principles of sentencing as enunciated by the Parliament of Canada. Purpose and Principles of Sentencing 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense or responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender's spouse or child, or (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim shall be deemed to be aggravating circumstances; (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) 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. [10] These sections of the Criminal Code are merely a codification of the common law. In order to see how these sections of the Criminal Code have been interpreted, especially with respect to the type of offence with which the accused is charged, it would be necessary for me to canvass the jurisprudence of some of the courts, especially the decisions of our Court of Appeal. The Law [11] It is clear from the case law that an employer is in a position of trust with respect to his employees. It is a well- known principle of sentencing in sexual assault cases that where the accused is in a position of trust with respect to the victim, the fact that that trust was violated by the accused is an aggravating factor. In R. v. Hardt, [1994] O.J. No. 582 (Ont.C.A.) the accused was convicted on three sexual assaults against girls whom he had employed to work in his greenhouse and landscaping business. The accused grabbed the breasts of one of the victims and rubbed his erect penis against her groin. He forced another victim to perform fellatio on him by threatening her with the loss of her job. Noting that the accused took advantage of his position of trust as the girls' employer, Forestell J. sentenced the accused to 30 months in prison for one charge, six months on a second charge and eight months on a third charge. The latter two were to be served concurrent with the first. While the Court of Appeal found that the 30-month sentence on the first charge was excessive, it went on to find that the other two sentences should be served consecutively and not concurrently as ordered by the trial judge. The Court therefore found the 30-month global sentence ordered by the trial judge to be appropriate and the accused's sentence appeal was dismissed. [12] In R. v. Campbell [1995] B.C.J. NO. 1484 (C.A.) the accused was convicted of sexual assault against an 11-year-old boy. The boy was recruited by the accused to help out in a bakery that the accused ran out of his home. The assaults consisted of six acts of fellatio and one act of anal intercourse performed by the accused on the victim. The trial judge noted that as the boy's employer, the accused was in a position of trust which position was exploited to the extreme disadvantage of the victim. The trial judge sentenced the accused to two years less a day plus two years probation. On appeal, Mr. Justice Carrothers noted on behalf of the Court that "the contrition and remorse and the rehabilitation and non-recidivism of the offender ... outweigh any anguish and torment of the disturbed victim...". The Court reduced the sentence to six months plus two years probation. [13] In R. v. Anthony, [1993] N.J. No. 362 (T.D.) the accused, an owner of a convenience store, sexually assaulted a 29-year- old employee. The complainant had worked in the store for about two weeks when the 48-year-old accused approached her from behind and put his hand inside of her clothing, under her bra and fondled her breasts. He said to the complainant: "This will happen every once in a while, if you don't mind". Easton J. noted that the fact that the accused was the complainant's employer was an aggravating factor and his actions forced the complainant to cease her employment with the accused. While being careful not to diminish the seriousness of the offence, Easton J. noted that this conduct was at the lower end of the scale of the "very wide range of human misbehavior" that encompasses sexual assault. He also noted that the offence, while unwanted and intrusive, was not perpetrated on a minor but on an adult who could and did take immediate steps to remove herself from the difficult situation. He ordered that the accused pay a fine of $1,000 in lieu of a two-month prison term and placed the accused on probation on terms requiring him to perform 40 hours of community service. [14] The fact that a sexual assault occurred in the context of an employment relationship was also found to be an aggravating factor by Richard J. of the Northwest Territories Supreme Court in R. v. Nitsiza, [1989] N.W.T.R. 232. In that case the accused sexually assaulted a 19-year-old live-in babysitter that the accused and his common-law wife hired. The accused forced himself on the victim and had non-consensual sexual intercourse with her. In sentencing the accused to a term of 20 months in prison, Richard J. said: One aggravating factor here is that Mr. Nitsiza was the employer of his victim, and in a sense breached a trust relationship between himself and the baby- sitter. This young woman, having been asked to come into the house and home of Mr. Nitsiza, who was known to her, to baby-sit the child, was entitled to assume that she was safe from sexual attack while in his home, and had every reason to trust that this would not happen. [15] In R. v. Ahmed (1994), 42 B.C.A.C. 76, the Court of Appeal upheld a sentence of 12 months for four incidents of sexual assault that occurred while the offender and complainant were at work. With time served before trial, the total sentence could have been regarded as around 20 months. The accused was not the complainant's employer but there was a significant age difference between the two. The accused was thirty-one at the time of the offences and the complainant was 16. The accused was employed as a cook at a pizza outlet and the complainant worked there part-time while attending high school. On the first occasion the accused hugged the complainant and touched her breasts. On the second and third incidents the accused placed the complainant's hand on his exposed penis and, on the third incident, ejaculated. On the fourth occasion he followed her into the bathroom and rubbed himself against her and ejaculated. The Court of Appeal did not find the sentence to be inappropriate largely because the accused had shown no remorse and had refused to partake in any rehabilitative courses. [16] Defence counsel submits that I should consider the accused guilty plea as a major mitigating factor. Plea of Guilty as a Mitigating Factor [17] A guilty plea may be taken into account by the court in mitigation of sentence: R. v. DeHaan (1967), 3 All E.R. 618 (C.A.); R. v. Saulnier (1987), 21 B.C.L.R. (2d) 232 (B.C.C.A.); R. v. Sandercock (1985), 22 C.C.C. (3d) 79 at p. 86 (Alta. C.A.) ; R. v. T.(R.) (1993), 17 C.R. (4th) 247 (Ont. C.A.); MacMillan Bloedel Ltd. v. Simpson (1994), 88 C.C.C. (3d) 148 (B.C.C.A.). The sentencing Judge must give weight to the fact that the accused pled guilty and as a result saved the community a great deal of expense: R. v. Johnston and Tremayne (1970), 4 C.C.C. 64 (Ont. C.A.). [18] An early guilty plea does not merit such weight where the accused knows he is inescapably caught: R. v. Spiller, [1969] 4 C.C.C. 211 (B.C.C.A.); R. v. Bruce (1982), 28 C.R. (3d) 247 (P.E.I.S.C.). In R. v. Santos (1993), 67 O.A.C. 270 (Ont. C.A.), however, this principle was rejected. [19] In R. v. Sandercock (1985), 22 C.C.C. (3d) 79 (Alta. C.A.), Kearns J.A. stated at p. 86: In recent years, great emphasis has been put on a prompt guilty plea as a special and major mitigating factor. It used to be said that this was relevant only to show remorse. Aside entirely from any remorse, however, an accused should receive substantial recognition either for sparing the victim the need to testify or to wait to testify, or for waiving some of his constitutional rights in deference to expeditious justice. [20] In R. v. Getty (1990), 104 A.R. 180 (C.A.) (Alta. C.A.), however, it was held that the accused's guilty plea entered after the preliminary hearing was tardy and showed at best belated remorse. [21] In keeping with the above jurisprudence, I am treating the accused's guilty plea as a mitigating factor but, because it was made at this late stage, I am not giving it a great deal of weight. Prevalence of Sexual Assaults on Women [22] In R. v. S.F. [1997] O.J. No. 4116 (Ont.Ct.Gen.Div.) Hill J. quoted the statistics for assaults on women at paras. 59-60 of the judgement: Crime control is a matter of pressing and substantial importance to Canadian society. Although the past few years have shown some decline in violent crime, there were nevertheless 294,764 incidents of violent crime reported in 1995 including homicide, attempted murder, robbery, abduction, sexual assaults and assault (Statistics Canada - Juristats: Canadian Crime Statistics, 1995). In 1995, there were 995 violent crimes reported per 100,000 of population. Despite recent declines, the violent crime rate, excluding assaults, was 15.1% higher in 1995 than in 1985. One out of every ten violent crimes in Canada in 1995 was a sexual assault. 85% of sexual assault victims were female and, with 28,216 sexual assaults reported in 1995, there was an average of over three (3) such assaults for every hour of every day of the year. [23] With these type of statistics, one could understand why it is important that a deterrent sentence be imposed for this type of offence. The only issue left for me to determine before I impose the sentence on the accused is whether I should impose a conditional sentence as suggested by counsel for the accused. Is the Imposition of a Conditional Sentence Appropriate in the Circumstances? [24] In R. v. L.(C.) (January 14, 1998) New Westminster No.X047682 (B.C.S.C.) I gave reasons why I did not believe that a conditional sentence was appropriate in that case. Although that case dealt with the sexual assault of young children and this case deals with the sexual touching of a young person, I adopt those same reasons for not granting a conditional sentence in the case at bar. In my view the facts in the case at bar cry out for a period of incarceration in a prison setting as opposed to a conditional sentence. In this regard I note the words of Toy J.A. in R. v. Smart, supra, where he said: Section 153 as drawn envisages all combinations of accused and young persons and a sentencing judge's message must go out to both sexes that, in the absence of exceptional circumstances, penal consequences will be the order of the day regardless of the accused's sexual preference. Young people of either sex must not be touched for a sexual purpose by those in a position of authority or trust. Conclusion [25] In the case at bar, after considering the facts, the law, the aggravating and mitigating factors, the submissions of counsel for the Crown and the defence, the provisions of s.742.1 and s.718 of the Criminal Code, the law enunciated above, and the impact statement of the complainant, I sentence the accused to a period of six months at the Fraser Regional Correctional Institute. "S.R. Romilly, J." ___________________ Mr. Justice Romilly