Oral Reasons for Sentence Date: 19980915 Docket: 6015 Registry: Nelson IN THE SUPREME COURT OF BRITISH COLUMBIA Oral Reasons for Sentence Mr. Justice McEwan 15 September 1998 HER MAJESTY THE QUEEN AGAINST WILLIAM DENIS CLENDENNING Counsel for the Crown: Kenyon McGee Counsel for the Defence: Patricia D. Gartner as agnt for Paul G. Danyliu [1] THE COURT: On June 15th, 1998 I found William Denis Clendenning guilty of one count of touching a person under fourteen for a sexual purpose and one count of sexual assault arising out of incidents that occurred in the late fall of 1995 and the first two weeks of January 1996. [2] The circumstances recited in reasons given on that occasion were that a child, born August 4th, 1989, who was seven at the time of the incidents, was touched for a sexual purpose. In one incident, Mr. Clendenning fondled the child on the buttocks while she was probably sleeping. She was sexually assaulted in another incident when Mr. Clendenning fondled her genitals. On both occasions the activity was detected by the child's mother who was at the time living in a relationship with Mr. Clendenning. Each of the incidents occurred when the child was in bed with Mr. Clendenning and her mother. By the time the offences occurred the child's mother and Mr. Clendenning had established a household together. Mr. Clendenning exercised authority over the child as a stepparent. There is no question on the evidence that he was the dominant member of that household. [3] The mother of the child involved was, I found, so intent upon pleasing Mr. Clendenning and preserving the relationship that she allowed Mr. Clendenning to behave toward her daughter in a number of respects she knew to be contrary to the child's best interests, if not entirely inappropriate. The relationship between Mr. Clendenning and the child's mother ended over concerns about Mr. Clendenning's express desire to take sexual matters further with her daughter. [4] The Crown has taken the position that Mr. Clendenning has committed a serious breach of trust in the circumstances and that the penalty for these offences should reflect a proper measure of denunciation for such conduct. The Crown has submitted that a sentence of imprisonment of between one and two years less a day followed by a lengthy period of probation would be appropriate. [5] The Crown submitted Mr. Clendenning's criminal record. It includes eight convictions between 1972 and 1993, including two crimes of dishonesty; two involving drinking and driving; one breach of probation; two assaults causing bodily harm; and one of uttering threats. In 1974, on one of the assault charges, Mr. Clendenning was sentenced to six weeks in jail. It should be said that since 1977 there has been only an impaired driving conviction in 1985, and the uttering threats conviction in 1993. It appears from the record that Mr. Clendenning was still on probation for the latter offence when the offences presently before this court occurred. [6] The Crown has submitted that the record and the evidence in the trial indicate long-standing difficulties with alcohol and a propensity for violence that ought to be factored into the terms of any probation order. [7] Counsel for Mr. Clendenning submitted that Mr. Clendenning, a man from a farming background, has a grade eight education, and has worked on and off, mostly in the trucking industry, during his adult life. One marriage produced two children, one of whom, a boy, has since 1993 lived with Mr. Clendenning. That boy is now thirteen. Mr. Clendenning's present circumstances are that he has re-located to Quesnel, established a new relationship, and found some employment. [8] The evidence at trial was that Mr. Clendenning had had very little in the way of employment for quite some time leading up to and after the offences were committed. Mr. Clendenning's counsel has pointed to the fact that there is no related record in Mr. Clendenning's past. He made a strong submission that these offences were isolated incidents restricted to a particular set of circumstances and quite unlikely to recur. [9] He also submitted that while Mr. Clendenning was in a step- parenting role to the young girl involved, he was not exactly in a position of trust at the time the incidents occurred because the young girl's mother was present. He submitted that this case bears some circumstantial similarity to the case R. v. Broda, where a man sexually assaulted the fourteen year old daughter of his brother's wife, apparently impulsively, and while intoxicated, at a wedding reception. [10] Counsel for Mr. Clendenning relied extensively on the decision of R. v. J.W., (1997) O.J. 138, C198832, a decision of the Ontario Court of Appeal. In that case a twenty year old adopted son in a family that took on a large number of foster children, was convicted of touching an eight year old foster child on the vagina a number of times over a fifteen month period. The trial occurred four years after the events. The accused in that case had no criminal record. [11] The Court of Appeal of Ontario found that a twelve month sentence of imprisonment imposed at trial was a fit sentence but allowed it to be served as a conditional sentence. The court observed that conditional sentences are not reserved to non- violent crimes or to crimes where there is no risk of re- offending, or to first offences. It pointed out that committal to prison remains a threat throughout the term of a conditional sentence and that it is not subject to reduction through parole, like a normal sentence. [12] The court outlined the purpose of the legislation setting up the conditional sentence regime to be to reduce the reliance on prisons as a response to crime. It reviewed the economic rationales for reducing society's dependence on prisons and the literature on the doubtful efficacy of prison sentences in producing a meaningful effect of general deterrence. While the court did not doubt that the effect of prison sentences might deter some people, it did not consider general deterrence in itself as sufficient rationale for refusing a conditional sentence, particularly in view of the negative collateral effects of the prison experience itself. [13] The court adopted the observations of the Supreme Court of Canada in R. v. M.(C.A.) to the effect that a prison term is not the only or necessarily the best way to address society's denunciation of offensive conduct. It reviewed the debatability of specific deterrence in light of studies suggesting recidivism increases rather than decreases following incarceration. [14] The court suggested that undue emphasis ought not to be placed on the statutory aggravating features such as breach of trust as set out in Section 718 of the Criminal Code. Having said all of this, the Court of Appeal suggested that the ultimate duty of the court is to impose a fit sentence. Once a judge has decided that the conditions are met which would make a conditional sentence suitable, that is: (1) that lesser sanctions are not appropriate, (2) that the offence does not call for a prescribed minimum term of imprisonment, and, (3) that a sentence of less than two years is called for, the principal factor at the point ought to be a consideration of whether serving the sentence in the community would endanger the safety of the community because of the risk the offender will re- offend. [15] Counsel for Mr. Clendenning also referred to the analysis in R. v. Ursel, R. v. McNally, R. v. D.S., R. v. M.W.C., and R. v. Virdi, (1997) 117 C.C.C. (3d) 289; a group of cases decided by the British Columbia Court of Appeal. While counsel drew his analogies to the present case from R. v. D.S. I think the more apt comparison is R. v. McNally. There the accused was convicted of a sexual assault on an eleven year old girl, which consisted of rubbing that child's chest under her clothing. Alcohol was involved. There had been one previous conviction of a somewhat more serious sexual assault about nine years before. In those circumstances, on the grounds that there was no evidence that Mr. McNally was not a danger to the community, the court found that a community sentence was clearly unfit. It imposed a one year term of imprisonment with a two year term of probation. [16] The purpose and principles of sentencing are found in Section 718, 718.1, and 718.2 of the Criminal Code. They read as follows: "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 the offenders from society where necessary; (d) to assist rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, an acknowledgment of the harm done to victims and to the community." [17] Section 718.1 says that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [18] In Section 718.2 other sentencing principles are identified, that section reads: "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 or 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 of 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; (iii)evidence that the offender in committing the offence abused a position of trust or authority in relation to the victim, or (iv) evidence that the offence was committed for the benefit of, at the direction of, or in association with a criminal organization 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. (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." [19] The sections governing conditional sentence are found at Section 742 and thereafter. [20] Applying these principles to the circumstances before me I have come to the conclusion that a sentence of imprisonment is called for in this case. The offences are of a serious kind involving a young child in a vulnerable and dependent position. Mr. Clendenning was the clear head of the household within which the complainant had no choice but to live. Her mother was infatuated with Mr. Clendenning to a degree that exposed the young child to risk, and that Mr. Clendenning exploited. [21] While the offences do not involve violence or penetration, considered in context, it is clear that Mr. Clendenning was preparing the child for, and attempting to persuade her mother to allow, greater levels of intimacy at the time the mother called an end to matters. The pattern of alcohol consumption and the threats of violence when Mr. Clendenning was not getting his way suggests that some of the features of Mr. Clendenning's past, as exemplified by his record, continue to cause problems in the present. While there is no past record for sexual offences I find it impossible to regard Mr. Clendenning's behaviour as comparable to the impulsive, aberrant behaviour exemplified in the case of R. v. Broda. [22] It would be to abandon common sense and experience not to regard Mr. Clendenning as a danger to the community given his evident attitude towards sexual activity with children, his lack of any expression of or acknowledgment of responsibility, and his apparent failure to take any steps personally since conviction to address these issues. [23] I have considered the letters submitted by friends of Mr. Clendenning in the context of the facts as found at trial and the record. [24] Taking account of the factors in Section 718 and the detailed commentary on them set out in R. v. J.W., as referred to me by Mr. Clendenning's counsel, I am of the view that a fit sentence denouncing Mr. Clendenning's conduct, offering a measure of deterrence corresponding to the gravity of the offences committed, and responding to the threat Mr. Clendenning poses in the community, is a term of imprisonment. I am unable to find that the conditions are met to permit the sentence to be served conditionally because I have found that he is a danger to the community. [25] Mr. Clendenning, will you stand up, please. William Denis Clendenning I sentence you to a term of imprisonment of eighteen months on the sexual assault count, and to nine months, concurrent, on the count involving touching for a sexual purpose. In addition, I impose a term of probation for two years on the condition that you: (a) keep the peace and be of good behaviour; (b) report to a probation officer in Quesnel within forty- eight hours of your release from prison; (c) notify your probation officer of any change of address or employment; (d) report once a week to your probation officer and more often as directed; (e) seek and obtain whatever alcohol or sex counselling the probation officer directs; (f) abstain from the consumption of alcohol or other intoxicating substances; (g) for the duration of the probation period that you not be unaccompanied in the company of young women under the age of eighteen. [26] To the charge under Section 86(2) to which Mr. Clendenning has pleaded guilty I impose a one hundred dollar fine. Is there a firearms prohibition required? [27] MR. McGEE: Yes, Your Honour -- My Lord. My Lord, I wonder if you would consider a no contact order with the victim and the mother? [28] THE COURT: I am prepared to add to the probation terms that there be no contact during the term of probation with the victim or with her mother. [29] And there will be the standard firearms prohibition under Section 100. [30] Anything further? "T.M. McEwan" ________________________________ MR. JUSTICE McEWAN