Date: 19990511 Docket: SCR9711421 Registry: Williams Lake IN THE SUPREME COURT OF BRITISH COLUMBIA Reasons for Judgment Mr. Justice Josephson May 11, 1999 HER MAJESTY THE QUEEN AGAINST JAMES BOLTON Counsel for the Crown: William Hilderman, Esq. Counsel for the Accused: Alfred Kaiser, Esq. [1] THE COURT: Mr. Bolton is before me for sentencing on 10 counts of sexual offences committed on four young boys. Nine counts relate to offences committed on three brothers between 1970 and 1980. Count 10 relates to an offence committed from about 1984 or 1985 to 1991, with the victim in that count being the son of the victim in Counts 3 through 5. Mr. Bolton pled guilty to all but Count 10. The offences involve acts from fondling of the genitalia to fellatio and anal intercourse. The victims were children of friends and acquaintances of Mr. Bolton. He would use that position of trust with the child and family to isolate and abuse that child. [2] Counts 1 and 2 allege indecent assault and gross indecency involving T.E. from 1972 to 1980. He was nine years of age in 1972. He recalled numerous acts of abuse, including painful anal intercourse, as well as mutual fondling and fellatio. The abuse ended when the victim moved to another province. The accused did not use threats to ensure silence, but did refer to the acts as their little secret which no one was to know about. [3] Counts 3 through 5 name R.E. as the victim of acts of buggery, indecent assault and gross indecency between 1972 and 1978. He was 11 years of age in 1972. He described similar conduct on the part of the accused, with the exception that he was able to push the accused away during acts of fellatio and successfully prevented Mr. Bolton's attempt at an act of anal intercourse. [4] Counts 6 through 9 name M.E. as the victim of acts of assault with intent to commit buggery, indecent assault, buggery and gross indecency. These occurred from 1970, when he was six years of age, to 1978. He described many acts of fondling, fellatio and anal intercourse upon him by the accused. The accused ensured silence by telling him that people would think he was dirty, that his parents would not believe him and they would end up hating him. [5] With respect to Count number 10, the victim in that case, the child of R., recalled two acts of fondling and one of oral sex by the accused in 1984 or 1985, when he was five or six years of age. When he was from 10 to 12 years of age, there were mutual acts of fondling and fellatio. In 1991, there were acts of mutual fondling. On each occasion, the accused told him that the incidents were their little secret, and that he should not tell his parents as they would be jealous. Dangerous Offender Application [6] The Crown applies to have Mr. Bolton declared a dangerous offender. In the course of these sentence proceedings, the Crown led evidence of other similar acts committed by Mr. Bolton. [7] Twenty six year old D.F. was abused by Mr. Bolton beginning when he was five years old, or about 1978. Mr. Bolton was friends with the victim's alcoholic parents. Mr. Bolton began regularly abusing him, including painful anal intercourse. The abuse was frequent and lasted for years. Mr. Bolton told him not to tell anyone, that it would hurt for a while and then get better. Like many of his victims, the impact on Mr. F. has been severe. He has attempted suicide on many occasions. Despite counselling, it appears unlikely he will ever live a normal life. [8] Thirty-one year old M.P. was victimized by Mr. Bolton beginning when he was about eight years of age. He and his sister were being baby sat by Mrs. Bolton, who would frequently leave them in the care of Mr. Bolton. On nearly every such occasion, which could be from one to five days a week over some four years, Mr. Bolton abused Mr. P. with fondling and acts of oral intercourse. Mr. P. always refused Mr. Bolton's attempts to have his commit acts of fellatio in return, and successfully avoided Mr. Bolton's attempts at anal intercourse. Mr. Bolton threatened to kill him and his sister if he ever revealed what he had done. The abuse ended when Mr. P.'s family moved away after some four years. However, the abuse continued for another five months when they returned when he was age 13. The abuse ended then as police were investigating Mr. Bolton. He described the impact upon him, an impact which he appears now to be coping with, although it continues to haunt him daily. [9] Twenty eight year old W.T. had his penis fondled by Mr. Bolton on one occasion when he was about eight years of age. That single incident has had a long term impact on Mr. T. [10] His now 25 year old brother J.T. was present on that same occasion and had his penis fondled by Mr. Bolton as well. On another occasion, while in Bolton's vehicle, Mr. Bolton fondled him and had him place his hand on Mr. Bolton's penis. Mr. Bolton made some threats which he cannot now remember but which were nonetheless successful in keeping him silent. Mr. T. testified that there were other incidents which he cannot recall as vividly and did not describe. He described what he called the tremendous impact of these incidents on his life. He rebelled against all authority, and became involved in the street life of substance abuse. Still not a day passes without the abuse coming to mind. [11] Now 12 year old S.M. described one incident of a brief fondling of his penis over the clothing in the bedroom of his home in Edmonton in 1991. Mr. Bolton's wife was downstairs in a state of near hysteria at the time due to the death of her mother. Mr. Bolton took that opportunity to claim he wished to go upstairs to shower. But first, he entered the bedroom where five year old S. was playing on the floor. Mr. Bolton joined him on the floor and fondled him. Fortunately, young S. had been taught by his parents that this kind of touching was wrong, and he so informed Mr. Bolton, who withdrew without further incident. Even for S. there was an impact of some significance. He became more withdrawn and tended to cling to his mother. His mother described with some eloquence the impact of this incident on the family. Even a brief and relatively mild act of abuse by a trusted adult on a young child has a significant impact on that child and the child's family that can never be minimized. Criminal Record [12] Mr. Bolton, in addition to two drinking and driving offences in 1970 and 1979, was convicted in 1983 of four counts of buggery, three counts of sexual assault and three counts of indecent assault. All victims were young males. He was sentenced to 21 months imprisonment, followed by three years probation. [13] Mr. Bolton moved to Saskatchewan. He was convicted and fined for theft of goods of a value under $200 in 1985. In 1986 he was convicted of assault and threatening, for which he was placed on probation. Expert Evidence [14] Dr. Collins is a Forensic Psychiatrist who is the Crown's nominee. Dr. Semrau, also a Forensic Psychiatrist, is the nominee for the defence. Both found the accused to be outwardly cooperative and readily acknowledging all the offences in the indictment but Count number 10. He professed remorse for his offences in a manner which, at least to Dr. Semrau seemed genuine. [15] With Dr. Collins, Mr. Bolton claimed he was intoxicated at the time of all offences, denied having sexual thoughts about children, rarely thought about the assaults and could not remember what he had done. He blamed alcohol and his own abuse as a child for his conduct. Although he could recall the fear and shame when he had been similarly victimized as a child, when asked about the impact on his victims, he told Dr. Collins that it was okay, he guessed; that they didn't get mad; never told him to stop; and he didn't know if they were enjoying it or not. However, he did acknowledge that the impact on his victims would have been devastating. [16] Dr. Collins described the three methods employed to assess the risk for future sexual violence. He found that Mr. Bolton did not have any significant psychopathic personality characteristics. He listed the risk factors which "are present or have been present at some time in the past", as well as risk factors which are absent. He described the most significant risk factor as paedophilia, for which he has not received treatment. Research indicates, he testified, that the existence of a likelihood of further such offences being committed even after involvement in the justice system. [17] Dr. Collins found that Mr. Bolton minimized the seriousness of the offences, did not accept full responsibility for his conduct and projected blame onto intoxication and being the victim of sexual abuse himself. While Mr. Bolton clearly planned and arranged to be alone with the children, he denied any planning of sexual acts and claimed the offences were impulsive. Also worrisome was his denial of having a sexual interest in boys, after which he gave statements which tended to contradict that. As well, his adamant assertion that he stopped offending in 1982 contradicts the fact of his conviction on Count number 10. [18] Dr. Collins found Mr. Bolton's claim of low libido not verifiable due to the subjective nature of that complaint and the fact that the absence of sexual activity could be caused by other factors. [19] Dr. Collins concluded that there is a moderate to high probability that Mr. Bolton will re-offend without appropriate treatment and supervision. He added that there is a reasonable probability of eventual control of the risk in the community. He acknowledged that if the claim of loss of libido resulting from the stroke and diabetes in 1992 is genuine, that would alter his opinion of the existence of moderate to high risk of re-offending. [20] Dr. Semrau found that Mr. Bolton was "entirely cooperative and appeared straightforward, open and unguarded in his responses". He found him to describe the offences in a straightforward manner, attributing the lack of recall of some details to alcohol and a stroke which he suffered in 1992, although he acknowledged that he was entirely sober during some of the offences. He claimed the offences were not planned, but were impulsive and opportunistic. He acknowledged sexual fantasies involving boys. [21] He expressed an understanding of the impact on his child victims and professed what appeared to Dr. Semrau to be genuine remorse. He denied using force or threats to bring about compliance. While acknowledging that he told victims that they should keep quiet afterwards, he claimed he gave no other instructions. [22] With Dr. Semrau, Mr. Bolton "with apparent sincerity and a moderate amount of emotion", professed that the acts were "sick, embarrassing and he was ashamed of them". He claimed to have felt sick about what he had done, but that his urges would compel further similar acts. He claimed empathy for his victims and expressed "with considerable emotion" a fear that his victims might turn out to be sexual abusers like himself. He claimed "100%" responsibility. [23] With Dr. Semrau, Mr. Bolton claimed that all sexual interest in young males and offending ended when he went to gaol in 1983. He claimed his sexual interest turned to adult women. As well, Mr. Bolton claimed that his stroke in 1992 ended even that sexual interest or ability to perform the sexual act. He claimed that alcohol was no longer a significant factor in his life. [24] Dr. Semrau found Mr. Bolton sincere and straightforward, forcing himself to deal with material he plainly found distressing. He found Mr. Bolton demonstrated "genuine remorse and empathy" for his victims. [25] Dr. Semrau opines that there is a great difficulty devising reliable methods for estimating the risk of further sexual offences. Using the admittedly crude methods now available to provide "ballpark estimates" of that risk, he went to some great length to explain his opinion that "Mr. Bolton is very unlikely to sexually re-offend again, even if he were released into the community with no further treatment or supervision". He notes that Mr. Bolton's considerable and serious sexual abuse of children almost completely ended with his incarceration in 1983 and that there is no suggestion of any offences of any kind since he suffered a stroke and developed diabetes in 1992, the time of the claimed loss of libido and erectile function. While Dr. Semrau notes the one exception to be the conviction on Count number 10, I would add to that the fondling of S.M. in 1991 that I find proven in these sentencing proceedings. [26] Dr. Semrau accepted the change as genuine after considering as number of factors, including his imprisonment in 1984, his stroke and diabetes in 1992 with the claimed erectile dysfunction confirmed by a urologist, the fact that the stroke affected a portion of the brain believed to be involved in sexual interest, the onset of andropause or male menopause, the resultant marked decline in sexual interest of any kind, the marked improvement in his marital relationship and the marked decline in the use of alcohol. [27] Dr. Semrau also found that Mr. Bolton is an excellent candidate for a sexual offender treatment program. [28] The Crown and defence agree that the sole issue is whether the Crown has proven "a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses", within the meaning of s. 753.1(b). Dr. Collins places that risk at moderate to high; Dr. Semrau at near zero. [29] The point at which the two psychiatrists part company is primarily the reliability of the reported loss of libido and erectile function by the accused in 1992. Dr. Collins found this too subjective a report to be accepted as reliable. Dr. Semrau examined the subjective reports with some care and found it to be sufficiently confirmed by other information to be accepted as reliable. In particular, he found the stroke and diabetes to have been the likely cause of the reported lack of interest in sex and inability to have an erection. He found the claim sufficiently reliable that he placed the risk of re-offence at near zero, even if released into the community with no supervision. [30] I cannot, as invited by the Crown, deal with the remaining admitted risk which continues by sentencing him to an indeterminate sentence to reduce that risk to zero. I need not in this case attempt the mental gymnastics of determining when a likelihood is proven beyond a reasonable doubt. The evidence of the well experienced Dr. Semrau leaves me to the conclusion that the likelihood required by s. 753.1(b) has not been demonstrated, even on balance. I decline, therefore, to declare him a dangerous offender. Likewise, I decline to declare him a long term offender as the evidence does not establish a substantial risk that Mr. Bolton will re-offend, as required by s. 753.1(b). [31] What then is an appropriate determinate sentence? The Crown has advanced a line of authorities, led by R. v. Bakker and R. v. Turley, which it submits should lead to a sentence of from four to six years for Counts 1 through 9, and a consecutive sentence of three to four years for Count 10, occurring as it does after the accused had served a gaol sentence for similar offences. That would leave a global sentence of from seven to 10 years, from which would be deducted credit for time already served. [32] With refreshing frankness, Mr. Kaiser for Mr. Bolton acknowledged that the Bakker and Turley cases most closely resemble the circumstances of this case and provide an appropriate range for my guidance. I accept those submissions. [33] The evidence leads to the conclusion that the accused was a compulsive paedophile who committed over a thousand sexual acts on many children. His activity reduced after his incarceration in the early 80's but did not cease until 1992 when he suffered a stroke and developed diabetes. It appears to have accomplished results similar to that of castration, results which have largely resolved the fear of further offences which would otherwise exist. [34] While I cannot sentence Mr. Bolton for the similar acts not the subject of counts in the indictment, the defence acknowledges, rightly in my view, that I may take those acts into consideration as aggravating factors and in putting the circumstances of the counts of the indictment into perspective. [35] Mr. Bolton leaves a trail of broken lives. The shame, humiliation and self blaming suffered by his victims are slow, if ever, to dissipate and impacts negatively on every aspect of their lives. Even those who, with support, counselling and the passage of many years, have learned to cope with their ordeal, will never have the opportunity to enjoy the fullness that life would have offered had they not been the victims of this abuse at the hands of Mr. Bolton. Some have been severely crippled emotionally for life. [36] A significant period of incarceration is required to reflect the need for general deterrence and to express society's denunciation of these most serious and destructive of offences. Children in the hands of trusted adults are the most vulnerable members of society and must be protected as much as the sentencing process is able to accomplish. [37] An appropriate global sentence in my respectful view is one of eight years. While not inappropriate to accomplish this by a separate consecutive sentence for Count 10 as suggested by the Crown, I choose not to do so. He has served the equivalent of some two years. I sentence him to imprisonment for a period of six years on each of the 10 counts, to be served concurrently, along with a recommendation that he be considered for sexual offender and alcohol abuse treatment programs to further reduce what I have already found to be the already low risk of re- offending. [38] With thanks to both counsel I will adjourn. (PROCEEDINGS CONCLUDED)