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DANGEROUS AND LONG-TERM OFFENDERS - Persistent criminal behaviour

Wednesday, September 18, 2019 @ 6:24 AM  

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Appeal by the accused from a dangerous offender designation and an indeterminate sentence. The appellant pleaded guilty in 2012 to one count of sexual assault, three counts of sexual assault with a weapon and two counts of unlawful confinement. The charges arose out of three separate sexual assaults that took place in 1995, 2007 and 2009. The victims in all three incidents were minors. They were strangers to the appellant. The appellant abducted them from the street in broad daylight and confined or sexually assaulted them. The appellant dominated his victims, forcing them to perform or witness acts that inflicted significant psychological damage. The appellant, 47 at the time of sentencing, had no prior criminal record. The appellant told the assessor that in recent years he had recovered two previously repressed memories about being sexually abused as a child. The appellant told the assessor that he had no memory of committing any of the offences until after his arrest in 2010. The judge concluded that the appellant’s behaviour was persistent and aggressive and reflected a substantial degree of indifference. He was satisfied that each of the victims sustained severe psychological damage which was attributable to the appellant’s failure to restrain his behaviour. He also found that the behaviour in each incident was brutal and reflected the appellant’s failure to control his sexual impulses. He found it was more likely than not that the appellant would engage in similar behaviour in the future. The judge rejected the appellant’s explanation for his offending in its entirety, including that the offences were motivated by his childhood sexual abuse, that the appellant was acting as an automaton and could not recall the offences until after his arrest and that the offences were not sexually motivated. The judge was satisfied that no measure less than an indeterminate sentence would adequately protect the public from the risk the appellant posed.

HELD: Appeal dismissed. The judge did not improperly merge the dangerous offender criteria. The judge made specific and distinct findings that the appellant met each of the criteria for designation as a dangerous offender and properly applied the criteria. It was open to the judge to conclude from the brutality associated with the commission of the offences and the appellant’s stance in relation to the offences that his behaviour was unlikely to be inhibited in the future by normal standards of behavioural restraint. There was an ample evidentiary foundation upon which the judge could reasonably conclude that the offences shared many significant, relevant similarities and formed a pattern of behaviour. The reasons for sentence did not support a conclusion that the judge considered the appellant’s threat to be established upon proof of the pattern of offending behaviour. The judge’s approach to the issue did not merge the pattern analysis with the threat assessment. The judge gave extensive consideration to the appellant’s treatment prospects at the designation stage but concluded that his treatment resistant stance and the expert evidence did not permit a conclusion that the appellant could surmount his past behaviour with the benefit of therapeutic intervention. Although the judge did not use the word “intractable”, his findings were to the effect that there was no reason to expect the appellant would be able to overcome his deviant sexual interest in children given his failure to understand or accept his motivations or risk factors. The judge considered whether a less intrusive sentence would provide adequate protection to the public. The judge’s conclusion that there was no basis to support a finding that any measure, other than an indeterminate sentence, would adequately protect the public was not unreasonable.

R. v. Hexamer, [2019] B.C.J. No. 1450, British Columbia Court of Appeal, G.J. Fitch, J.J.L. Hunter and S.A. Griffin JJ.A., August 2, 2019. Digest No. TLD-September162019007