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DANGEROUS AND LONG-TERM OFFENDERS - Protection of the public

Wednesday, January 15, 2020 @ 9:01 AM  

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Appeal by the accused from a dangerous offender designation and an indeterminate sentence. The appellant, 61, had a record of 56 criminal convictions since he was first prosecuted as an adult in 1973. He was sentenced to periods of imprisonment totalling about 30 years. Six of the appellant’s convictions were for sexual offences against female children ranging in age from 7 to 10 years old. The predicate offence for the dangerous offender sentence was the aggravated sexual assault in 2001 of an adult. The appellant completed a provincial group sex-offender program in 1999. His risk was still considered moderate to high, particularly if he went back to drinking alcohol. He had a difficult upbringing, was socialized into criminal conduct, was of below-average intelligence and had at best an elementary school level of education. A psychiatrist opined that the appellant represented a high risk to reoffend, both for sexual violence and violence generally. The psychiatrist saw the appellant as a poor treatment candidate for whom future community supervision would be hazardous. The appellant was an Aboriginal. He experienced poverty, crime, alcohol and even sexual abuse from his uncle. In the court’s opinion, no workable treatment plan to reduce his risk had emerged on the evidence. The appellant argued the judge erred in imposing an indeterminate sentence.

HELD: Appeal dismissed. The order declaring the appellant to be a dangerous offender was justified and the court below did not err in finding on the evidence that his risk could not be managed at an acceptable level in the community following a determinate sentence. The sentencing judge did not place undue weight on the psychiatrist’s evidence. The judge was clearly entitled to accept her opinion but considered it in the context of the other evidence provided. The sentencing judge did not rely on the incidents of reoffending after completion of the provincial sex-offender program to find that the appellant was not treatable. The question before the court was not whether the appellant’s risk of recidivism would be eliminated but whether it could be reduced to an acceptable level within the parameters of a long-term offender designation. It was open to the judge to reach the conclusion on all the evidence that that criterion was not met. The sentencing judge did not fail to consider the Gladue factors. Under the Criminal Code as it stood in 2001, once a person was found to be a dangerous offender, the only alternative was a long-term offender order. The protection of the public remained the overarching factor in the dangerous/long-term offender analysis. Sentence: Indeterminate sentence; dangerous offender designation.

R. v. Garnot, [2019] B.C.J. No. 2198, British Columbia Court of Appeal, M.V. Newbury, P.M. Willcock and R. Goepel JJ.A., November 21, 2019. Digest No. TLD-January132020005