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DANGEROUS AND LONG-TERM OFFENDERS - Dangerous offender designation

Wednesday, May 13, 2020 @ 9:24 AM  

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Appeal by the accused, Patel, from dangerous offender designation and imposition of indeterminate sentence. In 2016, a jury trial resulted in the conviction of the accused for two counts of sexual interference and two counts of sexual assault of the victim, age 13. In two separate incidents two months apart, the accused contacted the victim through Facebook and arranged two separate meetings at a motel room and recovery centre, where the accused supplied the victim with crystal methamphetamine, attempted intercourse and engaged in sexual touching. In between the two offences, the accused grabbed the buttocks of a teenage girl in a grocery store. Multiple probation and bail violations occurred in the context of the offences. The accused was born in 1974 with congenital defects. The accused had a history of non-violent offences as a youth and unresolved addiction issues. A manslaughter conviction was entered in 2003 in connection with the killing of a sex trade worker. In 2011, the accused robbed a bank. In 2012, the accused was convicted of breaching probation, possessing a dangerous weapon, and breach of an undertaking. The index offences occurred in 2015. Although the sexual assault convictions were initially stayed in favour of the sexual interference counts under the Kienapple principle, the sentencing judge reversed the stay for the purpose of the dangerous offender proceeding, such that the sexual assault convictions served as the index offences. The accused was declared a dangerous offender and sentenced to an indeterminate custodial term. The accused appealed.

HELD: Appeal allowed. The sentencing judge did not act arbitrarily or exceed his jurisdiction in entering convictions on the sexual assault counts instead of the sexual interference counts. It was within the Crown’s discretion as to which count ought to be stayed, as the two offences carried equal penalties, and were thus of equal gravity. The sentencing judge misapplied the Boutilier principles by expanding the scope of evidence considered at the dangerous offender designation stage by considering the accused’s criminal record for non-sexual violent offences, including the prior conviction for manslaughter, in the analysis of whether the accused was likely to cause future injury by failing to control sexual impulses. Instead, the judge was obliged to conduct the required prospective assessment of risk of sexual reoffending based exclusively on the offender’s past pattern of sexual offending. The consideration of the manslaughter conviction in the prospective risk analysis constituted an error in principle that required a new dangerous offender hearing. Otherwise, the sentencing judge did not improperly consider the separate inquiries mandated at the designation and penalty phases by conflating intractability with manageability. The judge’s reasons reflected that at the penalty stage, he considered the manageability of the accused’s risk arising from addiction and failure to control sexual impulses, and properly considered treatability as part of whether that risk could be managed. The sentencing judge did not fail to properly consider whether the accused’s risk could be managed by means other than an indeterminate sentence. Having referred to the availability of lesser measures than an indeterminate sentence, the judge found a lesser measure would not adequately protect the public, as the risk to reoffend was too great to be managed in the community. The judge’s conclusion was entirely supported by the evidence. However, the error at the designation stage, given its materiality, required setting aside the designation and sentence, with an order for a new dangerous offender hearing.

R. v. Patel, [2020] B.C.J. No. 432, British Columbia Court of Appeal, A.W. MacKenzie, G.J. Fitch and G.B. Butler JJ.A., March 18, 2020. Digest No. TLD-May112020005