R. v. Beckers, 2013 ONSC 3065

CITATION: R. v. Beckers, 2013 ONSC 3065

COURT FILE NO.: 93/11

DATE: 20130528

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RICHARD BECKERS

E. Pecorella, for the Crown

C. Cawkell, for Mr. Beckers

REASONS FOR SENTENCE

Publication of Any Information Contained Herein is Prohibited under s. 486.4 of the Criminal Code of Canada

HOURIGAN J.

Circumstances of the Offences

1Richard Beckers was found guilty of sexual assault, sexual exploitation and assault following a non-jury trial.

2The complainant was a young man whom Mr. Beckers befriended. I found that the accused groomed the complainant by sowing discontent with his parents, providing him with gifts and freedom that he did not have at home, all in order to exploit the complainant for his own sexual gratification.

3The charge of sexual exploitation related to a “hand job” that the complaint testified that he gave Mr. Beckers. The charge of sexual assault related to a “dry humping” incident where Mr. Beckers rubbed his penis against the complainant’s body until he ejaculated. The assault charge related to an incident where Mr. Beckers struck the complainant on the arm.

The Circumstances of the Offender

4A Pre-Sentence Report was prepared in contemplation of sentencing. The following information is drawn from that report.

5Mr. Beckers is age 54 and was born in Hamilton Ontario. Mr. Beckers reported a positive childhood and a very close relationship with his father. His mother died when he was six years of age.

6Mr. Beckers had four brothers who were considerably older than him. He does not maintain a relationship with them. He also does not maintain a relationship with his daughter and has had no contact with her for several years.

7According to Mr. Beckers, he was the victim of sexual abuse by an older brother when he was seven or eight years of age. The probation officer preparing the report informed police of the sexual abuse alleged, but Mr. Beckers advised that he did not wish to provide further information regarding the abuse.

8Mr. Beckers was educated at a high school in Burlington and at the age of 31 he attended college and received a Police Studies Diploma and a Police Sciences Diploma. He later received a diploma in Law and Security Administration/Laws Prevention Management.

9During the course of his work career Mr. Beckers has been employed in various factories and held positions in the tool and die industry. He also worked in the shipping and receiving industry, the trucking industry and for a metals company. After graduating college, he worked as an alarm response officer for two-and-a-half years before quitting to obtain a position selling alarm systems. In 2002 he was diagnosed with cervical degenerative disc disease and spinal stenosis and as a result of these conditions he is unable to work. However, Mr. Beckers reported that he is currently working for a friend who has started a roofing company. He performs clerical duties for the company but does not receive any pay.

10Mr. Beckers has volunteered with Mothers Against Drunk Driving, Operation Rednose (a St. John Ambulance initiative to help stop drinking and driving) and within the court system supervising offenders on the community work order program.

11Mr. Beckers described himself as a social drinker in the past and indicated that he presently does not consume alcohol. He reported experimentation with cocaine between the ages of 19 and 20 but stated that he has not used cocaine since that time. He reported first using marijuana at the age of 13 and admitted to its daily use for a number of years. Nine years ago he received a medical marijuana license for chronic pain and is presently using marijuana daily.

12A number of very positive reference letters were filed as part of the sentencing hearing.

Positions of the Parties

13The Crown submits that an appropriate global sentence is 15 to 18 months incarceration, followed by three years of probation.

14The Crown also seeks the following ancillary orders:

(i) a no contact order with the complainant and his family;

(ii) a lifetime Sex Offender Information Registration Act order;

(iii) a ten year prohibition order pursuant to s.161 of the Criminal Code of Canada;

(iv) a ten year weapons prohibition order pursuant to s.110 of the Criminal Code of Canada; and

(v) a DNA order.

15The defence submits that the appropriate sentence is eight months’ incarceration concurrent for each of the sexual assault and the sexual exploitation charges and that an absolute discharge should be given for the assault.

16The defence submits that a section 161 order is not available because sexual exploitation is not an offence that is provided for in the section. Counsel further objects to an order under subsection 161(1)(a) as being too restrictive and indicated that should an order be considered under subsections 161(1)(c) or 161(1)(d) that he would want to bring a constitutional challenge. The defence submits that the order under the Sex Offender Information Registration Act should be for twenty years.

17Defence counsel submits that a period or probation is not necessary but states that if probation is imposed that there should be no order restricting Mr. Beckers’ access to marihuana because he has a medical licence for its use.

Analysis

18The general principles of sentencing were summarized by Justice Trafford in R. v. Palantzas (2009), unreported:

Under s. 718 of the Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any such sanction must, looking at the case as a whole, be the result of a fair and balanced consideration of the need to:

• denounce the unlawful conduct;

• deter the offender, and others, from committing such an offence;

• separate the offender from society, where necessary;

• assist in the rehabilitation of the offender;

• provide reparation for harm done to "victims", or the community; and

• provide a sense of responsibility in the offender, while acknowledging the harm done to the "victims" and the community.

Section 718.1 of the Code requires the sentence to be proportionate to the offence and the degree of the offender's responsibility. An offender is not to be deprived of his liberty if less restrictive sanctions may be appropriate in the circumstances of the case. All available sanctions other than imprisonment that are reasonable in the circumstances must be considered for all offenders.

It is to be emphasized that these principles of sentencing do not include a principle of revenge. Offenders are not incarcerated for the purpose of establishing an equivalence between the loss of the victim, or victims, and the sanction imposed by the Court. Rather, the Court is required to recognize the inherent worth and dignity of the offender and, having balanced the principles provided by the Code, determine a fit sentence in the circumstances of the case. This is the Canadian tradition, a tradition that enjoys a long and respected history in Canada and other free and democratic societies like it throughout the world.

19I have reviewed the cases provided by the defence being: R. v. S.G.T., [2011] S.J. No. 14 (C.A.), R v. M.S., [2013] S.J. No. 185 (C.A.), R v. Bedard, 2001 CanLII 8536 (ON CA), [2001] O.J. No. 1894 (C.A.), R v. R.A.R., 2000 SCC 8, [2000] S.C.J. No 9, R v. R.N.S., 2000 SCC 7, [2000] S.C. J. No. 8 and R v. L.F.W., 2000 SCC 6, [2000] S.C.J. No.7. I accept the submission that those cases involve a range of sentences from eight to eighteen months.

20The cases relied upon by the Crown, being: R v. Manjra, 2009 ONCA 485, [2009] O.J. No. 2484 (C.A.), R. v. H.G., [2003] S.J. No. 589 (C.A.), R v. S.E.F. [1998] N.S.J. No 345 (C.A.) and R. v. W.S., [2005] O.J. No. 4860 (O.C.J.), involve a range of sentence from seventeen months to three and one half years.

21None of the cases provided by the defence or the Crown are directly analogous with the case at bar, as they involve different types of sexual activity and different types of relationships between the offenders and the complainants.

22I would not categorize the sexual activity of the offender in the case at bar as being on the most serious end of spectrum but it was clearly degrading to the complainant.

23Also it is important to note that this case, unlike many of the cases relied upon by the Crown, does not involve a family member committing some form of sexual abuse.

24There are mitigating factors present. First, is the fact Mr. Beckers has no criminal record. Second, is the fact the he appears to be actively involved in the community. Third, he had, until his health declined, a good work history.

25There are three aggravating factors as follows. First, Mr. Beckers abused a trust relationship. Second, the complainant was under the age of eighteen. Third, it is clear that he was grooming the complainant and that he engaged in an on-going effort to sexualize the complainant.

Disposition

26I conclude that a fit sentence in all of the circumstances is nine months’ incarceration on the count of sexual assault, nine months’ incarceration on the count of sexual exploitation and one month incarceration on the count of assault. These sentences shall be served concurrently.

27Sexual assault and sexual exploitation are primary designated offences and a DNA order is mandatory unless the offender has brought himself within the exception. Mr. Beckers did not do so and, accordingly, a DNA order will go.

28I order that Mr. Beckers have no contact with the complainant or the complainant’s parents or any member of their immediate family.

29With regard to availability of a section 161 order, Mr. Cawkell is correct that sexual exploitation is not an offence included in that section but he ignores the fact that sexual assault is included in the section.

30I reject the suggestion that a section 161(1)(a) order is overly restrictive on Mr. Beckers. This is a necessary order given that Mr. Beckers began his relationship with the complainant on the street and within minutes of meeting the complainant was offering to provide him with marihuana. An order will go pursuant to section 161(1)(a). An order will also go pursuant to section 161(1)(b). I note that defence counsel did not oppose the latter order if I found that section 161 was applicable. These orders shall be in place for ten years.

31It is unnecessary to make any further order under this section given that the accused did not use the Internet to lure the complainant. I also find that a non-communication order with persons under the age of sixteen is unnecessary given the probation conditions that I am ordering below.

32An order for compliance with the Sex Offender Information Registration Act for a period of life is available given that Mr. Beckers was convicted of two designated offences. Mr. Beckers has committed a very serious sexual offence and there is a strong public interest in the protection of society and the proper administration of justice in making this order. I do not conclude that the impact of the making of this order on the privacy and security interests of Mr. Beckers is grossly disproportionate to the public interest. A lifetime Order for compliance with the Sex Offender Information Registration Act will go.

33A section 110 weapons prohibition order for a period of ten years will also issue because violence was used in both the sexual assault and the assault and it is in the interests of the safety of the complainant that the order issue.

34I find that the accused will benefit from a period of probation following his incarceration. I am ordering probation for a period of three years with the following terms:

• Keep the peace and be of good behaviour.

• Report forthwith in person to the probation officer, and thereafter as directed.

• Reside at an address approved of by the probation officer, and advise the probation officer within 24 hours of any change of address.

• Attend and actively participate in any counselling as directed by the probation officer, including counselling for sexual offending, substance abuse, and anger management.

• Sign any releases necessary in order to allow the probation officer to ensure compliance with, and completion of, counselling.

• Have no contact or communication, directly or indirectly, with the complainant and his parents, or any member of their immediate family.

• Not attend within 500 metres of the residence, place of employment, or place of education of the complainant and his parents, or any member of their immediate family, or any other place that those individuals might reasonably be expected to be.

• Not be in the company of any person under the age of 16 years, unless directly supervised by that child’s parent, guardian, or another adult over the age of 25 years old who is approved of by the probation officer.

• Not possess, purchase or consume any non-medically prescribed drugs.

• Not possess, purchase, or consume marijuana, unless such possession, purchase, or consumption is done pursuant to a valid licence.

• Not possess any weapons as defined by the Criminal Code.