Date: 19970414
Docket: CA022519
Registry: Vancouver


COURT OF APPEAL FOR BRITISH COLUMBIA



ORAL REASONS FOR JUDGMENT:


Before:

The Honourable Mr. Justice Lambert April 14, 1997
The Honourable Mr. Justice Hollinrake
The Honourable Mr. Justice Donald Vancouver, B.C.




BETWEEN:

R E G I N A 

RESPONDENT

AND:

WAYNE ROBERT ANDREWS 

APPELLANT



S.R. Buck appearing for the Appellant
S. Bell appearing for the (Crown) Respondent


[1] LAMBERT, J.A.: The applicant was charged with three
incidents of sexual assault with respect to the same young
woman. He pleaded guilty and was sentenced to 12 months
imprisonment coupled with two years probation on these terms:


1) report to a probation officer within twenty-four
hours of release and thereafter as directed by
that probation officer or whichever probation
officer takes over from him;

2) to attend for sex offender assessment and
treatment as directed by your probation officer
and complete any assignment required by the sex
offender programme counseller to whom he reports
to;

3) have no contact with children under the age of
seventeen unless supervised and approved by a
responsible adult;

4) not to coach or train personally or instruct
children under the age of seventeen; and 

5) you are to have no contact directly or
indirectly with the complainant or any member of
her family.

[2] The circumstances of the three incidents were described by
Crown Counsel in the sentencing proceedings and were not
objected to by defence counsel and so Crown Counsel's
description must be regarded as having formed the basis of the
sentencing. The heart of the three incidents was put by Crown
Counsel in this way:



(a) ...the accused, Mr. Andrews, and Nicola were
watching a movie sitting on the couch in his
basement suite. He lived in the basement suite
alone. She got up and said she was going to bed
now and he stood up, hugged her and kissed her
on the lips for, according to her Preliminary
Inquiry transcripts, about one to two seconds.


[3] The second incident was described in these terms:



(b) She began playing the pachinko machine and he
stood behind her and began rubbing her shoulders
and back, and then his bed is just a few feet
behind, he then pulled her down and she sits
between his legs. They are both sitting on the
bed and she's between his legs. He begins
rubbing her back and then he moved his hands
around the front and rubbed her breasts, on this
occasion over her shirt and bra with both hands. 
She said at the Preliminary Inquiry that that
continued for some ten seconds. 

[4] The third incident was described in this way:



(c) Nicola woke up the next morning to Mr. Andrews
grabbing her shoulders, saying "Wake up, Nick",
and then he sat down behind her, began rubbing
her back and then he slipped his hands this time
under her clothing, under her tee-shirt, she
wasn't wearing a bra, and rubbed her breasts
again for about ten seconds.

[5] It seems like within a day or two after the third
incidents the applicant came to a realization that he was
completely wrong in his behaviour and he decided to stop the
incidents with this young woman. The young woman at the time
of these incidents was 13 years old and he was 28 or 29 as I
understand it. So he did stop and as far as we know there were
no further incidents with this young woman and no other
incidents with any other young woman.

[6] In this particular case he was in a good relationship with
the family and a relationship which must be regarded as having
given rise to a position of trust on his part. That good
relationship arose through the fact that he was a gymnastics
coach and the mother of the young woman was an officer of the
gymnastics club and so he had come to know the young woman
through his coaching position as well and that position gave
rise to a trust relationship between this man and the young
woman who was in his care.

[7] Having regard to the ages of the parties and the
relationship of trust the offences must be regarded as serious
offences. We have had an opportunity to read the Victim Impact
Statements of the young woman and her mother which indicate the
seriousness of these offences and the effect that they have had
on this young woman and her family.

[8] The elements working in favour of the arguments put
forward on behalf of the applicant are that he came to a
realization himself that what he was doing was wrong and
stopped of his own volition and could be said to have gone into
the path of rehabilitation by his own actions. He pleaded
guilty which is consistent with that point of view though there
was some delay in the guilty plea. It is important also that
there were no other incidents brought to light. 

[9] Counsel for the Crown has indicated the importance of
general deterrence in cases of this kind and that is not to be
denied. 

[10] In the course of his reasons the sentencing judge said
this:


I am of the firm view that this accused requires a
constant, steady and regular course of treatment. 
The only treatment that I see that would be of
significance is at Stave Lake, and that treatment
programme hopefully will assist him to rehabilitate.

[11] In my opinion, the fact that the Stave Lake Programme is
one year does not justify independently a sentence of one year
for an offender of this type unless that is the appropriate
sentence in relation to balancing all of the principles of
sentencing including the necessity to achieve rehabilitation.
But rehabilitation, as I have said, was well started in this
case. In my opinion, imposing a 12 month sentence in order to
achieve all of the steps of the Stave Lake Programme would be
an error in principle. 

[12] In my opinion, particularly having regard to the fact that
he stopped of his own accord and through doing so showed
remorse and expressed remorse to the young woman through the
fact that he pleaded guilty, the sentence in this case was not
a fit one. I would grant the application for leave to appeal,
I would allow the appeal, and substitute a sentence of eight
months imprisonment for the sentence of 12 months imposed by
the sentencing judge. I would retain the two year probation
order on the same terms as were imposed by the sentencing
judge.

[13] HOLLINRAKE, J.A.: I agree.

[14] RYAN, J.A.: I agree.

[15] LAMBERT, J.A.: So ordered.




"The Honourable Mr. Justice Lambert"