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Docket: |
X060961 |
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Registry: New Westminster |
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IN THE SUPREME COURT OF BRITISH COLUMBIA |
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Oral Reasons for Sentence
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HER MAJESTY THE QUEEN |
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AGAINST
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MICHAEL lynnwood angers |
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Counsel for the Crown: |
J.R. Hughes |
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Counsel for Defence: |
C.F.J. Beuhler |
[1] THE COURT: On the 13th of September 2002, the offender was convicted of sexually assaulting a ten-year-old female, contrary to s. 271(1) of the Criminal Code. The Crown has commenced dangerous offender proceedings pursuant to s. 752 of the Criminal Code. The defendant takes the position that the accused has not met the criteria of a serious personal injury offence under s. 752(a)(i) or (b) of the Criminal Code and is of the view that the appropriate disposition of this matter is a conditional sentence, followed by three years probation.
[2] The criminal history of the offender: The offender is 28 years of age. He was first convicted, on the 7th of October 1996, of the sexual assault of a 19 month old female infant. The offender admitted that he put his finger in the child's vagina approximately up to his first knuckle. He was inside her for five to ten seconds.
[3] The physical examination of the child by the paediatrician led to her conclusion that the examination showed a disruption to the hymen. The examination was abnormal. The findings would be consistent with acute sexual assault.
[4] At the same time, the offender was found guilty of sexual assault of a seven-year-old female. In a sworn statement he told the police he was rubbing her vagina and his finger went into her vagina. He received 18 months on each count served concurrently, plus two years probation.
[5] In May 1999 the offender pled guilty to breaching the terms and conditions of his probation by being in the company of five children under the age of 14. The offences occurred between May 1st, 1998 and October 31st, 1998. He was sentenced to time served, which was six months, and placed on probation for three years.
[6] On the 1st of October 2001 he is found guilty of breaching the terms of his probation order by being with a child under the age of 14. The offender was observed taking a child, who his girlfriend Lesley Rosman was babysitting, into a bathroom. He and the child were behind the closed door for approximately a half an hour. He was sentenced to ten months imprisonment, which was in addition to the four months he had served in pre-sentence custody. He was given a further three years probation.
[7] On the 12th of October 2001 the offender was convicted of sexually assaulting a 14-year-old girl by touching her breasts. He was sentenced to 12 months imprisonment, which was in addition to four months he had served in pre-sentence custody, plus three years probation.
[8] On the 7th of June 2002 the defendant was found guilty of possession of child pornography. He was found to have 13,000 images and some of the images were considered hard core child pornography. He was sentenced to 15 months, less ten months for the time served in pre-sentence custody, plus probation for two years.
[9] All the orders for probation included restrictions on being in the company of children under the age of 14, a requirement to take therapy or counselling for sexual offenders as directed by his probation officer, a requirement that he live in a residence approved by his probation officer. With the exception of the first offence, all offences have taken place where the offender was either on probation or on bail.
[10] Is the predicate offence a serious personal injury offence? The definition of "serious personal injury offence" is set out in s. 752 of the Criminal Code. "Serious personal injury offence" means:
(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving
(i) the use or attempted use of violence against another person; or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person,
and for which the offender may be sentenced to imprisonment for ten years or more, or
(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).
[11] Robert Colby was qualified as an expert witness in the area of assessment, treatment of child victims of sexual abuse. He outlined the multitude of injuries suffered by children who are victims of sexual assault by adults. I have also taken into account the evidence of the complainant in these proceedings, more particularly how she was digitally penetrated against her will. All the evidence leads me to conclude that the predicated offence is a serious personal injury offence under s. 252(a)(i) and s. 252(b) of the Criminal Code.
[12] Is the offender a dangerous offender as defined by s. 753(1)(a)(i) and s. 753(1)(b) of the Criminal Code? Section 753 provides:
(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous offender if it is satisfied
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,... or
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of an offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.
[13] The evidence of the offender at the hearing was that he accepted responsibility for his conduct, he understands what motivates his desires to re-offend and he is prepared to take treatment. He is presently taking Celexa or Paxil and that, according to him, cuts down the number of fantasies he has by about 80 percent. He also stated that he did not re-offend when pornography was available to him.
[14] Throughout the time that the defendant was on probation his response to supervision was extremely poor. He blames his numerous breaches of probation on his probation officer's strict interpretation of the probation orders. The offender had an approved residence but chose on many occasions to stay at other residences and attempted to get people to lie to cover up the fact that he was not conforming with his probation order. He blames his difficulties with attending programs for sexual offenders on a conflict of interest in respect of Dr. Lawson and on public transport with respect to failure to attend two appointments with another doctor.
[15] The offender has told Mrs. Rosman that he is always trying to find ways to outsmart the police. He feels that his breach of his probation and his other convictions were due in part to a witch huntand that the legal system is persecuting him. He has indicated to Ms. Rosman that he intends to sue the government and police for some $2 million.
[16] During the voir dire and in the trial proper, the defendant denied touching or behaving sexually towards the complainant. At this hearing, he took the stand and said that he lied at the trial because he wanted to raise a reasonable doubt. He said, and I quote:
Knowing that the Crown was looking to apply for a dangerous offender hearing if I was convicted, I felt I didn't have much choice but to attempt to beat the -- or attempt to try to use all my options available to attempt to get acquittal.
[17] The evidence of the complainant was that he not only rubbed her chest, but digitally penetrated her. The offender, however, was asked:
Q Aside from rubbing her clitoris, did you put your finger inside her vagina?
A I don't think so. And when she was on the stand when she described it she -- it didn't seem she was saying that I put my finger inside her.
[18] At first the offender said he did not touch the complainant's breast. Later he told the court more things had happened with the complainant than was brought out at trial. He said that he kissed the complainant on her mouth five, six or seven times.
[19] I am satisfied that the offender never kissed the complainant. The offender's statement, along with his refusal to accept the fact that he touched the complainant's breasts are examples of how the offender continues to rationalize the seriousness of his offences and how he fails to take full responsibility for what he has done.
[20] The offender has admitted not only lying to this court but to the police. Furthermore, I am satisfied that he has also lied many times to his probation officer. I did not believe the offender when he took the stand during the voir dire and in the trial. I did not believe the offender when he gave evidence at this hearing. I am satisfied that the offender would lie and deceive not only the court, but anyone else in authority.
[21] I am satisfied that the offender has told Dr. LaTorre what he thought was necessary to obtain a positive report. I am not satisfied that the offender has any sympathy or understanding for his victims or what motivates him to offend. I do not accept the fact that he is interested in treatment or that he will take medication on a voluntary basis.
[22] Psychological evidence: Dr. Eric Kuelker was appointed by this court pursuant to s. 752.1 of the Criminal Code to perform an assessment on the offender. Dr. Kuelker has a doctorate in clinical psychology and has clinical experience with the Forensic Psychiatric Institute, providing dangerous offender assessments.
[23] Dr. Ronald A. LaTorre has a doctorate in clinical psychology and experience as a consultant working with the Adult Forensic Psychiatric Service. Also, he has been a consultant with Corrections Services of Canada. Dr. LaTorre received his doctorate in 1977. Dr. Kuelker received his doctorate in 1996. Both individuals are eminently qualified to assess the offender for the purpose of these dangerous offender proceedings.
[24] According to both Dr. Kuelker and Dr. LaTorre, the offender is diagnosed as a paedophile, sexually attracted to females, non-exclusive type. Paedophilia is defined as a recurring intense sexual arousal fantasy, sexual urges or behaviours involving sexual activity with prepubescent child or children which has persisted for at least six months. The qualifier "sexually attracted to females" means that Mr. Angers is only attracted to females, not to males. The qualifier "non-exclusive type" means that Mr. Angers is attracted to adult females, not solely to children.
[25] Dr. LaTorre had the advantage of interviewing the offender. The offender declined to be interviewed by Dr. Kuelker. Dr. Kuelker had an interview with Lesley Rosman, former girlfriend of the offender. Dr. LaTorre, although he did not interview her, had the benefit of Dr. Kuelker's notes. Both individuals, I am satisfied, had the use of similar, if not identical information, all of which is detailed in their respective reports.
[26] Dr. Kuelker admitted that there were a number of errors in his report, including the fact that he thought the predicated offence included the conviction for possession of child pornography and that he did not state the reason the offender did not continue seeing Dr. Lawson. Dr. Kuelker admitted those and other errors, but was firm in his belief that those errors did not change his opinion.
[27] Dr. Kuelker placed a great deal of emphasis on the Static-99, which is a risk assessment instrument and the SVR-20, which is a guideline for assessing risk of sexual violence and is more of an aide memoire. He also used a psychopathic check list revised or PCL-R, along with his own clinical assessment. Dr. LaTorre relied on the PCL-R in his clinical assessment, finding very little value in the Static-99 or the SVR-20.
[28] The PCL-R is a widely recognized validated measure of future violence; however, the PCL-R does not specifically deal with sexual offences. Cut-off score of psychopathy is 30 out of 40. Dr. Kuelker scored the offender at 21; Dr. LaTorre, 15. Both admitted in cross-examination that those scores could be adjusted, Dr. Kuelker's downward somewhat, LaTorre's up perhaps by one. In any event, there's a margin of error of 3.25 in either direction of a true score; therefore, it would appear that 18 is a reasonable score on that particular test. A score of 18 would place the offender in the lower range to re-offend.
[29] PCL-R is a predictor of future violence, not a predictor of sexual recidivism. Therefore, it is Dr. Kuelker's view that Dr. LaTorre is basing his opinion on his clinical judgment. According to Dr. Kuelker, in a study on predicting accuracy of clinical risk assessments of sexual recidivism, Hanson and Bussiere concluded that clinical judgment is inferior to the use of research instruments.
[30] With respect to the Static-99, Dr. LaTorre states Static-99:
Has yet to receive any empirical support demonstrating that it can actually predict sexual recidivism, particularly with the degree of accuracy suggested by Dr. Kuelker, i.e., percentage X/Y years.
[31] Dr. LaTorre also says one of the authors of the Static-99 test, Hanson, 2000, has shown that some of the information he based the rating scale on is accurate only for untreated individuals. Treatment can change the predictive accuracy of the scales, items, and Mr. Angers has now completed a sexual offender treatment program at Ford Mountain Correctional Centre.
[32] The reference to Hanson 2000, however, according to Dr. Kuelker, refers to a videotape seminar and not a publication in a peer reviewed journal. Furthermore, Dr. Kuelker states that Dr. LaTorre's statement that treatment can change the predictive accuracy of the scale items is not substantiated by the scientific literature. Dr. Kuelker provided numerous studies to support the predictive ability of Static-99. This is contrary to Dr. LaTorre's statement that Static-99:
Has yet to receive any empirical support demonstrating that it can actually predict sexual recidivism...
[33] Dr. LaTorre criticized one report entitled "Evaluating the Predictive Accuracy of Sexual Assessment Instruments for Adult Sexual Offenders" by Barbaree, Seto, Langton and Peacock. He pointed out to part of a paragraph on page 515 that states:
One important caveat in the score of the Rassor is important to make. Assuming that one computerized database provided adequate proxies for the simple scored Rassor items who initially scored the rater by recording these database variables, using these data, we initially found that the Rassor, and indeed the Static-99 (which included the Rassor items), were not successful in predicting recidivism. Subsequently, when we calculated the reliability of our scoring, we detected important differences between the independent Rassor scoring the Rassor directly from the file and the recorded database variables.
[34] However, on cross-examination, the rest of the paragraph was put to Dr. LaTorre which states:
When Rassor scores were quoted directly from the files, we found the results reported here. When quoted directly from the files, the Rassor was successful in predicting recidivism in sexual offenders.
[35] This is one indication in my view that Dr. LaTorre did not take the necessary care in giving a full and accurate quote.
[36] Under the heading "Denial of Offence" Dr. LaTorre states:,
The file information noted, at times, that Mr. Angers denied his offences. This is contradictory information.
Again, those ignorant of the research literature tend to hold denial of sexual offending as a significant risk factor for sexual re-offending.
In fact, Hanson and Bussiere (1998) Meta-analysis found the denial of sexual offender status is unrelated to recidivism R = .02. Incidentally, their Meta-analysis was based on 61 different studies that reported on a total of 28,972 sexual offenders.
[37] However, in dealing with this specific area of denial of offence, Hanson and Bussiére based that part of their study on 762 sexual offenders and found that there was no correlation between denial of offence and significant risk in sexual re-offending. However, if the outliners are included, the sample increases to 5,143 and shows that there is a significant positive correlation between denial of offence and significant risk in sexual re-offending. Dr. LaTorre, in cross-examination, admitted he could have misled the reader of the report to indicate the analysis was 28,972 sexual offenders when we know that the finding that he was relying on was based on a sample of only 762.
[38] Under the heading "Treatment Motivation", Dr. LaTorre stated that researchers failed to show any significant difference in the sexual recidivism rate for those identified as having low treatment motivation versus those having high treatment motivation. He refers to Hanson and Bussiere's 1998 study. That study was based on 435 offenders; however, when you include the outliners, which happens to be a study with 4,860 offenders, there is a positive correlation between low motivation for treatment and recidivism.
[39] Outliners are findings that may somewhat diverge from a large pool of results and, according to Dr. Kuelker, it is important to report both results in a comprehensive picture of what, in fact, is occurring.
[40] Dr. LaTorre was critical of Dr. Kuelker's belief that possession of child pornography was a risk factor and stated that:
There has for years been evidence that, in countries where pornography is legal, sexually-related crimes are diminished. Bradford (2003), responding to a question regarding the link between pornography and sexual offences, noted that in the last 10 years there has been a significant increase in the exposure to pornography (via videotapes, Internet) in America and that, over that same period.the rape rates, for example, had declined in America.
Unless Dr. Kuelker has access to some research I am not aware of that demonstrates such a link, Mr. Angers' possession of pornography cannot be used to suggest a high risk of recidivism and, in fact, while it is illegal, the evidence might suggest it would reduce the risk of sexual recidivism.
[41] Dr. Kuelker is of the view that the critical factor was that Mr. Angers possessed child pornography as opposed to adult pornography. He contends that possession of child pornography would provide material for Mr. Angers' sexually deviant fantasies about children. He said that there is no evidence that possessing pornography inhibits sexual offending against children. Mr. Angers has a very large collection of child pornography and he went on to sexually assault children. He is of the view that possession of child pornography tends to fuel the offender's fantasies about children.
[42] Dr. LaTorre admitted that the research that he referred to was in respect to pornography in general and not child pornography. Furthermore, he admitted that child pornography very well could fuel the offender's fantasies about children, as referred to by Dr. Kuelker.
[43] In Regina v. Johnson (2001), 158 C.C.C. (3d) 155, B.C.C.A., Madam Justice Ryan laid out the proper approach to be followed with respect to the relationship between long-term offender and dangerous offender. At p. 86, I quote:
The last point in the overall analysis under the former provisions was whether the offender was likely to be cured within the length of a fixed sentence. I am of the view that to ensure compliance with the Charter, the last point in the analysis under the new provisions must be whether the offender is likely to be cured within the length of a determinate sentence, or whether the offender will eventually be controllable under a long-term offender sentence. If the sentencing judge concludes that it is a reasonable possibility that a cure or control would be effected within either of those time frames, it cannot be said that the offender's pattern of conduct is substantially or pathologically intractable. The sentencing judge should decline to make the dangerous offender designation and go on under s. 753(5) to sentence the offender to a fixed sentence, find the offender to be a long-term offender, or hold a hearing to determine whether the offender is a long-term offender.
[44] According to Dr. Colby, the nature of paedophilia makes it impossible for the offender to be cured of that affliction. All the experts' opinions were directed to the issue of whether the paedophilia could be controlled.
[45] Dr. LaTorre is of the view the offender is a relatively low risk for future violence, but that the offender's paedophilia would make him a risk of sexually offending against a child if he were allowed ready access to such a child. He is also of the view that effective treatment and relapse prevention techniques would decrease his risk of sexually re-offending. Dr. LaTorre also opined that without treatment, the offender probably possesses a risk greater to re-offend. He indicated that relapse prevention treatment for the offender must be open-ended and that supervision must be close, that is frequent and surprise home visits at least twice a month. Because a risk assessment has a shelf life, the offender would require follow-up assessment until such a time as he no longer poses a risk. Dr. LaTorre could not say when that might be.
[46] Dr. LaTorre is of the view that with proper treatment, Mr. Angers' risk of future violence would be significantly reduced. Dr. LaTorre acknowledges that Mr. Angers possesses some obstacles to treatment. Those obstacles are not insurmountable if he is in the care of a skilled therapist. The offender has completed a sexual offender program at Ford Mountain Correctional Centre; however, he has re-offended since completing that program.
[47] Dr. LaTorre, based on Bradford's 2003 report of outcome effectiveness, is of the view that Mr. Angers might best be treated in the community with open-ended relapse prevention and libido-depressing medications, such as selective serotonin reuptake inhibitors, SSRI. At present, Mr. Angers is taking a medication called Ceiexa which is an SSRI and he reports a significant reduction in deviant sexual fantasies. Dr. LaTorre is of the view that he could be managed effectively in the community, based on the assumption that he would receive (a) effective sexual offender treatment; (b) effective relapse prevention techniques; (c) adjunct treatment to address social skills, stress management and issues surrounding his own history of abuse; (d) psychiatric consultation intervention regarding pharmaceutical intervention to address deviant arousal or, if necessary, to more generally depress the libido; and (e) community supervision that is effective, close and supportive such as receiving unannounced home visits twice a month.
[48] Dr. Kuelker was of the view that the offender represents a high risk to manage in the community and overall, Mr. Angers presents a high risk to recidivate sexually. Dr. Kuelker is of the view that, and I quote:
Mr. Angers is likely to make no gains from sexual offender treatment if his stated denial continues. He may be willing to participate in treatment for his abusive childhood. Previously his plans were poorly formed, had a focus of retaliating against the criminal justice system that he believes has persecuted him.
[49] Dr. Kuelker was also of the view that the offender's risk of sexual recidivism will increase if he has any contact with potential victims, especially prepubescent girls.
[50] There are many other divergent views between Dr. Kuelker and Dr. LaTorre. I am satisfied that, although both these are eminently qualified individuals, Dr. Kuelker's opinion is to be preferred to that of Dr. LaTorre. I found Dr. Kuelker was an objective witness. He provided material that was current and that was mostly found in peer reviewed journals. He based his assessment not just on his clinical judgment, but also on numerous instruments that have, at least to some degree, been scientifically validated.
[51] I have taken into account that Dr. Kuelker has not interviewed the offender. I am satisfied, based on his evidence and all the other evidence presented, Mr. Angers has a high risk to re-offend sexually.
[52] In considering whether a determinate or indeterminate sentence is appropriate, I have taken into account the following facts: a) there is no cure for the offender's paedophilia; b) he is a high risk to re-offend sexually; c) Both experts are of the view that there is no way of being able to determine over what period of time the behaviour of the offender could be controlled; d) the offender has re-offended sexually when he has been on probation, and has been convicted of breaching the terms of his probation on six separate occasions. His probation officer was of the view that she has exhausted all the facilities that she has available in order to have the offender comply with the probation orders; e) the offender has not benefited from the sexual offender programs he has been involved in and has continued to offend; f) the offender has not accepted responsibilities for his conduct and continues to rationalize his involvement with the complainant; g) the offender has very little sympathy for his victims and very little insight into what motivates him to re-offend; h) both experts are of the view that he is a pathological liar; i) from the evidence of his probation officer and statements made by Lesley Rosman, the offender is manipulative and cunning; j) The offender sees nothing wrong with child pornography, which he describes as being artistic in nature; k) the offender is relatively young, 28 years of age, and does not abuse alcohol or drugs.
[53] After considering all the relevant evidence, I am satisfied that there is no reasonable possibility that the risk that the offender poses will be controlled with an order that he be designated a long-term offender. After considering and weighing all the evidence, I am satisfied beyond a reasonable doubt that the offender is a dangerous offender under s. 753(1)(a)(i) and 753(1)(b) of the Criminal Code. I declare that Mr. Angers is a dangerous offender and I impose a sentence of detention in a penitentiary for an indeterminate period. I appreciate that this is a harsh sentence for someone so young, but in my view, this is the only way to protect innocent children, and more particularly, prepubescent girls.
“F.W. Cole, J.”
The Honourable Mr. Justice F.W. Cole
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