Date: 19980116
Docket: X047638
Registry: New Westminster

IN THE SUPREME COURT OF BRITISH COLUMBIA

HER MAJESTY THE QUEEN

v.

ABRAHAM ALOLFO CABRERA


REASONS FOR SENTENCE

OF THE

HONOURABLE MR JUSTICE ROMILLY



Counsel for the Crown: K. Houghton and W. Stevens


Counsel for the Accused J. Richardson


Place and Date of Hearing: Vancouver, B.C.
January 14 & 15, 1998


[1] The accused pled guilty to the offence that:

He, on or about the 5th day of September, 1995, at or
near Port Coquitlam, Province of British Columbia,
being in a position of trust or authority towards
M.L., a young person, did for a sexual purpose, touch
directly the body of M.L., a young person, with a
part of his body, contrary to section 153 of the
Criminal Code of Canada and against the Peace of Our
Lady the Queen, Her Crown and Dignity.

Facts

[2] The facts in this matter are very simple. The 15 year old
complainant was employed by the accused on a part time basis.
The accused states that the complainant represented herself as
being 17 years old. At any rate, while being employed by the
accused as a telemarketer in his home business the accused
began to give her back rubs. The young complainant felt
uncomfortable about this activity but feared that she would
lose her job if she protested. On the day alleged in the
indictment, while the complainant was doing her duties, she
walked over to a small fridge to get some juice. Her employer,
the accused, without her consent, kneeled behind her and
started to rub her back. He then guided her to the floor and
eventually pulled down her tights to her knees, kissed her
buttocks and her thighs and performed oral sex on her. During
the incident neither the complainant nor the accused said
anything. The complainant did not consent nor did the accused
ask for her consent. Throughout the incident the complainant
"froze" and cried silently. The accused was of the view that
because the complainant did not cry out or resist that she was
consenting.

[3] After the oral sex, the complainant heard the accused undo
his zipper and pull his pants down. Upon hearing this, the
complainant got up, pulled her tights up and turned to see the
accused in his blue underwear, with his pants around his knees.
At that stage she began to yell at him, "I'm just a little
kid". The accused replied, "No, you're not. You're a woman".
The complainant said that she was only 15 years old. The
complainant left the accused's office and never returned to
work for the accused.

[4] The accused, who is 50 years old and was married with one
child at the time of the incident claims that he thought that
the complainant was 17 years old and that she was in love with
him. He also stated that a few days after the incident, the
complainant come to his office and demanded the sum of $300.00
which was much more than she was owed. The accused paid this
sum and considered it as some sort of "pay off".

Position of the accused

[5] The accused is a 50 year old businessman with no previous
criminal record. He expresses great remorse for the crime and
has pled guilty to the offence. He is the only bread winner in
the family and his incarceration would cause severe hardship to
his family. His counsel has filed many letters of support for
the accused.

[6] Counsel for the accused submits that, in the
circumstances, I should impose a conditional sentence on the
accused. These letters portray the accused as someone who is
very involved in his community and his church.

Position of the Crown

[7] The Crown takes the position that the accused was in a
position of trust when he committed this offence on this young
lady. She further submits that this offence has had a
devastating effect on the complainant. She submits that this
is not a case where a conditional sentence is appropriate and
that the accused should be incarcerated in a prison setting.
In support of her position, Crown counsel drew my attention to
R. v. D.L.M. (1995), 61 B.C.A.C. 307 (B.C.C.A.) where the
accused was sentenced to 15 months imprisonment on a charge of
sexual exploitation by a person in trust. Defence counsel
argues, however, that there were aggravating circumstances in
the D.L.M. case. He points out that in that case the court had
to deal with an accused who was involved with many acts of
sexual impropriety compared with the case at bar where there
was only one act of sexual impropriety.

[8] In support of his application for a conditional sentence,
counsel for the accused drew my attention to the following
cases: R. v. Smith (May 15, 1989) Vancouver CA010423
(B.C.C.A.); R. v. Miranda (April 7, 1988) (B.C.Co.Ct.); R. v.
Virtue (April 3, 1989) (B.C.Co.Ct.); R. v. R.G. (July 21, 1989)
Victoria V00997 (B.C.C.A.); R. v. Phillip R. et al (June 18,
1989) (B.C.Prov.Ct.); R. v. D.E.S.M. (1993), 80 C.C.C. (3d) 371
(B.C.C.A.); R. v. S.(D.); R. v. C.(M.W.) (1997), 117 C.C.C.
(3d) 289 (B.C.C.A.); R. v. Webb (January 14, 1994) (B.C.S.C.);
R. v. L.(G.) (November 4, 1988) Vancouver CA009371 (B.C.C.A.);
R. v. Smart (1992), 14 B.C.A.C. 73 (B.C.C.A.); R. v. E.C.S.
(May 23, 1997) (B.C.Prov.Ct.).

[9] Before deciding what sentence I should impose on the
accused, it may be helpful for me to first canvass the purposes
and principles of sentencing as enunciated by the Parliament of
Canada.

Purpose and Principles of Sentencing

718. The fundamental purpose of sentencing is to
contribute, along with crime prevention initiatives,
to respect for the law and the maintenance of a just,
peaceful and safe society by imposing just sanctions
that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from
committing offences;

(c) to separate offenders from society, where
necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims
or to the community; and

(f) to promote a sense or responsibility in
offenders, and acknowledgment of the harm done
to victims and to the community.

718.1 A sentence must be proportionate to the gravity
of the offence and the degree of responsibility of
the offender.

718.2 A court that imposes a sentence shall also take
into consideration the following principles:

(a) a sentence should be increased or reduced to
account for any relevant aggravating or
mitigating circumstances relating to the offence
or the offender, and, without limiting the
generality of the foregoing,

(i) evidence that the offence was motivated by
bias, prejudice or hate based on race,
national or ethnic origin, language,
colour, religion, sex, age, mental or
physical disability, sexual orientation, or
any other similar factor,

(ii) evidence that the offender, in committing
the offence, abused the offender's spouse
or child, or

(iii) evidence that the offender, in committing
the offence, abused a position of trust or
authority in relation to the victim shall
be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences
imposed on similar offenders for similar
offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the
combined sentence should not be unduly long or
harsh;

(d) an offender should not be deprived of liberty,
if less restrictive sanctions may be appropriate
in the circumstances; and

(e) all available sanctions other than imprisonment
that are reasonable in the circumstances should
be considered for all offenders, with particular
attention to the circumstances of aboriginal
offenders.

[10] These sections of the Criminal Code are merely a
codification of the common law. In order to see how these
sections of the Criminal Code have been interpreted, especially
with respect to the type of offence with which the accused is
charged, it would be necessary for me to canvass the
jurisprudence of some of the courts, especially the decisions
of our Court of Appeal.

The Law

[11] It is clear from the case law that an employer is in a
position of trust with respect to his employees. It is a well-
known principle of sentencing in sexual assault cases that
where the accused is in a position of trust with respect to the
victim, the fact that that trust was violated by the accused is
an aggravating factor. In R. v. Hardt, [1994] O.J. No. 582
(Ont.C.A.) the accused was convicted on three sexual assaults
against girls whom he had employed to work in his greenhouse
and landscaping business. The accused grabbed the breasts of
one of the victims and rubbed his erect penis against her
groin. He forced another victim to perform fellatio on him by
threatening her with the loss of her job. Noting that the
accused took advantage of his position of trust as the girls'
employer, Forestell J. sentenced the accused to 30 months in
prison for one charge, six months on a second charge and eight
months on a third charge. The latter two were to be served
concurrent with the first. While the Court of Appeal found
that the 30-month sentence on the first charge was excessive,
it went on to find that the other two sentences should be
served consecutively and not concurrently as ordered by the
trial judge. The Court therefore found the 30-month global
sentence ordered by the trial judge to be appropriate and the
accused's sentence appeal was dismissed.

[12] In R. v. Campbell [1995] B.C.J. NO. 1484 (C.A.) the
accused was convicted of sexual assault against an 11-year-old
boy. The boy was recruited by the accused to help out in a
bakery that the accused ran out of his home. The assaults
consisted of six acts of fellatio and one act of anal
intercourse performed by the accused on the victim. The trial
judge noted that as the boy's employer, the accused was in a
position of trust which position was exploited to the extreme
disadvantage of the victim. The trial judge sentenced the
accused to two years less a day plus two years probation. On
appeal, Mr. Justice Carrothers noted on behalf of the Court
that "the contrition and remorse and the rehabilitation and
non-recidivism of the offender ... outweigh any anguish and
torment of the disturbed victim...". The Court reduced the
sentence to six months plus two years probation.

[13] In R. v. Anthony, [1993] N.J. No. 362 (T.D.) the accused,
an owner of a convenience store, sexually assaulted a 29-year-
old employee. The complainant had worked in the store for
about two weeks when the 48-year-old accused approached her
from behind and put his hand inside of her clothing, under her
bra and fondled her breasts. He said to the complainant: "This
will happen every once in a while, if you don't mind". Easton
J. noted that the fact that the accused was the complainant's
employer was an aggravating factor and his actions forced the
complainant to cease her employment with the accused. While
being careful not to diminish the seriousness of the offence,
Easton J. noted that this conduct was at the lower end of the
scale of the "very wide range of human misbehavior" that
encompasses sexual assault. He also noted that the offence,
while unwanted and intrusive, was not perpetrated on a minor
but on an adult who could and did take immediate steps to
remove herself from the difficult situation. He ordered that
the accused pay a fine of $1,000 in lieu of a two-month prison
term and placed the accused on probation on terms requiring him
to perform 40 hours of community service.

[14] The fact that a sexual assault occurred in the context of
an employment relationship was also found to be an aggravating
factor by Richard J. of the Northwest Territories Supreme Court
in R. v. Nitsiza, [1989] N.W.T.R. 232. In that case the
accused sexually assaulted a 19-year-old live-in babysitter
that the accused and his common-law wife hired. The accused
forced himself on the victim and had non-consensual sexual
intercourse with her. In sentencing the accused to a term of
20 months in prison, Richard J. said:

One aggravating factor here is that Mr. Nitsiza was
the employer of his victim, and in a sense breached a
trust relationship between himself and the baby-
sitter. This young woman, having been asked to come
into the house and home of Mr. Nitsiza, who was known
to her, to baby-sit the child, was entitled to assume
that she was safe from sexual attack while in his
home, and had every reason to trust that this would
not happen.

[15] In R. v. Ahmed (1994), 42 B.C.A.C. 76, the Court of Appeal
upheld a sentence of 12 months for four incidents of sexual
assault that occurred while the offender and complainant were
at work. With time served before trial, the total sentence
could have been regarded as around 20 months. The accused was
not the complainant's employer but there was a significant age
difference between the two. The accused was thirty-one at the
time of the offences and the complainant was 16. The accused
was employed as a cook at a pizza outlet and the complainant
worked there part-time while attending high school. On the
first occasion the accused hugged the complainant and touched
her breasts. On the second and third incidents the accused
placed the complainant's hand on his exposed penis and, on the
third incident, ejaculated. On the fourth occasion he followed
her into the bathroom and rubbed himself against her and
ejaculated. The Court of Appeal did not find the sentence to
be inappropriate largely because the accused had shown no
remorse and had refused to partake in any rehabilitative
courses.

[16] Defence counsel submits that I should consider the accused
guilty plea as a major mitigating factor.

Plea of Guilty as a Mitigating Factor

[17] A guilty plea may be taken into account by the court in
mitigation of sentence: R. v. DeHaan (1967), 3 All E.R. 618
(C.A.); R. v. Saulnier (1987), 21 B.C.L.R. (2d) 232 (B.C.C.A.);
R. v. Sandercock (1985), 22 C.C.C. (3d) 79 at p. 86 (Alta.
C.A.) ; R. v. T.(R.) (1993), 17 C.R. (4th) 247 (Ont. C.A.);
MacMillan Bloedel Ltd. v. Simpson (1994), 88 C.C.C. (3d) 148
(B.C.C.A.). The sentencing Judge must give weight to the fact
that the accused pled guilty and as a result saved the
community a great deal of expense: R. v. Johnston and Tremayne
(1970), 4 C.C.C. 64 (Ont. C.A.).

[18] An early guilty plea does not merit such weight where the
accused knows he is inescapably caught: R. v. Spiller, [1969] 4
C.C.C. 211 (B.C.C.A.); R. v. Bruce (1982), 28 C.R. (3d) 247
(P.E.I.S.C.). In R. v. Santos (1993), 67 O.A.C. 270 (Ont.
C.A.), however, this principle was rejected.

[19] In R. v. Sandercock (1985), 22 C.C.C. (3d) 79 (Alta.
C.A.), Kearns J.A. stated at p. 86:
In recent years, great emphasis has been put on a
prompt guilty plea as a special and major mitigating
factor. It used to be said that this was relevant
only to show remorse. Aside entirely from any
remorse, however, an accused should receive
substantial recognition either for sparing the victim
the need to testify or to wait to testify, or for
waiving some of his constitutional rights in
deference to expeditious justice.

[20] In R. v. Getty (1990), 104 A.R. 180 (C.A.) (Alta. C.A.),
however, it was held that the accused's guilty plea entered
after the preliminary hearing was tardy and showed at best
belated remorse.

[21] In keeping with the above jurisprudence, I am treating the
accused's guilty plea as a mitigating factor but, because it
was made at this late stage, I am not giving it a great deal of
weight.

Prevalence of Sexual Assaults on Women

[22] In R. v. S.F. [1997] O.J. No. 4116 (Ont.Ct.Gen.Div.) Hill
J. quoted the statistics for assaults on women at paras. 59-60
of the judgement:

Crime control is a matter of pressing and substantial
importance to Canadian society. Although the past
few years have shown some decline in violent crime,
there were nevertheless 294,764 incidents of violent
crime reported in 1995 including homicide, attempted
murder, robbery, abduction, sexual assaults and
assault (Statistics Canada - Juristats: Canadian
Crime Statistics, 1995). In 1995, there were 995
violent crimes reported per 100,000 of population.
Despite recent declines, the violent crime rate,
excluding assaults, was 15.1% higher in 1995 than in
1985.

One out of every ten violent crimes in Canada in 1995
was a sexual assault. 85% of sexual assault victims
were female and, with 28,216 sexual assaults reported
in 1995, there was an average of over three (3) such
assaults for every hour of every day of the year.

[23] With these type of statistics, one could understand why it
is important that a deterrent sentence be imposed for this type
of offence. The only issue left for me to determine before I
impose the sentence on the accused is whether I should impose a
conditional sentence as suggested by counsel for the accused.

Is the Imposition of a Conditional Sentence Appropriate in the
Circumstances?

[24] In R. v. L.(C.) (January 14, 1998) New Westminster
No.X047682 (B.C.S.C.) I gave reasons why I did not believe that
a conditional sentence was appropriate in that case. Although
that case dealt with the sexual assault of young children and
this case deals with the sexual touching of a young person, I
adopt those same reasons for not granting a conditional
sentence in the case at bar. In my view the facts in the case
at bar cry out for a period of incarceration in a prison
setting as opposed to a conditional sentence. In this regard I
note the words of Toy J.A. in R. v. Smart, supra, where he
said:

Section 153 as drawn envisages all combinations of
accused and young persons and a sentencing judge's
message must go out to both sexes that, in the
absence of exceptional circumstances, penal
consequences will be the order of the day regardless
of the accused's sexual preference. Young people of
either sex must not be touched for a sexual purpose
by those in a position of authority or trust.

Conclusion

[25] In the case at bar, after considering the facts, the law,
the aggravating and mitigating factors, the submissions of
counsel for the Crown and the defence, the provisions of
s.742.1 and s.718 of the Criminal Code, the law enunciated
above, and the impact statement of the complainant, I sentence
the accused to a period of six months at the Fraser Regional
Correctional Institute.


"S.R. Romilly, J."
___________________
Mr. Justice Romilly