2013 BCCA 50

In 2013 BCCA 50, Mr. W, a 27-year-old man, was found guilty of sexual assault causing bodily harm, uttering threats, possessing child pornography, and breaching his bail terms.

Mr. W was in a relationship with Ms. N, a 21-year-old woman. Ms. N tried to end the relation-ship but Mr. W refused to give Ms. N his copy of her key to her apartment. Mr. W convinced her to come back to his home. Ms. N had hoped that his father would be home and would help her get her key back.

When they entered Mr. W’s home, he became violent and forced Ms. N to take her clothes off. He then threatened to kill her if he found out that she had cheated on him. Mr. W made Ms. N have anal sex with him and threatened to rape her without a condom if she refused. He forced her to give him oral sex and forced her to watch child pornography while she was doing it. During the abuse, he used her necklace and hair to force her into various positions. He also bit her several times.

After the assault Mr. W apologized and wrote her a note that admitted his substance use had impacted his actions and that he had raped her and forced her to watch child pornography. Ms. N reported the assault to the police and had a nurse examine her. The nurse found multiple swollen areas, abrasions, and bite marks.

When Mr. W was arrested, the police searched and seized his computer. The found over 200 child pornography videos of infants and young teens, including videos where adults were committing violent or sexual assaults on children and one video involving bestiality.

He was found guilty and sentenced to six years and seven months in jail. Additional orders included a 10-year firearm prohibition, a DNA sample, 20-year registration as a sex offender, forfeiture of some items used in the offence, and a 10-year limitation on being near children, including using the internet.

He appealed his sentence on the sexual assault and child pornography convictions, arguing that the judge failed to take into account the appellant’s personal circumstances and Aboriginal background in sentencing; that the possession of child pornography was wrongly considered an aggravating circumstance; and that the length of sentence was excessive.

The appeal court found that the trial judge had taken Mr. W’s personal circumstances and Aboriginal history into account in sentencing, including his Gladue report and the lack of alternative sentencing programs in Mr. W’s Nation. He was assessed as having a high risk for reoffending, including with children and for violent sexual activity. Further, the type of child pornography was aggravating and the overall sentence was on the high end of the range of available sen-tencing, but was not considered excessive.

The appeal was dismissed.

Also see: 2011 BCSC 1363 (Sentence).

Criminal Offence(s): Sexual Assault, Child Pornography Offences