R.S. Smith THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 10 Date: 2013-02-01 Between: Docket: 1876-CR Orlando Jose Gonzales and Her Majesty the Queen Respondent Restriction on Publication: An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Coram: Jackson, Ottenbreit and Herauf JJ.A. Counsel: Peter A. Abrametz for the appellant W. Dean Sinclair for the respondent Appeal: From: 2010 SKQB 283 (CanLII) Heard: October 24, 2012 Disposition: Appeal dismissed Written Reasons: February 1, 2013 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Ottenbreit Herauf J.A. I. Introduction [1] After Orlando Jose Gonzales (“Mr. Gonzales”) pled guilty to two counts of sexual assault, Currie J. declared him to be a dangerous offender and sentenced him to an indeterminate sentence. Mr. Gonzales appeals from this sentence. [2] Mr. Gonzales contends that during the dangerous offender hearing Currie J. failed to give adequate consideration to the assessment of the two expert witnesses who both recommended that he be declared a long-term offender instead of a dangerous offender. [3] For the reasons that follow, I dismiss the appeal. Currie J. was not bound to accept the assessment of the experts. He gave more than adequate reasons for questioning the foundation the assessments were based upon. This finding, combined with his review of all of the evidence, is more than sufficient to support his conclusion that there was no “reasonable possibility of eventual control of risk in the community”. II. Background Facts [4] The predicate offences that led to Mr. Gonzales being classified dangerous offender were two sexual assaults. Mr. Gonzales pled guilty to both counts of sexual assault. Both offences occurred on May 28, 2005. The first offence in time involved Ms. P. One night while Mr. Gonzales was driving his van in Saskatoon, he pulled up to Ms. P., prostitute, with the intent to engage her sexual services. Ms. P. got into his van and the two agreed to exchange sexual services for money. Mr. Gonzales then drove into back alley, parked, and they both proceeded to get into the back of the van. Mr. Gonzales then punched Ms. P. twice in the face, pushed her face into the floor of the van and then forced her to perform oral sex on him. Mr. Gonzales then punched her three more times in the face. At this point, Ms. P.’s nose began to bleed. Mr. Gonzales then raped Ms. P. vaginally, and then once again punched her in the face. Mr. Gonzales then raped Ms. P. anally. Mr. Gonzales then clothed himself and began driving himself and Ms. P. around Saskatoon, pointing out random houses and vehicles which he claimed to own. At some point throughout these events, he came across her treaty card and confiscated it. Mr. Gonzales then threatened Ms. P. by telling her not to run because he would be able to find her due to the fact that he had her treaty card. Eventually Ms. P. was able to escape. [5] Later on that same night Mr. Gonzales committed another sexual assault, this time against Ms. B., also prostitute. Mr. Gonzales, while driving his van, pulled up to Ms. B. The two agreed to exchange her sexual services for money. Ms. B. got into Mr. Gonzales’ van and he parked the van in back alley. Ms. B. began to feel uneasy, so she asked Mr. Gonzales to pay her up front. Mr. Gonzales was enraged by this and began choking Ms. B. to point where she almost lost consciousness and her nose began to bleed. Mr. Gonzales then demanded that Ms. B. perform oral sex on him. At this point, third party interrupted and Ms. B. was able to escape. [6] Mr. Gonzales was arrested on June 17, 2005 in connection with these two sexual assaults. He has been in custody since that time. III. Criminal History [7] Mr. Gonzales previously pled guilty to two sexual assaults which occurred in 2002. These sexual assaults bear striking similarity to the predicate offences. [8] The facts relating to these assaults are described by Currie J. in his judgment at paras. and as follows: On the evening of July 27, 2002, Mr. Gonzales engaged B.H. in conversation. After some time, Ms. H. agreed to Mr. Gonzales’ suggestion of walk by the river. Once they reached the river Mr. Gonzales tripped Ms. H., choked her, slapped her, kicked her, called her bitch and slut, and raped her vaginally. He then agreed to her request that she could get dressed. While she was doing so he kicked her in the face. Later that night, by then the early morning of July 28, 2002, Mr. Gonzales engaged K.M. in conversation and they agreed to an exchange of sexual services for money. They entered an alley. Once there, he dragged her by the throat. She punched him, and he then punched her in the face, following which he raped her vaginally while holding her by the throat. [9] Mr. Gonzales was arrested and charged on July 28, 2002. DNA evidence linked him to the crimes. He remained in custody until he pled guilty and was sentenced in December of 2003. He was sentenced to time served on one of the offences and on the other to term of imprisonment of two years less day. He was released from prison on April 2, 2005. He was out of prison for less than two months when the predicate offences were committed on May 28, 2005. [10] In addition to the four offences of sexual assault, Mr. Gonzales has been convicted of 36 other offences between 1990 to 2005. For the most part, the offences related to the theft or possession of stolen vehicles. IV. Opinion Evidence [11] Dr. Mansfield Mela, psychiatrist, was appointed by the court to provide an assessment. Dr. William Arnold, psychologist, provided an assessment on behalf of Mr. Gonzales. 1. The Assessment of Dr. Mela [12] Dr. Mela spoke to Mr. Gonzales in July and August of 2007 and again in July of 2008. The 12 month period between interviews was occasioned because Mr. Gonzales vacillated between cooperating with the assessment and maintaining that he was coerced into pleading guilty. Mr. Gonzales advised Dr. Mela initially that on the day the offences were committed he consumed large amount of alcohol and had no memory of anything that happened after he started to drink. Mr. Gonzales blamed his violent behaviour on alcohol. Mr. Gonzales’ contention that alcohol was the cause of his violent behaviour may explain why he refused permission to conduct phallometric testing to determine if he was aroused by inflicting violence. [13] Dr. Mela assessed Mr. Gonzales’ risk to reoffend sexually as moderate to high with treatment and as extremely high without treatment. Dr. Mela acknowledged that Mr. Gonzales had significant number of psychopathic traits, including the fact that he was pathological liar. [14] With respect to managing Mr. Gonzales’ risk in the community, Dr. Mela proffered that if Mr. Gonzales successfully completed high intensity sexual offender treatment program and if he participated in “continuous unquestionable and bona fide alcohol and drug treatment program”, his risk might be manageable under “protracted supervision” regime. Dr. Mela did not offer an opinion as to the length of time these programs and supervision would take. [15] Dr. Mela knew that Mr. Gonzales had given widely inconsistent accounts about his personal and criminal history. As result, Dr. Mela was suspicious about whether Mr. Gonzales was exaggerating his personal circumstances in order to gain sympathy. [16] Dr. Mela was unequivocal that if Mr. Gonzales is lying about the offences and continues to do so he will not benefit from sexual offender treatment. As well, if Mr. Gonzales continues to vacillate between accepting and denying responsibility for the offences he will not benefit from treatment. Dr. Mela confirmed that federal offenders cannot be forced to take treatment and that offenders who deny guilt are not even eligible for treatment. [17] Dr. Mela testified that he was hopeful for Mr. Gonzales’ prognosis for two reasons. The first being that he had been told Mr. Gonzales was behaving well in prison and he assumed this to be true. The second being that Mr. Gonzales said he was motivated to work on his substance abuse and sexual offending issues and Dr. Mela assumed that Mr. Gonzales was genuine about this. [18] As noted, Dr. Mela’s overall assessment was that there was “possibility of adequate management of Mr. Gonzales’ risk in the community” and thus Dr. Mela recommended Mr. Gonzales be designated long-term offender. 2. The Assessment of Dr. Arnold [19] Dr. Arnold generally agreed with Dr. Mela’s conclusion relating to Mr. Gonzales’ risk and treatment prospects. He was supportive of long-term offender designation for Mr. Gonzales. He also cited Mr. Gonzales’ good behaviour in prison and his motivation to change as basis for his assessment. He proffered that Mr. Gonzales might become “clinically manageable with lengthy supervision”. He testified that Mr. Gonzales would have to complete intense and long-term sexual offender treatment, long-term substance abuse treatment, therapy for personal trauma, psychiatric care for mood and medication monitoring and educational upgrading before his risk would become “clinically manageable”. [20] Dr. Arnold was also unequivocal that the sexual offender program cannot succeed unless Mr. Gonzales understands and accepts that he has committed sexual offences. Dr. Arnold was willing to trust that Mr. Gonzales was ready to accept responsibility. [21] Dr. Arnold testified that Mr. Gonzales’ treatment needs are extensive and that he may have to repeat the sexual offender program several times. Dr. Arnold estimated that would take four to five years of sexual offender and substance abuse treatment before Mr. Gonzales could be released into the community. [22] Like Dr. Mela, Dr. Arnold’s prognosis was based upon two assumptions. The first being that he assumed that the reports of Mr. Gonzales’ good behaviour on remand were true and second, he assumed that Mr. Gonzales was genuine when he stated he wanted to change. V. Additional Evidence at the Dangerous Offender Hearing [23] Mr. Gonzales has been incarcerated since June 17, 2005. The trial judge heard extensive evidence from correctional centre staff. While Mr. Gonzales displayed good behaviour for short periods of time, for the most part the evidence from correctional staff points to violent, aggressive and irrational behaviour. [24] Mr. Gonzales often defied the rules of the correctional centre. He was apt to use his girlfriend in an on-going effort to smuggle drugs into the correctional centre. If he was caught or prevented from doing so he was prone to violent outbursts. He threatened staff and manufactured and possessed homemade weapons on many occasions. He also wilfully damaged property on many occasions. For example, when his girlfriend was denied visiting privileges he reacted by destroying microwave, television set, coffee maker and several telephones. [25] Another example of particular bad behaviour involves Mr. Gonzales’ attempt to smuggle drugs into the correctional centre when his girlfriend was temporarily suspended from visiting him. Mr. Gonzales arranged for his lawyer at that time to bring his baby to the correctional centre for visit. The lawyer picked up the baby from Mr. Gonzales’ girlfriend and brought the baby to the correctional centre. The lawyer did not realize that drugs had been hidden in the baby’s effects. After the visit, when Mr. Gonzales was searched and drugs were located, he falsely accused his lawyer of being part of the plot. [26] There are countless other examples of Mr. Gonzales’ disruptive and violent behaviour while incarcerated. One of the most telling examples relates to an occurrence during the dangerous offender hearing. Four days after Dr. Mela testified that Mr. Gonzales was well-behaved in the correctional centre and seemed sincere in his commitment to stop using drugs, Mr. Gonzales attempted to retrieve hidden package of drugs that had been left for him in the public washroom in the courthouse where the hearing was taking place. VI. The Trial judge’s Decision [27] Mr. Gonzales did not testify at the hearing. He conceded that the dangerous offender criteria in s. 753(1)( b) of the Criminal Code were proven. He also conceded that the only issue at stake was whether the trial judge was satisfied there was reasonable possibility of eventual control of risk in the community and thus be designated long-term offender. [28] Mr. Gonzales argued that the court should not designate him dangerous offender because he never had the chance to participate in sexual offender treatment programming. The trial judge noted that the experts were agreed Mr. Gonzales needed treatment before he could safely be released in the community. The trial judge rejected the argument that Mr. Gonzales never had chance to participate in treatment. When Mr. Gonzales was previously incarcerated he did not participate in programing to deal with his sexual conduct because he refused to discuss the sexual assaults in any meaningful way. When he did discuss the offences, he claimed that he did not commit them, or if he did so, it was under the heavy influence of drugs and alcohol and he had no memory of the offences. Treatment would not work with such an attitude. Treatment would also not work because Mr. Gonzales was untruthful regarding his conduct. [29] Furthermore, in the five years he was in custody he consistently engaged in disruptive and rule-breaking behaviour. He continued to have problems with violence and anger. The deciding factor in determining that Mr. Gonzales could not be controlled in the community was, according to the trial judge, the fact that in 2005 Mr. Gonzales committed two sexual assaults within two months of being released from prison where he was serving a sentence for two prior sexual assaults. [30] The Supreme Court of Canada in R. v. Currie, 1997 CanLII 347 (SCC), [1997] S.C.R. 260, set out the standard of appellate review as reasonableness in offender appeals of this nature. Accordingly, some measure of deference on appeal should be shown toward the trial judge’s assessment of credibility and findings of fact. See also R. v. Badger, 2012 SKCA 119 (CanLII) at para. 52 and R. v. Natomagan, 2012 SKCA 46 (CanLII), [2012] W.W.R. 444 at paras. 47-48. [31] The trial judge instructed himself properly on the law and noted the appropriate authorities in order to decide the contested issue, namely the third point in s. 753.1(1) of the Criminal Code: whether “there is reasonable possibility of eventual control of the risk in the community”. [32] The trial judge acknowledged that the protection of the public was the primary purpose to consider since the experts identified that there was substantial risk that Mr. Gonzales will sexually reoffend if left untreated. [33] Finally, the trial judge also acknowledged that the finding that particular individual is dangerous offender should only be made if an indeterminate sentence is the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level. See: R. v. Johnson, 2003 SCC 46 (CanLII), [2003] S.C.R. 357 at para. 44; R. v. Lemaigre, 2004 SKCA 125 (CanLII), [2005] W.W.R. 52 at para. 11; R. v. Badger, supra, at paras. [34] With this background in mind it is appropriate to examine the main ground of appeal: that the trial judge failed to give adequate consideration to the opinions of the experts. [35] trial judge is not bound to accept the opinions of an expert. This Court in R. v. Badger, supra¸ at para. 94 As matter of principle, the judge was not bound to have accepted the assessment. He was obliged to judicially consider and weigh it, having proper regard for its foundation, for the evidence bearing upon the subject, and for the underlay of general principle at work here. But he was not obliged to act on the assessment, or any portion of it. Rather, he was free, on proper consideration of it, to accept or reject it, in whole or in part, for it was he who had ultimately to decide if, having regard for all of the evidence touching upon the subject, there existed “reasonable possibility of eventual control of the risk in the community” through the imposition of long-term sentence as contemplated by s. 753.1(1)(c): R. v. Brass, 2011 SKCA 125 (CanLII), 375 Sask. R. 280. [36] In addition to the reports and testimony of Dr. Mela and Dr. Arnold, the trial judge considered written reports from the Saskatoon Correctional Centre, including evidence of staff relating to the behaviour of Mr. Gonzales and to the treatment and programming available. The trial judge also considered statements from the witnesses relating to the sexual assaults and the evidence of Mr. Gonzales’ sister as to their family history. [37] The opinions of the experts were premised upon two assumptions. The first being that Mr. Gonzales was well-behaved in the remand unit. The second was that Mr. Gonzales was genuine in his commitment to stop abusing drugs and to honestly participate in sexual offender treatment. The experts appeared to have accepted Mr. Gonzales’ assurances at face value even though they both identified Mr. Gonzales as pathological liar. As the evidence previously set out clearly shows, both of these assumptions that form the basis for the experts’ opinions were proved false by Mr. Gonzales’ behaviour. [38] The belief that Mr. Gonzales was well-behaved, compliant prisoner while on remand was contradicted by the evidence. Indeed, as noted, Dr. Mela’s evidence that Mr. Gonzales was well-behaved and genuine in his assertion that he was adamant about stopping his drug abuse was contradicted by his blatant attempt to have drugs smuggled in the courthouse bathroom four days after Dr. Mela testified. There are other examples previously listed that dispel the assumption that Mr. Gonzales was good prisoner while on remand. [39] The trial judge was correct to be concerned that Mr. Gonzales continued to have problems with “violence, anger, manipulation and intoxicants within the Correctional Centre, which is more controlled environment than is the general community” (see para. 33 of the trial judgment). [40] What is even more surprising is that both experts trusted that Mr. Gonzales was genuine in his commitment to take programs to address his risk, i.e. sexual offender, anger, drug and alcohol abuse, etc. Both experts accepted Mr. Gonzales’ word that he was willing to take responsibility and commence appropriate programming. Since the experts had identified Mr. Gonzales as pathological liar this trust appears to have been misplaced. The evidence established that Mr. Gonzales vacillated between three positions involving the sexual offence charges. At para. 26 of the trial judgment these three positions are succinctly set out as follows: 26 Over the past few years, Mr. Gonzales has provided variety of responses when asked about his commission of the sexual assaults. At different times and to different people, including Ms. Landru, his probation officer Mr. Turta, Dr. Mela and Dr. Arnold: (a) Mr. Gonzales has provided, for each offence, contradictory detailed descriptions of the circumstances of the offences, aimed at explaining away the offences, so that with these detailed descriptions Mr. Gonzales has sought to establish that in fact he did not commit the offences; (b) Mr. Gonzales has accepted that he committed the offences, but has claimed that he did so under such heavy influence of drugs and alcohol that he has no recollection of any detail of the offences; and (c) Mr. Gonzales has denied committing the offences at all. [41] Both experts acknowledged that the first step to successful treatment is the acceptance of responsibility for the offences. Both experts were doubtful that treatment could be effective if Mr. Gonzales refused to discuss the offences or claims to have had no memory of the offences due to alcohol or drug use. Both experts acknowledged that Mr. Gonzales would not be eligible for programing if he denied committing the offences. [42] The trial judge, after consideration of all of the evidence, did not share the experts’ underlying assumptions that Mr. Gonzales is willing to take treatment, especially as it relates to reducing his high risk to reoffend sexually. The evidence certainly supported this conclusion. With respect to the offences that occurred in 2002, Mr. Gonzales refused to talk about the offences which made him ineligible for entry into high intensity sexual offender programs even though he told the sentencing judge at that time that he was willing to take the treatment. At the time of the dangerous offender hearing Mr. Gonzales still had not taken the high intensity sexual offender program. [43] The trial judge’s view that Mr. Gonzales was not willing to take treatment because he refused to accept responsibility for the sexual assaults was prophetic. On August 19, 2010, Mr. Gonzales filed a notice of appeal with this Court stating that “I am doing a life sentence for two sexual assaults I did not commit”. He followed this up with a letter dated August 28, 2010 to this Court where he said that he did not sexually assault anyone and was falsely accused by the victims who were forced to lie by the police. [44] The fresh evidence, which was filed by consent of the parties in this Court, included correctional plan that was written in January 2012. The document reveals that Mr. Gonzales refused to transfer to another institution in order to participate in the high intensity sexual offender treatment program. Mr. Gonzales wanted to be sent to the Regional Psychiatric Centre in Saskatoon instead. Once again, this clearly speaks to the unwillingness of Mr. Gonzales to work on his own rehabilitation. [45] It is incredible that, but for the period from April 2, 2005 to June 17, 2005, Mr. Gonzales has been in custody since July 28, 2002 for four degrading sexual assaults upon vulnerable women and has yet to take the high intensity sexual offender treatment program which the experts acknowledge is pre-requisite for rehabilitation. In fact, Dr. Arnold suggested that Mr. Gonzales may have to take the program more than once. Without this program everyone accepts that Mr. Gonzales’ risk for sexual reoffending is substantial. [46] One final point mentioned in the factum of Mr. Gonzales but not pressed on appeal relates to the criticism that the trial judge overemphasized specific deterrence and denunciation and overlooked rehabilitation. These objectives were not mentioned by the trial judge. The indefinite sentence was imposed not to denounce Mr. Gonzales’ crimes or to deter him from committing others. The law required the trial judge to place primary emphasis on public protection and that is what he did. [47] For all these reasons the appeal is dismissed. DATED at the City of Regina, in the Province of Saskatchewan, this 1st day of February, 2013. “Herauf J.A.” Herauf J.A. concur “Jackson J.A.” Jackson J.A. concur “Herauf J.A.” Ottenbreit J.A. (as per authorization)
The appellant plead guilty to two counts of sexual assault, was declared a dangerous offender and sentenced to an indeterminate sentence. The appellant appealed the sentence arguing that the sentencing judge failed to give adequate consideration to the assessment of two expert witnesses who testified that they thought the appellant should be found a long-term offender. HELD: The appeal was dismissed. The sentencing judge was not bound to accept the assessment of the experts. Both experts testified that the appellant's risk to reoffend sexually was moderate to high and was extremely high if he did not receive treatment. Both experts based their opinions, in part, on the idea that the appellant had been a model inmate. Both experts believed the appellant's self report about his behaviour in custody, despite having reached the conclusion that he was a pathological liar. Both experts appeared to take the accused at face value when he said he was motivated to change. In fact, the evidence from correctional officials suggested that the appellant was prone to violent, aggressive and irrational behaviour in custody. He had shown on numerous occasions that he would not follow the rules in the institution and had been involved in several attempts to smuggle drugs into the jail, including picking up a package in the washroom of the court house during his dangerous offender hearing and convincing his lawyer to bring his baby into the jail with drugs in his diaper. The accused had committed two sexual assaults within months of being released from a previous sexual assault sentence. The trial judge was correct to emphasize protection of the public and was entitled to discount the opinion of the experts because it was based on incorrect assumptions. In supporting the sentencing judge's opinion that the accused would not take treatment because he refused to accept responsibility for his offences, the Court of Appeal noted that the accused had stated in his Notice of Appeal that he was serving a life sentence for two sexual assaults that he did not commit and the fact that he sent a letter to the Court saying that he had been falsely accused and did not sexually assault anyone. In addition, the Court considered fresh evidence that the appellant had refused to transfer to another institution in order to participate in high-intensity sex offender treatment pending his appeal.