R. v. Hand Date:, 2003 BCPC 131

Citation: R. v. Hand Date: 20030326 2003 BCPC 0131 File No: 130263-1-D Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Division) REGINA v. JESSE LEE HAND ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P.L. MAUGHAN Counsel for Crown: S. Smith Counsel for Defence: P.M. Bolton, Q.C. Place of Hearing: Vancouver, B.C. Date of Hearing: March 26, 2003 Date of Sentence: March 26, 2003 [ 1 ] THE COURT: Before the court is Jesse Lee Hand who has pled guilty to a charge that on or about December the 9th, 2001, at or near Vancouver, in the Province of British Columbia, he did commit manslaughter of A.M., contrary to s. 236 (

b) of the Criminal Code . This is a classic tragedy and sadly has been a common one throughout all societies and throughout human history. It is a story of two young men involved in a brief, but violent physical encounter; one, unbeknownst to the other is armed with a knife and uses it quickly and deftly to mortal effect. A struggle is undertaken in the context of the inexperience of youth where dangers and death are not viewed as remotely possible results. [ 2 ] As we are all only too well aware this is especially so where one or both of the combatants have recently consumed alcohol and/or narcotics.

In a matter of moments the lives of the family and friends of both of the young men are changed forever, and they struggle to cope with the inevitable aftermath of what occurred. [ 3 ] Society as a whole, as well, struggles to comprehend human nature and the human condition, and looks for ways and means to protect itself. This endeavour occupies scientists as they try to find answers to age old questions. Do we all have within our psychological and physiological makeup the potential to be in the shoes of the victim or of the assailant? Is it a matter of genetics or brain malfunction?

Is it culture and socialization? Is it because of the hormones in the adrenal glands involved in the fight or flight response that shuts off the higher functioning brain and clicks on the savage primitive brain? Unfortunately there are no answers nor consensus of opinion at this time, and all who are affected by this crime cannot escape the parts they must now play. [ 4 ] Nothing can be done to turn back the clock. Little can be done by this court to serve the private purposes of the victims who are now a lost and bereaved family.

The case law states courts must serve the public purpose of society generally, and this court is bound by case law precedent to impose a certain range of sentence in circumstances of this kind. As noted, there are many cases involving similar circumstances to those we find here. [ 5 ] As in most cases, there are both mitigating and aggravating factors to one degree or another. The legal principles of rehabilitation and general and specific deterrence must also be considered. It is reasonably likely this accused, Mr. Hand, is deterred from similar acts in the future, and his rehabilitation is not in doubt.

This appears to be a common thread in most such cases for the obvious reasons. [ 6 ] Therefore, most cases have declared the aspect of general deterrence must be given priority. Given the very nature of crimes such as these, it is often questioned whether or not general deterrence can ever be achieved by any particular sentence imposed by a court. Notwithstanding all of these factors, it is well accepted law that what is a fit and proper sentence depends upon the particular circumstances of each case.

Our Court of Appeal has stated the range of sentence for manslaughter is not five to seven years, but rather a suspended sentence to life imprisonment. [ 7 ] The Crown seeks a sentence of four years and in their submission has suggested that this be in spite of the time served before the plea. This is known as pre-trial in-custody time. The defence seeks a sentence that is in the range of four years, but asks this court to give credit for pre-trial custody time. Mr.

Hand has been in custody for four months and three weeks waiting the outcome of this matter, and given that the usual rule of thumb of two for one, that would be the equivalent of nine and three-quarter months. This rule of thumb has come into practice gradually over time in response to an acknowledgment that pre-trial time is hard time compared to custody time after sentence. [ 8 ] After sentencing an inmate is entitled to periods of recreation and periods of taking courses for advancement of education and for rehabilitation. Presently there is a great deal of overcrowding in institutions.

They are not immune to financial cutbacks and as a result inmates now are many more to a cell than for what the cell was originally designed. Furthermore, there is a great deal of lockdown time as pressures and frustrations build in prison populations, and the way that is dealt with is by giving everyone time out. Unfortunately time out for the inmate is as matter of being locked into a crowded cell. As well, the cutbacks have affected the programs that are

available, and those programs are made available, it appears, to those who are due for release; so that a person may be in the penitentiary for many years and it is only when they approach release time that rehabilitation programs are made available to them. [ 9 ] It is not for this court to make any comment about the running of institutions. That is a political matter. However, the courts have taken into consideration the pre-trial custody time, and allotted it a greater or lesser percentage, depending on the particular circumstances.

Here no real details have been given about the pre-trial hardships, and so I will exercise my discretion to apply the usual rule of thumb of two for one. [ 10 ] Turning to the aggravating factors and the mitigating factors. The aggravating factors here are as follows: Mr. Hand does have a criminal record. He has a juvenile conviction for assault with a weapon in Burnaby in September of 1998 for which he was sentenced to one day secure custody and probation for 12 months. There is nothing that has been said to indicate that the probation was other than uneventful.

The circumstances themselves in this case are aggravated because they involve the aspects of alcohol and cocaine, as well as there being a knife. The presence of the knife was not announced to the other party involved, to Mr. M. After the initial altercation Mr. Hand escalated hostilities and used the knife with the very horrific result that ensued. Aggravating, as well, is the fact that Mr. Hand took 54 days to turn himself in, and he made almost complete efforts to conceal this crime by washing his clothes and asking a friend to dispose of the weapon.

He asked his friends to be complacent in his crime. [ 11 ] The bail release was problematic since he was eventually detained for breach of his bail conditions. He was bound when he was out of his residence to be at work, and was found not to be at work. The weapon involved, involved a knife which can be a lethal weapon and was in this case, and there was more than one stab wound. [ 12 ] The victim impact statements are statements which I must consider and do consider. These are aggravating factors, as one would expect.

These statements reveal the human condition at its frailest and its most vulnerable and its most hurt. These statements reveal repercussions for what occurred which will never likely go away. The family will simply get used to their pain. They will probably, as most families never get over it, they will simply get used to it, and eventually learn to live with it or become so sick themselves that they do not have much of a life. I might say as an aside here, and hope to be forgiven for being thought of as arrogant, but this young man was such a fine young man, A.M.

Surely he would want life for his family, and his is the voice that is not here and no one could speak for him, but the victim impact statements have reflected, as they tried to think of what he would have said they, in my view, say in a very small way what his view would have been. He would have turned to life. [ 13 ] This court must consider and try to balance all of these competing factors which at the end of the day cannot be satisfactorily resolved and that is the tragedy of this, and that is why we all play our parts, and there is no escape for any of us from playing our parts and Mr.

Hand will play his part, as well, for the rest of his life. In considering the part he must play, there are mitigating factors because his life will go on and until the day comes when he is called to meet his maker. He is a young man. This is a mitigating factor. He is not someone who has had the benefit of age and experience. He does not come to this court as a 45-year-old man who has had a family of his own and tragedies of his own. He comes as a young man. [ 14 ] He has entered a guilty plea at a relatively early stage.

He has not been one of these people who has tried to hide behind many excuses and put the State to the vast expense of proving the case against him, and all of the witnesses coming forth to give their side of the story, to be cross-examined at length and at the end of the day, to have the law applied to their stories. He has saved all of those people a great deal of anxiety and time and expense.

He has also been in custody awaiting the outcome of this matter. [ 15 ] If a person were to take a vengeful attitude they would say, well, crowded conditions, with no courses being available is simply the penalty he must pay and, in fact, there is a thought by some people that that is easy time because after all he is alive and he is, at least, able to do that. However, this court must take, I believe, a longer view and the view to what is accomplished in actual fact by society at large by such conditions.

Nothing happens in those conditions except to make people tread water. [ 16 ] The circumstances of this case indicate it was not a wilful murder of a victim, but rather a reaction in heat and on impulse, in a very misguided belief that the accused was defending himself. Mr. Hand agrees the force used to defend himself was excessive and, hence, he has entered a guilty plea. The altercation, according to his friends and family, was out of character for him. He feels remorse.

He has made a statement in this court addressed to the victim's family, indicating that he feels remorse and he knows that he will live with this for the rest of his life. [ 17 ] He has filed letters of reference through his counsel which show that he has the support of his family and friends, and has resolved to avoid the consumption of alcohol and narcotics in the future. He acknowledges that this would likely not have occurred had he not consumed alcohol.

While he was in custody he has taken upgrading courses to pursue his education by way of correspondence which cannot have been easy in crowded circumstances. [ 18 ] At the end of the day there is not much difference in the range of sentencing proposed by both defence and Crown, and everyone knows that this will not avenge a death. This will not turn back the clock. This will express society's denunciation in the way society in the year 2003 believes it to be appropriate. The case law gives this court guidance about what would be an appropriate sentence, but it does not tell the court the exact sentence.

It is simply a range that must be applied and all of these circumstances considered. I have already indicated that the pre-trial custody time I will give the usual range, the rule of thumb of two for one. [ 19 ] In my view, considering all of the aggravating factors and the mitigating factors, a sentence of three years and three months is a fit and proper sentence, and that the sentence this court imposes. There will be no victim fine surcharge. There will also be a s. 109 prohibition from having weapons and a DNA order pursuant to s. 487.05. [ 20 ] Mr. Hand, would you stand up, please.

I have imposed sentence of three years and three months. Pursuant to s. 109 of the Criminal Code you are hereby prohibited from having in your possession any firearms, ammunition or explosive substance, including any crossbow for a period of 10 years, commencing as of the date that you are released, and you are ordered to forfeit any such items you may have in your possession on that date. There will also be an order for a DNA sample to be taken and that is pursuant to s. 487.05 of the Criminal Code . Is there any other matter I must address?

[ 21 ] MS. SMITH: No, Your Honour. [ 22 ] MR. BOLTON: No, Your Honour. (ORAL REASONS FOR SENTENCE CONCLUDED)