R. v. Anderson, 2013 BCPC 439

Citation: R. v. Anderson 2013 BCPC 439 Date: 20130930 File No: 20669-2-KC Registry: Rossland IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOEL AARON THOMAS ANDERSON ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: S. Sinclair Counsel for the Accused: P. McMurray Place of Hearing: Nelson , B.C. Date of Hearing: June 25, 2013 Date of Sentence: September 30, 2013

[ 1 ] THE COURT: Mr. Anderson, you are here today pleading guilty to one count, that on January 22, 2013, you did assault your brother, James Anderson, contrary to s. 267 of the Criminal Code . [ 2 ] The circumstances, which I will go into in a bit more detail in a moment, of this offence are that in the course of a dispute with your brother, you struck him in the face with a coffee cup so forcefully that it caused a significant injury, and you followed that up by assaulting your brother. [ 3 ] The issue in this sentencing before me is length of sentence. The Crown is seeking a sentence of 16 months.

Your counsel submits that a sentence of 12 months would be more appropriate in all of the circumstances. There does not seem to be any issue with respect to the terms of the probation order that will follow. [ 4 ] The Crown has proceeded in this case by indictment. You would have been aware of that when you elected. The maximum sentence for this offence, when the Crown has proceeded by indictment, is 14 years. That obviously reflects the seriousness of the offence. [ 5 ] Because of the nature of the offence, a conditional sentence order is not available.

One is not being sought, and one would not have been granted in any event. [ 6 ] Other than the period of incarceration, a conviction under this particular provision of the Code carries with it other penalties.

There is a mandatory firearms order under s. 109 of the Criminal Code , and the prohibition in your case is going to be for life. [ 7 ] This is also a primary designated DNA offence. [ 8 ] In terms of the sentencing itself, I am just going to briefly allude to the circumstances of the offence, as well as some of your own personal circumstances before I give my sentence. [ 9 ] The circumstances of this offence that I have alluded to just briefly are that Mr. Anderson, who is your brother, was assaulted on that day.

It is admitted that you went into his bedroom in your family home early in the morning on January 22, 2013. [ 10 ] You were angry, apparently because your brother had a table in his bedroom that you thought was yours and wanted to have in your bedroom. I think what is notable about that, for the purposes of this sentencing, is that the reason your brother may have had the table in his room was because you had been absent by virtue of being in jail on other charges, and had just been released on the 21st. [ 11 ] Unfortunately, within hours, you were in your brother's room with a cup of hot coffee.

You decided to get angry about this table. The precise circumstances of what occurred next, I acknowledge, are not agreed. Your brother says that he told you to go away when you wanted to press the issue of the table, and he only recalls having hot coffee all over him and you being on him, attacking him. [ 12 ] I know that you have said to police, and you have said in your presentence report that your brother pushed you first. I am just going to echo the words of your counsel.

Whatever started this -- clearly it had something to do with the table, something to do with your anger -- your response was all out of proportion. [ 13 ] So there is no question that you are guilty of the offence that you pled guilty to. [ 14 ] The assault on your brother -- first of all, the striking him with the coffee cup was so violent. I do not know if you have seen the photographs or if you recall what he looked like in that instant, but it is a significant injury. His face is laid open. It did require 16 stitches to close it.

And I note as well that, consistent with what your brother said, your father came down and reports seeing you on top of your brother, trying to strangle him. [ 15 ] So there is no question, Mr. Anderson, that this was a brutal assault on your brother which took place in his home for no justification whatsoever. [ 16 ] In terms of your circumstances, I note you are now 21 years of age, and you are still very young.

But you do have behind you, as the presentence report and psychiatric report and your criminal history indicate, are a real history of problems. [ 17 ] One thing I must note for the record is that there is some indication that you are of Cree background. I explored this with your counsel, and I understand you are waiving your Gladue rights. [ 18 ] As I say, in the presentence and the psychiatric reports, there are notes indicating that you have suffered for most of your life with some kind of defiant behaviour disorder.

This has occurred from your youth. [ 19 ] In terms of the diagnosis, the question of your mental health has been explored, I think, in great detail. There was at some point some suggestion that you may suffer from bipolar disorder. [ 20 ] But the diagnosis in the psychiatric or the psychological report is essentially this. Firstly, there is a problem with substance abuse, and in fact poly-substance abuse, and that is to say you are consuming alcohol, marihuana, with some history of cocaine. At the time of the report, of course, you were in forced remission in the sense that you were in custody.

And in addition, you have been diagnosed with a mixed cluster of B-personality disorders -- that is to say borderline narcissistic and antisocial. [ 21 ] I understand you are on medication and you have been on medication. That medication is also described in the report, and it is significant medication, it is serious medication, and it includes viatipane [phonetic], valproate and Risperdal which is, as your counsel indicated, an antipsychotic. [ 22 ] You have a history not only of difficulties controlling your temper, but there is a history of difficulties in your family environment and while in school.

The reports indicate, and I do not hear any suggestion otherwise, that you are in some sense

unremorseful in any sort of meaningful way, although certainly you are sorry that this happened and certainly you miss your family, and I accept that. [ 23 ] At the end of the day, you have been assessed in all of the circumstances as being, certainly at the time the report was written, a high risk to reoffend, and of course the reoffending is a concern for this court. [ 24 ] At the same time you do have the support of your father, and your brother to a lesser degree. Your dad does love you. He is in here, in court today. I see you two making contact with one another.

Clearly you have a solid relationship, despite all that has occurred. I am sure that it must be very frustrating for your father. [ 25 ] I can say for myself I have had you before me before and you do present as a -- I must say, a nice young person. You are always respectful in court and I am told that you are doing well while you are in custody, that you are not causing any problems while you are in custody, and that you are taking your medication. [ 26 ] You have got qualities, obviously, that cause people to want to help you and that has occurred.

At the same time, you clearly have a vicious temper which you are absolutely unable to moderate. When your temper flares up, you become violent in a way that is a real concern, I think, to the public and certainly to the court. [ 27 ] Even at the age of 21 years, and I say I think that is -- I consider you to be a young person, although certainly not a young offender, that is significant for someone of your age. Your record starts in October 2010.

You were convicted, again with an indictable offence, of break and enter, breach of undertaking causing a disturbance and uttering threats, and for that you were given a six-month conditional sentence order. [ 28 ] That is one of a number of indications in your criminal history that would indicate that someone has taken a chance on you and given you a sentence that focuses primarily on your rehabilitation.

For that effort they have been repaid or they were repaid in November 2010 with your breach of a CSO and that was collapsed, and you ended up serving 45 days in jail. [ 29 ] February 2011, not long after that, you were convicted of causing a disturbance by fighting and screaming.

Then you were given nine months' probation. [ 30 ] March 2011, you were convicted of uttering threats to cause death or bodily harm and theft, again given probation. [ 31 ] December 2011, you were convicted of uttering threats and assaults and you were given another conditional sentence order, which is astonishing I suppose in retrospect, plus a year of probation, and of course whoever gave you that was repaid with a breach of that CSO on January 3, 2012, for which you received a 14-day jail term. [ 32 ] January 2013, you were convicted of uttering threats to cause bodily harm, and sentenced to one year probation and then a peace bond in July 2013. [ 33 ] So that is a significant criminal record but your counsel is correct, you have not at least to this date served any serious time.

It may be that no one was really helping you by imposing those sentences because clearly you have squandered a number of opportunities. You have had probation. You have had community assistance. You would have had counselling. But none of those seem to have worked in your case. [ 34 ] In terms of the victim, I have to note, as well for the purposes of the sentencing record that Mr. Anderson, who is your older brother, was, as I have indicated already, significantly affected by this assault on him.

In addition to the physical effect, he mentions and I have no doubt that there is a scar that remains noticeable and that is going to take some time to heal. He is having some ongoing medical issues, including some memory issues. [ 35 ] As Crown indicated, this incident caused him to take a leave of absence from work. He has felt terribly emotional over this.

He has indicated reporting suffering feelings of guilt and depression and feeling bad that you are in jail, so in other words as a consequence of your actions, your brother is not only feeling the physical effects but in fact seems to feel he has some responsibility, which he does not -- which he does not, Mr. Anderson. All right? At the end of the day, really, this is you. You are responsible for this and you have to understand that. Otherwise, you are going to be spending quite a bit more time in custody. [ 36 ] In terms of the sentencing position, the Crown is seeking, as I said, 16 months.

It acknowledges that you have been in custody now by, I am told eight months, one week and one day. [ 37 ] The Crown also seeks a lengthy probation order.

Among other things, it seeks an order that you not attend at your father's home or any residence of your father or your brother; that your contact with those two individuals be limited or moderated in some respect; that you take counselling; and of course that you abstain from the consumption of alcohol and non-prescription drugs, and that you take drugs as prescribed for you. [ 38 ] Your counsel has submitted that essentially what would be more appropriate is a sentence in the neighbourhood of something like 12 months.

I am urged, in your case, to focus on your rehabilitation, despite these other sentences which obviously have placed that at the forefront. [ 39 ] There was a submission, at least, that I should consider imposing enhanced -- or granting you enhanced credit for the 40 days that you have spent in lockup so that counsel suggests or submits at the end of the day that the sentence be 12 months but that you be given credit for 9 to 10 months time served, with the acknowledgement that you would still have to serve a period of two months.

And as I say the question of your probationary period is not seriously in dispute. [ 40 ] In terms of the purposes and principles of sentencing, I have in this sentence, as I must in every sentence, taken into account the provisions of sentencing that are set out in the Criminal Code and they are set out in ss. 718 and 718.2 .

[ 41 ] For the purposes of explanation, I can tell you that s. 718 provides that 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. [ 42 ] Those objectives include to deter the offender and other persons from committing offences for which they are found guilty or have pled guilty; to denounce unlawful conduct; to separate offenders from society where necessary for the protection of society; to assist in rehabilitating offenders which will also meet the purpose of sentencing; to provide reparation for harm done to victims of the community; and then finally to promote a sense of responsibility in offenders in acknowledgement of the harm done to victims. [ 43 ] There are other provisions of sentencing that are set out in ss. 718 and 718.2 of the Code and I have taken those into consideration, including that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

I have considered that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and so forth. [ 44 ] In terms of the objectives of sentencing that I think are most important in this particular case, I am guided not only by the provisions of the Criminal Code but certainly some of the submissions that have been made and some of the observations that have been made in the case law that has been provided to me, particularly in R. v.

Jones , which is a decision of the BC Supreme Court, 2012 BCSC 2011 . [ 45 ] Madam Justice Kloegman indicated, at paragraph 5, that the primary sentencing objectives for aggravated assault convictions are denunciation and deterrence, which are both general and specific. [ 46 ] This is not an aggravated assault but it is a violent assault, it is an assault causing bodily harm, contrary to s. 267 .

There is no question, I think, in my mind that those similar sentencing objectives have to be given some serious and significant consideration in this sentence. [ 47 ] That the concept or the idea that the sentencing objectives that have to be considered in this kind of a sentence include deterrence and denunciation are also echoed by the BC Court of Appeal in R. v. Craig , 2005 BCCA 484 .

Again, that involved a conviction for aggravated assault but the circumstances of this are such that the distinction is one without a difference. [ 48 ] Obviously those are two objectives that have to be given primacy in this case. [ 49 ] In the Jones case, the Crown did refer again to paragraph 5, where the court indicated that, in such cases, the sentencing objectives of denunciation and deterrence were to be given primacy and that rehabilitation seemed to be a lesser consideration. [ 50 ] Now that may have been the case in the Jones case.

I am not convinced that it is a lesser consideration in this case in the sense that given your age and your family support, clearly I have to consider the sentencing objective of rehabilitation and give that weight in this sentence as well. [ 51 ] I have to consider aggravating and mitigating factors. [ 52 ] In terms of the mitigating factors, I am taking into account the guilty plea, but I do notice the Crown indicated it was a late guilty plea, done on the day of trial, where your father and brother were in attendance having been required to attend by subpoena, and I certainly bear in mind your brother's extreme discomfort at the prospect of having to testify against you.

But you are given credit for the guilty plea. [ 53 ] I take into account that this particular offence was an impulsive offence. I take into account also, as set out in the presentence reports and the psychological report, that you do have some ongoing issues in terms of your inability to control your anger. [ 54 ] In terms of the aggravating factors, it is clearly an aggravating factor that this occurred within hours of your having been released from a custodial facility. It is an aggravating factor that this assault occurred in the home of your brother.

It is an aggravating factor that this is in some regards a domestic situation.

It is an aggravating factor that the victim has been so horribly affected and dramatically affected by this particular assault, and it is an aggravating factor that you have a related to criminal record. [ 55 ] The factors that I set out suggest that there has to be a balance between the objectives of denunciation and deterrence, and rehabilitation in this sentence, I should give slightly more weight, I think, in this particular case at this particular point in time, to the factors of deterrence and denunciation and I say that for this reason. To this point you have been given lots of breaks.

Nothing that has been imposed on you so far has had the effect of moderating your violent tendencies. [ 56 ] You need to understand, Mr.

Anderson, through this sentence, that the days of your getting breaks are gone. [ 57 ] You need to understand that if you will not seek the help that you need, if you will not take the medications that you need, if you will not learn to modify your behaviour and listen to the counselling and pick up some of those tools, that in any subsequent sentencing for a violent offence of this type, the safety of the public is going to become one of the paramount sentencing objectives. [ 58 ] I think at this point that a sentence that sends the message to you of deterrence particularly, as well as denunciation, without being so long as to make you lose hope, will actually assist in your rehabilitation. [ 59 ] And those of the considerations I have taken into account in imposing this sentence. [ 60 ] At this point, I am going to get you to stand. [ 61 ] For the charge of assault contrary to s. 267 of the Criminal Code , for which you have pled guilty, I sentence you to 14 months in custody.

[ 62 ] I understand that you have served to this date a period of eight months, one week and one day. As I have indicated in my sentence earlier, there was an allusion in sentencing submissions by your counsel to the notion that I should give you some additional credit in the rate of 1-1/2 days per day served for the 40 days that you have served in the local lockup. [ 63 ] I am guided, in my view, and I am bound obviously by the decision of the Court of Appeal in R. v. Bradbury .

That case makes it very clear that the changes in the Criminal Code indicate that Parliament intended that, except in the most extraordinary and unusual circumstances, and exceptional circumstances in particular, the courts are not entitled under the legislation to grant that additional time or additional credit for time served. [ 64 ] As your counsel indicated, the onus is on you to provide evidence that your experience in pretrial custody, your presentence custody has been so exceptional that I should grant the 1.5 credit.

What I have heard is that you served 40 days in local lockup and that while that may not be an unusual or an exceptional experience in this area, it was an exceptional experience for you. [ 65 ] I am sorry, I cannot find on those submissions any basis on which I could conclude that you meet the test for the exception that is set out in R. v. Bradbury . I see nothing about any experience in your local lockup on the submissions that I have heard that would justify such an order, so I decline to make such an order. [ 66 ] The sentence is 14 months.

You are to be given credit for time served, which is in the amount of eight months, one week and one day. You are going to serve the remaining time of your sentence in a custodial facility. [ 67 ] When you are released, you will be on probation for a period of 24 months or two years. The conditions of your probation are as follows. [ 68 ] First of all, you must keep the peace and be of good behaviour. You must also attend court when required to do so by the court.

You will have to connect with a probation officer by telephone within 72 hours of your release from custody, and thereafter as directed by your probation officer, and in the manner directed by your probation officer. [ 69 ] During the period of custody, you will reside as and where directed by your probation officer, and you will not change that address without first obtaining the written approval of your probation officer. [ 70 ] During the period of probation you are not to go to 1662 East Street in Trail, or any other residence in which your father or your brother may reside, without first obtaining the prior written approval of your probation officer. [ 71 ] You are to have no contact with your brother, James Anderson, directly or indirectly, unless Mr.

Anderson himself initiates that contact. [ 72 ] You are to break off contact with your father at the moment in which your father indicates that he no longer wishes to have any contact or communication with you. [ 73 ] During the period of probation, you will take any counselling as may be assessed and directed by the probation officer, and you will complete that counselling to the satisfaction of the probation officer. [ 74 ] You are prohibited during the period of probation from consuming any alcohol or drugs, that is to say drugs that are set out in the various schedules of the Controlled Drugs and Substances Act or any drugs which are not prescribed for you by a medical physician. [ 75 ] You are also going to be bound by a Rogers order.

The wording of that is going to be read out to you when the probation order is read out to you. Effectively, it provides that you are going to maintain yourself such that any mental health condition that you may have does not cause you to be a danger to yourself or others. [ 76 ] You are to attend at the office of the physician and take whatever treatments may be prescribed or directed by the physician, except that you may not be required to take any medications to which you do not consent.

Of course, if you do not take those medications, you must advise your probation officer and you must advise your medical physician of this condition of your probation order. [ 77 ] You have to provide a copy of the probation order to your medical physician and you will also have to provide your physician with the name and address and telephone number of your probation officer. [ 78 ] That order will be read, as I say, out to you in more detail when the probation order is read out to you. [ 79 ] I have indicated to you as well that this is a primary designated DNA offence.

I order then that you do provide a sample of your bodily substance and that that sample be taken by buccal swab from you for the purpose of obtaining a sample of your DNA. That must be done within seven days of today's date. [ 80 ] There is also a mandatory order under s. 109 of the Criminal Code . That order is that you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life. [ 81 ] I am going to waive the victim fine surcharge in this particular case. [ 82 ] I wish you the best of luck, Mr.

Anderson. I hope you have heard some of what you were told, particularly the fact that if you do not moderate your behaviour, and you do not take the help that is given to you, it is only going to get worse for you from here on in. And I say that despite your age and despite the fact that I understand and I acknowledge that you are a decent individual who has, basically, a difficulty controlling his anger. But at some point, that is going to have to take primacy over other considerations, and by that I mean the safety of the public.

[ 83 ] All right, so I do you wish you the best of luck, sir. Thank you. [ 84 ] MS. SINCLAIR: Your Honour, Crown directs a stay of proceedings on Counts 2 and 3. [ 85 ] THE COURT: Thank you. [ 86 ] MS. SINCLAIR: Oh, Your Honour, I was just wondering if we could just clarify the DNA. I guess it is not by buccal in this area. It is sorted by blood, is it? [ 87 ] UNIDENTIFIED SPEAKER: [Indiscernible/not near microphone] [ 88 ] THE COURT: Oh all right. Well, that's fine then, as well. All right, within seven days of today's date though. (REASONS FOR SENTENCE CONCLUDED)