R. v. A.N., 2022 BCPC 211

Citation: R. v. A.N. 2022 BCPC 211 Date: 20220802 File No: 244888-2KC Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A.N. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. JETTÉ Counsel for the Crown: T. Dotten Counsel for the Defendant: A. Jaswal Place of Hearing: Surrey , B.C. Date of Hearing: June 23, 2022 Date of Judgment: August 2, 2022 Introduction

[ 1 ] A.N. has entered a guilty plea to one count of aggravated assault. The charge reads as follows: A.N., on or about the 23 rd day of May 2021, at or near Surrey, in the Province of British Columbia, did commit aggravated assault of G.D.S., contrary to section 268(2) of the Criminal Code . [ 2 ] A.N. attacked G.D.S. with a machete, causing serious injuries to his left hand, wrist and forearm. Those injuries are still resolving, and it is likely that he will suffer some permanent deficits.

G.D.S. has been unable to work since the attack and may never be able to return to his employment as a truck driver and heavy machinery operator. [ 3 ] The Crown seeks a sentence of five years jail, restitution payable to G.D.S. for lost income and other ascertainable expenses, a direction that A.N. have no contact or communication with G.D.S. and a number of others, as well as a number of ancillary orders. [ 4 ] The defence submits that a fit sentence in this case would fall within a range of 30-36 months jail, and submits that, in light of this disposition, his client would not have the means to pay a restitution order.

Circumstances of the Offence [ 5 ] A.N. and P.B. were in a common-law relationship for some 13 years. They have a son, A.V.N., who is now [omitted for publication] years of age. A.V.N. is epileptic; he had a series of seizures when he was a child and suffered irreversible brain damage. His cognitive deficits require constant care and adult supervision. [ 6 ] A.N. and P.B. ended their relationship in 2010. P.B. then began to date G.D.S. A.N. was welcome in the home at first, and would regularly pick up and drop off A.V.N. for regular parenting time visits.

Sometime later, A.N. had a physical confrontation with G.D.S. at the basement suite where he was living with P.B. and A.V.N. A.N. accused G.D.S. of stealing his family, and then punched him in the nose. After this confrontation, new arrangements were made for picking up and dropping off A.V.N. at a location outside the home. On some of these occasions, G.D.S. would pick up or drop off A.V.N. When G.D.S. was involved in the exchange, it was P.B.’s practice to notify A.N. of this via text message.

I was told that A.N. and G.D.S. did not communicate after their physical confrontation, and that as of the 23 rd of May 2021 they had not spoken to each other for some 11 years. [ 7 ] On the 23 rd of May 2021, arrangements were made for A.N. to pick up A.V.N. at a parking lot in Surrey where these exchanges usually happened. Despite her usual practice, P.B. did not notify A.N. that G.D.S. would be conducting the drop off. G.D.S. drove A.V.N. to that location; he was accompanied by P.B.’s 35-year-old niece, M.B.V.

What followed was captured on CCTV; that recording was played in court. [ 8 ] A.N. was sitting in his parked vehicle when G.D.S. entered the lot and parked nearby in his Ford Edge. A.N. immediately brought his vehicle around to the front of the Edge and parked on an angle, blocking forward movement of the Edge. G.D.S. got out of his vehicle and opened the rear passenger side door, reached in and removed a machete. He then walked up to the driver’s side window of the Edge and struck the window with the machete several times as he was yelling, “you motherfucker”.

Photographs filed at the sentence hearing show that the window was damaged but not completely smashed. M.B.V. and A.V.N. got out of the Edge; A.V.N. stood behind the vehicle. A.N. walked over to the rear passenger side of the Edge, then back again to the driver side. As he did so, G.D.S. got out and can be seen talking on the phone. A.N. attacked G.D.S. with the machete, swinging it number of times and striking G.D.S., who tried to block the blows before retreating further into the lot. A.N. got into his vehicle and drove away. [ 9 ] Police and ambulance attended.

G.D.S. was treated at the scene then taken to hospital. Police left a voice mail message for A.N., who turned himself in the following day. [ 10 ] Crown filed photographs of the injuries suffered by G.D.S. They are gruesome. His left hand had been cut clean through just below the pinkie finger; had the machete travelled much further, the hand might have been completely severed. Another photo shows a serious cut to G.D.S.’ left forearm, with bone and tendons fully exposed. [ 11 ] G.D.S. prepared a Victim Impact Statement and read it in court. He is a 61-year-old truck driver and heavy equipment operator.

He has been unable to work since the assault. He has suffered nerve and tendon damage and has undergone a number of surgeries with more to follow. He will require extensive physical therapy. G.D.S. worries that he may never be physically able to return to his job, which would have an impact on family finances and his plans to retire in about four years. Circumstances of the Offender [ 12 ] I have had the benefit of a Pre-Sentence Report (“PSR”) as well as a psychological assessment prepared by staff at the Forensic Psychiatric Services Commission.

These materials provide important background information about A.N. [ 13 ] A.N. is 56 years old. He is a Honduran national; he left his country for Mexico and then the United States, and arrived in Canada in 1994. He is now a Canadian citizen. A.N. reports a difficult childhood. His parents separated before he was born, and by age six he was in the care of his paternal grandmother, who showed little love or affection and employed verbal and physical abuse to enforce discipline. He dropped out of school early, and began a term of mandatory military service at age 17.

While in the army, he was shot in the head by one of his commanding officers during a dispute at a local bar. He was treated for his injury, was discharged from the army after some months, and began the long, hard journey north that would eventually bring him to this country. [ 14 ] A.N. met his common-law partner P.B. in 1995, and they maintained a common-law relationship until 2010. Their son A.V.N. was born in [omitted for publication]. [ 15 ] A.N. has been employed as a truck driver for a number of years; he has had two main employers since 2008.

He reported to the PSR writer that he earns $7,000 gross per month. At the sentence hearing, I was told that A.N. disputed this figure. Counsel told me today that he misunderstood his instructions and that income is now admitted.

[16] When A.N. met with the PSR writer, and again when interviewed for the psychological assessment, he expressed some unusualviews with respect to G.D.S. He says that G.D.S. is a witch, and that he used witchcraft to make P.B. cheat on him and leave theirrelationship. It is hard to know exactly what to make of this other than to consider his belief as some evidence of ongoing animus. [17] A.N. also told both report writers that his motivation for this attack developed from some photographs of P.B.’s niece, M.B.V.,which he viewed on A.V.N.’s phone.

He described them as provocative photos, which depict G.D.S. pulling down M.B.V.’s panties.A.N. says he showed the photos to P.B. and she appeared unconcerned. A.N. told the writer of the psychological assessment that he wasconcerned for his son’s safety and did not want G.D.S. to have contact with A.V.N. The assault took place the day after A.N.’s discussion with P.B. A.N. reports that he was angry, and that when he saw G.D.S. with A.V.N. at the drop off location on the 23rd ofMay 2021 “the devil came to him” and he commenced his attack.

Principles of Sentencing [18] The applicable sentencing principles appear in the Criminal Code at sections 718 and 718.2. [19] At the end of the day, my task is to craft a sentence which recognizes the fundamental principle of proportionality. Aproportionate sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender. Imposing aproportionate sentence is a highly individualized exercise, tailored to the gravity and nature of the offence, the blameworthiness of theoffender, and the harm caused by the crime: R. v.

Nur, 2015 SCC 15, para. 43. [20] The court must not fail to consider that “one of the main objectives of Canadian criminal law is the rehabilitation of offenders”which assists the court to impose a sentence in any given case which is “just and appropriate”: R. v. Lacasse, 2015 SCC 64 at para. 4; seealso R. v. Schneider, 2019 BCCA 310 at paras 10-11. I must also take into account the principle of restraint expressed in s. 718.2(

e) ofthe Code. [21] Sentencing is an inherently individualized process. No two offenders are identically situated. There is no such thing as a uniformsentence for a particular crime. A suggested range does not preclude lesser or greater sentences if warranted. A sentence outside the usualrange can be imposed so long as it is in accordance with the principles and objectives of sentencing: R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500; R. v. Nasogaluak, 2010 SCC 6; R. v. Lacasse, supra; R. v. Williams, 2019 BCCA 295; R. v. Friesen, 2020SCC 9; R. v. Parranto, 2021 SCC 46. [22] Our Court of Appeal in R. v.

Williams, supra, described the sentencing range approach which has been employed in this provincefor some time: [57] This Court has adopted the approach of sentencing ranges because, in our view, they provide an optimal balance betweenfurthering parity and individualization in a sentence. Sentencing ranges are not more rigid than starting points but simply reflect anoverview of sentences that have previously been imposed for a particular offence.

They are intended to assist judges in arriving at asentence that is consistent with sentences for similarly situated offenders, in similar circumstances — furthering the principle of parity —without constraining the judge's discretion to go outside of the range to properly reflect the unique circumstances of the offence or theoffender. They do not set out "practical minimum and maximum sentences.” [23] In Parranto, supra, the Supreme Court of Canada reminded sentencing judges that “(T)he goal in every case is a fair, fit andprincipled sanction.

Proportionality is the organizing principle in reaching this goal…” This means that courts of first instance muststrive to ensure that the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Parranto, at para. 10. See also R. v. Nur, 2015 SCC 15 at para. 43. Range of Sentence [24] The accepted range for aggravated assault is broad, and lies between 16 months and six years jail. In R. v.

Johnson, [1998] B.C.J.No. 2924 at paragraph 10, the Court of Appeal described a sliding scale within that range, driven in a very general sense by thecircumstances of the case: …Sentences at the lower end of the range tend to be imposed in “fight” situations in which the altercation escalates and results in injuriesto the victim.

Sentences at the higher end of the range tend to be imposed in situations where the victims are attacked with a weapon,without provocation and without any opportunity to defend themselves. [25] This approach does not subtract from or override the individualized approach to sentencing referred to earlier in these reasons,and of course ranges are not set in stone. Having said that, there can be no dispute that the primary principles of sentencing for offencesof aggravated assault are denunciation and deterrence. Aggravating Circumstances 1.

I have considered the victim impact statement written by G.D.S. and delivered orally before me. This attack had a profound and longlasting impact on G.D.S. Evidence that the offence has had a significant impact on the victim is a statutory aggravating factor in s.718.2(a)(iii.1) of the Criminal Code. 2. This was a particularly violent and unprovoked attack against an unsuspecting, vulnerable and defenceless victim. 3. A.N. used a machete to carry out his purpose and inflicted serious injuries in doing so. 4.

The attack was carried out in front of P.B.’s niece and his [omitted for publication]-year-old son, who suffers from significantcognitive deficits. [26] Crown counsel submitted that an additional aggravating factor arises from A.N.’s admission to the report writers that he is easily

irritated by others and is prone to act impulsively and with anger. A.N. attributes his conduct in part to the aftermath of the injury he suffered when he was shot in the head many years ago. As I understand it, Crown submits that A.N.’s knowledge of this tendency should have guided him to somehow avoid the commission of this offence. I do not agree that this history should be considered as an aggravating factor. [ 27 ] There is also the issue of A.N.’s motivation for this attack, in particular the photos of P.B.’s niece, M.B.V., that A.N. claims to have seen on A.V.N.’s phone.

At the outset of the sentence proceedings I was advised by Crown counsel that he interviewed P.B. about this issue. She reported that A.N. did show her two photos of M.B.V., but they depicted a new tattoo on M.B.V.’s shoulder, extending onto her back. She says there were no photos of G.D.S. pulling down M.B.V.’s panties.

Crown counsel was prepared to call evidence on this point at the sentence hearing, but counsel for A.N. did not press the issue, and essentially accepts the Crown’s version of these events. [ 28 ] What I am left with is the incident 11 years earlier when A.N. punched G.D.S.; frequent peaceful interactions over the intervening years but no communication between A.N. and G.D.S.; A.N.’s claim that the photos on A.V.N.’s phone were inappropriate and raised concerns that G.D.S. could be a danger to his son; comments about G.D.S. employing “witchcraft” to take P.B. away; and the sudden, unprovoked attack on the 23 rd of May 2021.

What I infer from this background is that A.N. held onto a simmering resentment of G.D.S. I infer that this resentment bubbled to the surface and manifested itself in this attack when A.N. unexpectedly encountered G.D.S. at the drop off for A.V.N. [ 29 ] Both Crown and defence counsel submit that this was not a premeditated attack, and I agree that there is no evidence that it was.

I find that the attack was impulsive and was pursued on the spur of the moment, but it is also clear from the CCTV recording that the attack began as soon as A.N. moved his car into a blocking position, and that it was pursued with deliberation and purpose from that point through to its conclusion. Mitigating Circumstances 1. A.N. has entered a guilty plea, which saved G.D.S. and others the difficult and uncomfortable task of coming to court and giving evidence under oath. I reject Crown’s submission that the strength of the case means that this plea is somehow entitled to less weight. 2.

I accept that A.N. is remorseful. He told the report writers that he almost immediately regretted what he had done. 3. A.N. was fully cooperative with authorities, and turned himself in the following day after receiving voice mail messages from police. 4. Despite a difficult and challenging personal history, A.N. had no prior criminal record. [ 30 ] There is a collateral consequence to A.N. arising from the commission of this offence. While not strictly mitigating, it is a factor I take into account in fashioning a fit sentence. A.N. enjoyed a close and loving relationship with his son A.V.N.

He has been prohibited from contacting his son by court order since his arrest for this offence. While this is a predictable consequence of his conduct on that day, I accept that A.N. held a genuine belief that he was acting to protect his son. Of course the methods he employed here were reprehensible and have had lasting consequences for G.D.S. Even if A.N. had been correct in his view that G.D.S. posed a danger to his son – and I accept that G.D.S. has been a good and loving step-father to A.V.N. – there is obviously no justification or excuse for what A.N. did to G.D.S.

Nevertheless, A.N. now faces the added consequence of a period of prolonged separation from A.V.N., and must live with the knowledge that his desire to protect his son has had exactly the opposite impact, as A.V.N. is now deprived of contact with his father. [ 31 ] Defence counsel points to possible mental health issues which might have had some impact on A.N.’s level of moral blameworthiness. In a series of recent decisions, our Court of Appeal has described the correct approach where counsel submit that a mental health diagnosis can be directly linked to the commission of an offence.

Where there is evidence that establishes, more likely than not, that mental illness caused or contributed to the commission of an offence, it is a mitigating factor and a sentence may be reduced because the offender’s moral culpability is attenuated: R. v. Badhesa, 2019 BCCA 70 ; R. v. Williams, 2019 BCCA 295 ; R. v. Milne, 2021 BCCA 166 ; and R. v. Merkel, 2021 BCCA 445 . [ 32 ] While the question of A.N.’s mental health has been raised before me, it has not been pressed.

The psychological assessment goes no further than to state that while there are reasons to question whether A.N. may be suffering from bi-polar and/or mood disorders, it is currently unclear whether he meets that criteria and further investigation and assessment is required. This evidence falls short of establishing, on a balance of probabilities, that mental illness caused or contributed to A.N.’s conduct when he committed this offence. Case Authorities [ 33 ] Counsel have submitted a number of cases. As per usual, each can be distinguished for a variety of reasons.

Crown says that these cases justify a sentence in the upper portion of the 16 month to 6 year range; defence counsel submits that I should impose a jail sentence in the middle part of that range. The cases I have reviewed are the following: R. v. Johnson, supra ; R. v. Craig, 2005 BCCA 484 ; R. v. Haj-Ahmed, 2007 BCCA 143 ; R. v. Butz, 2015 BCPC 75 ; R. v. Sanghera, 2016 BCCA 251 ; and R. v. Williams, 2022 BCPC 31 . [ 34 ] I agree that the circumstances of this offence justify a sentence somewhere in the middle to upper end of the usual range.

This was an unprovoked attack on a defenceless victim using a machete – a large and dangerous edged weapon – which was used to inflict life-altering injuries on the victim. A.N.’s level of moral blameworthiness falls at the higher end of the scale. Without ignoring the mitigating circumstances that arise in this case and A.N.’s personal circumstances, his conduct requires that I impose a sentence which emphasizes the principles of denunciation and deterrence. Sentence [ 35 ] I will first deal with the issue of restitution.

With the assistance of Crown counsel, G.D.S. has submitted receipts and a claim for restitution arising from the assault and its aftermath.

[36] Criminal Code s. 738 sets out a variety of circumstances which may justify a restitution order. For the purposes of thisdiscussion, they include sub-section (a), damage to property; and (b), in the case of bodily harm, “all pecuniary damages incurred as aresult of the harm, including loss of income or support, if the amount is readily ascertainable.” [37] G.D.S. has provided pay stubs for his work as a truck driver and heavy machinery operator which demonstrate his averageincome before the assault, and the difference between that employment income and disability payments since the assault.

This part of theclaim falls under the category “loss of income”, and I find that the sum claimed - $10,550.65 – is readily ascertainable. [38] G.D.S. also advances a claim for a number of other incidental expenses incurred as a result of this attack, including parking receipts in the amount of $78, the $80 cost of transport to hospital by ambulance on the 23rd of May 2021, receipts in the sum of $33.84for prescription drugs not covered by insurance, and the $300 ICBC deductible for repair of the damage A.N. caused to the driver’s sidewindow of G.D.S.’s vehicle.

All of these amounts are also readily ascertainable. [39] The total restitution claim is $11,042.49. [40] The question of restitution is part of the sentence, and not a separate inquiry. An order for restitution gives effect to many of theprinciples of sentencing, including denunciation, specific and general deterrence and rehabilitation. Restitution is directly applicable toCriminal Code ss. 718(

e) and (f), which direct sentencing courts to take into account, where appropriate, reparations for harm done tovictims, and to promote a sense of responsibility in offenders and acknowledgement of harm done to victims: R. v. Yates, 2002 BCCA583 at para. 7; R. v. Nanos, 2013 BCCA 339 at paras 13-14. [41] The Supreme Court of Canada in R. v. Zelensky, (SCC), [1978] 2 SCR 940 adopted a non-exhaustive list ofconsiderations when the court is asked to include a restitution order.

Of particular significance is the requirement that a sentencing courttake into account the present and future means of an offender to make restitution, although that factor will not be controlling in everycase.

This is reflected now in Criminal Code s. 739.1, which states that “the offender’s financial means or ability to pay (a restitutionorder) does not prevent the court from making an order under s. 738…” [42] In Zelensky, the court determined that offences involving a breach of trust, theft or fraud may require a restitution order evenwhere there does not appear to be any likelihood of repayment, although the weight to be given to this and other considerations will varyaccording to the specific circumstances of the offence and offender (see also R. v. Nanos, supra, at para. 17).

The court also remindssentencing courts to take into account the impact of the order on the offender’s chances of rehabilitation. The court has a discretion toaward a sum less than the full amount claimed where appropriate. [43] Counsel also submits that A.N. does not own anything of value, rents a basement suite, and will not be in a position to earn anyincome at all when he is in jail. Counsel concedes that it is quite likely A.N. will be able to return to his work as a truck driver once he isreturned to the community.

As noted earlier, A.N. was earning a gross sum of $7,000.00 per month. [44] I have concluded that a sentence of 36 months imprisonment combined with a restitution order in the full amount claimed byG.D.S. would be a fit sentence here. In arriving at this decision I have reduced the period of incarceration I might otherwise haveimposed to account for the punitive impact of the restitution order. [45] I have taken into account A.N.’s ability to pay; I find that he will retain the ability to work, earn income and pay this sum afterhis release from jail, although I accept that payment may take some time.

I have also concluded that this order will not have a significantimpact on his rehabilitation. The psychological assessment recommends a series of programs which will be available to A.N. whenserving an institutional jail sentence, and this order will not impair that process in any way.

The requirement that he pay G.D.S. for hislosses, or at least some part of those losses, will promote in A.N. a sense of responsibility and will make him personally accountable in ameaningful way for the harm he has caused. [46] There will be a jail sentence of 36 months. [47] Pursuant to s. 738 of the Criminal Code, I order that you pay restitution in the amount of $11,042.49 to the Clerk of the Court for the benefit of G.D.S.

The monies owed must be paid no later than August the 2nd 2026, which is approximately one year after expiry ofthe warrant of committal. [48] Pursuant to s. 109 of the Criminal Code, you are prohibited from possessing: a. any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosivesubstance for a period of 10 years following your release from prison, and b. any prohibited firearm or restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [49] There will be an order of forfeiture with respect to the machete. [50] Aggravated assault is a primary designated offence.

Pursuant to s. 487.051(1) of the Criminal Code, I authorize the taking ofsamples of bodily substances from you. The samples will be taken from you while you are in custody and you must submit to the takingof the samples. [51] The Warrant of Committal shall be endorsed with the following order: pursuant to s. 753.21(1) of the Criminal Code, you musthave no contact or communication with G.D.S., P.B., A.V.N., and M.B.V. while you are in custody.

_____________________________ The Honourable Judge M. Jetté Provincial Court of British Columbia