R. v. Sweder, 2023 BCPC 267

Citation: R. v. Sweder 2023 BCPC 267 Date: 20230928 File No: 38073-2-KC Registry: Fort St. John IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. DUSTAN OLOF SWEDER ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE O. FLECK Counsel for the Crown: J. Michaels Counsel for the Defendant: G. Rivard Place of Hearing: Fort St. John , B.C. Dates of Hearing: September 11, 25, 2023 Date of Judgment: September 28, 2023

Overview [ 1 ] THE COURT: Today I am sentencing Dustan Sweder on the following charges: break and enter, committed on February 9, 2023, in Fort St. John, contrary to s. 348(1) (

b) of the Criminal Code ; and breach of probation order, also committed on February 9, 2023, in Fort St. John, contrary to s. 733.1(1) of the Criminal Code . These offences constitute Counts 2 and 3 of Information 38073-2-KC. The Crown has proceeded by indictment. Sweder has been in custody as a result of these offences since approximately February 27, 2023.

Sweder entered guilty pleas to both offences on June 12, 2023, and the matter was adjourned for the preparation of presentence and risk assessment reports prior to coming before me for sentencing. [ 2 ] There is a significant background to these offences, as they involved Sweder breaking into the offices of Wolverine Motors in Fort St. John, which is the workplace of Sweder's former intimate partner, Carly Compton, and leaving a series of notes and drawings in the workplace for Ms. Compton to find. In this sense, this was no ordinary break and enter.

Rather than having theft as the motive, which is typical for break and enter offences, this break and enter constituted the latest event in a series of harassing actions undertaken by Sweder towards Ms. Compton. As a result, it is important to outline the history of Sweder's harassment of Ms. Compton to provide proper context to my sentencing decision. Criminal History of the Accused Prior Offences Involving the Primary Victim of the Index Offences [ 3 ] Sweder and Ms. Compton were in a relationship for eight years until breaking up in August 2022.

At one point, they were engaged to be married, before the relationship fell apart. Since the relationship ended in August of last year, Sweder has not accepted that the relationship is over, as is detailed in the risk assessment report, even though he apparently initiated the break-up. This precipitated a series of criminal acts by Sweder towards Ms. Compton. [ 4 ] On August 11, 2022, Sweder was arrested for assault against Ms. Compton. Sweder was placed on a release order with a condition not to have any contact with Ms. Compton. Sweder then breached that no-contact condition on August 29, 2022.

On January 12, 2023, Sweder was sentenced to 24 days’ jail and probation for the release condition breach but the Crown stayed the assault charge at that point. However, in the meantime, Sweder had accumulated further charges involving Ms. Compton. [ 5 ] On September 7, 2022, Sweder committed criminal harassment of Ms. Compton by placing about 75 posters in public places around Fort St. John that contained messages for Ms. Compton asking to reconcile with him.

This matter was also sentenced on January 12, 2023 and resulted in 30 days’ jail, probation and some ancillary orders. [ 6 ] Then, on October 2, 2022, Sweder committed another breach of the release order by going to Ms. Compton's workplace. For this, he was sentenced to 30 days’ jail and probation and that sentencing also took place on January 12, 2023. [ 7 ] However, while in custody on October 6, 2022 as a result of the criminal harassment and breach of release order offences that I just mentioned, Sweder was ordered by a judge not to have any contact with Ms. Compton.

He breached that order the next day, on October 7, 2022, by sending six letters to Ms. Compton from Prince George Regional Correctional Centre. For this, he was convicted of disobeying a court order and he was sentenced to 50 days’ jail and probation, that disposition also taking place January 12, 2023. [ 8 ] As a result of these various charges, Sweder spent most of the fall of 2022 in custody. Thus, when he disposed of the aforementioned matters on January 12, 2023, he was in a time-served position and was released on probation on that day. That probation order contained conditions not to have contact with Ms.

Compton or go to her workplace. However, on January 14, 2023, two days after his release from prison, Sweder breached the probation order by telephoning Ms. Compton from Prince George. During this phone call, Sweder threatened suicide. This phone call resulted in his re-arrest and, on February 7, 2023, he was sentenced to 38 days’ jail and probation and was again released with time served. That, of course, was two days before Sweder committed the index offences for which I am sentencing him today, which took place on February 9, 2023.

Prior Offences Involving Other Victims [ 9 ] Prior to the various offences involving Ms. Compton, Sweder had compiled a criminal history with respect to his relationship with his former wife. Sweder had previously been married for 17 years and has a 19-year-old daughter from that relationship. Although his relationship with his ex-wife had been over for some time by then, Sweder was apparently still engaged in legal matters with his ex- wife in 2021. On August 1, 2021, he committed criminal harassment of his former wife's lawyer by making a series of threatening phone calls, emails, and voicemails.

This resulted in 14 days’ jail and probation. Then, on September 22, 2021, Sweder committed uttering threats and criminal harassment against his ex-wife. The threats were conveyed through his daughter, who was about 17 at the time. For this, he was sentenced to 20 days’ jail and probation.

Both of the matters that I just described involving his former wife and her lawyer were included in the matters that were disposed of globally on January 12, 2023. [ 10 ] Other than the offences that I have already outlined, Sweder has one other conviction, that being for mischief under $5,000 stemming from April 4, 2022, which involved deliberate damage to his employer's truck. For this, Sweder received 20 days’ jail and probation and this was also dealt with on January 12, 2023. Personal Circumstances of the Accused [ 11 ] Sweder's personal circumstances are relevant to his sentencing. He is 49 years old.

He did not grow up in Fort St. John but he has been a long-time resident of this community, he owns a house here and he worked for many years as the bakery department manager at the local Safeway store. [ 12 ] He is the product of divorced parents and seems to have had little relationship with his father before his father passed away from alcohol-related health problems about three years ago. As I previously mentioned, Sweder was married for 17 years and has a daughter.

Sweder self-reports as an alcoholic and said that this is a problem throughout his family. He reports that alcohol abuse played a role inthe offences for which he is being sentenced today because he was drinking with neighbours to celebrate his release from jail just prior tocommitting the break and enter at Wolverine Motors. [13] The psychiatric risk report details Sweder's mental health history. It also details alcohol and substance abuse; as well asdepression, suicidal ideation and suicide attempts since Sweder was first incarcerated in September 2022.

The report states that riskfactors for Sweder are his mental health and substance use, his preoccupation with Ms. Compton, his lack of insight into how hisbehaviours are perceived and his difficulties maintaining relationships. [14] Dr. Farstad, the risk assessment report writer, assesses Sweder as representing a high risk to reoffend by engaging in harassingcommunications with Ms. Compton because of his strong need to explain himself and to feel heard and understood. However, Dr.Farstad also opines that Sweder is unlikely to engage in serious or life-threatening harm towards Ms.

Compton or others. [15] The primary victim of the index offences is, of course, Ms. Compton. The break and enter at Wolverine Motors was all abouther. In the presentence report, Sweder is noted as saying that the break and enter was preceded by Sweder going for a walk down toWolverine Motors because he wanted to reminisce about the good times he, Ms. Compton and Ms. Compton's daughters used to havewhen they were together as a family. This precipitated the overnight break and enter at Wolverine Motors, where Sweder moved arounditems belonging to Ms.

Compton, including photographs, as well as leaving notes and hand-drawn pictures depicting him and Ms.Compton together. Victim Impact [16] Ms. Compton chose not to provide a victim impact statement for this Court proceeding here today. She did provide one for theprevious sentencing but she did not want to go through the process again this time around. However, she did provide comments to thePSR report writer. The PSR notes that she felt horrified when she arrived at work and realized that the break and enter had been abouther. She felt like it was Sweder sending her a message.

She was disturbed by the drawing of her and Sweder holding hands. Swederalso destroyed a piece of school artwork that Ms. Compton's daughter had done and that Ms. Compton kept at her office. [17] While Ms. Compton tried to work that day, she eventually described feeling like she could not breathe and she needed to go homefor the day. The next day at work, she then discovered another note from Sweder that had gone undiscovered the previous day and thismade her feel horrified all over again because she did not know, at that point, how many more notes she would be finding from Sweder.

She finds Sweder scary and feels he has not been deterred by any of his police or court involvement. She is scared for her safety,especially should Sweder finally realize that there is no chance of getting back together with her. [18] Another victim of the break and enter is Wolverine Motors and its owner, David Tibbetts. Mr. Tibbetts says that he and hisfamily have been stalked by Sweder on social media and he fears any potential random encounter that he might have with Sweder oncehe is released and should he be in Fort St. John. Mr.

Tibbetts also reported that the broken window that resulted from the break and entercost $120 to replace and he would like Sweder to make restitution for that amount. Sentencing Positions of the Crown and Defence [19] The Crown is seeking a sentence of two years less a day and three years’ probation. The defence is seeking a time-serveddisposition with probation.

As of today, Sweder has been in presentencing custody for 216 days of actual time served. [20] The Crown's position is that Sweder represents a high risk to reoffend, that he has inadequate insight into his offences and that hedoes not understand that Ms. Compton wants nothing to do with him. The Crown submits that no probation conditions would beadequate to protect Ms.

Compton or the community, so the emphasis should be on keeping Sweder separated from the community for aslong as possible, as permitted by law. [21] The defence, however, submits that the break and enter and probation breach were not crimes of violence and that Sweder hasbeen in custody for an adequate amount of time, given the 216 days of actual time he has already served on remand.

The defencesubmits that Sweder's mental health played a significant role in the offences and that jail should not be used as a social measure to dealwith persons’ suffering from mental illness, especially in this case, since Sweder has already been in custody for a significant time and hehas used that time in custody to avail himself of services available while on remand. [22] In support of its position, the Crown has submitted two authorities for my consideration. The first is R. v. McCannell, 2022ABPC 251, a decision of the Alberta Provincial Court, as it was then known. The second authority is an

article entitled, Intimate PartnerCriminal Harassment Through a Lens of Responsibilization, 2015 5239, authored by Isabel Grant and published in theWinter 2015 edition of the Osgoode Hall Law Journal. [23] McCannell is a sentencing decision for the offence of criminal harassment, as opposed to break and enter, which is what I amsentencing Sweder on today. Nonetheless, as I have said, the break and enter committed by Sweder was not a typical break and enter. Instead, it involved targeting Ms. Compton's psychological wellbeing.

As a result, the offences committed by Sweder, especially whenconsidered in the context of his criminal antecedents, is very much in the nature of harassment.

As a result, there are severalobservations made by Judge Hatch in McCannell that I find persuasive and which I am applying to my sentencing decision today forSweder. [24] The first is with respect to the role that mental health plays in the sentencing process; the second is that harassment of this sort isa form of gendered crime; the third is that the sentencing range, at least in Alberta, is up to 24 months imprisonment for offences of thisnature; and finally, that denunciation and deterrence are the primary sentencing considerations for an offence of this nature.

Analysis [25] This, is my analysis of what a fit sentence is for Sweder.

Nature of Offences [ 26 ] First, I must look at the nature of the offences themselves. As I have said, while the offences are break and enter and breach of probation, the true nature of the offences is that they constitute an emotional targeting of Ms. Compton. In light of the series of similar offences committed by Sweder in the months leading up to the break and enter and the fact that Sweder had just been released for the second time two days prior to the break and enter, I view the nature of the offences to be a serious aggravating factor. [ 27 ] The break and enter of Ms.

Compton's workplace was only the last in a series of offences that targeted Ms. Compton's emotional wellbeing. The series of offences escalated over time, beginning with breaches of no-contact conditions; escalating to leaving disturbing and humiliating posters all over Fort St. John; and then sending letters from prison to Ms. Compton, in violation of court orders. [ 28 ] It is true, as the defence has pointed out, that these are not violent offences, in the strictest sense, because they do not involve any form of physical assault of Ms. Compton.

However, the psychological impact of offending that is harassing in nature cannot be ignored. Ms. Compton reports that the break and enter had a significant effect on her. It disturbed and horrified her and that culminated in physical effects, such as feeling like she could not breathe. From this, I can infer that she has sustained a significant psychological trauma from Sweder's series of offences, culminating with the break and enter. This is the true nature of the offences for which I am sentencing Sweder today.

Lack of Insight [ 29 ] Another sentencing factor is Sweder's lack of insight into how his offending is impacting Ms. Compton. Although he expressed remorse to the two report writers and he has done so again today in open court, Sweder also went on to tell the report writers that he explains his actions as romantic gestures and that he just wanted Ms. Compton to understand him; I find that, in this way, he minimizes his actions. In the PSR, Sweder states that he is shocked that the justice system would feel that he is a danger to Ms. Compton because he has no violent tendencies.

This attitude betrays a view that the only form of violence is physical violence. [ 30 ] Sweder seems unable to understand that his actions have caused psychological harm to Ms. Compton and that harm is real. Sweder's lack of understanding of the effects and consequences of his actions is also reflected in the series of letters that Sweder posted to the Fort St. John Crown Counsel Office.

For example, in one letter, Sweder writes, "You will have the results of my psychological evaluation which I know will exonerate me of any physical or violent transgressions." This reinforces my finding that Sweder believes that he has caused no harm, simply because he has not physically assaulted Ms. Compton. Furthermore, the reports give me no confidence that Sweder understands that his relationship with Ms. Compton is over and that she does not want any interactions with him. Overall, my finding is that Sweder has poor insight into his offences and the harm they have caused.

Previous Victims [ 31 ] Another factor to consider is that Ms. Compton is not the only person who has ever attracted this type of inappropriate behaviour from Sweder. A similar set of offending was also targeted at his former wife and her lawyer, albeit for a shorter duration and presumably for different reasons; but when I consider Sweder's pattern of offending against Ms.

Compton, combined with his overall pattern of offending, including against his former wife, and combined with the comments that he made to the report writers and in his Crown counsel letters, I am left with a strong apprehension that, for Sweder, his view is that, since his actions do not constitute physical violence, there is nothing really serious about his actions at all. This does not bode well for Sweder's rehabilitative prospects, as is recognized in Dr. Farstad's assessment that Sweder represents a high risk to reoffend.

Mitigating Factors [ 32 ] There are, however, also mitigating, or at least potentially mitigating, factors for me to consider. [ 33 ] The first mitigating factor is that Sweder pleaded guilty and that he did so at an early stage of the proceedings. [ 34 ] The second potentially mitigating factor is that mental health does seem to have played a role in the offences. Thus, I will analyze the issue of Sweder's mental health further. A passage from C.C.

Ruby's treatise entitled, Sentencing, appears in the McCannell decision, and I am going to quote from that: It is, therefore, clear that a sentence can be reduced on psychiatric grounds in two instances: (1) when the mental illness contributed to or caused the commission of the offence; or (2) when the effect of imprisonment or any other penalty would be disproportionately severe because of the offender's mental illness. … [ 35 ] From this, it can be seen that, in some circumstances, mental health can result in a reduction of sentence.

In Sweder's case, he has a longstanding substance abuse disorder and he suffers from depression and, at times, has suffered from suicidal ideation. If Sweder's offending against Ms. Compton had constituted one or two relatively isolated events involving an acute mental health episode, I would be much more inclined to view such a factor as reducing Sweder's moral blameworthiness for his offences.

However, in this case, the pattern of offending has been prolonged over many months, over several arrests, over many court-imposed conditions, and has resulted in significant time spent in custody before release and then the commission of the index offences. In my view, this represents concerted, targeted, deliberate behaviour that has not been deterred by any of the criminal justice system's previous attempts at intervention. [ 36 ] While mental health issues may be present in Sweder's offending, my view is that the relentless pattern of his offending against Ms.

Compton cannot be explained as being caused by substance use or by depression or that these are the significant factors in causing that offending, even if these factors are present. As a result, I do not find that Sweder's mental health issues play a significant role in reducing his moral culpability. [ 37 ] Further, I have no evidence before me that Sweder would be disproportionately impacted by any imprisonment or other sentence I may impose on him today due to his mental health issues. I am told he has complied with the rules while in custody and that he availed

himself of programs while in custody. This situation does not represent one of adverse effects that I would be concerned about due to mental health issues. Denunciation and Deterrence / Likelihood to Re-Offend / Protection of the Victim [ 38 ] As is noted in McCannell , the primary consideration when sentencing an offender for an offence that is in its nature harassment is denunciation and deterrence. In this case, I find specific deterrence to be especially important. Sweder has already spent previous time in jail and has been on court-ordered no-contact conditions with respect to Ms. Compton.

None of that worked. Two days after his release in January, he contacted Ms. Compton. He then spent more time in jail. That did not work because, two days after his next release in February, he broke into Ms. Compton's place of work as a way of trying to communicate with her. [ 39 ] Given this pattern, I have a strong apprehension that Sweder's obsessive behaviour will lead to him seeking out Ms. Compton again and, in considering the PSR and risk assessment, I am not confident that he has gained significant insights while he has been in custody since February that would mitigate this view to any degree.

Therefore, I find that Ms. Compton's safety will be at risk when Sweder is released. As a result, the only real way that I can deter Sweder from reoffending is by keeping him incarcerated for as long as is reasonable under the law and then imposing a long-duration probation order with strict conditions targeted at protecting Ms.

Compton as best as possible once Sweder is released, in hopes that this will dissuade Sweder from further such actions. [ 40 ] Although Sweder's early guilty plea may have entitled him to some mitigation of sentence in other circumstances, I find that whatever mitigating effect flows from the guilty pleas, in this case, is overwhelmed by the need to protect Ms. Compton. Sentencing Decision [ 41 ] To this end, I substantially accept the Crown's submission on sentencing. This will include a probation condition that Sweder not come within 50 kilometres of Fort St. John.

I am fully cognizant that this is a major imposition on Sweder's liberty. He owns a house in Fort St. John and the city has been his home for at least two decades. However, in my view, this condition is necessary to protect the psychological wellbeing of Ms. Compton, as lesser no-go conditions that have allowed Sweder to return to Fort St. John have not worked. It will also include a counselling provision and a no-alcohol or drugs condition.

The reports before the Court make several recommendations with respect to counselling and substance use and I accept those recommendations. [ 42 ] As a result of the foregoing, I sentence Sweder as follows. [ 43 ] Mr. Sweder, on Count 2, that is the break and enter count, I sentence you to imprisonment of two years less a day, which is 729 days.

You will receive credit for 216 actual days spent in custody, credited at time-and-a-half, for a total credit of 324 days; that will leave you with 405 days remaining to be served. [ 44 ] In addition, I am imposing a probation order for a duration of three years, which will follow your period of incarceration, with the following conditions. [ 45 ] You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or your probation officer in advance of any change of name or address and promptly notify the court or the officer of any change in employment or occupation. [ 46 ] You must report in person to a probation officer at the Prince George Community Corrections Office at 250 George Street within two business days after your release from custody, unless you have obtained before your release from custody written permission from a probation officer to report elsewhere or within a different timeframe.

After that, you must report as directed by your probation officer. [ 47 ] When first reporting to a probation officer, you must provide them with the address or location where you live and regularly sleep and your phone number, if you have one. You must not change them without notifying your probation officer in writing at least two days before making the change. [ 48 ] You must not be within a 50, five-zero, kilometre radius of Fort St. John, unless you have obtained an order of this Court permitting you to be within a 50-kilometre radius of Fort St.

John. [ 49 ] You must have no contact or communication, directly or indirectly, with Carly Compton and David Tibbetts. [ 50 ] You must not go to or be within 250 metres of any place where Carly Compton or David Tibbetts lives, works, attends school, worships, or happens to be. If you see either of them, you must leave their presence immediately without any words or gestures. [ 51 ] You must not go to or be within 250 metres of Wolverine Motors located at 10908 100th Avenue, Fort St. John, B.C. [ 52 ] You must pay restitution in the amount of $150 to the clerk of the court for the benefit of David Tibbetts.

Your restitution must be paid by December 31, 2025. [ 53 ] You must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your probation officer. [ 54 ] You must not possess or consume alcohol, drugs, or any other intoxicating substances, except with a medical prescription. [ 55 ] You must not possess, directly or indirectly, any weapon as defined by the Criminal Code , including: firearms and ammunition; crossbows, prohibited or restricted weapons or devices, or explosive substances; anything used, designed to be used, or intended for use in causing death or injury to any person, or to threaten or intimidate any person; any imitation firearms or weapons, including any compressed airguns, BB or pellet guns; and any related authorizations, licences, and registration certificates and you must not apply for any of these.

[ 56 ] You must not possess any knives or any other sharp-bladed instrument used, designed to be used, or intended to be used to cut things, except as follows: you can possess a knife when preparing and eating food and with the prior written permission of your probation officer. If you are given permission, you must carry it with you in paper or electronic format at all times when you possess any of these items outside the place where you are living. [ 57 ] On Count 3, that is the count for breach of probation order, I sentence you to 90 days’ jail. This will be concurrent to Count 2.

You will receive credit for 90 days already served, thus leaving zero further days to be served on Count 3. [ 58 ] I waive the victim of crime surcharge on both Counts 2 and 3, as you are currently in custody and have been for some time. [ 59 ] And, Crown, are we dealing with Counts 1 and 4? [ 60 ] CNSL J. MICHAELS: Yes, Crown directs a stay of proceedings. [ 61 ] THE COURT: We will record the Crown’s direction for a stay of proceedings on Counts 1 and 4. [ 62 ] Counsel, is there anything else we need to deal with today? [ 63 ] CNSL G.

RIVARD: No, Your Honour, not from my part. [ 64 ] THE COURT: All right, and Madam Clerk, I will require a signature on that probation order. (REASONS FOR SENTENCE CONCLUDED)