R. v. Boone, 2013 BCSC 1306

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Boone, 2013 BCSC 1306 Date: 20130702 Docket: 151967-2 Registry: Victoria Regina v. Johnathan Michael Boone Before: The Honourable Mr. Justice Bracken Oral Reasons for Sentence (In Chambers) Counsel for the Crown: D. M. Scanlan Counsel for the Accused: M. J. Munro Place and Date of Trial/Hearing: Victoria, B.C. July 2, 2013 Place and Date of Judgment: Victoria, B.C. July 2, 2013 [ 1 ] THE COURT: Mr.

Boone pled guilty on December 19, 2012, to a charge of assault causing bodily harm. [ 2 ] The offence occurred in Central Saanich on the evening of November 5, 2010, now approximately two years and eight months ago. He was released on strict bail conditions and has been free on bail since his release, and that time has passed without any incident. [ 3 ] The facts of the case are disturbing. Mr. Boone had attended a meeting of Alcoholics Anonymous in Central Saanich earlier in the evening, but was asked to leave.

While there, he had been intoxicated or at least under the influence of alcohol, and belligerent with some of the others in attendance. [ 4 ] He left the meeting on foot and encountered the victim, who was walking near her home. For reasons he cannot adequately explain, he attacked her. She was not known to him and he had not said anything to her, nor had she said anything or given him any reason that he should assault her. [ 5 ] She was punched several times in the face. She was knocked to the ground and either punched or kicked while she was on the ground.

She suffered a broken nose, black eyes, and bruises to her face and to her arm. [ 6 ] The victim was 47 years old at the time, and she was able to call the police with her cellphone, but the attack had ended by the time they arrived; however, the accused, Mr. Boone, was located with the assistance of a police service dog a short distance away.

Upon his arrest, he was combative and threatening to the officers who dealt with him. [ 7 ] In the circumstances, given the record of the accused, which I will deal with in a moment, the Crown seeks a jail sentence in what was described as a range of low federal penitentiary time, which is in the range of two or somewhat over two years in prison. [ 8 ] Counsel for the defendant submitted that a suspended sentence plus three years of probation is an appropriate sentence in what he described as the unique circumstances of this case. [ 9 ] Mr. Boone is 40 years of age and employed full-time as a landscape gardener.

He lives in the Victoria area with another supportive individual and he is well supported by his parents and family, as well as other members of the community; his parents and friends are present in court with him. [ 10 ] He had what appears to be a good, solid upbringing and attained an adequate education. He took some post-secondary education and received a diploma in golf course management. He currently earns a steady income and his only debt is a student loan.

His employment history has been consistent, with the exceptions of time that he has spent in custody. [ 11 ] His health is generally good; however, he did suffer a head injury in 2002 that left him unconscious for several hours. There is some suggestion that the injury may have resulted in a greater propensity for violence when he does consume alcohol. [ 12 ] His past problems with the law have apparently all been associated with his alcohol problem. His criminal record supports that conclusion. His first conviction at age 18 was for impaired driving. He had a second conviction for impaired driving in 1995.

[13] In 2004, he was convicted for assault under s. 266 of the Criminal Code and given a suspended sentence plus nine months ofprobation. In December of 2005, he was again convicted of impaired driving and failure to provide a breath sample. As well, he wasconvicted of assault causing bodily harm and given a six-month conditional sentence order. [14] In 2006, he was convicted of assault under s. 266, given a nine-month conditional sentence order. In 2007, he was convicted oftwo charges of assault, given a six-month conditional sentence order plus probation of 12 months, and a firearms prohibition.

Inaddition, he was given a six-month conditional sentence, which I presume was concurrent, for an assault on a peace officer arising, Igather, out of the same circumstance. There was another conviction for assault under s. 266. There were also convictions for failing tocomply with conditions of an undertaking given by an officer in charge, obstruction of a peace officer, and failure to comply with arecognizance, and obstructing a peace officer. [15] In 2008, he was convicted in Nanaimo of mischief under $5,000, for which he was fined $200.

In June of that year, 2008, hewas convicted of assaulting a peace officer and given a 45-day jail sentence. [16] In August of 2008, he was convicted of assault under s. 266, and given a 60-day sentence with credit for 15 days of pre-sentencecustody, plus probation of nine months. [17] In 2010, he was convicted of assault under s. 266, assault causing bodily harm, failing to comply with a probation order, failingto comply with a recognizance, and assaulting a peace officer. He was fined on the assault peace officer charge in the amount of $500.

He was sentenced to a three-month conditional sentence order with credit for eight months of pre-sentence custody, plus 18 months'probation, and again a firearms prohibition. [18] That was the last of the convictions of the accused prior to this one. [19] It is plain that the defendant, Mr. Boone, has a serious history of assault convictions and a serious history of substance abusewith respect to alcohol. The Crown quite rightly points to the need for denunciation of his conduct and submits that the principles ofdenunciation and deterrence should be paramount in the sentence imposed in these circumstances.

Crown counsel also emphasized theharm caused by the defendant in the commission of this offence. [20] A victim impact statement was placed before the court, outlining the impact of the assault upon the victim. The victim notesthat she continues to have headaches that she associates to the injuries she received, and that she suffers from anxiety, fear of beingapproached or touched unexpectedly, and does not like to be in the close proximity to other people. She suffers from insomnia at timesand fears for her safety.

She says her appearance has changed and she has taken and continues to take counselling, and has at least onceattended at emergency psychiatric services. It is clear from the victim impact statement that she continues to experience the effects ofthe assault, and that she remains both unforgiving and angry as a result of what happened to her. [21] Since Mr. Boone's release on bail, he has complied with the strict conditions that were imposed. He has maintained steadyemployment. He has not, so far as anyone knows, consumed any alcohol.

He has successfully completed residential treatment forsubstance abuse, and has consistently followed through with group attendance at counselling sessions. His parents say that there has beena significant change in him since this incident. They say the change in his demeanour and personality has been dramatic since this event. [22] He is active in the Alcoholics Anonymous community and he is well liked and respected by his peers in that community.

Several people who wrote letters on his behalf expressed surprise when they found out about the charges he is facing. [23] He resides in the community with a man who is also involved in the Alcoholics Anonymous community and who is supportiveof Mr. Boone and provides him with stable accommodation. Mr. Boone hopes to obtain his own accommodation at some point in thenot-too-distant future. He has obviously put off any decision in that aspect of his life pending the outcome of this matter. [24] All of the people who wrote letters indicate that Mr. Boone is totally committed to sobriety in his current circumstances.

Itappears to all of them that he has adopted a course of conduct and is on a track that will maintain a life without alcohol and, given thatmost of his difficulty with the law, if not all of it, has been associated with alcohol, hopefully a life without any further attention from thecourts. [25] Sentencing is often a difficult function for the courts. Clearly this offence is serious and caused the victim considerable andlong-lasting harm. The nature of the offence, combined with the defendant's history of offending, result in a focus on the principles ofdenunciation and deterrence.

However, his background, strong family and community support, the fact of his employment and the stepshe has taken to rehabilitate himself result in a conflict between the principles of denunciation and deterrence and the principle ofrehabilitation. [26] The elimination of the availability of conditional sentence orders for offences of this nature perhaps reinforces the principles ofdenunciation and deterrence.

Indeed, but for the evidence of now almost three years of sobriety and good conduct, the need fordenunciation and specific deterrence would undoubtedly be the paramount factors in this sentencing. [27] The defendant seems remorseful and demonstrated his remorse and regret in his comments to the court. He seems committed tothe continuation of his current path. [28] The obvious difficult aspect in this case is which of the conflicting principles of sentencing should govern; those ofdenunciation and deterrence, or that of rehabilitation. [29] Defence counsel referred me to the decision of R. v.

Cain, (BC CA), [1993] B.C.J. No. 1369 (B.C.C.A.). Inthat case, an accused with an extensive and very serious record received a suspended sentence on a charge of robbery. Thecircumstances of the robbery were unremarkable. Nevertheless, given the history of the accused in that case, the Crown sought asentence of nine to 12 years. The accused was at the time, because of the parole revocation upon his arrest for the offence of robbery,serving a sentence that still had 14 months to run. The accused was a heroin addict.

[ 30 ] The court was satisfied, upon the evidence presented at the sentencing hearing, that there had been a significant change of behaviour on the part of the accused. That was supported by favourable evidence and material that were filed at the sentencing hearing, including the supportive evidence of an experienced police officer. The court referred to the comments of Mr. Justice Wood, as he then was, in the case described as R. v. Preston (citations not given), where Mr.

Justice Wood stated: There can be few tasks more difficult than that of assessing the sincerity of an offender's stated desire to rehabilitate. Those who offer the assertion are often masters of deception and manipulation. All available evidence, including personal observations of the individual in question, must be carefully sifted. Sometimes the opportunity to look at the claimant in the eye will prove the decisive clue. Furthermore, even where such desire is genuine, the factors which make the goal possible or impossible to achieve will be as many and as varied as the offenders themselves.

No precise or scientific formula exists by which the reasonable risk can be separated from the fatuous or the impossible. The assessment which must be made is personal to the individual to whom it is meant to apply. In short, the task is one eminently suited for the role of trial judge. [ 31 ] The court went on to note at para. 11, when upholding the sentence that was imposed by the trial judge, that is a suspended sentence, Mr.

Justice Toy said: … I do not believe that incarceration is a prerequisite in any case of convictions for serious crimes even as serious as this one was, namely, robbery, where there are real and substantial grounds to believe a person of previously bad character has and can effect his own rehabilitation.

Sentencing judges have a discretion to give paramountcy to the principle of rehabilitation. [ 32 ] This case is additionally difficult because, while the accused has had many convictions, none of them are convictions which seem to attest to his bad character as much as to his inability to control his behaviour once he has consumed any amount of alcohol. [ 33 ] The defence says that the advantage of a suspended sentence in a case such as this, and by that I mean a case where an individual is working and employed, has a decent work history, has a solid education and community support from parents and friends, is that he can be supervised closely for a period of three years, rather than simply incarcerated and run the risk of upsetting whatever has been accomplished thus far by a jail sentence.

The conditions of supervision can be strict and can be tuned to the circumstances of the offender. [ 34 ] In addition, there is room to vary those conditions in appropriate circumstances. [ 35 ] It is to be remembered that a suspended sentence is not a discharge or simply a sentence of an individual to a period of probation or supervision. While the concept has fallen into disuse over the past several decades, the nature of such a disposition, which is still contained in the Criminal Code under s. 731 , is a suspension of the passing of sentence.

The facility that is provided by the law is that there is facility in the court to, at any time up until the expiry of the supervisory term imposed by the court, bring the accused back for the imposition of sentence, not for the breach of condition or the violation of whatever provisions are contained in the supervisory order, but for sentence on this offence. That step is rarely, if ever in modern times, taken.

Perhaps there are concerns to whether the provisions would withstand a Charter challenge or perhaps because of the imposition and creation of many flexible remedies for the breach of conditions of probation. [ 36 ] The principles of s. 718 are well known. Those are the principles that bind the court and guide the court in the imposition of sentences. In addition, there are other sentencing principles that are set out in s. 718.2 that give further guidance to the court.

Included among those is this provision set out at s. 718.2(e), where the provision states: ... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 37 ] Here the aggravating factors, of course, are the nature of the offence and the serious consequences to the victim, the past history of Mr. Boone, given his history of several convictions for similar offences, the fact that this was a random attack, and in addition, the fact that Mr.

Boone was still serving a probationary term at the time these offences took place. [ 38 ] The mitigating factors are that the accused has taken many concrete and well-documented steps towards his own sobriety and towards the maintenance of that sobriety. He has maintained steady employment.

He has accepted the need for counselling and participated regularly and faithfully in that counselling. [ 39 ] He has expressed remorse that is documented not only through his own comments to the court, but through the comments of his parents and others who have written letters on his behalf. [ 40 ] In these circumstances, while I am mindful of the principles of denunciation and deterrence, it seems preferable, in my view, to impose the longest term of supervision that is possible in the law, and to continue the path the accused has been on.

He has demonstrated in the almost three years now since the date of this offence, that he can maintain sobriety and that he can abide by supervisory conditions.

Much, of course, depends on him. [ 41 ] It is a calculated risk, of course, that the court takes in a case of this nature by trying to assess whether or not the supervisory terms that are in place will be sufficient to prevent a repeat of the offence or any offence such as the one that he is facing at the moment. [ 42 ] In the end, I have chosen to follow the example set out by the sentencing judge in the case of Cain , and will impose a suspended sentence with a term of supervision of three years. [ 43 ] Mr. Boone, would you stand up, please?

By imposing a suspended sentence, I want to emphasize to you and you must be warned that if you violate any of the terms of the supervision or if you fail to keep the peace and be of good behaviour while you are on the supervisory order, that you will be brought back before me to be sentenced on this offence. There may be other consequences to your behaviour if it violates the terms of the probation order, but you will be sentenced on this offence. If that is something that meets with a Charter challenge, we can deal with that at the time that it comes, but that is my direction and it will be part of the order.

[ 44 ] In addition to keeping the peace and being of good behaviour, you will report to a probation officer not later than 4:00 p.m., July 3, 2013; thereafter, as and when directed by the probation officer. [ 45 ] You will notify the probation officer of your current residential address and you must not change that address or any subsequent address without the prior written permission of your probation officer. [ 46 ] You will have no contact or communication, directly or indirectly, with Mary Anne Benson, who is the victim in this case. [ 47 ] You shall not possess or consume any alcohol or any controlled drug or substance as defined in s. 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician. [ 48 ] You shall not enter any liquor store, beer and wine store, bar, pub, lounge, or other business premise where the primary commodity sold is liquor. [ 49 ] You shall not possess any weapons as defined in s. 2 of the Criminal Code or imitation weapons, including any firearms, imitation firearms, starter pistol, pellet pistol, explosive substances, or ammunition. [ 50 ] You shall not possess any knives, save and except for the immediate preparation and/or consumption of food, or whilst engaged in your employment. [ 51 ] You shall attend for, participate in, and successfully complete any assessment, counselling, or treatment program as directed by your probation officer, included but not limited to the forensic assessment and treatment and/or full-time attendance at a residential treatment facility for alcohol and drug abuse, and in any case you must abide by all rules and regulations of such assessment, counselling, or treatment program. [ 52 ] Those are the conditions that were suggested in the pre-sentence report, Mr.

Scanlan. Any further conditions? [ 53 ] MR. SCANLAN: No, thank you, Your Honour -- thank you, My Lord, sorry. [ 54 ] THE COURT: Are you asking for a DNA order in this case? I did not see on the record that one had been imposed. [ 55 ] THE ACCUSED: I already had one, so … [ 56 ] MR.

SCANLAN: In the circumstances, I think, with the number of offences, yes, My Lord, it would be appropriate in these circumstances. [ 57 ] THE COURT: I will make the order that he provide a DNA sample within, say, 10 days of today's date, at the direction of the probation officer, you shall report to a police station or sheriff's officer to do that. In addition, there will be a mandatory -- I think it is a discretionary firearms prohibition under s. 110 or 109. [ 58 ] MR. SCANLAN: It is discretionary, yes. [ 59 ] THE COURT: So discretionary under s. 110 of the Criminal Code .

You are prohibited for a period of 10 years from possession of any firearm, ammunition, explosive substance. “J. K. Bracken, J.” The Honourable Mr. Justice Bracken