R. v. Knelsen, 2013 BCSC 1379

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Knelsen, 2013 BCSC 1379 Date: 20130610 Docket: 153765-2 Registry: Victoria Regina v. Joseph Knelsen Restriction on Publication: A publication ban has been imposed under s. 486.5 restricting the publication, broadcasting or transmission in any way of evidence that could identify witnesses, referred to in this judgment by the initials D.F., L.C. and S.H. Thispublication ban applies indefinitely unless otherwise ordered. Before: The Honourable Mr. Justice G.R.J. Gaul Oral Reasons for Sentence Counsel for the Crown: S. RupertusT.

HodgeCounsel for the Accused: P. FirestoneD. QuantzPlace and Date of Trial/Hearing: Victoria, B.C. June 10, 2013Place and Date of Judgment: Victoria, B.C. June 10, 2013 [1] THE COURT: Mr. Knelsen was charged that on or about 7 March 2011, he committed the following criminal offences: Count 1: the first degree murder of Gordon Brian Berg, contrary to s. 235(1) of the Criminal Code of Canada; Count 2: breaking and entering a dwelling house and committing an indictable offence, contrary to s. 348(1)(

b) of the Code; Count 3: assaulting L.C. while using a weapon, to wit: bear spray, contrary to s. 267(

a) of the Code; Count 4: unlawfully confining L.C. and S.H., contrary to s. 279(2) of the Code; Count 5: assaulting S. H., contrary to s. 266 of the Code; and Count 6: uttering a threat to cause death or bodily harm to S.H. and L.C., contrary to s. 264.1(1) of the Code. [2] Mr. Knelsen entered not guilty pleas to all of the charges, and his trial before a jury began on 27 May 2013. [3] On 3 June 2013, after hearing approximately five days of the prosecution's evidence against him, Mr. Knelsen indicated hisdesire to plead guilty to the second degree murder of Mr. Berg.

This proposed guilty plea was made pursuant to s. 606(4) of the Code andwith the consent of the Crown. [4] In the absence of the jury, the Crown and the defence made submissions on the proposed guilty plea and jointly filed adocument entitled “Agreed Statement of Facts with Respect to Guilty Plea”. Based upon the agreed statement of facts and thesubmissions of counsel, I was satisfied that a proper factual foundation existed for me to find Mr. Knelsen not guilty of the first degreemurder set out in Count 1 on the indictment, but guilty of the lesser and included offence of second degree murder.

Following theprocedure set out in R. v. Rowbotham, (SCC), [1994] 2 S.C.R. 463, I discharged the jury, and accepted Mr. Knelsen’sguilty plea to second degree murder. [5] We are now at the sentencing stage of this proceeding. Having been convicted of second degree murder, Mr. Knelsen faces amandatory sentence of imprisonment for life, pursuant to s. 235(1) of the Code. [6] There remain two issues to determine before this tragic case can come to a close. The first is the determination of the period oftime before which Mr. Knelsen can apply for parole.

The second relates to a number of uncontested ancillary orders the Crown seeks. I

will deal with the period of parole ineligibility question first. [ 7 ] Pursuant to ss. 745 and 745.4 of the Code , the court must set a period of parole ineligibility of at least 10 years and not more than 25 years for an offence such as the one that is before me.

Section 745.4 of the Code provides: 745.4 Subject to

section 745.5, at the time of the sentencing under

section 745 of an offender who is convicted of second degree murder, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to

section 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances. [ 8 ] The jury did not provide a parole ineligibility recommendation in Mr. Knelsen’s case because that issue devolved to me when I accepted his guilty plea and convicted him of second degree murder. [ 9 ] The Crown and the defence have jointly submitted that Mr. Knelsen's parole ineligibility period be set at the statutory minimum of 10 years.

The “Agreed Statement of Facts on Sentencing Hearing” that has been filed as an exhibit on sentencing provides the following factual foundation for this hearing: Initial Police Involvement 1. On March 7, 2011, at 10:50 p.m., West Shore RCMP Detachment responded to a 911 call regarding a homicide at […] Drive in Langford, British Columbia (the “Residence”). 2. The report of the homicide was made by D.F., in Ahousat, British Columbia, who had received a telephone call from his wife S.H. 3. D.F. and S.H. were the owners of the Residence. 4.

Members of West Shore RCMP attended the Residence on March 7, 2011 at approximately 11:00 p.m., and found a male identified as Gordon Brian Berg, 53 years old, deceased in the kitchen of the main floor suite, lying in a pool of blood. 5. There was blood spatter and bear spray residue located in the main floor suite kitchen. Autopsy 6. An autopsy revealed that the cause of Gordon Berg’s death was blunt force impacts to his head and sharp force impacts to his chest. Gordon Berg had sustained at least 10 blunt force impacts to the head.

One injury to the left side of the head behind his ear was the most severe, resulting in a fracture to the skull causing pieces of the skull and hair to become embedded in the brain. 7. Gordon Berg had suffered 5 stab wounds to his body, including two stab wounds that passed through and injured the chest wall. One of the stab wounds injured Gordon Berg’s heart. Gordon Berg also received stab wounds to the back of his neck and left forearm, and 7 cuts to his arms and face. Joseph Knelsen’s Actions 8. In approximately the Fall of 2010, Joseph Knelsen moved into the Residence.

He was invited to stay by L.C. and Gordon Berg. 9. Joseph Knelsen had a brief intimate relationship with the landlady of the Residence, S.H., which she ended mid-February at which time she asked him to leave the Residence. 10. On February 17, 2011, there was a dispute between Joseph Knelsen and L.C. and Gordon Berg over the right of Joseph Knelsen to have a1992 Hyundai taken from the Residence to be crushed and sold for $100.00. 11. After Joseph Knelsen left the Residence, he made a series of telephone calls and text messages, some of which were unwanted, to the occupants of the Residence. 12.

On Sunday, March 6, 2011, at approximately 11:16 a.m., Joseph Knelsen purchased a 225 gram can of Yukon bear spray from the Capital Iron Store located on Store Street in Victoria, B.C. 13. Joseph Knelsen borrowed some tools from his employer on March 6, 2011. Some of those tools were found outside the Residence. Particulars of the Offence 14. Joseph Knelsen was dropped off near the Residence by a friend at approximately 11:30 p.m. on March 6, 2011. Joseph Knelsen had a bag with him when he was dropped off. 15.

Joseph Knelsen brought to the Residence a fabric mask that he had made, a hammer, other tools and bear spray. 16. While outside the Residence Joseph Knelsen tampered with the hydro, cable and telephone connections of the Residence. 17. In the early morning hours of March 7, 2011, Joseph Knelsen broke into the suite occupied by Gordon Berg and Gordon Berg’s spouse L.C. 18. Joseph Knelsen broke through the bedroom window to the suite using a hammer. He was armed with a hammer and bear spray.

Joseph Knelsen’s homemade mask partially obscured his face. He was also wearing gloves. 19. Joseph Knelsen sprayed L.C. in the face with the bear spray. She made her way upstairs to get away. 20. Joseph Knelsen discharged the bear spray in the kitchen area of the main floor suite. 21. Joseph Knelsen sprayed Gordon Berg with bear spray. Joseph Knelsen killed Gordon Berg in the kitchen of the main floor suite with a knife and a hammer. 22. After killing Gordon Berg, Joseph Knelsen went upstairs still armed with the hammer that was now covered in Gordon Berg’s blood.

Once upstairs he hammered through the locked master bedroom door and then hammered through the locked ensuite bathroom door where S.H.and L.C. had sought refuge. 23. S.H. opened the door once the hammer started to come through the door. That is when S.H. and L.C. realized that the assailant was Joseph Knelsen. 24. Joseph Knelsen put his hand on S.H.’s neck in anger. 25. S.H. calmed Joseph Knelsen down and then crack cocaine was consumed in the upstairs bedroom by the parties. 26. After Joseph Knelsen left the Residence on March 7, 2011, he took the hammer and bear spray with him and disposed of them. 27.

Joseph Knelsen was arrested on March 8, 2011 at approximately 7:11 a.m. He was sober, cooperative and uninjured but for a small cut to his right hand knuckle. Upon being driven back to the West Shore RCMP detachment, Joseph Knelsen said: “How is S.H. and L.C. doing?” and “Well I have feelings for S.H.” [ 10 ] I have also taken note of the following facts contained in the Agreed Statement of Facts with Respect to Guilty Plea: *** 14. Joseph Knelsen intentionally killed Gordon Berg in the kitchen of the main floor suite with knife and a hammer after Gordon Berg had picked up a knife.

The acts of stabbing and hitting Gordon Berg in the kitchen were unlawful. 15. Joseph Knelsen meant to cause the death of Gordon Berg, or meant to cause bodily harm which he knew was likely to cause death and was reckless whether death ensued or not. 16. Although Joseph Knelsen had consumed some illicit substances, the ingestion was not sufficient to negate the requisite intent for second degree murder. *** The Purpose and Principles of Sentencing [ 11 ] In determining the appropriate length of Mr.

Knelsen's parole ineligibility period, I am to consider the provisions set out in s. 745.4 as well as the purpose and principles of sentencing prescribed in ss. 718 to 718.2 of the Code .

Section 718 explains the purpose of sentencing as follows: 718. 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: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 12 ] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of the responsibility of the offender. [ 13 ]

Section 718.2 of the Code mandates that a sentencing court take into account any relevant aggravating or mitigating circumstances relating to the offender or the offences when determining an appropriate sentence. [ 14 ] Given the sentence in this case is a mandatory one of life imprisonment, the question before me is really how much of that sentence should Mr. Knelsen serve before he is able to apply for parole? [ 15 ] I have before me a number of victim impact statements prepared by various members of the Berg family.

These letters eloquently and in a heartfelt manner describe the sorrow and loss the Berg family struggles with as a result of Mr. Berg’s tragic death. Gordon Brian Berg was loved by his family and they clearly miss him.

[ 16 ] In one sense, sentencing is a balancing act involving the various purposes of sentencing that I have already mentioned. While deterrence, denunciation and the protection of the community are the key sentencing considerations in this case, Mr. Knelsen’s potential rehabilitation is also something that needs to be kept in mind as well. [ 17 ] Mr. Knelsen is 47 years old and he is before this court as a first-time offender. He comes from very modest means and only has a grade 7 education.

His employment history consists principally of being a manual labourer and a truck driver. [ 18 ] The letters of reference filed on Mr. Knelsen’s behalf attest to his friendliness and good nature, and they uniformly indicate that the lethal violence he exhibited on the night of 7 March 2011 was entirely out of character for him. [ 19 ] Around the time of this offence, Mr. Knelsen was using crack cocaine, and I accept that he consumed some of this drug prior to crashing through the window of S.H.'s residence and into the suite where Mr. Berg and L.C. lived. While cocaine influenced Mr.

Knelsen's actions on the night in question and it played a role in the events that led to Mr. Berg's death, I find Mr. Knelsen knew and appreciated what he was doing when he struck Mr. Berg multiple times with the hammer and stabbed him multiple times with the knife, causing his death. [ 20 ] Mr. Firestone, on behalf of Mr. Knelsen, says that Mr. Knelsen is remorseful for his actions. He points out that by pleading guilty, Mr. Knelsen has recognized and accepted his responsibility for the death of Mr. Berg. I find no reason not to believe this to be true.

To put it in a positive light, I accept that by pleading guilty, Mr. Knelsen acknowledges and accepts his moral culpability for the death of Mr. Berg. Although Mr. Knelsen’s guilty plea arrived late in the day, it still alleviated the need for a number of vulnerable witnesses to testify at trial. [ 21 ] I have considered all of the materials filed on this sentencing hearing, including the case authorities that counsel have provided to me ( R. v. Reierson , 2007 BCSC 541 ; R. v. Waraich , 2008 BCSC 919 ; R. v. Yliruusi , 2011 BCSC 268 ; R. v. Tan , 2011 BCSC 595 ; R. v. Pattison , 2011 BCSC 1603 ; R. v.

Robinson , 2013 BCSC 772 ; R. v. Barry , 2013 BCSC 937 ). I have also kept in mind the purposes and principles of sentencing, and having done so, I find the joint submission of the Crown and the defence is a proper and justifiable one. Decision [ 22 ] Mr. Knelsen, you will now stand. [ 23 ] Mr. Knelsen, on 7 March 2011 you committed a horrendous crime. You intentionally took the life of a fellow human being.

The level of violence and the degree of force you used that evening was horrific and no matter how much you or others might wish, the consequences of your actions cannot be changed. [ 24 ] You are, however, not beyond redemption.

The evidence before me suggests you still have family and friends who are prepared to stand by you and who indicate that at heart you are not an evil person. [ 25 ] Having considered the nature of the offence you committed, the circumstances surrounding the commission of that offence, and the evidence of your general character, I find that the appropriate sentence to impose upon you for having committed the second degree murder of Gordon Brian Berg is life imprisonment with no eligibility to apply for parole before the expiry of 10 years. [ 26 ] You may sit down.

Ancillary Orders [ 27 ] The Crown has sought a number of ancillary orders and Mr. Firestone, on behalf of Mr. Knelsen, has accepted that they are appropriate. I agree and will grant the orders. Firearms Prohibition [ 28 ] Pursuant to ss. 109(1)(

a) and 109(2) of the Code , Mr. Knelsen is prohibited from possessing any firearm, prohibited firearm, restricted firearm, crossbow, restricted weapon, prohibited weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life. Provision of DNA Samples [ 29 ] The offence for which Mr. Knelsen has been convicted is a primary designated offence, as that term is defined in the Code , and consequently there is no judicial discretion with respect to this order. Pursuant to s. 487.051(1) of the Code , I make an order authorizing the taking from Mr.

Knelsen for the purposes of forensic DNA analysis any number of samples of one or more of his bodily substances that are required for the analysis by means of the investigative procedures described in s. 487.06(1) of the Code . No Contact Order [ 30 ] Pursuant to s. 743.21 of the Code , Mr. Knelsen is prohibited from directly or indirectly communicating with either L.C. or S.H. Victim Surcharge [ 31 ] Given Mr.

Knelsen's life sentence and given his personal circumstances, including his modest financial means, I find imposing a victim surcharge under s. 737 of the Code would result in an unreasonable and undue hardship. Consequently, I decline to impose such a surcharge. [ 32 ] Those are my reasons. Anything arising, Ms. Rupertus? [ 33 ] MS. RUPERTUS: Yes, thank you, My Lord. The outstanding counts remaining on the indictment, Counts 2, 3, 4, 5, and 6, the

Crown hereby directs a stay of proceedings, and with respect to Count 1, Your Lordship already found him not guilty of first degree murder, and of course he entered the guilty plea to the lesser included second degree murder, so that count also is disposed of. [ 34 ] THE COURT: Very good, so noted. Anything arising, Mr. Firestone? [ 35 ] MR. FIRESTONE: No, thank you, sir. [ 36 ] THE COURT: All right, thank you, counsel. “G.R.J. Gaul, J.”