R. v. Cook, 2013 BCSC 495

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Cook, 2013 BCSC 495 Date: 20130219 Docket: 29875-2 Registry: Prince George Regina v. Lloyd William Cook Restriction on Publication: Pursuant to ss. 486.5(1) & 486.5(9) C.C.C. Before: The Honourable Mr. Justice Parrett Oral Reasons for Sentence Counsel for the Crown: L. Vizsolyi L. Phipps Appearing on his own behalf: Lloyd William Cook Place and Date of Trial: Prince George, B.C. January 14-18, 21, 22, 31 and February 5 and 8, 2013 Place and Date of Judgment: Prince George, B.C.

February 19, 2013 [ 1 ] THE COURT: The accused has been found guilty, following a trial, of unlawful confinement and offering an indignity to a dead human body.

He was acquitted of charges of manslaughter and criminal negligence causing death. [ 2 ] The circumstances giving rise to the charges are somewhat unusual, as is the history leading to the present disposition. [ 3 ] In December of 1999 and January of 2000, the accused Lloyd William Cook was living with Judy Williams and her two sons, 13-year-old Adam Scott Williams and seven-year-old Bradley, in a mobile home located in the Hart Highway area of Prince George. [ 4 ] On January 7, 2000, Adam died at the family home while in the care and custody of his mother and the accused.

For at least two days, and perhaps three, prior to his death, Adam had been tied up and secured in the master bedroom occupied by his mother and the accused. This extreme method of control was resorted to after discussions between the accused and Judy Williams, after they had learned that Adam was touching, if not abusing, Bradley.

They apparently resorted to this technique of keeping the two apart, rather than the normal range of parenting techniques or calling on the services of the Ministry of Child and Family Development, who was already involved with the family and aware of the allegations. [ 5 ] The accused, Judy Williams, and Bradley returned to the trailer after a play session in the snow outside the trailer to find Adam in distress and making gurgling noises.

Cook's immediate attempts at CPR failed, and the dead body of Adam was wrapped in a blanket and placed in the trunk of the family vehicle where it remained for at least two to three weeks, when it was buried in a shallow grave in a remote location along the banks of the North Nechako River. [ 6 ] Neither Cook nor Williams reported the incident at the time, and over the next five years the pair hid out, each telling false stories on occasion of Adam's whereabouts when they were contacted by authorities. [ 7 ] Ms.

Williams in her evidence claimed she did not report it as a result of her fear of Cook, evidence I rejected at the trial, but conceded during her cross-examination that the real reason was her fear that Social Services would take Bradley away if she did. [ 8 ] Finally, in October of 2004, Ms. Williams went to the police after she had apparently been replaced with another woman in Mr. Cook's affections. [ 9 ] The subsequent investigation led to separate charges against both Cook and Ms. Williams.

On March 7, 2012, Judy Williams pled guilty to a charge of offering an indignity to a dead human body and was sentenced to serve a two-year conditional sentence. For some reason best known to the Crown, the position taken by the Crown on that sentencing, the reasons for the sentence imposed, and the details of the information presented to the court were never placed before this court, despite the fact that the sentence arose from the same circumstances as these offences. [ 10 ] At this trial, the Crown relied on Ms.

Williams as their primary witness against the accused. [ 11 ] The accused is 54 years old and has an education that ended part way through Grade 10. He has been largely unemployed, save

for jobs such as cutting and selling firewood, and more recently apparently picking fruit. [ 12 ] Mr. Cook has a significant and disturbing criminal record that dates back to 1975, and includes 33 criminal convictions between November of 1975 and April of 1998. There have been no additional convictions since those recorded in Penticton on April 30, 1998. I will set out that record in detail. [ 13 ] On November 27, 1975, at Oliver, B.C., Mr.

Cook was convicted of theft under $200 and placed on probation for 12 months. [ 14 ] On April 22, 1976, at Calgary, Alberta, he was convicted of B and E and theft, and theft under $200, two counts, yielding sentences of six months in jail on the first and three months on each of Counts 2 and 3 concurrent. [ 15 ] On March 9, 1977, at Oliver, he was convicted of trespass by night and given 12 days' jail intermittent, and placed on probation for nine months. [ 16 ] On May 25, 1977, at Oliver, he was convicted of assault causing bodily harm.

He was given a suspended sentence and probation for 12 months. [ 17 ] On May 30, 1977, at Penticton, he was convicted of dangerous driving and given a suspended sentence and probation for 18 months, and an order for restitution. [ 18 ] On August 30, 1977, at Jasper, Alberta, he was convicted of setting fire by negligence, B and E and commit, and possession of stolen property over $200.

He was given 12 months on each charge concurrent, and placed on probation for 12 months. [ 19 ] On October 30, 1980, at Penticton, he was convicted of theft over $200 and given one month in jail. [ 20 ] On January 20, 1982, in Oliver, he was convicted of causing a disturbance. He was fined $150, in default four days. [ 21 ] On February 7, 1984, at Morinville, Alberta, he was convicted of assault with a weapon, unlawfully causing bodily harm, three counts of assault, mischief to private property, and causing a disturbance.

On Counts 1 and 2, the assault with a weapon and unlawfully causing bodily harm, he received one year on each charge consecutive. On Counts 3, 4, and 5, he received one month on each charge concurrent and concurrent with each other. [ 22 ] On August 3, 1984, in Drumheller, Alberta, he was convicted of assault and sentenced to three months, consecutive to the sentence he was then serving. [ 23 ] On August 12, 1985, he was released on mandatory supervision.

On October 4, 1985, he was convicted of assault and sentenced to three months. [ 24 ] On November 19, 1985, he was found to be in violation of his mandatory supervision and recommitted on the original sentence.

The next day, November 20, 1985, at Drumheller, Alberta, he was convicted of two counts of trafficking in a narcotic and sentenced to six months consecutive on the first to the sentence he was then serving, and three months consecutive on the second. [ 25 ] On August 22, 1986, he was again released on mandatory supervision. [ 26 ] On March 19, 1987, he was found to have violated his mandatory supervision and was recommitted to serve his sentence. [ 27 ] On February 21, 1990, in Oliver, he was convicted of driving while impaired and failing to appear.

He was fined $400, in default 14 days, on the first and prohibited from driving for six months, and on the second he was fined $200, in default 10 days consecutive. [ 28 ] On May 9, 1990, at Oliver, he was convicted of causing a disturbance and fined $150, in default five days. [ 29 ] On November 17, 1994, at Penticton, he was convicted of assault causing bodily harm.

He was sentenced to nine months and probation for two years, and prohibited from possessing firearms, ammunition, or explosive substances for five years. [ 30 ] On April 30, 1998, at Penticton, he was convicted of two counts of assault and sentenced to three months and probation for two years. At the same time and place, he was convicted of another count of assault, forcible confinement, failure to comply with conditions of undertaking, failure to comply with a probation order.

On these charges he was sentenced on the first assault I mentioned, six months consecutive and probation for two years; on the forcible confinement, five months consecutive and probation for two years; and on Counts 4 and 5, the failure to comply, one month on each charge concurrent but consecutive, and probation for two years on each charge. [ 31 ] There are a number of disturbing features to this record: 1. The record includes 11 convictions for assault, spanning a period from 1977 to 1998. Of these, two are convictions for assault causing bodily harm and a third is for assault with a weapon.

In addition to these 11 assault convictions, there is another for unlawfully causing bodily harm. 2. While on probation for the theft under $200 charge from November 27, 1975, he was convicted in Calgary of B and E and theft, and two counts of theft under $200. 3.

While on nine months' probation arising from his trespass by night conviction on March 9, 1977, he was convicted of assault causing bodily harm on May 25, 1977, at Oliver, and then of dangerous driving at Penticton on May 30, 1977, and on August 30, 1977, at Jasper, Alberta, of setting fire by negligence, break and enter and commit, and possession of stolen property over $200. Despite the fact he was already on probation, he received a suspended sentence on each of the assault causing bodily harm charge and the dangerous driving conviction, and terms of probation of 12 months and 18 months respectively.

On the charges from Jasper, Alberta, he received 12-month

sentences concurrent, and an additional term of 12 months' probation. 4. After being released on mandatory supervision on August 12, 1985, he was convicted less than two months later, on October 4, 1985,for assault and recommitted on his other sentence. The next day he was convicted of two counts of trafficking in a narcotic. 5. On August 22, 1986, he was released again on mandatory supervision. On March 19, 1987, his mandatory supervision was revokedfor violation of his release and he was recommitted. 6. Finally, in the flurry of charges for which he was convicted on April 30, 1998, at Penticton, Mr.

Cook was, in addition to othersentences imposed, placed on two years' probation. He was on that probation at the time of the present offences. [32] The Crown submits that this is a case in which the appropriate sentence is two to three years on each count, and that thesentences should be served consecutively. [33] The defence submits that although his criminal record is problematic, it is dated at this point in time. They submit that theappropriate sentence is 18 months on each count, and that they should be served concurrently. [34] Mr.

Taylor pointed to the level of paranoia and fear of authority demonstrated by the evidence, and submitted that although thebehaviour in this household, viewed from the outside, is bizarre, it was for them the norm. [35] I want now to turn with the law that must be considered in sentencing. [36]

Section 718 of the Criminal Code gives a sentencing judge some guidelines on sentencing. It states: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance 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. [37] Mr. Justice Nordheimer had this to say in R. v. A.N.C., [2006] O.J. No. 3144 at paragraph 9, referring to conditional sentences: As has been said in many of the cases to which I was referred by counsel, cases of child abuse are ones where the effective denunciationof the actions involved is only accomplished by the imposition of a term of imprisonment.

Citizens of this community would, in myview, expect that our courts would send the clearest possible message that the physical abuse of children is conduct that simply will notbe tolerated because of the serious jeopardy it visits on the weakest and most defenceless among us. This reality makes this case one ofthose cases to which Chief Justice Lamaire [sic] referred in R. v.

Proulx (2000), 2000 SCC 5 , 140 C.C.C.(3d) 449 (S.C.C.)paragraph 106, "However, there may be certain circumstances in which the need for denunciation is so pressing that incarceration will bethe only suitable way in which to express society’s condemnation of the offender’s conduct." [38] I emphasize and refer to the appropriateness of a conditional sentence in unusual circumstances, because that is what wasapparently given to Ms. Williams in this case on the indignity charge. [39] It is completely inappropriate in the case of Mr. Cook, given his criminal record.

I emphasize that this case is one in whichthere is no evidence of the traditional characterization of child abuse, and by that I mean the types of cases, many of which I have beenreferred to, which deal with shaken babies and physical abuse of children. I equate, to admittedly a lesser degree, this to those childabuse cases in the use of tying Adam Williams up for two to three days. [40] I understand that these two believed there was a child abuse issue that they were trying to address by separating these twochildren. Nothing justifies this use of force or restraint. [41] Justice Casey Hill in R. v.

McCauley, (ON SC), [2007] O.J. No. 1593, sentenced a female accused to 12months' imprisonment for violently shaking her newborn baby shortly after returning from the hospital. The long-term prognosis for thechild in that case was optimistic. The offender was 20 years old at the time and had no criminal record. Although showing littleremorse, she had pled guilty. At paragraph 28, Mr.

Justice Hill provided a comprehensive review of some generic principles applicableto child abuse cases, at paragraph 28, and I quote: By way of an overview and non-exclusive list only, certain principles have emerged in sentencing cases involving shaken baby syndromeand related child abuse: (1) "[T]he law must protect children and those who are defenceless from unwarranted bodily interference" . . .

(2) Denunciation and deterrence are the paramount sentencing considerations in child abuse sentencing . . .

(3) While the appropriate sentence must depend on the particular facts in each case, a contested "typical case" of shaken baby syndromemay attract a sentence of 3 to 5 years' imprisonment although "the range must extend to accommodate the rare or exceptional case" . . .

(4) Although the objectives of denunciation and deterrence are particularly pressing in child abuse cases "with the result that incarceration would generally be preferred" . . . a conditional sentence may be imposed where special mitigating circumstances exist . . . (5) "Parents ... cannot escape all responsibility for their actions simply by relying on their own problems" . . .

(6) Offenders with low intellectual ability or poor anger control who shake a child in frustration cannot, on that account alone, escape incarceration . . . although frustration by an unskilled and immature parent is a far cry from the deliberate infliction of harm . . .

(7) Evidence of a pattern of abuse is an aggravating factor . . . There is no such evidence in this case.

(8) Permanent injury to the child increases the seriousness of the crime . . .

(9) Summoning medical assistance promptly for the injured child tends to mitigate the severity of the circumstances . . .

(10) Post arrest acknowledgement of anger control problems and voluntary steps toward addressing control measures can serve to temper the sentence . . .

(11) As with most crimes, remorse of the offender, contributes to mitigation of sentence. [ 42 ] The present case is one in which significant numbers of those factors apply negatively. [ 43 ] Drawing from the authorities I have reviewed, I conclude that as a general principle physical abuse, including unwarranted restraint, against children attracts a period of incarceration.

The guiding sentencing principles in child abuse cases are general deterrence and denunciation. [ 44 ] In addition to the usual factors considered during sentencing, in this context the following factors tend to play a significant role: - Was the incident the result of a momentary loss of temper? That is not applicable here. - Did the accused deliberately cause injury? I have found that is not the case here. - Was it a single episode of violence or was the abuse sustained over a prolonged period of time?

The restraint in this case, as I have already indicated, covered an extended period of time, albeit in a single, prolonged incident. - Did the accused immediately seek medical attention? The answer to that is most emphatically no. - Did the accused show signs of remorse? He seems to have done so today and at times, on the basis of the evidence led at trial, displayed emotion at various times following the incident. [ 45 ] According to s. 718.2 of the Criminal Code , a sentence should be increased where the evidence discloses the existence of one or more statutorily-defined deemed aggravating circumstances.

In this case, two are applicable: (

a) abuse of an offender's child; and (

b) abuse of a position of trust. [ 46 ] Mr. Taylor, in his submissions, made a submission concerning the dated nature of the criminal record of Mr. Cook.

He suggested that it was a difficult situation, because although the offences of which he was finally convicted were relevant and that he was on probation at the time of these offences, they are now more than a decade dated without intervening offences. [ 47 ] Counsel were able to provide me with no authorities that have specifically addressed that issue, and my own research has yielded none. [ 48 ] In my view, the concept of a dated record is applied in most cases by a court, not in the form of a statutory reduction or some other principled reduction, but as a part of an analysis that assesses the accused's risk to the public to reoffend and the extent to which a long period without offences reflects and indicates rehabilitation. [ 49 ] In the present case, the lengthy period during which the accused went without a criminal conviction is a period of time in which he, on the evidence, was hiding out for the purpose of evading detection on these offences.

What I am left with is that explanation and the fact that at the time he committed these offences he was on multiple terms of probation. [ 50 ] I have already indicated that in this case, and with Mr. Cook in particular, I am of the view that any form of conditional sentence is completely inappropriate, both on the basis of the principles I have already touched on and because of his criminal record.

In addition, it is inappropriate given the number of times offences appear to have been committed while on various forms of probation or release. [ 51 ] I have wrestled with the contest between counsel, between whether these offences should be treated by sentences consecutive or concurrent.

I have concluded that although these two offences can be viewed as part of a single continuing transaction, the significant difference between the final count, that of indignity to human remains, and the former is that it was a part of an effort to evade detection, that in no small measure succeeded with the destruction of any forensic evidence in this case. [ 52 ] Mr. Cook, would you stand, sir. [ 53 ] On the charge of unlawful confinement, I sentence you to a term of imprisonment of three years.

On the charge of offering an indignity to a dead human body, I sentence you to serve a term of imprisonment of two years consecutive to that. [ 54 ] In addition, there will be a mandatory order under s. 487.051 for the taking of samples suitable for forensic DNA analysis, and

there will be a mandatory order under s. 109 of the Criminal Code prohibiting you from the possession of weapons for a period of your life, sir. [ 55 ] Ms. Vizsolyi, I understand that it is also a mandatory term that there be an order for the destruction of weapons under these provisions, which I presume is unnecessary, given the fact no weapons were indicated by the evidence or seized. [ 56 ] MS. VIZSOLYI: I believe that's correct and I have no knowledge of Mr. Cook having weapons in the recent past. [ 57 ] THE COURT: Thank you.

That would be under s. 491, and I do not see that that order is appropriate, given the overall circumstances. [ 58 ] In addition, Mr. Cook, you are entitled to 33 days' credit at a rate of one-to-one, as is currently required. That will be credited against the sentences I have imposed. Please be seated. [ 59 ] Anything further, Ms. Vizsolyi? [ 60 ] MS. VIZSOLYI: No, thank you, My Lord. [ 61 ] THE COURT: Any further comment from you, Mr. Cook? [ 62 ] THE ACCUSED: Yes, sir, I'd just like to say that I hold no grudges or no anger towards what's happened and I am actually glad that it's over with.

I understand that I have problems and I'm going to start dealing with them soon as I can. I'd like to thank you, sir, for the time that you took to go over my case and find me not guilty for the manslaughter. I appreciate that. Thank you, sir. [ 63 ] THE COURT: Thank you, we will adjourn. “W. G. Parrett, J.”