R. v. Barry, 2013 BCSC 937

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Barry, 2013 BCSC 937 Date: 20130507 Docket: 150899-3 Registry: Victoria Regina v. Cory Daniel Barry Before: The Honourable Mr. Justice B. MacKenzie Oral Reasons for Sentence Counsel for the Crown: S. Van Alstine, Q.C. C. Jennings Counsel for the Accused: J. Johnston Place and Date of Hearing: Victoria, B.C. May 6, 2013 Place and Date of Judgment: Victoria, B.C. May 7, 2013 [ 1 ] THE COURT: Mr. Barry was charged on this indictment with the second degree murder of Justin Wendland, when he stabbed Mr.

Wendland in Victoria on the public streets in June 2010. [ 2 ] At the time of his death, Justin Wendland was 15 years of age. [ 3 ] Mr. Barry elected to be tried in this court sitting without a jury. After a reasonably lengthy trial, I found the Crown had proven beyond a reasonable doubt that Mr. Barry was guilty of second degree murder. The mandatory sentence for this offence is imprisonment for life without eligibility for parole until an accused person has served at least 10 years of that life sentence. [ 4 ] Mr.

Barry is now before the court today for determination of whether this parole ineligibility should be increased beyond the mandatory 10 years. [ 5 ] The application by the Crown is pursuant to s. 745.4 of the Criminal Code , which provides that in sentencing an offender convicted of second degree murder, the judge who presided at the trial may, having regard to the character of the offender, the nature of the offence, and the circumstances surrounding its commission, and the recommendation, if any, made by the jury, make an order substituting for the mandatory 10 years a number of years of imprisonment between 10 and 25 without eligibility for parole as the judge deems fit in the circumstances. [ 6 ] In this case, the Crown contends that, given these factors, the period of parole ineligibility for Mr.

Barry should be increased to between 13 to 15 years' imprisonment. [ 7 ] Crown counsel says there are no mitigating factors in this case, but there are aggravating factors which justify such a range of parole ineligibility. [ 8 ] Conversely, the defence position is that the mandatory minimum parole ineligibility of 10 years is appropriate, having regard to the factors I have just mentioned and all of the applicable principles of sentencing. [ 9 ] The defence says that there are insufficient aggravating features which would justify increasing the period of parole ineligibility beyond 10 years.

The defence says all of the principles of sentencing and the factors in s. 745.4 can properly be met by a sentence of life imprisonment with no parole for 10 years. [ 10 ] When determining parole ineligibility, in addition to the s. 745.4 factors, the court must take into account the fundamental purposes of sentencing under s. 718 of the Code .

That is, to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing appropriate sanctions. [ 11 ] The necessary objectives in the circumstances of this case are denunciation, specific and general deterrence, the separation of Mr. Barry from society to ensure public safety, and finally, albeit to a more limited extent than the foregoing, rehabilitation and promoting a sense of responsibility. [ 12 ] Under s. 718.1, a sentence must also be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[13] On this point, proportionality in sentencing is concerned with retribution, not vengeance. As set out by the Supreme Court ofCanada in R. v. C.A.M., (SCC), [1996] 1 S.C.R. 500, at paragraphs 80 to 82, the court said the following: . . .

Retribution in a criminal context, by contrast [to vengeance], represents an objective, reasoned and measured determination of anappropriate punishment which properly reflects the moral culpability of the offender . . . unlike vengeance, retribution incorporates aprinciple of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more . . . . . .

The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender'sconduct . . . a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should bepunished for encroaching on our society's basic code of values as enshrined within our substantive criminal law . . . . . .

In the final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing todetermine a "just and appropriate" sentence which reflects the gravity of the offence committed and the moral blameworthiness of theoffender. [14] In this case, there was no issue that Mr. Barry stabbed Mr. Wendland twice in the chest, the second blow striking his heart andcausing his death. The defence did, however, argue that Mr. Barry should not be found criminally responsible for his actions pursuant tos. 16 of the Code, on the basis that at the time of the stabbing, Mr.

Barry was incapable of appreciating the nature and quality of his actor of knowing that it was wrong. [15] I concluded that, given the totality of the evidence, the defence did not establish such a defence. Moreover, even though I wasnot satisfied Mr. Barry intended to kill Justin Wendland when he stabbed him, I found the Crown had proven beyond any reasonabledoubt that Mr. Barry did intend to cause bodily harm to Justin Wendland that he knew was likely to cause his death, thereby committingsecond degree murder. [16] As a result, given the conviction for murder, and as the Crown has submitted, Mr.

Barry's level of moral culpability is high. Inthis regard, moral culpability and the gravity of this offence are recognized by the mandatory penalty of life imprisonment with aminimum 10 years of parole ineligibility. [17] The leading case in Canada with respect to parole ineligibility is the Supreme Court of Canada decision in Shropshire, (SCC), 102 C.C.C. (3d) 193. In its analysis of the issue of parole ineligibility, the court there stated the following: The only difference in terms of punishment between first and second degree murder is the duration of parole ineligibility.

This clearlyindicates that parole ineligibility is part of the "punishment" and thereby forms an important element of sentencing policy. As such, itmust be concerned with deterrence, whether general or specific.

The jurisprudence of this Court is clear that deterrence is a well-established objective of sentencing policy. [18] The court then went on to say with respect to the issue of parole ineligibility the following: . . . as a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by a determination of the trial judgethat, according to the criteria enumerated in s. 744, the offender should wait a longer period before having his suitability to be releasedinto the general public assessed.

To this end, an extension of the period of parole ineligibility would not be "unusual", although it maywell be that, in the median number of cases, a period of 10 years might still be awarded. [19] In their respective and able submissions, both Crown and defence provided me with several authorities in support of theirrespective positions. The Crown's authorities include R. v. J.T.G., I am not going to deal with the citations, they are in the index that wasprovided by Mr. Van Alstine, and I am not going to detail all of the circumstances in each one, but in J.T.G. there was a stabbing on thestreets of Victoria.

The accused was relatively young, but had a lengthy and recent criminal record, including five prior assaults and arobbery. Parole ineligibility was reduced from 20 years to 12 years in that particular case by the Court of Appeal. [20] In S.F.C. there was 12 years of parole ineligibility; similarly, in Harding and Arroyo.

In Dupe, an Ontario decision, afterreceiving a recommendation from the jury for 20 years of parole ineligibility, the court imposed 14 years of parole ineligibility, noting alengthy history there of violence towards women. [21] In Hoang, another Victoria decision, a youthful first offender killed the victim with a shotgun in a parking lot whilst the victimwas seated in a motor vehicle with his father. The parole ineligibility in that case was 15 years. [22] In R. v.

White, a murder involving a handgun in the streets of Vancouver, parole ineligibility was set at 16 years. [23] The defence provided four authorities which all dealt with second degree murder and in which, in each case, the courtsconcluded the minimum mandatory parole ineligibility of 10 years would properly satisfy all of the principles of sentencing, includingdeterrence, both specific and general, denunciation, and retribution. [24] It is important to remember that when considering all of these authorities, that the process of determining a sentence, includingparole ineligibility, was described by the Supreme Court of Canada in Shropshire as a "profoundly subjective process".

As a result,referring to other cases is helpful but limited. They are, however, helpful in attempting to provide some predictability and consistency inthe sentencing process.

As a result, I have considered all of the authorities both counsel have provided to me in this application. [25] It also is important to note that in the Court of Appeal decision of Cerra, 2004 BCCA 594, our Court of Appeal noted that upona review of prior decisions, the court concluded that in addition to cases where the minimum 10 years of parole ineligibility wasimposed, that two broad groupings emerged: one was a range of 12 to 15 years, and second, a range from 15 to 20 years, with "the latterrelating to cases at the highest order of moral culpability or dangerousness", at paragraph 26. [26] With this background, I now consider the factors outlined in s. 745.4, as well as the principles of sentencing codified in ss. 718

and 718.1 of the Code . As far as s. 718.2 is concerned, Crown counsel submits that the only relevant factor there would be the fact that Mr. Wendland was 15 when he was killed by Mr. Barry, and that that age should be considered an aggravating circumstance. [ 27 ] With respect to Mr. Barry's character, under this heading the Crown points to the fact that Mr. Barry is not a youthful offender. Youth is often considered, in appropriate circumstances, to be a mitigating factor. Mr. Barry, however, was 39 when he committed this offence and is now 42 years of age.

Moreover, it appears he had a relatively close relationship with his mother prior to her passing away some time ago, and in the words of a probation officer who prepared the pre-sentence report that I have before me as an exhibit, which was prepared in 1995, while Mr. Barry was described as the product of a "broken home", the probation officer noted it was not a dysfunctional family. [ 28 ] As a result, Crown counsel says Mr.

Barry did not have such a disadvantaged upbringing as some of the other persons being sentenced in the authorities that I have been provided with, and that that should militate against the imposition of the minimum period of parole ineligibility. [ 29 ] Perhaps more importantly, however, is the fact that Mr. Barry does have a prior criminal history. This record includes a robbery in youth court in 1987, for which Mr. Barry was placed on probation for a period of two years. There was a trafficking conviction in 1990, where he received a fine of $500.

There was then a robbery conviction in 1995, for which he received a three-month jail sentence, and an assault conviction for which he received a suspended sentence and another period of probation. [ 30 ] However, as defence counsel has properly pointed out, since 1996, Mr. Barry's only convictions have been two theft unders and two property offences, as well as a failure to appear, the last in 2007. [ 31 ] The Crown has quite properly acknowledged that this record is not lengthy and is clearly dated, but says it should have some weight in the present application.

I have no hesitation in agreeing with that assessment. [ 32 ] Defence counsel likewise acknowledges that the record is not insignificant, but it is clearly very dated, especially related to any offences for violence, and this record should not be considered so significant that it should result in increasing the period for parole ineligibility beyond the 10-year minimum. [ 33 ] The defence says the lack of a significant or recent criminal history favours the imposition of the mandatory 10-year period of parole ineligibility. [ 34 ] In support of its application, Crown counsel also submits that Mr.

Barry has shown no remorse whatsoever for his actions. This is especially so when I was advised during this application of comments Mr. Barry made to Justin Wendland's mother in court immediately after the verdict was rendered, using words along the lines of, "I don't care, I'll be out in 10 years." [ 35 ] Mr. Johnston, on behalf of Mr. Barry, acknowledged these comments by Mr. Barry, but submits that this outburst was brought upon by the emotional circumstances surrounding the verdict, and that Mr. Barry sincerely regrets his comments. On this point, at the conclusion of the hearing yesterday, Mr.

Barry spoke to the court and read a written apology to Justin Wendland's family. He also apologized to Mrs. Wendland for the remarks he made after the verdict was pronounced. [ 36 ] Defence counsel also submits that the submission of the Crown does not take into consideration Mr. Barry's expressions of remorse for his actions when he was speaking to the police. On this point, it is important to recognize that during my judgment, wherein I concluded the s. 16 defence had not been established, I referred to several occasions when Mr.

Barry expressed remorse for his actions and showed considerable emotion when describing what he had done. These numerous expressions of remorse were highly relevant to this court when I was considering the s. 16 defence that was advanced in these circumstances. It would be inappropriate for me now not to accept them as legitimate in the sentencing hearing. [ 37 ] Therefore, given the totality of the circumstances, I accept the defence submission that Mr. Barry has expressed remorse for his conduct in taking the life of this young man. [ 38 ] The Crown also says that Mr.

Barry has demonstrated no desire to deal with his mental health issues or substance abuse issues ever since a pre-sentence report was prepared, that I have already alluded to, in 1995. The Crown says the observations made by an experienced probation officer at that time are similar to the observations made by Dr. Lohrasbe in 2010 when he interviewed Mr. Barry. That is, Mr.

Barry has a significant anger management problem, that when coupled with his severe personality disorder and substance abuse difficulties, make his prospects for rehabilitation, in the words of the Crown, “bleak”. [ 39 ] On this point, the defence acknowledges Mr. Barry's difficulties with mental health authorities and personnel over several years, but submits the suggestion by the Crown that Mr. Barry's rehabilitation is hopeless or bleak is not well founded. The defence has provided certificates and documents supporting its submission that Mr.

Barry has made reasonable efforts at commencing his rehabilitation whilst on remand for almost the last three years, especially given the limited number of rehabilitative programs available to inmates on remand. [ 40 ] In addition, and perhaps most significantly on this issue, a recent email from the warden of programs at VIRCC states that Mr. Barry has "never been charged with a breach of an institutional regulation and has received no form of discipline." It then states he "has attended a number of programs, including school, during his incarceration.

He has received support from community resources, as well as attending counselling in the custody centre." [ 41 ] Furthermore, defence counsel says that the evidence at trial confirms Mr. Barry has some support in the community, especially from persons who are familiar with him at the local resource centres he frequented prior to his incarceration awaiting trial. [ 42 ] In all of the circumstances, while the defence has properly acknowledged deterrence and denunciation are the paramount considerations on this application, I accept the defence submission that Mr.

Barry's rehabilitation is not hopeless and is a proper and reasonable consideration that must be acknowledged in this application.

[ 43 ] Finally, the defence emphasizes that even though the evidence at trial did not support a finding of NCRMD under s. 16, it is clear that Mr. Barry has suffered from some significant mental health issues which have impaired his ability to function, even though the evidence, in my opinion, is just as clear these issues are aggravated by his significant issues with drug addiction and his choice to live on the streets and be immersed in that subculture of substance abuse. [ 44 ] At the same time, even though Dr. Lohrasbe concluded Mr. Barry is not psychotic, he stressed Mr.

Barry has a significant personality disorder, once again fuelled by anger and drug abuse. While Mr. Barry's mental health issues are clearly not determinative of this issue, they are a relevant consideration in determining what is an appropriate period of parole ineligibility. [ 45 ] Finally, the Crown has pointed out that in one of the defence authorities, R. v. Laxon , the accused there entered a guilty plea, as opposed to being convicted of murder following a trial.

On this point, while an accused person is always entitled to have the Crown prove any offence beyond a reasonable doubt, the Crown submits the significant mitigating feature of the guilty plea is not present in this case. I of course accept that observation as being appropriate. [ 46 ] On the other hand, with respect to this submission, while the defence acknowledges clearly there was no guilty plea, defence counsel says the conduct of the trial was aimed solely at the issue surrounding Mr.

Barry's mental state at the time of the offence and that, given the totality of the evidence, there were significant triable issues surrounding the potential for either a s. 16 defence, or alternatively a verdict of manslaughter as opposed to a conviction for murder. [ 47 ] The defence also points out the unique circumstance in this case that immediately after Mr.

Barry committed this most serious offence, he ran to the police station where he advised the officers he dealt with what he had done, and that that circumstance should be given weight when determining parole ineligibility. [ 48 ] Defence counsel submits this fact makes this case unusual and distinguishable from many of the other decisions that I have been provided with. The defence says the statements Mr.

Barry made to the police shows he took responsibility for his actions and acknowledged the gravity of his conduct to the investigating officers. [ 49 ] The remaining factors under s. 745.4 are the nature of the offence and the circumstances surrounding its commission. All counsel have acknowledged that there are very few offences that are more serious than murder. As Justice McEwan said in Laxon , "Murder is an appalling crime which is why it attracts a life sentence." [ 50 ] There is no question that the stabbing of Mr. Wendland was horrific, the consequences tragic, resulting in the loss of a young man's life.

I agree with Crown counsel when he says it was a senseless killing of an unarmed young man in a public place, a young man who did nothing to provoke or interact with Mr. Barry. [ 51 ] I have also considered the victim impact statements provided by Mr. Wendland's mother and two sisters, as well as his aunt and uncle. They eloquently expressed the incredible loss they have suffered and the devastating effect Justin's death has had upon the family, especially Mrs. Wendland who, as a working single mother, was dependant on her son who, at the age of 15, was the man about the house. Her inability to forgive Mr.

Barry for taking her son from her is understandable. Her life has forever been changed by the actions of Mr. Barry. [ 52 ] All of the victim impact statements were profound expressions of grief and loss, but none more so than the expressions voiced by Mrs. Wendland. As Mr. Van Alstine has put it, Mrs. Wendland and her family have suffered an "unfathomable loss". [ 53 ] With respect to the circumstances surrounding the commission of the offence, there is no question that Mr. Wendland was an unsuspecting, vulnerable individual. He was waiting for a bus, listening to his music.

He never bothered nor interacted whatsoever with Mr. Barry. The stabbing, while motivated by Mr. Barry's irrational belief that Justin might be affiliated with this gang that had been assaulting Mr. Barry in the past, was without provocation and without warning. In this regard, I agree with Crown that it cannot be characterized as a spontaneous or impulsive act brought on in the heat of the moment. [ 54 ] Mr.

Wendland, like so many of the victims in the cases that I have been provided, was vulnerable. [ 55 ] At the same time, several of the authorities have emphasized circumstances where the murder, as serious as it is in and of itself, was accompanied by aggravating factors such as the commission of another offence, such as an intention to rob the victim, some involved guns, shotguns, and firearms which were deemed to be aggravating features, although it goes without saying that, as this case clearly illustrates, a knife in the hands of a person can, in itself, be a deadly weapon. [ 56 ] Some of the precedents emphasize the location of these horrific acts.

Some of the cases say that if it happens in the victim's home, that is an aggravating feature. On the other hand, nothing, in my opinion, can be more horrifying or disturbing than the death of a young person merely standing on a street corner in Victoria in the daylight, waiting for a bus. [ 57 ] At the end of the day, what all of these authorities clearly establish is that each case must be considered on a case-to-case basis. Again, as I have already mentioned, sentencing, including parole ineligibility, is a profoundly subjective process.

Moreover, as Justice Macfarlane said in Grimsson , 100 B.C.A.C. 253 , "reference to other cases is of limited value", since the fixing of a period of parole ineligibility is a very fact-sensitive process. [ 58 ] However, as I have already said, predictability and consistency are important in the sentencing process, and the appropriate range of sentence or parole ineligibility should be assessed in light of other similar dispositions. [ 59 ] Finally, it is important to note, as I have already mentioned, that the mandatory sentence in this case is life imprisonment. The issue to be decided today is not whether Mr.

Barry will be entitled to receive parole after 10 years. The imposition of the minimum mandatory period of parole ineligibility means that he will only be permitted to apply for the potential of parole. [ 60 ] On this point, the words of Justice Dickson in R. v. Holt are helpful and instructive. At paragraph 10 of that decision, the court

there stated: It is important to note that, while the issue for analysis is the appropriate period of parole ineligibility, the judicial function is to sentence and not to determine when parole will or will not be granted. When the parole ineligibility imposed expires, the parole authorities will decide whether the offender is rehabilitated and suitable for release.

In addition, in fixing the parole ineligibility period the court must bear in mind the fact that the years of parole ineligibility imposed are fully served by the offender without reduction through statutory release or early remission: Reierson , para. 5; R. v.

Mafi , 2000 BCCA 135 . [ 61 ] Justice Dickson there recognized that it is important to emphasize that, unlike other offences that do not mandate a minimum period of parole ineligibility, a murder conviction requires an offender to serve the full period of parole ineligibility. [ 62 ] In these circumstances, having regard to the specific factors I must consider in s. 745.4 and the fundamental principles of sentencing now outlined in ss. 718 to 718.2 of the Code , I am persuaded that all of these principles of sentencing, including deterrence and denunciation, are properly balanced and satisfied by the sentence of life imprisonment with no eligibility for parole for the mandatory minimum period of 10 years. [ 63 ] Even then, the question as to Mr.

Barry's suitability for parole will be up to the parole authorities. In fact, Mr. Barry might very well not be released into the community for a period of time greater than the period of parole ineligibility the Crown seeks today. [ 64 ] As a result, the sentence I impose today is imprisonment for life with no eligibility for parole for 10 years. [ 65 ] Mr. Van Alstine, there are some ancillary orders that you have requested. [ 66 ] MR.

VAN ALSTINE: Yes, with respect to s. 109, the prohibition. [ 67 ] THE COURT: Yes, I think 109 deals with firearm or restricted weapons for 10 years, and no prohibited firearms, restricted firearms, or prohibited weapons or prohibited ammunition for life. [ 68 ] MR. VAN ALSTINE: Yes. [ 69 ] THE COURT: There is a DNA sample. [ 70 ] MR. VAN ALSTINE: Yes, that is pursuant to s. 487.05. [ 71 ] THE COURT: As soon as is practicable. [ 72 ] MR. VAN ALSTINE: Yes, please. [ 73 ] THE COURT: The surcharge is waived. [ 74 ] MR. VAN ALSTINE: Yes. Thank you, My Lord. [ 75 ] THE COURT: Thanks very much. “B.

MacKenzie J.” The Honourable Mr. Justice B. MacKenzie