R. v. Baker, 2017 BCSC 2178

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Baker, 2017 BCSC 2178 Date: 20170925 Docket: 41396-6 Registry: Prince George Regina v. Lyle William Baker, Kevin Roy Zaporoski and Dustin Allen Lindgren Before: The Honourable Mr. Justice Tindale Oral Reasons for Sentence Re: Accused Zaporoski Counsel for the Crown: P. Backhouse S. Dworkin (appearing by teleconference) Counsel for the accused Zaporoski: S. Buck (appearing by teleconference) Place and Date of Hearing: Prince George, B.C. September 8, 2017 Place and Date of Judgment: Prince George, B.C.

September 25, 2017 [ 1 ] THE COURT: On June 30, 2017, a jury found Mr. Zaporoski guilty of the second degree murder of Jordan Reno. Also on that date, the jury found Mr. Baker and Mr. Lindgren guilty of the first degree murder of Jordan Reno. [ 2 ] Bradley Barr was also charged with the murder of Jordan Reno. However, he pled guilty to manslaughter prior to the trial of this matter. [ 3 ] The sentence for second degree murder is life imprisonment. [ 4 ] The issue on this sentencing hearing is the period of time that Mr. Zaporoski will be ineligible for parole.

Section 745 (

c) of the Criminal Code states: Subject to

section 745.1, the sentence to be pronounced against a person who is to be sentenced to imprisonment for life shall be … (

c) in respect of a person who has been convicted of second degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served at least ten years of the sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefor pursuant to

section 745.4; … [ 5 ] The issue of parole ineligibility is within the discretion of the sentencing judge.

Section 745.4 of the Criminal Code sets out the factors which must be considered. That

section states: 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. Findings of Facts [ 6 ] As this was a jury trial, s. 724 of the Criminal Code sets out the procedure for fact finding. Section 724(2) states:

(2) Where the court is composed of a judge and jury, the court (

a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and

(

b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact. [ 7 ] At the beginning of June 2012, Mr. Barr was of the view that Jordan Reno owed him money. Mr. Barr communicated with Lyle Baker primarily by text message to enlist Mr. Baker's help in recovering this money. Between June 7, 2012, and June 17, 2012, a plan was made that Mr. Baker would recover money from Mr. Reno for Mr. Barr and “work over” Mr. Reno. [ 8 ] Mr. Baker, Mr. Barr, and Mr. Lindgren were involved in the drug trade. Mr.

Baker contacted Mr. Lindgren in relationship to Mr. Reno. Mr. Lindgren told Mr. Baker that Mr. Reno, in his view, owed him money, as well. [ 9 ] By June 18, 2012, Mr. Baker and Mr. Lindgren, as evidenced by their text messages to one another, planned to kill Mr. Reno. [ 10 ] Mr. Zaporoski attended the residence of Mr. Baker located at 4118 Knight Crescent in the early morning hours of June 19, 2012. Mr. Baker and Mr. Zaporoski left Mr. Baker's residence at approximately 4:13 a.m. They returned to Mr. Baker's residence with Mr. Reno at approximately 5:50 a.m. [ 11 ] Mr. Baker, Mr. Reno, and Mr.

Zaporoski entered Mr. Baker's residence shortly after that time. Mr. Reno was never seen alive again and was later found in a wooden box at the back of Mr. Baker's property. [ 12 ] Dr. Stephen, the forensic pathologist who conducted the autopsy on Mr. Reno, found that Mr. Reno had the following injuries:

(1) A 1.8 centimetre laceration to the upper left lip and a second laceration in that area, as well. Mr. Reno also had a group of lacerations on the lower left lip;

(2) Two hematomas on the front of his scalp; and (3) abrasions on both of his forearms. [ 13 ] The injuries to the face and scalp of Mr. Reno were caused as a result of the assault on Mr. Reno on June 19, 2012. [ 14 ] The jury accepted Dr. Stephen's opinion that Mr. Reno died as a result of blunt force trauma to the head. [ 15 ] Mr. Reno's blood was found in the master bedroom of Mr. Baker's residence. There was minimal blood found at that scene. There was no cleanup of the blood by any of the accused at the scene. [ 16 ] Mr.

Reno's blood was found on a pair of gloves, a pair of Asic shoes, and a pair of jeans which also contained Mr. Zaporoski's DNA. [ 17 ] Mr. Zaporoski was wearing the pair of gloves, the Asic shoes, and the jeans and participated in the unlawful act of of assault causing bodily harm on Mr. Reno which caused his death. [ 18 ] I infer from all the circumstances of this case that Mr. Zaporoski intended to cause bodily harm to Mr. Reno that he knew was likely to cause his death and was reckless about whether death ensued or not. [ 19 ] There were no weapons used in the assault of Mr. Reno. [ 20 ] Mr. Baker and Mr.

Zaporoski exited Mr. Baker's residence shortly after 6:00 a.m. Mr. Zaporoski left Mr. Baker's residence at approximately 6:41 a.m. and returned later that morning. [ 21 ] I find that Mr. Reno was assaulted between 5:50 a.m. and 6:41 a.m. Mr. Reno died before 11:30 a.m. on June 19, 2012, from his injuries. [ 22 ] Mr. Zaporoski was not aware of the plan made between Mr. Baker and Mr. Lindgren to kill Mr. Reno. He was, however, aware, prior to arriving back at Mr. Baker's residence on June 19, 2012, at 5:50 a.m., that they were going to assault Mr. Reno. Circumstances of Mr. Zaporoski [ 23 ] Mr.

Zaporoski is 49 years of age having been born on December 12, 1967. He was raised in Prince George. His father died in 2007 and his mother died in May 2013. [ 24 ] Mr. Zaporoski completed grade 8, though he has taken some upgrading courses. [ 25 ] Mr. Zaporoski has suffered from drug abuse in the past, though he reports being clean in 2014. He was physically abused as a child by his father. [ 26 ] Mr. Zaporoski has in the past worked as a logger and a painter. He is a creative man who I am told has considerable talent at drawing. [ 27 ] Mr. Zaporoski has a lengthy criminal record.

His adult criminal record began in 1986 and consists of 60 convictions including a conviction for robbery in 2001 for which he received eight years in jail. [ 28 ] Exhibit 1 on this sentencing hearing consists of a pre-sentence report prepared for Mr. Zaporoski on November 27, 2014, in relation to another offence. Exhibit 1 also consists of a psychiatric presentence report that was prepared by Dr. Morgan on December 12, 2014, as well as his criminal record.

[29] Dr. Morgan in 2014 stated the following at page 10 of his report: Mr. Zaporoski by virtue of his psychopathic personality disorder is at a high risk of committing future general criminal recidivism. He isalso at a high risk of committing impulsive violent offences particularly in the context of intimate relationships. His risk of committingfuture instrumental violence for material gain is reduced likely primarily as a result of his understanding that another seriouspremeditated violent offence will lead to a lengthy period of incarceration. [30] Dr. Morgan went on to say the following: Mr.

Zaporoski has demonstrated that he is able to address his criminogenic needs related to his risk of future violence such as substanceabuse in the community. It appears to me that he has made significant changes consequent to his undertaking the intensive violencereduction program and that this was reflected in his pattern of offending behaviour reducing … Position of the Parties [31] The Crown argues that the appropriate range for the period of parole ineligibility for Mr. Zaporoski is 15 to 18 years. [32] The Crown also seeks an order pursuant to s. 109(3) of the Criminal Code prohibiting Mr.

Zaporoski from possessing anyweapons or explosive substances for life, and a DNA order under s. 487.051 of the Criminal Code. [33] The Crown relies on the following cases to establish the appropriate range for parole ineligibility: R. v. Bennight, 2010 BCSC1334; R. v. Bennight 2012 BCCA 461; R. v. Cerra, 2004 BCCA 594; R. v. Johnny, 2016 BCSC 1888; R. v. Leslie, 2016 BCCA 213; R. v.Shropshire, (SCC), [1995] 4 S..C.R. 227; and R. v. Tankerd, 2017 BCSC. [34] The Crown argues that Mr. Zaporoski has an extensive criminal record and has been diagnosed in the past as being a high-riskto commit violent offences.

He has described himself as a gangster. The Crown also argues that since Mr. Zaporoski has been incustody since November 14, 2013, he has had a number of Correction Act Regulation violations for assault and fighting. [35] The Crown argues that the killing of Mr. Reno was not an impulsive act. Mr. Zaporoski came to Mr. Baker's home early on themorning of June 19, 2012, and left with Mr. Baker at approximately 4:13 a.m. before returning with Mr. Reno at approximately 5:50 a.m. [36] The Crown argues that this was a planned, unprovoked, and callous beating as a result of a perceived debt. Crown argues thatMr.

Zaporoski returned to the residence of Mr. Baker in the morning and afternoon of June 19, 2012, and can be seen going about hisbusiness with a casual demeanour cleaning up the yard and his pickup truck. Crown says this reflects the callousness of Mr. Zaporoski. [37] The Crown notes that Mr. Reno was only 22 years of age when he died. This was a senseless killing over a dispute aboutmoney and/or drugs and the death of Mr. Reno has had a significant impact on his family. Mr. Zaporoski [38] Mr. Buck argues that the appropriate range for the period of parole ineligibility for Mr. Zaporoski is 10 to 12 years. [39] Mr.

Buck, on behalf of Mr. Zaporoski, relies on the following cases to establish the appropriate range of parole ineligibility: R.v. Lalonde, 2013 BCSC 1349; R. v. Learn, 2015 BCSC 972; R. v. Mafi; 2000 BCCA 339 and R. v. Peers, 2006 BCSC 1971. [40] Mr. Buck argues that in order to sentence an offender for a period of parole ineligibility in the range of 15 to 20 years, theoffender must be of the highest order of moral culpability or dangerousness. [41] Mr. Buck concedes that Mr. Zaporoski has a lengthy criminal record, however, also notes that he has taken steps to rehabilitatehimself in the past. [42] Mr.

Buck argues that the injuries to Mr. Reno were few in number and the assault was not excessively violent. This was not aprolonged or vicious beating where weapons were used. [43] The evidence from the text messages demonstrate that Mr. Zaporoski was not involved in the discussions between Mr. Bakerand Mr. Lindgren leading up to the death of Mr. Reno. It was likely that Mr. Zaporoski was aware that Mr. Reno was going to bebeaten. [44] Mr. Buck also argues that it was likely Mr. Reno was dead by the time Mr. Zaporoski returned to Mr. Baker's residence later onthe morning of June 19, 2012. [45] Mr.

Buck notes that one jury member recommended 12 years and none of the other jury members recommended anythingbeyond 10 years. [46] Finally, Mr. Buck notes that Mr. Zaporoski was acquitted of first degree murder. Victim Impact [47] Exhibit 2 on the sentencing hearing is a Victim Impact Statement from Jennifer Reno who is the sister of Jordan Reno. Exhibit3 is a Victim Impact Statement from Pearl Reno who is the mother of Jordan Reno. [48] I have had an opportunity to read the victim impact statements. The effect on the family of Mr. Reno has been devastating. [49] Jennifer Reno wrote the following in part:

My dearest little brother, Jordan, the memories of you will always bring a smile. If only I can have you back then we can sit and talkagain just like we used to do. You always meant so very much and always will. That fact that you are no longer here that will alwayscause me pain. You will be forever in my heart till we meet again. Your older sister, Jen. Decision [50] In coming to a decision on a fit sentence for Mr.

Zaporoski, in addition to the factors as set out in s. 745.4 of the Criminal Code,I must consider the principles of sentencing found in s. 718 which states: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for thelaw 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 and the harm done to victims or to the community that is caused by 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 or to the community. [51]

Section 718.1 of the Criminal Code states: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [52] Other sentencing principles are found in s. 718.2 of the Criminal Code which require the court to take into consideration anyrelevant aggravating or mitigating circumstances. [53] In R. v. Bennight, 2012 BCCA 461, the B.C.

Court of Appeal summarized the principles that apply to a decision to impose anextended period of parole ineligibility at para. 18: • Under s. 745.4 of the Criminal Code, the sentencing judge must consider the character of the offender, the nature of the offence,the circumstances surrounding the commission of the offence, and the recommendation of the jury (if any). • The general sentencing principles of denunciation and deterrence and the judge’s assessment of the offender’s futuredangerousness are relevant factors: R. v.

Shropshire, (SCC), [1995] 4 S.C.R. 227, 102 C.C.C. (3d) 193. • Parole ineligibility greater than 10 years is justified when there is some particularly aggravating feature: Cerra, at para. 17 (perDonald J.A.). • There are two broad groupings of cases where parole ineligibility is extended beyond 10 years: parole ineligibility periods from 12to 15 years and parole ineligibility periods from 15 to 20 years.

The latter group of cases relates to cases at the highest order of moralculpability or dangerousness: Cerra, at para. 26 (per Donald J.A.). • The possibility of a parole ineligibility period greater than 20 years remains in exceptional circumstances: Cerra, at para. 36 (perRyan J.A.). • Orders extending the period of parole ineligibility are highly discretionary and are part of the sentence pursuant to s. 673 of theCriminal Code. Such orders are therefore appealed pursuant to s. 687(1).

An appellant court should only interfere with a trial judge’ssentencing order if the court is convinced it is not fit or it is clearly unreasonable: Shropshire, at paras. 47 – 48. • The wide discretion granted to sentencing judges is fettered by the case law and general ranges of sentences for particularoffences. However, while courts must consider ranges, they are guidelines rather than strict rules. A sentence outside the regular range isnot necessarily unfit, if it is in accordance with the principles and objectives of sentencing: R. v.

Nasogauak, 2010 SCC 6, [2010] 1S.C.R. 206 at para. 44. • Similarly, the two groups of parole ineligibility cases described in Cerra are intended as guidelines, not as binding categorieswithin which a particular case must be placed: R. v. White, 2011 BCCA 328 at para. 24. Character of Mr. Zaporoski [54] As I have already indicated, Mr. Zaporoski has a lengthy criminal record. At the time of this offence, he was on probation forassault causing bodily harm. [55] Mr. Zaporoski has served two federal sentences both for robbery.

He has seven convictions for assault-related offences andthree convictions which involve a firearm. These are in addition to the other offences on his record. [56] Mr. Zaporoski, by his own admission, enjoyed fighting and hurting other people particularly when he was younger, though thisdesire seems to have subsided somewhat with age. [57] In 2014, Dr. Morgan opined that Mr. Zaporoski was at a high risk of committing impulsive violence offences.

[ 58 ] Mr. Zaporoski has shown some insight into his violent behaviour and has had some success in reducing his violent tendencies through programs that he participated in through the correctional system. Nature of the Offence and the Circumstances of its Commission [ 59 ] The murder of Jordan Reno was a senseless unprovoked act. Mr. Reno died as a result of blows inflicted on him by Mr. Baker and Mr. Zaporoski. [ 60 ] Mr. Zaporoski did not participate in any planning and deliberation with regard to the murder of Mr. Reno, however, he was aware that Mr.

Reno was going to be assaulted. [ 61 ] This was not, however, a prolonged brutal killing. There were minimal injuries to Mr. Reno. His skull was not fractured, nor did he have any broken bones. There were no weapons used. The assault lasted a relatively short time. [ 62 ] There was minimal blood found at the scene and staff Sgt. Standing, who was the blood splatter expert, said there was no evidence of any sort of cleanup. [ 63 ] The nature of this offence is not similar to the cases like Cerra where there was a prolonged brutal beating.

In Cerra , the beating was interrupted and the offender then went back and drowned the victim. While all murders are violent and abhorrent, there is nothing particularly aggravating surrounding the circumstances of its commission in this case. [ 64 ] Mr. Zaporoski's moral culpability for this offence is not at the high end of the scale. It is significantly different from that of Mr. Baker and Mr. Lindgren who planned the murder of Mr. Reno. Recommendation of the Jury [ 65 ] In this case, one juror made a recommendation for 12 years. The other jurors made no recommendation with regard to parole ineligibility.

Parole Ineligibility [ 66 ] In determining the appropriate period of parole ineligibility for Mr. Zaporoski, I must consider the mitigating and aggravating factors in this case. [ 67 ] The mitigating factors are that Mr. Zaporoski has had some insight into his violent behaviour and has participated in some programs for violent offenders. [ 68 ] The aggravating factors are: (

a) The assault that led to the death of Mr. Reno was unprovoked; (

b) Mr. Zaporoski has a lengthy criminal record which includes numerous violent offences; and (

c) Mr. Zaporoski was on probation at the time of this offence. [ 69 ] The sentencing cases provided by Crown and by Mr. Buck have been helpful. However, as in all sentencing hearings, it is a very individualized process specific to the particular offender. [ 70 ] Denunciation and deterrence are to be the overriding factors in a determination of a fit sentence given the nature of this offence. However, I will note there is still some hope of rehabilitation for Mr. Zaporoski. [ 71 ] Taking into account Mr.

Zaporoski's character, including his criminal record, the nature and circumstances of the offence, the recommendation of the jury, and the sentencing cases which have been provided to me, I am of the view that a parole ineligibility period above 10 years is warranted. [ 72 ] Mr. Zaporoski represents a high risk of committing further violent offences in the future. It is primarily for that reason that a parole ineligibility period above 10 years is required. In my view, the appropriate range for parole ineligibility is between 12 and 15 years. [ 73 ] Mr.

Zaporoski, if you could just please stand up. [ 74 ] As I said at the beginning of my reasons, the sentence for second degree murder is life imprisonment. I sentence you to life imprisonment.

Taking into account all of the above, there is to be no eligibility for parole until you have served at least 13 years of your sentence. [ 75 ] Also, pursuant to s. 487.051 of the Criminal Code , I order that there be taken samples of your bodily substances for the purpose of forensic DNA analysis. [ 76 ] I further order, pursuant to s. 109 of the Criminal Code , that you are prohibited for life from possessing any firearm, crossbow, prohibited weapon, prohibited device, ammunition, prohibited ammunition, and explosive substances. “The Honourable Mr. Justice Tindale”