R. v. Dolman, 2017 BCSC 2564

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Dolman, 2017 BCSC 2564 Date: 20171201 Docket: 65006-2 Registry: Chilliwack Regina v. Gerald Leslie Dolman(also known as Gerry Leslie Dolman) Before: The Honourable Madam Justice Shergill Oral Reasons for Sentence Counsel for the Crown: P. Blessin G.R. LindseyCounsel for the Accused: C.R. TerepockiPlace and Date of Trial/Hearing: Chilliwack, B.C. October 10, 2017Place and Date of Judgment: Chilliwack, B.C. December 1, 2017 [1] THE COURT: This is a tragic case in all respects. At its heart is the brutal killing of a 49-year-old father and grandfather.

The senseless crime has been committed by a 65-year-old man who will now spend the majority of his remaining life, and what shouldhave been his golden years, in prison. [2] The outcome of uncontrolled anger and rage on the part of Mr. Dolman has brought him before this court. [3] On October 10, 2017, Gerald Dolman pled guilty to the offence of second degree murder of Robert Thomas Splitt. [4] Under s. 235(1) of the Criminal Code, R.S.C. 1985, X. 46, I must impose a sentence of life imprisonment. The only issuebefore this court is how many years Mr.

Dolman should serve before he is eligible to apply for parole. [5] Before I turn to the facts of this case, I will outline the sentencing principles that I must consider. Sentencing Principles [6]

Section 745(

c) of the Criminal Code provides for a parole eligibility range between a minimum of 10 years to a maximum of25 years.

Section 745.4 sets out the factors that the court must consider in determining the appropriate period of parole eligibilitybeyond ten years: 1) the character of the offender; 2) the nature of the offence; and 3) the circumstances surrounding its commission. [7] The power conferred upon me is discretionary. In exercising my discretion, I must have regard to the specific facts of thiscase. The leading authority for this proposition is the decision of the Supreme Court of Canada in R. v. Shropshire (SCC), [1995] 4 S.C.R. 227.

At paragraph 18, the court supports the proposition of the discretionary powers of the sentencing judge. [8] The significance of the 10 to 25 year range stipulated in s. 745, which was then known as s. 744, was described by the court asfollows at paragraph 27: . . . 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. [9] In noting the sentencing policy considerations behind s. 745, the court in Shropshire noted further at para. 23:

The only difference in terms of punishment between first and second-degree murder is the duration of parole in eligibility. 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. [10] The principles and purposes of sentencing are set out at s. 718, 718.1 and 718.2 of the Criminal Code. They were considered atlength by Justice Fisher in R. v.

Yliruusi, 2011 BCSC 268 at paragraphs 6 to 8 in her decision: [6] In addition to these factors, I must have regard to the sentencing principles in ss. 718, 718.1, and 718.2 of the Criminal Code. Section718 requires that just sanctions be imposed 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 . . . to the community. [7]

Section 718.1 provides that a sentence should be proportionate to the gravity of the offence and the degree of responsibilityof the offender. [8]

Section 718.2(

a) requires me to consider that a sentence should be increased or reduced to account for any relevantaggravating or mitigating circumstances relating to the offence or the offender.

While no two cases of second degree murder areidentical, of course, I must be guided by s. 718.2(b), which provides that a sentence should be similar to sentences imposed on similaroffenders for similar offences committed in similar circumstances. [11] At paragraph 13, Justice Fisher also notes that the principles of retribution are part of the sentencing objectives that need to beconsidered by the court in a case such as this one: The authorities establish that the principles of denunciation and general deterrence are paramount in a case like this.

The principle ofretribution is also a factor to consider in conjunction with the other sentencing objectives. As the Supreme Court of Canada said in thecase of R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500 retribution is an accepted and important principle of sentencing. Retribution, which is neither vengeance nor denunciation, requires a sentence to “properly reflect the moral blameworthiness of theparticular offender”. [12] The Yliruusi decision has been cited with approval many times by this court, most recently in the decision of Justice Pearlman inR. v. Ghiorghita, 2017 BCSC 1636 at paragraphs 6 and 7.

In Ghiorghita, Justice Pearlman noted at paragraph 8 that the objective ofrehabilitation was another relevant factor that could be considered by the court. [13] I will now turn to the circumstances of this offence. Circumstances of the Offence [14] At the time of offence, Mr. Dolman was in a sexual relationship with Rebecca Burns. Ms. Burns was a sex trade worker and thegirlfriend of the victim, Robert Splitt. Though Mr. Dolman and Mr. Splitt were aware of each other, they did not socialize or otherwiseinteract with each other. [15] The relationship between Mr. Dolman and Ms. Burns was a longstanding one.

Over time, Mr. Dolman developed an emotionalattachment to Ms. Burns and the relationship became more than sexual. Mr. Dolman gave Ms. Burns gifts, sometimes looked after herchildren and bought them toys, and until the events of May 3, 2016, Mr. Dolman was in large part a beneficial person in Ms. Burns' life. [16] On that day, Mr. Dolman returned home after visiting his ailing mother to find that approximately $600 had gone missing fromhis home. Ms. Burns had spent the night with him, but was no longer in the residence upon his arrival. She had left sometime earlier,having been picked up from the residence by Mr.

Splitt. [17] Mr. Dolman was extremely upset and left his residence in his vehicle in search of Ms. Burns and Mr. Splitt. Mr. Dolman spoketo Heather Platt who knew both Ms. Burns and Mr. Splitt. Based on his conversations with Ms. Platt, Mr. Dolman concluded thatMr. Splitt and Ms. Burns had stolen money from him. He expressed his anger to Ms. Platt, suggesting that he was going to killMr. Splitt, and that he (Mr. Dolman) would be going to jail that day. [18] Mr. Dolman felt betrayed. He concluded that he had been used by Ms. Burns throughout their relationship and that she andMr.

Splitt were operating as a team to steal from him. [19] A short while later as he was driving near the vicinity of Young Road and First Avenue, Mr. Dolman spotted Mr. Splitt'svehicle. Mr. Splitt was driving, and Ms. Burns was in the passenger seat. [20] Mr. Dolman followed Mr. Splitt's vehicle onto First Avenue and started chasing him at a high rate of speed. In his haste,Mr. Dolman hit a cyclist, Norm McDermid, who suffered injuries as a result. Mr. Dolman's actions also caused a multi-vehicle collisionin the same vicinity.

[ 21 ] In a futile attempt to get away from Mr. Dolman, Mr. Splitt pulled his vehicle into the Save-On-Foods parking lot. Mr. Dolman immediately pulled up behind him, exited his own vehicle, and ran up to Mr. Splitt's car. He began stabbing Mr. Splitt with a knife through the window of Mr. Splitt's vehicle. Ms. Burns fled the scene through the passenger door. [ 22 ] Mr. Splitt attempted to escape by getting out of his car. He was unsuccessful and fell to the ground. Mr. Dolman continued stabbing him. [ 23 ] Witnesses at the scene flagged down a police officer who was driving by.

Upon the police officer's arrival, he observed Mr. Dolman standing on top of Mr. Splitt. Mr. Dolman was holding a knife in his hands and was covered in blood. Although the police officer was a trained emergency response team medic, his attempts to save Mr. Splitt's life were unsuccessful. So, too, were the efforts of the paramedics who arrived by ambulance. Mr. Splitt died at the scene. [ 24 ] Mr. Dolman was cooperative with the police and did not attempt to run away from the scene. He was immediately remanded into custody where he has remained since the offence. [ 25 ] A coroner's post-mortem examination of Mr.

Splitt concluded that he had died at the scene of multiple stab wounds to his chest region, suffering also from injuries to his arms and right hand while he was trying to defend himself from the attack. In total, Mr. Splitt sustained over 52 stab wounds including four to the head. [ 26 ] The entire event unfolded in broad daylight with numerous witnesses. Circumstances of the Offender [ 27 ] Mr. Dolman is 65 years old. He was born and raised in Chilliwack where he has lived his entire life. He does not have any children. [ 28 ] Prior to this offence, Mr.

Dolman's only brush with the law was in 1980, at the age of 28, when he was convicted of obstructing a police officer resulting in 21 days of jail time and a $300 fine. [ 29 ] Mr. Dolman was raised in a stable family environment and grew up with one brother and one sister. He had dyslexia as a child which caused difficulty in school. He started experimenting with alcohol at the age of 15 and dropped out of school at the age of 16. At the age of 17, he threatened suicide after consuming alcohol and, as a result, was assessed at Riverview Mental Hospital (formerly known as Essondale).

He was released after about two weeks and has had no subsequent concerns regarding his mental health. [ 30 ] After dropping out of high school, Mr. Dolman began working for his father in a construction and demolition company. He eventually changed employment and has worked in various labour positions throughout his adult life. [ 31 ] Mr. Dolman married at the age of 20 and it was around this time that he began abusing alcohol. He separated from his wife ten years later, eventually divorcing her. At the age of 34, he joined Alcoholics Anonymous in order to assist with his alcohol abuse. [ 32 ] Mr.

Dolman's last employment was with Cominco Ltd., a mining company. He lost this employment in 2006 due to alcohol misuse. He attended a residential substance abuse treatment centre in Alberta around this time, but Mr. Dolman never did return to work. Instead, he began looking after his parents and relying on them for financial support. Though he had some minor supplementation of his income from the Canada Pension Plan, his primary source of financial support for over a decade were his parents. Mr. Dolman's mother is elderly and suffers from dementia. [ 33 ] Mr.

Dolman's father became ill in 2012 and passed away in 2013. Mr. Dolman was close to his father and his illness and subsequent death hit him hard. It was around this time that his life started spiraling out of control. [ 34 ] Mr. Dolman developed a gambling addiction which resulted in significant financial losses, and depletion of his mother's savings. He began to lose contact with his positive social network, distancing himself from family and friends. [ 35 ] He also started associating with sex trade workers and began purchasing illicit drugs in exchange for their sexual services.

Though he himself did not use these drugs and continued to maintain his sobriety, he began to primarily associate with persons involved in criminal activity. He eventually lost all contact with his positive supports in the community. [ 36 ] Mr. Dolman met Rebecca Burns in 2015. He became emotionally attached to her and maintained a sexual friendship with her until the tragic events of May 3rd, 2016. He has had no contact with Ms. Burns since the offence. [ 37 ] The Pre-Sentence Report prepared by Mr. Dolman's probation officer, describes Mr. Dolman as being remorseful for having committed the offence.

This sentiment was shared by both defence counsel and the Crown prosecutor in their sentencing submissions. Impact on the Victim and/or Community [ 38 ] There is no way to accurately describe the trauma that must have been experienced by the many people who were witness to the brutal murder of Mr. Splitt in the Save-On-Foods parking lot. Norm McDermid, the cyclist who was struck by Mr. Dolman's vehicle, has suffered permanent injuries for which he continues to receive treatment. [ 39 ] The greatest victims of this crime are Mr.

Splitt's two children and their families who have been left without the love and support of Mr. Splitt. Mr. Splitt's daughter, Alana Herrling, and son, Travis Herrling, have both provided victim impact statements. They describe Mr. Splitt as a loving parent and grandparent of two who was there for others. Understandably, they have had a difficult

time making sense of this crime and report being plagued by nightmares and thoughts of the crime scene. [ 40 ] There is no sentence that will ever bring Mr. Splitt back to his family. All the court can do is acknowledge the pain and the loss suffered them. Positions of Crown and Defence [ 41 ] The Crown's position in this case is that the appropriate period for parole eligibility is 12 years. In support of his position, Mr. Blessin, directed me to the following decisions from the B.C. Court of Appeal. [ 42 ] In R. v.

Jojic , [2012] BCCA 101, the Court of Appeal upheld the trial judge's decision following a trial and conviction for second degree murder ordering a period of parole ineligibility of 13 years based on the unprovoked nature of the shooting. The salient feature of that case was the trial judge's finding that at least one of the five shots fired by the accused, occurred while the victim lay helpless on the ground. The offender in that case was 60 years old and the trial judge stated that he had numerous people attesting to his good character "such that there is no need to increase parole eligibility".

However, the unprovoked nature of the attack coupled with the failure to stop firing when the victim lay helpless on the ground was considered to a significant aggravating factor (paras. 31 and 32). [ 43 ] Crown counsel has also directed me to the case of R. v. Neumann [2010] BCCA 446 where the appellate court dismissed an appeal from the accused of a 12-year parole ineligibility sentence. Mr. Neumann, who was 63 years old at the time, shot and killed his former spouse with a .357 revolver. He was tried and convicted of second degree murder.

The mitigating factors found by the sentencing judge were as follows (para. 7): (

a) Mr. Neumann did not have a criminal record; (

b) he had a good work history; (

c) he had medical problems; (

d) he acutely felt the loss of his relationship with his daughter and grandson; and (

e) there was no evidence of previous violence by Mr. Neumann towards Ms. Neumann. [ 44 ] The aggravating factors found by the trial judge were as follows (para. 8): (

a) Ms. Neumann had been shot with a high-powered handgun in the sanctity of her own home; (

b) Ms. Neumann had been killed in cold blood without any legally significant provocative conduct on her part; (

c) there was an element of forethought on Mr. Neumann’s part; (

d) the killing had been motivated by anger, born of hatred; and (

e) Mr. Neumann lacked remorse. [ 45 ] Mr. Blessin did acknowledge that in this case and contrary to the Neumann case, Mr. Dolman has expressed genuine remorse. [ 46 ] Finally, Mr. Blessin asked me to consider the case of R. v. Cerra , [2004] BCCA 594 . In that case, a jury had convicted Mr. Cerra of a second degree murder and the trial judge imposed a life sentence, with parole eligibility after serving 20 years. In dismissing the appeal, the appeal court provided an analysis of parole eligibility cases where a greater-than-10-year-eligibility period was imposed.

At paragraph 26, Donald J.A. (writing for the majority) stated as follows: I think it can be said that there are two broad groupings, from 12 to 15 years and from 15 to 20 years, the latter relating to cases at the highest order of moral culpability or dangerousness. [ 47 ] The Crown asserts in this case that the imposition of a 12-year term before parole eligibility would put this case at the low end of this grouping of cases and, therefore, is reasonable in the circumstances. [ 48 ] Defence disagrees with the Crown's position and argues that based on the case law, an appropriate term for parole eligibility is 10 years.

Defence urges me to put great significance on rehabilitation prospects of Mr. Dolman who is willing to abide by any and all correctional programs and address his anger and other unresolved issues. [ 49 ] Although Mr. Terepocki acknowledges that the very public nature of the events coupled with at least some element of forethought is an aggravating factor, it is offset by the mitigating factor that the offence was not completely unprovoked. He urges me to put weight on the fact that Mr. Dolman felt used and duped by Ms. Burns and Mr. Splitt who he believed had stolen money from him. [ 50 ] Mr.

Terepocki has also provided me with some case law in support of his position for the lower period of parole eligibility. In the Ghiorghita case referenced earlier, the court imposed a period of parole ineligibility of 10 years. The accused in that case was 38 years old at the time of the events, a hard worker devoted to his family with no history of drug or alcohol abuse. [ 51 ] In R. v. Reeves , 2011 BCSC 821 , the accused inflicted 34 stab wounds on the victim and cut the lines to two phones to prevent his mother from phoning for help. The victim having bled to death, Mr.

Reeves remained in the house while the police tried to negotiate his removal and surrender. In that case, the court found that Mr. Reeves also had a likely history of mental illness, which was long standing. The court imposed a 10-year parole ineligibility period, stating at para. 25 that:

. . . the Parole Board, in my view, will be in the best position in 10 years to determine whether Mr. Reeves continues to pose a danger and should be denied parole, or that he no longer poses the same danger. [ 52 ] I do not agree with defence counsel's submissions that the determination of whether or not Mr. Dolman presents as a danger after 10 years should be left to the parole board. A sentencing judge’s role is different than that of the parole board, and as such, the proceedings that might occur before the parole board at some date in the future, are not a relevant consideration.

Mitigating and Aggravating Factors [ 53 ] The aggravating factors in this case are numerous. As noted earlier, the offence was committed in broad daylight in a busy public space where many people were present. The manner in which the offence was committed was brutal. Mr. Dolman pursued Mr. Splitt in his vehicle at high rates of speed in a busy shopping area frequented by families and general members of the public. He stabbed Mr. Splitt at least 52 times before he was apprehended by the police. [ 54 ] Mr. Dolman had many opportunities to end his chase of Mr. Splitt and subsequently his attack. He did not do that.

Rather, he persisted even after Mr. Splitt exited his vehicle and tried futilely to escape. [ 55 ] In his blind anger and singular purpose in killing Mr. Splitt, Mr. Dolman caused multiple motor vehicle accidents and injured a cyclist. [ 56 ] However, there are also mitigating factors which I must take into account. [ 57 ] For all intents and purposes, Mr. Dolman had an essentially clean criminal record prior to this offence.

His only criminal conviction was for an unrelated incident over 36 years prior. [ 58 ] This is an offence which was committed in a fit of rage by a socially isolated man who felt betrayed by someone he cared for. He exhibited poor emotional regulation and a complete loss of self-control. These are not excuses, but they do put into context Mr. Dolman's personal circumstances surrounding the offence. [ 59 ] Mr. Dolman is remorseful and has accepted responsibility for the death of Mr. Splitt.

He has expressed a genuine regret for his actions as reflected in his interactions with the police and the justice system since that fateful day. [ 60 ] Mr. Dolman has been cooperative with the police throughout. He remained at the scene, did not resist arrest, and has been described by his probation officer as polite and respectful in his interactions. [ 61 ] Most importantly, Mr. Dolman has taken full responsibility for his actions by entering a guilty plea to this offence. This has saved the victims' families the trauma and uncertainty of having to go through a lengthy trial.

As well, they have been spared the grueling task of giving evidence in court proceedings. The justice system has also been spared the costs associated with the trial. Sentence [ 62 ] I will now impose my sentence. Mr.

Dolman, will you please stand. [ 63 ] I sentence you to life imprisonment for the second degree murder of Robert Thomas Splitt. [ 64 ] I have concluded that period of parole ineligibility of 11 years is appropriate. [ 65 ] In addition, I make the following orders pursuant to s. 109 and 487.051 of the Criminal Code . [ 66 ] Pursuant to s. 109(1)(a), I prohibit you from the possession of any firearm, crossbow, prohibited weapon, ammunition, or explosive substance for life. [ 67 ] A prohibition order will be prepared by the appropriate authority and served upon you.

I delegate to that appropriate authority the duty to inform you of the consequences of violation of my prohibition order. [ 68 ] Pursuant to s. 487.051 , I am also making an order in Form 5.03 authorizing the taking from you for the purpose of forensic DNA analysis, any number of samples of one or more bodily substances that are reasonably required for that purpose by means of the investigative procedures described in s. 487.06(1). [ 69 ] Finally, pursuant to s. 743.21, you are prohibited from having any further communication, either direct or indirect, with Rebecca Burns for the duration of your imprisonment. [ 70 ] Though no submissions were made on this point, I do not consider this a case where the victim surcharge should be applied.

As such, I waive the victim surcharge. “Shergill J.”