R. v. Thorsen, 2023 BCSC 1661

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Thorsen, 2023 BCSC 1661 Date: 20230828 Docket: 47960-2 Registry: Penticton Rex v. Colton Jacob Thorsen Before: The Honourable Mr. Justice Wilson Oral Reasons for Sentence Counsel for the Crown: A.W. Lerchs Counsel for the Defence: M. Patterson K. Chase, A/S Place and Date of Trial/Hearing: Penticton, B.C. June 6, 2023 Place and Date of Judgment: Penticton, B.C. August 28, 2023 [ 1 ] THE COURT: Mr. Thorsen is before the court today for sentencing. He has pleaded guilty to aggravated assault of Mr. Dylan Mulgrew and uttering threats to Mr.

Nathaniel Westergreen on October 11, 2020, in Osoyoos. The circumstances, which are not disputed, are as follows. The circumstances [ 2 ] Mr. Thorsen and Mr. Mulgrew were known to each other and had been involved in a physical altercation several months prior to the date in question. Mr. Mulgrew and Mr. Westergreen lived in a home in Osoyoos where the events took place. At some point on the prior evening Mr. Thorsen went to the Mulgrew and Westergreen residence and punched a window, breaking it. Mr. Thorsen departed and a text exchange occurred between Mr. Mulgrew and Mr. Thorsen.

The text messages, which were placed before the Court on this sentencing hearing, start with Mr. Mulgrew telling Mr. Thorsen to come back to the house, and Mr. Thorsen responding by saying that he intended to load up his rifle and shoot up the house. [ 3 ] Mr. Thorsen subsequently sent a photograph to Mr. Mulgrew of three guns on a bed, and after a series of exchanges Mr. Thorsen did exactly what he said he was going to do, that is, he went to the house and took his loaded rifle with him. It is of note that, although it is apparent from Mr. Thorsen's initial text to Mr.

Mulgrew that he had a weapon and was intending to bring it with him, Mr. Mulgrew continued to encourage him to do so and indeed told him at one point to hurry up. [ 4 ] Mr. Thorsen then went back to Mr. Mulgrew's house and discharged the rifle. The bullet struck a metal railing. He then pulled the trigger again and shot Mr. Mulgrew in the lower left abdomen. Mr. Thorsen then left, and Mr. Westergreen followed him. Mr. Thorsen pointed his firearm at Mr. Westergreen and threatened him, leading to the charge of uttering threats to Mr. Westergreen. Mr.

Mulgrew was transported to hospital, and the bullet and bullet fragments were removed. By all accounts, he has recovered. [ 5 ] Following his arrest, Mr. Thorsen provided a statement to the RCMP. He admitted to having consumed a substantial amount of alcohol and professed no recollection of the events, that is, he did not admit nor did he deny what he had done because he had no recollection of it. The offender [ 6 ] Mr. Thorsen is currently 27 years of age. He was born and raised in the South Okanagan and was raised primarily by his grandmother.

He never met his biological father and his mother died of a fentanyl overdose approximately six years ago. Mr. Thorsen advised the author of his presentence report that he had a difficult childhood, growing up in a home with frequent arguments, and in the presence of alcohol and substance abuse. [ 7 ] He has had significant challenges with drugs but primarily with alcohol for the majority of his life starting in his teens. He dropped out of school after grade eight but subsequently obtained his GED.

He started consuming alcohol at age 12 and reported that he would routinely consume 26 to 40 ounces of hard liquor on a daily basis prior to his arrest for this offence.

[ 8 ] Mr. Thorsen was detained following his arrest and remained in pretrial detention for a total of 212 days before he was granted bail. Upon his release he went to live in a recovery house in order to receive treatment for his substance abuse issues. He has a criminal record but it is relatively insignificant and as such it does not play much of a role in determining a fit sentence for Mr. Thorsen. [ 9 ] Following his release to the residential treatment facility, Mr. Thorsen has continued to pursue his recovery. Of particular significance in this case is the extent to which Mr.

Thorsen has continued to make efforts to support his development and plan towards a prosocial life. He left the recovery centre where he was initially placed because he saw other residents were continuing to use and therefore requested a transfer to one that he thought would be more conducive to his long-term goal of sobriety. [ 10 ] Although many people remain at such facilities for a matter of months, Mr. Thorsen continues to reside at a residential treatment program to this day, some two years later.

He has obtained employment and he has letters of support from his employer and from Reaching Out Support Recovery facility, which is where he currently resides. Letters of support from the latter have been provided. [ 11 ] Mr. Thorsen, in addition to pursuing his own programming, has taken on service work with the Alcoholics Anonymous community and volunteers his time at events. He is described as a mentor to young recovering addicts. His employer writes to say that they have a four-year contract and that they would hope to keep Mr. Thorsen in their employ for the duration of that contract.

As of the date of the letter, he had been working there for approximately four months. Positions on sentencing [ 12 ] The Crown's position is that a custodial sentence of three-and-a-half years is appropriate in this case. In so saying the Crown refers to the Court of Appeal's decision in R. v.

Craig , 2005 BCCA 484 , where the range was set out by the Court of Appeal in paragraph 10: [10] It is not disputed, and it appears clear on the cases, that a sentence of two years' imprisonment for the commission of aggravated assault (which is the sentence that was effectively imposed by the judge) is at the low end of the range of sentences imposed on similar offenders in similar circumstances [Citations]. The range of sentence for similar offences was described as being between 16 months and six years in R. v. Johnson , [citation], two years less a day to six years in R. v.

Biln , [citation], and, most recently, between 18 months and six years in R. v. Willier , [citation].

In determining an appropriate sentence within this broad range, an unprovoked attack with a weapon tends to result in the imposition of a sentence at the higher end while a consensual fight that has escalated with resulting injury tends to result in a sentence at the lower end. [ 13 ] The defence agrees that three-and-a-half years would generally be appropriate here but argues that this is a case of exceptional circumstances and seeks a two-year conditional sentence followed by three years of probation. [ 14 ] The parties agree with regard to both the mitigating and aggravating circumstances.

The mitigating circumstances here are that Mr. Thorsen pleaded guilty well in advance of trial, sparing the system from the need to proceed with a trial and sparing the victims from having to testify. There are two reports, a presentence report and also a psychological report. The opinions of the authors of the two reports are generally positive, and while there are some concerns within those reports, the overall effect, the Crown says, is mitigating. [ 15 ] The Crown acknowledges that Mr.

Thorsen's employment and his steps to rehabilitation as evidenced by the letter of support are all mitigating factors for the Court to consider. Aggravating and mitigating circumstances [ 16 ] As for the aggravating circumstances, the Crown says that Mr. Thorsen's use of a firearm is significantly aggravating, a position that is not disputed by counsel for Mr. Thorsen. The Crown also refers to the fact that this offence involves some level of planning, that is, it was not a spontaneous act but rather some intent can be gleaned from the text messages in which Mr.

Thorsen said he is going to load his gun and return to the residence where Mr. Mulgrew and Mr. Westergreen were located, which is precisely what happened. In other words, while there was some provocation in terms of the text messages from Mr. Mulgrew, Mr. Thorsen had ample opportunity to pursue other avenues. [ 17 ] The Crown also argues that there appears to be, at least from the psychological report, to have been some element of a vigilante motive and that there was clearly a grudge between the two men. Finally, Mr. Mulgrew suffered an injury, albeit there is no evidence from Mr.

Mulgrew as to any long-term consequences. Of course, some injury is always present if the charge is aggravated assault. [ 18 ] Subsequent to the hearing, the Court was provided with a victim impact statement from Mr. Mulgrew, who said he would not want Mr. Thorsen to go to jail if it would impact on his sobriety. I have taken that late victim impact statement into account. Sentencing principles [ 19 ] The primary sentencing principles that apply in this case are denunciation and deterrence. Denunciation is of particular significance in this case because of the presence and use of a firearm.

However, the principle of rehabilitation also plays a role in determining an appropriate sentence for Mr. Thorsen. Discussion [ 20 ] There is no issue, and indeed it is conceded by counsel for Mr. Thorsen, that absent the steps taken by Mr. Thorsen since his

release the sentence of three-and-a-half years proposed by the Crown falls squarely within the range of appropriate sentences for such an offence as summarized earlier in Craig . [ 21 ] Sentencing is an individualized process and requires the court to craft a sentence that is appropriate both for the offender but also for the community as a whole. Counsel for Mr. Thorsen argues that Mr. Thorsen's two years of clean and sober living at the recovery centre is without incident or concern and is of significant import and says that a return to jail is not required in order to ensure that Mr.

Thorsen does what he is ordered to do. Indeed, he argues that it would be counterproductive to return Mr. Thorsen to a jail when he would be put in the position of being alongside offenders, many of whom will continue with criminal activity once released. He says that one of the keys to Mr.

Thorsen's success has been the move away from the South Okanagan and the negative friends and associates he has in that area, and he is now in Vancouver surrounded by people with the same life plan as his, which is to maintain sobriety and reintegrate into the community. [ 22 ] The presentence report contains the following with regard to the circumstances of the offence: The subject reports that on the day of the offence he had heard from friend's that the victim wanted to "beat him up". He then recalls a text exchange with the victim but could not remember how it started as he was drunk. Mr.

Thorsen admits that the texts escalated to the point where he attended the residence and broke a window. He claims that he has no memory of any events that transpired afterwards as he was "blackout drunk". Mr. Thorsen states that he has no memory of the shooting, or threats made. He also did not recall anything related to firearms and denies having access to firearms.

He maintains that he is unaware of how he came into possession of the firearms used in the offence. [ 23 ] While it is certainly possible that the accused had no memory of the events on the day in question, it is perhaps more troubling that he denied any knowledge as to how he came into possession of the firearms. The text messages and the photograph sent to Mr. Mulgrew would suggest that Mr. Thorsen had not one firearm but three, and the text messages also reveal that his exchange with Mr. Mulgrew which followed Mr. Thorsen's going to the house and breaking the window all suggest that Mr.

Thorsen was quick to resort to using his firearm, starting with his threats by text message and followed by his attendance at the house with loaded firearm in hand. [ 24 ] Mr. Thorsen expressed to the Court his sincere regret for his actions and says that he made a terrible mistake. He acknowledges there were better ways to deal with his dispute, and at the time he was mentally in a dark place. He said that he is in a much better state of mind now and for the first time in his life he feels happy. He is focussed on the future and not the past. [ 25 ] I accept what Mr.

Thorsen says to the extent that what he did was a terrible mistake, and I do accept that his drug and alcohol addictions likely resulted in his inability to control his behaviour on the day in question. I am still left with the fact, however, that he had at least one and potentially three firearms in his possession and no clear understanding as to how that came to be. [ 26 ] Moreover, I have some concerns about Mr. Thorsen's attitude towards his victim. In the presentence report the writer says the following with regard to Mr. Thorsen's comments about the victim: Mr.

Thorsen states that he hasn't thought about the victim D.M. since the index offence but feels that the victim "deserved it" due to the past issues they had together. He admits however that he could have handled the situation better and that it was a poor decision made as a result of drugs and alcohol. He states that he is generally not a violent person and in the future he would "walk away". Mr.

Thorsen also later clarified that he did regret his actions that day. [ 27 ] To the same end, he told the author of the psychological report the following: When asked what motivated the assault, he offered that at the time the victim was "hurting girls and nobody was doing anything about it." He clarified that he believed the victim was "raping girls," a couple of whom were friends of Mr. Thorsen. He added that approximately one year prior to the index offence, he "fought" the victim and his friend because they attempted to sexually assault his female roommate. Mr.

Thorsen told me that the police attended on that occasion, but they were "useless" by not arresting the alleged rapist. He stated that "in my head somebody had to do it," suggesting a vigilante motive to the index offence. [ 28 ] These two statements, both made to the report authors at least 18 months after the offence, both seem to suggest that Mr. Thorsen remained of the view, at least to some extent, that Mr. Mulgrew was deserving of what happened. [ 29 ] Both counsel acknowledge they were unable to find cases that were actually similar.

In some cases, the facts in the cases to which I was referred were significantly more serious: R. v. McKenna and R. v. Laglace. Moreover, in some of the cases provided by counsel, the sentences were joint submissions, which do not require the judge to necessarily fashion a fit sentence; rather, the question for the court is only whether the sentence would bring the administration of justice into disrepute or is contrary to the public interest, which involves different considerations. I generally find cases that involve joint submissions to be of limited value. [ 30 ] Mr.

Thorsen is to be congratulated for the significant efforts and successes as he pursues a better life for himself. It is not easy to overcome addictions issues and Mr. Thorsen has demonstrated real staying power as he maintains his path to sobriety. [ 31 ] A conditional sentence order represents a form of custodial sentence but provides the offender with the opportunity to serve that sentence in the community as opposed to an institution. The concern here is whether a conditional sentence would be appropriate.

Returning to Craig , the Court of Appeal commented that an appropriate range of custodial sentence for aggravated assault is 16 months to six years. [ 32 ] The primary sentencing principles that apply here are denunciation and deterrence, both specific to the offender but also generally to the community at large. The use of a firearm necessarily moves the case away from the lower end of the sentencing range in my view. [ 33 ] Illegal firearms are a significant problem in our communities and put people, often wholly innocent people, at risk of serious injury or in some cases death.

It is rare that our news does not include some report of a shooting. The nature of illegal firearms is that

even if the perpetrator and the intended target in a shooting are both involved in criminal activity, such as drug or gang activity, the risk to ordinary members of the public who are present by happenstance is nonetheless significant. [ 34 ] The offence here involved a moderate degree of planning. Mr. Thorsen showed his victim pictures of his firearms by way of text message before going to the victim's home and actually using one of the firearms, including deliberately shooting at the victim and injuring him. As such, the moral culpability is high. [ 35 ] Notwithstanding Mr.

Thorsen's admirable efforts at self-improvement, I conclude that the sentencing objectives of general deterrence and denunciation would not be satisfied with a conditional sentence of imprisonment given the gravity of this offence when an illegal firearm was used to shoot at and wound his victim. In other words, a custodial sentence is required in these circumstances. [ 36 ] I turn now to the question of determining a fit sentence. [ 37 ] While I do not consider a conditional sentence sufficient to address the community's concerns regarding denunciation and deterrence, Mr.

Thorsen's work in the pursuit of his sobriety is nonetheless very impressive and is something that warrants consideration in determining a fit sentence. Given the passage of time since his release, there is every reason to believe that Mr. Thorsen will prove successful given that he has had the ability to sustain his sobriety over what is now a couple of years. Determining a fit sentence requires a balancing of the need for denunciation and deterrence on the one hand, and recognizing Mr. Thorsen's successes on the other. [ 38 ] Mr.

Thorsen, please stand. [ 39 ] In the circumstances, I have concluded that a fit sentence in this case is two years of imprisonment followed by 18 months of probation. Mr. Thorsen is entitled to enhanced credit for pretrial custody, which I am advised works out to some 318 days. You may be seated again. [ 40 ] In a moment I will invite counsel to make submissions on the terms of probation. I also sentence Mr.

Thorsen to 180 days imprisonment under Count 3, which is to be served concurrently. [ 41 ] Finally, there are ancillary orders, a DNA order pursuant to s. 487.051 of the Criminal Code ; a 10-year firearms prohibition pursuant to s. 109 of the Criminal Code ; and Mr. Thorsen is to have no contact with either Mr. Mulgrew or Mr. Westergreen during his sentence. [SUBMISSIONS ON TERMS OF PROBATION FROM 2:21:10 P.M. TO 2:26:25 P.M.] [ 42 ] THE COURT: For the benefit of the clerk, do you have the picklist numbers for the various terms, Ms. Lerchs? [ 43 ] CNSL A. LERCHS: I can pull those up.

Just one moment, please. [ 44 ] THE COURT: Yes. [ 45 ] CNSL A. LERCHS: Yes, thank you, Justice. The first condition, reporting, would be 5004. [ 46 ] THE COURT: Okay. [ 47 ] CNSL A. LERCHS: The no-contact is going to be 5101, with none of the exceptions that are in there. The no-go condition, 5105-1, again none of the exceptions. The reside condition, 5301. Abstention is 5601; and counselling is 5701; and finally 5905 would be the weapons and firearms prohibition, again with none of the exceptions. [ 48 ] THE COURT: All right. Thank you. Are you following along with the picklist numbers? [ 49 ] CNSL M.

PATTERSON: Yes, I agree with those. [ 50 ] THE COURT: All right. Thank you. All right. So the terms of the probation will be in accordance with those picklist items as identified by Ms. Lerchs and agreed to by Mr. Patterson. [ 51 ] CNSL M. PATTERSON: Justice, can you confirm on the record if you have applied -- or provided with the enhanced credit for the two -- [ 52 ] THE COURT: Yes. So by my math, there was 318 days credit, which would leave 412 days remaining. [ 53 ] CNSL M. PATTERSON: That is correct. [ 54 ] THE COURT: That is my math. [ 55 ] CNSL A. LERCHS: Thank you. [ 56 ] CNSL M.

PATTERSON: Yes. [ 57 ] CNSL A. LERCHS: Thank you, Justice. [ 58 ] CNSL M. PATTERSON: Thank you, Justice. [ 59 ] CNSL A. LERCHS: I would indicate a stay of proceedings directed by Crown on the outstanding counts, which is number one and number four.

[ 60 ] THE COURT: Thank you. [ 61 ] CNSL A. LERCHS: Thank you. [ 62 ] THE COURT: Anything further, counsel? [ 63 ] CNSL M. PATTERSON: Not from me, Justice, thank you. [ 64 ] CNSL A. LERCHS: Nothing further, Justice. [ 65 ] THE CLERK: Sorry, Justice. I have that the guilty plea was only on Count 1 and 3 for his sentencing. [ 66 ] CNSL A. LERCHS: My apologies. No, that should be on -- [ 67 ] THE COURT: Stays on number -- [ 68 ] CNSL A. LERCHS: -- two and four. [ 69 ] THE CLERK: Okay, thank you. [ 70 ] CNSL A. LERCHS: Thank you. [ 71 ] THE COURT: Yes. Thank you. [ 72 ] CNSL A. LERCHS: Thank you. “Wilson J.”