R. v. Sun, 2023 BCSC 739

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Sun, 2023 BCSC 739 Date: 20230503 Docket: 32969; 32970 Registry: Vancouver Between: Rex Respondent And Tong Sun Appellant Before: The Honourable Madam Justice Murray On Appeal from: Provincial Court of British Columbia, April 19, 2023 ( R. v. Sun , Vancouver Docket No. 32969 & 32970) Reasons for Judgment Counsel for the Crown: S. Bains Counsel for the Appellant: B. Martland, K.C. Place and Date of Appeal: Vancouver, B.C. April 19, 2023 Place and Date of Judgment: Vancouver, B.C. May 3, 2023 INTRODUCTION [ 1 ] On December 20, 2021, the appellant Mr.

Sun plead guilty in Richmond Provincial Court to three criminal offences. A sentencing hearing was held before Judge Vandor on April 29, 2022. On June 3, 2022, the learned Judge imposed the following sentences: 1) Mischief over $5,000 — suspended sentence and three years’ probation, just under $40,000 restitution and three-year driving prohibition; 2) Dangerous driving — suspended sentence and three years’ probation; and 3) Assault with a weapon, to wit, a car- 76 days in jail (the equivalent of time served) plus 3 years probation. [ 2 ] Mr.

Sun appeals these sentences on two grounds: 1) The sentencing judge erred in her approach to moral blameworthiness by downplaying his severe mental illness that caused the offences; and 2) The sentencing judge erred by overemphasizing deterrence and denunciation, and by failing to achieve a proportionate sentence. [ 3 ] Mr. Sun seeks to adduce fresh evidence namely the psychiatric report of Dr. David Morgan, dated February 20, 2023. [ 4 ] The respondent Crown consents to the fresh evidence and concedes that the sentence appeal should be allowed. The Crown reasonably acknowledges that Dr.

Morgan’s report makes clear that Mr. Sun’s mental health had a clear impact on his offending behaviour and therefore his moral blameworthiness. Of note, the learned sentencing judge did not have the benefit of a full psychiatric assessment before her. [ 5 ] Both Crown and Mr. Sun agree that a discharge is the appropriate disposition given Dr. Morgan’s report but differ over the type of discharge. The Crown takes the position that a conditional discharge with three years’ probation is the appropriate sentence. Mr. Sun submits that an absolute discharge is appropriate.

Alternatively, if the court concludes that a conditional discharge is fit, Mr. Sun submits that the probationary period should be five months rather than three years.

ISSUES [ 6 ] The issue on this appeal is what the appropriate sentence is given the fresh evidence. [ 7 ] Given the positions of counsel the issue can be distilled to two questions: 1) What kind of discharge — absolute or conditional is appropriate; and 2) If a conditional discharge is imposed, how long should the period of probation be? [ 8 ] Before I consider the issues, I will briefly outline the circumstances of the offences and Mr. Sun. In doing so, I will borrow significantly from the reasons for sentence of Judge Vandor and the report of Dr. Morgan.

CIRCUMSTANCES OF THE OFFENCES Mischief over $5,000 [ 9 ] Between January 25 and April 19, 2020, Mr. Sun attended three car dealerships in the Lower Mainland, and struck several vehicles on the lots with a hammer causing approximately $40,000 in damage. Dangerous Driving [ 10 ] Following the mischief on April 19, 2020, Mr. Sun fled in a Mercedes, driving through red lights at a speed of about 80 kph. Police pursued him with emergency lights and siren activated. Mr. Sun did not pull over.

The police eventually called off the pursuit near the Burrard Street Bridge for public safety reasons. [ 11 ] Police caught up with Mr. Sun in downtown Vancouver and followed him into Stanley Park. At that time the park was closed to vehicles because of the pandemic. It remained open to bikes and pedestrians. Mr. Sun drove at high speed through the park, going against the flow of traffic. Police were eventually able to stop his vehicle using a spike belt. [ 12 ] Mr. Sun was alone in the vehicle. He had with him a hammer and goggles. Assault with a Weapon, to wit, a Car [ 13 ] On September 27, 2021, Mr.

Sun shoplifted $68 worth of tea from a grocery store in Richmond. A store employee who witnessed the theft followed Mr. Sun out of the store to a Lexus registered to Mr. Sun’s mother. The employee tried to recover the tea without success. He then walked to the back of the Lexus to take photos of the licence plate. As he was doing so, Mr. Sun reversed the car out of the parking spot toward the employee, who had to jump out of the way to avoid being struck. Mr. Sun then drove away. CIRCUMSTANCES OF MR. SUN [ 14 ] Mr. Sun is 33. Before these convictions, he had no criminal record. At the time of the offences, Mr.

Sun was attending law school in the United Kingdom. [ 15 ] He is now living in Richmond with his parents. He intends to complete law school in the UK when his probationary term is over. He plans to get an MBA after he has finished law school. [ 16 ] It appears from Mr. Sun’s history, as recounted by Dr. Morgan, that at some point after he graduated from high school Mr. Sun started struggling with mental health issues. He has been admitted to hospital under the Mental Health Act , R.S.B.C. 1996, c. 288 , over ten times, and has been mandated to take injection medication. Mr.

Sun does not remember the circumstances that led to any of these hospitalizations. [ 17 ] Mr. Sun reported to Dr. Morgan, that at the time of the offences he was hearing voices that constantly talked to him and about him in a critical, insulting way. The voices told him that they were from the Canadian military but spoke mostly in Chinese. [ 18 ] Mr. Sun reported that the voices told him to perform the acts constituting the mischief charge. The voices told him that he would be heroic for doing so. He told Dr.

Morgan that he got a hammer from a border post near Point Roberts and used it to smash cars at some dealerships. [ 19 ] Regarding the dangerous driving, Mr. Sun said that he was driving normally but is aware that the police believed that he was speeding. He does not recall a spike belt being used to stop his vehicle. [ 20 ] No explanation for the assault with a weapon charge was given in Dr. Morgan’s report. [ 21 ] Mr. Sun told Dr. Morgan that he hears voices every day and that they interfere with his ability to concentrate. He now believes the voices to be from the U.S. military.

He experiences “electric-shock sensations” like painful “sparks and zaps” which he believes is how the messages are sent to him. He thinks that someone is out to get him. The voices command him to do things. The more he resists, the louder and more insistent the voices become.

[ 22 ] Dr. Morgan diagnosed Mr. Sun as having “a serious and enduring mental illness which is characterized as having both psychotic and affective symptoms”. While Mr. Sun has been previously diagnosed with Schizophrenia and Schizoffective Disorder, Dr. Morgan prefers the diagnosis of Schizoaffective Disorder, Bipolar Type. Dr. Morgan notes that Mr. Sun has “historically lacked insight into his illness”, and as a result he has not complied with prescribed medication. [ 23 ] Dr. Morgan concludes from the information available to him, that Mr. Sun’s Schizoaffective Disorder was active at the time of the offences.

He opines that while Mr. Sun’s mental disorder falls short of an NCRMD defence, “but for his mental illness he probably would not have committed the offences”. [ 24 ] With respect to treatment, Dr. Morgan is of the view that Mr. Sun’s illness has become “treatment refractory” as despite the various medications he is on, Mr. Sun remains symptomatic. Dr. Morgan recommends that Mr. Sun should be offered a trial of a different medication. [ 25 ] With that background, I now turn to the issue on this appeal.

WHAT IS THE APPROPRIATE SENTENCE? [ 26 ] The purposes and principles of sentencing are codified in ss. 718 – 718.2 of the Criminal Code , R.S.C. 1985, c. C-46 . Sections 718 and 718.2 read, in part, as follows: Purpose 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law 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. …. Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, … (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, … (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; … [ 27 ]

Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The degree of the responsibility of the offender is of particular importance to this appeal. [ 28 ] In her reasons for sentence, the learned Provincial Court judge noted that she did not have sufficient information before her on which to determine the extent to which Mr. Sun’s mental illness contributed to the commission of the offences. [ 29 ] Dr. Morgan’s opinion answers that question. His opinion, as outlined above, makes clear that Mr.

Sun’s mental illness was directly linked to the offences. In fact, it caused it. Given that opinion, there is no question that Mr. Sun’s moral blameworthiness is diminished by his mental illness. This is a factor that must be weighed in determining a fit sentence. [ 30 ] In R. v. Woolsey , 2021 BCCA 439 , our Court of Appeal set out the “well established framework” for the imposition of discharges:

[19] The well established framework which relates to absolute and conditional discharges was summarized by Justice Bennett in R.v. Jeremiah, 2018 BCCA 89: [13] An absolute or conditional discharge may be ordered by a court in the circumstances outlined in s. 730(1) of the Criminal Code,R.S.C. 1985, c. C-46. The offence cannot be one that carries a minimum sentence, and the maximum sentence must be less than 14years. The discharge must be in the best interest of the accused and not contrary to the public interest.

A discharge means that noconviction is entered, despite a person being found guilty of an offence. [14] The leading case in British Columbia on discharges as a form of sentencing is R. v. Fallofield (1973), (BCCA), 13 C.C.C. (2d) 450 (B.C.C.A.), despite being decided 45 years ago.

The legislation is generally unchanged, and the principlesremain the same. [15] Perhaps the first observation of interest in the decision, which involved the sentencing judge refusing a discharge because hethought they were limited to offences of strict liability or offences that were “unintentional or unavoidable”, was that this Court observedthat “a discretion which is unfettered by law must not be fettered by judicial

interpretation of it”: Fallofield at 452. [16] This Court reviewed a number of authorities, and concluded with the following, subject to the exercise of discretion by thesentencing judge, at 454-55: From this review of the authorities and my own view of the meaning of s. 662.1 [now s. 730(1)], I draw the following conclusions,subject, of course, to what I have said above as to the exercise of discretion. 1) The

section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law or theoffence is punishable by imprisonment for 14 years or for life or by death. 2) The

section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivialviolation. 3) Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the bestinterests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused,that, of course, is the end of the matter.

If it is decided that it is in the best interests of the accused, then that brings the nextconsideration into operation. 4) The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest. 5) Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it isnot necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of aconviction against him may have significant adverse repercussions. 6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does notpreclude the judicious use of the discharge provisions. 7) The powers given by s. 662.1 [now s. 730(1)] should not be exercised as an alternative to probation or suspended sentence. 8)

Section 662.1 [now s. 730(1)] should not be applied routinely to any particular offence. This may result in an apparent lack ofuniformity in the application of the discharge provisions. This lack will be more apparent than real and will stem from the differences inthe circumstances of cases. [31] The Crown argues that a conditional discharge ought to be imposed for the following reasons: 1) It is in Mr.

Sun’s best interests and not contrary to the public interest; 2) The offences were all serious; and 3) Probation is required to satisfy the objectives of promoting rehabilitation and safeguarding the public. [32] Counsel for Mr. Sun takes the position that an absolute discharge is appropriate taking into consideration the fact that Mr. Sunspent considerable time in jail, and has been on probation for 10 months with no breaches.

Counsel stresses that the punishment must beproportionate to the offence and the moral blameworthiness of the offender, and that the principles of deterrence and denunciation “haveno real application” in this case. [33] There is no question on the unusual facts of this case that a discharge is the appropriate sentence. Whether it should beconditional or absolute, is a surprisingly difficult decision to reach. [34] In this particular case, protection of the public is a significant concern. [35] Mr. Sun committed several serious offences. He attended car lots to smash cars not just once but a number of times.

He used hiscar as a weapon not just once but twice. He caused two police pursuits. It is a miracle that no one was injured. He reports doing all ofthese things because the voices that he continues to hear told him to do so. It is of great concern that Mr. Sun has no insight into hismental illness and the need to take his medication. It is of further concern that, according to Dr. Morgan, the medications that Mr. Sun ison no longer seem to be working. [36] The probation order that binds Mr. Sun contains conditions aimed at monitoring Mr. Sun’s mental state, and ensuring that he istaking his medications.

If I were to grant Mr. Sun an absolute discharge, he would be without conditions or supervision; no one would bemonitoring his mental state, whether he is taking his medication as prescribed or the efficacy of that medication. In my view that is not in

Mr. Sun’s best interests nor is it in the interests of the public. According to Dr. Morgan, Mr. Sun continues to hear voices daily. Mr. Sun reports that he is not in control of his emotions, and he feels that his medications are not helping. [ 37 ] I agree with the Crown that the conditions of the probation order serve to protect the public, as well as assist Mr. Sun in getting the medication and forensic help he needs. [ 38 ] For the reasons outlined above, I am satisfied that the appropriate sentence is a conditional discharge. Given Mr.

Sun’s condition, the fact that his medication regimen needs to be altered and the risk that he potentially poses to the community should he go untreated and unsupervised until he is stable, I am further satisfied that the probationary period imposed by the learned Judge Varner should remain. CONCLUSION [ 39 ] In conclusion, I grant the appeal by consent and substitute the sentence of conditional discharge with probation for three years. “The Honourable Madam Justice Murray”