R. v. Comerford, 2023 BCSC 851

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Comerford, 2023 BCSC 851 Date: 20230324 Docket: 94260-2 Registry: Kelowna Rex v. Devin Andrew Wesley Comerford Zackary Alan Gaubert Before: The Honourable Mr. Justice G.P. Weatherill Oral Reasons for Sentence Counsel for the Crown: P. O'Neil Counsel for the Accused Comerford: G.J. Gray Counsel for the Accused Gaubert: G.A.P. Verdurmen Place and Date of Trial/Hearing: Kelowna, B.C. March 24, 2023 Place and Date of Judgment: Kelowna, B.C. March 24, 2023 [ 1 ] THE COURT: Messrs. Comerford and Gaubert are both before me today for sentencing.

On September 12, 2022, both men entered guilty pleas to the offence of aggravated assault, contrary to s. 268 of the Criminal Code , R.S.C. 1985, c-46 [ Code ]. The assault took place on March 2, 2020. I. CIRCUMSTANCES OF THE OFFENCE [ 2 ] The circumstances of the offence are not seriously in dispute. They are set out in a helpful agreed statement of facts that was marked as an exhibit on sentencing.

I do not propose to review the facts in detail, but will append the agreed statement of facts to these reasons if they are ordered. [ 3 ] The assault started just before 2:30 a.m. in an alleyway in downtown Kelowna after the offenders, Messrs. Gaubert and Comerford, together with two friends, Messrs. Austin Pederson and Derrick Bouwman, spent the evening drinking to apparent excess at a nearby nightclub. When they left the nightclub, they were all intoxicated. [ 4 ] The victim of the assault, a homeless man named Mr. Mackenzie Russell, was apparently in the wrong place at the wrong time.

He encountered the offenders and their two friends near an alleyway. A verbal altercation ensued about a young woman that the men had met. Mr. Russell produced a knife of some kind, which provoked matters even further. It was Mr. Russell alone against the four men, which prompted Mr. Russell to run away down the alleyway. The four men chased Mr. Russell, caught him and knocked him to the ground. Three of the four men, Messrs. Pederson, Gaubert, and Comerford, took turns repeatedly beating, punching, kicking and striking Mr. Russell with a wooden cane. Meanwhile, Mr.

Bouwman stood by videotaping the beating with his cellphone. Mr. Russell lay on the ground in the fetal position in an unsuccessful attempt to protect himself. After about a minute of being beaten, kicked, and struck with the wooden cane, Mr. Russell lay motionless on the ground. The four men ran away, leaving Mr. Russell on the ground in the alley, apparently unconscious. [ 5 ] The four men soon returned, administered more kicks and punches to Mr. Russell and left him for a second time. They then returned again, delivered further kicks and punches, and then rummaged through Mr.

Russell’s pockets while he lay on the ground motionless. [ 6 ] Much of the assault was captured on a nearby nightclub's security video, which is in evidence. [ 7 ] To say that the assault on Mr. Russell was vicious would be a gross understatement. From my observations of the video, it was an unprovoked, violent, merciless, and cowardly attack by three men with a fourth standing by. The assault was on a vulnerable man who was rendered defenceless. [ 8 ] The RCMP subsequently obtained other security footage, which shows Mr.

Comerford throwing the cane, apparently broken by this point, and a knife onto the roofs of nearby buildings. [ 9 ] Luckily, passersby found Mr. Russell in the alleyway and he was transported to Kelowna General Hospital for treatment. He

was hospitalized and diagnosed with a potentially life-threatening brain injury. The agreed statement of facts sets out his injuries, which included: intercranial hemorrhage; a subdural hematoma; significant mass effect, or squeezing of the brain, caused by pressure from the hematoma; and a brain herniation. Happily, Mr. Russell's brain injury did not require surgery and he discharged himself five days later on March 7, 2020. [ 10 ] On May 7, 2020, following a police investigation, Messrs.

Comerford and Gaubert were arrested and spent one night in custody, and then were released on a release order that included a term that they not consume any alcohol or drugs. Both Messrs. Comerford and Gaubert were interviewed by the RCMP and both admitted responsibility for the assault on Mr. Russell. Both expressed shock, horror and regret to the police officers when shown the surveillance videos. They both stated that they could not believe they were capable of engaging in such awful behaviour.

They also both said that their memories of the events were either poor or non-existent. [ 11 ] Aggravated assault charges were laid against the offenders and a preliminary inquiry was held in November 2021. They were committed to trial, which was set for 12 days in October 2022. On September 12, 2022, both Messrs. Comerford and Gaubert pled guilty to the charge of aggravated assault. II. BACKGROUND OF THE OFFENDERS A. Mr. Comerford [ 12 ] I will deal first with Mr. Comerford's background and circumstances. They are summarized in a presentence report dated November 14, 2022, that I have read.

It is filed as an exhibit and I do not propose to repeat what is contained in it. [ 13 ] Briefly, he is currently aged 22. He was aged 19 at the time of the offence. He is currently working full-time in the construction industry. He is supporting a young daughter from a prior relationship. There is some indication of an attention deficit hyperactivity disorder (“ADHD”) diagnosis when he was a youth and he has had some issues with substance use disorders for alcohol and drugs. [ 14 ] He says that alcohol played a significant role in his behaviour that resulted in the aggravated assault charge.

He says he has since stopped drinking aside from one slipup in October 2021, when he breached the terms of his release order. The circumstances there are that he was left alone to look after his daughter. When the daughter’s mother returned to the home, he was inebriated and the police were called. He pled guilty to breaching the condition of his release and was fined $500. Since that time, he says he consumes cannabis only. [ 15 ] He acknowledges that what he did to Mr. Russell was wrong and he expresses regret for it. His family and friends confirm that the assault was completely out of character for him. B.

Mr. Gaubert [ 16 ] Mr. Gaubert's background and circumstances are also summarized in a presentence report dated November 14, 2022, which has been filed as an exhibit on sentencing. As with Mr. Comerford, I will not go into much detail. [ 17 ] Mr. Gaubert is 23 years of age. He was aged 20 at the time of the offence. He grew up in a stable home in the Kelowna area. He was diagnosed with ADHD at age seven. He has completed Grade 12. He had a good upbringing and was supported by his parents and family. There is no history of violence or abuse.

He did have troubles with school due to his ADHD and education was a challenge for him. [ 18 ] He left school and became a roofer at age 19. He began working for a demolition company about three years ago. He is currently a foreman and trains others in the job. He has job security. He was in a four-year relationship that has now ended, and has a four-year-old daughter by that relationship who is permanently placed with Mr. Gaubert's parents. [ 19 ] He says he started drinking heavily in his teens on weekends.

On the evening in question, he apparently had come into some excess money and wanted to treat his three friends to a night out. They got together at a nightclub and all four men drank alcohol to excess. [ 20 ] His employer describes him as a good employee: punctual, good spirited and neither aggressive nor violent. Similar to Mr. Comerford, the incident in question is described as completely out of character for him. III. CIRCUMSTANCES OF THE VICTIM [ 21 ] A victim impact statement was not obtained from Mr. Russell for unknown reasons.

It appears, however, that he had some pre-existing mental health or psychological issues. Nevertheless, the Crown did obtain a victim impact statement from a Mr. William Daniel Zuffa. Mr. Zuffa is Mr. Russell's service provider, and has known Mr. Russell since Mr. Russell was ten years old. Mr. Zuffa's victim impact statement was filed as an exhibit and read out in court. It summarizes Mr. Zuffa’s observations of how the assault impacted Mr. Russell. [ 22 ] It will suffice to say that the impact has been significant and long-lasting. At the time, Mr. Russell was homeless.

He was an drug addict and suffering from various mental health disorders. The assault had and continues to have a profound physical and psychological impact on him. Indeed, having viewed the security video of the assault and the photographs taken of Mr. Russell's injuries, it is hard to imagine that the assault could not have had a significant impact on him and exacerbated any pre-existing psychological conditions he may have had.

IV. DISCUSSION [ 23 ] I will note at the outset that neither Mr. Comerford nor Mr. Gaubert has any prior court or criminal history. This is the first time they have been before the courts, save for Mr. Comerford who pled guilty and was fined for breaching a condition of his bail in October 2021. [ 24 ] For all intents and purposes, however, I consider both Messrs. Comerford and Gaubert to be first-time offenders. A. Positions of the Parties [ 25 ] The Crown asserts that a fit sentence for both offenders is 18 months' incarceration to be followed by 18 months' probation. Both Mr. Verdurmen for Mr. Gaubert and Mr.

Gray for Mr. Comerford argue that incarceration would not be appropriate. They submit instead that a 15- to 24-month conditional sentence order under s. 742.1 of the Code would be appropriate, to be followed by a period of probation. They point out that both offenders are youthful and have no criminal record, and that mitigating factors exist, which I will review in short order. [ 26 ] While not attempting to in any way water down the serious nature of the assault on Mr. Russell, both Messrs.

Gray and Verdurmen say that what happened was not a swarming, as the Crown suggests, but rather an assault that took place following an unpleasant disagreement between the offenders and Mr. Russell over the young girl. They assert that it was Mr. Pederson, not either of the offenders, who instigated the fight and confronted Mr. Russell, who had pulled a knife. They argue that Mr. Pederson was the most aggressive of the three, and it was Mr. Pederson who continued to inflict violence on Mr. Russell when the others had left. [ 27 ] They point out that Mr. Comerford did not get involved until the knife was produced.

However, they do concede that kicking Mr. Russell and using a cane to beat him was inappropriate. They agree that both offenders beat up a vulnerable person, and both are deeply ashamed and embarrassed about what happened. [ 28 ] Messrs. Verdurmen and Gray emphasize the sentencing principles of proportionality, parity and restraint, and argue that the least restrictive sentencing possible in the circumstances should be imposed.

They argue that incarcerating their clients would not be productive because it would take them away from their daughters and their jobs, and prevent them from being contributing members of society. They urge me to consider alternatives to incarceration and the principle of restraint. [ 29 ] I want to speak briefly about the aggravating and mitigating circumstances in this case, set out in the Crown's sentencing submissions at paras. 55 through 69. B. Aggravating Factors [ 30 ] I will deal now with the aggravating factors, firstly that the Crown calls the assault a swarming.

I do not want to get stuck in semantics, but I agree with the Crown that this was an assault by four men against one. It was a senseless and brutal attack by at least three young men against a lone victim. The victim tried to run away, but was taken down to the ground and beaten. [ 31 ] Secondly, the assault involved a weapon, which increased the risk of serious injury. That weapon was the wooden cane that Messrs. Comerford and Gaubert struck Mr. Russell with in turns. The assault continued long after Mr. Russell was incapacitated. Messrs.

Comerford and Gaubert continued punching, kicking, stomping on, and striking Mr. Russell with the cane long after he had fallen to the ground and appeared not to be moving. [ 32 ] Messrs. Comerford and Gaubert returned to the scene to inflict more violence on Mr. Russell, delivering additional gratuitous blows to Mr. Russell as he lay injured and prone on the ground. Mr. Russell was left in the alley after the assault, despite his obvious injuries. It was left to bystanders to come across Mr. Russell and summon medical help. [ 33 ] Mr.

Russell's injuries were serious and life-threatening, included a subdural hematoma and cuts to his face and head. It was only through good fortune that his injuries were not more serious or indeed fatal. [ 34 ] Lastly, the impact of the assault on Mr. Russell continues. He has experienced negative emotional and psychological effects since the assault. C. Mitigating Factors [ 35 ] The first and most important mitigating factor is that both offenders pled guilty after the preliminary inquiry and before the scheduled trial.

The guilty pleas spared many witnesses the distress and inconvenience of attending court to give evidence, and saved the judicial system some twelve days of scheduled trial time. [ 36 ] Second, both offenders fully cooperated with the police investigation from the outset and acknowledged their involvement when shown the video depicting the assault. [ 37 ] Third, neither offender had a criminal record at the time of the offence. [ 38 ] Both offenders were youthful adults at the time of the offence and, with the exception of Mr.

Comerford’s breach of his bail condition, both offenders have stayed out of trouble since the offence. Both are working and carrying on law-abiding, prosocial lives. [ 39 ] Lastly, at an early stage, indeed during the police investigation, both offenders expressed powerful remorse for Mr. Russell and

for their own actions. They repeated these expressions of remorse before me this afternoon. D. Purpose and Principles of Sentencing [40] I am going to deal very briefly with the purpose and principles of sentencing.

Section 718 of the Code states that the fundamentalpurpose of sentencing is to protect society and contribute to respect for the law and the maintenance of a just, peaceful, and safe societyby imposing just sanctions that meet one or more of six stated objectives: denunciation of unlawful conduct; general and specificdeterrence; the separation of offenders from society where necessary; the rehabilitation of offenders; reparation to victims and to society;and the promotion of a sense of responsibility. [41] The Code sets out further fundamental principles, including that sentences must be proportionate to the gravity of the offence andthe offender's degree of responsibility or moral blameworthiness: s. 718.1. [42] Recognition of aggravating and mitigating factors is also germane to the sentencing process: s. 718.2(a). [43] Oftentimes certain sentencing principles will be in conflict.

Accordingly, sentencing is more of an art than a science. Sentencingjudges must balance the various sentencing principles and decide which ones best govern a particular case. [44] The process of sentencing offenders is, of course, highly individualized, and although our Court of Appeal has set out a range of16 months to six years of incarceration for sentences for aggravated assault, even for first-time offenders, those are considered onlyguidelines: R. v. Friesen, 2020 SCC 9 at para. 37. [45] Aggravated assault is a serious offence. It carries a maximum period of incarceration of 14 years.

I have reviewed a number ofcases referred to me by Crown: R. v. Craig, 2005 BCCA 484; R. v. Slizak, 2017 BCCA 279; R. v. C.N. (2006), 83 O.R. (3d) 473, (C.A.); R. v. Nguyen, 2008 BCCA 252; R. v. Hurley, 2008 BCCA 461; R. v. Becker, 2008 BCSC 1841; R. v. Davies, 2022BCCA 391; and R. v. Badhesa, 2019 BCCA 70. [46] I have also reviewed a series of cases referred to me by Mr. Verdurmen: R. v. Clark, 2002 BCSC 1013; R. v. Nakamura, 2012BCSC 327; R. v. Nicholls, 2013 BCSC 1145; and R. v. Shand, 2021 NSSC 263. E. Address to the Accused [47] Messrs.

Comerford and Gaubert, I have considered the submissions of Crown and your counsel and the case law that I have justreferenced. I have also considered that at the time of the offence, neither of you had any prior criminal history or involvement with thecourts. I have considered your youthful age at the time; your personal circumstances, including that you are both fathers of youngchildren; that you currently have meaningful jobs and are contributing to society; and that your friends and family describe you both ascaring, considerate, and generous persons.

I have considered that what occurred on March 2, 2020, some three years ago, was out ofcharacter for you both. [48] I have also considered the mitigating circumstances, including what appears to be heartfelt expressions of remorse andembarrassment for what you did. [49] I have considered the principles of sentencing in s. 718 of the Code, including the principle of restraint and that the principle ofincarceration should be considered only when other alternatives are not appropriate. [50] I have reviewed the presentence reports mentioned above. [51] On your behalf, Messrs.

Verdurmen and Gray ably submit that I should sentence you to a conditional sentence order so that youcan serve your sentence in the community. They emphasize the fact that you are both first offenders, you both are working to supportchildren and yourselves. [52] On behalf of the Crown, Ms. O'Neil argues that a conditional sentence order would not be appropriate in this case given thenature of the assault and the vicious circumstances that we all observed in the video. V.

DECISION [53] While I am mindful of the principles of rehabilitation, proportionality, parity, and restraint, I consider that what occurred in thiscase requires denunciation and deterrence as a key factor in determining a fit and proper sentence for you both. For substantially thereasons articulated by Ms. O'Neil on behalf of the Crown, which frankly I entirely agree with, I am not persuaded that a conditionalsentence order would be a fit and proper sentence in this case.

In my view, what is required is a custodial sentence. [54] I appreciate that you were both intoxicated that night, which probably reduced your inhibitions and may have fuelled yourbehaviour, but that is no excuse for what happened. You both acknowledge that. The security video does not suggest that you wereinebriated to the point of being unable to function. Indeed, it suggests quite the opposite. [55] What is captured on that security video, inebriated or not, is horrendous and inexcusable. You are both healthy and apparentlycapable young men, and you must have known that what you did to Mr.

Russell that night would have consequences if you were caught.It is evident that you both have gone on to lead productive, law-abiding lives, which I am certainly happy to see. However, as Imentioned earlier, denunciation and deterrence are the principal considerations in my view. [56] Crimes of violence such as what we saw in that video require denunciation. What you did on March 2, 2020 to Mr. Russell was

violent, vicious, excessive, unprovoked and cowardly. Mr. Russell was a vulnerable person, apparently homeless, and now suffers significant consequences from the assault, which is going to negatively impact and affect his life. Everyone seems to agree that intoxication is an explanation for what happened, but not an excuse. [ 57 ] Messrs. Comerford and Gaubert, if you would stand, please. [ 58 ] I agree with Crown and your respective counsel, Messrs. Gray and Verdurmen, that your background, personal circumstances, and involvement in the assault of Mr.

Russell were similar and that you should accordingly receive the same sentence. Taking all of the factors I have mentioned into consideration and using every ounce of restraint that I can muster, I determine that a fit, just, and proportionate sentence for you both would be a period of 16 months' incarceration, to be followed by a period of 18 months' probation. That is the sentence I impose on each of you. You can now have a seat. [ 59 ] I will deal now with the terms of probation. They are going to be as suggested by Crown at the last page of their written submissions.

The terms are as follows, listed with their picklist numbers: a) 5004: Report within two business days of release and thereafter as directed by your probation officer. b) 5101: No contact or communication with Mackenzie Russell, Derrick Bouwman, Austin Pederson, or with each other.

This is during the probation period. c) 5105: Not to go within 50 metres of any place where Mackenzie Russell lives, works, attends school, worships, or happens to be, and to leave his presence immediately without words or gestures. d) 5301: Provide your probation officer with your address and phone number and do not change either without notifying your probation officer in writing in advance of the change. e) 5601: Not to possess or consume alcohol or non-prescription drugs. f) 5701: To attend counselling as directed by your probation officer, including for violence prevention and alcohol or drug addiction. g) 5801: Complete 50 hours of community work as directed by your probation officer.

I agree with Crown that you are both young men and should, in the circumstances, give back to the community.

h) And lastly, 5905: Not to possess any weapons or firearms. [ 60 ] In addition, there will be two ancillary orders also set out in the Crown's submissions at para. 4. There will be a mandatory DNA order pursuant to s. 487.051 of the Code , and a mandatory firearms prohibition pursuant to s. 109 of the Code . Now, that is for ten years, Ms. O'Neil, as I understand it. [ 61 ] CNSL P. O'NEIL: Yes, Your Honour, it is ten years for non-restricted and non-prohibited firearms, and it's lifetime for prohibited firearms, restricted firearms, and other items that are set out in the subsection. [ 62 ] THE COURT: All right.

Anything arising, Ms. O'Neil? [ 63 ] CNSL P. O'NEIL: Your Honour, with respect to the probation order, the court also needs to include the statutory conditions of keep the peace and be of good behaviour. I didn't set them out in my written submissions, I only set out the -- [ 64 ] THE COURT: What is the picklist? [ 65 ] CNSL P. O'NEIL: -- the optional conditions. I believe it's 5000. [ 66 ] THE COURT: 5001. That will also be a term of probation for both offenders. [ 67 ] CNSL P.

O'NEIL: Thank you, that's the one. [ 68 ] THE COURT: Now, there will also be an order that these reasons for sentence and any exhibits filed on sentencing shall be forwarded to the OCC for sentencing management purposes. This concludes my reasons. [ 69 ] Is there anything further, Mr. Verdurmen? [ 70 ] CNSL G. VERDURMEN: No, Justice, thank you. [ 71 ] THE COURT: Mr. Gray? [ 72 ] CNSL G. GRAY: No, My Lord. [ 73 ] CNSL P. O'NEIL: No, Mr. Justice, thank you. [ 74 ] THE COURT: My last comment to you, Mr. Gaubert and Mr.

Comerford, is I hope you have learned that what happened that night is something that is beyond words. I am sure you feel the same way. Conduct like that fuelled by intoxication or any other substance has no place in our society and I want you to take that away with you, and I encourage you to take my comments as a positive. You are going to be incarcerated for a period of time, but you will be getting out soon enough, and hopefully this will be a lesson for you going forward and we do not have to deal with this kind of behaviour again. [ 75 ] I wish you both well. I wish you both luck. We are now adjourned.

“G.P. Weatherill J.” Appendix 1