R. v. Wilkinson Date:, 2010 BCPC 393

Citation: R. v. Wilkinson Date: 20101221 2010 BCPC 0393 File Nos: 73221-4KC, 73223-2BC Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DEREK WILKINSON REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D.R. GARDNER Counsel for the Crown: K. Jansen Counsel for the Accused: A. King Place of Hearing: Abbotsford , B.C.

Dates of Hearing: June 4,10, July 26, 30, Aug 4,11,19, Sept 2, 3, Oct 6, 2010 Date of Judgment: December 21, 2010 [ 1 ] THE COURT : The accused has been found guilty at the end of his trial of sexual assault of N.B. using a weapon, mischief by damaging her property, uttering a threat to N.B., attempting to obstruct justice, and breaching his no-contact conditions by contacting N.B.

Also, on a separate Information on that indictment he was convicted of two counts of breach, that is, being in possession of a weapon other than for work purposes, and also for consuming alcohol contrary to his court-imposed conditions. [ 2 ] The sexual assault occurred at the residence of his former girlfriend, N.B. This occurred while he was brandishing a knife. He said, "You want to fuck my friends but you won't fuck me." He ripped her pants off, shoved her onto the bed, placed is fingers inside her vagina, in her words "three or four times", and she said, "It really hurt," which is understandable. Ms.

Lemon and Mr. Sparks came to the residence during the course of this sexual assault and said they heard N.B. yell, "He tried to rape me." [ 3 ] The mischief resulted when the accused, in his admission in a subsequent interview with the police, cut the cord to N.B.’s hair straightener/curling iron and the connection to the computer. [ 4 ] The threat was that he said, in the presence of others, "I have to kill her," and then went on to say, "Now I'm going to finish you," a few minutes before the police arrived. He also made threatening phone calls after he was detained.

He called N.B.y from custody and said if N.B. ever told anyone what happened, when he gets out of jail he'd murder her little brother and make sure she heard it, and then said he would kill her sister, her mom and her dad as well.

[ 5 ] Count 8, he was convicted for calling Mr. Sparks while he was in custody, called him a "goof" and a "rat", and said, "I'm going to get people after you," that being if he testified, and went on to say, "You're done. You're dead." He also called N.B. and made threats to her as well. [ 6 ] The convictions on the Information 73223-BC2 speak for themselves. [ 7 ] Counsel for Mr. Wilkinson, Ms. King, has urged the court to impose a global sentence in the area of two years less his time served. He has been in custody since the night of this incident.

She points to his unhappy upbringing; his father died when he was only four years of age and most of his childhood was spent in foster care, and has described his upbringing as being unstable and chaotic. Mr. Wilkinson, regrettably, began using drugs at the age of 12. He was not employed at the time of the offence. His history of drug and alcohol abuse is set out in the Pre-sentence Report. [ 8 ] As for the facts, Ms. King submits that the assault was brief in duration and there were no lasting physical injuries, and there had been no other violence in his relationship with N.B. Ms.

King argues that he has no record for similar offences, that there is no indication he is likely to commit further offences, and there is no indication that he is a high-risk offender. She points out that despite his no- contact order, N.B. initially wrote him and solicited calls from him after he was detained. [ 9 ] The Crown is seeking a global sentence in the range of three-and-a-half to four years, less the time he has already served. [ 10 ] I have reviewed all 17 cases submitted by counsel.

One principle that does emerge is that the sentencing range for a serious sexual assault in British Columbia is two to six years. The Crown further submits that given Mr. Wilkinson's record, the primary focus in sentencing should be on denunciation and deterrence. The Crown submits that Mr.

Wilkinson's record consists of 14 previous convictions, and of particular note is his two-year sentence he received for robbery in Calgary in 2004, and the six-month consecutive sentence for robbery he received in Drumheller, Alberta in July of 2005. [ 11 ] Crown has directed the court to the decision of the Manitoba Court of Appeal in R. v. Corey Wright , and I will quote from page 5, paragraph 14 of that decision where the court deals with the issue of whether or not a prior criminal record should be viewed as an aggravating factor. The court says, and they quote R. v.

Carrier, a 1996 decision of the Alberta Court of Appeal: It is not proper to treat the record of the accused as an aggravating factor in the sense that the trial judge is entitled to raise the sentence beyond what would otherwise be a fit sentence.

However, a criminal record, depending on its nature, may be an aggravating factor in the sentencing context in the sense that it renders a stiffer sentence fit in the circumstances because it rebuts good character, and because of what it tells the trial judge and society about the need for specific deterrence, the chances of successful rehabilitation, and the likelihood of recidivism. [ 12 ] The Manitoba Court of Appeal also referred to the decision of the Supreme Court of Canada in R. v.

Larche in a 2006 decision which they quote in paragraph 15, saying that: The offender’s previous convictions , for example, and the vulnerability of the victim due to infirmity or age, are not offences in themselves. But, like uncharged offences that may be considered under s. 725 (1)( c ), they are aggravating as opposed to mitigating circumstances because they warrant more severe – not more lenient – sentences . [ 13 ] Paragraph 5 of the Alberta Court of Appeal's decision, December 10th, 1991 in R. v.

Kyowasa (phonetic) in which the court discusses the effect that sexual offences have on the victims: The very nature of the assault constitutes such a grave intrusion into the personal dignity and privacy of the body of a woman that the sentence imposed by the learned trial judge can only be regarded, with due respect to the sentencing judge, as reflecting a failure to appreciate duly the seriousness of the act found to have occurred. In that case the judge had imposed a sentence of three months and that was raised to 18 months incarceration.

The court stressed that: The invasion of a private home, the rape of its female occupant, must attract a substantial term of incarceration. [ 14 ] I do acknowledge that the facts in this case are somewhat distinguishable from the case at bar, that Mr. Wilkinson had been invited over to the victim's residence but for the express purpose of conversing only; she made that plain prior to his arrival. [ 15 ] I have also adopted the reasoning of R. v. Sandercock , a 1985 decision of the Alberta Court of Appeal, when it talks about the inference the court can draw from the damage that is caused by a sexual assault.

They say that: In such cases where a person, by violence or threats of violence, forces an adult victim to submit to sexual activity of the sort or intensity such that a reasonable person would know beforehand that the victim would likely suffer lasting emotional or psychological injury, whether or not physical injury occurred, the key to a major sexual assault is the evident blameworthiness of the offender which is shown by his contemptuous disregard for the feelings and personal integrity of the victim. The other aspect which creates a major sexual assault is the effect on the victim.

Harm generally is inferred from the very nature of the assault... ...the court goes on to say, and I adopt that reasoning. [ 16 ] As for the count of obstruction, the Crown submits that Mr. Wilkinson's actions in attempting to sway the victim and two others from cooperating with the police or testifying against him, strikes at the heart of our system of justice, a submission which I certainly agree with. [ 17 ] In determining an appropriate sentence, I have considered the principles set out in s. 718 of the Criminal Code . I also have considered the underlying facts upon which Mr. Wilkinson was convicted.

I have also considered the Pre-sentence Report and the relevant case law.

[ 18 ] As for Count 4, the sexual assault with a weapon, I have concluded that a fit and proper sentence is three years. [ 19 ] As to the obstruction charge, I find that it is an aggravating circumstance that these threats were made after he was detained and that they were very graphic and disturbing in nature. Potential witnesses deserve the protection of our courts. One would think that such protection would be accomplished by the detention of the accused, along with a no-contact order, but Mr.

Wilkinson undermined all of that by resorting to threats of violence while he was awaiting trial. [ 20 ] In the Pre-sentence Report, Mr. Wilkinson takes the position that he was wrongfully convicted and he intends to appeal. I note that despite his protests of innocence, he chose not to testify in these proceedings.

I would normally sentence him to one year consecutive for obstruction of justice, but I will temper that by crediting him with nine months time served, and accordingly I will sentence him to three months consecutive on Count 8. [ 21 ] For each of the breaches on the separate Information, there will be 30 days concurrent. [ 22 ] Count 5, the mischief, there will be 60 days concurrent.

Count 6, the uttering threats, there will be 90 days concurrent, and Count 9, the breach, there will be 60 days consecutive. [ 23 ] Also, I am ordering that he provide a DNA sample for inclusion into the National DNA Databank. [ 24 ] Under s. 109 of the Criminal Code I will make an order, sir, that you shall not possess any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, for life. [ 25 ] I am also going to make an order under s. 743.21 that you shall have no contact, directly or indirectly, with N.B., David Sparks or Robin Kathleen Lemon. [ 26 ] I will waive the victim fine surcharge. [ 27 ] Also there is a mandatory order I have to make.

I will make an order that you comply with the Sex Offender Information Registration Act . For the record, I am signing that now. [ 28 ] MS. JANSEN: Your Honour, there is just one final forfeiture order with respect to the weapons, Exhibits 3 and 5. I'd ask for a forfeiture order pursuant to s. 491. [ 29 ] THE COURT: Yes, I will make that order. ______________________ D.R. Gardner Provincial Court Judge