R. v. Teny Date:, 2015 BCPC 128

Citation: R. v. Teny Date: 20150326 2015 BCPC 0128 File No: 15640-3-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. PETER POUK GOL TENY EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Crown: C. Joseph Counsel for the Defendant: S. Daniells, Q.C. Place of Hearing: Vancouver , B.C. Date of Hearing: March 26, 2015

Date of Judgment: March 26, 2015 Introduction [ 1 ] THE COURT: This is my decision on the sentence to be imposed on Mr. Teny. Mr. Teny pled guilty to one count of assault on Mr. Dobol. The assault occurred on January 1, 2014, in Vancouver, British Columbia. The Crown submits that an appropriate and fit sentence in this case is a custodial sentence of 18 months. [ 2 ] The Crown also requests the following ancillary orders: a mandatory DNA sample pursuant to s. 487.051, and a discretionary order for weapons prohibition pursuant to s. 110. The period of prohibition requested is 10 years.

The Crown submits that in the circumstances of this case such a discretionary order is justified. Last but not least, the Crown asks that, if the court does order a period of time in custody, an order be imposed on Mr. Teny that he not have any direct or indirect contact with the complainant, Mr. Dobol. [ 3 ] The defence acknowledges that a jail sentence is appropriate. However, it asks the court to have that sentence served in the community under a conditional sentence order rather than in a custodial facility. The defence does not oppose any of the ancillary orders sought by the Crown.

Background [ 4 ] I now turn to background of this offence. The accused, Mr. Teny, and the complainant, Mr. Dobol, have known each other for a number of years. They originally met in a refugee camp in Ethiopia where both of them had fled from Sudan. They met again in Canada, first in Calgary and later in Vancouver. [ 5 ] On January 1, 2014, the accused, his wife, and the complainant met at the house of the accused. While they were there, the accused and the complainant shared a six-pack of beer. Later, all three of them went to the Balmoral bar where the accused and the complainant continued to drink.

They shared a pitcher of beer. The accused also had two drinks of vodka. [ 6 ] While at the Balmoral, an argument ensued when the accused asked the complainant to use his cellphone so he could call a woman. Not only did the complainant refuse to let the accused use his cellphone, but he also told the accused's wife about it. The accused became very angry. [ 7 ] Shortly thereafter, the three of them left the Balmoral and began walking back to the house of the accused's wife. At some point, as they were walking back, the wife of the accused walked ahead leaving the two men behind.

When the two men arrived at the vicinity of the 600 block Gore Avenue, the complainant said he heard voices and he turned his head to look behind him. [ 8 ] At this point, the complainant said, the accused was walking in front of him. When the complainant turned around, he was struck a blow to his left eye by the accused who was now standing close beside him. The complainant said the accused proceeded to punch him two more times in the left eye. The third punch knocked him to the ground. The complainant said the accused, at that point, grabbed his left eye.

That is the last thing the complainant recalled until he heard the voice of a female police officer. The complainant thought he may have been unconscious for some time. [ 9 ] In addition to the evidence of the complainant, the court also heard from two eyewitnesses. One was Mr. Ellis. The other was Mr. Holden. [ 10 ] Mr. Ellis testified that he was walking his dog in the vicinity of Gore Avenue and Keefer Street when he saw a man make a punching motion towards the ground. When he got closer, he saw the accused was striking the complainant's face. Mr.

Ellis testified the complainant was lying on the ground motionless. The accused was on top of him. [ 11 ] Mr. Ellis said he asked the accused to stop. He also asked him what he was doing. The accused told him not to worry and then struck the complainant in the face. Mr. Ellis again asked the accused to stop. The accused again said he should not worry about it and he should go away. The accused struck the complainant again in the face. At that juncture, Mr. Ellis told the accused to get off of the complainant. [ 12 ] Mr. Ellis said the accused started to leave and did not stop when Mr. Ellis asked him to do so.

In fact, Mr. Ellis said he grabbed hold of the accused who was trying to get away. Mr. Ellis eventually tackled the accused to the ground and held him until the police arrived and took him into custody. While Mr. Ellis was holding him, the accused was continuously struggling to get away. At one point, the accused threatened to kill Mr. Ellis. [ 13 ] According to Mr. Ellis, the accused hit the complainant approximately seven to 10 times. The hits were directly to the complainant's face. Mr. Ellis said the accused was bringing his fist way back and winding up for the hits. [ 14 ] Mr.

Holden made the same observations. Mr. Holden also described the punches as "hard". Mr. Ellis said that the accused brought his fist down full force into the complainant's face. [ 15 ] As a result of this incident, the complainant sustained injuries. He spent 15 days in hospital following the assault. He testified that he experienced considerable pain and swelling in his left eye area. He also experienced nausea and soft-tissue pain in his knee and chest. The injury to the complainant's left eye is significant and in part permanent.

At the time of the trial his left eyeball was permanently pointed outward to the left. The appearance of Mr. Dobol's eye was anything but normal as I myself observed. [ 16 ] At trial, the complainant told the court that even though it was 10 months after the assault, he was still experiencing double

vision 100 percent of the time. He also experienced headaches and dizziness. He had difficulty breathing, was not able to drive, and required assistance performing everyday tasks and chores. [ 17 ] Since the trial, the complainant has undergone surgery to his left eye. He now has some ability to move his eye, but it is limited. However, his left eye is now less abnormal in appearance. The complainant still experiences double vision at times. He is still not able to drive and he still has difficulty reading.

He said that when talking to people, moving about for more than a few hours, he begins to feel nausea and headaches. [ 18 ] There has also been a significant emotional impact to Mr. Dobol as a result of the offence. He described the offence as frightening. He said he feels unsafe. Now that he has had his eye surgery, he is grateful there has been some improvement, but he is nevertheless frustrated because his current limitations and difficulties now appear to be permanent. Circumstances of Accused [ 19 ] I now turn to the circumstances of Mr.

Teny, the accused, which are largely taken from a Pre-Sentence Report that was prepared for this sentencing by Melissa Sexsmith, a probation officer, and was completed on the end of November 2014. [ 20 ] Mr. Teny was born in Maiwut, Sudan, and raised by his mother and his father. He was raised in a small farming village with his two younger brothers. He recalled a stable and loving upbringing free from any physical or emotional abuse. He did not witness any substance abuse in the home. He said the village where he was raised was a close-knit and supportive community. [ 21 ] In 1991, Mr.

Teny married his now ex-wife, Nyawal, following an arrangement between his family and a family from a nearby village. He and Nyawal had six children. In 1993, due to the escalating wars between North and South Sudan and the possibility that he might be recruited into one or other of the armies, he and his brothers left for Ethiopia. They arrived in Dimma and, there, they were placed in a refugee camp that was operated by the United Nations. Approximately a year later, he was joined by his wife. That was. [ 22 ] Mr.

Teny told the probation officer that he maintains regular contact with his father and his siblings who continue to live in Ethiopia. He said his mother passed away from an illness approximately 25 years ago. [ 23 ] In 1997, Mr. Teny moved from Ethiopia to Canada as a refugee. He has since settled in the New Westminster area as a landed immigrant. He relocated for a period of time to Calgary, but ultimately returned back to Vancouver. He and his former wife, Nyawal, separated in 2002. [ 24 ] Mr.

Teny remarried in 2005 and he and his current wife have five children and there are apparently also two stepchildren who would be the children of Mr. Teny's new wife. Mr. Teny and his family live in a B.C. Housing residence and have been there for three years. Mr. Teny advised the probation officer that he spends his time with his children reading, playing basketball, and running. He is active in community affairs. [ 25 ] As to his education, Mr. Teny completed his grade 12 studies after coming to Canada. He has gone on to complete a Bachelor of Commerce from University Canada West located in Vancouver.

He has done this online. He has also completed an accounting diploma at Sprott Shaw College. As to his employment history, the probation officer notes that Mr. Teny's employment history has been sporadic and varied and that it has mainly been comprised of labour intensive type jobs. [ 26 ] That said, however, I understand Mr. Teny, probably proudly so, has not been on social assistance for extended periods of time. That is what I surmised from the report, although it is not stated quite like that. Mr.

Teny, at the time the Pre-Sentence Report was prepared, was registered with a company that provides temporary staffing services for local businesses. He claimed he was earning about $800 every two weeks. [ 27 ] His goals are to continue his education and to obtain full-time employment and possibly to open a small business from home so that his family can benefit. He told the probation officer that, apart from his student loans, he has no other debts and reported no savings or assets. It has been confirmed that Mr.

Teny does have a student loan on file, but he was not in receipt of social assistance. [ 28 ] Under "Attitude and Receptiveness to Previous and Proposed Interventions," the probation officer noted that Mr. Teny presented as compliant, cooperative, and willing to meet the terms of his court orders including attending any community programs or counselling and restitution. Ms. Sanchez, his current bail supervisor, indicated that Mr. Teny has been compliant with the terms of his order and has reported as directed without incident. [ 29 ] Under "Attitude and Understanding Regarding the Offence," it was noted that Mr.

Teny claimed to accept responsibility for his actions saying he was sorry for the incident that had occurred. He showed some insight into his behaviour and admitted alcohol misuse was a factor in the offence. Mr. Teny apparently stated that his actions had changed his whole life. Since the incident he has become somewhat isolated from his Sudanese community due to the no-contact provisions in his bail order. [ 30 ] Mr. Teny has written a letter. I am reading it at this point because it intersects with the comments made by the probation officer on attitude and understanding.

Because of the no-contact provisions, this letter was never presented to Mr. Dobol. I am going to summarize what the letter says. It is addressed to Mr. Dobol and says Mr. Teny is truly sorry for his actions. There are no words that will ever compare to the pain, hurt, and discomfort that he has caused Mr. Dobol. [ 31 ] Mr. Teny wrote he has much remorse knowing that he will never be able to repair the damage he has done. He accepts full responsibility for his crime and hopes that Mr. Dobol can find it in himself to forgive him one day.

He said, and I quote [as read in]: I deserve all the pain I go through in jail and it scares me to death to think of what punishment God will give me for my sins. I am so sorry. I promise I will never do anything like this ever again. I am working hard, getting the help I need, to prevent me from committing

crimes ever again. I have been going to the church and stay in Luke 15 House for a month and a half. [ 32 ] He then adds [as read in]: I feel like I have lost my soul for all the pain, hurt, and shame I have caused you. Words cannot express the remorse I feel. I pray that you can find it in your heart to forgive me. Position of the Parties [ 33 ] I now turn to the position of the parties. The Crown's position is that, in all the circumstances, an appropriate sentence for Mr.

Teny is an 18-month custodial sentence followed by a lengthy period of probation in the range of 18 to 24 months. [ 34 ] The Crown acknowledges there are two mitigating factors. One is a guilty plea and the other remorse. However, in its written submissions, the Crown notes that neither of these two factors should be given much weight. The Crown says the first factor, that is the entry of a guilty plea, was made mid-trial. While the court should not take it amiss that the plea was entered mid-trial and while the Crown acknowledges that Mr.

Teny had every right to proceed to trial and hear the case against him, the Crown nevertheless believes the circumstances of the plea should be taken into account. However, it should not be given the same weight as a pre-trial guilty plea would be given. [ 35 ] The second factor the Crown commented on was remorse. The Crown candidly notes that at the time it prepared its written submissions, it did not believe remorse should be seen as a mitigating factor, but it was not suggesting that lack of remorse was an aggravating factor.

However, the Crown tempered its position, noting that at the time it wrote its sentencing submissions, it had not seen the letter from Mr. Teny. The letter from Mr. Teny does indicate that he is remorseful and has apologized and has asked for forgiveness. [ 36 ] The Crown argues I should take into account the aggravating factors as well as the mitigating factors.

It says the aggravating factors are: that the accused repeatedly hit the complainant who appeared unconscious and was incapable of defending himself; that the accused continued to assault the complainant despite attempts by a bystander to intervene; that the accused attempted to flee, struggled with the bystander, Mr. Ellis, and threatened to kill him; and last but not least, the nature and severity of the injuries sustained by the complainant. [ 37 ] I now turn to the position of the defence. As already noted, the position of Ms. Daniells on Mr.

Teny's behalf is that although a jail sentence is appropriate, that jail sentence should be served in the community under a conditional sentence order. The defence reviewed Mr. Teny's background including the educational certificates he received from Sprott Shaw College and University Canada West. [ 38 ] Ms. Daniells notes that Mr. Teny entered Luke 15 House. He did so approximately eight or nine weeks ago. She also points to the strength of his commitment in dealing with his alcohol addiction in that he gave up his work to go there. Ms. Daniells notes that it was humiliating for Mr.

Teny to have to give up his work. The minimum time for a program at Luke 15 House is four months assuming all the steps are appropriately completed. Often, it can take much more than four months. The defence emphasizes that this is not a short-term commitment on Mr. Teny's part, but he is prepared to look at the long term in dealing with his addiction. [ 39 ] The defence reviewed the Pre-Sentence Report and made a number of comments on those areas where it did not agree with what was in the report or where it felt the report mischaracterized various circumstances. The defence notes that Mr.

Teny was very intoxicated on the night in question. He recalls very little about what happened that night. However, he believes something happened, namely, that Mr. Dobol jumped on his back. However, Mr. Teny does not remember whether this was done in a friendly manner or not. [ 40 ] The defence submitted a number of letters. Several of them were from Mr. Teny's friends and another was from the executive director of Luke 15 House. Additionally, the defence submitted the letter from Mr. Teny to the complainant that I, essentially, read out in full.

As I noted, that letter was never sent because of restrictions on contact due to the bail conditions. Principles of Sentencing [ 41 ] I now turn to the principles of sentencing. The Criminal Code in s. 718 provides that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. That

section also sets out a number of objectives to be achieved by imposing a fit sentence.

Those objectives include but are not limited to: denouncing unlawful conduct, general and specific deterrence, rehabilitation, promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community and, where necessary, separating offenders from society. [ 42 ] The fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 43 ] In addition to that fundamental principle, the sentencing judge must also take into consideration a number of other principles including: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating either to the offence or the offender; (

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

(

c) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; (

d) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. [ 44 ] The sentencing process is an individualized process which involves balancing the goals of society and the moral blameworthiness of the offender in the circumstances of the offence. [ 45 ] The real issue in this case is whether a conditional sentence order is appropriate. There is no dispute between the prosecutor and the defence that a period of jail time ought to be imposed. The dispute is whether it should be in real jail, in a correctional facility, or in the community. [ 46 ]

Section 742.1 of the Criminal Code provides that a sentencing judge may impose a conditional period of imprisonment if she is satisfied of a number of matters including the following: that the offence is not punishable by a minimum period of imprisonment, that the offence is not an offence prosecuted by way of indictment for which the maximum term of imprisonment is 14 years to life, that the offence is not prosecuted by way of indictment with a maximum term of imprisonment of 10 years and the offence did not result in bodily harm, that serving the sentence in the community would not endanger the safety of the community, and lastly, that the imposition of a conditional sentence is consistent with the fundamental principles of sentencing set out in the Code. [ 47 ] In this case, the offence to which Mr.

Teny pled guilty was prosecuted by way of indictment, but it does not have a minimum prescribed period of imprisonment -- I am sorry. Am I right, or did you proceed summarily? [ 48 ] MS. JOSEPH: We proceeded summarily. [ 49 ] THE COURT: I am sorry? [ 50 ] MS. JOSEPH: We proceeded summarily. [ 51 ] THE COURT: Oh, summarily. [ 52 ] MS. JOSEPH: Yes. [ 53 ] THE COURT: Thank you. All right. I will correct myself. [ 54 ] In this case, the offence to which Mr. Teny pled guilty was prosecuted summarily.

It does not in any event, have any of the minimum periods of imprisonment set out above. [ 55 ] As I have noted, both the Crown and defence agree, that in the circumstances of this case, it is open to this court to impose a conditional sentence order, if it is satisfied that it is appropriate to do so.

Accordingly, the two central questions I need to address in this regard are, one, would the imposition of a conditional period of imprisonment endanger the safety of the community and, two, would the imposition of a conditional period of imprisonment served in the community be consistent with the fundamental principles of sentencing set out in the Criminal Code ? [ 56 ] First, I will consider whether the imposition of a conditional sentence order would endanger the safety of the community. In doing so, I must consider the risk that Mr. Teny will reoffend and the gravity of the danger if he does so.

Having considered the circumstances of the offence and Mr. Teny's criminal record, I have concluded that imposing a conditional period of imprisonment would not endanger the safety of the community. It is clear Mr. Teny has a problem dealing with alcohol and that he has a criminal record. However, taking into account his circumstances, I am satisfied that he does not present a general risk to the safety of the community. [ 57 ] I now turn to the second consideration which is whether the imposition of a conditional sentence order is consistent with the fundamental principles of sentencing.

In this case, I am satisfied that the fundamental principles of sentencing that should be emphasized are deterrence and denunciation. In saying that, I do not discount the importance of rehabilitation, but in all the circumstances, rehabilitation does not take an equal place, in terms of importance, to denunciation and deterrence. [ 58 ] Given the gravity of the offence, Mr. Teny's previous record, which includes a conviction in 2006 for assault, the injuries that resulted from the assault on Mr.

Dobol (by that I mean both the immediate consequences of the injuries and the permanent nature of those injuries) I have concluded that the imposition of a conditional sentence order is not consistent with the fundamental principles of sentencing. As stated, I am satisfied that the principles of sentencing which much be emphasized are denunciation and general and specific deterrence. Therefore, based on all the circumstances of the assault on Mr.

Dobol, I conclude that a conditional sentence order would not satisfy those objectives. [ 59 ] Accordingly, the next item I must consider is the fit sentence in this case. The Crown, in its written submissions, searched for comparable cases and submitted R. v. Matonovich , 2007 BCCA 472 , R. v. Evers , 2009 BCCA 500 , R. v. Irwin , 2004 BCCA 433 . It is clear from a review of those cases and also from my experience sitting in this court that sentences for assault causing bodily harm span a broad range of sentences.

In this case, I am satisfied that the 18-month sentence submitted by the Crown is within the range and is appropriate given the circumstances I have detailed in these reasons. Accordingly, I impose an 18-month period of incarceration in a custodial facility. [ 60 ] Let me turn to credit for pretrial custody. Mr. Teny has spent 18 days in custody awaiting trial and 16 days for other reasons. The parties agree he is entitled to time and a half and that the total days of credit he ought to receive is 27 days. Perhaps I should just clarify this. The total amount of time he spent is 18 and -- all right?

So it is 18 days. It is 18 days' time served and 27 days' time credited, correct? [ 61 ] MS. JOSEPH: Yes, Your Honour.

[ 62 ] MS. DANIELLS: Yes. [ 63 ] THE COURT: All right. Let me then also deal with the ancillary orders. [DISCUSSION RE PRETRIAL CREDIT] [ 64 ] THE COURT: I am sorry. So the 27 days which is the time credited, should be subtracted from the 18 months I have imposed.

Any further clarification on anything I have said so far? [ 65 ] In terms of the ancillary orders, I am going to make an order pursuant to s. 487.051 for a mandatory DNA sample to be taken. [ 66 ] I am also going to make a discretionary order under s. 110 of the Criminal Code for a 10-year prohibition for weapons as defined in the Criminal Code . [ 67 ] As I have sentenced Mr. Teny to custody, I am also going to make an order that he must have no direct or indirect contact with the complainant, Mr. Dobol, while he is in custody. [ 68 ] I then turn to probation.

The Crown had asked for a lengthy probation order in the range of 18 to 24 months. Given the sentence I have imposed on Mr. Teny, I am going to place him on probation for 14 months which will immediately follow his release from custody. I will go over the conditions. I understand there is no major problem, but please ask me to pause, if there is, as I go through them. [ 69 ] Following your release from custody, Mr. Teny, you will be on probation for 14 months. The conditions are as follows: 1. You are to keep the peace and be of good behaviour. 2.

You must appear before the court when required to do so by the court. 3. You must notify the court in advance of any change of name or address. 4. You are to report to a probation officer at 275 East Cordova Street in Vancouver, British Columbia, within -- [DISCUSSION RE REPORTING CONDITION] [ 70 ] THE COURT: No later than 3:00 p.m. on the first business day following your release from custody and, thereafter, as and when directed by your probation officer. 5. You must have no direct or indirect contact with Khat Dobol. I have read the letter to him. So there is no need for anything further to be done.

I have essentially read it in court so he knows what is contained therein. 6. You must not go to any place where you know Khat Dobol lives, works, or attends school. In the event that you should run into him accidentally, you must turn around and leave his presence immediately without making any gesture or uttering any words. 7. You must not go to the Faith Lutheran Church located at 7086 124th Street in Surrey, British Columbia. 8. You are not to possess any weapons as defined in the Criminal Code of Canada. 9. You are not to possess or consume or be under the influence of alcohol. 10.

You shall not enter or be found in any pub, bar, liquor store, or any other licenced premises that primarily sells alcohol. 11. Last but not least, you must attend for, participate in, and successfully complete any counselling as directed by your probation officer, including but not limited to substance abuse and anger management counselling. [ 71 ] Is there anything that remains to be done? [ 72 ] MS. JOSEPH: The only thing that remains to be done from the Crown's perspective is the Crown is directing a stay of proceedings to be entered on the remaining counts. So, just for Mr.

Registrar's benefit, that is Counts 2 and 3 on Information 15640-3-C. [DISCUSSION RE STAY] [ 73 ] THE COURT: I have said this previously, but probably not in front of you, Ms. Daniells. In the past, I have made the victim fine surcharge payable immediately and in default imposed one day. I have re-thought my position since last fall and believe I was in error in doing so. [ 74 ] I will impose the victim fine surcharge which is $100, it is only one count. I will give Mr. Teny the two statutory months to pay. It will then be up to the Crown as to what they choose to do.

I understand that Judge Senniw is about to release a decision imminently on whether the current law as it stands is unconstitutional. I know there have been other decisions in other provinces, but they are not necessarily binding on me. That decision may then affect how the Crown decides to proceed in these matters? So I will just leave it at that. [REASONS FOR SENTENCE CONCLUDED]