R. v. Marohn Date:, 2012 BCPC 199

Citation: R. v. Marohn Date: 20120511 2012 BCPC 0199 File No: 172409-2 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARK ANTHONY MAROHN EXCERPTS FROM PROCEEDINGS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. P. HARRIS Counsel for the Crown: L. O'Grady Counsel for the Defendant: J. Percival Place of Hearing: Surrey , B.C. Date of Judgment: May 11, 2012

INTRODUCTION: [ 1 ] On March 28th, 2012 the accused was convicted of the following: Count 1, wilfully neglecting to provide suitable food and care for a horse, contrary to s. 446(1) of the Criminal Code ; Count 2, being a person responsible for horses, did cause or permit an animal to be or continue to be in distress, contrary to s. 24(1) of the Prevention of Cruelty to Animals Act. [ 2 ] As a result of these convictions a pre-sentence report, as well as a psychological assessment report, were prepared for court.

A sentencing hearing occurred on May 9th, 2012 and the matter was adjourned to today for sentencing and reasons. BACKGROUND: [ 3 ] In the fall of 2008 the accused had a number of horses on his property. After receiving a complaint about the conditions of the horses, Mr. Te Boekhorst, an enforcement officer for the SPCA, attended the accused's property on several occasion, the last visit being December 9, 2008. On some of the attendances, Mr. Te Boekhorst spoke to the accused about the horse and his condition and the need to increase their food intake.

On December 10th, 2008, the police attended to a complaint of a motor vehicle incident. Upon arrival the police observed the accused's horse, Buddy, and the accused. At trial this court found that Buddy was emaciated and was in distress because, when in a weakened state, the accused used Buddy in an effort to pull the accused's vehicle from a ditch. [ 4 ] A veterinarian was summonsed to attend and despite that veterinarian's best efforts, Buddy could not be stabilized and it was decided that he would be euthanized. For greater details, please see the trial decision of March 28, 2008.

ACCUSED'S BACKGROUND: [ 5 ] The accused will be 59 in a matter of days. He was born and raised in the United States. He is of high intellect. The accused has three separate Bachelor degrees; however, prior to obtaining his education the accused served with the American Armed Forces from 1972 to 1975. During this time he spent some time in Laos. He reports that while there he witnessed horrific events. Ultimately, the accused was honourably discharged and he received a Good Conduct Medal and the National Defence Service Medal.

In 1985 the accused obtained his Doctorate of Veterinarian Medicine, and in 1989 he received a Certificate of Residency in Veterinarian Diagnostic Imagery. [ 6 ] The accused's education enabled him to work as an assistant professor for a period of time. In 1989 he moved to Canada, and in 1993 he moved to British Columbia. He has had two marriages; his last marriage was to Carol Schoyen-Marohn. This marriage was for an 18-year duration. She is a veterinarian but not practising.

They have two daughters, the eldest is attending school in the States, the youngest is living with the accused. [ 7 ] While in B.C. the accused and his wife enjoyed life with prosperous employment. In addition to his employment, the accused would volunteer his professional services to the SPCA. [ 8 ] The accused's life dramatically and suddenly changed in April of 2000 when the accused was on vacation in Hawaii where he suffered an accident as a result of boogie boarding. This accident resulted in the accused breaking his neck in three places. This injury initially rendered the accused a quadriplegic.

Since the injury there has been surgical intervention and extensive rehabilitation. Today the accused enjoys substantial improvement in his mobility. [ 9 ] To date the accused still suffers residual affects of his injury. In this regard the accused has several medical issues. These include memory lapses, difficulties with executive functions, cognitive difficulties, visual problems and temporal spatial difficulties. He has been diagnosed with fibromyalgia and he also has Brown Sequare Syndrome and Central Canal Syndrome.

These issues resulted in him being placed on disability in 2009. [ 10 ] With respect to his mental health, the accused has been treated for post traumatic stress. He has been diagnosed with major depressive disorder chronic, chronic insomnia, and an adjustment disorder with depressed mood, superimposed on his major depressive disorder. He has been hospitalized with depression and suicidal ideation.

He is presently taking a regime of medication to help him with his depression and other issues. [ 11 ] It appears that a large degree of the accused's poor judgment in dealing with the issues related to Buddy are related to his medical issues. These medical issues prevented the accused from working, thus placing his family in such dire financial distress that the bank foreclosed on their home, the accused lost his practice and he had to rely on friends for the housing of his daughters. [ 12 ] In addition to the extreme financial stressors, in July of 2008 the accused separated from his wife.

The separation appears to be related to Carol Schoyen-Marohn's illicit drug use. The illicit drug use developed after heavy dependence on medication for the purpose of treating her colitis and chronic Crohn's Disease. SITUATION IN NOVEMBER/DECEMBER 2008: [ 13 ] By the late fall of 2008 the accused and his family had no money for food, phone bills or shelter. They were due to be evicted from their rental home at the end of December, and things were so bad that the accused resorted to selling personal items in order to raise money.

It is clear that if he had the financial means he would have properly cared for Buddy. In addition to the financial issues, the accused's health and mental state were very fragile. The accused was hospitalized in early December. This hospitalization coincides with extreme weight loss which had been noted by Mr. Te Boekhorst. POST OFFENCE DATE: [ 14 ] The accused has been on release with numerous conditions; most have been relaxed over time. It is noteworthy that he was

reporting to a supervisor for a few years. The court also recognizes that the accused has made numerous court appearances and on someoccasions a delay has occurred. This delay has been through no fault of the accused. In addition, the accused has been the subject ofintense media reports. The intensity is due in part because of his profession as a veterinarian. His counsel submitted that the mediawould continually inundate the accused with questions when the accused was leaving court.

According to the accused, through hiscounsel, some of the reporting has been wrong and that this has caused the accused stress, anxiety and further alienation from hisprofessional colleagues. [15] Finally, on the date of sentencing the accused expressed remorse. I accept that the remorse he expressed is genuine. CROWN'S POSITION ON SENTENCE: [16] Crown argues that the principles of denunciation and deterrence are paramount, with some focus on rehabilitation. Crown hasfiled authorities supporting a range of 45 days jail to a six-month conditional sentence order.

Captured within this range is a 90-dayintermittent sentence. Accordingly, the Crown argues for a conditional sentence order in a range of three to four months, followed bytwo years probation and a lifetime ban from owning or having the custody, care or control of an animal. Crown also argues for arestitution order payable to the SPCA in the amount of $1,183.97. DEFENCE POSITION: [17] Defence argues that denunciation and deterrence have already been achieved. Moreover, the unique circumstance of this casesupport the view that an absolute discharge would not be inappropriate.

ANALYSIS: [18] The authorities make it clear that the paramount sentencing objectives in a case of this nature is denunciation, generaldeterrence, and given the unique factors of this case, some degree of rehabilitation. The challenge for this court is to consider whether ornot the objectives as stated can be met by a conditional sentence order, or can they be achieved by less restrictive means as mandated bys. 718.2(e). [19] This court has considered the aggravating and mitigating factors. Most aggravating was the accused used Buddy, who was ina weakened state, to try and move a motor vehicle.

Despite this aggravating fact, it was noted that this was done at a time when theaccused's decision-making and judgment skills were substantially compromised by his circumstances at the time. (In support, see page15 of the psychiatric report.) It is also aggravating that the accused stood in a position of trustee to Buddy. That is, Buddy wascompletely reliant on the accused for survival and this was a role that the accused had accepted when he allowed Buddy to remain on hisproperty. [20] Crown has also argued that the accused's training as a veterinarian makes the circumstances more aggravating.

There is somemerit to this suggestion, however, I do note that his decision-making and his circumstances were substantially compromised to such adegree that the accused likely had some difficulty in even looking after his basic personal affairs. MITIGATION: [21] The accused is a first-time offender who has provided public service. He has provided public service both in terms of hismilitary service and his volunteer veterinarian services provided to the SPCA.

His personal responsibility, as mentioned, has beensomewhat reduced by the circumstances he found himself in in 2008; some of these circumstances were not of his own doing. [22] After carefully considering the purposes and principles of sentencing, the recommendation by Crown, it is this court's viewthat a term of incarceration in the community is not necessary to achieve the requisite degree of denunciation and deterrence. This isbecause to a large measure, denunciation and deterrence has already occurred.

This has occurred by virtue of the public arrest, theconviction, the accused's pre-trial release, conditions on release, as well as the extensive media coverage. Moreover, this courtrecognizes that denunciation and deterrence will be further increased because the accused will now have a criminal record.

In a modernsociety where security questions are frequently posed, a criminal record is a substantial stigma, thus it is not only a means of denouncingunlawful conduct, but the threat of a criminal record has some general deterrent effect. [23] This point was emphasized by Chief Justice McEachern, as he then was, in R. v. D. E. S. M. 1980 CCC 3rd, 371 BCCA,wherein he stated: Quite recently, the Supreme Court of Canada has expressed itself quite strongly on the importance of stigma as a consequence ofcriminal proceedings.

The court has been saying what most lawyers and criminologists have known all along, that a public charge, trialand conviction for a serious offence brands a person for life, constitutes serious punishment, and is an important part of the way societybrings offenders to account for their misconduct. [24] Although the Crown has submitted a range of sentences to this court, it is recognized that a range does not represent inflexibleboundaries. In R. v.

Nasogaluak, 2010 SCC 6 , [2010] 251 CCC 3rd 293 Supreme Court of Canada, the court recognized thatsentencing ranges established by appellate courts do not preclude lesser or higher sentences in appropriate circumstances. This approachallows for an individualized sentence that is reflective of the unique circumstances of each offender and each offence. [25] Defence has argued for an absolute discharge. [26] It is this court's view that an absolute discharge would be inappropriate in the circumstances.

Specifically, it is this court'sview that the requisite level of deterrence or denunciation would not be met by an absolute discharge. Moreover, there would be no wayto assist the accused with his rehabilitation so as to ensure that he is better situated to deal with stressors in his life such that he does not

resort to such poor judgment and decision-making as demonstrated in relation to his activities with Buddy. [ 27 ] After carefully considering all of the materials, the facts of the case, the accused's circumstances and submissions of counsel, I pronounce the following sentence. [ 28 ] Please stand up, Mr. Marohn. [ 29 ] On Count 1, I suspend the passing of sentence and place you on probation for 24 months. On Count 2, I suspend the passing of sentence and place you on probation for a period of 24 months. I will address the terms and conditions shortly. [ 30 ] Pursuant to s. 447.1(1) (

a) of the Criminal Code , I prohibit you for a period of three years from owning, having the custody of or control of, or residing on the same premises as any animal or bird. Crown has asked for a lifetime prohibition; I have decided three years would be fit and appropriate.

My reasoning for that is as follows: 1) I recognize that you have dedicated your life, your calling, your education to the betterment of animals. 2) I recognize that with the rehabilitative conditions within the probation order, once taken root, there will safeguard against any further problems in the future. [ 31 ] With respect to restitution, I decline to impose a restitution order.

I do so for the following reasons: 1) The accused is virtually destitute. 2) There was a co-accused and thus the co-accused's role, if any, may impact any apportionment. 3) Finally, there has been some suggestion that if the SPCA had acted in a more timely fashion things might not have progressed to the degree of which they arrived at. As such, there may be some argument as to mitigation or steps that could have been taken to mitigate the financial cost. [ 32 ] You can have a seat, sir, and I will deal with the conditions. [ 33 ] As indicated, it is probation for a period of 24 months.

It will be the same terms and condition for each order, and each probation order is to run concurrently. They are as follows: 1) You are to keep the peace and be of good behaviour. 2) You are to appear before the court when required to do so by the court. 3) You are to notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or probation officer of any change of employment or occupation.

You shall report by no later than 4:00 p.m., Monday, May 14th, 2012 to a probation officer at Suite 100, 13545 64th Avenue, Surrey, B.C., and thereafter as and when directed by the probation officer. 4) You shall attend, participate in and successfully complete such counselling as may be directed by the probation officer.

Such counselling may include, but not limited to psychiatric counselling and psychological counselling. 5) As well, I am going to direct that within the first 15 months of this order you are to complete, at the direction and to the satisfaction of your probation officer, 150 hours of community work service. [ 34 ] I have made that with the recognition that you do have physical limitations; however, you have demonstrated throughout your history you are a man of a very strong; sound mind.

I expect your experiences, your training and education have a lot to offer within the community and it is a way of giving back to the community. [ 35 ] With respect to the Criminal Code charge, I will waive the victim fine surcharge. On the Provincial matter, I have no jurisdiction to deal with that. (REASONS FOR SENTENCE CONCLUDED)