R. v. Sesay, 2020 BCPC 138

Citation: R. v. Sesay 2020 BCPC 138 Date: 20200728 File No: 174300-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LATTO SIMIAN SESAY BAN ON PUBLICATION –

SECTION 517 of the C.C.C. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. ROGERS Counsel for the Crown: J. Patterson Counsel for the Accused: N. Brooks Place of Hearing: Victoria , B.C. Date of Hearing: June 29, 2020 Date of Sentence: July 28, 2020 INTRODUCTION

[ 1 ] Mr. Sesay has entered a guilty plea to a single count of aggravated assault that occurred on March 18, 2018. Mr. Sesay is currently serving a sentence for an unrelated aggravated assault that occurred on March 31, 2018. He was arrested immediately following the March 31 assault and has remained in custody since that date. He was convicted of that offence on January 10, 2019 and sentenced to six and a half years in jail on May 3, 2019 (reduced to just under five years for time served). The primary issue before me is how to address the principle of totality in sentencing Mr. Sesay.

CIRCUMSTANCES OF THE OFFENCE [ 2 ] On March 18, 2018, at around midnight, Jeremiah Anderson was outside a nightclub in downtown Victoria with his girlfriend and two friends. They were talking in a circle when Mr. Sesay’s girlfriend interrupted their conversation. Mr. Anderson asked her to back off. Mr. Sesay, who was nearby, took exception to this, said words to the effect of “don’t talk to my fucking girlfriend that way” and then punched Mr. Anderson in the face. Mr.

Anderson was caught by surprise by the blow, unable to defend himself, and was knocked to the ground with his hands at his side, striking his head on the cement and losing consciousness. Mr. Sesay and his girlfriend departed. [ 3 ] Mr. Sesay was, at that time, approximately six foot two inches tall and 200 pounds. Mr. Anderson was approximately five foot six inches tall and 135 pounds. As a result of the blow and the resulting fall, Mr. Anderson suffered a fractured skull, jaw and orbital bone. He spent three days in hospital. He lost five weeks of work. He had to eat out of a straw for eight weeks.

He continues to suffer the impacts of the brain injury that resulted from this incident. He is regularly fatigued and has numbness due to nerve damage in his face. He has lost his ability to enjoy music, which was previously both a source of employment and pleasure, because “small sounds feel like an earthquake” in his head. He suffers from anxiety and depression and feels he is unable to live his life to its fullest as a result of his injuries. CIRCUMSTANCES OF THE OFFENDER [ 4 ] Mr. Sesay is 35 years of age.

He had a very difficult upbringing and has had an almost unbroken record of involvement with the criminal justice system since the age of 13. His criminal record was described by the British Columbia Court of Appeal as horrendous in the decision upholding the sentence for the March 31, 2018 aggravated assault: R. v. Sesay , 2020 BCCA 41 . His record includes convictions for offences of violence, property offences, sexual offences and breaches of court orders. [ 5 ] It is clear that Mr.

Sesay’s upbringing has negatively impacted his ability to deal with conflict and this deficit played a significant role in this assault. Mr. Sesay perceived a slight and responded with violence, an unfortunate pattern learned from his past. [ 6 ] Since being convicted of the March 31, 2018 aggravated assault, Mr. Sesay advises that he has made a decision to change and to do the hard work required to address his use of drugs and alcohol as well as his propensity for violence.

He expended considerable effort in this regard while incarcerated at Vancouver Island Regional Correctional Centre (VIRCC) awaiting sentence for that matter. I have been provided with a number of documents that evidence this work including letters from the Addiction Counsellor at VIRCC attesting to his insight and willingness to effect change, and from the Mental Health Coordinator at VIRCC noting his increased ability to deal with conflict and his remorse. The vast majority of these documents are dated in late 2018 and early 2019, prior to his sentencing for the prior aggravated assault in May of 2019.

Unfortunately, his transfer to the federal penitentiary, as well as the current pandemic, have disrupted the availability of programs. I was, however, provided with a January 2020 Certificate of Completion of Non-Violent Conflict Resolution and a document dated February 20, 2020 attesting to three months of sobriety at Matsqui Institution. CROWN AND DEFENCE POSITIONS [ 7 ] The Crown takes the position that the appropriate sentence for these offences, considering all of the aggravating and mitigating factors, as well as the principle of totality, is a sentence of four years consecutive to the sentence Mr.

Sesay is currently serving. [ 8 ] Defence counsel suggests a sentence of two years less a day concurrent to the sentence currently being served, following by three years’ probation. PRINCIPLES AND OBJECTIVES OF SENTENCE [ 9 ]

Section 718 of the Criminal Code sets out the purpose and objectives of sentencing. It is clear that the primary objectives I must consider in sentencing Mr. Sesay for this crime are denunciation and deterrence. [ 10 ] Counsel for Mr. Sesay based much of his submissions and his sentencing recommendation on the principle of rehabilitation, highlighting the significant work in this regard that Mr. Sesay has done. While his efforts at rehabilitation are mitigating, and rehabilitation is a relevant sentencing principle, the importance of denunciation and general deterrence remain the primary sentencing objectives for this offence. PROPORTIONALITY [ 11 ]

Section 718.1 requires the court to consider the gravity of the offence and the degree of responsibility of the offender. [ 12 ] The circumstances of this offence are very serious. [ 13 ] Gravity is informed by the maximum sentences for a crime. Aggravated assault carries a maximum sentence of 14 years imprisonment. [ 14 ] Mr. Sesay’s moral culpability for this crime is high. This was an attack committed without warning or provocation on a smaller victim who was given no opportunity to defend himself. As stated by the British Columbia Court of Appeal in R. v. Woodward , 2011 BCCA 251 , at para 32 : . . . Mr.

Woodward went out of his way to deliver a punishing blow to a person who could not have anticipated being attacked and was,

therefore, completely defenceless. While Mr. Woodward may not have intended to change Mr. Dowrey's life forever, he did intend to harm him by using force that Mr. Woodward knew, or ought to have known, had the potential to inflict serious injury. The fact that this was, to use Mr. Woodward's terminology, a "one punch assault" does not lessen the gravity of what he did. AGGRAVATING AND MITIGATING FACTORS [ 15 ]

Section 718.2 (

a) of the Criminal Code requires me to consider any relevant aggravating or mitigating circumstances relating to the offence or the offender in determining the appropriate sentence. Aggravating Factors [ 16 ]

Section 718.2(

a) sets out statutory aggravating factors.

Section 718.2(a)(iii.1) states that “evidence that the offence had a significant impact on the victim” is deemed an aggravating circumstance. I received two victim impact statements from Mr. Anderson. It is clear that this incident has had a devastating and life-long impact on him. [ 17 ] Mr. Sesay’s lengthy criminal record, which contains numerous convictions for violence, is also aggravating. Mitigating Factors [ 18 ] The following mitigating factors apply to this matter: 1. Mr. Sesay entered a guilty plea. 2. He accepts responsibility for his behaviour and is remorseful. 3.

He had a very difficult upbringing. 4. He has made considerable rehabilitative efforts, and through these efforts has both gained insight into his offending and taken steps to avoid reoccurrence upon his release. CONSECUTIVE OR CONCURRENT SENTENCE? [ 19 ]

Section 718.3(4) states that “the court that sentences an accused shall consider directing (

a) that the term of imprisonment that it imposes be served consecutively to a sentence of imprisonment to which the accused is subject at the time of sentencing”. [ 20 ] Consecutive sentences are generally appropriate where there are two wholly unconnected incidents, as with the matter before me. The aggravated assault that Mr. Sesay is currently serving a sentence for is a completely separate crime involving separate circumstances and a different victim. A concurrent sentence would not reflect Mr.

Sesay’s moral culpability for this offence. [ 21 ] Although defence counsel seeks a concurrent sentence, he seeks this sentence on the basis of the principle of totality and does not argue that, but for that principle, this sentence should be imposed consecutively to the sentence that Mr. Sesay is currently serving. [ 22 ] I find that the appropriate sentence for this offence is one that is consecutive to the sentence Mr. Sesay is currently serving. PARITY [ 23 ]

Section 718.2 (

b) of the Criminal Code directs that sentences “should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. [ 24 ] Sentencing is a highly individualized process and the facts of one case will never exactly mirror the facts of another. Nonetheless, cases provide guidance on both the applicable principles and the general range of acceptable sentence. [ 25 ] In R. v. Larose , 2013 BCCA 450 , the British Columbia Court of Appeal had the following to say about the range of sentence for aggravated assault: 18 In R. v.

Kim , Chief Justice Finch addressed this feature of sentencing in cases of aggravated assault: [39] In R. v. Craig at para. 10, this Court described the range of sentence for similar cases of aggravated assault as being between 16 months and 6 years. However, as pointed out in R. v. Nasogaluak , 2010 SCC 6 , [2010] 1 S.C.R. 206 at para. 44 , and R. v. Bernier , 2003 BCCA 134 , ranges of sentence are suggestions or guidelines. They are not rules.

The sentencing of every accused is of necessity an individualized exercise, which must have due regard for the principles of sentencing in s. 718 of the Code , as well as the particular circumstances of the offences and the offender. [40] While a range of sentence is sometimes suggested as a guide, it should not be treated inflexibly. Crown counsel referred us to a number of cases where sentences for aggravated assault exceeded 6 years. The most recent are: R. v. S.B.P ., 2007 BCCA 541 , where the sentence was 10 years; R. v. Wallin , 2003 BCSC 809 , where the sentence was 9 years; R. v.

Armstrong, 2003 BCSC 1057 , where the sentence was 8 years; and R. v. H.J.H ., 2002 BCSC 1772 , where the sentence was 8 years. 19 To the list referred to by Chief Justice Finch, I would add Tschritter, where the sentence was one of 8 years. [ 26 ] Mr. Sesay’s situation is an unusual one in that I have a sentencing precedent for a strikingly similar offence committed by this exact offender just two weeks after this offence. Both offences were single unprovoked punches to the face which knocked the victims to the ground and caused significant injuries. Both cases took place outside of bars. In both cases Mr.

Sesay fled the scene while the victim was unconscious on the ground. In sentencing Mr. Sesay for the other offence, the Supreme Court imposed a six and a half year period of imprisonment: R. v. Sesay , 2019 BCSC 795 . That sentence was upheld by the British Columbia Court of Appeal: R. v. Sesay , 2020

BCCA 41. [27] There are some additional factors, aside from totality which I will address shortly, that are relevant to consideration of theprecedential value of the sentence imposed for the other aggravated assault. First, that sentence was imposed after trial. Mr. Sesay pleadguilty in the matter before me, albeit after the victim and witnesses testified at a preliminary inquiry. Mr.

Sesay has done some additionalrehabilitative work since the prior sentence was imposed, although the majority of his rehabilitative efforts took place prior to hissentencing for the other aggravated assault and were considered by the Court of Appeal in upholding his sentence. Mr. Sesay’sexpressions of remorse were found to be of limited weight by the sentencing judge on the other matter. I accept his remorse as amitigating factor. TOTALITY [28]

Section 718.2(

c) of the Criminal Code states that “where consecutive sentences are imposed, the combined sentence should notbe unduly long or harsh”. [29] In R. v. Johnson, 2012 ONCA 339, the Ontario Court of Appeal considered the principle of totality in relation to a sentenceimposed consecutive to a sentence being served at the time of sentencing. 18 In short, a combined sentence must not be unduly long or harsh in the sense that its impact simply exceeds the gravity of the offencesin question or the overall culpability of the offender.

The overall length of the custodial period imposed must still relate to and reflect thevariety of sentencing goals, including denunciation, deterrence (specific and general), rehabilitation, the need to separate offenders fromsociety where necessary, and the general imperative of promoting respect for the law and the maintenance of a just, peaceful and safesociety: Criminal Code, s. 718.

In this regard, the authorities recognize that where the ultimate effect of the combined sentences is todeprive the offender of any hope of release or rehabilitation, the functional value of these sentencing principles meets the point ofdiminishing returns: see R. v. C. (J.A.) (1995), (ON CA), 26 O.R. (3d) 462 (C.A.). This point was reinforced by LamerC.J. in M.(C.A.), at para. 74. 19 There are at least two types of situation where the principle of totality in the context of consecutive sentences may arise.

The first iswhere a single judge must deal with a series of offences, some of which require the imposition of consecutive sentences having regard tothe criteria for such sentences. A second - which is the case here - concerns a situation where a sentencing judge must impose a fitsentence on an offender convicted of one or more offences where that offender is at the same time serving the remainder of a sentencefor a previous conviction or convictions. [30] Mr. Sesay has embarked on a rehabilitative path.

He was, according to the reference letters provided, showing someconsiderable progress in the months leading up to his sentencing for the other aggravated assault. He has continued, so much as possiblewithin the restrictions resulting from the pandemic, to pursue this path. [31] In considering his sentence, I must ensure that it meets the sentencing goals for the offence before me, but does not exceed hisoverall culpability for all of his conduct, and does not deprive Mr.

Sesay of any hope of release or rehabilitation. [32] I must, however, also ensure that the sentence is not overly lenient nor unresponsive to the purposes and principles of sentence,as per R. v. Johnson, supra. 23 The system must be seen to be fair and rational - both to the offender and the community - and its integrity must be preserved.

Just asa sentence cannot be unduly harsh and excessive, neither can it be overly lenient or unresponsive to other purposes and principles thatunderpin the sentencing regime - denunciation, deterrence, the promotion of a sense of responsibility in offenders and acknowledgementof harm done to victims and the community, and the protection of the public: Criminal Code, s. 718.

In this sense, an offender such as theappellant ought not to be seen to be reaping benefits from his previous serious criminal misconduct. [33] The Crown submits that their sentencing position of four years includes a consideration of the principle of totality, as well as theother sentencing principles. Counsel for Mr. Sesay submits that a two year less a day concurrent sentence is necessary to give effect tothe principle of totality. COLLATERAL CONSEQUENCES OF COVID-19 [34] Counsel for Mr.

Sesay provided a number of documents demonstrating the negative impacts of the COVID-19 pandemic on theresidents of Matsqui Institution, where Mr. Sesay has been placed to serve the sentence imposed for the other aggravated assault. It isclear that COVID-19 has had a significant impact on inmates and that the more restrictive conditions in prison, together with theincreased risk of contracting the virus, are factors that can and should be considered in sentencing. [35] In R. v.

Hearns, 2020 ONSC 2365, Justice Pomerance considered the impact of the pandemic on sentencing principles andconcluded that COVID-19 is part of the sentencing equation as it may impact on the application of sentencing principles and affect ourconception of the fitness of sentence. She emphasized, however, that while consideration of the impact of the pandemic on those servingsentences could reduce the length of sentence, it does not necessarily do so. At para. 23 she stated: Second, I am not suggesting that the pandemic has generated a "get out of jail free" card.

The consequences of a penalty - be they director collateral - cannot justify a sentence that is disproportionately lenient, or drastically outside of the sentencing range. It cannot turn aninappropriate sentence into an appropriate one or justify dispositions that would place the public at risk. See: R. v Day, [2020] N.J. No.72, 2020 NLPC 1319A00658 at para. 1. It is ultimately a question of balance. As noted by A.J. Goodman J. in R. v. T.K., 2020 ONSC1935, at para. 74: In

summary, even in these very challenging times, the court must fully recognize the potential harmful health impact on detained personsin the various institutions, while at the same exercising the balancing required to sustain its fundamental role in the administration ofjustice and protection of the public.

[ 36 ] The additional challenge in addressing the impact of the pandemic on Mr. Sesay for purposes of the sentence I am imposing, is that he is currently serving a six and a half year sentence, and has a significant amount of that sentence remaining. Any consideration of the impact of COVID-19 would require me to look into the future and predict what those impacts would be at the time he finishes serving the sentence imposed last year. That is, of course, an impossible task. CONCLUSION [ 37 ] Having considered the guiding principles in the Criminal Code , the circumstances of this offence and of Mr.

Sesay, and the aggravating and mitigating factors, I conclude that, but for the issue of totality, a four-year jail sentence is appropriate. [ 38 ] Combined with the sentence he is currently serving, a four-year sentence for this offence would result in a total sentence of ten and a half years. I am of the view that totality calls for a slight reduction in that sentence.

Accordingly, the sentence I find fit is one of three years six months consecutive to the sentence currently being served. [ 39 ] In all the circumstances, I do not find that it would be appropriate to reduce the sentence for this very serious crime further as a result of the impacts of the pandemic. ANCILLARY ORDERS [ 40 ] This is a primary designated DNA offence. Pursuant to s. 487.051(1), I make an order in Form 5.03 authorizing the taking of samples of bodily substances from Mr. Sesay for the purpose of registration in the DNA National Databank. That sample will be taken from Mr.

Sesay in custody if one is required. [ 41 ] I am also required to make a firearms prohibition order pursuant to s. 109 of the Criminal Code . That order prohibits Mr. Sesay from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance for life. _____________________________ The Honourable Judge C. Rogers Provincial Court of British Columbia