R. v. Squinas and Niedjalski Date:, 2013 BCPC 122

Citation: R. v. Squinas and Niedjalski Date: 20130110 2013 BCPC 0122 File No: 176419-2C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KYLE THOMAS SQUINAS and MATHEW SPENCER NIEDJALSKI REASONS FOR SENTENCE OF THE HONOURABLE MR. JUSTICE BALL (Sitting as a Judge of the Provincial Court of British Columbia) Counsel for the Crown: L. O'Grady Counsel for the Defendant: D. Gable (for Squinas) K. Johnston (for Niedjalski)

Place of Hearing: Surrey , B.C. Dates of Hearing: 2011: June 8, 9, Sept 19, 20; 2012: Jan 3, 4, Feb 3 , 23, Apr 8 , Oct 30 Date of Judgment: January 10, 2013 [ 1 ] THE COURT : On April 18th, 2012, following a trial lasting eight days spread over a number of months, the accused were convicted of charges which arose out of an incident which occurred in Surrey, British Columbia on the 25th day of July 2009. Mr. Squinas was convicted of four counts, two of which were counts of robbery, one count of assault and one count of aggravated assault. Mr.

Niedjalski was convicted of two counts of robbery and one count of assault. [ 2 ] The Criminal Code of Canada provides in s. 718 and the following sections the purposes and principles of sentencing in criminal matters.

The fundamental purpose being to maintain a just, peaceful and safe society by imposing just sanctions which have objectives to denounce unlawful conduct, to deter the offender and other like-minded offenders from committing offences, to separate offenders from society where necessary and to assist in the rehabilitation of offenders while providing reparation for harm done to victims and to the community. Sentences should be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Similar sentences should be imposed for similar offences unless there is a good reason from departing from this principle. I have considered all of the foregoing in the reasons which follow. [ 3 ] The facts of this case are set out in the reasons for conviction, dated April 18th, 2012, and may be summarized as follows. At approximately 2:30 a.m., at a location in Surrey, British Columbia, approximately one block south of 24th Avenue, Mr. Webb then walking with his friends Justin Frellick and Leif Howard noticed two men, the accused, walking northbound on 156th Street on the west side.

Webb observed the two accused cross 156th Street so that the accused were walking northbound on the east side of 156th Street. The complainants expressed concern to one another that the accused intended to confront them because the accused stopped and then crossed the road to meet the complainants. The three complainants stopped walking when both of the accused, then side-by-side, stood in front of the complainants blocking their southward progress. The accused, Mr. Squinas, first asked the complainants for cigarettes, then for weed or marihuana, and then for beer. Mr.

Frellick testified that the demand was made "give us all your money and marihuana." Mr. Howard did not hear the word "money" used, but was nonetheless feeling threatened by the demand. Mr. Frellick quickly stepped to his left to move past Mr. Niedjalski. Mr. Niedjalski grabbed Mr. Frellick and forced him to the ground using the straps of the backpack beer satchel that Mr. Frellick was wearing, choking Mr. Frellick with the straps of the satchel and pinning him to the ground with a choking action and with Niedjalski's knees striking the side of Mr. Frellick's body. [ 4 ] Mr. Webb saw this occur. Mr. Webb and Mr.

Squinas then began to fight, first grappling with one another and then punching at each other. Mr. Webb called for Leif Howard to help Mr. Frellick, but Mr. Howard stood unmoving for a moment or two. Then Mr. Howard moved to assist Mr. Frellick, but was stopped when Mr. Niedjalski said to Howard, "Stop or I'll end your friend," or "buddy", as he continued to choke Frellick. Mr. Webb freed himself from the fight with Mr. Squinas and pulled Mr. Niedjalski off of Mr. Frellick. Mr. Webb and Mr.

Squinas then re-engaged and in the course of their grappling fell together so that Webb's head struck a landscaping boulder with some force. Mr. Squinas was then standing over Mr. Webb and Squinas stomped with his foot "pretty hard" down on the face of Mr. Webb one or more times. Leif Howard saw this stamping take place, and I accepted his evidence at trial as credible and reliable. [ 5 ] In a statement that he made to police, Mr. Squinas also said the following: I don't think I kicked him. I'm pretty sure I didn't kick him. It's possible, I don't know. I don't recall kicking but it's possible.

I guess it's possible. Effectively, Mr. Squinas was unsure about his own conduct and I was satisfied beyond a reasonable doubt that based on the evidence I did accept, including the medical evidence, that Mr. Squinas stomped on the face of the helpless Mr. Webb. [ 6 ] During the altercation with Mr. Squinas, Mr. Webb suffered an undisplaced skull base fracture, a subarachnoid hemorrhage, a small pneumocephalus and a small subdural hemorrhage at the right middle cranial fossa, with an undisplaced fracture of the left zygomatic arch and the lateral wall of the left orbit.

One of the causes of these injuries was the collision which occurred between the back of the head of Mr. Webb and the large boulder used to decorate the verge of the roadway on 156th Street. In addition to the skull fractures noted above, Mr. Webb suffered a broken cheekbone, a broken upper jaw and a significant scalp laceration. The injuries to the face and head of Mr. Webb were significantly contributed to by the stomping action by Mr. Squinas. [ 7 ] Apart from being off work for a number of weeks, Mr. Webb has ongoing nausea and vertigo caused directly by his skull injury.

His ability to work has been adversely affected on a long-term basis. In a warned statement given to the police Mr. Squinas stated that he took the wallet belonging to Mr. Webb from Mr. Webb's back pocket after Mr. Webb was lying apparently unconscious beside the boulder. In the same statement Mr. Squinas stated that he had money belonging to Mr. Howard when he fled north from the scene. [ 8 ] After being freed from the choking grip of Mr. Niedjalski, Mr. Frellick heard the collision of Mr. Webb's head with the boulder and he saw Mr. Webb bleeding and unconscious on the ground. Mr.

Frellick ran to the nearest corner at 156th Street and King George Boulevard to ascertain the exact location and, with his cell phone, called the 9-1-1 emergency line. [ 9 ] The last thing that Mr. Webb recalled was attempting to free Mr. Frellick from the choking grip of Mr. Niedjalski, but Mr. Webb was rendered unconscious almost immediately thereafter. Mr. Niedjalski began to fight with Mr. Howard. Rather than continue that fight because of concern over the inert body of Mr. Webb lying nearby, Mr. Howard took the money from his wallet and threw that money on the ground in front of Niedjalski. Mr.

Niedjalski picked up that money. Mr. Squinas then tried to strike Mr. Howard with his

belt, striking him once in the face. Then both Mr. Squinas and Mr. Niedjalski fled north. [10] Mr. Webb had a wallet in the back pocket of his jeans before the altercation with Mr. Squinas. The wallet contained anestimated $100 in cash, personal identification and credit cards at the time. As noted above, Mr. Squinas took the wallet from Mr.Webb's pocket when Mr. Webb was lying unconscious near the boulder referred to above. Mr. Webb was bleeding from head injuries atthe time the wallet was taken. Mr. Squinas did not offer any first aid assistance or call any assistance for Mr. Webb, but in the companyof Mr.

Niedjalski eventually fled the scene with Mr. Webb's wallet in his hand. When Mr. Squinas was later arrested the wallet wasfound nearby. Mr. Frellick and Mr. Howard waited at the scene for emergency services to arrive. [11] All counsel are agreed, given legislative amendments, conditional sentence orders are not available for the matters before thecourt, particularly robbery charges. Crown counsel seeks a sentence of two years less a day and custody for each of the accusedfollowed by a period of three years of probation.

Crown counsel listed aggravating factors and mitigating factors in a written submissionwhich I will discuss further below, as well as a reference to the potential for consideration of the case of R. v. Gladue, (SCC), [1999] 1 S.C.R. 688. Counsel for Mr. Niedjalski and Mr. Squinas both submitted that while incarceration was a possibility, othersentencing forms should be used. CIRCUMSTANCES OF THE ACCUSED [12] Mathew Spencer Niedjalski is 22 years old and single. He resides with his father in the Vancouver area. His father was presentthroughout much of the trial and is supportive of his son.

I have reviewed the Presentence Report which was filed relating to Mr.Niedjalski, dated October 24th, 2012, and a Forensic Psychiatric Report prepared by Dr. Adilman, dated September the 4th, 2012. ThePresentence Report asserts that the relationship with his father had negative aspects and that Mr. Niedjalski was not as close to his fatheras he was to his mother, who now resides in the United States. While he was raised by his mother, she apparently moved frequentlyaround the Lower Mainland during his early years.

He described to the report writer a childhood characterized by inconsistencies andinstabilities as to residence. His present goal is to live alone in independent housing. The psychiatric report referred to a ratherdissimilar view: "I'm on good terms with both my parents", paragraph 9 at page 3. [13] Mr. Niedjalski did not graduate from high school. After his secondary school years he began a program at VancouverCommunity College to become a chef, but only completed the first seven months of that program.

Between chef-related jobs andworking in the reinforcing bar sector of the construction industry he has had a series of short-term jobs, nothing exceeding six months ofduration. His career development had been delayed because he had been repeatedly dismissed "due to stealing at work, poor attendanceand aggressive behaviour", page 3 of the Presentence Report. [14] He was diagnosed with ADHD at age four and later with anxiety and depression for which he took medication. At the age of 18he was prescribed with mood stabilizers by a psychiatrist. In July 2012, Mr. Niedjalski was certified under the Mental Health Act.

Hehad at that time clear suicidal plans which he had attempted to carry out. Eventually he was diagnosed with a psychosis. He was hearingvoices and treated with antipsychotic medication in hospital and later as an outpatient. His outlook and behaviour improved significantlyfollowing his stay in hospital. He reported a period of years as a youth where he was abusing various street drugs, including marihuana,methamphetamine and cocaine, at times as self-medication to cope with his depression-related problems.

Although he reports alcoholand drug abuse from an early age he told the report writer that he had been clean "since he had been taking his medication", page 4 of thePresentence Report. [15] Mr. Niedjalski has a record. He has a conviction for fraud involving his grandparents as victims, for which the sentence wastwo years of probation, 50 hours of community work service and a $4,400 restitution order. The conviction, however, postdates thepresent convictions and therefore cannot be considered a prior record for sentencing purposes.

However, the fraud offence, which I havereferred to, occurred while he was on bail on current charges. [16] Since the offences and his stay in hospital, Mr. Niedjalski has cooperated with the Vancouver Forensic Outpatient Clinic andDr. Adilman and taking medication and participating in counselling. He has appeared to express remorse. It is troubling that given thefacts of the case, including that he began the physical contact with the victims in the early morning hours July 25th, 2009, he continuedto assert that he was trying to protect Mr. Squinas. At the time, and until Mr. Niedjalski began the assault on Mr.

Frellick, Mr. Squinaswas in no particular need of protection from anyone. [17] At page 3, paragraph 5 of Dr. Adilman's reports he asserts, "He did not rob them and continued to deny the conduct." Hecontinued to deny conduct and causing one to wonder about his level of remorse. It is also an aggravating factor that he was found tohave lied in his testimony before this court. Mr. Johnston submitted during his submissions that Mr. Niedjalski had been credible whenhe spoke to the police. At paragraph 8 of the reasons for conviction I stated the specific reason for finding Mr. Niedjalski to be lying.

Iappreciate the point that Mr. Johnston was trying to make, but Mr. Niedjalski was not honest or forthcoming when he spoke to thepolice. [18] With respect to Mr. Squinas, a Presentence Report dated July 23rd, 2012, was filed and read by the court. Following grade 11in high school he chose to work instead of graduating. For a period of time he worked at his father's business installing medical ceilinglifts in hospitals and seniors homes until late 2009.

He was unemployed for some months until the summer of 2010 when he took workas a landscaper, obtaining a job eventually with Superior Tree Service until September of 2010 when he left in May of 2012 to seek a jobas a welder. He was not employed as a welder then and became unemployed. Eventually he obtained work welding fence panels. [19] Mr. Squinas has two driving offences, one an impaired driving offence for which he received a $600 fine in 2008, and a drivingwhile suspended for which he received a fine of $500. According to the Presentence Report, neither fine is paid.

The second offenceoccurred while he was on bail for the present offences. The writer of the Presentence Report suggests that the historical offences,together with the current offences, indicate substance abuse concerns which have not been seriously addressed, and that substance abusecounselling and treatment is necessary for his rehabilitation. He has attended some AA meetings. He has no other physical or mentalconcerns. He reports feeling remorseful, however, the remorse he expressed is somewhat blunted by his statement that he had littlememory of what occurred.

[20] Relatively speaking there is little explanation in relation to a matter that might be rehabilitative in relation to Mr. Squinas. Onemight say he has done little or nothing to discover what may have caused the vicious conduct exhibited towards Mr. Webb, stomping onthe face of a clearly defenceless man, his conduct which in any circumstances must be denounced and deterred by all members of thecivilized society. [21] Further in his background Mr. Squinas is the second of three children and lived in a very supportive environment in his parents'home until quite recently. He had no apparent history of violence.

He moved into his own suite at the age of 20 and his landlords,parents of a high school friend and friends of his parents, found him to be reliable and well behaved. He had during his school years usedmarihuana and alcohol occasionally and experimented with cocaine while still in high school. After high school he became somewhat ofa binge drinker. [22] Considering the issues raised, in the case of R. v. Gladue I note firstly that counsel expressly waived any need for what isknown as a Gladue report. Mr. Squinas is a status Indian, registered through his father to a band in northern British Columbia.

Hisfather, according to the Presentence Report, had only lived part-time in that area on a reserve while he was a child. Mr. Squinas, who isnow before the court, has had little contact with Native heritage or culture, except in a high school where he was involved in someactivities for First Nation students. Through counsel, he expressed no desire to seek out or specifically obtain First Nations services atthis time. That was also noted at page 4 of the third paragraph in the Presentence Report. [23] The defence counsel relied upon a series of cases, including R. v. Koop, [2008] B.C.J. No. 646, R. v.

Gill, 2006 BCCA 127, [2006] B.C.J. No. 519, R. v. Desmond, [2011] B.C.J. No. 2693, R. v. Nakamura, 2012 BCSC 327 , [2012] B.C.J.No. 437, all of which cases display the variety of sentences which may be imposed in a criminal case and the difficulties in balancing thevarious principles which I referred to before set out in s. 218 and following of the Criminal Code. R. v. Koop is a case where the Courtof Appeal considered the use of a conditional sentence order, however, due to the change in legislation that is no longer available. Thecase of Nakamura presented an interesting problem to the Honourable Mr.

Justice Romilly where the accused, who planned andprovided the weapons to carry out a serious assault, was actually a youth and had been sentenced and had in effect beguiled two otheryoung men who were 18 years old to actually carry out the offence. There Mr.

Justice Romilly was dealing with the very difficult taskof balancing the offence, a sentence which had been given to the youth offender versus the sentences which were to be given to the two18-year-olds, one of whom had a serious immigration problem and the immigration problem would have caused serious and unintendedcircumstances if the sentence sought by the Crown had been imposed, and that would have been the deportation of Mr. Nakamura. [24] Crown counsel relied upon a booklet of cases, including R. v. Brogan, 1999 BCCA 278 , [1999] B.C.J. No. 1011, adecision delivered by Madam Justice Ryan.

Brogan was involved in the robbery of a gas station employee who was threatened with apellet gun held by Mr. Brogan. Because of the nature of the offences Mr. Brogan was given an eight-year sentence, which is far morethan anything being considered in the case at bar.

The importance of the case is that Madam Justice Ryan set out a series of factors thatwould affect the range of sentence for robbery with violence and it must be recognized that the violence that she was talking about wasviolence where it appeared a gun was being used to threaten a hostage in effect, and there she set the range at two to nine years and shespoke of the following factors: the age of the offender, previous criminal history, the level of violence, the level of premeditation,whether an offender was disguised or masked, whether a weapon was used, the possibility of rehabilitation, and the requirement fordeterrence. [25] In the case at bar, I have detailed the ages of these two accused.

They are relatively young. They both have some criminalhistory; Mr. Niedjalski's being the more serious of the two. Both committed offences while on bail. The level of violence is different inthe two cases. Mr. Niedjalski was involved in holding someone to the ground, and, later, in some pretty ineffective fighting. Mr.Squinas, on the other hand, not only was aware, as everyone was, that Mr. Webb was badly injured, but then proceeded to stomp on hisface. There was little premeditation, except that the accused decided to cross the street in what appears to be an attempt to pick a fight.

None of the accused was disguised. The only weapon practically used in this case was the belt used by Mr. Squinas. There clearly is apossibility of rehabilitation and in Mr. Neidjalski's case that has been reached to some degree. Clearly there is a requirement fordeterrence. The sort of behaviour that is exhibited here cannot be part of any society that calls itself either safe or civilized. And as Isay, rehabilitation is important for young offenders, but here the robberies were committed in violent terms. Mr. Frellick was beingchoked. Mr.

Webb was seriously injured and after the injury he had his face stomped on. Mr. Niedjalski started the violence and Mr.Squinas nearly finished Mr. Webb. [26] Crown counsel has been quite measured in her submissions. The Crown was not seeking sentences at what I call the high end ofthe range. Rather, the sentence is sought below the range set out in R. v. Brogan, and that reflects to some extent the tailoring ofsentences discussed in the case of R. v. Longtin, 2001 BCCA 614 , [2001] B.C.J. No. 2293. Counsel for the accused suggestednon-custodial sentences, particularly for Mr.

Niedjalski, and those sentences would require the court to treat rehabilitation as theparamount sentencing principle replacing substantially denunciation and deterrence or protection of the public as sentencing factors. Itmust be remembered that the robberies in this case and the aggravated assault committed by Mr.

Squinas, while not particularly plannedor premeditated, involved deliberately crossing a darkened, nighttime street to attack strangers which resulted in very serious injuries toone of those strangers. [27] I have taken into account all of the mitigating and aggravating factors, which I have listed above, as well as the submissions ofcounsel and the cases which have been cited therein, which I have read with care and interest. I am satisfied that the appropriatesentences in this case are sentences of real incarceration. I have taken into account that Mr.

Niedjalski has made a significant adjustmentin his life, partially as a result of committal to hospital and certification under the Mental Health Act. [28] I have decided that the appropriate sentences are as follows: [29] For Mr. Niedjalski on the three counts which he has before the court, there will be a global sentence of 14 months in custody. As for Mr. Squinas on the three counts that are before the court, concurrently there will be a global sentence of 20 months in custody. [30] Each of the accused will then serve a period of probation for three years.

Conditions of the probation for both accused are thatthey will keep the peace and be of good behaviour, appear before the court when required to do so by the court. They will notify the

court or 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. [ 31 ] They will report within 48 hours of their release to the probation officer at 100 - 13545 - 64th Avenue in Surrey, British Columbia and thereafter as and when directed. [ 32 ] They will reside where directed by the probation officer and not change that residence without the prior written permission of the probation officer. [ 33 ] They will have no contact, direct or indirect, with any of the complainants and they will not attend within a 100-metre radius of any residence, school or place of employment occupied by any of the three complainants of which the individual accused become aware. [ 34 ] They will attend, participate and successfully complete such counselling as directed by the probation officer, which may include but is not limited to psychiatric or psychological assessments, substance abuse, alcohol abuse and anger management or related CORE programs. [ 35 ] They are prohibited from owning, possessing or carrying any weapons as defined by the Criminal Code of Canada or any knives except for preparing and consuming food. [ 36 ] They are to abstain absolutely from the consumption of alcohol and/or non-prescription drugs or those drugs as defined under the Controlled Drugs and Substances Act . [ 37 ] They are to seek and maintain employment and attend an educational or vocational institute as directed by the probation officer. [ 38 ] In respect to Mr.

Niedjalski, it is my strong recommendation to the B.C. Corrections Services that his relationship with the Forensic Institute be promoted by whatever means is available to promote that relationship and continue his rehabilitative work with that authority. [ 39 ] Are there ancillary orders, Ms. O'Grady, that I should be making? [ 40 ] MS. O'GRADY: Yes, Your Honour, Crown was seeking a DNA, as well as the firearms prohibition under s. 109(1). [ 41 ] MR. JOHNSTON: No submission, Your Honour. [ 42 ] MR. GABLE: No submission. [ 43 ] THE COURT: Both those orders will go then.

Both accused will provide suitable samples for DNA analysis. And the firearms prohibition is for a period of? [ 44 ] MR. JOHNSTON: I think it's ten years. [ 45 ] MS. O'GRADY: Crown is seeking for life, pursuant to s. 109(1). [ 46 ] MR. JOHNSTON: I think it's a ten-year minimum automatically on a charge of robbery, but I think it's discretionary after that. [ 47 ] THE COURT: I am satisfied neither of these gentlemen needs a firearm in the future, and the s. 109 order will be life. [ 48 ] I am waiving the surcharge in the circumstances. (REASONS FOR SENTENCE CONCLUDED)