R. v. Plonka Date:, 2014 BCPC 309

Citation: R. v. Plonka Date: 20141113 2014 BCPC 0309 File No: 17664-1 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. ANN MARIE PLONKA ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.W. JARDINE Counsel for the Crown: S. Salmond Counsel for the Defendant: G. Gallins, Q.C., M. Matier, Articled Student Place of Hearing: Colwood , B.C. Date of Hearing: November 13, 2014 Date of Judgment: November 13, 2014

[1] THE COURT: This is not a simple matter. In respect of this case, Ann Marie Plonka, on April the 9th, 2014, at Sooke, on theGalloping Goose Trail, committed an assault, to which she has pled guilty, by pepper spraying Helmut and Waltraud Schumann using aweapon, to wit, a can of pepper spray.

She has pled guilty to that offence in respect of one of the two counts, which entails only Helmut. [2] In the context of this matter, there is a history, there is background, in that at the time of the pepper spraying, the Schumannswere walking on the Galloping Goose Trail with walking sticks and with their Bouvier dog off leash. Some three years previously, as istheir practice on a daily basis, they had as well been walking with their dog and at that time their dog approached and bit the accused,Ms. Plonka, on the hand. [3] It was not a minor bite. It was a significant bite wherein Ms.

Plonka suffered injuries that caused her to be hospitalized, andwhich resulted in nerve damage, not only to the hand area, but as well subsequent nerve damage, I am told, to the spinal/neck area. Shereceived treatment, has received counselling to deal with extensive pain. The treatments occurred over a period in excess of 200-plusdays. [4] She made a complaint. Her complaint fell on deaf ears.

She lost her job. [5] So on the 9th of April of 2014, when she again sees the Schumanns and their black Bouvier, off leash, and they areapproaching each other, she uses the pepper spray on the Schumanns, while yelling at them, "You are bad people." [6] She was subsequently found through investigation and complaint, through bylaw officers and the Royal Canadian MountedPolice, to be the person who had sprayed them. [7] Those are the relevant and probative facts relating to the proportionality of sentence. [8] The paramount principle of sentencing is articulated in s. 718.1.

It says that the sentence must be proportionate to the gravity ofthe offence and the degree of responsibility of the offender. [9] During the course of submissions, I asked counsel for Ms. Plonka, who is well prepared and thoroughly engaged in seeking adischarge for his client, and who has engaged in many discussions with the Crown, such that the Crown, as one can appreciate a seniorCrown like Mr. Salmond, is of the view that he is not opposed to a discharge in this case.

At the same time, we have the attitude andperspective of the victim of this assault with a weapon, two persons in their seventies who were surprised, discomfited, made fearful bythis attack of them. [10] So the principal point to the degree of responsibility of the offender and to the gravity of the offence is what was the motive? What was the intent? What caused the triggering of the pepper spray by Ms. Plonka? Was it anger? Was it revengeful?

Was itfearful? [11] Well, if it was fearful, one would think that she would have pepper sprayed the dog, as opposed to pepper spraying the people. [12] Why is that significant to this sentencing? Well, the purpose and principles of sentencing in s. 718(

a) to (

f) talk about thedenunciation of the unlawful conduct. Well, one wants to preserve the elderly. Elderly abuse is a new topic. [13] To deter the offender and other persons of like mind from committing similar offences. Well, we have got an assault. Thequestion is, is it an unprovoked assault or is it a provoked assault on the Galloping Goose Trail? [14] We do not need to separate. We are not talking about protection of the public by incarcerating this person who has no previousoffences.

We need to deal with rehabilitation and the rehabilitation issue pertains not only to her ability to be employed, but also herability to respond to the community with or without a record. [15] We are supposed to provide reparations for harm done to victims or to the community.

There has been a heartfelt apologyoffered here in court. [16] We are to promote a sense of responsibility in the offender and an acknowledgment of the harm done to victims and to thecommunity, but we are also, in the instance of this matter, and counsel have, as is usually the case on a remand list, done a short formsubmission. [17] But discharges are informed by the seminal decision in this province in R. v. Fallofield (1973), (BC CA), 13C.C.C. (2d) 450, in the British Columbia Court of Appeal, by Chief Justice Farris as he then was.

There are eight points made by HisLordship in the unanimous judgment in our Court of Appeal. The operative points for the purposes of this sentencing is that the sectioncontemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivial violation. It was thens. 662.1, it is now s. 730 of the Code. [18] There are two conditions precedent to the exercise of the jurisdiction to grant a discharge. The first is the court must considerthat it is in the best interests of the accused that she should be discharged, either absolutely or upon condition.

If it is not in the bestinterests of the accused, that of course is the end of the matter. [19] Well, it is clearly in the best interests of Ms. Plonka. You just have to look at it. She has no previous record. She wasemployed as a secretary in a law firm, she lost that position. She volunteers. She likes to volunteer with children. The imposition of arecord would preclude her being able to volunteer and work with children.

It is clearly in her best interests. [20] If it is decided that it is in the best interests of the accused person, then that brings the next consideration into operation, andthat second condition is the condition that I have asked questions of defence counsel about here in this sentencing. Is the grant of a

discharge -- and this is difficult to prove, because it is asking one to prove a negative -- not contrary to the public interest? [ 21 ] Now, generally the first condition would presuppose that the accused is a person of good character. Clearly Ms. Plonka is in that position. She is a person without previous conviction. [ 22 ] The public interest and the deterrence of others, while it must be given due weight, does not preclude the judicious use of the discharge provisions. So His Lordship is saying judges do not simply rubber stamp discharges.

They are to be judicious in their thinking, analysis, and determination of the appropriateness of it as a disposition. [ 23 ] The powers in s. 730 should not be given and exercised as an alternative to probation or a suspended sentence. So we are not simply substituting a discharge for a suspended sentence and probation. It should not be applied routinely to any particular offence, because of course sentencing is an individual task. Each sentencing is different.

As much as it should show comity and parity of sentence, our principles of sentencing require the court to look at each offender and each set of circumstances individually. [ 24 ] So where do I come down here? The circumstances of the offender are such that she is 49 years of age, she is divorced, she is a single mom, she has a 16-year-old still at home, she has an 18-year-old daughter who is not residing with her. She lives at 2353 Demamiel Drive in Sooke, and it is confirmed that she has had significant damage occasioned by the Schumanns' dog. [ 25 ] Now, I do not know why she pepper sprayed them.

Her counsel submits that she was fearful. Well, I can accept, based on the facts provided before me, and I do accept, that she was indeed fearful when she saw the dog, but she was also mad at the Schumanns, otherwise she would not have pepper sprayed them. [ 26 ] What then is the court to do in respect to the discharge? Well, she has been on conditions for six months. She has not breached those conditions. I have no evidence of any breach. I have evidence of a plea.

I have evidence of her coming before the court and apologizing here today. [ 27 ] The Crown seeks that I impose a one-year conditional discharge with probation for that year, with a term that she not walk on the Galloping Goose Trail. [ 28 ] The defence submits that a discharge is appropriate, but does not address whether or not she should be on the Galloping Goose Trail.

Counsel has not drawn a distinction between an absolute discharge and a conditional discharge. [ 29 ] Having regard to all of the submissions, having regard to the facts before me and the circumstances of this offender, I am not of the view that a further period of probation is a fit and proper disposition. Given the events of 2011 and the pain and suffering endured since then, given the circumstances of this offence and the fact that the dog was not on leash, given the fact that there is no long-term injury to the Schumanns, and given Ms.

Plonka's continued volunteering and her apologies before the court today, I am of the view that the fit and proper disposition is an absolute discharge. [ 30 ] You will be discharged absolutely. The matter has ended. You are free to go. [ 31 ] THE ACCUSED: Thank you, Your Honour. (REASONS CONCLUDED)