R. v. C.T.H., 2022 BCPC 90

Citation: R. v. C.T.H. 2022 BCPC 90 Date: 20220401 File No: 180947-1-K Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.T.H. BAN ON PUBLICATION -

SECTION 486.5 (1) of the Criminal Code of Canada ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: J. Gillings Counsel for the Defendant: J. Mills appearing by videoconference Place of Hearing: Victoria , B.C. Date of Judgment: April 1, 2022

[ 1 ] THE COURT: You are here today for sentencing, Mr. H., on charges involving a brutal and a prolonged assault on S.C., a person with whom you were in an intimate relationship at the material time. At trial, I found you guilty of four separate offences including that you assaulted S.C. by choking her, that you assaulted her with a weapon, that you assaulted her to the point of causing bodily harm, and that in the course of these assaults, you confined S.C. against her will.

All of these assaults occurred on October 17, 2020, between approximately 12:30 and 9:30 a.m., while you were bound by a release order to have no contact or communication with S.C. You pled guilty at trial, Mr. H., to two counts of breach of a release order so the trial proceeded on the four counts I have just outlined. [ 2 ] I will address my findings at trial regarding each of these counts in some detail, Mr.

H., as I must, shortly in these reasons for sentence since it is a fact that both the seriousness of the offending behaviour and the impact on the victim, among other things, informs the nature and the length of a disposition in any case. Still, I do not intend to cover these in great detail given the length of my reasons on the question of your guilt or innocence and the fact they were given less than a month ago. So they will still be fresh in your mind, Mr. H.. [ 3 ] To frame the issue in this sentencing, Mr.

H., I will start by noting that I am sentencing you for a very serious assault on S.C. who was, as was so apparent at trial, seriously traumatized by the attack. I outlined the physical effects of the assault on S.C. in some detail in my reasons. Among other things, S.C.'s physical appearance just days after these assaults stunned a seasoned Victoria Police Department officer. [ 4 ] S.C. testified in this trial over a period of days. On S.C.'s behalf, the Crown sought and was granted a witness accommodation. S.C. testified in open court behind a screen.

Such an accommodation was necessary, Crown submitted, for several reasons including that S.C. had not much earlier testified in a separate trial, Mr. H., in which you were ultimately found guilty of an assault on her and then sentenced to nine months in custody. [ 5 ] S.C. struggled at times to get through her evidence in this trial. It was necessary to adjourn twice during her testimony including over the Christmas holiday even though S.C. was still under cross-examination. S.C. understood that it was in her best interest to finish her testimony rather than adjourn.

Still, I accepted that S.C. had reached the limit of her capacity to testify and we did adjourn. It was notable, as I stated in my reasons for judgment, that even after this pause in the trial, S.C.'s evidence remained remarkably sharp and consistent. I accepted her testimony regarding the assault with some minor exceptions. [ 6 ] In this sentence hearing, I was provided with a victim impact statement by S.C. written last March. During her testimony, S.C. described many of the impacts that she laid out in that statement.

In trial, S.C. described the immediate physical effects of the assault, her trip to the hospital, her ongoing pain and injuries, her struggle with anxiety and depression, her inability to work, her worry over money, and her feelings of shame and isolation. We know from testimony elicited at trial that S.C. struggled with mental health issues at various points in her life well before these assaults. [ 7 ] In her victim impact statement, S.C. filled in those parts of the form that sought information from her concerning the ways in which the assaults impacted her.

She indicated, as well, that she would send a more personal statement through the Victim Services as the form invites. Instead, in this sentence hearing, I have received victim impact statements from S.C.'s mother, father, step-mother, and sister, as S.C. took her own life sometime after testifying in this trial, but before my reasons were given. [ 8 ] S.C. died, Mr. H., not knowing whether you were found guilty by this court of the assaults she described in such detail and at such length in this trial.

I was deeply saddened and shocked by the news of S.C.'s death and I want to express my sympathies to S.C.'s family and friends. I do not know, and I cannot know, whether this trial bears some causal link, but I do know, as was so evident, that the trial process was difficult for S.C. As Crown described S.C.'s emotional state following the conclusion of her testimony, S.C. found the experience excruciating. [ 9 ] Mr. H., you are not here today being sentenced for S.C.'s death.

You are not being held responsible for that tragedy just as you cannot be held responsible for the impact the trial of this matter may have had on S.C. You were entitled to a trial on these charges, Mr. H.. The Crown was obligated to prove its case against you beyond a reasonable doubt which I found it did. You cannot be prejudiced by having proceeded to trial and, in that regard, the death of S.C. cannot work against you in this sentencing. It is, Mr.

H., important that you know this just as it is equally important that S.C.'s family and friends all know this and understand this, as I am told is the case. [ 10 ] Beyond this limitation, the Crown submits, and I accept, that what this court can take from S.C.'s death is that the assaults on her for which you have been found guilty had a tremendous damaging and ongoing impact on her. Moreover, while you cannot be prejudiced for proceeding to trial, Mr.

H., nor are you entitled to the significant benefit on sentencing that is given to offenders who take responsibility for their offending behaviour and spare victims from the engagement in the trial process. [ 11 ] The issue in this sentence hearing is length of sentence. The Crown seeks a custodial sentence of two years' duration followed by a three-year probation order. On your behalf, Mr. H., counsel submits that a sentence in the range of 12 to 18 months would be appropriate taking into account all of the principles and objectives of sentencing. Alternatively, Mr.

Mills submits that should this court exceed an 18 month sentence, it should order that that be served in the community by way of a conditional sentence order. [ 12 ] A conviction for the offence of assault with a weapon contrary to s. 267(

a) of the Code is a primary designated DNA offence as are convictions for assault causing bodily harm contrary to s. 267(

b) of the Code , choking contrary to s. 267(

c) of the Code , and unlawful confinement contrary to 279(2) of the Code . The Crown seeks an order that this court exercise its discretion pursuant to s. 110 of the Criminal Code , as it may, and prohibit you from possessing any firearms for life. [ 13 ] The terms of the probation order sought are for the most part uncontroversial but for a provision the Crown seeks requiring you, Mr. H., to report any relationships to your probation officer for the period of three years. On your behalf, Mr. H., it is submitted that there is no evidence before the court justifying that condition such as a pattern of domestic abuse.

[ 14 ] I noted moments ago that the length and duration of the sentence is informed by a number of factors including the seriousness of the offence. This derives from the fundamental principle of sentencing, that being the principle of proportionality. The principle of proportionality provides that, whatever else a court may consider in a sentence, the sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. [ 15 ] The gravity of the offences at issue here can be gleaned easily and at once from the information.

Clearly, some criminal offences are graver than others. Here, Mr. H., you have been found guilty of four serious offences. I found that you choked S.C. not once, but several times using your hands and weapons: these were your surf leash, and the cord of a cellphone charger. I found that you struck S.C. repeatedly about her head and body with a binder and you struck her at least several times with your belt including in at least one instance while the buckle was still attached. I found you struck S.C. about her face and head with your hands and, in doing so, caused serious bodily injury.

I found also that you prevented S.C. from leaving the apartment she shared with you, though she desperately wanted to several times. [ 16 ] These offences are obviously serious, Mr. H., and here they are aggravated by a number of factors. First, the fact that you abused your then domestic partner is an aggravating factor pursuant to s. 718.2 (a)(ii) of the Criminal Code . Even if this were not provided for by the Code , it is inconceivable that it would not be an aggravating factor. As Crown put it in submissions, Mr.

H., were you to have committed these assaults on a stranger outside of the context of an intimate partner relationship, it would be shocking. These assaults are not made any less shocking or appalling because they are considered a domestic assault. In my view, the point of s. 718.2 of the Code is to highlight certain factors that make an offence especially aggravating. [ 17 ] Certainly the fact these assaults were carried out over a period of hours is also aggravating. You had plenty of time, Mr.

H., to stop and think about what it was that you were doing to S.C., why it was so wrong, and why it should not have stopped, let alone have happened at all. How did you sustain your motivation over those many hours, Mr. H.? It seems by anger fuelled by jealousy armed with the knowledge you had assaulted S.C. before and yet she stayed with you. [ 18 ] In some regard, you evidenced a sense of entitlement.

Your text messages the following day, sent knowing what you had done - even seeing what you had done to S.C.'s face from her text messages sent at noon - were nonetheless importuning her to come home to hugs and love and promises of domestic tranquility. You wanted to keep the relationship going, Mr. H., and it appears you seriously thought or deluded yourself into thinking that S.C. would come back and continue living with you.

You certainly did not expect S.C. would have the courage to go to police. [ 19 ] The assaults, as I outlined in my reasons for judgment, were carried out on and off over a period of hours. S.C. could not leave, though, as I say, she desperately wanted to. Your initial assault took her by surprise, not because she was not expecting a fight given your jealousy over her having gone out with friends, but because you had set out candles. She let her guard down and quickly found herself struggling to keep your surf leash from strangling her.

I agree with Crown, as S.C. described it, it was odd to see your surf leash in the bedroom at all. It was then just as quickly wrapped around her neck. The evidence indicates a level of planning. That, too, is an aggravating factor. [ 20 ] I will deal with the bulk of the remaining evidence of the assault that early morning as I address the impact of these offences on S.C.

For the present, given my reasons for judgment, it is enough to say that I found at trial you attempted to strangle S.C. including with your surf leash, that you beat her with your belt, both with the buckle on and then off, that you beat her about her head with a binder so severely it left significant bumps all over her head, that you assaulted her with your hands about her face and head causing significant bleeding and ongoing facial trauma; that you held her against her will, and that you traumatized her to the extent she was still suffering physically, emotionally, psychologically, and financially up to the time of trial and up to the time of her death. [ 21 ] Mr.

H., you are now 44 years of age. You come before the court with a limited criminal record. It is comprised of your conviction for the assault of S.C. causing bodily harm on January 1, 2020.

In sentencing reasons dated February 18, 2022, you were sentenced by the trial judge in that matter to a custodial sentence of nine months followed by a probation order of 18 months' duration with the usual conditions including no-go and no-contact orders with persons other than S.C. who was by then deceased, as well as counselling and reporting and, of course, no weapons and knives with certain limited exceptions. [ 22 ] In terms of other information that may be of assistance in this sentencing, Mr.

H., I find myself in not much better position than your last sentencing judge given her reasons this last February 18, 2022. As I read the reasons and consider the materials provided to me, they are the same. In other words, Judge Barrett was advised, as I am as well, that upon your release you intend to return to Prince Edward Island where your family awaits you. [ 23 ] If there is some additional information in regard to these plans or these family members, it is this: Crown advises in this sentencing hearing at least that she has spoken to your mother.

You testified many times during the trial regarding your closeness with your family and particularly with your mother. It was she, you testified, that urged you to record S.C. when the two of you argued in case you were ever charged with S.C.'s assault. You followed that advice. You testified you spoke to your mother nearly every day. You testified, as well, that your mother has been actively involved in your defence. [ 24 ] Crown submits, based on its conversation with your mother, that she is convinced of your innocence.

Moreover, Crown directed this court's attention to a letter of support written by your mother dated February 2, 2022, submitted in the sentence hearing before Judge Barrett. In light of this correspondence, as well, Crown asks the court to consider the commitment or utility of your rehabilitation when back surrounded by your family given their firm view of your role in these assaults. This letter is both unfortunate and quite unhelpful, Mr. H..

I agree with Crown that you cannot be held responsible for your mother's expressed views, but it is clear she regards you and only you as the victim. [ 25 ] Yesterday, through your counsel, I received additional correspondence from your mother as well as correspondence from your father, sister, and grandmother who I acknowledge provided only a brief text message. The letters, at least, are carefully written. You mother, for example, took pains to acknowledge the suffering of S.C.'s family and I expect that was appreciated. Yet there is still no acknowledgment of any responsibility on your part.

There is, for the most part, still only concern for your wellbeing, particularly given

the time you have now spent in custody, though your mother does acknowledge what she describes as your "foibles." [ 26 ] It is obvious to me, Mr. H., that when released, you will return home to family members who believe you have done nothing wrong, that you are in need of no rehabilitation, and that you have been unjustly served here in British Columbia. That does not bode well for what I consider to be your necessary rehabilitation. [ 27 ] Other than that, Mr. H., as Judge Barrett was advised, you have made good use of your time in custody.

I am told today by your counsel that you have been accepted into the Right Living Unit at Vancouver Island Regional Correctional Centre. It is a unit that requires a commitment to abstinence and to helping other fellow inmates. It is a privilege to be on that unit at the VIRCC and hard- earned, I am sure. [ 28 ] You have taken a number of practical courses including skills training, employability skills, yoga, SAM, Respectful Relationships, and Living Without Violence, a course designed to analyze sources of anger and to identify non-violent ways of expressing that anger.

Certainly, the latter two courses appear most apt. [ 29 ] I am advised, as well, that you have been taking counselling for some time with Dr. Alexander to address a condition you maintain is PTSD. As the Crown submits, there is no evidence of any such diagnosis, but I will accept, Mr. H., that if you have such a condition or feel that you have, it is to your credit that you are addressing it through counselling. [ 30 ] Lauren Mayes, a professor of Criminology at Vancouver Island University, provides a letter in your support. Dr.

Mayes writes that you were an enthusiastic and active participant in their class designed to explore aspects of life inside a correctional facility. Dr.

Mayes detected what they felt were thoughtful contributions on your part "demonstrating high levels of compassion and empathy for fellow classmates." That, in my view, does bode well for your rehabilitation, though how you behave among a population of male inmates is no reflection of the manner you have been found to have conducted yourself in the privacy of your own home. [ 31 ] Certainly, I find I agree with your counsel and there is no disagreement by Crown that you have demonstrated an ability to engage in prosocial activities. You are intelligent, obviously.

You have shown you can direct that intelligence towards prosocial activities, but you have also shown that you can utilize your intelligence for far baser reasons. The evidence at trial showed a clear pattern of manipulation on your part, particularly in the manner in which you set up the recordings of S.C. [ 32 ] Mr. H., there is no doubt in my mind that you spent much of time leading up to this trial and even during the trial pouring over police statements and other materials to try to sew together a manifestly false narrative that would exonerate you of these charges.

As I noted in my reasons for judgment, that is difficult to do and, in your case, it was entirely unsuccessful. Still, you harnessed a great deal of intellectual force to try to deceive the court. I have no doubt you have some considerable intellectual ability and you are capable of putting it to both good and bad use. [ 33 ] Once a court has considered the nature of the offence and the circumstances of the offender, it is called upon to consider the impact of the offending conduct on the victim or the victims. Physically, S.C. suffered as a result of these assaults.

I alluded to the agreed statement of facts in my reasons for judgment in which the parties agreed on certain visible, at least after a medical examination, injuries. These included tenderness to S.C.'s right chest wall, a black eye, more formally described as a periorbital hematoma to the left eye, a minimally displaced fracture on the left side of S.C.'s face, as well as rib/trunk pain and swelling. [ 34 ] Constable Swann described seeing S.C. on October 18, 2020, in the VPCD office.

Photographs were taken of S.C. showing significant bruising on her eyes and face, some small cuts and bruising and marks along her jawline. Photos taken a few days later showed the bruising more clearly as well as additional bruising on S.C.'s leg. The bruising and marks on her jawlines are less visible, but not non-existent. Constable Swann testified the photographs did the injuries no justice. She and S.C.'s friend spent most of that day together. Both recall S.C. presenting as having difficulty walking, getting comfortable, and swallowing.

She seemed to them to be in a great deal of physical pain. [ 35 ] S.C. testified that she continued to feel pain in her face and shoulder even up to the time of trial. She testified to spending days, weeks, and months in the apartment she had shared with you unable to function. S.C.'s mother, D.C., moved in with her and would have provided a great deal of comfort and care. D.C. provided a statement outlining some of S.C.'s day-to-day needs in the days, months, and years following the assault. She described S.C. being bedridden for months, that it was difficult for S.C. to perform daily basic tasks.

D.C. described her daughter suffering from excruciating pain causing deep depression and despair. S.C. is said to have been living in fear should you be released. D.C. states her daughter's depression and anxiety was never worse. [ 36 ] S.C. testified as to efforts she was making towards her own rehabilitation. She sought help from chiropractors and physiotherapists. D.C. also states that S.C. tried to attend some support and counselling groups to deal with the emotional pain. S.C.'s emotional state would have been complicated not only by pre-existing conditions.

Even before this assault, S.C. testified she was somewhat shunned and certainly feeling some shame at having gotten back together with you, Mr. H., after the January 1, 2020, assault. [ 37 ] That assault, as Judge Barrett found it and outlined in her reasons for judgment, was violent by any standard. Mr. H., you were found to have spat and urinated on S.C., to have choked her, and to have prevented her from leaving her own apartment, and finally to have bitten her lip so hard it required 15 stitches. Yet only a few months later, S.C. reunited with you. She was obviously attached to you in some way, Mr.

H.. [ 38 ] Still, she felt some embarrassment, if not shame. That was heightened, she testified, after this assault. S.C. testified to feeling an overwhelming sense of shame by her decision to have gone back to you. She admonished herself even at trial, but when the assaults at issue in this trial occurred, S.C. was living with you, Mr. H.; she wanted to be in the relationship, and she obviously at some level cared for you.

The fact that this same person then violently beat her and assaulted her over a period of hours would have given rise to feelings of betrayal, a heightened sense of regret, intense shame as S.C. testified to feeling, leaving aside feelings of fear and helplessness and hopelessness. I am left with no doubt that S.C. was profoundly and adversely affected by these assaults. [ 39 ] Yet I am asked to find that relative to your last assault, Mr. H., the injuries sustained by S.C. at issue in this sentencing are far

less severe. With respect, I cannot agree. For one thing, it was clear from S.C.'s testimony that having gone back to you after the last assault only to be re-victimized in this way left her feeling shame, anxious, and depressed. Moreover, in my view, the assaults described by S.C. that I accept occurred were brutal, humiliating, and prolonged. S.C. was terrified, noting at times she felt as if she were fighting for her very life. The assault in January 2020 were horrific.

These are no less so. [ 40 ] The nature of the offence, the circumstances of the offender, and the impact on the victim are three critical factors that have to be considered in arriving at a fit sentence. At s. 718 and 718.2 of the Criminal Code , Parliament has set out principles and objectives of sentencing that apply in every case. Counsel have each discussed a number of these in submissions and they merit consideration in these reasons for sentence.

Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to protect society and to contribute, along with other crime prevention initiatives, to respect for the law and to the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more of the following objectives. Those are: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 41 ] Not every objective applies in every case. Some cases may attract but a few objectives; others nearly all. The question is what sentencing objective or objectives are necessary to import into a sentence in order to meet the fundamental purpose of sentencing? [ 42 ] In the case of intimate partner violence, the primary sentencing objectives are well established. In this sentencing, the Crown relies on R. v. Stanley , 1986 B.C.J. No. 695 (BCCA) , followed by R. v.

Gill , 2014 BCJ No. 394 at para 34 , for the proposition that these kinds of offences require denunciatory sentences. Denunciatory sentences are intended to communicate to the offender and others society's condemnation of particular conduct and to signal that the public in general will simply not tolerate certain conduct no matter what the other circumstances might be.

At paragraph 8 of Stanley , Justice Lambert wrote that intimate partner violence is never a matter between two parties that might somehow be resolved by forgiveness on the part of one of them. [ 43 ] As Justice Lambert notes, the public has a significant interest and a stake in protecting against intimate partner violence. Domestic abuse, as intimate partner violence is also known, "imperils society" as a whole. It endangers the weak and vulnerable among us including children. It endangers first responders. It endangers social workers.

It will be felt in the schools, at hospitals, by fellow workers, by friends and other family members. It is conduct that tears at the very fabric of our society. [ 44 ] For similar reasons, intimate partner violence also calls for a sentence the objective of which is to deter the offender and other like-minded offenders.

Obviously, rehabilitation, including appropriate on-message counselling, can help with deterrence in that it can provide the offender with the necessary tools to forestall violence, but deterrence also includes a sentence that lets the offender know in no uncertain terms that intimate partner violence is considered a serious criminal offence. In cases where there is a history or pattern of violence, this is all the more compelling. [ 45 ] Moreover, intimate partner violence remains sadly common. That is not to say that courts should give up on sentences that send a message of deterrence. Quite the opposite.

Each new generation must be left with no illusion that this kind of conduct will not be met with significant consequences. Intimate partner violence commands a sentence which has as its primary objectives general deterrence as well as denunciation. [ 46 ] Sentencing is, though, still an individualized exercise. While certain offences such as intimate partner violence command a primary generic sentencing response, the circumstances involved in a particular sentencing may justify other sentencing objectives being allocated similar weight or less weight or no weight at all. [ 47 ] In this instance, Mr.

H., you appear before this court having been convicted of a prior assault on S.C. That indicates, Mr. H., that another sentencing objective in this case must be specific deterrence. At the same time, you have demonstrated an ability to engage in prosocial activities, you are employable, if not always gainfully employed, and you have the support of family. These factors and the absence of any other convictions on your record, though you are now 44 years of age, indicate you are capable of rehabilitation. [ 48 ] Still, you deny having assaulted S.C. as charged or at all.

Rather, as Crown emphasized in submissions, your constant refrain throughout your lengthy time on the stand was that S.C. was the aggressor and you were the victim. I am convinced beyond a reasonable doubt that not only is this not the case, but that you lied consistently during your testimony. While I accept that certain factors favouring rehabilitation exist in your case, it is not apparent to me that I should place any primary emphasis on your rehabilitation in this sentencing.

Among other things, as I understand your position (despite your willingness to take courses and attend counselling) you do not need it. [ 49 ] Finally, as this is an intimate partner violence case, this sentence should operate in such a manner as to promote a sense of responsibility on your part, Mr. H., for the harm done to S.C. Again, however, in the circumstances, I do not see how it could or how that objective can be accomplished where the offender claims to be the victim and denies any responsibility for the offence.

In my view, the primary sentencing objectives necessary to meet the purposes of sentencing in this case are the objectives of specific and general deterrence as well as denunciation. [ 50 ] Nothing done in this sentence will in any meaningful way interfere with your ability to rehabilitate yourself, Mr. H., should you decide to do so. In fact, you will, of course, be required to attend counselling as a part of this sentence whether you choose to benefit

from it or not, but my focus in this sentencing will be on these objectives as well as public safety. [51] Other principles of sentencing relevant to this proceeding include the fundamental principle of proportionality which I havediscussed and to which I will return briefly. First, I have referred to factors which I have described as aggravating factors.

Section 718.2provides that a sentence should be increased or reduced to account for any aggravating or mitigating factors. I have already noted that718.2(a)(ii) makes intimate partner violence a statutorily aggravating factor. In addition, s. 718.201 provides that, in sentences involvingthe abuse of an intimate partner, the court shall consider the increased vulnerability of women who are victims. [52] Other than the statutorily aggravating factors, I include the following as aggravating factors in this sentencing. First, S.C.suffered serious and long-lasting harm as a result of these assaults.

Second, the assault was prolonged, it was unprovoked, and itcontinued even while S.C. was rendered defenceless. Third, there was an element of preplanning with respect to the choking. Fourth,the assault took place in S.C.'s own home. Fifth, Mr. H., you were bound by a no-contact order at the time. Not only have you pledguilty to this, but your conduct constitutes a complete disregard for the court order and the various variations made to the order at yourrequest.

Your conduct does make a mockery of the system. [53] On the evidence, it is clear that you did previously assault S.C. in her apartment, an offence for which you have now beenconvicted. Moreover, I was satisfied there was a pattern of assaultive behaviour on your part even leading up to October 17, 2020,outside the January 1, 2020, conviction. Finally, Mr. H., you were consuming alcohol certainly by your own admission before S.C.came home in the early morning of October 17, 2020, and I accept during the assaults. [54] A limited mitigating factor in this sentencing, Mr.

H., is that when you committed these assaults, you had no prior criminalrecord. Balanced against that, of course, is the fact you were found guilty of the January 1, 2020, assault on S.C. before being foundguilty by this court of these offences. Of course, you have also now been convicted and sentenced to nine months in custody for thatJanuary 2020 assault. [55] I have discussed earlier your commitment to courses while in custody as well as your family support. When you are released,you will be welcomed back to your community of family and friends.

They will make efforts to help you reintegrate, to find work, andto reconnect, as I understand, with your two children, one of whom, if I recall your testimony correctly, is an adult now living here onVancouver Island.

To a limited degree, I accept these constitute mitigating circumstances. [56] Finally, in terms of sentencing principles other than proportionality that have particular application in this case, I note the courtmust consider, especially when sentencing on numerous counts, the principle of totality as well as the principle of parity which holds thata sentence should be similar to sentences imposed on similar offenders for similar offences. That having been said and while the rangeof sentencing is an important sentencing tool, no two cases are alike.

In particular, in each case, the court is called up to weigh thegravity of the offence with the degree of moral blameworthiness of the offender. The principle of proportionality which is so fact-drivenmakes it difficult to place an offender within a range of sentences, much less a given sentence. [57] In any event, in this case, I have already noted that the offences for which you have been convicted, Mr. H., are grave. They areserious in and of themselves and the aggravating factors make them all the more serious. Mr. H., you are entirely responsible for theseoffences.

There is nothing that diminishes your moral responsibility for the harm you caused S.C. [58] To inform the range of sentencing for assaults of this kind on an intimate partner, both counsel have submitted various legalauthorities that provide some guidance as to the general range of sentence as well as individual sentences imposed in similar, thoughoften factually distinct, cases. The Crown relies on the following cases with respect to range and/or length of sentence: R. v. Kaiser,2001 BCCA 494; R. v. Bell, [2016] B.C.J. No. 1686; R. v.

Hurry, unreported, February 18, 2022, File Number 17868-1-1-K, VictoriaRegistry; R. v. Hunter, [2006] B.C.J. No. 2748; R. v. Rush, 2010 BCCA 293; R. v. Orozlo-Ovinones, [2004] B.C.J. No. 906; R. v. Fagg,[2015] B.C.J. No. 2001; R. v. Kirby, [2010] N.W.T.J. No. 83; R. v. Donnelly, [2010] B.C.J. No. 2508; R. v. Rahanam, 2008 ONCA 1;and finally R. v. Antle, [2012] N.J. No. 458. [59] Mr. H., on your behalf, counsel cites R. v. Leavitt, 2019 BCPC 143; R. v. Lusty, [2022] A.J. No. 306; and R. v. Moazami, 2015BCSC 2055 , [2015] B.C.J.

No. 2441, albeit only for the discussion of concurrent sentencing at paragraph 12; and finally R. v.Ransbot, 2017 BCPC 101. [60] I propose to deal with these authorities briefly in these reasons. As Crown notes in its submissions, it is difficult in this as inmost cases to find authorities that are directly on point in the sense that there is a sentencing precedent containing a substantially similarfact pattern. It is all the more difficult in a case such as this, Mr. H., in which you are charged with the specific offence of chokingcontrary to s. 267(

c) of the Criminal Code, a relatively new offence that separates the act of choking from the more generalized kinds ofcriminally assaultive conduct. [61] In R. v. Kalinic, 2022 Q.J. No. 1349, a case involving the choking of an intimate partner, the court writes at paragraph 57 that theobjective gravity of the offence of choking is quite high. At paragraph 67, the court notes that, in introducing the bill that brought s.267(

c) into force, it was noted on the record that the

section was intended to clarify that the strangling, choking, or suffocating of anotherperson would constitute a more serious form of assault with a weapon or assault causing bodily harm precisely because of the moreimmediate, serious, and potentially deadly consequences for the victim. [62] Kalinic provides some useful context for sentencing for the offence of choking. As a precedent for length of sentence, it isunusual in that while the court would have imposed a nine-month sentence on a first-time, albeit highly concerning, offender, the Crownsought a sentence of four months.

Other cases referred to in Kalinic include a sentence for this offence of up to 10 months even with aguilty plea. [63] In terms of range of sentence, the Crown relies on the reasons of our Court of Appeal in R. v. Kaiser at paragraph 14 which holdsthat the range of sentence for assault causing bodily harm by an accused with a previous record of domestic violence is from 20 monthsto three years. As the court notes, such sentences are imposed not only to protect the victim and other potential victims of the accused,but also to denounce intimate partner violence and thereby deter other potential abusers.

[ 64 ] In R. v. Bell , the range set out in R. v. Kaiser is cited with approval at paragraph 23. I accept, as Mr. Mills submits, that Kaiser cannot stand for the proposition that the range of sentencing for a

summary conviction offence such as those at issue here is 20 months to three years. Rather, what Kaiser emphasizes is that, given the sentencing objectives, sentencing for repeat offenders committing offences of domestic violence will be high. [ 65 ] Dealing with more specific authorities, the Crown relies on R. v. Hunter , a 2006 sentence appeal at the Court of Appeal wherein the accused's sentence of 18 months was upheld even though, as the sentencing judge recognized, the offence was not at the serious end of the scale.

The offence did involve the accused throwing a drink in the victim's face, grabbing her face, and threatening her. Aggravating factors included a persistent pattern of harassment and violence by the accused against his intimate partner including a previous conviction for assault for which the accused was on probation at the time of the offence. [ 66 ] In R. v. Rush , the accused was sentenced to two years for two separate assaults on his intimate partner. Each was extremely violent, though neither involved choking the victim or beating the victim with weapons as here.

As in this case, the accused was at the time of both assaults bound by a court order to have no contact with the victim. The sentence was imposed despite the accused having pled guilty and expressed remorse. The sentence was also imposed despite the fact the accused had been sentenced to three months for the assault on his partner prior to the two assaults at issue in the sentencing. [ 67 ] Mr. Rush had submitted that a 12-month sentence would be a more appropriate step up from that three-month sentence.

In rejecting that submission, the sentencing judge chose to give greater weight to the sentencing factor of protection of the public and, on sentence appeal, the sentence was upheld for the reasons given by the sentencing judge. [ 68 ] A sentence of 14 months was upheld on appeal in the case of Orozlo-Ovinones . There, the accused was found at trial to have beaten his intimate partner with a belt after having punched that person in the face several times. Little was known of the accused other than that he was a refugee from Colombia with no criminal record at the time of sentence. [ 69 ] In R. v.

Fagg , the accused received a global sentence of one year after being found guilty at trial of confining a victim with whom he and his partner had been and hoped to continue to be in an intimate relationship. To try to convince the victim to stay in the relationship, the accused essentially kidnapped her, confined her, threatened her, assaulted her, including by choking, and by holding a knife to the victim's throat. The accused was relatively young, aged 26, with a minimal unrelated record.

He had at the time of trial established a good record of behaviour on release. [ 70 ] Here, of course, the assaults are, as the Crown submits, much more serious, the aggravating factors much more serious and, of course, these assaults occurred while you were on release, Mr. H.. [ 71 ] Having pled guilty to one count of assault causing bodily harm to an intimate partner, the accused in R. v. Kirby was sentenced to 12 months in custody. Mr. Kirby, the holder of a substantial and related criminal record, brutally assaulted his common law spouse leaving her visibly and seriously injured.

The assaults occurred quickly and did not involve weapons or choking. Mr. Kirby's guilty plea was a significant mitigating factor as was his remorse despite some effort on his part to distance himself from the offence by saying "it wasn't him." [ 72 ] On your behalf, Mr. Mills submits that the Kirby case is an apt sentencing precedent despite the guilty plea. As with nearly all of the cases, Kirby is not unhelpful, but the myriad factors between this case, other cases in your case, Mr. H., make it somewhat inapt. [ 73 ] Other cases relied on by the Crown include R. v.

Donnelly in which the accused's sentence of nine months was reduced to six months on appeal for a brief but vicious assault on his wife and unfortunately in the presence of their child. This sentence was imposed despite the accused's plea for a conditional sentence. Here, it was noted that the accused pled guilty, had no criminal record, or any pattern of abuse of his partner, had a good record of compliance on release, significant roots in the community, a solid work record, and exhibited sincere remorse.

Again, as the court writes at paragraph 28, the very nature of the offence in intimate partner violence commands sentences that impress upon the offender and others who might engage in similar conduct that, if they are convicted, they will be incarcerated at the very least. [ 74 ] Again, emphasizing the serious nature of intimate partner violence, the court in R. v. Rahanam upheld a nine-month custodial sentence and, on doing so, also rejected a conditional sentence order. [ 75 ] In my view, the nature and duration of the assaults in R. v.

Antle bear some resemblance to this case in that the accused threatened his intimate partner with a weapon, assaulted her over a period of hours causing serious injury, choked her and confined her against her will. The victim in Antle fled her residence when the accused fell asleep. In Antle , there was, unlike here, no sense of premeditation. The accused was young. He has no related record, but was under the influence of alcohol at the time.

After a trial in which the Crown proceeded by indictment, the accused received a global sentence of 18 months which included a sentence of seven months for the choking. [ 76 ] Antle is also useful in addition for its review of 14 cases concerning the nature of sentences in similar circumstances. Most of the cases reviewed in Antle including those provided by the defence involved substantial periods of incarceration. At the low end, many, if not most, were in the range of 10 months to two years.

Despite the range being from 20 months to three years for intimate partner violence, the bulk of the cases in which the Crown proceeds summarily indicate a range of nine months to two years. That, I find, unsurprising. The actual range available in the Criminal Code for all of these offences when the Crown proceeds summarily is from a discharge through to a custodial sentence to a conditional sentence.

For the reasons set out, courts are generally disinclined to grant conditional sentences for these offences, but they are available and they have been granted. [ 77 ] Here, the issue is length of sentence given your recent conviction, Mr. H., in which you received a sentence of nine months' custody for the January 1, 2020, assault on S.C. On your behalf, several cases are submitted. They include R. v.

Leavitt in which the accused was sentenced to nine months for assault on his intimate partner lasting approximately one and a half hours during which time the victim was grabbed by the neck, head, and hair, thrown about, punched repeatedly, choked, and threatened, and suffocated. The victim suffered long-lasting injuries both physical, emotional, and psychological.

[ 78 ] Mr. Leavitt, who sought a conditional sentence, appeared before the court at age 43 with no criminal record though he was the subject of a peace bond once. He had strong family and some community support as well as employment prospects. As in your case, Mr. H., the accused Leavitt made good use of his time in custody, formed a release plan, and showed a willingness to engage in substance abuse programming. [ 79 ] On your behalf, Mr. Mills urges this court to find this case a useful precedent for your sentencing. I agree it bears some similarity to these assaults in that Mr.

Leavitt assaulted over a period of one and a half hours, that the victim sustained injuries, though not as serious as here, and that in one instance, at least, the victim felt Mr. Leavitt might gouge out her eye. The assaults would have been terrifying for the victim. Mr. Leavitt nonetheless appeared before the court with no record at age 43, a solid record of employment, and good family support in the Maritimes.

In my view, the length and nature of the assaults here and the many other factors I have referred to as aggravating factors make the circumstances before me quite distinguishable. [ 80 ] The accused in R. v. Lusty pled guilty and was sentenced to 18 months for a number of offences including assault with a weapon and choking of his wife. Only a week before those offences, the accused had been released from custody where he was serving a sentence for various offences including an assault on his wife.

The accused was bound by a no contact order with his wife, but ignored it, moving in with her straight upon his release. The assaults in Lusty were violent, they were conducted while the accused was holding a knife to the victim, and carried out while the accused was bound by a no-go order. The victim was deeply affected by the assaults and remained in fear of her husband even at the time of sentence. In the sentencing and despite any expression of remorse, Mr. Lusty was given the benefit of the guilty plea, a significant mitigating factor. [ 81 ] Finally, in R. v.

Ranspot , the accused pled guilty to assault causing bodily harm on an intimate partner. At issue in Ranspot was whether a conditional discharge was a fit sentence as opposed to a suspended sentence sought by the Crown. The facts in the sentencing were adduced by way of an agreed statement of facts, though there was some dispute concerning submissions by counsel and a medical report. On the facts, however, Crown and defence agreed. Mr. Ranspot and the victim were drinking and arguing. Their altercation started with Mr.

Ranspot defending himself, the fight continued, and the victim suffered bodily harm, which the defendant admitted was "more than trifling". [ 82 ] Other distinguishing factors include that Mr. Ranspot was a 61-year-old retired lawyer at the time of sentencing. He came before the court with one dated conviction for impaired driving. He was admittedly suffering from alcohol abuse disorder at the time of the offence and had by the time of the sentencing sought medical treatment for it. Acknowledging the impact a conviction would have on Mr.

Ranspot, and that a conviction was unnecessary to provide a measure of deterrence, the court granted a conditional discharge, notwithstanding the language in Stanley and other cases concerning denunciation and general deterrence. [ 83 ] For reasons I will discuss shortly, I find a CSO in this case would not be a fit disposition. In my view, in determining a fit and proper sentence for you, Mr. H., the cases unquestionably support a custodial sentence in the range of anywhere from 12 to 24 months. Some cases are lower. None are higher on

summary conviction. Bearing in mind the purposes and objectives of sentencing, the principle of proportionality, the principles of totality and parity, as well as the mitigating and aggravating factors present in this case, I find a fit sentence in this case must be at the high end of that range despite your having recently been sentenced to nine months for an earlier assault on S.C. [ 84 ] The paramount sentencing objective in this case must be denunciation as well as specific and general deterrence.

Nothing I do in this sentence, as I have noted, will impede your rehabilitation, but it is not the focus or the primary objective of this sentence. You need, in my view, Mr. H., first and foremost, to understand clearly just how abominable was your offending behaviour, how abhorrent it was, and how distant it is from any acceptable social norm. Your conduct was dangerous and, in my view, you remain a danger to any person with whom you might enter into a relationship.

Relying on your rehabilitation alone or even as a significant objective in this sentencing will not accomplish the purpose of sentencing as that is set out in the Code . [ 85 ] In my view, Mr. H., this sentence must send a message of specific deterrence to the extent it can and it must send a message of general deterrence. You were convicted of a vicious assault on S.C. on January 1, 2020. Despite being bound by a release order, which you frankly urged S.C. to help you vary several times, you ignored the order entirely going so far as to move in with S.C. as if the law had no application in your case.

On the evening you assaulted S.C., you were drinking. As is clear from your evidence and despite the no-consumption order on your release, it had no impact on your behaviour in any way. Drinking was a regular part of your life with S.C.

In a case where you were set to stand trial for an assault on an intimate partner, where you entirely ignore the terms of a release order containing conditions intended to protect the alleged victim, and where you the carry out the sustained and brutal assault that you did here, the sentence must be significant to meet its appropriate objective. [ 86 ] A step-up from nine months to 12 or even 15 months is not appropriate. The issue here is not just getting you a message, though that, too, is key.

The issue or the concerns here involve the safety of the public including persons with whom you might enter into a relationship. You cannot assume, Mr. H., that each successive assault on an intimate partner, no matter how vicious, will result in ever increasing, incremental steps up the sentencing ladder. For the safety of the public and to accomplish the purpose of sentencing, you must be left with no doubt that the courts will not tolerate the kind of assaultive conduct you engaged in here. As I say, I find, Mr.

H., that a fit sentence in all of the circumstances is at the high end of the sentencing range. [ 87 ] Mr. H., I am going to proceed to sentence now. I do not think at this point I will need you to stand up, but I will set out the sentences. For the offence of assault with a weapon on S.C. contrary to s. 267 (

a) of the Criminal Code , I sentence you to 22 months in custody. [ 88 ] For the offence of assault causing bodily harm contrary to s. 267 (

b) of the Criminal Code , I sentence you to 22 months to be served concurrent with the sentence on Count 1. [ 89 ] For the offence of assault by choking contrary to s. 267 (

c) of the Criminal Code , I sentence you to 22 months to be served concurrent to the sentences on Counts 1 and 2. [ 90 ] For the offence of confining S.C. unlawfully contrary to s. 279(2) of the Criminal Code , I sentence you to nine months' custody

to be served concurrently to the sentences imposed on Counts 1, 2, and 3. [ 91 ] For the offence of breach of a court order by having contact with S.C. contrary to s. 145(1) (

a) of the Criminal Code , I sentence you to three months' custody to be served concurrent to the sentences imposed on Counts 1, 2, 3, and 4 of this information. [ 92 ] The global sentence imposed today here by the court is one of 22 months custody which I will express as totalling 660 days. You have been in custody now since last October 2020. When the nine-month sentence imposed by Judge Barrett is subtracted from the time you have served, you have a remaining 350 days' credit.

At the rate of a day and a half for each day served in pretrial and presentence custody, you are entitled to credit for time served totalling 525 days. That time will be credited against my sentence today, Mr. H., leaving you with 135 days to serve on all of these offences. [ 93 ] I will state for the record, Mr. H., that although your counsel invited the court to consider ordering any custodial sentence over 18 months be served in the community by way of a conditional sentence order that I decline to do that in this case.

In my view, at a minimum, a conditional sentence order in this case would not meet the purposes and principles of sentencing that I have outlined in these reasons. [ 94 ] Mr. H., once you have completed your custodial sentence, I also sentence you to a period of probation for three years. I will set out the conditions of the probation order momentarily. First, however, I am going to deal with the ancillary orders. [ 95 ] The offences in Counts 1 to 3 of this information are primary designated DNA offences.

Pursuant to s. 487.051(1) of the Criminal Code , I authorize the taking of samples of a bodily substance from you. This will be done by a peace officer having jurisdiction to do so in the correctional facility in which you will serve your sentence. [ 96 ] The Crown also seeks a lifetime weapons prohibition pursuant to s. 110 of the Criminal Code for the offences in Counts 1 to 4 contrary to s. 267 (a), (b), and (

c) as well as 279(2). Pursuant to s. 110(2.1)(a), given the nature of these assaults on an intimate partner and the circumstances that I found at trial, there is a basis for an order prohibiting your possession from firearms. In this case, Mr. H., given your age, I will exercise my discretion and prohibit you from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance or all such things for a period of 20 years. [ 97 ] I will shortly turn to address and recite the conditions of your probation order, Mr.

H., but first I will note on the record that given my sentence and the time you have now spent in custody, I intend to waive the victim impact surcharges that apply in this case. [ 98 ] As I noted earlier in these reasons, there is but one proposed condition of your probation order at issue and that is the condition that you report any relationships to your probation officer. You submit, Mr. H., that this is unjust as there is no pattern of abuse of domestic partners. I am unconvinced that in every case there must be a pattern of abuse.

The only question is whether it is in the interests of public safety that such a condition may be warranted. Here, in any event, I find there is a pattern. It is not just that this is your second conviction for assault on S.C. There was in the evidence at trial a clear indication of abusive behaviour, most of which went unreported. Given my concerns regarding your rehabilitation, I am convinced a condition that addresses the safety of any potential partner of yours is necessary and, for that reason, I intend to impose that in this order. [ 99 ] I am now going to turn to the conditions of your probation order, Mr.

H., and I am going to set those out. You have just recently been sentenced to a probation order. So I expect that you understand the process and the process is this. I am going to set out the conditions, Mr. H.. I am going to confirm with you when I am done whether you understand the conditions. I am going to ask you whether or not you agree to comply with the conditions and, depending on your answers to those questions, there will be a few other comments and the sentencing proceeding concluded. Do you understand that, Mr. H.? [ 100 ] THE ACCUSED: Yes, I do. [ 101 ] THE COURT: All right. Mr.

H., I said the length of the probation order is three years. [ 102 ] I will set out the mandatory conditions.

They are that you must keep the peace and be of good behaviour, you must appear before the court when required to do so by the court, and you must notify the court or a probation officer in advance of any change of name or address, and promptly of any change of employment or occupation. [ 103 ] The other conditions of your order are as follows. [ 104 ] You shall report in person to a probation officer at 836 Courtney Street, here in Victoria, British Columbia, within two business days after your release from custody unless you have obtained before your release from custody written permission from the probation officer to report elsewhere or within a different timeframe.

After that, Mr. H., you are going to report as directed by your probation officer. [ 105 ] When you report to your probation officer, Mr. H., you will provide them with the address where you live as well as your telephone number and you will not change your address or your phone number without notifying your probation officer at least seven days in advance. [ 106 ] Mr.

H., this order provides that you must not enter into or continue any dating relationship, or marriage, or common-law relationship with any person until you have identified to your probation officer the person with whom you are in, or propose to enter, a relationship, and your probation officer has informed that person of your convictions and this order (and your history as described in your criminal record). [ 107 ] You are further prohibited from possessing or consuming alcohol, drugs, or any other intoxicating substances, except with a medical prescription. [ 108 ] You must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your

probation officer.

That should include anger management, violence prevention, alcohol or drug addiction, spousal abuse prevention counselling. [ 109 ] You must not possess, directly or indirectly, any weapon as defined by the Criminal Code and that includes: firearms and ammunition; crossbows, prohibited or restricted weapons or devices or explosive substances; anything used, designed to be used, or intended for use in causing death or injury of any person, or to threaten or intimate any person; any imitation of all of the above including any compressed airguns or BB guns or pellets guns; and any related authorizations, licences, and registration certificates, and you must not apply for any of those. [ 110 ] You must not possess any knife outside of your residence, except for the immediate purposes of preparing or eating food.

The exception to that will be while at work, or going directly to and from work and, if asked, you will have to provide your probation officer with the details of your location and the hours of your employment. [ 111 ] THE COURT: Thank you, everyone. (REASONS FOR SENTENCE CONCLUDED)