R. v. Haworth Date:, 2012 BCPC 144

Citation: R. v. Haworth Date: 20120216 2012 BCPC 0144 File No: 183334-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NICHOLAS SCOTT EMIL HAWORTH ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: B. Lane Counsel for the Defendant: M. Fortino Place of Hearing: Surrey , B.C. Dates of Hearing: November 2, 2011; February 13, 2012 Date of Judgment: February 16, 2012

[ 1 ] THE COURT : Nicholas Scott Emil Haworth is charged on this Information that on or about the 2nd of February 2010, at Surrey, British Columbia, he did, in committing an assault of Gurbachan Singh, use a weapon, to wit, a bottle, contrary to s. 267 (

a) of the Criminal Code . Mr. Haworth has entered a plea of guilty to that charge. He is before the court today to be sentenced.

I have heard submissions from both Crown counsel and defence counsel and I have reviewed a pre-sentence report and a psychological assessment, as well as other documents provided. [ 2 ] The Crown has proceeded summarily on this charge, and in those circumstances the maximum sentence available for the court to impose is an 18-month jail sentence. [ 3 ] Crown counsel has pointed out that the circumstances and other factors, including a past record, would justify a conventional jail sentence in the range of eight months, together with probation.

Defence counsel is seeking a conditional sentence order in the range of 15 to 18 months, plus probation, both to contain strict terms of house arrest and other provisions which would provide structure and address rehabilitation issues. [ 4 ] Crown counsel, in submissions, initially noted that a conditional sentence order was open to consideration, and I think very fairly, when pressed to clarify that position in submissions, Ms.

Lane stated that she was not taking a strong position in opposition to a conditional sentence order. [ 5 ] The circumstances of this offence are that on the evening of February 2nd of 2010, Mr. Haworth was with his father and his brother. They were at a pub. Alcohol was consumed. Mr. Haworth became belligerent. The parties separated outside of the pub and eventually Mr. Haworth took a cab to his own residence. He lived separate and apart from other family members at that time.

On arriving at his apartment, a confrontation with the cab driver occurred, and that confrontation revolved around a five to six-dollar cab fare for which Mr. Haworth was contesting the change that he should get. He struck the cab driver over the head with a liquor bottle. Part of those events were viewed by an independent witness.

Although the blow itself was not seen, the argument at some stage was observed and the aftermath and the condition of the cab driver was something that the civilian witness made observations about. [ 6 ] The charge itself was eventually laid on the 21st of July 2010, the date that appears on the Information. Mr. Haworth has been on an undertaking issued by a police officer arising shortly after that date, and I am informed that there have been no breaches of that bail since that time. [ 7 ] The offence has had a significant impact on the cab driver, Mr. Singh.

Although he has not filed a formal victim impact statement, there is a synopsis of the implications of this incident from him provided in the pre-sentence report. He was hospitalized. He required stitches and medications for the cuts to his face. He was off work for a period of two to three weeks. He suffered headaches. He suffers numbness as a result of the cuts to his face, and he continues to be fearful of working at night. [ 8 ] Cab drivers, particularly those working at night, are viewed as particularly vulnerable to acts of this sort.

They work alone, they work often carrying people who are in some stage of intoxication and who are belligerent and from whom, at some point, they have to attempt to recover a fare. Those circumstances invite confrontations which they have to deal with and which place them at risk. The courts in the past have indicated the vulnerable nature of these individuals as a factor that courts should take account of when considering an appropriate sentence. I note as well it has been pointed out to me by Mr. Fortino, counsel for Mr. Haworth, that a civil suit has been launched by the complainant in his case, and Mr.

Haworth faces civil consequences. [ 9 ] Mr. Haworth was born in 1982. He was, by my calculation, about 27 years of age at the time these events occurred. He is 29 years of age now, about to turn 30, I think, if I have his birth date correct, not far in the future. He grew up in what I would take to have been a stable and very normal family home. Both of his parents were here in court today, and his mother is still here. He completed Grade 12. At the age of 20, or thereabouts, Mr. Haworth was involved in a serious motor vehicle accident as a passenger and as a result of that his life was at risk.

He survived, of course, but suffered a traumatic brain injury which continues to affect his living circumstances to today's date and will in the future. [ 10 ] Mr. Haworth's mother and father have both filed letters during this sentencing proceeding and I have reviewed both of them. They graphically demonstrate the impact of that accident, the fear for their child's safety and life, and ultimately the implications his injury have had on their family, and I would conclude that that impact has been significant.

They have been involved with their son as a result of that injury in many ways for a long period of time since those events occurred. [ 11 ] Mr. Haworth has had to undergo rehabilitation of various forms. His speech was affected by the injury, the injury itself I take to have been significant, based on the description provided in those letters, as described by Mr. Fortino, and as set out in the psychological assessment that has been provided for the purposes of this sentencing. [ 12 ] Following that injury, Mr.

Haworth undertook a high-risk lifestyle which had not been his lifestyle up to the point of the injury itself. He became associated with negative peers, he became involved in criminal activity. He acquired a significant alcohol and drug addiction, cocaine in particular. He squandered a significant insurance settlement on this lifestyle. Although he had no criminal record prior to the motor vehicle incident, since that time that record has developed to include what I count to be eight drug-related offences, including one for which he was placed on a conditional sentence order which was terminated.

There are two convictions for assault and a conviction for assault with a weapon. There is at least one breach conviction and there is an impaired driving conviction. He was on bail for a charge of assault at the time the offence we are dealing with today was committed. [ 13 ] I will note that he has been sentenced on several offences since the date on which this offence occurred, although those offences all pre-date, in terms of date of occurrence, pre-date the date on which the offence I am dealing with occurred. [ 14 ] Since this offence occurred I understand that Mr.

Haworth has moved home and has lived with his parents throughout that time. Now, there may be some breaks during that period which I would take to have been associated with criminal proceedings outstanding, other than this one which, as I say, pre-date the events that I am dealing with. For example, his record indicates that he was

sentenced to ten days on an offence since this incident occurred. However, substantially he has been living at home with his parents. He spends a substantial amount of time with his mother. He has now acquired a dog which he spends a good deal of time with and to which he is very devoted. [ 15 ] His parents have provided a living situation for him that is highly structured and it has provided a living circumstance in which he has been able to abstain from alcohol and other illicit substances during that period that he has been living at home. [ 16 ] The impact of Mr.

Haworth's brain injury is significant, in my view, in several ways in terms of evaluating an appropriate sentence in this case. It is significant because of the implications described in the psychological assessment completed by Dr. Whittemore, and I am going to quote briefly from that report at pages 5 and 6 where Dr. Whittemore stated the following: In brief, it was reported that Mr. Haworth suffered a severe head injury. Reports indicated that following the accident he continued to experience subtle deficits in memory, concentration, processing speed, and insight.

Emotionally, it was reported that there was some increased irritability and lack of initiative. Additionally, Mr. Haworth indicated that he developed a seizure disorder following the accident but has since decided against taking anti-convulsive medication. He stated that he has not had a seizure for a few years. He has undergone neuropsychological assessments following the accident to determine his level of functioning. In brief, results of an assessment completed by Dr. James Schmidt September 17, 2002 suggested that Mr.

Haworth demonstrated a pattern of neurocognitive and neurobehavioural changes associated with frontal lobe injury. It was reported that he experienced problem-solving deficiencies as well as weakness related to organization, planning and emotional control. Further, weaknesses were found in language functioning related to learning and retaining new material. In follow-up assessment completed by Dr. Schmidt March 25, 2004, it was reported that Mr. Haworth had demonstrated little change in his functioning and had become more apathetic and socially withdrawn.

Another psychological, neuropsychological and vocational assessment was completed September 15, 2010. It was reported that while his "intellectual functioning appears to be largely intact, he has neurocognitive deficits consistent with disruption of the frontal-executive systems." As indicated, his injuries are resistant to rehabilitation and impact his ability to plan and organize, as well as his motivation and emotional control. [ 17 ] I conclude that Mr.

Haworth's affect and expressions and statements appearing in the reports that I have read on issues such as remorse must be gauged and evaluated against this description of the implications of his injuries. He spoke in court a few minutes ago. I found that I could clearly appreciate what he wanted me to understand, but I also conclude that speech rehabilitation continues to be a work in progress. I am satisfied, from what he told me, Mr. Haworth wants to work towards his own ongoing rehabilitation, and to be a working and productive member of the community.

But I also conclude from the reports that have been provided that he requires structure and an ongoing counselling and treatment regime in order to move forward in those areas. He is getting that structure and is certainly getting the support in his parents' home. [ 18 ] The purpose and principles of sentencing that I have to consider are set out in the Criminal Code .

The ones that I view as significant in a case like this are the principles or objectives of denunciation, deterrence, both general and specific, rehabilitation, and restorative values respecting the victim and the community. [ 19 ] A custodial sentence, in my view, is appropriate in a case like this where there is a background of prior significant criminal behaviour recorded. The issue is whether that can be served in the community on a conditional sentence order.

I have noted the past history of violence, I note the circumstances under which that has occurred, generally that conduct occurring after this serious brain injury was suffered. Those offences occurred at a point where Mr. Haworth was living on his own and, to a degree, out of control, without the benefit of the support and structured living circumstances that are now available to him and that he has benefitted from over the last two years.

His circumstances today are substantially different than they were on the night this event occurred. [ 20 ] The Criminal Code sets out the basis on which a court can consider a conditional sentence order.

Section 742.1 states that: If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752... And this offence does not fall under that definition, or other types of offences which do not apply in this case: ... and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under

section 742.3. [ 21 ] A conditional sentence order we know, because superior courts have made it clear, is available even in the circumstances of serious offences such as this one, and is not precluded from consideration simply because the offender has a record, including a record which includes a previous conditional sentence order, including one which has been terminated. The question is whether, in all of the circumstances, it is the best option for this offender in all of the circumstances. [ 22 ] At this time I have concluded that in the right setting, with parents such as Mr.

Haworth has, and with the structured attention to areas described in the reports, Mr. Haworth would not endanger the community. In respect to principles of sentencing, deterrence of course is important, it is always important. It is particularly important in offences of violence involving vulnerable victims. But the courts have also made it clear that it can be addressed through strict conditions in a conditional sentence order. In this regard I note that

there have been no breaches of bail since this matter came before the court, and no new offences since this offence occurred. [ 23 ] Specific deterrence continues to be an issue to a degree, based on the past history, but less so in the current circumstances. Similarly, denunciation is a principle which can be addressed in appropriate circumstances through a conditional sentence order. [ 24 ] Rehabilitation is a significant consideration in this case. In my view, based on the reports provided and the submissions made, it is best achieved in the community in circumstances in which Mr.

Haworth has the support and the structure provided by his parents. In my view, in these circumstances it would be counterproductive to the progress he has made, and to his ongoing rehabilitation, and to his efforts to remain abstinent and clean, were he to be sent to a conventional jail. [ 25 ] Mr. Haworth, could you stand up, please? In my view, an appropriate sentence in all these circumstances is a conditional sentence order for a period of 15 months, to be followed by a two-year probation order. [ 26 ] The conditions of the conditional sentence order first will be the statutory conditions.

You are to keep the peace and be of good behaviour. You must report to a conditional sentence supervisor before 12 noon tomorrow, which is February the 17th, 2012, and thereafter as directed by the supervisor. [ 27 ] You will reside at the residence of your parents. Mr. Fortino will provide their names and address to be included in this condition, and you will not change that residence without the prior approval of the court. [ 28 ] During the first six months of the conditional sentence order you will be bound by a house arrest condition.

You must not be outside of your place of residence, except in the following circumstances: To attend court when required to do so, to attend to your legal counsel, to attend to your supervisor, to attend to counselling and other assessment and treatment as provided in this order and as directed by your supervisor. To attend to community work service, to attend to your employment pursuant to a

schedule of employment hours set out on the letterhead of your employer and approved by the supervisor, and which provides contact information for that employer. When attending to applications or interviews for employment purposes, having informed the supervisor in advance of the date, time and location of those applications or interviews. When attending any medical or dental appointment, having informed the supervisor in advance of the date, time and location of that employment.

When attending to a medical emergency involving yourself or an immediate member of your family, having informed the supervisor forthwith following those events or those circumstances. [ 29 ] You may be away from your residence where you have the prior written approval of the supervisor, in which case you are to carry that with you and produce it on request of a supervisor or peace officer. [ 30 ] You may be away from your residence for a period of two hours each day between the hours of nine o'clock in the morning and four o'clock in the afternoon for the purpose of exercising your dog, so long as you remain within a one-kilometre radius of your residence. [ 31 ] You may be away from your residence where you have the prior written approval of the supervisor, in which case you are to carry that approval with you and produce it on request of a peace officer or supervisor. [ 32 ] You may be away from your residence when travelling directly to or from any of these commitments. [ 33 ] The next condition is that there will be a curfew for the balance of the conditional sentence order.

That curfew will require that you be inside your place of residence between the hours of nine o'clock in the evening and six o'clock in the morning, except when in the company of one of your parents, or where you have the prior written approval of your supervisor, in which case you are to carry that with you and produce it on request of a peace officer or supervisor. [ 34 ] You will attend at the door of your residence or by telephone if requested to do so by a peace officer or supervisor to confirm compliance with the house arrest and curfew conditions. [ 35 ] You will attend, participate in and complete to the satisfaction of the supervisor, any assessment, treatment or counselling that may be directed by the supervisor, including CORE programming, substance abuse programming, relapse prevention programming, the Triumph program, and programs through Mind Works B.C. [ 36 ] You will attend and participate in assessments and treatment, if directed to do so, at the Acquired Brain Injury Support Group. [ 37 ] You will complete, to the satisfaction of the supervisor, 50 hours of community work service before the end of the tenth month of the conditional sentence order. [ 38 ] You will seek and maintain employment and/or attend an educational or vocational program if so directed by the supervisor. [ 39 ] You will abstain absolutely from the possession and consumption of alcohol or non-prescription drugs or substances controlled by the Controlled Drugs and Substances Act unless you have a medical prescription in your name for that substance issued by a qualified practitioner. [ 40 ] You will not possess any weapon as defined in the Criminal Code except items meeting that description at a workplace for the purpose of your employment. [ 41 ] Those are the conditions on the conditional sentence order. [ 42 ] In respect to the probation order which will be for a period of two years following, the conditions are the following: You will report forthwith following the completion of the conditional sentence order to a probation officer, and thereafter as directed by the probation officer.

[ 43 ] You will reside at the residence of your parents, the address and their names to be included, and you will not change that address without the prior approval of the court. [ 44 ] I am now going to simply order that the same assessment, treatment and counselling condition that is in the conditional sentence order be included, that the condition respecting the seeking of employment be included, the weapons prohibition in the conditional sentence order be included, that the abstention clause be included, and that the curfew be included except that the curfew will now be between the hours of 10:00 p.m. and 6:00 a.m., but otherwise the same as appears in the conditional sentence order. [ 45 ] Those are the conditions that will apply on the probation order. [ 46 ] MS.

LANE: Perhaps I missed it, Your Honour, but I did ask for no contact with the complainant. [ 47 ] THE COURT: Yes. Thank you. There will be, in both the conditional sentence order and the probation order, a condition that you have no contact, directly or indirectly, with the complainant in this case, and his name is Gurbachan Singh, as set out in the Information. [ 48 ] Ms. Lane, do you know which company he was working for at that time? [ 49 ] MS. LANE: In any event, he doesn't appear to be working for that company any more.

I think that's part of the civil suit, and so I would ask that perhaps that exception, except in relation to court proceedings. If he is served, Mr. Howarth, with papers, I assume that they'll be having contact -- [ 50 ] THE COURT: All right. That no contact condition will be except such contact through legal counsel as required to address legal proceedings or when attending court to address those proceedings. [ 51 ] There will be a firearms prohibiting order under s. 110 of the Criminal Code . That is the discretionary section. And what period is the Crown seeking that for, is that -- [ 52 ] MS.

LANE: Ten years. [ 53 ] THE COURT: I'm not sure if one has been made in the past. [ 54 ] MS. LANE: I'm not aware of one, Your Honour. [ 55 ] MR. FORTINO: It'll be on Conviction

Summary Sheet. I think there was one made [indiscernible] [ 56 ] THE COURT: There was a five-year prohibition order in 2005. And a ten-year order made on a mandatory basis in 2006. It will be a ten-year order. [ 57 ] And finally, the DNA databank provisions, there will be an order that Mr. Haworth provide a sample of his DNA to the National DNA Databank. I am going to order that he provide that sample, the Surrey dates, do we have those? Is it Wednesdays and Thursdays? [ 58 ] MS. LANE: I believe it is Wednesdays and Thursdays. [ 59 ] THE COURT: I am going to order that Mr.

Haworth attend at the Surrey Detachment of the RCMP Thursday of next week, which is the 23rd of February 2012, between the hours of ten o'clock in the morning and two o'clock in the afternoon, for the purpose of supplying a sample of his DNA to the databank. [ 60 ] The final issue would be the victim fine surcharge, and those are waived. (REASONS FOR SENTENCE CONCLUDED)