R. v. Akan Date:, 2012 BCPC 31

Citation: R. v. Akan Date: 20120119 2012 BCPC 0031 File No: 185836-1-K Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DARREN TODD AKAN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K.W. BALL Counsel for the Crown: L. O'Grady Counsel for the Defendant: M. Sandhu Place of Hearing: Surrey, B.C. Date of Hearing: January 19, 2012 Date of Judgment: January 19, 2012 [ 1 ] THE COURT : Mr. Akan is before the court today on a charge that on the 25th of November 2010, at or near Surrey, in the Province of British Columbia, did commit assault on L.G., did cause bodily harm to L.G., contrary to s. 267 (

b) of the Criminal Code . [ 2 ] On that date, that is November the 25th of 2010, at 8:30 in the morning, Mr. Akan punched L.G. in the face while the two were arguing in the premises where they lived. Police were called and arrived a few moments later. They found L.G. holding the left side of her face, crying. Emergency Health Services was called. The police officer noted that the left eye of L.G. was already badly swollen and was turning purple.

She was bleeding from the left eye and her nose. [ 3 ] Photos which have been filed as Exhibit 1 in these proceedings show not only that the left eye was initially completely swollen shut and there was obvious evidence of deep bruising, but at the same time the side of her face was misshapen. That is evidenced by the report which is Exhibit 2, a letter from Dr.

William Sisler , a diagnostic radiologist at Surrey Memorial Hospital, who indicates that he read a facial CT scan taken on the date of this injury of the face of L.G. and it demonstrated a very serious injury, that is, an acute facial fracture of the left face: The fracture is through the floor of the left orbit, or eye socket. It is causing the globe or eyeball to protrude. The muscle in the lower, left orbit is displaced into the fracture site. There is a second fracture of the medial or inner wall of the orbit with, again, displacement of the adjacent muscle at that site.

The doctor also says: There is extensive air within the soft tissues of the face and behind the left globe or eyeball. This is as a result of the fracture through the air-filled sinuses causing air to leak into the soft tissues. It is clearly a very serious injury to L.G. [ 4 ] The history of the file has some importance. Mr. Akan left the scene; was eventually taken into custody on April the 13th of 2011. A detention order was made by my brother Judge Dohm in this file on April the 19th, 2011. A trial date had been set June the

13th, 2011, but L.G. was found to be evading service of a subpoena and the Crown took proceedings under s. 698 of the Criminal Code , called evidence about the evasion and obstruction that was taking place, and the court ordered a warrant issue for the arrest of L.G. [ 5 ] On June the 21st, 2011, L.G., that is approximately one week after the warrant was issued, presented herself to the office of Crown counsel, and it was apparent after interview that she was a very reluctant witness. She was subpoenaed for the subsequent trial date which was then set for July 20th, 2011.

Again, L.G. did not show for the trial and a material witness warrant was issued for her. At that time the accused was released with some conditions. On August the 9th, 2011 he entered a guilty plea and the material witness warrant was cancelled at that point in time. [ 6 ] A pre-sentence report with a Gladue component was prepared. It indicates very clearly that Mr. Akan , who is now approximately 44 years old, was born into a life of poverty on the Muskowekwan Reserve in Saskatchewan.

His father and mother had apparently spent time in residential schools and were, as described, " residential school survivors." The parents had difficulties with alcoholism, particularly his father, and as a result his mother and father separated on numerous occasions. His mother was described as a happy person who was a good role model and set a positive example working, among other things, as a hospital cleaning lady. She is described as a strict parent who was non-violent. [ 7 ] Eventually the Akan family left the reserve and Mr.

Akan moved with his mother and brother to what is described as a "good part" of Regina. About seven years later his father, then released from custody, came to live with the family and his mother began to encounter drinking problems. The family moved then to the inner city of Regina.

He himself began to use alcohol at a fairly early age and had a troubled youth with many contacts with the justice system. [ 8 ] Eventually he moved to Edmonton, where he married, and lived in Edmonton for about five years from 1990 to 1995, interrupted by several custodial sentences, eventually moving to Vancouver in 1995, and that couple was divorced in the year 2001. He has subsequently had two other children by two different mothers and maintains contact with one of those daughters as well as a son, Mitchell. [ 9 ] In 1995, as I indicated, he moved to Vancouver.

Between 1996 and 1999 he collected social assistance, and the pre-sentence report says he bounced around between different accommodations due to criminal activity. He currently resides with his mother and brother in the City of Burnaby. He contributes $400 a month to the rent for that accommodation. [ 10 ] His mother apparently suffers from the ravages of diabetes and recently had an amputation.

His brother is also suffering from liver failure. [ 11 ] With respect to the relationship with L.G., that relationship has been about six years long, although the parties have known one another for some time longer than that. [ 12 ] His education ended at Grade 11, and he has completed some subsequent training in welding and auto body repair although he has not worked in those fields. He apparently worked between the years 2000 and 2010 as a labourer for a contracting firm where he was considered a positive worker; however, because of alcohol abuse and the theft of tools form a worksite, he was fired.

For the past year he has worked performing demolition for a company known as Park City Homes, and his employment at that firm has been confirmed. [ 13 ] He is diagnosed personally with Hepatitis C but does not currently have any other health complaints which he has reported. [ 14 ] He does acknowledge that he has an anger problem which he has not been able to resolve, and at page 3 of the report the report writer states: Mr. Akan reports that he does not suffer or have been diagnosed with any mental health problems but does state he feels he has an anger problem. Mr.

Akan states many times at work he feels he needs to "bite his tongue" to get through the day. He also states people on public transit anger him and claims he feels that previous counselling at the Spirit Lodge may be beneficial to him to help with this issue. [ 15 ] He acknowledges long periods of substance abuse, in particular, alcohol.

He appears to have reduced his alcohol intake, particularly because his mother will not permit alcohol in the home, but he has in the past taken advantage of a number of opportunities with Vancouver Detox and other programs, but those have not been successful, certainly not successful to the date of this offence. [ 16 ] L.G. provided some victim information. Frankly, on reading it, she is an advocate for Mr. Akan , and her suggestion that the kind of broken bones she has are repaired by having strong eye muscles simply reveals a lack of understanding of physiology. She acknowledges that Mr.

Akan will drink for several days at a time and then become extremely irritable and agitated, and couples his binge drinking with anger. [ 17 ] One of the more serious aggravating factors in this case is the extensive criminal record of Mr.

Akan which extends from 1986 through to and including 2008 with a number of property offences including offences with aspects of violence such as robbery, assault, obstruction of a peace officer, assault with a weapon, and five or six failures to comply with court orders of various kinds. [ 18 ] Both counsel before me acknowledge the Gladue portion of the report which was prepared, at page 7, and it is in keeping with the instructions given by the British Columbia Court of Appeal most recently in R. v. F.E.J. 2011 BCJ No. 2509 , a decision given orally by the Honourable Mr.

Justice Donald and agreed to by Justices Finch and Frankel. That case, on its facts, is a case where, after hearing of very successful changes in the life of F.E.J. after a very tough existence, some aspects of that earlier evidence no doubt similar to Mr. Akan , the accused, F.E.J., had a long period of complete abstinence, successful drug treatment, stable relationships and work, and relatively little criminal record. In that case there was an intermittent sentence proposed by way of joint submission.

The trial court disregarded the intermittent sentence and concluded that a six-month jail sentence was appropriate. [ 19 ] The Court of Appeal noted that the accused had served three months of the sentence and would have been eligible for release,

and therefore he had already served the equivalent of the 90-day intermittent sentence in the joint submission, and the Court of Appealsimply ordered probation. [20] I have taken into account the requirements that are set out in the case of R. v. Gladue (SCC), 1999 1 SCR 688,as have counsel in front me, as did the report writer. I note that in Mr. Akan's situation, he is an individual who is over 40 years of age. He has had a number of opportunities, including programs taken, to reform himself and those have not been successful.

He has had someups and some downs, but he has what Crown counsel described as a savage, uncontrolled temper, coupled with alcohol abuse, and that isan explosive and dangerous combination which led to the very serious injury to L.G. [21] He still has opportunities to reform himself, but in the circumstances of this case deterrence, denunciation and protection of thepublic are, in my view, the principles of sentencing under s. 718 of the Criminal Code which must be given paramountcy.

Rehabilitationis not to be forgotten and is not forgotten in this case, but that process is going to have to start with a new dedication by Mr. Akan to thatactivity. I appreciate what he said about the needs of his family, and there were opportunities which he had which he has passed over tofocus on those issues. [22] Crown counsel seeks a sentence of 18 months in jail, less credit for the three months and one week which he has already spent incustody. Mr.

Sandhu suggests that a conditional sentence order is appropriate here, given that we are dealing with a period of custodywhich is less than two years less a day. [23] Certainly on my reading of the case of R. v. Proulx and the many, many authorities which have followed that decision, there isno offence particularly which is outside the ambit of a conditional sentence order except those where minimum sentences are in place.

However, that said, Proulx makes it vitally clear that where there is a significant risk of violent crime in the community, that aconditional sentence order may not be considered. [24] I am satisfied, given the violent nature of the offence before the court, that a conditional sentence would not be appropriate here. I have no doubt it would be something that Mr. Akan would like, but it is simply not available on the facts of the case. [25] I am satisfied the appropriate sentence here is 16 months in jail. That will commence today. From the 16 months I will givecredit for four months.

I am going to round the time he spent in custody up to that level, so he will spend 12 months in custody, startingtoday. [26] When he is released there will be a period of probation for 18 months. That probation will have the following terms: [27] He will keep the peace and be of good behaviour, appear before the court when required to do so by the court.

He will notify thecourt or probation officer in advance of any change of name or address, and promptly notify the court or probation officer of any changeof employment or occupation. [28] He will report immediately upon his release to the probation officer at 100 - 13545 - 64th Avenue in Surrey, British Columbia,and thereafter as and when directed. [29] He will reside where directed by the probation officer and not change that residence without the prior written permission of theprobation officer. [30] He will have no contact, directly or indirectly, including by any digital or electronic means, with L.G., and he will not attendwithin 100 metres of any residence, place of employment or place of schooling which may be occupied by L.G. [31] He is not to possess any weapons as defined in the Criminal Code of Canada, including any knives, except while preparing orconsuming food or used by him as tools during the course of his employment while employed. [32] There will be an order under s. 109 of the Criminal Code that he not possess weapons or firearms for a period of ten years. [33] THE COURT: You will attend, participate in and successfully complete such counselling as directed by the probation officerwhich may include but is not limited to psychiatric or psychological assessments, substance abuse, alcohol abuse, anger management,related life skills and CORE programs. [34] There will be an order that he provide a sample of his DNA, because this is a primary designated offence, pursuant to s. 487.051of the Criminal Code. [35] I am going to waive the surcharge in the circumstances. (REASONS FOR SENTENCE CONCLUDED)