R. v. S.D. Date:, 2012 BCPC 287

Citation: R. v. S.D. Date: 20120531 2012 BCPC 0287 File No: 190683-3-KC Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S.D. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K.W. BALL Counsel for the Crown: B. Lane Counsel for the Defendant: C. Allingham Place of Hearing: Surrey , B.C. Date of Hearing: April 3, 2012 Date of Judgment: May 31, 2012 [ 1 ] THE COURT : These are Reasons for Sentence in court file number 190683-3-KC that proceeded by indictment against S.D.

In this case S.D. has today entered guilty pleas to Count 1, a charge that on the 13th of September, 2011, at or near Surrey, in the Province of British Columbia, did commit assault on K.T., and Count 3, that he, on the following day, broke and entered into K.T.'s home, a charge contrary to s. 438(1) (

b) of the Criminal Code . [ 2 ] This matter originally came before this court some time ago by way of preliminary inquiry, and after committal for trial, at the Supreme Court level, a re-election was entered to have the matter heard by a Provincial Court judge. As a result of the re-election the matter returns to this court today. [ 3 ] The facts of the two counts can be related this way: The complainant and the accused had been in a romantic relationship. Because of S.D.'s increasingly possessive and aggressive behaviour, K.T. tried to break off the relationship but S.D. would not take "no" for an answer.

As she tried to end the relationship, he repeatedly called her by telephone at her home or place of business in a harassing manner, insisting on meeting her in person, something she did not want to do. [ 4 ] On the 13th of September, 2011, she agreed to meet him in a public place. She had parked her car in the underground parking lot of her apartment. As she left the underground parking garage, S.D. who had been waiting outside, drove his car into such a place as to block her vehicle's path with his car. He exited his vehicle, went to her driver's window and struck her in the face.

She was wearing glasses, and the blow by the accused was with sufficient force that the frame of the glasses cut the bridge of her nose, causing her to bleed. The two remained in one another's company and eventually, later that day, when the two had parted company, police attended her apartment and, among other things, dusted for prints. The apartment was left secure. [ 5 ] As a result of the foregoing assault, K.T. left her home and moved into her parents' residence. The harassing calls from S.D. continued, however, on the next day.

From what was said by him, the complainant deduced that he was either in or had been in her apartment. Her apartment is on the third floor of an apartment building. The police attended and found that the balcony door of her apartment had been breached; in other words, S.D. had climbed to the third floor and broken in through the patio door. The fingerprints of the accused were found on that balcony railing. When he was eventually arrested a couple of days later, documents belonging to K.T. were located on his person.

Frankly, as Crown counsel said, the evidence on that count was overwhelming. [ 6 ] S.D. has a very serious criminal record. This is a repeat of an earlier violent offence that I will speak of shortly.

There is a count of a breach of a dwelling house and assault in a domestic situation. [ 7 ] The complainant was required to testify at the preliminary inquiry, and to that extent to re-live the experience of September the 13th, 2011, something that she clearly did not want to do. [ 8 ] Crown takes the position that the appropriate sentence for these offences globally should be a period of 18 to 24 months, but at the higher end of that range, followed by three years of probation.

Defence counsel, in his submission, said the sentence should be 15 to 18 months, and agrees that some counselling for his client would be appropriate. Both counsel are agreed that S.D. should receive eight months' credit for the time he has already spent in custody. [ 9 ] The circumstances of the accused are that he was originally from Iran. He spent time in the military there and was trained as a sniper.

He was unable, on a moral basis, to follow the directions he was being given, or orders he was being given, and fled Iran, through Spain, to Canada with his wife and infant daughter. [ 10 ] In 2004 in a tragic motor-vehicle accident his wife was killed and he was seriously injured himself. As a result of his injuries he became addicted to pain medication and continued to self-medicate after he left the doctor's care. [ 11 ] His record suggests some real difficulty with intimate relationships in that there is at least one peace bond in a "K" or domestic file in 2001 and another in 2004.

There are offences consistent with addiction, theft, breach of probation or undertakings, and resisting police officers in the period from 2006 to 2008. But thereafter, there are serious violent offences including aggravated assault which led to a conditional sentence order which was terminated shortly after it was pronounced. He served the balance of the six-month conditional sentence order in custody; followed by robbery, sexual assault, assault with a weapon, unlawful confinement, all of those resulting in a three-year sentence.

There is a further charge of resisting a police officer, and ultimately the charges that are before the court today. [ 12 ] The current offences are serious, and I have considered, as counsel discussed, the provisions of s. 718, 718.1 and 718.2. Clearly denunciation, deterrence, both general and specific, are essential sentencing principles. In this case, specific deterrence is something that the court has to emphasize, as well as protection of the public, and in this case protection of K.T. This is an appropriate case where this offender has to be separated from the community; that is necessary.

Counsel referred to the need for rehabilitation and I agree that is a positive outlook; however, no clear plan has been suggested or presented by which rehabilitation may be accomplished. [ 13 ] Having reflected upon the provisions of s. 718 and the submissions of counsel, I am satisfied the appropriate sentence in this particular case is a global sentence of two years less a day.

With respect to the individual counts, the sentence will, with respect to Count 1, be a sentence of eight months, and with respect to Count 3, a sentence of 16 months less one day, consecutive one to the other. [ 14 ] There will be eight months' credit for the time spent in custody, so the sentence from today will be 16 months less one day, to be followed by a three-year probation order. That order will include the following provisions: Keep the peace and be of good behaviour; appear before the court when required to do so by the court.

He will notify the court or probation officer in advance of any change of name or address, and promptly notify the court or probation officer of any change of employment or occupation. [ 15 ] He will report within 48 hours of his release to the probation officer at 100 - 13545 - 64th Avenue in Surrey, British Columbia, and thereafter as and when directed. [ 16 ] He will reside where directed by the probation officer and not change that residence without the prior written permission of the probation officer.

[ 17 ] He will have no contact, direct or indirect, with K.T. or any member of her immediate family, including by any digital or electronic means including through any internet access or site. [ 18 ] He will not attend within a 200-metre radius of any residence, place of employment or place of schooling or training which may be attended by K.T. that comes to his knowledge. [ 19 ] He will attend, participate and successfully complete such counselling as directed by the probation officer which may include but is not limited to psychiatric or psychological assessments, substance abuse, life skills and related core programs. [ 20 ] He is prohibited from owning, possessing or carrying any weapons as defined by the Criminal Code of Canada , or any knives except while preparing and consuming food or used by him during his lawful employment. [ 21 ] There will be a weapons ban for a period of ten years under the provisions of s. 110 of the Criminal Code . [ 22 ] There will be an order for a DNA sample to be provided and that can be performed while he is in custody. [ 23 ] In the circumstances I am waiving the surcharge. (REASONS FOR SENTENCE CONCLUDED)