R. v. Jones Date:, 2013 BCPC 368

Citation: R. v. Jones Date: 20130925 2013 BCPC 0368 File No: 190858-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAYNE WALTER JONES REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. R. GARDNER Counsel for the Crown: D. Simpkin Counsel for the Defendant: M. Richards Place of Hearing: Surrey , B.C.

Date of Hearing: September 25, 2013 Date of Judgment: September 25, 2013 [ 1 ] THE COURT : Mr. Jones has pled guilty to committing an assault of Melissa Tocheri which caused bodily harm to her, contrary to s. 267 (

b) of the Criminal Code . This incident occurred two years ago; June 14, 2011, to be exact. The court has had the benefit of very helpful submissions from both counsel, including written submissions from defence counsel. Lest I be accused of judicial plagiarism, I will be quoting at length from those written submissions. [ 2 ] The facts are that Mr. Jones and his friends had consumed alcohol that evening. Estimates are that he consumed approximately a 26-ounce bottle of vodka, as well as some beer. They had started drinking at a friend's home.

They later went to a drinking establishment called the G Spot, where they met Ms. Tocheri. While at the bar Mr. Jones and his friends consumed shots of alcohol. This is apparently uncharacteristic for Mr. Jones, who is described as a social drinker, and he found himself on that evening to be intoxicated. [ 3 ] After he and the complainant left the bar he recalls arguing with her in the vehicle. However, I am told he does not remember getting out of his vehicle and arriving at his friend's residence. I am told that Mr. Jones does not remember striking Ms. Tocheri at all.

It was not until the following day when he was told what had happened that he came to realize his actions. [ 4 ] The court has been provided a report by a Mr. Dondo (phonetic) and the facts are somewhat amplified in that report. Apparently, Mr. Jones and a group of his friends decided that evening they were going to go to a friend's residence which was relatively close to the lounge, and a number of people, including Mr. Jones and Ms. Tocheri, got into one vehicle. During the trip to the residence the accused and the complainant apparently had a disagreement regarding the correct route to get to the home. Mr.

Jones does remember arguing with her and that the exchange got intense, although he does not remember much of that exchange. Even the complainant acknowledged that the exchange was intense and other people that were present described the two parties as being adversarial with each other and the matter quickly escalated into a very emotionally heated exchange, a verbal exchange initially. [ 5 ] While en route to the residence, Mr. Jones apparently stepped out of the vehicle and said he would receive a ride from someone named Shawn and advised the others that he would meet them at that residence. Mr.

Jones apparently got out of the vehicle as he was initially very frustrated and upset. He continued on to the residence. Ms. Tocheri and a female companion stated that when they arrived at this residence they knocked at the door, no one answered. They were waiting outside when Mr. Jones arrived a few minutes later on foot. Ms. Calendar (phonetic), who was with Ms. Tocheri, reports that Mr. Jones said something to Ms. Tocheri, words were exchanged. At this point, Mr. Jones apparently spat at Ms. Tocheri and he punched her once in the face.

He then walked over towards a black van, entered that van and left the area where the assault took place. [ 6 ] The defence has suggested that an appropriate disposition of this matter would be a conditional discharge with a number of conditions attached to that. The Crown's position is that notwithstanding that Mr. Jones has no prior record, a period of incarceration of four to six months would be appropriate.

The defence has submitted that the accused, who has now just turned 28, has never exhibited any criminal behaviour prior to this evening and is viewed by his family and friends as an upstanding citizen who acted, on that evening, completely out of character. [ 7 ] Prior to this offence, Mr. Jones had been training for the upcoming baseball season. Other players had experimented with steroids in the past with no problems, and he found himself getting older and unable to train as far as he once had and fell into error when he started using steroids.

He now looks back at this time period during which he used steroids and sees a marked difference in his personality. At that time the change apparently was not readily apparent to him. With the benefit of hindsight he reports that he was irritable, quick to anger and impatient. Prior to that he says he had never been violent with anyone.

He stopped using steroids, I am told, immediately after this incident because he realized that he had turned into someone he did not recognize. [ 8 ] The defence, in urging the court to impose a conditional discharge, has relied on a number of cases, including the Supreme Court of Canada case R. v.

N (C.A.) a 1996 decision of the Supreme Court of Canada which says that retribution in a criminal context, by contrast to vengeance, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender and the normative character of the offender's conduct. Furthermore, unlike vengeance, retribution incorporates the principle of restraint.

Retribution requires the imposition of a just and appropriate punishment and nothing more. [ 9 ] The defence further submits that deterrence and rehabilitation are key principles in the sentencing of a relatively youthful first offender. The defence has submitted that the principles of denunciation and deterrence can be satisfied by a conditional discharge. Mr. Jones turned himself in on a warrant, he was released on bail and has been on bail since October of 2011 without any further problems. The defence has submitted that the criminal justice system has had the desired effect of deterring Mr.

Jones from committing further offences. [ 10 ] The court has been referred to another case, R. v. H. (P.H.) a 1997 case of the Ontario Court of Justice where the court laid out many sentencing principles and appellate court decisions which are appropriate, it is submitted, to the case at bar. In that case, the learned trial judge stated: I have taken into account the fact that the offender will be subject to the maximum period of probation under s. 733.1. In my view, this is a form of punishment. I reach this conclusion based on two observations.

Firstly, contrary to those who view probation as a mere slap on the wrist, I consider that a provision punishable by a two-year period of imprisonment in a penitentiary carries with it an effective deterrent element, not to speak of the maximum 18-month jail term upon

summary conviction, three times the maximum penalty for a

summary conviction impaired offence. Secondly, the jurisprudence makes plain that a properly administered period of probation is a deterrence sanction, not unlike the sword of Damocles.

[ 11 ] As to the issue of rehabilitation, the defence has submitted that a conditional discharge will enable Mr. Jones to continue to earn a living and further his rehabilitation. He is agreeable to attending any counselling sessions as directed by the court or his probation officer. Mr.

Jones wishes to use this experience, I am told, as a cautionary tale for other young athletes, in hopes that they will be able to dissuade themselves from experimenting with performance-enhancing drugs. [ 12 ] The defence has also urged that the court demonstrate restraint and the principle of restraint requires the court to consider other sanctions before the imposition of a jail term. In the circumstances it has been submitted that a jail term would not be necessary because less restrictive sanctions are appropriate. A carefully crafted conditional discharge will satisfy the court that jail is not necessary.

The court has been urged to consider the principles of restraint and deterrence as set out in the Ontario Court of Appeal in R. v. Friedman , a 1975 decision in which the court said: We do not rely only on a jail sentence but on the whole public process, from investigation and arrest, including sentence, which process hopefully culminates in the rehabilitation of the offender and the deterrence of others. [ 13 ] The defence further submits that the court has a duty to explore dispositions other than jail for first offenders and quotes from the case of R. v.

Priest that: The duty to explore other dispositions for a first offender before imposing a custodial sentence is not an empty formalism which can be avoided merely by invoking the objective of general deterrence. [ 14 ] It is submitted that a jail sentence is not necessary to deter Mr. Jones personally and that the process of being investigated, charged and processed in the criminal courts has resulted in sending a message to him and others that his behaviour will not be tolerated. General deterrence has been satisfied. [ 15 ] The defence has quoted at length from the decision of our Court of Appeal of R. v.

Fallofield , a 1973 decision in which the court set out a number of principles in considering whether a discharge is appropriate:

(1) The

section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law or the offence is punishable by imprisonment for 14 years or life . . .

(2) The

section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivial violation.

(3) Of the two conditions precedent to the exercise of the jurisdiction, the first is that the court must consider that it is in the best interests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused, that, of course, is the end of the matter. If it is decided that it is in the best interest of the accused, then that brings the next consideration into operation.

(4) The second condition precedent is that the court must consider that a grant of discharge is not contrary to the public interest.

(5) Generally the first condition would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction may have significant adverse repercussions.

(6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does not preclude the judicious use of the discharge provision.

(7) The powers given by the

section should not be exercised as an alternative to probation or suspended sentence.

(8) The

section should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in the application of the discharge provisions. This lack will be more apparent than real and will stem from the differences in the circumstances of cases. [ 16 ] The defence has referred and provided a number of cases which support a conditional discharge being given to the accused and I have considered all of those cases.

In considering cases, the court always has to be mindful that sentencing is a highly individualized process. [ 17 ] The defence has submitted a number of letters in support of Mr. Jones. The first one is from Laurie Wariki (phonetic) who has been a concession worker for over 25 years for the Whalley Baseball Association and has worked with children ages five years and up. He has known the accused and had an excellent relationship with him for over 15 years, and he says he was very surprised to hear of this offence and says:

In my honest opinion, it is far from being consistent with his character. I have never known him to show any anger or aggression to the children, me or anyone else. Over the years we have had many upset, angry fans, coaches, et cetera and I have witnessed Dayne defusing many disputes with respect, calmness and maturity. He has always been very patient, kind and responsible when working with these young boys.

He goes on to say that, "It is a pleasure to see him and to witness the positive impact he has had on these young boys." He concludes by saying, "I sincerely believe this was a one-time offence and there would be no possible chance of Dayne to ever commit any others." [ 18 ] I also have read and considered the letter of Jason Bowman, who has known Dayne for about 11 years. He met him when Mr. Jones was a young teen through his involvement in coaching at the Whalley Little League. Mr. Jones has played baseball for him for the past seven years and his team travels all over Canada and to the United States, as well.

He describes Mr. Jones as a great addition to his team. I did see Dayne go through some changes a couple of years ago. I understand that he was using steroids. I noticed changes in his character and personality. He was generally the same person, but carried a bit of an attitude. He was somewhat quick to anger and quite short-tempered. He did talk about using steroids, but I knew that he would realize that this was not a route he should be taking. I knew him to be intelligent and I took comfort in this.

From conversations I had with Dayne some time ago, he had let me know that he was not going to using steroids anymore. He came to realize that it changed him for the worse and led him into some trouble, letting me know about this charge. I was very pleased to hear that he had made the right decision to quit taking steroids. He goes on to say that: Mr. Jones did make a huge mistake a couple of years ago which he is very ashamed about and all of us are aware of this. Having known him for years now, I believe that he would never do anything like this again.

I know him as a nonviolent man. [ 19 ] I also have a letter from Shane Hertsted (phonetic) who has been very close friends with the accused for over 15 years. They have played competitive baseball together, they have travelled across North America for many tournaments and spent a lot of time together. He says that: This charge is not consistent with Dayne's character. I believe this assault occurred because of his past steroid use.

He is no longer experimenting with steroids and I feel completely confident that this will never happen again. [ 20 ] I also read a letter from Dan Jones, who is the uncle of the accused, who describes his nephew as being a very reliable young man, very personable and he says he would like for him to be a part of his trucking division. He goes on to say a number of positive things about the accused and adds that: When I heard of this situation and the assault charge I was extremely shocked, as I had never seen any sort of violent behaviour coming from him.

He has had a huge involvement with our large family functions, weddings, holidays, et cetera. I have never considered him to have an aggressive personality. [ 21 ] I also have a letter that is co-signed by his two parents, who understandably say some very positive things about their son, including there has been a sadness surrounding their son since this. We have had many talks about this offence and he gets very emotional. He is so very remorseful and carries much guilt and shame, knowing he has caused this pain to someone.

He has since been to counsellors and anger management and substance abuse courses to understand the devastating effects drugs and alcohol have, and to work each and every day to ensure that this, or any other offence, will never occur again. [ 22 ] There have been roughly a dozen letters filed on his behalf. I read them. I will not read them all into the record. I also have a letter from a Grant McDougall, a 57-year-old man who has worked with the Greater Vancouver Regional District for the past 26 years and has known Mr. Jones since he was ten years old when he first came to the Whalley Little League.

He has travelled all over North America with the accused representing Canada, playing in three national championships and going on to win three World Series championships. As for the offence, he said: Personally, I honestly pray that this one bad mistake he has made in his life, which I can assure you he has taken very, very seriously, will not jeopardize all of the work he does for these children and ruin his young coaching career.

I hope he will continue to be a coach and a role model for many years to come. [ 23 ] I have also carefully read and considered the Presentence Report setting out the background of Mr. Jones. His parents divorced when he was five years of age, but they remain friends. Neither has remarried and his father has been an active participant throughout the accused's formative years, coaching him in baseball and spending weekends fishing and camping. He has never seen his son engaging in any violence. [ 24 ] As for his attitude to the offence, the accused says he does not recollect much of the evening in question.

He appears to take responsibility, stating he feels ashamed of himself and that he is embarrassed and deeply regretful for the pain he caused. He realizes the impact his behaviour has had on his family and possibly his volunteer work as a coach for youth baseball teams. He ascertains that he ceased taking steroids following the offence as he realizes the effect that they had on his character and behaviour. [ 25 ] As to whether he is still engaging in substances, Mr.

Jones reported to his probation officer he does not have any substance abuse issues and that he only drinks on special occasions, and then keeping within limits. [ 26 ] As I said, I have read the report of Mr. Dondo, who stated in the letter dated October 9th, 2012, which I appreciate was prepared 11 months ago, that there were still some outstanding concerns to be addressed, that it was his opinion that it would be prudent to have Mr. Jones complete his anger management course to help him develop skills for dealing with his anger; it would also be prudent

for Mr. Jones to attend an AA meeting or similar organization so he would understand the effect of alcohol and steroids on his life more completely than he does at the present, and that it would be prudent to have Mr.

Jones attend counselling for a brief period of time to improve his interpersonal skills, assist him in expressing his emotions and to develop a plan for future growth to help maintain a healthy and satisfying life. [ 27 ] The issue before the court, one of the issues is first of all whether or not a conditional discharge should be imposed, and if not, whether a period of incarceration should be imposed. I have addressed my mind to the relevant case law, to the discharge provisions of the Code and the sentencing provisions as set out in s. 718 of the Code . I have also considered the background of Mr.

Jones, the fact that he has no prior criminal history, he has expressed remorse for his actions and has pled guilty to this offence. He has attended counselling and he has maintained employment. [ 28 ] I have considered not only the mitigating factors at length, I have also considered the aggravating factors. Our Court of Appeal has stated that violence against women is particularly reprehensible conduct. Furthermore, the victim in this case was punched with such force that she suffered "a broken orbital bone".

The accused, who now says he remembers nothing about this incident, immediately left the scene. [ 29 ] I have concluded that the imposition of a discharge in this case would be contrary to the public interest. I have also concluded it would not be in the best interest of Mr. Jones to receive a sentence that would not send the appropriate message that this is a very serious assault. I appreciate it was only one punch, but it had somewhat devastating consequences. [ 30 ] It has been submitted that to not impose a conditional discharge would be to ignore the steps Mr. Jones has taken to rehabilitate himself.

Although I recognize that rehabilitation is an important factor in sentencing, it is not the only factor. Other sentencing principles, such as denunciation and specific and general deterrence, also have to be considered. [ 31 ] Although this is the accused's first offence, and despite his efforts to rehabilitate himself, I have concluded that the sentence in this case should also reflect the community's revulsion for this type of violent behaviour. Accordingly, I agree with the Crown that a period of incarceration is warranted. [ 32 ] Could I have you stand, please, Mr. Jones?

I sentence you to four months imprisonment. It is to be followed by 12 months of probation. [ 33 ] You are to report forthwith upon your release from custody to a probation officer here in Surrey and thereafter as and when directed. You are to provide a residential address to your probation officer and not change that address without prior written notice to your probation officer. [ 34 ] You shall attend for, participate in and successfully complete such counselling as directed by your probation officer.

Once the counselling has been completed, you are no longer required to report. [ 35 ] You shall have no contact directly or indirectly with the complainant Melissa Joan Tocheri. [ 36 ] You are not to possess any firearms, explosive substances or ammunition for a period of five years. [ 37 ] I am also going to order that you provide a sample of your DNA. Thank you. (REASONS FOR SENTENCE CONCLUDED)