R. v. S. J. L. Date:, 2013 BCPC 356

Citation: R. v. S. J. L. Date: 20130827 2013 BCPC 0356 File No: 191925-KC3 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S. J. L. BAN ON PUBLICATION s. 517(1) CCC REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. B. HICKS Counsel for the Crown: L. O'Grady Counsel for the Defendant: S. Nozick

Place of Hearing: Surrey , B.C. Date of Hearing: June 10, Aug 20, 2013 Date of Judgment: August 27, 2013 [ 1 ] THE COURT : S. J. L. has pled guilty on Information 191925-KC3 to three counts. He is before the court to be sentenced following submissions of counsel made August 20th of this year. [ 2 ] The offences are the following: On Count 1, being that on the 3rd of December of 2011 at Surrey, British Columbia, he assaulted K.

K.; count 2 that on the same date in the same circumstances, he had possession of a weapon dangerous to the public peace contrary to s. 88(2) of the Criminal Code ; and on count 5 on the same date in the same circumstances, he had possession of a firearm knowing he was not the holder of a licence to possess the firearm or a registration certificate, contrary to s. 92(1) of the Criminal Code . The Crown proceeded by Indictment. [ 3 ] The Crown seeks a penitentiary sentence in the two-and-a-half to three year range, emphasizing deterrence and denunciation and also the need, the Crown says, to separate Mr. S. J.

L. generally and particularly from the complainant who, the Crown says, is at risk. [ 4 ] Mr. Nozick on behalf of Mr. S. J. L. says that although a sentence in the high Provincial range would not be inappropriate, he seeks a sentence of two years and a three year probation order which he says allows Mr. S. J. L. to benefit from programming in the Federal system. Mr. Nozick says no protective conditions should be imposed in respect to the victim because the victim, Ms. K. K., and Mr. S. J.

L. wish to pursue a relationship. [ 5 ] The circumstances are set out in an agreed statement of facts signed by both counsel and confirmed with Mr. S. J. L.'s signature. Those written admissions are filed on this proceeding and they were read into the record by Crown counsel. I am going to summarize them as follows. [ 6 ] Ms. K. K. rented an apartment in Surrey (the “Apartment”). That building is surrounded by other high-rise apartment buildings and is in a residential neighbourhood. There is a Skytrain station nearby. [ 7 ] In September 2011, Mr. S. J. L. moved in with Ms. K. K. at that Apartment.

In the early morning of December 3rd, 2011, Mr. S. J. L. and Ms. K. K. argued in the Apartment. She went to secure underground parking garage to sleep in her vehicle. At 5:40 a.m. Mr. S. J. L. went to the garage and because he was known to the security guard he was let into the secure garage. He found Ms. K. K. in her car and the argument continued. Mr. S. J. L. became more aggressive and Ms. K. K. walked away. She began to run from the garage. Mr. S. J. L. ran after her. [ 8 ] I am going to now read paragraphs 7 through 10 of the agreed facts, which state the following: 7. Ms. K. K. and Mr. S. J.

L. continued to argue at or near the front lobby of the Apartment. Mr. S. J. L. pushed Ms. K. K. very hard, causing her to fall into the door, and hit her in the shoulder/arm area. 8. At approximately 5:45 Mr. S. J. L. exited the building and started walking westbound on [address], Surrey, British Columbia. Ms. K. K. ran after him and their verbal argument continued. Both were yelling, swearing and shouting. 9. When Ms. K. K. was about 30 feet from Mr. S. J. L. on the sidewalk of [address], Mr. S. J. L. raised a firearm into the air and fired a single shot.

Witnesses on the street and in the surrounding condominiums heard the gunshot and saw the male raise his hand in the air as if he was holding a gun, followed by a flash of light when the gun was fired. The gunshot can be heard on the 9-1-1 call of a resident at the 12th floor of an apartment building. 10. A resident of the 12th floor sky-rise across from the Apartment was on his balcony when he saw a female sitting on the floor in the Apartment screaming at a male. The resident witnessed a two minute physical altercation between them. The male then let her go and went outside.

The male started walking westbound on [address] and the female followed him, still yelling something at him about getting her phone back. She was about 30 feet behind him when the male raised his hand up in the air as if he was holding a gun. The resident then heard a single loud bang and saw a muzzle flash. The male turned around and started to walk towards the female. They both walked in through the front lobby doors of the Apartment and both disappeared to the left in the direction of the elevator. As they walked inside the building the resident could hear police sirens from the east.

As the police came on scene the resident could see the male in the 18th floor suite pacing back and forth. The resident had to proceed downstairs to speak with police and lost continuity of the male on the 18th floor. When the resident came back upstairs to his suite he saw police in the same suite with the kitchen light turned on. That completes that portion of the admissions. [ 9 ] The admissions set out observations of four other witnesses who saw the altercation and saw or heard the firearm discharge. [ 10 ] Ms. K. K. went to her car in the underground garage.

Police attended at 5:50 a.m. and detected the odour of a firearm discharge in the air. A bullet casing was located proximate to the point where the firearm was discharged. [ 11 ] Police spoke to Ms. K. K., who identified Mr. S. J. L. as the person she had been in an altercation with. She was seen to favour her left arm and shoulder and was in pain when she tried to lift her bag. She confirmed to police that her shoulder was hurt when Mr. S. J. L. pushed her into the door. Ms. K. K. refused to provide a statement to police. She has been uncooperative with the investigators and prosecution authorities.

[ 12 ] Medical records obtained from Surrey Memorial Hospital indicate Ms. K. K. attended the hospital on the evening of December 3rd. Her left shoulder was x-rayed, no bones were broken. She was given pain medication and a sling to address the pain and difficulty moving her shoulder. [ 13 ] Mr. S. J. L. was not located that night. He was arrested February 6, 2012. He was subsequently released on bail. [ 14 ] On August the 12th of 2009, following sentencing on a charge of possession of a prohibited or restricted firearm or ammunition, Mr. S. J. L. was placed on a mandatory firearms prohibition order.

He was in violation of that order at the time of the offence before this court. [ 15 ] Mr. S. J. L. has just turned 22 years of age, I believe. He was 20 at the time of these events. He has a prior youth record which is the following: on July 17th of 2008, a conviction for assault, he was placed on a one year probation order; June 17th of 2009, convictions for obstructing a police officer, personation and breach of a Youth Court disposition, for which he was placed on an intensive support supervision order for six months and 15 days.

On August 12th, 2009, there is a conviction for possession of a prohibited or restricted firearm, for which he received a 95 day time served sentence, probation for 18 months and the mandatory firearms prohibition order. On July 27th of 2010, he has a conviction for breach of a Youth disposition and was placed on a three month probation order with community work service. [ 16 ] Following his arrest on these charges Mr. S. J. L. was released on bail. On March the 6th of 2013, he entered pleas of guilty, the admission of facts were filed and a presentence report and a psychological assessment were ordered. Mr. S.

J. L. failed to attend for an interview for the psychological assessment on May the 3rd and again on May the 7th. He failed to report to bail supervision on May 15th. He was charged with breach of his bail and a warrant issued. He was arrested June the 1st of this year and was detained in custody on June 4th. He has been in custody by my calculation 88 days presentence. [ 17 ] On June 10th of 2013, Mr. S. J.

L. pled guilty to the breach of the bail charge and received a one day sentence and that is his only adult conviction, I understand. [ 18 ] A presentence report and psychological assessment were prepared on an in-custody basis. I have reviewed both of them. Mr. S. J. L. has had a difficult upbringing. His father and mother split when he was very young. He lived with his mother, who became involved in an abusive relationship with a man who was an extensive drug user. Mr. S. J. L. and his siblings were physically abused. He experienced a high level of conflict and aggression in that home.

He went into foster care for a short time in Grade 6 and then he moved in with his father. [ 19 ] Conflicting views are presented of Mr. S. J. L.'s father by his natural mother and by D. M., who was the father's common-law spouse for 12 years. The former described Mr. S. J. L.'s father as kind and generous, the latter described him as having a terrible temper leading to dysfunction and violence. [ 20 ] Mr. S. J. L., nevertheless, described a close bond with his father and was profoundly impacted by the death of his father from cancer when he was 16. A year later Mr. S. J.

L. moved to Winnipeg where his mother was then living. Their relationship deteriorated. Mr. S. J. L. received a sum of money from his father's estate and in December of 2009, at the age of about 18, he returned to Surrey. [ 21 ] Following his return to Surrey he met Ms. K. K. She was 23 years of age at the time. With the exception of a brief separation, Mr. S. J. L. says they have been in a relationship since then which he wishes to continue. Mr. S. J. L. denies any abuse during this relationship although he has had concerns, he says, about Ms. K. K. being in communication with other men.

He says this lack of trust was a common cause for argument between them. [ 22 ] Mr. S. J. L. has completed Grade 10 and is working on his Dogwood Certificate on remand. He says he generally does well in school when he applies himself although that was not his attitude during his earlier school years. Mr. S. J. L. has had a number of labour related jobs. He worked at a young age in auto detailing, which was work arranged by his father who was in that business.

He most recently was employed full time by [a company] for about a year-and-a-half and had been promoted to a foreman position before detention. [ 23 ] At page 4 of the presentence report, the writer of that report stated the following: With regard to friends and associates, S. J. L. describes himself as socially isolated with few friends. S. J. L. describes the friends he does have as being older and having children. S. J. L. advises the majority of his peer group are not part of the working class and are part of a criminal sub-culture generally associated with organized criminal activity. S. J.

L. confirms that at the time of the offence in December 2011, he was well entrenched in a criminal lifestyle and associating with individuals who are actively involved in the criminal sub-culture. S. J. L. claims he has distanced himself from these individuals and lifestyle but could easily find himself back in this element should he be prevented from being in a relationship with K. K. due to protective conditions that he anticipates will be imposed as part of any custodial sentence or community supervision order. [ 24 ] At page 8 of the report the author wrote the following: S. J.

L. verbalizes remorse with regard to discharging a firearm and states, 'I should not have had a firearm, should not have discharged it in a public place and put the public at risk.' It is noteworthy that S. J. L. admits to frequently carrying firearms as a source of protection and doing so at the height of the gang war in the Lower Mainland. S. J. L. indicates he felt justified to protect himself as he was 'not part of the working class' and was actively involved in a criminal element. S. J.

L. was extremely cautious in the interview to avoid the term gang but was willing to acknowledge participation in a criminal element. [ 25 ] The writer of that report concluded at page 7 the following, "During the interview S. J. L. portrayed himself as having well entrenched pro-criminal attitudes supportive of a criminal lifestyle and demonstrates a high degree of comfort with this lifestyle." [ 26 ] I note Mr. S. J. L. failed to attend to complete the presentence report, ultimately leading to his arrest and detention. I note his

conduct on remand set out in the presentence report, including incidents of fighting and muscling other inmates and confrontational and disrespectful behaviour towards Corrections staff. He routinely violated no-contact conditions while this matter has been before the court, including a no-communication condition on the detention order. [ 27 ] The report refers to an incident in April of 2010 in which Mr. S. J. L. suffered a gunshot wound to his leg. Mr. S. J. L. says an unknown assailant confronted him and shot him. Police investigators suspect it was accidentally self-inflicted. Mr. S. J.

L. was bound by the firearms prohibition order at that time. [ 28 ] Mr. S. J. L. also asserted to the writer of the psychological assessment that he was concerned enough about his personal safety in 2009 that he carried a gun. The facts in the present case, of course, demonstrate that he had a firearm in his possession and fired it in December of 2011. [ 29 ] I relate these observations in some detail because Mr. S. J. L. asserts before me that the writer of the presentence report misstated what Mr. S. J.

L. told him, that his peers are from the working class and not the criminal element. [ 30 ] The reports assert that Mr. S. J. L. has not come to terms with his need to address substance abuse, particularly prescription medication and marihuana dependence, anger management issues and respectful relationships. It may be that in recent times Mr. S. J.

L. focused more diligently on his employment while out of custody and less on criminal associations; however, all the information provided leads me to conclude he does not yet understand the importance of taking responsibility for his actions and committing himself to positive conduct in relationships. The suggestion that a no-contact order with Ms. K. K. might cause him to renew criminal associations speaks to this concern. [ 31 ] I note Mr. S. J. L. has the support of C. M. and his step-brother, who were both in court for submissions on the previous date. Ms. C. M., who is the daughter of D.

M., filed a letter of support urging a focus on rehabilitation. That support would be important and will be important when Mr. S. J. L. returns to the community. [ 32 ] The victim, Ms. K. K., has not filed a victim impact statement beyond the initial information investigators gathered on the day of the offence respecting injury to her shoulder. The presentence report writer spoke to her mother. Ms. K. K.'s mother stated that the offence and the circumstances involving a firearm have had a profound effect on her daughter and the family. She said the relationship was tumultuous.

She and her husband were called on multiple occasions by their daughter following incidents of abuse. She said Ms. K. K. lives in fear and is awaiting counselling services. [ 33 ] The Crown says with this background, the past criminal history including breach convictions, the violation of a firearms prohibition order, the irrational behaviour involving the firing of a gun indiscriminately in a residential area and the uncertainty of Mr. S. J. L.'s commitment to rehabilitation, the court must sentence Mr. S. J.

L. to a penitentiary term at the upper end of the two-and-a-half to three year range in order to protect the public, particularly Ms. K. K., whom Mr. S. J. L. continues to assert his love for. Crown counsel says this background demonstrates that he will not comply with probation. [ 34 ] I was told during defence submissions that Ms. K. K. was, in fact, in the courtroom and present to support Mr. S. J. L. She did not speak. No letter of support from her was filed.

The defence says that in these circumstances, protective conditions by way of a no- communication order during incarceration and subsequently on probation are not necessary. The Crown says the public interest and the safety of the public call for such orders despite any view to the contrary that Ms. K. K. may have. [ 35 ] Mr. Nozick points out that these are Mr. S. J. L.'s first adult offences, of course, occurring prior to the bail violation arising out of those charges, that he is still young as well. The reports acknowledge that if he makes the necessary commitments, he can be productive in the community. Ms.

C. M. supports this conclusion. His rehabilitation cannot simply be ignored, which Mr. Nozick says would be the outcome were I to impose the sentence the Crown proposes. He notes Mr. S. J. L.'s Métis heritage and that he is entitled to consideration under s. 718.2(

e) in this regard. [ 36 ] Having said that, Mr. Nozick proposes a two year sentence in the Federal system to take advantage of the wider programming apparently available there, followed by a probation order to maintain community supervision and support his ongoing rehabilitation. He proposes that I exercise the discretion available in s. 719 of the Code and not apply credit for three months of presentence custody so as to give effect to a two year sentence and still allow a probation order to be imposed under s.731(1)(b).

Although he said a sentence in the high Provincial range with probation would usually be the appropriate submission, it was his client's desire to access services in the Federal system which, despite his youth, limited adult record and Métis origins motivated the position being advanced. [ 37 ] The purpose and principles of sentencing set out in s. 718 of the Criminal Code in a case like this bear repeating. That

section states: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: And then the following lettered objectives are set out: (

a) to denounce 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 and to the community. [ 38 ] Here the objectives which require consideration in the balance are the need to denounce this conduct, particularly in the circumstances of relationship violence in which a firearm is introduced and fired indiscriminately. The importance of deterrence in such circumstances was addressed by Madam Justice Southin in a case called R. v. Nguyen in 2005 in the Court of Appeal in this Province. An 18 year old first offender had possession of a loaded firearm and cocaine.

He received a one year sentence on the firearms offences and 18 months concurrent on the trafficking offence. Madam Justice Southin stated the following at paragraph 5: In my view, the sentences which the learned judge here imposed on the possession of weapons charges could well have been much higher and the sentence imposed on the trafficking charge much less. It appears to me from the cases which have been cited to us that the judges of the courts below are taking far too lenient an approach to the possession of restricted weapons which patently have some illicit purpose.

This Court where necessary and appropriate should do what we can do in order to help rid this community of people who possess firearms unlawfully for an illicit purpose -- they should be treated severely. Therefore, looking at this matter globally, 18 months does not seem to me to be inappropriate at all and although I would grant leave to appeal, I would dismiss the appeal. ( R. v. Nguyen 2005 BCCA 115 ) [ 39 ] Mr. Justice Schultes of the Supreme Court in this Province expressed the same concern in imposing an 18 month sentence in less aggravated circumstances in R. v.

Desmond ( 2011 BCSC 698 , Schultes, J.) [ 40 ] The circumstances before me are aggravated. The gun was fired in anger or frustration. It would frighten any reasonable person. It would likely achieve some measure of control over that person's actions. Mr. S. J. L. was prohibited by prior court order from possessing that firearm. The information before me does not support a finding that Mr. S. J.

L. is yet specifically deterred and, of course, general deterrence to address the same concerns expressed by Madam Justice Southin in 2005 continues to be a necessary statement. [ 41 ] In these circumstances, bearing in mind Mr. S. J. L.'s history with firearms, his assertion that he might return to criminal conduct if a no-contact order with Ms. K. K. is imposed and my concern that his specific deterrence is not yet demonstrated, his separation to protect the public remains a factor in the balance.

His rehabilitation, based on his age, remains important, but it must be addressed in the context of a custodial sentence. [ 42 ] In considering a custodial sentence, the term should not exceed that required to address the relevant sentencing objectives and particularly this is important in relation to an Aboriginal offender. Mr. S. J. L. advised the writer of the presentence report that he identifies as Métis through his father, who he says attempted to introduce elements of the culture into his upbringing.

It appears this had limited success, although he expresses a willingness to pursue a cultural path of healing and support. [ 43 ] Although not documented in the report, the impact of alcohol and substance abuse in Aboriginal circumstances leading to family breakdown and dysfunction are well known. Mr. S. J. L. experienced family breakdown and dysfunction in his own upbringing. The report lists services available in the Aboriginal community, generally on an out of custody basis, but no detail of services in custody in either the Provincial or the Federal program is provided.

In any event, I have concluded that Gladue considerations should have relatively limited impact on the balance and process here, bearing in mind the importance of the other factors already referred to and the serious implications of the involvement of a firearm. [ 44 ] The overriding concern in this case is violence occurring in the context of a relationship during which a firearm was introduced and discharged. That requires this court express the community's concern in strong terms.

The possession of a firearm in these circumstances must be denounced and a sentence which acts to deter this offender and others must be imposed. Because I have concluded that Mr. S. J. L. continues to be a risk in the community, his separation is justified. Rehabilitation and restorative objectives are important considering his age, background and cultural circumstances, but they must be addressed in the context of a custodial sentence addressing the predominate weight to be given to the other factors referred to. [ 45 ] Mr. S. J. L., if you could stand now, please.

I have concluded an appropriate sentence globally would be two years and nine months incarceration. I impose the following sentences. On Count 1, the assault of Ms. K. K., I impose a one year jail sentence. On Count 2, the possession of a dangerous weapon charge, giving credit for three months presentence custody, I impose an added two year and six month sentence, to be served concurrent. On Count 3, the possession of a firearm without proper licensing and registration, there will be a two year six month concurrent sentence. [ 46 ]

Section 743.21(1) allows the court to issue an order prohibiting an offender from communicating, directly or indirectly, with a victim, witness or other person during the custodial period. The Crown seeks such an order despite assertions on your behalf that your relationship with Ms. K. K. is something which you wish to be able to pursue and to be able to communicate with each other to carry on. Although that assertion was made, Ms. K. K. herself has not put that position forward.

She has been entirely uncooperative with the Crown, which would have been an avenue for her views to have been heard and expressed in circumstances which would not be compromising. She was apparently present but did not herself seek an opportunity to express those views. In any event, the information provided by her mother in the presentence report is concerning. I conclude that even were Ms. K. K. to have expressed a wish for contact at this time, such contact would not be in the interests of justice. I am simply uncertain as to the potential implications for her should contact be permitted.

It may be that with further information and a report that you are engaged in programming in a positive way, that order can be varied or rescinded entirely. At this time, however, I agree with Crown counsel that the order is justified. [ 47 ] Mr. S. J. L. is prohibited from communicating, directly or indirectly, with K. K., her mother, C. J., or any other member of her immediate family. [ 48 ] There will be a DNA databank order. Count 1 is a secondary designated offence.

You will supply a sample of your DNA to the National Databank during the course of your incarceration. [ 49 ] There will be an order under s. 109(

d) for a lifetime firearms prohibition order. Count 5 is covered by that subsection. [ 50 ] The victim fine surcharge is waived and I will direct that the presentence report and the psychological assessment be made

available to the correctional authorities. [ 51 ] MR. NOZICK: And I take it all sentences are concurrent? [ 52 ] THE COURT: They are all concurrent. There will be two years and six months of new, additional time. (REASONS FOR SENTENCE CONCLUDED)