R. v. Purcha Date:, 2013 BCPC 375

Citation: R. v. Purcha Date: 20131203 2013 BCPC 0375 File No: 193672-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MITCHELL PURCHA ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: M. Bloom Counsel for the Defendant: C. Hahn Place of Hearing: Surrey , B.C.

Dates of Hearing: August 26 and 27, November 13, 2013 Date of Judgment: December 3, 2013 [ 1 ] THE COURT : On August 29th of 2013, following a trial, I convicted Mitchell Purcha of assaulting Scott Butler on January 30th, 2012. [ 2 ] On November 13th of 2013, sentencing submissions were heard, Victim Impact Statements were filed and a Pre-Sentence Report was addressed. Two letters respecting Mr.

Purcha's employment were filed and the matter was adjourned to today's date so that I could consider this material and determine the appropriate sentence to be imposed. [ 3 ] The Crown proposes a custodial sentence, to be served on a conditional sentence order for three to four months, followed by a 12-month probation order and ancillary orders. The Crown says the circumstances call for a strong statement of deterrence and denunciation. [ 4 ] Mr. Purcha seeks a conditional discharge, reflecting strong recognition, he says, should be given to rehabilitative considerations.

The Crown says such an outcome is not in the community interest and contrary to the proper balancing of sentencing objectives. [ 5 ] I will summarize the circumstances as I found them in convicting Mr. Purcha. [ 6 ] Mr. Butler, his wife, his sister and his sister's 14-year-old daughter were walking the family dog at about 9:45 in the evening on January 30th of 2012. Mr. Purcha, a co-accused named Joshua Lai-Sun Shu, and a third young male, had consumed a substantial amount of alcohol, perhaps as many as 20 beers in the case of Mr. Purcha, who was 18 years of age at the time. As Mr.

Butler and his family were walking in the area of the Langley Township Hall, Mr. Purcha and his two friends arrived there in a car driven by Mr. Purcha's girlfriend. They got out and approached the Butler family from behind, yelling and swearing. Their attention focused on Mr. Butler. They referred to him repeatedly as "bitch," using expressions directed to Mr. Butler such as, "What's your problem, bitch?" [ 7 ] Mr. Butler's niece saw the vehicle carrying the three arrive and recognized it. As the group approached her family, she recognized Mr. Purcha and the co-accused from her school and neighbourhood.

Although not in evidence at trial, I am advised by counsel for Mr. Purcha that he had received a phone call from a friend who told him that a person that friend had some issue with was walking in the area where the Butler family were. Mr. Purcha and his friends went there to confront this individual on behalf of the friend. That is consistent with the evidence of Mr. Purcha's girlfriend, Kelly Sinkewich, who said Mr. Purcha received a call and as a result of that call, she drove Mr. Purcha and his two friends to the park. [ 8 ] Although the Butler group picked up their pace, Mr.

Purcha and his friends closed the gap. They reached the Butler group, who turned towards them. Mr. Purcha and Mr. Shu confronted Mr. Butler. The third male stood back somewhat. Mr. Purcha shoved Mr. Butler with two hands to the chest. Mr. Shu did the same. Mr. Purcha and Mr. Shu continued to push and shove Mr. Butler. They taunted him. Both threw punches. Mr. Butler had the dog's leash in his hand and he swung it, striking one of the two in the hand. Kicks were directed at Mr. Butler. He tripped and fell to the ground, landing on his back. The two males jumped on him. He was able to get onto all fours. Mr.

Purcha and Mr. Shu then delivered kicks and punches to his shoulders, head, back and ribs. He took repeated blows. He was in a vulnerable position and unable to defend himself. [ 9 ] His wife and his sister each grabbed an attacker and tried to pull them off. Mrs. Butler picked up the dog leash and hit one of the males. The two males disengaged, one of them kicking Mr. Butler's sister. [ 10 ] The three males then began to walk back the way they had come. They returned to Ms. Sinkewich's vehicle and she drove off, apparently unaware of what had occurred. [ 11 ] Mr.

Butler suffered numerous blows to his shoulder, head, back and ribs. He was outnumbered two-to-one. The third young male stood by and participated in the verbal taunting. Mr. Butler was completely vulnerable once he went to the ground and was set upon by Mr. Purcha and his friend. Although no bones were broken and the bruising, soreness and stiffness eventually passed, much more serious injuries could well have occurred. Mr. Butler and Mr.

Purcha are just lucky that that did not happen. [ 12 ] Perhaps as significant as the physical injuries and much longer lasting is the emotional and psychological impact this attack has had on Mr. Butler, his wife, his sister and his niece. That impact is graphically described in each of their Victim Impact Statements. An evening walk as a family was a regular and important part of their day, an opportunity to enjoy the company of family, with a complete sense of safety in their neighbourhood, even at night. The Butler family no longer feels safe and secure in their neighbourhood.

Perhaps in time they will regain that confidence that they felt before this senseless attack, but there is no guarantee that will happen. Mr. Purcha and his friends must carry personal responsibility for the trauma that they have caused. [ 13 ] In considering the appropriate sentence to be imposed, I must consider the purpose and principles of sentencing which are set out in s. 718 to 718.2 of the Criminal Code . The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions which address specific objectives.

Those are to denounce unlawful conduct, to deter Mr. Purcha and others from committing offences like this, to assist his rehabilitation, to provide reparation for harm done to Mr. Butler and to the community, and to promote a sense of responsibility in Mr. Purcha and acknowledgment of harm that has been done. [ 14 ] I must impose a sentence which is proportionate to the gravity of the offence and Mr. Purcha's degree of responsibility. I must account for aggravating and mitigating factors. The sentence I impose should be similar to sentences imposed in similar cases. Mr.

Purcha should not be deprived of liberty if less-restrictive sanctions are appropriate. All available sanctions other than imprisonment that are reasonable must be considered.

[ 15 ]

Section 730 of the Criminal Code provides for consideration of a discharge as a sentencing outcome in this case. Mr. Purcha seeks a conditional discharge, which would require he successfully complete a period of probation and comply with a series of conditions which would require he be under supervision in the community, and might include counselling, a curfew, community work service and the requirement that he keep the peace and be of good behaviour, to mention some of the possible conditions.

If he fully complied with the conditions, no conviction would be entered. [ 16 ] In order for a discharge to be granted, I must consider the sentencing purposes, principles and objectives set out in the Criminal Code and referred to a moment ago. I would have to be satisfied that it would be in Mr. Purcha's interest, and not contrary to the community interest, that he be discharged. Such an outcome would contemplate that Mr. Purcha is remorseful, accepts responsibility for his actions, and I should be satisfied his personal deterrence is well in hand.

Further, I would have to be satisfied that a properly- constructed probation order ensured the necessary strong statement of denunciation and general deterrence was made, while supporting rehabilitative and restorative objectives. Where the court is satisfied of those considerations, the granting of a conditional discharge is not precluded, despite the seriousness of this offence. [ 17 ] The Crown says, however, that this offence is of such seriousness that the overriding consideration of general deterrence and denunciation require a custodial sentence.

The Crown's view is that the proper balancing of sentencing considerations would permit that sentence to be served in the community under conditions on a conditional sentence order, with probation to follow. That sentencing option is available for consideration in this case, pursuant to s. 742.1 of the Criminal Code if I am satisfied that Mr.

Purcha's presence in the community under conditions would not endanger the safety of the community, and if I conclude it reflects the proper balancing of the purpose and principles of sentencing referred to. [ 18 ] Although not referred to specifically by counsel, the middle ground between these two positions is a suspended sentence and the imposition of a probation order in similar terms, which involves no custodial sentence, whether served in the community or otherwise, but does involve the entry of a conviction, which would not be the case if a conditional discharge were fully and properly complied with. [ 19 ] Mr.

Purcha is 19 years of age. He was just weeks past his 18th birthday when this offence was committed. He has no past criminal record. His parents separated when he was young. He has a limited relationship, I am told, with his father. The Pre-Sentence Report refers to a strained relationship with his mother. He now lives with a friend. He works full time. Two letters filed by his co- workers attest to his good work ethic and prospects for advancement, as does reference to employment connections made by the probation officer preparing the Pre-Sentence Report.

He has ambitions to obtain a business degree. [ 20 ] The concern expressed in support of a discharge is that a conviction may have a detrimental impact on future employment prospects if a criminal record check is required. [ 21 ] Mr. Purcha is young and was barely beyond the jurisdiction of the Youth Criminal Justice Act at the time this offence was committed. Through counsel, he has stated that he is sorry for his actions. He has complied with bail obligations.

At the same time, however, his explanation for carrying out this attack, given at the sentencing and in the Pre-Sentence Report, is of an essentially targeted attack against Mr. Butler who he mistook for someone else who had earlier assaulted his friend. In the Pre-Sentence Report, despite what could only be described as a significant level of intoxication, Mr. Purcha stated he felt the circumstances were overstated and his role "blown up." [ 22 ] There must be no mistaking the seriousness of this criminal attack and the significant impact it has had on Mr. Butler and his family. I remind Mr.

Purcha that I found him guilty of an attack on an entirely innocent member of the community, doing what he should feel completely safe and secure doing in his neighbourhood; that is, going for a walk in the evening with his family. He was taunted, pushed, shoved, punched and kicked while in a most vulnerable position, and for no good reason. He had done nothing to provoke what I conclude was a cowardly attack, fuelled with alcohol, and he continues to pay the price for it. [ 23 ] The circumstances leading to this assault did not arise on the sudden. Mr.

Purcha made a decision to act on the phone call from his friend and to travel to the scene and to track down and confront another person. Mr. Butler pays the price for being mistaken for that intended target. [ 24 ] I must determine whether Mr. Purcha's circumstances, his young age, his lack of a prior criminal history and his current degree of insight, which I conclude is not yet fully realized, demonstrate a level of personal deterrence such that it overcomes the stronger statement of denunciation and general deterrence made when a conviction is entered. Actions such as Mr.

Purcha's have an impact beyond the individual victims. Safe and secure communities and neighbourhoods are an essential part of a strong social fabric. When people feel they cannot walk in their neighbourhood in the evening in safety, are distrustful of young people nearby or anxious when others approach and therefore choose not to venture outside or do so with trepidation, something important has been lost to that community. [ 25 ] It is for this reason that conduct such as Mr.

Purcha's must be denounced in strong terms and a strong statement of general deterrence made through the sentencing process. [ 26 ] Although one can say it is in Mr. Purcha's interest that he be discharged, a proper balancing of sentencing considerations, including the need to deter and denounce this conduct, leads me to conclude that a discharge would not be in the community interest. At the same time, I have determined that the imposition of a custodial sentence utilizing a conditional sentence order is not called for. [ 27 ] Mr.

Purcha, if you could stand now, please? [ 28 ] This is a case which, on balance, I conclude calls for the sentence to be suspended and for you to be placed on a probation order for a period of 18 months. [ 29 ] The conditions will be that you keep the peace and be of good behaviour. [ 30 ] Following release from the courthouse today, you are to travel directly to your residence and you are not to leave that residence

except pursuant to the terms of this order. [ 31 ] You will report to a probation officer at an address to be provided before you leave the courthouse today, before 12 noon tomorrow, which is December the 4th, 2013, and thereafter as directed by the probation officer. [ 32 ] You will reside where directed by the probation officer and you will not change that address without the prior written approval of the probation officer. [ 33 ] You will attend, participate in and complete to the satisfaction of the probation officer any assessment, treatment or counselling that may be directed by the probation officer. [ 34 ] You will abstain from the possession or consumption of alcohol or non-prescription drugs or substances controlled under the Controlled Drugs and Substances Act unless you have a valid medical prescription for that substance issued in your name by a qualified medical practitioner. [ 35 ] For the first 12 months of the probation order, you will be bound by a curfew.

You are not to be outside of your place of residence between the hours of eight o'clock in the evening and six o'clock in the morning seven days a week, unless you have the prior written approval of the probation officer, in which case you will carry that with you and produce it on request of a peace officer or a probation officer, or in the event of a medical emergency involving yourself or a member of your immediate family, or for the purpose of lawful employment, having provided a

schedule of that employment on the letterhead of your employer to the probation officer and that

schedule having been approved by the probation officer. [ 36 ] You may be away from your residence when travelling directly to or from any of these commitments. [ 37 ] You are to attend the door of your residence, or by telephone, if requested to do so by a peace officer or probation officer for the purpose of confirming compliance with any condition of this order. [ 38 ] You will have no contact, directly or indirectly, with members of the Butler family, whose names I am going to confirm with Crown counsel here in a moment.

You will have no contact, directly or indirectly, with the co-accused, Joshua Lai-Sun Shu, whose name is as it appears in the Information. [ 39 ] You will not attend at any place of residence, school or employment of any of those named individuals that you know of or learn of while this order is in effect. [ 40 ] You will not attend within 200 metres of D.W.

Poppy S econdary School at 23752 - 52nd Avenue, Surrey, British Columbia. [ 41 ] You will complete, to the satisfaction of the probation officer, 35 hours of community work service before the end of the sixth month of the probation period. [ 42 ] You are not to possess any weapon as defined in the Criminal Code .

You are not to possess knives, except to prepare or consume food, or in the workplace for the purpose of lawful employment. [ 43 ] You will carry a copy of this order with you when away from your residence and produce it on request of a peace officer or a probation officer. [ 44 ] I order that you supply a sample of your DNA to the National DNA Databank. This was a Langley offence, I believe, and do we have the Langley dates and times here? [ 45 ] THE CLERK: Langley is Tuesdays and Thursdays.

Tuesday, 10:00 a.m. to 12 noon, and Thursday, 1:00 p.m. to 3:00 p.m. [ 46 ] THE COURT: You will attend at the Langley detachment of the RCMP to provide a sample of your DNA for the National DNA Databank. You will attend on a Tuesday between 10:00 a.m. and noon, or a Thursday between 1:00 p.m. and 3:00 p.m., but you must have attended and provided that sample by Thursday, the 12th of December 2013.

So that allows you to attend today, tomorrow or Wednesday or Thursday of next week, but you must have done that by three o'clock next Wednesday. [ 47 ] There will be a firearms prohibition order under s. 110 of the Criminal Code for a period of five years, as sought by the Crown. That is the discretionary provision. [ 48 ] The victim fine surcharge will apply. Mr. Hahn, will your client need time to pay on the surcharge, which I believe will be $50? [ 49 ] MR. HAHN: He says that he doesn't need time to pay. [ 50 ] THE COURT: All right.

The surcharge is due and payable on or before Friday, the 13th of December 2013, so just about ten days away. You must pay the surcharge by that date. You can pay it today if you choose. [ 51 ] Anything further, gentlemen? I want to just confirm the names of the members of the Butler family. They were all witnesses in this trial and I neglected to write their names down in these notes so that I could have effectively referred to them this morning. Do you have those? [ 52 ] MR. BLOOM: Your Honour, if I may be of assistance, yes.

There is Scott Butler, B-u-t-l-e-r, Kathleen Butler, and that's K-a-t- h-l-e-e-n Butler, a Michelle Schoelch, and that last name is spelled S-c-h-o-e-l-c-h, and Brooklyn O'Neil. [ 53 ] THE COURT: And Brooklyn is spelled, just to make sure it is correct?

[ 54 ] MR. BLOOM: B-r-o-o-k-l-y-n, O'Neil, O-'-N-e-i-l. [ 55 ] THE COURT: All right. And those names will all appear in the no-contact and the no-attendance provisions, as well as the name of the co-accused from the Information. [ 56 ] MR. BLOOM: Yes, and just one point for clarification. The D.W. Poppy Secondary School, Your Honour, I believe is located at 23752 - 52nd in Langley. [ 57 ] THE COURT: Is it? Did I miss -- what did I say? [ 58 ] MR. BLOOM: I believe you said Surrey. [ 59 ] THE COURT: Surrey, I did. All right, it is in Langley. Thank you. Thank you, Mr. Hahn. Direct your client to the registry, please. (REASONS FOR SENTENCE CONCLUDED)