R. v. Edwards Date:, 2013 BCPC 222

Citation: R. v. Edwards Date: 20130626 2013 BCPC 0222 File No: 197799-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAMIE GERALD EDWARDS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: J. Dickie Counsel for the Defendant: P. Sprackman Place of Hearing: Surrey , B.C. Date of Hearing: June 25, 2013 Date of Judgment: June 26, 2013 [ 1 ] THE COURT : Jamie Gerald Edwards is before the court having pled guilty to the charge on Information 197799-1 that on or

about the 3rd of February, 2013, at or near Surrey, British Columbia, in committing an assault on the complainant, S.K., he did cause bodily harm to her, contrary to s. 267 (

b) of the Criminal Code . [ 2 ] Sentencing submissions in this matter were heard yesterday following the guilty plea, and Mr. Edwards is before the court today to be sentenced. [ 3 ] The Crown proceeded by indictment on this matter. The Crown is seeking a custodial sentence of nine to 18 months, followed by a two- to three-year probation order with protective and counselling conditions. Mr. Sprackman, on behalf of Mr. Edwards, says that an appropriate custodial sentence is in the 9- to 12-month range. [ 4 ] Mr. Edwards has been in custody since February 11th of 2013, a period of 136 days.

The defence seeks credit for that period, plus an added 28 days reflecting enhanced one-to-1.5 credit for the 57-day period between the entering of the guilty plea on May 1st and the imposition of sentence today. The defence says that sentencing could have occurred on an earlier date, but the Crown sought a pre- sentence report and psychological assessment which delayed the matter.

The Crown is opposed to this enhanced credit being allocated. [ 5 ] Crown is seeking a DNA order and an order under s. 109 of the Criminal Code relating to firearms prohibitions. [ 6 ] The circumstances of the offence are the following: At about midnight on February 2nd, into the early morning of February 3rd, 2013, Mr. Edwards was travelling home to Surrey on transit. The victim was also on the same transit, either bus or Skytrain. They recognized each other. Mr. Edwards lives in an apartment near a location where S.K. worked from time-to-time as a sex trade worker.

They had seen each other passing previously in that area. [ 7 ] Mr. Edwards spoke to S.K. that evening, asking if she would join him and return to his apartment. They agreed that she would perform a sex act for $40. They went to his apartment over a small business. S.K. entered and sat on a couch. Mr. Edwards then went into his bedroom. He was there for a period of time. He then returned and a call was made to order drugs by a dial-a-dope line. [ 8 ] S.K. says that Mr. Edwards was friendly and there was nothing to alert her to any potential threat. She recalls Mr. Edwards sitting across from her.

She believes that she nodded off. She awoke feeling a blow across her face. Mr. Edwards told her that she had fallen forward and hit her head on a table. S.K. felt two more blows to her head. An object was used, but she could not tell what it was. She was bleeding onto the couch and the floor. Mr. Edwards told her that she had to go because she was bleeding. She was unable to see and she asked for help to get down the stairs. Mr. Edwards led her to the street. He was in an agitated state. She said that she had left her belongings in his apartment and asked him to go back for them.

He said that he would, but he did not return. [ 9 ] S.K. felt that she was losing consciousness at this point. She made her way to a nearby pub where staff were closing up. With their help, police were flagged. She was unable to communicate at that point. An ambulance was called and she was taken to hospital. [ 10 ] Photographs have been filed on this hearing. They depict a vicious beating to S.K.'s head, resulting in significant bruising, swelling and bleeding. In the photographs that have been filed, S.K. is shown with a breathing apparatus affixed in the hospital. Her left eye was swollen shut.

A CT scan was conducted. A fractured orbital bone under her left eye was discovered. There was a one-and-a- half-inch gash to the crown at the back of her head which was bleeding significantly. A depression was detected at the back of her head which was painful, and a CT scan was conducted respecting that which revealed a fractured occipital bone extending to the vertebrae, and there was bruising to her brain. [ 11 ] Photographs taken on February 11th, that is several days after the events, show considerable bruising and discoloration still present to S.K.'s face.

Photographs of her clothing which were worn on the night of the event show considerable blood staining. [ 12 ] On February 9 th , S.K. gave a statement to police. She identified Mr. Edwards in a photo line-up. She took police to the location and pointed out the upstairs suite, and she described the apartment layout and some of the contents in detail. [ 13 ] Mr. Edwards was arrested on February the 10th or 11th of 2011; there was some confusion in my mind about that, but in any event, a search warrant was executed at the suite.

Photographs were taken of the inside of the suite and have been filed as an exhibit on the sentencing. Blood is visible on the stairway leading up to the apartment level. There is significant blood spatter present on the walls inside of the apartment. Blood drops are present on the couch. There is a soaking bloodstain also visible in the couch. [ 14 ] Mr. Edwards has been in custody on a detention order. He has been in custody since his arrest. [ 15 ] Initially, with the assistance of a friend he says, on the initiative of that friend Mr. Edwards allowed a false alibi to be advanced to the Crown.

The friend swore an affidavit provided through Mr. Edwards' first counsel that Mr. Edwards was with that friend at the time these events occurred. [ 16 ] Police expended resources, including the tracking of Mr. Edwards' cell phone movement on the night of these events in order to refute the alibi and confirm that he travelled the route which would place him on the transit with the victim as described in her statement and within the relevant timeframe. Mr. Edwards did not withdraw the alibi until it was established to be false. [ 17 ] Mr. Edwards says that he consumed drugs at his suite, perhaps with the victim.

He is unsure if she used on that night before the attack in his presence. He asserts, in essence, that it must have been the affect of the drugs consumed that night after a period of three-and-a-half years of abstinence that caused him to react violently, and to have no recollection of what he did. [ 18 ] S.K. says that she did not consume drugs and asserts that Mr. Edwards did not do so either before the attack. Where a fact which the Crown asserts as aggravating is disputed, the onus is on the Crown to prove the fact if the Crown wishes the court to rely on it.

No proof is offered on this particular variation between the two individuals. [ 19 ] S.K. delivered her victim impact statement orally here in court yesterday afternoon. She explained very well the significant affect this attack has had on her physically, including continuing pain and discomfort. She cannot, even at this point, breathe properly

through her nose. Equally important, in my view, is the impact this attack has had on her sense of personal safety and security. She has lost that sense of personal safety and security. She reacts to the approach of people in a protective way. She experiences overwhelming fear, especially at night when people approach her quickly or from behind. She feels as if she is being watched. She has never suffered an attack like this before and does not know what it will take to overcome her fears or how to address those anxieties.

From this I conclude she has suffered significantly from this attack. [ 20 ] The important sentencing objectives requiring assessment in a case like this include the need to denounce attacks like this in the strongest terms, and to impose a sentence which will deliver a deterrent message to others. Mr. Edwards' specific deterrence must be considered. I must consider whether this is a case requiring he be separated to ensure the safety of the community.

His efforts and prospects for rehabilitation must also be weighed in the balance. [ 21 ] The courts in this province have recognized that sex trade workers are particularly vulnerable and require the protection of the law. They are often alone with people they do not know, who are often stronger than they are and able to physically control the situation. They may be in a location which they are not familiar with and where help is not at hand if something goes wrong.

The need to deter and denounce such conduct is aggravated in those circumstances. [ 22 ] A pre-sentence report and a psychological assessment were ordered at the request of the Crown on May 1st when the plea was entered and I have reviewed both those reports. [ 23 ] Mr. Edwards is 36 years of age. He was born and raised and spent his early years in Newfoundland. His father was abusive towards his mother until his father died when Mr. Edwards was about six years old. Mr. Edwards left home at 18 and eventually made his way west to this area.

He developed a drug addiction and a criminal record which is consistent with that lifestyle. It is substantially property-related. There are numerous such convictions from the year 2000 through 2012 with some breaks. There are a number of breach offences. He has a 1995 conviction for sexual assault which, on the circumstances provided in court, is an extremely minor assault and such, might well have been dealt with by way of a different charge. In addition, he pled guilty to assault and threatening in 2009. That arose when he confronted someone spreading false rumours that he had AIDS.

He received a 45-day sentence, together with probation. [ 24 ] Mr. Edwards has struggled with drugs and drug addiction and with recovery over the years. He says he was clean for three- and-a-half years until the night of this offence. He says he relapsed in S.K.'s company and simply cannot explain how or why he would act as he did. He does not recall what he did but accepts that he administered the beating that so injured S.K. [ 25 ] I have reviewed two case authorities provided by Crown counsel. In R. v. Ali in 2006, Judge Gulbransen of this court imposed an effective 15-and-one-half-month sentence.

The offender in that case hired the victim to perform a sexual act. He consumed cocaine and then administered a severe beating, including a choking. She was able to escape as he tried to restrain her. He had a past record, including violence, although Judge Gulbransen described that record as not extremely serious. Judge Gulbransen noted some prospect for rehabilitation. He gave greater weight to the need to denounce such assaults on persons in vulnerable circumstances. ( R. v. Ali, 2006 BCPC 46 ) [ 26 ] In R. v. Adams in 2013, Judge Gulbransen imposed an 18-month sentence.

The offender in that case beat up the victim over a drug debt. It appears that she was working in the sex trade and paying money to that person who provided her with drugs. He had five prior assault convictions among a record of 38 prior convictions. ( R. v. Adams, 2013 BCJ 1107 (BCPC) ) [ 27 ] The psychological assessment in respect to Mr. Edwards identifies factors which lead to a conclusion that, if not addressed, he is a moderate risk to re-offend.

These factors are a history of past violence, a history of serious substance dependence, unstable relationships, unstable employment, violation of community supervision in the past, and some anti-personality traits. [ 28 ] Mr. Edwards' submissions presented by Mr. Sprackman took issue with a number of these issues somewhat. He says the past violence is relatively minor, and I have referred to that, and arose in compromised circumstances. He says he was abstinent for a three- and-a-half year period, that he has had stable relationships in the past, and was employed at the time of his arrest.

His community supervision history has to be considered in light of his active drug use and addiction pre-dating 2009. [ 29 ] I take account of Mr. Edwards’ plea of guilty, his expression of remorse expressed through counsel and in his own statement in court yesterday. At that time he apologized and accepted responsibility for what he had done. He has undertaken programming while on remand to begin to address some of the issues which need to be taken on by him. He is gathering insight, and some progress has been made towards his specific deterrence.

On the other hand, this was a savage attack on a vulnerable and essentially defenceless person. She has suffered physically and psychologically, and those injuries may continue for a long time. A strong statement of denunciation and deterrence is called for. [ 30 ] Mr. Edwards, if you could stand now please? [ 31 ] I have concluded that an appropriate sentence in this case would be in the range of 15 months' incarceration. I have reviewed the decision in R. v. Bradbury provided by Crown counsel.

In particular and as it relates to the granting of the credit for pre-sentence custody I have taken particular account of paragraph 48 of that decision, and in that paragraph the Court of Appeal in this province refers to the sorts of matters which would justify pre-sentence credit in excess of the one-to-one credit now the presumptive position.

It refers to factors which would be personal to an individual and refers to circumstances in which, and I am quoting now from paragraph 48: A delay in the proceedings that is not attributable to the accused could be considered as appropriate for consideration of enhanced credit. ( R. v. Bradbury 2013 BCCA 280 )

[ 32 ] I conclude that you will have credit for 164 days of pre-sentence custody. This calculation allows one-to-one credit from February 11, 2013 to May 1, 2013 when the guilty plea was entered, which is a total of 78 days. You will have one-to-1.5 credit for the 57 days thereafter to today's date, being in total 86 days. That period reflects a delay which I conclude is not attributable to you and that you were ready to be sentenced without a pre-sentence report or a psychological assessment at or about May 1st.

I will say that the pre- sentence report and the psychological assessment have been helpful to the court, but the delay required in obtaining those reports has delayed your entry into the Corrections system and you should have the enhanced credit during that period, consistent with the analysis in R. v. Bradbury . [ 33 ] The total credit is 164 days. I view that as being virtually five-and-a-half months of credit. I impose an additional custodial sentence of nine-and-one-half months' incarceration. [ 34 ] There will be a probation order thereafter for a period of two years.

The conditions are that you keep the peace and be of good behaviour. You will report forthwith following your release to a probation officer and thereafter as directed by the probation officer. You will reside where directed by the probation officer, you will not change that address without the prior written approval of the probation officer. [ 35 ] I am now going to essentially quote from items 3 though 7 of the pre-sentence report on page 7, the proposed conditions of the writer of that report. The next condition will be as number 3 listed there.

You will attend and participate in psychiatric and psychological assessments and counselling, including forensic outpatient services as directed by the probation officer. [ 36 ] And then number 4 in that list: you will attend and participate in substance abuse counselling, including a residential treatment program as directed by the probation officer, and any other counselling that may be directed by the probation officer. [ 37 ] Number 5 on that list will be the next condition: you will abstain absolutely from the use and consumption of drugs, unless prescribed by your physician or medical authority. [ 38 ] And number 6: you will have no contact direct or indirectly with S.K.

You will not attend at any place of residence, school or employment of S.K. that you know of or learn of while this order is in effect. [ 39 ] I am going to place you on a curfew which will apply during the first ten months following your release.

You are not to be outside of your place of residence between the hours of 11 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 which you must carry with you and produce on request of a peace officer or probation officer, or in the event of a medical emergency involving yourself. [ 40 ] I will add the following conditions: You are not to possess any weapons defined in the Criminal Code .

You are not to possess knives except for the purpose of preparing and consuming food or at a workplace for the purpose of lawful employment.

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 probation officer, and you will attend the door of your residence or by telephone if requested to do so by a peace officer to confirm compliance with any condition in this order. [ 41 ] I am going to authorize release of the pre-sentence report and the psychological assessment to Corrections and probation authorities for their use. [ 42 ] There will be an order that you supply a sample of your DNA to the national DNA databank.

That will be effected during the course of your incarceration. [ 43 ] There will be an order under s. 109 of the Criminal Code . You will be bound by a ten-year firearms prohibition order. There are certain items which you may not possess on a lifetime basis. That order will be explained to you by a justice of the peace. [ 44 ] The surcharge is waived. (REASONS FOR SENTENCE CONCLUDED)