R. v. Aslam Date:, 2015 BCPC 28

Citation: R. v. Aslam Date: 20150116 2015 BCPC 0028 File No: 201706 K-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MOHAMMED ASLAM ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Crown: P. Khangura Counsel for the Defendant: M. Swartz Place of Hearing: Surrey , B.C. Dates of Hearing: December 23, 2014 and January 16, 2015 Date of Judgment: January 16, 2015 [ 1 ] On August 21, 2014, Mr. Aslam was found guilty, at or near Delta, British Columbia, on or about the 8 th day of May, 2013, of

knowingly uttering a threat to his spouse, Hala Sabir, to cause death or bodily harm to his spouse, contrary to

Section 264.1(1)(

a) of theCriminal Code; and further that on or about March 2013, at or near Delta, British Columbia, did commit an assault upon Hala Sabir,pursuant to

Section 266 of the Criminal Code. [2] Reasons for finding Mr. Aslam were extensively given on August 21, 2014. A Pre-Sentence Report has been prepared whichboth Parties seek to rely upon. [3] Mr. Aslam is 53 years of age, born in Fiji, came to Canada in 1984 and currently resides with his parents. He travelled toCanada originally being sponsored by his first wife and they have two daughters, now ages 23 and 27. He infrequently sees hischildren. His second marriage, that to Ms. Sabir, was in 2012 in Morocco and she arrived in Canada in March, 2013, and the Partiesseparated in August 2013.

There are no children from this marriage. [4] Both Mr. Aslam and collateral sources confirmed the Pre-Sentence Report which states that Mr. Aslam was “repeatedlyexpressing the belief that she [meaning Ms. Sabir] used him to get to Canada and ‘framed’ him once she obtained her Permanent Residentcard. He states that he would like her to “come home” and resume their relationship. He states that he spent a lot of money to bring herhere and believes that “she was influenced by others once here.” Mr.

Aslam denies any history of illness or injury, denies any mentalhealth issues; however, believes that he may be depressed, and denies any use of alcohol or drugs. There were no allegations of breachor concerns while Mr. Aslam was on bail. The Report recommends that Mr. Aslam would benefit from anger management counselling,including Respectful Relationships Programme and thereafter to the Relationship Violence Programme. [5] A Victim Impact Statement was furnished at sentencing submissions. Ms. Sabir defined her life with Mr.

Aslam as “living likea slave”, that she “always had to follow what my husband and his family ordered me to do. I couldn’t breath[e] [sic]…I never felt safe athome and scared every minute during the last six months. This fearful emotion still remains in my mind. Sometime, all my memoriescome back to me, and I cry everywhere. I am afraid of going out by myself. I always need someone to be with me. I have sleepingproblems.” [6] Crown Counsel respectfully submits that a 12 - 18 month suspended sentence is appropriate, stating that the aggravating factorsfor consideration is that this was a spousal assault upon Ms.

Sabir who relied completely on Mr. Aslam for financial and emotionalsupport and that she had no support in Canada of any family or friends. [7] Defence counsel respectfully submits that Mr. Aslam be granted a conditional discharge. [8]

Section 718 of the Criminal Code of Canada sets out the objectives and principles of sentencing and those have been carefullyconsidered. [9] Regina v. Fallofield (1973), (BC CA), 13 CCC (2d) 450 (BCCA), sets out the criteria for considerationwhich, when applied to Mr. Aslam that he does not have a criminal record, one must consider if it is in the public interest that Mr. Aslambe granted a conditional discharge. In addition, I have considered the age of Mr. Aslam and the support from within the communitywhich is largely his parents. [10] In Regina v.

Soberano, a September 18, 2013, decision of the Honourable Judge Bahen, a sentence was imposed after a guiltyplea and at issue was whether or not a conditional discharge would be appropriate. The offence arose from an altercation at a party towhich the accused in the Soberano matter accepted the version of events. In the matter before me, Mr. Aslam did not concur with theversion of events. In the Soberano matter, the aggravating factors included the use of a weapon, the participation of others to partake inthe offence, and the intrusion of a private residence. However, Mr.

Soberano had no criminal record, he expressed remorse that wasperceived to be genuine, including what was defined as a “clear pattern of rehabilitative initiatives that indicate the offence was out ofcharacter and will not be repeated”, he was fully compliant well on bail, and had full time employment. A conditional discharge wasimposed with terms and conditions. [11] In Regina v. Tone 2003 BCSC 880, Mr. Tone entered a guilty plea to an assault causing bodily harm which was a fist fightresulted in the complainant being rendered unconscious as a result of Mr.

Tone inflicting blows to the complainant’s neck, head andface. There was some “question” whether the complainant was rendered unconscious or whether it was a memory problem that arose atthe time from the incident. Factors in the Tone matter included no prior history of violence, stable employment, no history of drug use,his drinking pattern had escalated prior to the incident, no indication of any mental health concerns, no criminal record, and Mr.

Tonewas motivated to seek professional help and was motivated to “take whatever steps necessary to maintain his stability.” (Page 4) TheCourt imposed a conditional discharge. The British Columbia Supreme Court, in applying Fallofield (supra), at Paragraph 15 stated: Two conditions must be satisfied before the court can grant a conditional discharge. The first is that the discharge must be in the bestinterests of the accused. This presupposes that the accused is of good character, without previous convictions.

It is not necessary toenter a conviction to deter him from future offences or rehabilitate him and the entering of a conviction may have significant adverserepercussions for the accused. [12] In Regina v. Jassal, 2007 BCPC 231, Mr. Jassal pled guilty to assaulting his wife which assault had resulted in her rupturing hereardrum. A conditional discharge was imposed. Factors before the court for consideration included a guilty plea, Mr.

Jassal wasgenuinely remorseful, the accused was taking steps to address his anger management, he had no criminal record, he had communitysupport, and reconciliation between the parties was possible. [13] Domestic violence should be firmly deterred and denounced. There is no reason for such in Canadian society or in any society. It is unequivocally in the public interest that this type of offence is not to be tolerated or condoned. The individual circumstances of theoffender must be considered when counter-balancing the interest of society in deterring this conduct. [14] The conduct of Mr. Aslam is very troubling.

Ms. Sabir came to Canada with assurances of his promises of love, security andprosperity. However, immediately upon her arrival with no money, no support network, and a limited working of the English language,she became emotionally, physically, and financially a prisoner in the home of Mr. Aslam and his parents. At one time, Mr. Aslam was

sponsored to come to Canada by his first wife, so he is knowledgeable of how daunting it is to come to a new country. I accepted the testimony of Ms. Sabir as set out in my Reasons for Judgment that she was at the mercy of Mr. Aslam who controlled every aspect of her life. He controlled her every movement financially, he controlled whom she was to associate with and when, and he actively discouraged her from leaving the home with the emotional support of his parents. She was trapped in the family home. [ 15 ] I have carefully considered the factors before me.

So, too, I have considered the case law furnished to me. No one fact pattern ever fits another fact pattern. I have considered that Mr. Aslam was in complete position of trust and control over Ms. Sabir as an aggravating factor; I have considered that this is a domestic violence matter which the public message is that such acts should never be acceptable in Canada. [ 16 ] I have also considered that Mr.

Aslam appears before me with no criminal record, that he is employed, that there have been no allegations of breach while on bail, that while there are no letters of support of the community, he does reside with his parents. However, so, too, his parents, by their acquiesce and by the facts in this trial verbal encouragement, were aware of the circumstances and did nothing, and that he has not expressed remorse for what has occurred.

I am also aware and acknowledge that there is likely some element of depression which, while not formally diagnosed, was set out in the Pre-Sentence Report, and the facts are such in the trial that outside of work, Mr. Aslam’s entire being is home with his parents or the mosque. He does not engage in any other outside activities, and as part of my sentence that has been carefully considered, Mr.

Aslam would benefit from broadening his emotional well-being by stepping out into the community as a whole. [ 17 ] In considering the sentence to impose, I am aware that the sentence must be in proportion to the gravity of the offence, that the sentence imposed must be fit to the individual, it must be consistent with

Section 718 of the Criminal Code of Canada , it must not be contrary to the interests of the public, it must promote a sense of acknowledgement of the wrongdoing and responsibility on the part of Mr. Aslam, it must take into consideration the complainant, it must take into consideration the circumstances of Mr. Aslam, and that the sentence imposed must be fit, having consideration of both the offence and the particular fact pattern before the Court. [ 18 ] I have done all of the foregoing and will impose the following: A 18 month conditional discharge with the following terms and conditions:

a) Keep the peace and be of good behaviour;

b) Appear before this Court as and when required to do so;

c) Report in person to your Probation Officer no later than noon on Monday, January 19, 2015, and thereafter no less than one time per month in person;

d) Reside where directed and do not change that address without the prior written consent of your Probation Officer;

e) Maintain employment to the satisfaction of your probation Officer. You are to advise your Probation Officer in writing of any change in the employer or place of employment within 4 business days of any such change;

f) You are to enrol, attend and complete to the satisfaction of your Probation Officer, the Respectful Relationship course;

g) You are to enrol, attend and complete to the satisfaction of your Probation Officer, the Relationship Violence programme;

h) You are to enrol, attend and successfully complete any other such programmes as so directed by your Probation Officer in addition to the Respectful Relationships Programme and the Relationship Violence Programme;

i) You are to have no contact direct or indirect with Hala Sabir or any member of her family, regardless of where they reside;

j) You are not to go within a one block radius or any known or may become known to you residence, workplace, education facility and place of worship of Hala Sabir;

k) You are to complete to the satisfaction of your Probation Officer, within the first 14 months of this Order, 40 hours of community work service hours that must be outside of your mosque and or place of worship and your place of employment. The Honourable Judge K. Arthur-Leung Provincial Court of British Columbia