R. v. Wyatt Date:, 2017 BCPC 147

Citation: R. v. Wyatt Date: 20170331 2017 BCPC 147 File No: 204560-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. FREDERICK EARL WYATT ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Crown: R. Antonuk Counsel for the Defendant: K. Merrigan Place of Hearing: Surrey , B.C. Date of Hearing: November 4, 2016; March 29, 2017 Date of Judgment: March 31, 2017 [ 1 ] The accused, Frederick Earl Wyatt, appeared before me for trial wherein on June 20, 2016, I provided extensive oral reasons finding Mr. Wyatt guilty that on or about the 2 nd day of September, 2013, at or near Langley, in the Province of British Columbia, did

commit aggravated assault of Charles Redfern, contrary to s. 268(2) of the Criminal Code of Canada and, further, that on the same date and place did knowingly utter a threat to Charles Redfern to cause death or bodily harm to Charles Redfern, contrary to s. 264.1(1) of the Criminal Code of Canada . [ 2 ] The detailed testimony from emergency room physician, Dr. Lirenman, who attended to Mr. Redfern, testified that Mr. Redfern had crepitus, which is caused by air escaping from a collapsed lung which required medical intervention in order to allow the collapsed right lung to re-inflate.

It was also determined while Mr. Redfern was hospitalized that, as a result of the actions of Mr. Wyatt, he also sustained fractured ribs. [ 3 ] In the course of assaulting Mr. Redfern, Mr. Wyatt made a number of verbal threatening statements to Mr. Redfern including inducing fear and threats of harm to Mr. Redfern. [ 4 ] At the conclusion of my reasons, a Pre-Sentence Report was ordered and the matter was returnable before me in October 2016. The report states as follows: Mr.

Wyatt self-reported to the writer of the report that he grew up on a ‘violent home environment’. (Page 2) That he is estranged from his son, however remains in contact with his daughter. (Page 2) Mr. Wyatt met his current partner in 2009 and they married in 2012. (Page 2) He self-trained as a truck driver and his employer at the time of the preparation of the report disclosed that Mr. Wyatt's time with the company has not been 'flawless'; however, he reports Mr. Wyatt to be a 'satisfactory employee'. (Page 3) Mr.

Wyatt self-disclosed that while in custody in 1997, he was diagnosed as being bipolar, that he ceased medications four years prior to the preparation of the report, however, was connecting again with a doctor to seek assistance. (Page 3) Notably, the report states: He has displayed poor anger management and appears to have trouble maintaining his composure during times of stress. (Page 3) Mr.

Wyatt has a historical criminal record commencing in 1988 for possession of property obtained by crime and using a forged document; in 1997, he was convicted of assault and breach of an undertaking, a further assault and a further theft under; in 1998, he was convicted of possession of a narcotic; in 2000, convicted of fear of injury; and, in 2004, a third conviction for assault. (Page 3) The writer of the report notes that: He is 'vocal' and presents with 'anti-government attitudes and is quick to come to his own personal conclusions'.

He is an intelligent man, though appears to have problems maintaining his composure in times of stress. (Page 4) Mr. Wyatt self-reported to the writer of the PSR that he did not agree with the finding of the court but that he would abide by any court- imposed conditions including a court-ordered psychological assessment and/or treatment. (Page 4) [ 5 ] Upon the court receiving the report and taking into consideration the repeated outbursts of anger and foul language that Mr.

Wyatt directed to this judge and to the court process, I ordered that a forensic psych report be prepared on an out-of-custody basis in order to properly assess Mr. Wyatt. That was first ordered in October 2015, wherein at such time Mr. Wyatt had the assistance of very able duty counsel in this building. Both Crown and duty counsel concur that such a further report should be ordered. [ 6 ] The matter was returnable before me on November 29, 2016. A letter was received from Melanie Carrington of the B.C. Mental Health and Substance Use Services advising that despite the court allowing Mr.

Wyatt to appear by video to avoid his travel to Prince George in poor weather that on November 10, 2016, she wrote that: Mr. Wyatt was scheduled to attend for assessment but refused to participate by video. [ 7 ] That video appearance was arranged with the consent of his duty counsel and Mr. Wyatt in October 2016. As a result, the forensic psych report was delayed by Mr. Wyatt. [ 8 ] For a second time, I ordered a forensic psych report on November 29, 2016, for Mr. Wyatt. On such date, he again had the assistance of duty counsel in this building.

The court received a letter dated January 4, 2017, thereafter, from Dr. David Morgan of the B.C. Mental Health and Substance Use Services, who wrote that he met with Mr. Wyatt on December 8, 2016, but he found that Mr. Wyatt did not "understand the potential legal ramifications of his consenting to a psychiatric pre-sentence assessment". That was the finding of Dr. Morgan. However, I will note that by such date, Mr. Wyatt had the extensive benefit of two separate attendances in this building with extensive duty counsel advice. In such letter, Dr.

Morgan asks that the preparation of the report be extended again. [ 9 ] Mr. Wyatt appeared before me in January 2017 and, as noted, this court still did not have receipt of a forensic psych report. Again, Mr. Wyatt, on this date, had the assistance of duty counsel in this building. Again, while in this court, Mr. Wyatt continued to be both physically and verbally engaged in foul and abusive language directed to myself and to the court as a whole. The forensic psych report was ordered for a third time by myself with the consent of both Crown and duty counsel in January 2017.

Of note on that date, it was noted that the next court date would be for sentencing and would proceed peremptorily upon Mr. Wyatt with or without such a report, and that was noted with his duty counsel beside him. [ 10 ] The court received a further letter dated March 8, 2017, from the B.C. Mental Health and Substance Services again authored by Dr. Morgan. Dr. Morgan met with Mr. Wyatt in Quesnel on February 22, 2017, and Mr. Wyatt self-reported that he had not spoken to a particular lawyer since he and Dr. Morgan met in December 2016. In actual fact, Mr.

Wyatt indeed did receive legal advice from duty counsel in this building in January 2017. In the letter of March 8, 2017, Dr. Morgan notes that Mr. Wyatt had been diagnosed with

bipolar and depression. However, he states on page 2 of his letter: The diagnosis of bipolar disorder appears to be predicated entirely on a single assessment undertaken in 1997 when Mr. Wyatt wasremanded in custody and which did not consider the influence of his early life experiences on his presentation at that time. Saidassessment indicated bipolar disorder as a possible diagnosis but that more information was required.

However, the diagnosis of bipolardisorder appears to have been subsequently assumed without question by medical professionals and treatment provided without thediagnosis ever being reassessed. [11] Mr. Wyatt appeared before me on March 29, 2017. Again, Mr. Wyatt accessed a further duty counsel afforded to him in thisbuilding. The matter was stood down on that date on more than one occasion in order to further afford time for Mr. Wyatt with dutycounsel. There was no forensic psych report despite it being ordered on multiple occasions. At this court appearance, as Mr.

Wyatt haddone on each and every court appearance before me, Mr. Wyatt became belligerent, rude, disrespectful to the court process andembarked at yelling at myself and the court process with foul language on a constant basis. [12] It became very clear to me by such time that Mr.

Wyatt had no intention of allowing this court to undertake the sentencing thatarose from his finding of guilt in June 2016, and that he simply chose to not listen to the advice of multiple sheriffs and his duty counselto be respectful and, as such, I revoked his bail and he was taken into custody. [13] Again, the matter was stood down on that day on more than one occasion to afford Mr.

Wyatt the opportunity to calm down,engage on multiple occasions again with duty counsel, and to focus on being respectful and not yelling vulgarities at myself, the sheriffsand the court process. [14] Unfortunately, despite this matter taking up the entire court day before myself to afford Mr. Wyatt the opportunity to regroupand engage on multiple occasions with his duty counsel, he continued to engage in yelling and inappropriate behaviours. I remanded himin custody until today's date for sentencing. [15] That brings me to today's date, wherein Mr.

Wyatt has appeared before me for the purposes of sentencing. [16] This court is very grateful for the assistance of duty counsel today and on all other appearances in ensuring that Mr. Wyattreceives consistent legal advice, and I thank them. [17] Earlier in the process, Crown counsel produced to the court and to Mr. Wyatt a book of authorities. Crown counsel is seekingto rely upon the 2005 decision of R. v.

Craig, 2005 BCCA 484, wherein the British Columbia Court of Appeal imposed a sentence of twoyears, less one day, for an aggravated assault, wherein the accused grabbed a shoulder of that complainant and stabbed her in the lowerabdomen. Similar to the matter before me, in the Craig matter, the attack was completely unprovoked, the victim was defenceless, theinjuries were severe and surgery was required. The Court of Appeal reviewed s. 718 of the Criminal Code of Canada, that being theprinciples of sentencing that must be considered, those being deterrence, denunciation and rehabilitation.

Sentencing must bothcontribute and maintain respect for the law and the continuity of a just, peaceful and safe community by imposing sanctions. Anysentence that a court imposes must be in proportion to the gravity of the offence and the degree of responsibility of the offender. [18] In the matter before me, Mr. Redfern was afforded no ability to defend himself, both verbally and physically, that he had nowarning of the unilateral and unprovoked attack upon him by Mr.

Wyatt and that he sustained life-threatening injuries that, to this day,have left him with a disability. [19] In the matter before me, there are few mitigating factors. While Mr. Wyatt has a criminal record, including three convictionsfor assault, I will note, however, it is historical in nature which does make this a mitigating factor. [20] In addition, it is abundantly clear through this protracted process that Mr. Wyatt is in need of a mental health diagnosis andmonitored treatment. [21] The aggravating factors before me are such that the injuries sustained by Mr.

Redfern were life-threatening and has left himwith a disability. The attack was unprovoked and extremely violent in nature, both verbally and physically. Mr. Wyatt took advantage ofhis large physical stature when he attacked and threw Mr. Redfern against the metal fencing. Mr. Wyatt displayed a complete andcallous disregard for the severity of his actions and that disregard remains in place to this day. The attack was not consensual in nature. Mr. Wyatt is a physically large man who used that size and girth to injure Mr.

Redfern. [22] Case law imposes a range of a sentence that is appropriate in an aggravated assault. It must also be kept in mind that I foundMr. Wyatt guilty of uttering threats. The range of a sentence to impose on an aggravated assault ranges from 18 months to six years. [23] In R. v. L.D.W., 2005 BCCA 404 , [2005] B.C.J. No. 1746, that decision carefully reviewed the principles ofsentencing. However, what does distinguish this is that in L.D.W., the offender was Aboriginal and, as reviewed throughout thosereasons, it was considered in the sentence imposed.

However, what is of note in the L.D.W. decision is that the British Columbia Courtof Appeal noted the necessity of a heavy focus on both deterrence and denunciation with the intent to isolate the accused from society toprotect the community. [24] I do find that the actions of Mr. Wyatt were extremely violent in nature and that both deterrence and denunciation must play arole in the sentence to be imposed.

It is also abundantly clear from the facts that I accepted in the trial and my reasons and hisbehaviours repeatedly before me since such time that the community must be protected from him and that he must be isolated fromsociety as a whole as part of his sentence. [25] In the L.D.W. decision, the Court of Appeal again noted a similar range of sentences and noted that a sentence imposed on thelower end of the scale was attributable to consensual fights, and that the period of incarceration increased for attacks that wereunprovoked, and the victim sustained grave injuries.

[ 26 ] Since I found Mr. Wyatt guilty of these offences in June 2016, this court has been extremely accommodating to Mr. Wyatt in allowing repeated extensions of time for the forensic psych report, for him to access counsel repeatedly, and to make any application before this court that he deemed that he believed necessary. The values of this community cannot permit any further extensions of time and sentencing must be imposed upon Mr. Wyatt today. [ 27 ] The facts on which I found Mr.

Wyatt guilty of both offences and as set out in my extensive oral reasons are such that there must be a greater emphasis upon both deterrence and denunciation over rehabilitation in this matter. That being said, it is clear that Mr. Wyatt would tremendously benefit from focused and continually-monitored forensic psych assistance during the term of this sentence to be imposed upon him. [ 28 ] Incarceration is the only manner in which I am able to condone this community's values which do not condone the violence, both verbally and physically, that Mr. Wyatt inflicted upon Mr. Redfern in 2013.

That the attack was completely unprovoked, that Mr. Redfern had no warning and no ability to physically respond, and that it left him with life-threatening injuries, such conduct must be denounced and deterred. [ 29 ] This court canvassed with both Crown and duty counsel about what is commonly referred to as a Rogers order to be framed within a probation order. Mr. Wyatt instructed duty counsel that he would not abide by such portion of an order. I am, however, going to include such, as it will proactively and in a concerted manner address his mental health issues. [ 30 ] In addition, it is very clear that Mr.

Wyatt would benefit from a forensic psych component within the probation order. [ 31 ] After considering all of the foregoing, I am going to impose a period of incarceration of two years, less one day, concurrently on both matters. [ 32 ] THE ACCUSED: Concurrent? [ 33 ] THE COURT: Mr. Wyatt's bail was revoked on March 29 th -- [ 34 ] THE ACCUSED: Four years? [ 35 ] THE COURT: -- and today is March 31 st .

There will be credit for that time. [ 36 ] After the period of incarceration, it will be followed by an 18-month probation order with the following terms and conditions. [ 37 ] Keep the peace and be of good behaviour. [ 38 ] Appear before this court as and when required to do so. [ 39 ] You are to report in person within 72 business hours of your release to your probation officer located at Unit 208 - 350 Barlow Street, Quesnel, British Columbia, and thereafter when directed to do so.

However, all reporting shall be in person and shall be no less than one time per month in person at the minimum. [ 40 ] At your first reporting, you are to provide your probation officer with your residential address and telephone number, and do not change that without the prior written consent of your probation officer. [ 41 ] You are to have no contact directly or indirectly with Charles Redfern, Steve Burger and Breanna Small. [ 42 ] You are not to go within a one-block radius of any known, or may become known to you, residence, workplace, place of school and place of worship of Charles Redfern, Steve Burger and Breanna Small. [ 43 ] You shall enrol, attend and successfully complete to the satisfaction of your probation officer any and all such counselling and programs as you may be so directed.

However, it shall be required to include anger management counselling and forensic psychological counselling and assessments.

You are required to follow and abide by all the rules and regulations of such programs and assessments. [ 44 ] In addition, there will be added the Rogers order that you will take and maintain reasonable steps to maintain yourself in a condition that your mental health issues will not likely cause you to conduct yourself in a manner dangerous to yourself or to anyone else and it is not likely you will commit further offences. [ 45 ] After the completion of your first reporting, you will thereafter attend, as directed, from time to time for any and all forensic psychological evaluations for the purposes of receiving such medical counselling and treatment as may be required and recommended, except that you shall not be required to submit to any treatment or medication to which you do not consent.

If you do not consent to the form of medical treatment or medication which is prescribed or recommended, you shall forthwith report to your probation officer and thereafter report daily in person to your probation officer. [ 46 ] You shall provide your treating physician and all medical specialists with a copy of this order and the name, address and telephone number of your probation officer. [ 47 ] You shall instruct your treating physician that if you fail to take medication as prescribed by him or her, or fail to keep any appointment made with him or her, he or she is to advise your probation officer immediately of any and all such failings. [ 48 ] There will be a weapons prohibition.

There will be a knives' prohibition, save and except in the immediate preparation and consumption of food. [ 49 ] You shall surrender any firearm, crossbow, prohibited weapon, restricted weapon, imitation weapon, prohibited device,

ammunition, prohibited ammunition, explosive substance or all such things and any related authorizations, licences and registration certificates you possess to the Quesnel RCMP detachment within 72 hours of today's date with the assistance of your spouse and family members. [ 50 ] Forthwith upon your release from custody, you are to accompany a peace officer to the location of any firearm, prohibited weapon, restricted weapon, imitation weapon, prohibited device, ammunition, prohibited ammunition, explosive substance or all such things and to the location of any related authorizations, licences and registration certificates you possess and to surrender the said items to said peace officer. [ 51 ] There will be a stand-alone s. 109 weapons' prohibition for a ten-year period. [ 52 ] There will be a mandatory DNA order. [ 53 ] These are my reasons. (DISCUSSIONS) [ 54 ] THE COURT: He will serve an additional one day for the failure to pay the victim surcharge fine.

He is not going to pay it. [ 55 ] MR. MERRIGAN: I know, but could it be concurrent because otherwise if it goes from two less to two years, it goes federal. [ 56 ] THE COURT: Yes. [ 57 ] MR. MERRIGAN: Thank you. [ 58 ] THE COURT: Credit? Time credit? [ 59 ] MR. ANTONUK: He was taken into custody Wednesday, Thursday, Friday, that's three days at one-and-a-half credit, which I'm not opposed. That's four-and-a-half -- he should probably get the benefit of the half day. Six days of credit's forthcoming. [ 60 ] THE COURT: He gets six days credit, so two years, less one day, plus six days' credit. [ 61 ] MR.

ANTONUK: Thank you. [ 62 ] MR. MERRIGAN: Thank you, Your Honour. [ 63 ] THE COURT: Is the cash bail being marked? (SUBMISSIONS BY COUNSEL) [ 64 ] THE COURT: The cash bail will be revoked and marked for estreatment. This court has been abundantly patient with Mr. Wyatt's outbursts and, quite frankly, he should have been taken into custody at a significantly earlier period, or, alternatively, cited for contempt. The cash bail will be marked. (REASONS FOR SENTENCE CONCLUDED)