R. v. Green Date:, 2018 BCPC 47

Citation: R. v. Green Date: 20180115 2018 BCPC 47 File No: 207864-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. KHOURI LAMAR GREEN ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. WOLF BAN ON PUBLICATION PURSUANT TO SECTIONS 486.4(2) OF THE CRIMINAL CODE Counsel for the Crown: M. Stacey Counsel for the Defendant: G. Lee Place of Hearing: Surrey , B.C. Date of Hearing: January 15, 2018

Date of Judgment: January 15, 2018 [ 1 ] These are the reasons for sentence in the matter of Khouri Lamar Green who is charged on Information 207864-2-C. There are two charges. The first is that he did break and enter a dwelling house situated on 76th Avenue in Surrey, British Columbia with the intention to commit theft, and that offence is contrary to s. 348(1) (

d) of the Criminal Code of Canada . The second count is contrary to s. 273(2) (

b) and, specifically, that count reads: Khouri Lamar Green, on or about the 30th day of July, 2013, at or near Surrey, in the Province of British Columba, committed aggravated sexual assault on [M.K.S.], contrary to Section 273(2) (

b) of the Criminal Code of Canada . [ 2 ] The Crown has proceeded by way of indictment and the matter was dealt with in a trial. Specifically, there were multiple days of trial and many of those days, the victim, Ms. S., was on the stand being cross-examined. [ 3 ] He was found guilty on both of those counts and extensive reasons with respect to those reasons for the decision have been made available to counsel and, if they are not currently published, I expect they will be published in time. There is a very detailed record as to the injuries that Ms.

S. suffered. [ 4 ] Briefly by way of introduction, the allegations have to do with on July 30, 2013, Mr. Green entering into the dwelling or the residence of Ms. S., either by accessing a window or coming in through a door, and while in that residence, waking Ms. S. from her sleep and committing aggravated sexual assault on her. There were allegations that were proven at trial of forced oral sex as well as forced vaginal sex. [ 5 ] In imposing this sentence, I am obliged to consider the effect on the complainant and while no actual victim impact statement has been formally filed, Ms.

S. has quite bravely stood in this court today and explained how the crime has affected her. She says in very clear terms that it has impacted her in an unimaginable way, that it changed her entire life, that her sense of safety and security has been stolen from her. She says that this will stay with her for her entire life. [ 6 ] She feels that she is responsible, but I pause to comment on what is obvious to everybody in this courtroom, that specifically she is not responsible for this offence. She is not responsible for the pain that has been caused on her or on the community.

There is only one individual solely responsible for the pain that Ms. S. has endured and that your community has endured and that even your own family has endured, Mr. Green, and that sole responsibility lies on your shoulders. [ 7 ] The circumstances of Mr. Green are found in a pre-sentencing report which has been file with the court. I note the sentencing report is a little bit older, but it is still, I believe, dated for 2017, but it was created for an alternative purpose. Specifically, it was created for a sentencing on an unrelated matter. [ 8 ] The report tells me that Ms. McTavish, that is Mr.

Green's mother, raised all her children with Christian morals. They attended church every day and that at some point in time, as time went on, Mr. Green fell in with the wrong crowd. [ 9 ] Mr. Green's ex-girlfriend describes Mr. Green in this way. Ms. Grewal suggests that the subject has good intentions and is a kind person but has been on the wrong path for some time and has held a very negative peer group. She adds he has tried to do the right thing by looking for legitimate employment but often has trouble due to his criminal record.

She states he often reacts to situations without much thought and does not consider the consequences of his actions until it is too late. [ 10 ] The report confirms that Mr. Green, while on the one hand, may have grown up in a loving environment with the support of his mother, he did suffer from racism and bullying throughout his life. [ 11 ] His criminal record is set out on page 4 and page 5 of the pre-sentencing report, and the pre-sentencing report talks about some of his family. And in this case, Mr. Green comes before the court with a supportive family, a loving and caring mother.

One letter from his brother. His brothers writes, that his older brother, that is Mr. Green, is a person that helped protect him, that guided him when he needed advice and direction. [ 12 ] Another letter from a family member, his sister Tiana Green, says that she always felt safe and comfort, and that he had a great sense of humour, which would make her happy when she was upset. [ 13 ] A very moving letter that has been tendered on his behalf comes from his brother who was 13 years old at the time of the writing and, basically, he describes Mr.

Green as being a best friend; and to use his younger brother's verbiage, he describes Mr. Green as "a good man". [ 14 ] There is also a letter from Marcia McTavish who described her son, his actions as being unlike Khouri's character, as he has always been a loving and kind-hearted person. [ 15 ] Crown counsel, in this case, seeks a sentence in the range of 12 to 14 years, coupled with appropriate orders such as DNA and lifetime weapons prohibitions. [ 16 ] Part of the rationale for the range being in the 12 to 14-year range is that Mr.

Green comes before the court with a fairly extensive record, and he has a prior break and enter on his record. As well, he was on probation at the time of the offence; and a more complicated factor that has been pointed out is that while on bail for this matter, he committed second degree murder, and that offence also had to do with breaking and entering.

And the submission, if I understand it correctly, is that while it is not appropriate to sentence him a second time for the murder matter, since he has already received a sentence, his behaviour can be considered with respect to the likelihood of rehabilitation; and on a second point, needs to be considered in the context of the protection of the public.

[17] Defence submits that a lower sentence is appropriate in the range of eight to nine years and submits, once more, that Mr. Greenhas positive features described by his family and submits that he is currently serving a life sentence and, realistically, no matter whatsentence is imposed today, there is a long road before Mr. Khouri is going to be out of the federal institution where he is serving his lifesentencing. [18] There were cases tendered and, as well, some written submissions by the Crown.

In my view, the cases are helpful to a certainextent, as they help me understand things such as an appropriate range. [19] The Crown is quite correct in paragraphs 1 and 2 of their written submissions, which were provided orally, with respect to thestatutory principles of sentencing.

Specifically that s. 718 of the Criminal Code sets out the following objectives in addressing thefundamental purposes of sentencing: denunciation; deterrence; to separate offenders from society when necessary; rehabilitation;reparation; to promote a sense of responsibility in offenders; and to acknowledge the harm done to the victims in the community. TheCrown also notes that the maximum sentence for the break and enter of a dwelling house under s. 348(

d) is life imprisonment, and themaximum sentence for aggravated sexual assault under s. 273(2) of the Criminal Code is also life in prison. [20] These are indicators to me that the crimes that Mr. Green has been found guilty of are considered some of the most seriouscrimes we have in our Criminal Code. It is quite true that when you are sentencing an individual, no matter what the crime, it is a veryindividualized process. There are circumstances of the offence that need to be considered and circumstances of the offender that need tobe considered. [21] I accept that the Court of Appeal in R. v.

D.A.W., 2002 BCCA 336, indicated a range when dealing with violent home invasions,and this is captured in paragraph 5 of the written submissions of the Crown, and I will repeat this paragraph here: The Court of Appeal recognized that violent home invasions were becoming more prevalent and stated that it must be clear that thosewho engage in this activity will face significant penalties.

As a result, the court stated that a range of eight to 12 years should beconsidered appropriate for violent invasions of residential premises that are occupied, although particularly egregious circumstances mayattract higher sentences. [22] There are any number of aggravating factors that the Crown submits are aggravating, and I agree with each of them. I will getto those in a moment. [23] There was a case which was not tendered, which I actually am the author of, that is from 2016, R. v. K.A.S., 2016 BCPC 401. The circumstances are similar, but I accept that no two cases are exactly the same.

In that case, an individual had come to the door of ahome in hopes to steal some gas, and there was a female in that home that he came across. He pushed his way in through the door,forced her to perform fellatio and then he sexually assaulted her by forcing intercourse on her.

There was some threatening languageused, and the victim was struck twice with that flashlight. [24] Again, acknowledging that all cases are different, the Crown in that particular case sought a sentence in the range of eight to 10years, and focused on the submission that general deterrence, specific deterrence and denunciation were the primary sentencingprinciples.

I find these sentencing principles to be the primary ones in this case as well. [25] The difference is in the K.A.S. case, the accused had actually pled guilty and saved the double victimization, if I can phrase itthat way, of the complainant by not putting her through a trial. There was remorse. [26] There were a number of authorities considered, and this battle of trying to find an appropriate range in the cases whereindividuals who have broken into homes and committed sexual assault has been ongoing since as long ago as 1984.

In 1984, there was acase and a range was set at a fairly low end, indicating approximately six to eight years, and in the case R. v. Barr, 1984 BCJ 2076,where a 24-year-old broke into the home of a young mother and forced intercourse on her at knifepoint, a seven year sentence wasimposed. [27] The appropriate principles again are captured in the Crown submissions, but also echoed in the K.A.S. decision at paragraph 23,quoting from R. v. Schultz, which is a 2008 Provincial Court of British Columbia decision of the Honourable Judge Dossa.

In R. v.Schultz, the victim in that case was sexually assaulted in her own home by the accused who was on a conditional sentence order at thetime and an undertaking to a peace officer on unrelated matters. And it is true in that case that Mr. Schultz had a prior conviction forsexual assault, and that was a distinguishing feature between Mr.

Schultz and the K.A.S. circumstances, but Judge Dossa's analysis of theappropriate legal principles make absolute sense and I apply them here. [28] Quoting from the Schultz decision at paragraph 24, Judge Dossa indicates that s. 718 of the Criminal Code sets out a number ofobjectives and at addressing the fundamental purposes of sentencing. These are denunciation, deterrence, protection of the public,rehabilitation, reparation, and promotion of a sense of responsibility in offenders and an acknowledgement of the harm done to victimsand community. And quoting at paragraph 25, the R. v.

C.A.M., 1996 decision found at 230 (SCC), at paragraph 82, JudgeDossa quotes: …the relative weight and importance of these multiple factors will frequently vary depending on the nature of the crime and thecircumstances of the offender. In the final analysis, the over arcing duty of a sentencing judge is to draw upon all the legitimateprinciples of sentencing to determine a “just and appropriate” sentence which reflects the gravity of the offence committed and the moralblameworthiness of the offender. And continuing on at paragraph 26, Judge Dossa writes:

Section 718.1 mandates that a sentence must be proportionate to the gravity of the offence and the degree of the responsibility of theoffender And once more in quoting C.A.M., discusses the Supreme Court of Canada and the concept of retribution from denunciation:

...noting that the former requires a judicial sentence to properly reflect the moral blameworthiness of the offender, while denunciation requires a judicial sentence to communicate society’s condemnation of the particular offender’s conduct. [ 29 ] Again, referring to R. v.

Cromwell , 2005 ABPC 279 , Judge Dossa finds that the appropriate sentencing principles that I need to consider are denunciation and deterrence, especially in the context of residential break and enters and sexual assaults. [ 30 ] I agree with Judge Dossa's decision found at paragraph 34 wherein she writes: The importance of the sanctity of one’s home is commented on by Saunders J.A. in R. v. Meigs , ... at para. 25 where submissions quoted that a woman’s home is her castle from the old adage that a man’s home is his castle.

The court agreed that it is a grave offence to enter another person’s home without permission and graver to enter the home and violate the occupant… [ 31 ] Judge Dossa considered a number of cases where the sentencing range was from four to 20 years and found that Mr. Schultz, in that case, was deserving of a seven year sentence. That was also a case that dealt with a guilty plea. [ 32 ] On the topic of a guilty plea, I comment in K.A.S. at paragraph 57 on guilty pleas, and the Crown conceded that the Crown takes into account guilty pleas as well. Guilty pleas are often misunderstood.

Where I write at paragraph 57 in the K.A.S. case is worth repeating to make my position clear on this. In that case I write: I have already taken into account the idea that a guilty plea can be considered an indicator of remorse. However, I believe a guilty plea deserves a special recognition as a mitigating factor. Without guilty pleas, criminal matters in our justice system would take a much longer time to conclude. Victims would have a less timely sense of closure. Accused individuals may not benefit from a timely trial. As well, as I mentioned, victims would be subject to cross-examination.

The taxpayer would also suffer great expense if all matters went to trial. And at paragraph 58 in K.A.S. , I write: It is my view that pleading guilty instead of having a trial should be considered a significant mitigating factor when determining an appropriate sentence. In this case, this matter was resolved by way of a trial. [ 33 ] In the K.A.S. case, the individual, I do not think, had a criminal record, and he received a sentence of seven years for the offence of breaking and entering and committing sexual assault.

Once more, that was a guilty plea. [ 34 ] With respect to the aggravating circumstances, I refer to paragraph 9 of the Crown's written submissions and confirm that I consider these points to be aggravating: that Mr. Green has a related and violent criminal record including an assault in 2010; a possession of stolen property under $5,000 in 2011; very related offence of break and enter in 2011; possession for the purpose of trafficking from 2012; a mischief from 2013; a possession of stolen property from 2015; and I note the murder conviction that stems from the unrelated incident in 2017.

As well as there are multiple breaches of court orders. Once more, he was on probation at the time of the offence and s. 348.1 mandates that, with respect to a dwelling, it is aggravated that the dwelling at the time was occupied by the victim. [ 35 ] I pause to comment, briefly, on the Johnson case which was suggested as an authority for the proposition that I may consider Mr. Green's post-offence conduct.

It is always complicated, I think, to take into account convictions that arise after the date of the incident, and I accept that I am able to consider it as a relevant factor in sentencing, as I would be guided by page 3 of that decision. [ 36 ] I am reluctant to put too much weight on the idea that he is serving a life sentence. With the greatest respect to the submission which is made by the Crown, found in their submissions at paragraph 15, wherein the Crown writes, "There are no mitigating factors in this case," I do not 100 percent agree. This is a young man before the court.

He has the great benefit of having supportive family. He has siblings which love him and care for him and a mother that also seems to love and care for him. Not everybody before these courts has that sort of family support so one day when he is out, back in the world, he is going to have a home or at least family that he can rely on and continue to support as time goes on. [ 37 ] What is particularly noteworthy is, once more, that this was not a guilty plea and thus he does not benefit from that concept of mitigation.

There has been no symbol or gesture of remorse by the entering of a guilty plea at an early stage. Equally, however, he should not be faulted for exercising his right to a fair trial. As hard as the trial is on the victims and as costly they are with respect to resources and time, he is entitled to be presumed innocent until he was found guilty by this court and he was entitled to have a fair trial and raise every defence on his own behalf. [ 38 ] I do consider his degree of moral culpability to be extremely high.

His moral blameworthiness is very very high. [ 39 ] In considering the principles of restraint and totality, having taken into consideration all the circumstances of this particular offender, as well as the aggravating and mitigating factors which also relate to this offence, I believe the appropriate sentence to be 12 years. [ 40 ] Certainly, the range suggested by the Crown of 12 to 14 years is reasonable, in my view, and 14 years would be a sentence which I would consider to be fit, taking into account his criminal record and the other details that I have mentioned in my reasons for judgment.

But, if anything, this young man who has family supports, whose family says that he is a good man, that he has good characteristics, deserves a slight benefit of the doubt and that is why I am choosing to go on the lower end of the range suggested by the Crown. [ 41 ] So the sentence imposed on both Counts 1 and Count 2 is 12 years’ imprisonment.

[ 42 ] There will also be ancillary orders pursuant to s. 487.051(1). There will be a DNA order granted. [ 43 ] As well, pursuant to 743.21(1), there will be a no contact condition with Ms. S. [ 44 ] There will also be a SOIRA order which is mandatory for a lifetime period. That is pursuant to s. 490.013(2)(b). [ 45 ] And there will be a lifetime firearms weapons prohibition imposed, and that is pursuant to s. 109(1)(a). [ 46 ] That concludes these reasons for sentence. (REASONS FOR JUDGMENT CONCLUDED)