R. v. Richards Date:, 2016 BCPC 228

Citation: R. v. Richards Date: 20160331 2016 BCPC 228 File No: 209198-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. MATTHEW JEREMY RICHARDS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P.L. DOHERTY Counsel for the Crown: L. Dal Santo Counsel for the Accused: K. Westell Place of Hearing: Surrey , B.C. Date of Hearing: March 31, 2016 Date of Judgment: March 31, 2016

[ 1 ] THE COURT : These are my reasons for sentence for an aggravated assault committed on a 79-year-old man on January 15, 2015, contrary to s. 268(2) of the Criminal Code . [ 2 ] Mr. Richards entered a guilty plea before me on July 27, 2015 to one count of aggravated assault, and, on the recommendation of counsel, I ordered a Pre-Sentence Report, a Gladue Report and I ordered that the Pre- S entence Report contain a psychiatric assessment. The Gladue Report and the Pre-Sentence Report were prepared in time for the original sentencing hearing, but the psychological assessment was not prepared, because Mr.

Richards chose not to participate in the interview with the psychologist. It was unfortunate that I did not have the benefit of the psychological assessment at the time, because it may have gone some way to explain why Mr. Richards unravelled during the sentencing hearing which occurred in October of 2015. During the hearing and in response to a question I posed to counsel for Mr. Richards during her submissions, Mr.

Richards blurted out he should not have turned himself in on this offence, and he now knows better next time, the message to me being that he plans to commit more crimes, and he is going to do his best not to get caught. [ 3 ] We took the morning break, and then after the break, I indicated to counsel that I would like to think about this matter further and adjourn until the afternoon sitting. As Mr. Richards was being led out of the courtroom, he again showed his displeasure to the court and called me a "fucking goof". I decided to adjourn the proceedings until the next day to allow Mr.

Richards to gain control of himself. I also wanted to make sure that I did not let his disrespectful behaviour influence the sentence I was about to impose. However, his behaviour demonstrated a clear lack of insight into his offending behaviour, and demonstrated to me a clear lack of desire to truly rehabilitate himself. [ 4 ] The next day, Mr. Richards filed a written apology with the court. It is commendable he apologized, but the apology demonstrates a lack of insight into his offending behaviour.

For example, in the note he views a sentence of three years as a harsh sentence -- this is the sentence suggested by the Crown -- since it amounts to giving him a year for every punch he administered to the victim. [ 5 ] After the apology was filed, Mr. Richards decided to participate in the psychological assessment and the proceedings were adjourned so one could be prepared. However, after this appearance Mr. Richards' counsel applied to be removed as counsel of record. I granted this application. [ 6 ] Mr.

Richards made a number of interim appearances before today's date, on my estimate, 17, appearing on his own behalf on many. I was prepared to sentence Mr. Richards on this matter much earlier, but due to unavailability of his new counsel, it has taken until today to finally sentence Mr. Richards for this offence. I did indicate on a number of appearances my concern that Mr. Richards was wasting his time on remand, and that his sentencing should proceed forthwith. [ 7 ] I can say during many of these appearances that Mr. Richards was respectful and courteous to the court.

I now have the benefit of the psychological assessment for Mr. Richards, but I do note that he failed to fully cooperate with the report's preparation, and he declined to participate in the psychological testing component of the assessment. CIRCUMSTANCES OF THE OFFENCE: [ 8 ] On January 15, 2015, just before noon, the 79-year-old Mr. Singh was walking around his commercial property here in Surrey, British Columbia, and he saw Mr. Richards and a female on his property. Mr. Singh requested that the two leave. They refused. Mr. Richards told Mr. Singh to give him his wallet, and then shortly thereafter Mr.

Richards punched Mr. Singh several times in the face. As a result, Mr. Singh fell unconscious to the ground. [ 9 ] A police investigation was conducted, but before it was complete Mr. Richards turned himself in to the police. [ 10 ] Mr. Singh suffered a broken nose, a broken jaw and some displaced fractures of bones in his sinus area. He spent several days in the hospital. He suffers permanent partial hearing loss as a result of this assault. Mr.

Singh's injuries and their impact upon him are set out in the Pre-Sentence Report and the Victim Impact Statement which was filed by his daughter. [ 11 ] His daughter indicated in the Pre-Sentence Report at page 5, that this offence has totally changed her father, who was 79 at the time of the assault, and has impacted his whole family. She has observed a significant decline in him since the assault. Prior to the assault, he had retired from 50 years of driving a cab, and was actively taking care of several properties that he owned. He has since lost a lot of weight, and his personality has changed.

She believes that he will never be the same man he was before the assault. He is now angry, forgetful and fearful of his safety. He and his wife have always lived with one another, together with their daughter and son-in- law, but Ms. Fernandes notes he now fights with his wife and son-in-law, to the extent that he has been kicked out of the family home by his son-in-law. He bounces around between various properties that he owns, returning to his wife whenever his son-in-law is away. [ 12 ] Ms. Fernandes, his daughter, is a nurse and the first family member to see her father at the hospital after the assault.

She indicates that he suffered fractures to his jaw and sinus cavities, his nose was torn and pushed back so far that it could be lifted off his face. He had to be intubated at the hospital and placed in an induced coma for several days, because he was so frantic and agitated. Upon being taken out of the coma after about three days, Ms. Fernandes notes that he immediately began to yell that he was being killed, reliving the beating once again. He has also suffered repeated episodes of chest pain since then, requiring trips to the Emergency Ward.

His dentures were broken in the assault, and although replaced, they have never fit him properly due to the weight he has continued to lose. [ 13 ] The Victim Impact Statement, written by Ms. Fernandes, mentions that her father is forgetful, that he has pain in his facial area, he has hearing loss, and he is seeing an ENT specialist and his general practitioner on an ongoing basis. He has persistent bleeding through his nasal and oral passages, and he is suffering from psychological issues such as fear and depression as a result of this assault. POSITIONS OF THE PARTIES:

[ 14 ] The Crown suggests a sentence of three years is appropriate, but agrees that from the date of the offence to the time of sentencing – October of 2015, he should be credited at 1.5 to one for his time awaiting sentence. That was the Crown's submission in October. The Crown submitted that the protection of the public is paramount, given that the accused committed this offence of violence four hours after being released from custody. The Crown asks, as well, for a probationary term and usual orders for DNA samples and a firearms prohibition. [ 15 ] Counsel for Mr. Richards emphasizes that Mr.

Richards has taken responsibility for his actions by turning himself in to the police and by pleading guilty to the offence, which has saved the frail victim from having to testify. Mr. Richards also disagrees with the facts and says that the victim called him and the female "Indians" and pushed the female. It was at that point that he punched the victim two to five times and then left. [ 16 ] Counsel has emphasized Mr. Richards' First Nations heritage and his poor upbringing, and suggested that a sentence of 20 months less time served is appropriate.

She also emphasized his desire to rehabilitate and to enrol at Guthrie House, a program that is available to individuals serving a provincial sentence. [ 17 ] Dealing with the circumstances of Mr. Richards, I will quote from the Pre-Sentence Report. Mr. Richards is 27 years of age and his family was torn apart at a very early age. He was not in touch with his sister and other half-siblings. At page 2 of the report it says: Matthew's parents separated when he was six. He believes the relationship ended due to his father's substance abuse and physical abuse of his mother.

Matthew and his sister were apprehended by child protection authorities about three years later and placed into foster care. He understands that they were found to be in need of protection because his mother was using drugs and engaging in prostitution. He recalls living in five or six different foster homes over the next five years, separated from his sister. He was then placed in group homes from the age of 14 to 17. His sister was adopted at age nine. Matthew notes that he had some contact with her for several years but saw less of her as he got older.

He had not had any contact with her since about the age of 13 and believes that she currently resides in Red Deer, Alberta. Matthew advises that his contact with his mother has always been sporadic as she dealt with her own problems. He notes that her drug use continued to worsen as time went on and he recalls that she attempted suicide on several occasions. He last spoke with her by telephone about three years ago. She was living in Cold Lake, Alberta at the time. Matthew reports that he did not see his father between the ages of six and 21.

He also notes that his father had been physically abusive towards him, leaving the family and got caught up in his own problems after that. He had moved to B.C. at some point and was part of the reason Matthew chose to move to B.C. at age 21 in 2009. Matthew indicates that he and his girlfriend also had grown tired of Edmonton and her mother was living in British Columbia. He has continued to live in the Lower Mainland of British Columbia since 2009. His contact with his father has been very limited but he notes that they have occasionally run into each other on the streets of Vancouver.

Matthew began a relationship with Christie Yellowbird when he was 17. The first of their children was born in 2008 and was placed for adoption as an infant. Ms. Yellowbird moved to B.C. and Matthew and she had a second child, now age four. She has been in foster care since infancy but Matthew believes that Ms. Yellowbird's mother continues to fight for custody of her. Robin Yellowbird confirms that she continued to have contact with the child and hopes to gain custody of her.

Matthew has not seen either child since infancy. [ 18 ] Quoting later from the report: Matthew's first remand into custody in B.C. occurred in April 2011. He has since spent over 75 percent of his time in custody either on remand or serving a sentence. His times in the community have been brief, with the longest being about 11 weeks. More often he is in the community for very short terms, less than ten days. He has repeatedly been released on bail to a number of different recovery houses only to leave those residences within days.

He has now been remanded in custody since his arrest now before the court on January 16th, 2015. Matthew indicates his plan upon release is to travel back to the Downtown Eastside of Vancouver and try and find a shelter bed there. He notes that he has several friends there and would like to see them. When asked if he has any prosocial friends, he advised he had several and would try to get in touch with them upon his release. [ 19 ] The report also notes that Matthew has spent time in segregation due to past behavioural issues when in custody.

Custodial logs describe frequent behavioural difficulties, including inappropriate behaviour towards female staff. [ 20 ] As far as substance abuse, the report notes that he began smoking marihuana at the age of 14 or 15, but by 16 he was using crack cocaine, methamphetamines and drinking to excess. His drug of choice became heroin around the age of 21. It goes on to say, he later acknowledged that he consumed alcohol and used crystal meth on the day of this offence. [ 21 ] The Gladue Report, unlike the Pre-Sentence Report, portrays Mr. Richards in a more favourable light.

Some additional information was obtained from Mr. Richards during the preparation of this report. At page 3, Mr. Richards reported he was sexually abused when he was five years old. He said his father walked in when one of his male babysitters was playing with his privates, and his dad got so mad, he threw him off the balcony. [ 22 ] Ms. Yellowbird, who is the mother of his partner, said that Matthew does not even know who he is or where he belongs.

She explained the cycle that he was brought up in, including foster care, drug abuse and criminal history is a direct result from government sanctions that our aboriginal community families now have to suffer with. Robin said that she knows that Matthew has come from a rough background. She explained that she has met Matthew's parents over the years and knows that Matthew comes from a cycle of drug abuse. Robin said that Matthew has never been provided opportunities to succeed.

His parents were alcoholics and drug abusers from the time he was born and he is the result of a life lived in the system in foster care and group homes with no guidance, support or direction.

[ 23 ] In the report, Mr. Richards said that he would like to participate in a treatment program that will lead to long-term transitional housing. He explained that he needs to continuously work towards sobriety with people around him that have been through the same thing, and were able to support him. It is further stated that Mr. Richards is applying to a treatment program at Guthrie Therapeutic Centre which is described further below. His initial application was rejected, but he is reapplying. [ 24 ] I now have the benefit of a psychological assessment prepared by Dr. Stangeland regarding Mr. Richards.

I note that Mr. Richards was cooperative with the interviewing psychologist, although I note that Mr. Richards refused to participate in the psychological testing aspect of the assessment, though it was made clear to him that the testing was an important part of the assessment. It is clear that Mr. Richards was not prepared to acknowledge the degree of harm during the preparation of this report that he caused Mr. Singh. He told Dr.

Stangeland at page 3 of the report, and I quote from the report: This was particularly evident when he discussed his current offence and rationalized that he should not have been charged with aggravated assault because the incident was just like a street fight and the victim only got a broken nose. [ 25 ] The report goes on after an in-depth review of Mr. Richards' unfortunate history and says at page 9: When asked about the issue of anger, he admitted that he has a problem with his temper. He typically bottles up anger and then explodes and gets into trouble.

This happens once or twice a month, usually with strangers. His aggression might be triggered by something like someone giving him a dirty look or saying something that he feels is ignorant. [ 26 ] Mr. Richards' criminal history was summarized at page 6 of the Pre-Sentence Report. I note, beginning in 2005 he has an assault conviction, 2006 an assault with a weapon conviction, also in 2007 an assault conviction, also in that year a robbery conviction, as well as another assault conviction. In 2009, out of Alberta as well, he has an assault conviction.

In 2011 in Vancouver, he has an assault bodily harm conviction. In April of 2012, he has another assault causing bodily harm conviction. He was on probation for the previous assault at the time that assault occurred. On April 24, 2012, he has an assault conviction. On October 15, 2012, he has a robbery conviction. Interspersed there are property-related offences and breach charges. In September of 2013 out of Surrey, he has a threatening conviction. In August of 2014, he has an assault conviction.

He was on probation in December of 2014 when he had an uttering threat conviction, and placed on 12 months' probation for that offence, and it was four hours after his release from the 36-day jail sentence he received on the threatening charge that he committed the present offence. [ 27 ] Some of the offences were expanded upon in the psychological assessment. For example, in 2009 for one of the assaults that Mr. Richards was convicted of, he was told to leave a child protection facility. He grabbed the male worker there, and broke the worker's eye socket and jaw.

In September 2011, for the assault bodily harm conviction, Mr. Richards was involved in a fight with someone. Mr. Richards was intoxicated, someone intervened, and Mr. Richards struck that person, breaking his nose. In April of 2012, a man approached him who was under the influence of drugs, and was talking to Mr. Richards in gibberish. He told the man to leave, but the man did not do so, so Mr. Richards hit him and broke his nose. In October of 2012 in Surrey, Mr. Richards was convicted of robbery. He was drinking with his girlfriend, walking down the street with her and her other friends.

One of his friends got into a fight with a guy, knocked him down. Mr. Richards then took the fellow's wallet while he was on the ground and was very intoxicated at the time. [ 28 ] The

summary of the report says that: Based on all the information available I would be inclined to rate Matthew as presenting as a high risk for violence. He has a deeply- ingrained pattern of aggression that stems back to his childhood. It would appear that violence can be set off by any interpersonal conflict. His propensity to violence is exacerbated by substance abuse but it does not appear to be limited to states of intoxication. In

summary, Matthew is a high risk individual who is currently indicating a desire to bring about change in his life. While his intentions are good, one must also recognize that the prospects for change are not overly-encouraging and that any treatment intervention needs to be long-term and accompanied by firm consequences for non-compliance. THE LAW: [ 29 ] The Crown cited the case of R. v. D.S.K. , 64 W.C.B. (2d) 102 . Counsel for Mr. Richards cited R. v. H.S.L. , 2000 BCSC 1826 ; R. v. Chickekoo , 79 W.C.B. (2d) 66 ; R. v. Paquette , 2012 BCSC 1497 .

I have considered these decisions, as well as the Code sentencing provisions. I found the decision cited by the defence of R. v. Paquette as most helpful, and I will refer to it later in these reasons. However, I see the following Code provisions as most applicable to this matter. [ 30 ] Aggravated assault carries a maximum penalty of 14 years' imprisonment.

Section 718 describes the fundamental purposes of sentencing to be denouncing unlawful conduct, deterring the offender and others from committing like offences, and separating offenders from society where necessary, assisting in the rehabilitation of offenders and for promoting a sense of responsibility in offenders of the harm done to victims and to the community. [ 31 ]

Section 718.1 requires that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 32 ]

Section 718.2 provides: A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, . . . (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; . . . (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances . . . should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 33 ] I have determined the following aggravating and mitigating factors exist in this matter. AGGRAVATING FACTORS: [ 34 ] I find the prior criminal record of Mr. Richards for violence, coupled with the fact that he committed this offence while on probation four hours after having been released from jail to be an aggravating factor.

Secondly, the attack was on a defenceless, elderly man which caused devastating injuries to him. Thirdly, Mr. Richards minimizes his actions, such as claiming in his apology note to the court that he did not put Mr. Singh in a coma, it was the hospital that did. Also, Mr. Richards' comment that his outburst in court was due to his displeasure over his assessment that I wanted to give him a year for each punch administered to Ms. Singh. Also, his lack of insight in understanding his offending behaviour is further revealed when he described the violent assault as a street fight where he only broke Mr. Singh's nose.

MITIGATING FACTORS: [ 35 ] I find that his guilty plea at an early opportunity, and the fact that he turned himself in to the police before their investigation had focused on him, to be significant mitigating factors in this case. I also take into account that Mr. Richards has an aboriginal background through his father who is part Micmac. [ 36 ] Before turning to my reasons for sentence, I turn to the authority cited by the defence, R. v. Paquette . In Paquette the offender pled guilty to aggravated assault. Mr.

Paquette pursued a security guard at his residence, struck him on the back of his head, and kicked him into an unconscious state. The victim suffered skull fractures, ongoing neurological issues, and lost his employment as a result of the assault. Mr. Paquette was Métis who had been physically and sexually abused as a child, and who had a lengthy criminal record. Mr. Paquette came across poorly on his Pre-Sentence Report. The Crown sought a sentence of four to five years, the defence a sentence of two years less a day.

The case has a lot of similarities to our case, but there are two significant distinguishing factors, in my view. One is that Mr. Paquette had a gap of five years in his record before the offence occurred, though he was on bail at the time he committed it. Madam Justice Gropper, in imposing a sentence of two years plus probation for two years, held that Mr. Paquette would be better served within the resources provided by the Correctional Services of Canada. It is also of note that Madam Justice Gropper reminded us after citing R. v.

Ipeelee that the Gladue principles apply to serious offences such as aggravated assault. REASONS: [ 37 ] In accepting Mr. Richards' version of the offence, which of course I must, I find the assault on Mr. Singh to be a vicious and cruel attack on a defenceless, elderly man which resulted in devastating and long-lasting injuries to Mr. Singh. After considering all the information before me, I have concluded that a penitentiary sentence must be imposed for Mr. Richards. [ 38 ] I do accept and take into account Mr. Richards' unfortunate background and his aboriginal heritage.

With aboriginal persons I must take into account the devastating effects of colonialism, displacement of peoples, and the abuse that occurred of aboriginal people in residential schools. I take notice of how this history translates into lower educational attainment, lower incomes, higher substance abuse, and higher rates of incarceration for aboriginal peoples. Though Mr. Richards has little connection to his First Nations heritage, his own personal history does reflect the unfortunate effects of the past poor treatment of First Nations peoples generally.

His father, who is part Micmac, was abusive towards him but it is clear that his father had very little to do with Mr. Richards throughout his formative years. It appears that Mr. Richards' mother was far more involved and abusive to Mr. Richards during his formative years. His mother does not have a First Nations background. [ 39 ] Despite the somewhat tenuous connection of the mistreatment of First Nations persons in our society and Mr. Richards' background, I will take into account, as I have stated, his aboriginal background as a mitigating factor in sentence.

However, considering the totality of evidence before me, I am most concerned about Mr. Richards' propensity for extreme violence and his high risk that he will offend violently unless he receives comprehensive treatment while he is in prison. [ 40 ] Protection of the public from the violence of Mr. Richards is the primary factor to consider in determining the appropriate sentence for him. The clear message he conveyed to the court during his sentencing hearing was that he will offend violently again, and the next time he does so, he will not turn himself in to the police.

His past history confirms that he is a violent offender who has little regard for court orders. [ 41 ] I note that for this offence he was on probation for a violent offence, and had been in the community just four hours before he brutally assaulted Mr. Singh. It causes me great concern that he has continued to minimize the nature of this assault, and that he does not take full responsibility for his offending behaviour. This minimization has caused me to reject as credible his stated intention to rehabilitate himself. I view this assertion by him to be only a ploy to achieve a reduced sentence from the court.

I accept as accurate what he told the probation officer, which was that once released he will go and visit his friends on the Downtown Eastside and consume non-prescription drugs with them. [ 42 ] I also take into account the opinion of the psychologist, Dr. Stangeland, that Mr. Richards is a high risk to reoffend violently, and that his violence can be triggered by any type of conflict.

This has been his pattern of behaviour in the past including the present offence, and without significant intervention with him such as the integrated correctional program model offered by the federal correctional system, I see very little prospect that he will refrain from antisocial behaviour. [ 43 ] It is my view that the public has to be protected from Mr. Richards. My sentence must also emphasize denunciation for his violent conduct and his lack of insight into his offending behaviour. In my view, the sentence cited by the Crown is not adequate and Mr. Richards must receive a higher sentence.

However, I must take into account the mitigating factor of his guilty plea and the fact that he turned himself in. My sentence would be much higher if he had not done that and he did not have a First Nations background.

[ 44 ] In all the circumstances, I see a sentence of 39 months as appropriate. He must be given credit, however, for time served. His actual time spent awaiting sentence has been 441 days. Counsel agree, from the date of the offence to the date where the sentencing proceedings began, he should be credited at 1.5:1, and I agree with that assessment, so that amounts to 401 days credit. For the time from when the sentencing proceedings began until today's date, both counsel agree, and I agree, that he should be given credit at a 1:1 basis, and that equals 174 days.

So, he will be given a total credit for 575 days for time on remand awaiting sentence, which is just above 19 months. So, the sentence is 39 months, less credit for time served of 19 months, that leaves him 20 months on his sentence left to be served.

I realize that the remaining jail sentence of 20 months will result in a sentence served in a provincial facility, but my sentence must reflect some credit for the time he has spent in custody awaiting, and the less optimal provincial sentence is the end result. [ 45 ] I will make a strong recommendation that he serve his provincial sentence through the Guthrie House program or any other program that deals with First Nations offenders. [ 46 ] There will be a probation order for two years with the following conditions.

You are to report forthwith upon your release to a probation officer at 100-13545-64th Avenue in Surrey, B.C. and thereafter as directed. [ 47 ] You are to provide your residential address to the probation officer and not move from that location without the prior written consent of the probation officer. [ 48 ] I note in the report a curfew is recommended. I am not imposing a curfew, since this offence occurred in midday. I see no connection to the offence. [ 49 ] You will have no contact directly or indirectly with Mr.

Hankar Singh or any member of his family that is known to you. [ 50 ] You are not to attend within a two-block radius of 10600 block of King George Boulevard in Surrey, British Columbia unless you are travelling through that area on public transit, but you shall not exit such transit within that area. [ 51 ] You shall attend such substance abuse counselling and/or programming as directed by your probation officers, which may include a term of residential treatment if you consent to such treatment. [ 52 ] You shall attend such anger management counselling and programming as directed by a probation officer. [ 53 ] You shall not consume or have in your possession any alcohol or drugs that have not been prescribed for you by a physician. [ 54 ] There will be a victim fine surcharge.

I am ordering that he pay it today. If he does not pay it today, he will serve five days in jail concurrent to the sentence I just imposed. [ 55 ] There is a mandatory firearms prohibition pursuant to s. 109 of the Criminal Code and there is a mandatory DNA order that he provide a sample of his DNA to the authorities. He can do that while he is in custody. [ 56 ] Is there anything else, counsel? [ 57 ] MS. DAL SANTO: Your Honour, would you consider a no weapons term in the probation order? [ 58 ] THE COURT: Oh yes, that is not in the recommendations.

You will not have in your possession any weapons as defined by s. 2 of the Criminal Code including knives, except that you may possess knives for the purposes of preparing and consuming food. [ 59 ] MS. DAL SANTO: And the Crown directs a stay of proceedings on the 209199 Information. (REASONS FOR SENTENCE CONCLUDED)