R. v. C.A.H. Date:, 2011 BCPC 311

Citation: R. v. C.A.H. Date: 20110923 2011 BCPC 0311 File No: 212150-3-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C. A. H. EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE F.E. HOWARD Counsel for the Crown: J. Verrier Counsel for the Defendant: G. Lee Place of Hearing: Vancouver , B.C. Date of Hearing: September 23, 2011 Date of Judgment: September 23, 2011 [ 1 ] THE COURT: This matter is for sentencing this afternoon. The accused has pled guilty to one count of aggravated assault of Lee Shane Reynolds.

THE OFFENCE [ 2 ] On the evening of February 20th, 2010, the accused was at the Space Lounge bar at 1149 Granville Street in Vancouver. He was with several friends including two females. For security purposes, the doorman of the lounge had taken possession of the accused's yellow razor blade knife (described by the accused as a box cutter) while the accused was in the bar.

The accused was in and out of the bar a number of times during the course of the evening. [ 3 ] On one of those occasions, he was outside of the bar with the above-noted females when he had a minor interaction with the complainant outside of the Resto Lounge, just up the street at 1115 Granville Street. The complainant was standing on the sidewalk outside the lounge with his friends. This was the second weekend of the Olympics. They were downtown to participate in the festivities. [ 4 ] While chatting with his friends, the complainant observed the accused yelling and cursing at the two females.

The accused's language was vulgar in the extreme. The complainant said to the accused, “Hey, there's no need for that.” The accused replied, “Do you

want to get involved?” The complainant responded, "No." He calmly repeated his earlier words, “There's no need for that.” The complainant turned back to chat with his friends. As he did so, he muttered the words "riff-raff" under his breath. [ 5 ] The accused then walked away, returning to the Space Lounge where he retrieved his box cutter from the doorman. With his hoodie up over his head, he walked back up the street towards the complainant and the latter's friends. He circled this group and then came up behind the complainant with the box cutter in his hand.

He quickly reached up and over the right shoulder of the complainant putting the blade to the far side of the complainant's neck. With one quick motion, he slashed the complainant's throat with the box cutter. This assault occurred just five to 10 minutes after the complainant had uttered the words "riff-raff." [ 6 ] The complainant went to the ground, bleeding profusely. The accused turned and ran away southbound on Granville Street. Two of the complainant's friends chased after him. Other pedestrians were able to assist the police in tracking down the accused. He was quickly apprehended on Granville Street.

With the police, he was belligerent and defiant. He had a slight odour of alcohol emanating from him, but his speech was not slurred. The weapon that the accused used was never located. THE INJURIES [ 7 ] The complainant was taken to the hospital by ambulance, arriving shortly after midnight. He underwent surgery. The cut to his throat stopped just short of hitting any major arteries or other vessels, although the muscles at the front of the complainant's neck were lacerated. Some 40 to 50 stitches were required after surgery.

The complainant was released from the hospital later in the afternoon on the following day. The complainant has been left with a thin, but very visible scar that runs from one side of his neck to the other, approximately two inches below his chin. VICTIM IMPACT STATEMENT [ 8 ] The complainant is an investment advisor. He had formerly been a police officer for five years in South Africa. He was 30 years old at the time of the assault. His most vivid memory is of his struggle to stay alive as he lay on the sidewalk, holding the wound in an effort to stem the flow of blood that was pouring from his neck.

He determined that there was no blood in his throat and he could breathe. He kept saying to himself over and over: All I need to do is breathe. If I can breathe, I'm going to live. So all I need to do is breathe, just breathe. [ 9 ] The physical scar is a constant reminder to the complainant of his desperate state of mind as he lay bleeding on the sidewalk. It is the first thing that he sees every morning when he gets up and looks in his bathroom mirror. In public, people frequently stare at his scar making him feel as if he has some kind of deformity.

When he meets with new clients, they often ask him what happened to his neck. He is forced to relive the event over and over again as he explains his injury. In his statement, the complainant noted: At times it seems as though nobody wants to let me forget about the assault. [ 10 ] For months after the stabbing, the complainant experienced intense headaches. He has undergone physiotherapy for help in alleviating these tension headaches. He has also had to go to trauma counselling to help him cope with what happened to him. He can no longer socialize as he did before.

He will not go into Downtown Vancouver after dark. [ 11 ] This event was also traumatic for the complainant's parents. They were told about the attack and pending surgery. Living in a foreign country, they could do nothing, but sit and wait to learn of their son's fate. Many of his friends, who were with him when he was attacked, also continue to “struggle with the gruesome images of seeing their friend's throat cut open and of him lying on the ground bleeding to death.” They watched as the complainant was driven away from the scene in the ambulance thinking that he was already dead.

THE ACCUSED [ 12 ] I have had the advantage of reading a number of presentence reports and psychiatric assessments regarding this young man. From these reports, I have gleaned the following information. The accused is a 23-year-old Hispanic male. When he was 6 years old, he moved from Mexico to Canada with his family. He became a Canadian citizen at the age of 12. His mother and two siblings, a sister and brother, live locally. His father died in 2007. He was murdered when on a trip to El Salvador.

The accused has been deeply affected by the loss of his father in this manner. [ 13 ] The accused has completed grade 10. He subsequently attempted several alternate school programs, but with little success. He attended the culinary arts program for high risk youth at the Cook Studio Café. However, he decided he had no interest in being a cook. His employment history is thin at best. It consists of some landscaping work and short jobs at Costco and Western Groceries.

At the time of the offence, he was unemployed. [ 14 ] By his own admission, the accused has been supporting himself by selling drugs since he was a teenager. He refers to his “crew” as if he was the ringleader of a group of drug dealers. He is attracted to the easy money. It is also apparent from the reports before me that the accused has a history of other behavioural problems, including a propensity for fighting. [ 15 ] When he was six years old, the accused was struck accidentally in the head by an object which caused a serious facial injury. He needed surgery to repair his nose and jaw.

In grade 7, he was the victim of a beating himself, during which he was stabbed in the leg. When he was 16 years old, he was in a car accident. This time he suffered a mild closed head injury, after which he required antidepressants and tranquilizer medications “to improve his symptoms of headache, dizziness, and abnormalities of mood and behaviour.” He is not on medication at the moment. [ 16 ] In his conversation with Dr. Bartel, the author of the most current psychiatric assessment, the accused reported that he started using marihuana as a young teenager.

He described himself as a "chronic pot-head" who uses marihuana to self-medicate. In the various reports before me, the accused has given inconsistent statements regarding his use of alcohol. However, he did describe himself to Dr.

Bartel as an “angry drunk.” He indicated that when intoxicated, things often "go bad." He also told Dr. Bartel that he "often experiences extreme states of anger" during which times "the risk of physical altercation is pretty high." [ 17 ] The accused's mother and sister remain supportive of him. Both believe the accused to be an essentially decent person. The accused also has a girlfriend with whom he has been involved for a number of years. She, too, remains supportive. [ 18 ] When discussing the current offence with Dr. Bartel, the accused acknowledged using foul language towards a lady friend.

He then took offence when the complainant pointed out that he should not be talking to a woman “like that.” The accused was unsure of why he responded so violently. He thought that he may have felt “disrespected and embarrassed” by what the victim had said. He went on to suggest to Dr. Bartel that his behaviour was "not like me," an assertion that on its face suggests that the accused may not have much insight into his own character.

CRIMINAL RECORD [ 19 ] The accused's youth court record is as follows: July 18th, 2002 PSP Over (an automobile) 12 Months probation February 11, 2004 Assault Causing Bodily Harm Possession of a Dangerous Weapon 12 Month ISSP (Intensive Supervision Program) 2 year firearm prohibition November 30, 2004 Possession of a Dangerous Weapon (a knife) 6 month ISSP In addition to the above, the accused has many, many convictions up to and including February 3rd, 2005, for failing to comply with the above Youth Court dispositions. [ 20 ] In his conversation with Dr.

Bartel, the accused explained that the February 2004 convictions were the result of his attempt to collect a drug debt. In an effort to scare the victim, he stabbed the latter several times with a knife. Dr. Bartel noted, “He recalls that after committing the assault, he believed the victim was dead.” [ 21 ] The possession of a dangerous weapon conviction in November 2004 arose from an offence committed in June 2004. The accused was in possession of a knife. The police arrested the accused at gunpoint.

Rather than complying with the police instructions to get on the ground, the accused faced them and, on three occasions, said, “Shoot me. Just shoot me. Shoot me.” He was just 17 years old at the time. [ 22 ] The accused's adult court history is a limited one: October 9th, 2007 Assault With a Weapon, Uttering threats to cause death or bodily harm. Absolute discharges. The circumstances surrounding these charges are unusual. On April 1st, 2007, the accused's father was murdered while on a holiday in his home country of El Salvador.

The accused's mother and sister were able to travel to El Salvador, but the accused and his brother could not. They did not have valid passports. The then 20-year-old accused and his brother were left behind. The accused was angry and frustrated by all of these events, which occurred shortly after he lost a friend, who had died of an aneurysm.

[ 23 ] During the next three days following the death of his father, the accused went to the family home where he did not live. Someone had let the family dog out of the house, adding to the accused's upset. In the family home, he threatened and then assaulted his sister's boyfriend with a belt. The next day, after repeated calls to his brother to go to the SPCA to look for the dog, which calls were unanswered, the accused went back to the home. He found his brother hiding in a closet. He held two knives to his brother's neck. He wanted to be driven to the SPCA. He uttered further threats towards his brother.

An uncle was in the home and called the police. [ 24 ] The accused was arrested and was remanded in custody. After spending 89 days in pre-trial detention, he was released on bail on July 12th, 2007. He was allowed to return home to live with his family. He did well in the family home. Notwithstanding his behaviour in early April, the accused's mother and siblings all got along well and lived peaceably together. The accused had found employment prior to the October sentencing. In the result, the sentencing judge granted absolute discharges. [ 25 ] Dr.

Brown prepared the psychological assessment for this 2007 court proceeding. She noted that the accused presented with “antisocial characteristics including criminal attitudes, low empathy, impulsivity, and behavioural instability.” She noted that, “Mr. C.A.H. must be considered a high risk for further violent offences.” THE NORTH FRASER PRE-TRIAL CENTRE RECORDS [ 26 ] The accused has been in pre-trial detention since his arrest on February 20th, 2010. In April 2011, he had been attending classes and working on assignments to complete Social Studies 11.

It is common ground that, more recently, he has not been putting much effort into these studies; however, as of September 2011, he has but one

chapter left to complete this course. [ 27 ] Following the original submissions on sentencing, the Crown applied to reopen and file the NFPC “Client Log” for the accused on the sentencing hearing. This Log contains brief and cryptic entries regarding the accused's behaviour and contacts with various prison guards and other staff from February 21st, 2010, to July 7th, 2011.

Crown counsel spent quite some time reviewing some of the entries in this document. [ 28 ] The Log indicates that in 2010, the accused was formally disciplined on three occasions, twice for unauthorized cell visitations (10 days segregation and five evenings of intermittent cell confinement, respectively), and once for possession of contraband, a PlayStation 2 (five evenings of intermittent cell confinement). [ 29 ] In 2011, he was formally disciplined on just one occasion. This action was taken in response to a report that he "appears to have assaulted" an inmate during an unauthorized cell visit.

The accused advises that he refused to plead to or participate in the hearing because he objected to the charges. In the end, he was found guilty only of unauthorized cell visitation. He received 15 days in segregation. [ 30 ] In addition to the above events, Crown counsel has directed me to a number of cautions that the accused received.

Again, the Log indicates that in 2010, the accused was cautioned about his behaviour in relation to five separate events: slipping his phone card under the door to another inmate; opening the slider of an ESP cell and talking through the door; walking in the common room area in his underwear; possession of an unauthorized laptop that he was using to listen to music; and once for not complying with a night-time cell confinement disposition. [ 31 ] In 2011, the accused received three cautions for "talking through the yard door." There was a fourth caution relating to a bad joke.

He had offered to give a "deal" to an officer to bring in "Proactive" acne medication. There was no formal disciplinary action. The investigating officer noted in the Log: “I made it clear to him that any sort of bribery, joking or not, is not acceptable.” [ 32 ] The above entries in the Log must be considered in context with all of the Log notes. There are well in excess of 250 entries on 22 pages spanning approximately 17 months. Most of the entries consist of quite innocuous observations of the accused's conduct: "spent time on phone;" "spent time cooking himself a meal;" "attended school;" et cetera.

Moreover, there are dozens and dozens of positive entries by a variety of prison guards noting that there were "no issues or concerns" about the accused’s behaviour, that he was "polite and respectful to the officers," that "he has good interactions with peers and is respectful to his staff," and that he "is very polite to unit staff and keeps a low profile on the unit". See, for example, the entry at 2011.01.09: Inmate is very polite and respectful to staff and fellow inmates. Inmate does associate with heavies on the unit, however, keeps to himself for a majority of his free time.

Inmate attends school regularly and appears to be doing well on the unit. No issues or concerns at this time. [ 33 ] There are also a number of entries in the Log suggesting that the accused was involved in or “appeared” to be involved in peer manipulation, that he was associating with known heavies, and that he was engaging in disruptive or possibly aggressive conduct. The Log does not contain supporting particulars that explain the nature of the conduct leading up to these entries.

I appreciate that from the perspective of the prison authorities, it is important to record and perhaps even act upon such concerns in order to effectively manage the accused and the inmate population generally, even though these reports may be based only on hearsay, rumour, or speculation. However, in determining a fit sentence for this accused, I am not prepared to treat vague and unsubstantiated allegations of this kind as aggravating circumstances, particularly when they are disputed by the accused. PSYCHIATRIC ASSESSMENTS [ 34 ] In his report, Dr.

Bartel has described the accused as pleasant and cooperative throughout the interview and the testing procedures. The cognitive function test indicated that the accused was of average to above-average intellect. [ 35 ] Dr. Bartel had access to a number of earlier assessments done for this accused, all of which indicated that he has experienced severe emotional and psychological difficulties since childhood.

The reports indicate a lengthy history of mental health involvement dating back to childhood when he was assessed during his grade 3 year. [ 36 ] At various times, the accused has been under the care of several psychiatrists beginning when he was 14 years old. In fact, at age

14, he was hospitalized on two occasions at Children's Hospital, once for panic-related attacks that coincided with the 9/11 terrorist attacks and, on another occasion, for an attempted suicide by overdosing on pills. There was a second suicide attempt in January 2004. I think that the accused's conduct towards the police during his arrest in July 2004 might qualify as a third attempt at “suicide by cop.” This was when he faced the police guns and yelled three times, "Just shoot me." [ 37 ] Dr.

Bartel found no evidence that the accused is suffering from a major mental illness either in the form of a major depressive or psychotic illness.

However, he did note that since childhood, the accused: ... appears to have had a chronic and lengthy history of mood instability that can variously involve intense feelings and expressions of anxiety, insecurity, depressed mood, and/or anger. [ 38 ] The accused himself reported “a tendency to become easily offended at seemingly innocuous comments or gestures towards him.” He indicated that "it is easy for him to feel disrespected which in turn leads to anger and perseveration [not likely a word used by the accused] about the intent of what the other was meaning." The doctor also noted that the accused displayed “several traits and markers consistent with antisocial personality disorder, i.e., a pervasive pattern of disregard for and violation of the rights of others.” [ 39 ] Regarding the accused's prior head injuries, Dr.

Bartel observed: Mr. C.A.H. also has a history of brain injury and, in the past, has attributed his mood swings and emotional instability to this. Neurological evaluation conducted several years ago found some evidence of brain and/or skull trauma, however, found that his functioning was normal. Furthermore, currently, Mr. C.A.H. does not link his mood instability or anger to brain trauma. [ 40 ] Dr.

Bartel concluded that the accused “presents at a high risk for serious violence.” He identified the risk factors: a history of violent behaviour; a criminal lifestyle, i.e., drug trafficking; substance abuse problems; early maladjustment; antisocial personality disorder; prior supervision failures; crime and violence-endorsing attitudes; impulsivity; and a history of unresponsiveness and lack of adherence to recommended treatments. REMORSE [ 41 ] As to his attitude towards the offence, in his conversation with Dr.

Bartel, the accused expressed “a great deal of remorse and empathy for the victim and the effects of his actions.” On this issue, Dr. Bartel made the following observation: It is difficult to determine whether these are genuine, however, as he has made similarly convincing statements of remorse and regret in response to past serious violence.

Regardless of the veracity of his statements of remorse and guilt, he does not appear to have made any changes in the manner in which he deals with conflict and has not altered or taken serious steps to control or lower his violence risk. [ 42 ] I pause here to note that, in my view, there is a difference between feeling remorseful about one’s conduct and being able to change one’s behaviour so as to avoid a repetition of such conduct. An individual may well have genuine feelings of remorse and regret and yet lack the necessary skills to be able to successfully alter his or her pattern of destructive behaviour.

The difficulty with this accused is that he has so far been unreceptive to interventions by professionals who could help him acquire the tools that he needs to deal with his insecure personality, his unstable mood swings, his anger, and his propensity for violent reaction. [ 43 ] In court, while the complainant read his own victim impact statement, I did note that the accused was very attentive and respectful throughout the reading. He appeared to be focusing intently on the complainant's words. [ 44 ] The accused also read his own letter of apology in court.

He began by asking permission to turn and address the complainant directly. He described his behaviour as "heinous, horrific, and cowardly." He acknowledged that his actions would haunt the complainant "in ways that I will probably never know." [ 45 ] In fact, the accused's apology was remarkably unconditional. Some excerpts: I believe I deserve to be punished and rightly so. I wish I could tell the court that I did not know any better, but that is not the case. I was raised by two hard-working loving parents who taught me right from wrong.

And later: I am deeply ashamed by my actions and, to my family, especially my mother, I am sorry I had to put her through all of this. You raised me better than this. THE SENTENCING POSITIONS [ 46 ] Crown counsel's position is that a jail sentence in the range of 10 to 12 years is required. Defence counsel is asking me to consider a jail sentence in the range of 5 years. THE LAW (

a) General Principles of Sentencing [ 47 ] In determining the appropriate sentence in this case, I must be guided by the sentencing principles set out ss. 718 to 718.2 of the Criminal Code .

Section 718 defines the fundamental purpose of sentencing, that being to impose a just sanction that has as its objectives: denunciation, specific and general deterrence, the protection of society, rehabilitation, reparations for the harm done, and promotion of a sense of responsibility in the offender.

Section 718.1 sets out the requirement that a sentence be proportionate to the seriousness of the offence and the moral culpability of the offender.

Section 718.2 requires the sentencing judge to consider a number of additional factors when relevant, including aggravating and mitigating circumstances that might affect the sentence. The principle of ‘parity in the sentencing process’ requires that "a sentence should be similar to sentences imposed on similar offenders for similar

offences committed in similar circumstances". See s. 718.2(

b) of the Code. [48] The sentencing process has been aptly summarized by Ryan J.A. in R. v. Koenders, 2007 BCCA 378 , [2007] B.C.J.1543 (BCCA) at paragraph 16: In any sentencing case the court imposing sentence will assess the seriousness of the offence in light of the aggravating and mitigatingcircumstances of both the offence and the offender. The assessment will largely determine which objectives the sentence should reflect,and the conclusion will assist the sentencing judge in determining, from an examination of the case law, the general range of sentencethat has been imposed in such cases.

Once that range is found, the sentencing judge, guided by the principles of proportionality, totality,disparity and restraint, will choose the actual sentence. [49] There is no question that the offence of aggravated assault is considered to be a most serious one. The gravity of the offence isreflected in the maximum penalty set by Parliament, this being 14 years imprisonment. The authorities are clear that the drivingprinciples behind any sentence for the crime of aggravated assault are deterrence, denunciation, and protection of the public. A term ofimprisonment is inevitable.

Still, rehabilitation of the offender remains an important sentencing principle that may affect the length ofthe jail sentence imposed, especially when dealing with a younger offender like the accused before me. (

b) The Sentencing Range [50] In support of her sentencing position, Crown counsel relies upon the decisions in R. v. Biln, 1999 BCCA 369; R. v. Willier, 2005BCCA 404; R. v. Hiscock, 2002 BCSC 1772; R. v. Wallin, 2003 BCSC 809; R. v. Humphrey, [2008] O.J. No. 208 (Ont. S.Ct.); and R. v.Woodward, 2010 BCPC 271, upheld on appeal at 2011 BCCA 251. Defence counsel has also cited the Biln and Woodward decisions, aswell as R. v. Suris, 2010 BCPC 287 , 2010 BCPC 0287; R. v.

Anderson, 2008 BCPC 4 , 2008 BCPC 0004; and R. v.Caulfield, 1999 BCCA 190 , 1999 BCCA 0190. [51] After reviewing the above decisions, I have concluded that the authorities simply do not support the range of sentence proposedby the Crown. Defence counsel has fairly pointed out that none of the cases cited by the Crown resulted in a sentence of 10 to 12 years. In fact, the longest sentence is actually 9 years. This was the sentence imposed in Wallin, supra. In this case, the accused was a 24-year-old male with significant psychiatric issues, but no criminal record.

He grabbed his female victim off a trail in Stanley Park and put herin a headlock. She fought back. During the struggle, the accused strangled his victim with the cord from her headphones. He let thecord go and continued to strangle her with his hands, rendering her unconscious. The victim was a talented and intelligent exchangestudent from Korea. Her injuries were catastrophic. She suffered a "diffuse severe anoxic brain injury." She remains in a "painfulspastic vegetative state" and has significant cortical blindness.

She requires full-time care for the rest of her life. [52] The next longest sentence imposed in the cases cited to me was 8 years imprisonment. This was the sentence in R. v. Hiscock,supra. The accused was a 24-year-old male with a youth record for theft, assault, and breach of probation. He had a brief adult recordwhich included a 'mischief over $5,000' conviction for which he received an effective sentence of two years less a day in jail. He wasback before the court on an aggravated assault charge. He had blindsided his victim, inflicting one blow to the back of the latter's head.

This blow had such force to it that it caused the victim to "fall like a log". He struck his head on the roadway. The assault left the victimwith “serious brain injuries, in a vegetative state, unable to care for himself, with no prospect of recovery and no prospect for quality oflife.” [53] The presiding justice in Hiscock, supra, Madam Justice Stromberg Stein, noted: [The victim's] ... injuries are so severe [that] he is alive but not living in any sense of the word; for all intents and purposes [he] waskilled ... warehoused in a body with a brain that does not function ...

She added that the victim's family has been "shattered and devastated physically, emotionally, and financially". (para. 17). During thesentence hearing, the Crown took the position that the range of sentence was 8 to 12 years. The learned justice rejected this submission,noting that this range "does not accord with the authorities relied on by the Crown which suggest that the range is six to eight years".(para. 4).

Given the catastrophic nature of the injuries suffered by the victim, the learned justice considered that a sentence of 8 yearsimprisonment was required. [54] An 8-year jail sentence was also imposed in the Humphrey case (supra). This accused was a 43-year-old male with an extensiverecord for property-related offences and a conviction for second degree murder. He was on parole for this murder conviction when hecommitted the aggravated assault before the court. During the assault, he stabbed the victim a number of times and sliced his throat witha folding knife.

The four-inch gash to the victim's neck stopped just short of the jugular vein, but it injured the aorta. There was also adeep puncture wound to his left chest. The injuries were described as life threatening. The victim actually went into cardiac arrest forsix to eight minutes during surgery. [55] In the Woodward case, supra, the court was dealing with a 37-year-old accused with but one prior conviction for drunk driving. This accused punched the victim in the face in a bar.

The blow itself was so hard that it knocked the victim out "on his feet." He fell tothe tile floor and suffered a catastrophic brain injury that left him incapable of caring for himself or ever again living independently. Thesentencing judge noted the excessive and unprovoked violence displayed by the accused, the seriousness of the injuries suffered by thevictim, and very importantly, “the virulent homophobia” that motivated the assault.

She imposed a 6-year jail sentence that was upheldon appeal. [56] The above decisions suggest that a sentence of six to eight or nine years imprisonment may be appropriate in cases where theconsequences of the assault for the victim are catastrophic. The matter before me does not fall into this category of cases. [57] I also note that the assault described in the Humphrey decision, supra, involved multiple knife wounds that resulted in life-threatening injuries.

It was clearly a far more vicious and protracted assault than the one before me; moreover, the offender had a moreserious criminal record (a conviction for second degree murder) than does the accused before me. It would be difficult for me to justifya 10 to 12-year sentence in the present case when the sentence in the Humphrey case was 8 years imprisonment.

[58] The remaining cases put before me suggest that the appropriate range of sentence for me to consider is actually two to six yearsimprisonment. I will begin by referring to the words of our court of appeal in R. v. Johnson, (1998) (BC CA), 131C.C.C. (3d) 274, a decision referred to in several of the decisions provided to me by counsel. In Johnson, the court of appeal upheld asentence of 5 years imprisonment for an aggravated assault. Without warning, the accused had pulled the victim from his vehicle andbeat him about the head with a baseball bat.

The injuries suffered by the victim are described at paragraph 4 of the appellate decision: aseverely fractured skull with a number of bone fragments; in intensive care for 15 days, and partially or fully comatose for ten days; alacerated kidney, fractured dental plate, and fractured rib; unable to talk and partial paralysis of the right side upon regainingconsciousness; took over six months under the tutelage of a speech therapist to learn how to talk again; continues to suffer grand malseizures which means that he cannot get a driver's licence; has lost the fine movements of his right hand; appears to be permanentlydisabled and unemployable.

At paragraph 10 of the decision, the court of appeal noted: Counsel referred us to numerous authorities of this Court which indicate that the range of sentence for similar offences is broad, and liesbetween 16 months' and six years' imprisonment. Sentences at the lower end of the range tend to be imposed in "fight" situations inwhich the altercation escalates and results in injuries to the victim.

Sentences at the higher end of the range tend to be imposed insituations where the victims are attacked with a weapon, without provocation and without any opportunity to defend themselves. [59] See also the following decisions: R. v. Biln, supra, (1999 B.C.C.A.) A 50 year old man with no prior record, twice struck the victim from behind on the back of the head with a crowbar and thenfled. The victim was left with serious permanent injuries. A 3 year jail sentence was upheld by the court of appeal, primarily because ofthe “severity of the violence” (para. 28).

At paragraph 24, McEachern, C.J. noted: In this case the global range, apart from the personal circumstances of the offender, is probably two years (less one day) to six yearsdepending on the degree of violence used in the commission of the offence, although it could be more than that in some extreme cases. R. v. Willier, supra, (2005 B.C.C.A.) Armed with a knife, this 24 year old accused burst into the apartment of his ex-wife at 1:00 a.m. He approached a friend of his ex-wife, aMr. Mathers, and stabbed him in the abdomen. He left the knife embedded in Mr.

Mathers’ abdomen and went after his ex-wife andinflicted a minor cut on the neck with a second knife. He returned to Mr. Mathers and slashed him across the face with the knife as thelatter attempted to flee. The wound to Mr. Mathers’ abdomen was life-threatening. The court of appeal noted, “His life was saved, but alarge portion of his large intestine had to be removed.” (para. 6). The accused’s youth court record spanned five years and includedbreak & enters and other property offences, and a conviction for assault with a weapon.

His adult record included a spousal assaultconviction and a subsequent conviction for uttering threats to kill or do bodily harm to his spouse. The psychiatric report indicated thatthe accused posed “a moderately high risk of future general violence.” In the end, the accused was convicted of 2 counts ofaggravated assault and a number of other related offences. The sentencing judge imposed a 5.5 year term of imprisonment for theaggravated assault of Mr. Mathers and lesser but concurrent sentences for the remaining offences. The court of appeal upheld thesesentences. R. v.

Suris, supra, (2010 B.C.P.C.) The accused used a knife with a 10” blade to threaten the victim. He inflicted several puncture wounds of a less serious nature. Theprovincial court judge affirmed the principle that “as a general proposition” the range of sentence for an aggravated assault is 2 to 6years. (para. 14) He imposed a 2 year jail sentence on this first-time offender. R. v. Anderson, supra, (2008 B.C.P.C.) During a drunken argument with the victim, the accused pulled out a knife and held it to the victim’s neck for a second or two. He thenpushed the blade into the victim’s throat.

He stated to the victim, “You’re going to bleed to death now and I’m going to jail for the restof my life.” He then fled. The victim’s trachea was not cut, but he had trouble breathing. He was treated at the hospital and released thenext day. The 54-year-old accused had a criminal record that included a conviction for uttering threats, and two convictions forpossession of a dangerous weapon. The latter conviction arose when he brandished a machete at a family who were camping near himon the beach. He was on probation for this latter weapons conviction when he committed this aggravated assault.

The psychologicalassessment indicated that the accused had a longstanding history of mood instability, alcohol abuse and antisocial personality traits. Inaddition to the history of aggressive behaviour, he was prone to loosing his temper and his self control especially in reaction to commentsthat he viewed as insulting. He was sentenced to 3.5 years in jail. R. v. Caulfield, supra (1999 B.C.C.A.) During an intoxicated argument, the accused pushed the victim off the balcony. He managed to save himself and climb back up. Theaccused again pushed him off the balcony.

This time the victim fell three stories and hit his head on a cement abutment. He wasrendered a paraplegic. The jail sentence of 3 years imposed by the sentencing judge was upheld by the court of appeal.

ANALYSIS [ 60 ] Although the above cases provide me with some guidance, I must in the end determine what is an appropriate sentence in the present case taking into account the nature of the offence before me and the personal circumstances of this particular accused. [ 61 ] As to the gravity of the offence, the aggravated assault committed by this accused can only be characterized as a very serious offence.

The accused intentionally slashed the complainant's throat inflicting a potential life-threatening wound. [ 62 ] With respect to the degree of moral culpability to be assigned to the accused for this offence, it must be at the high end. He willingly assaulted the complainant in a vicious and cowardly manner and he did so for no apparent reason other than the embarrassment that he experienced when he was publicly cautioned by the complainant about his vulgar behaviour towards a female friend.

AGGRAVATING AND MITIGATING CIRCUMSTANCES [ 63 ] The aggravating circumstances in this case as they relate to the offence and to the offender himself are as follows: 1. Although the accused's initial encounter with the complainant was by chance, his decision to assault the complainant with his box cutter showed a degree of premeditation. He had to retrieve his box cutter and then return to the complainant's location to affect his purpose. 2. The wound that the accused inflicted on the complainant was by no means accidental. It is obvious that he intentionally took aim at the complainant's throat. 3.

The assault was entirely unprovoked. 4. The effect of the assault upon the victim and his friends and family cannot be overstated. The victim, in particular, will be coping with the emotional trauma arising from this experience for many years to come, perhaps forever, given that the visible scar on his neck is a daily reminder to him of the attack that he endured. 5. The accused has a record for violence. His first violent offence, the intentional stabbing of an individual for the purpose of collecting a drug debt, is the one of most concern.

Still, even with this offence, I must take into consideration the fact that it occurred in 2004, some six years prior to the offence before me. The second incident involved intimidation of his family and the use of knives to threaten his brother. This incident is of less concern to me. The conduct occurred at a very difficult time in his life and followed within days of his father being murdered in El Salvador. He received absolute discharges from the court. Again, I am mindful of the fact that this latter incident occurred in 2007, three years prior to the assault with which I am dealing.

The above events, together with the 2004 conviction for possession of dangerous weapon and the current offence, do all reveal a disturbing tendency on the part of the accused to resort to the use of a knife as a weapon of choice when he does become combative. 6. Although never charged or convicted for his involvement in the drug trade, the accused has revealed that selling drugs has been a way of life for him for some time. It appears to be his way of making a living. In his discussions with the psychiatrist, the accused gave no indication that he was keen to give up this criminal lifestyle. 7.

The accused has a self-admitted marihuana habit. Describing himself as a pot head, he uses marihuana to self-medicate. 8. The psychiatric assessment by Dr. Bartel indicates that the accused has significant emotional issues and some antisocial personality traits that have plagued him since childhood. He is impulsive, quick to take offence, and quick to lose his temper. These issues remain unresolved and untreated. The accused has so far been unresponsive towards professional intervention designed to assist him with these issues.

In these circumstances, there is a high risk that the accused may resort to very serious violence in the future. [ 64 ] The mitigating factors in this case include the following: 1. The accused has accepted responsibility for his actions as evidenced by his guilty plea and his in-court apology. 2. The accused has expressed remorse for his actions. I am satisfied that his statements in this regard are genuine. Whether the accused is willing or able to take the steps needed to curb his impulses and avoid behaving in such a violent way in the future does remain an unanswered question. 3.

The accused is an intelligent and articulate young man, just 24 years of age. There is no reason why, with effort on his part, he cannot acquire an education and eventually make a decent life for himself. 4. Finally, it does not appear to me that this accused is so entrenched in a physically aggressive or confrontational lifestyle that he cannot be salvaged.

In fact, his appearances before the court for such assaultive behaviour have been sporadic, his last appearance being some three years prior to the assault with which I am dealing. [ 65 ] As to the rehabilitative prospects for this accused, I note that during the 17 months covered by the Pre-trial Centre Log filed by the Crown, the accused has been disciplined or cautioned only for minor infractions of prison rules. Obviously, these repeated infractions demonstrate an ongoing willingness to break the rules when it serves the accused's purpose.

This is a legitimate concern. [ 66 ] On the other hand, it would also appear from the Log that the accused has never been disciplined for fighting or other assaultive conduct. This might be viewed at least as a small accomplishment on his part, given that he is a short-tempered young man who has been locked up for some 19 months now in the very volatile environment that exists in our overcrowded Pre-trial Centre. In fact, there appears to have been only one occasion upon which the accused was observed to have even lost his temper, a surprising fact given the supposedly hot-tempered nature of his personality.

Here, I am referring to the entry at 2011.04.21 describing an incident when the accused became very angry over a laundry issue. He was missing some clothing and thought that the inmate in cell 30 might have been

involved. The Log note states: He became very angry and started screaming at the top of his lungs in the middle of the unit. He later came and apologized to this officer and reassured him that it would not happen again. [ 67 ] The above comments are intended to focus upon the issue of rehabilitation.

I appreciate that they must be tempered by a legitimate concern about whether this accused is prepared to put some effort into understanding the causes of his volatile behaviour and to participate in the types of programs and counselling sessions that would assist him in becoming a person who does not represent a danger to himself or others in the community. CONCLUSION [ 68 ] After reviewing the authorities, I am satisfied that the range of sentence for an aggravated assault of the kind before me is two to six years imprisonment.

There may well be cases that fall below or above this range depending on the unique circumstances of the offence or the offender. The case before me is not such a case. The catastrophic injuries present in those cases attracting jail sentences of six to nine years are not present here.

The criminal record of the accused is not so egregious as to take him above the range. [ 69 ] After taking into account the gravity of the aggravated assault committed by this accused, the personal circumstances of the accused, the aggravating and mitigating factors, the principles of sentencing, and the pertinent legal authorities, I am satisfied that a sentence in the top end of the range, five to six years, would be a just and appropriate sanction in this case.

In coming to this conclusion, I am particularly mindful of the violent nature of the attack upon the complainant and the accused's history for violence, albeit dated, and the ongoing risk of further violent behaviour by the accused. [ 70 ] The accused has been in pre-trial detention now for 19 months. He is entitled to double credit for this dead time. [ 71 ] Mr. C.A.H., the sentence is as follows: Time served plus two years imprisonment in a federal penitentiary. The record will reflect time served 19 months, time credited 38 months or three years and two months.

The total effective sentence is thus five years and two months imprisonment. [ 72 ] There is an advantage to fixing the remaining time to be served at precisely two years imprisonment. A lengthy probation order can be added to such a sentence. Such an order would not be possible if even one day was added to the two-year sentence. [ 73 ] It goes without saying that the protection of the public, a key sentencing objective at this hearing, is achieved not just through the imprisonment of the offender, but also through the rehabilitation of the offender.

In this case, a lengthy probation order will allow me to impose terms directed to the rehabilitative concerns and risk factors raised by Dr. Bartel in his assessment report.

Through the same probation order, the correctional authorities will be able to monitor the accused's behaviour in the community for a significant period of time following his release from jail. [ 74 ] The accused should be advised of the fact that further periods of incarceration are a distinct possibility, if not a certainty, should he found guilty of failing to abide by the terms and requirements of the probation order. [ 75 ] In this case, I am imposing a two-year probation order to follow the two-year jail sentence.

The terms of the probation order are as follows. [ 76 ] The accused is to report to a probation officer at 275 East Cordova Street or elsewhere as may be directed by a correctional officer, peace officer, or probation officer, within 72 hours of the expiry of the jail sentence and thereafter, as, when, and where directed by the probation officer. [ 77 ] He is to reside at a residential address approved of by the probation officer and he is not to change that address without the prior written approval of the probation officer. [ 78 ] At the direction of the probation officer, he is to attend at the Forensic Outpatient Clinic at 300-307 West Broadway, Vancouver, B.C., or such other mental health facility as may be directed for assessment, treatment, and counselling. [ 79 ] At the direction of the probation officer, he is to attend such other counselling as may be considered appropriate, including violence prevention counselling and life skills counselling. [ 80 ] At the direction of the probation officer, he is to attend counselling for substance abuse issues, including at a residential treatment centre if so directed. [ 81 ] At the direction of the probation officer, he is to attend a recognized education facility approved of by his probation officer.

He is to provide written verification of his enrolment at such an educational facility and his progress in his program of studies. [ 82 ] Alternatively, at the direction of the probation officer, he is to use all reasonable efforts to seek and maintain employment.

He is to provide written verification of these efforts to find employment and/or written verification of his actual employment status. [ 83 ] He is not to possess or consume any substances listed in the Food and Drug Act or the Controlled Substances Act unless he is in possession of a lawful prescription for the same. [ 84 ] He is to abstain absolutely from the consumption of alcohol. [ 85 ] He is not to attend inside any lounge, pub, bar, or other establishment whose primary purpose is the sale of alcoholic beverages. [ 86 ] He is not to possess any weapons as defined in the Criminal Code of Canada.

[ 87 ] He is not to possess any knives outside of his residence or place of lawful employment. [ 88 ] He is to have no contact direct or indirect with Lee Shane Reynolds. [ 89 ] I am also directing that he provide bodily samples in order to allow entry of his DNA profile into the DNA bank pursuant to s. 487.051(1) of the Criminal Code . [ 90 ] I am going to impose a mandatory prohibition order under s. 109(2) of the Code .

I am prohibiting you from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, or explosive substance for a period of 10 years. I am prohibiting you from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. [ 91 ] The accused is exempt on the surcharge. There will be no ability to pay, obviously. The probation order, do counsel have any suggestions about the terms or issues about the terms that I designed? [ 92 ] MS.

VERRIER: No, Your Honour, I have nothing further that I would be seeking. [ 93 ] MR. LEE: It is fine, no issues. [REASONS FOR SENTENCE CONCLUDED]