R. v. Pogue Date:, 2016 BCPC 444

Citation: R. v. Pogue Date: 20161205 2016 BCPC 444 File No: 212836-3-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. CLAYTON POGUE ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D.R. GARDNER Counsel for the Crown: A. Lee Counsel for the Defendant: D. Karp Place of Hearing: Surrey , B.C. Date of Hearing: December 5, 2016 Date of Judgment: December 5, 2016

[ 1 ] The accused, Clayton Pogue, has pled guilty that on the 31st day of October 2015, in Delta, he did commit assault causing bodily harm to Nickolas Nolan Addison. The accused has pled guilty to Count 1 on Information, 212836-3-C. The Crown has set out the circumstances in some detail. I will not repeat all of them but I will attempt to summarize them briefly. [ 2 ] On that occasion, Alexis Dennis had a party at her residence. The accused attended that party. He went to high school with the majority of the people there. He had attended the party with his girlfriend and two other females.

During that party he lit fireworks on the enclosed outer balcony of the residence. Ms. Dennis confronted him while doing that, and during the course of that argument he was asked to leave, and he pushed Ms. Dennis away from him with two hands. Tanner Lyon, a friend of Ms. Dennis, observed this and, in turn, pushed the accused in retaliation. He then punched her in the shoulder. They yelled at him to leave the residence.

He initially resisted leaving because he wanted to get his girlfriend and, after some commotion at the front door, he did eventually leave. [ 3 ] The complainant, Nickolas Addison, came down the stairs to ensure that the accused had left. He went out the front door and after he did so, he saw Mr. Pogue in the driveway. Mr. Addison yelled at the accused, "If you're going to try pushing and hitting girls you might as well get the fuck outta here." Another female was yelling at the accused to leave. The complainant heard the accused call Ms.

Messermen (phonetic) a bitch and threatened her which upset, understandably, Mr. Addison, and the two of them were yelling back and forth at each other. They were in close proximity and the accused reached into his backpack and pulled out a knife. When he saw the knife, Mr. Addison said, "Are you actually pulling out a fucking knife?" The accused then grabbed Addison by the shoulder and stabbed him in the lower left abdomen with the knife and then left the area. He was chased after by a friend of Mr.

Addison's and the two of them got into a fist fight. [ 4 ] Emergency Services attended and took the victim to Royal Columbian Hospital in the early morning hours of November 1st. He suffered a traumatic wound to his abdominal area. In the simplest terms, the knife had punctured the abdominal wall and the stomach. Emergency surgery was required and he is left with two distinctive scars. [ 5 ] The Crown has asked the court to consider a sentence of 9 to 12 months.

The defence position is quite different from the Crown, asking the court to consider either a suspended sentence with probation or, in the alternative, a conditional sentence order which would allow him to serve his sentence in the community. [ 6 ] The Crown has pointed to a number of aggravating factors and has emphasized the need in this scenario for denunciation and general deterrence. The accused was carrying a knife to the party, although defence has pointed out that that was part of his costume that he wore to the Halloween party.

Another aggravating factor the Crown points to is that this was simply a house party with friends and he is the one that, through his behaviour, escalated this matter into a physical confrontation and, after stabbing the complainant, he fled the area. [ 7 ] The Crown acknowledges that he pled guilty and he has no criminal record. [ 8 ] Mr.

Karp, on behalf of his client, points out that it was simply a pocketknife that the accused was carrying that night as part of his costume, and says that his client is extremely remorseful and this has been very stressful, not only to the accused but to his family members as well. He was only 18 at the time, he is 19 now. He is living with his girlfriend. He was raised by a single mother. He has a Grade 12 education and is now working full-time for the City of Richmond as a garbage man.

He was actively involved in soccer as a youth and wishes to continue being involved in that sport either as a player or as a coach. I am told that his long-term goal is to become a plumber. [ 9 ] The Pre-Sentence Report has set out the difficulties he had with attention deficit disorder in public school and describes his client as being a shy, quiet individual who was never known to be violent. [ 10 ] Despite the time estimate of this sentencing being 30 minutes, I was referred to 14 separate cases. Obviously, I have not read them all.

I have reviewed them as defence counsel has made submissions to me. [ 11 ] I should point out that a number of letters have been written by family members and friends in support of both parties. The mother of the accused has written a letter pointing out that her son was raised by her, a single parent, for most of her early life until remarrying when the accused was nine. I quote from the letter: I know we had a difficult time growing up with his biological father only being in his life for short, sporadic periods.

Because his father was not around, Clayton built a strong relationship with his dad's brother Brian. When Clayton was 10, we were devastated by this uncle's sudden passing. She goes on to say: I know many people see this offence and view Clayton as a bad person but I am so proud of my son. I am proud of my son for handling this difficult and terrible situation with grace and maturity. Clayton has already made so much progress in his life and we want him to have the chance to continue bettering himself.

Clayton has my full support as well as the support of his entire family. [ 12 ] Other people have written letters in support of the accused and obviously say positive things about him and describe how this incident was out of character. [ 13 ] I also have victim impact statements from not only the complainant but from his parents as well. Understandably, they were significant traumatized by their son being stabbed at this party.

It is every parent's nightmare to receive a call in the middle of the night from Emergency Services telling them to come to their hospital because their child has been taken there by ambulance. Both parents set out just how traumatic this incident was, not only to them on that evening, but the trauma that they had to suffer through and the anxiety and the other complications that arose in their lives as a result of this incident.

[ 14 ] The victim in this matter has also submitted a letter talking about the trauma that he had to go through, at one time being told there was a possibility he may have to wear a colonoscopy bag for a year. He lost several weeks of work as a result of this injury, which is understandable.

He has hopes of being a firefighter in the future and really is concerned that his present physical condition may undermine his efforts to pursue that line of employment. [ 15 ] I will not read from all of these cases, but one case I think is particularly helpful to me today is the decision of Her Honour Judge Giardini in the Vancouver Provincial Court, in a case dated March 26, 2015, R. v. Teny.

In that case, she considered the principles of sentencing as set out in s. 718 of the Criminal Code which provides the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. That

section also sets out a number of objectives to be achieved by imposing a fit sentence.

Those objectives include, but are not limited to, denouncing unlawful conduct; general and specific deterrence; rehabilitation; promoting a sense of responsibility in offenders; an acknowledgment of the harm done to victims and to the community and, where necessary, separating offenders from society. [ 16 ] The fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 17 ] In addition to the fundamental principle, the sentencing judge must also take into consideration a number of other principles, including: (

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... [ 18 ] She considered the 742.1

section of the Criminal Code which provides that a sentencing judge may impose a conditional period of imprisonment if he or she is satisfied of a number of matters including the following: that serving the sentence in the community would not endanger the safety of the community and lastly, that the imposition of a conditional sentence is consistent with the fundamental principles of sentencing set out in the Code . [ 19 ] In that case, she was satisfied that the fundamental principles of sentencing that should be emphasized for a similar offence to the one at bar are deterrence and denunciation.

In saying that, I do not discount the importance of rehabilitation but, in all the circumstances, rehabilitation does not take an equal place in terms of importance to denunciation and deterrence. [ 20 ] I am dealing here with a young man that was stabbed. I am told the person that stabbed him was acting out of character. He may very well have been acting out of character but that does not diminish the fact that he stabbed someone. Not only did he stab somebody, he left the scene.

The consequences could have been far more serious than they were if not for the intervention of the medical community. [ 21 ] I have considered the circumstances of this case. I have considered the submissions made by Crown and defence. I have considered the very helpful Pre-Sentence Report. I have considered the relevant case law that I have been referred to and I have considered the sentencing provisions of the Criminal Code .

Having done all of that, I have concluded that a fit and proper sentence is 9 months imprisonment to be followed by 18 months of probation. [ 22 ] The terms of the probation are: He shall keep the peace and be of good behaviour. [ 23 ] He shall report to a probation officer within 72 hours of his release and thereafter as and when directed. [ 24 ] He shall advise his probation officer of his residential address and not change that address without prior written approval of his probation officer. [ 25 ] He shall attend for, participate in and successfully complete such counselling as directed by his probation officer. [ 26 ] He shall not possess any knife or knives outside of his residence except for the immediate preparation and consumption of food, or for purposes directly related to his lawful employment. [ 27 ] He shall not possess any weapons as defined in s. 2 of the Criminal Code . [ 28 ] He shall have no contact directly or indirectly with Tanner Lyon, Alexis Dennis, Nickolas Nolan Addison or Derek Usipiuk. [ 29 ] Furthermore, he shall provide a sample of his DNA for inclusion into the National DNA Databank. [ 30 ] Under s. 110 of the Criminal Code he is banned from possessing any firearm, ammunition or explosive substance for a period of five years. [ 31 ] The victim fine surcharge is payable forthwith.

In default one day concurrent. [ 32 ] Thank you, counsel, for your assistance. Is there something you wished to say? [ 33 ] MS. LEE: Yes, Your Honour. Just in terms of the no-contact order, I would ask if any member of his immediate family could also be included, and that's immediate family of Mr. Addison.

[ 34 ] THE COURT: I take it you are not opposed to that, Mr. Karp? [ 35 ] MR. KARP: No, Your Honour. [ 36 ] THE COURT: Yes. I will add that wording. [ 37 ] MS. LEE: And as well, Your Honour, if there could also be a condition that he not attend at any workplace, school or residence of Mr. Addison? [ 38 ] THE COURT: Yes. He shall not attend at the residence, school or workplace of any of those same people. (REASONS FOR SENTENCE CONCLUDED)