R. v. Badhesa Date:, 2018 BCPC 6

Citation: R. v. Badhesa Date: 20180111 2018 BCPC 6 File No: 215551-4-KC Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. SUKHVIR SINGH BADHESA REASONS FOR SENTENCE OF THE HONOURABLE JUDGE A. WOLF Counsel for the Crown: C. Pike; S. Hamade Counsel for the Defendant: T. Arbogast Place of Hearing: Surrey , B.C. Date of Hearing: October 11 and 12, 2017 Date of Judgment: January 11, 2018

INTRODUCTION [ 1 ] These are the reasons for sentence in this case where Mr. Sukhvir Singh Badhesa has pled guilty to killing his mother, Darshan Badhesa, by beating her to death with his hands and feet. He has also pled guilty to assaulting his wife, Piratpal Badhesa, and causing her bodily harm by whipping her with a USB computer cable. Both of these offences took place on March 20, 2016 in the family residence. Mr. Badhesa, his wife, his mother and daughters all lived together in this home.

CHARGES Information 215551 Count 1 Sukhvir Singh BADHESA, on or about the 20 th day of March, 2016, at or near Surrey, in the Province of British Columbia, did commit manslaughter of Darshan Badhesa, contrary to

Section 236 (

b) of the Criminal Code . Count 2 Sukhvir Singh BADHESA, on or about the 20 th day of March, 2016, at or near Surrey, in the Province of British Columbia, in committing assault of Piratpal Badhesa, did cause bodily harm to Piratpal Badhesa, contrary to

Section 267 (

b) of the Criminal Code . AGREED STATEMENT OF FACTS [ 2 ] I will paraphrase some of the details in the Agreed Statement of Facts. [ 3 ] The 39-year-old accused was living with his 35-year-old wife, 61-year-old mother, his 7-year-old daughter, and 1-year-old daughter. [ 4 ] The accused and his wife were married for two years prior to coming to Canada from India in 2006. His mother came to Canada to live with the family a little over a year before she was killed by her son. [ 5 ] For up to four days before the offences, the accused had been drinking excessive quantities of alcohol.

He had consumed vodka, scotch and beer. At the time of the offence he was highly intoxicated by alcohol. It also appears that he was smoking opium during this time period. [ 6 ] There does not appear to be a history of physical violence in the home. However, the accused was sometimes angry with his wife and called her names such as ‘dirty wife’ and ‘bitch’. The accused was also angry at his mother. He believed his mother had something to do with arranging his brother’s marriage into a bad family. [ 7 ] Something made him angry that day, and the accused’s wife tried to calm him down.

His temper flared and he punched a hole in a wall and broke some drinking glasses. But his anger did not stop there. [ 8 ] His wife and two children removed themselves from the situation by going to another floor of the residence. Eventually, the children went to bed. [ 9 ] It was then that the accused went upstairs and began whipping and hitting his wife all over her body with a USB computer cable. He also hit her with a shoe, punched her in the head and threatened to kill her. Supposedly his actions were because he thought ‘she was dirty and had ruined his name’.

At some point in time his daughters woke up and witnessed the whipping. One daughter described the whipping to the police as ‘putting the wire all over my mom’s body’. Photographs of the injuries suffered are gruesome, disturbing, and show what no doubt will be lifelong physical scars. [ 10 ] The accused’s own mother stood between him and his wife and tried to intervene by asking her son to ‘go lie down in his bed’. The accused pushed his mother aside and told her to move out of the way and to sit down.

Instead, she removed herself from the room and went to her bedroom. [ 11 ] The accused followed his mother to her bedroom and assaulted her using his fists and feet. He kicked his mother multiple times in the head, upper body and torso area. She died as a result of the blunt force injuries to her head. Paragraph 16 of the Agreed Statement of Facts detail her actual injuries found post mortem. 16. The principle blunt force injuries from the beating by Mr. Badhesa that were observed at the post-mortem examination of Darshan Badhesa were as follows: i.

Bruises that covered most of her face, scalp, left side of her neck and upper area of the right side of her neck; ii. Abrasions (skin scrapes) and lacerations (skin tears) on her scalp and face; iii. Many bruises on her lips and inner surface of her mouth with large and deep lacerations on the surfaces of her lower lips and front of the inner mouth surfaces and gums; iv. A left eyelid laceration and bleeding in her left eye; v. Under skin bleeding from her face and the large muscles on the left side of her neck and thyroid gland;

vi. Under skin bleeding from the scalp extending along her neck muscles at the back of her neck; vii. Subdural hemorrhage (bleeding under her scalp but outside the tissues that surround her brain); viii. Subarachnoid hemorrhage (bleeding between her brain and the tissues that surround her brain); ix. Intraventricular hemorrhage (bleeding inside the cavities of her brain that produce cerebrospinal fluid); x. Microscopic areas of brain tissue bleeding; xi.

A few neurons (brain cells) demonstrated changes compatible with recent damage and some of these damaged brain cells occurred in areas of the brain that regulate vital functions; xii. Abrasions and contusions of her torso with a left-sided predominance; xiii. Multiple inwardly displaced left rib fractures which caused internal tissue bleeding; xiv. Small bruises on her heart; and xv.

Several abrasions and contusions on her legs, hands and arms with a notable predominance on the left upper arm. [ 12 ] The accused’s daughter saw him with two knives, and while there were two knives found in his mother’s bedroom, there is no indication that he used the knives. But it does appear that at some point he was armed with two knives, a shoe, and the USB cable. [ 13 ] There are pictures of the accused’s mother. They are also horrific and disturbing. She suffered a terrible beating at the hands of her son.

After the accused’s wife and daughter both saw his mother lying on the floor and believed that she was dead, the two young girls managed to escape to the neighbour’s place. [ 14 ] The accused then returned to his wife and began hitting her again until she eventually was also able to flee to the neighbour’s place. [ 15 ] The accused banged on the neighbour’s door and yelled threats. Since the door was locked, the accused then tried to break in through a window. [ 16 ] The police arrived at the residence about 10 minutes after a 911 call. Upon arrival, they observed the accused yelling and banging on a door.

Only after being told he was under arrest did the accused eventually drop the USB cable that he was carrying. He was not compliant to commands and had to be tasered. POSITION OF THE PARTIES A. Crown Position [ 17 ] The Crown seeks a combined sentence of 13 years’ imprisonment. They submit that the appropriate sentence for the manslaughter charge is 12 years’ imprisonment and one year imprisonment for the assault causing bodily harm charge. They submit that the offences are distinct and separate and thus should be served consecutive to each other. B. Defence Position [ 18 ] The defence position was less specific.

Generally, it is submitted that it is open for the court to consider a sentence in the four- year range, deduct the time served, which is significant, and get a sentence in the provincial range of two years less a day. C. Intoxication versus Mental Illness [ 19 ] Both Crown and defence refer me to a number of aggravating and mitigating factors that they rely on to support their position. I will discuss some of these later in these reasons. However, I believe it is important to understand both the Crown and defence position regarding mental illness. [ 20 ] It is important to note that Dr.

Lamba provided the court with information with respect to the accused’s state of mental health. [ 21 ] The Crown argues that the accused’s moral blameworthiness is high and submits that the act of killing his mother is close to the ‘near murder’ side of moral culpability. They acknowledge that he may have some degree of mental illness. However, they do not agree that this factor justifies the imposition of a sentence in the range being sought by defence.

They further submit that one of the main reasons this crime was committed was because the accused was so severely intoxicated. [ 22 ] The defence argues that the accused suffers from a mental illness and submits that I must consider this factor. They submit that a proper consideration of mental illness will significantly lower the moral culpability of their client. They agree that intoxication probably played a role in the commission of this offence, but contend that without the mental illness, this crime may not have happened. WHAT IS NOT IN ISSUE [ 23 ] The facts are agreed upon. THE ISSUES

1. What is the range of sentence for manslaughter and assault causing bodily harm? 2. What are the mitigating and aggravating factors? THE LAW [24] The Honourable Judge Sutherland in the decision R. v. P.S., 2017 BCPC 173, has perfectly condensed some of the principles ofsentencing that I must consider. In that case, the accused was dealing with different offences but these principles are relevant to Mr.Badhesa’s case.

At paragraphs 23 through to 35 Judge Sutherland writes: THE PURPOSE AND PRINCIPLES OF SENTENCING [23] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful, and safe society by imposing just sanctions. This purpose is achieved by considering the objectives ofsentencing identified in s. 718(

a) of the Criminal Code, in the context of an offender’s personal circumstances, and the circumstances ofthe offence. In this process an assessment of the accused’s moral blameworthiness for the commission of the offences and a blending ofthe various objectives of sentencing to suit the individual case will take place. [24] The purpose and principles of sentencing take into account the needs of the community and the offender. In the end, the sentencemust balance these needs giving weight to some more than others, depending on all the circumstances of the individual case.

This is theblending referred to above. [25] In the present case, the Crown emphasizes concerns for deterrence, both general and specific, and denunciation, while the defenceacknowledges those concerns but reminds the court to ensure rehabilitative principles are not ignored. [26] Despite these various considerations and the balancing of objectives that must take place, the analytical process actually has anarrow focus. In the end, the court is to arrive at a sentence that is proportionate to the gravity of the offence and the offender’s degreeof responsibility.

Sentencing Objectives Requiring Emphasis [27] All of the objectives of sentencing remain important including rehabilitation; however, for serious offences of the nature theaccused committed, denunciation and general deterrence require emphasis (R. v. Thurairajah, 2008 ONCA 91 , [2008] O.J. No.460, paras. 41-42). This emphasis intensifies with the seriousness of the circumstances surrounding the offences (Thurairajah).

Giventhe accused’s circumstances as outlined above, specific deterrence also requires particular emphasis as does another objective, the needto separate the accused from society. [28] A brief description of the concepts behind some of these objectives is worth stating. (

i) Denunciation [29] The objective of denunciation is to communicate through the sentence society’s condemnation of an offender’s conduct (R. v.C.A.M., (SCC), [1996] 1 S.C.R. 500). (ii) General Deterrence [30] Deterrence operates in a general way. Those that would break the law must know, and law-abiding citizens must be assured, thatlaw-breakers will receive sentences which reflect the seriousness of their crimes (R. v.

Johnson (1996), (BC CA), 112C.C.C. (3d) 225 (B.C.C.A.)). (iii) Specific Deterrence [31] The duration of the sentence must be long enough to dissuade an offender from committing a repetition of the offence. Theimplication being that a repetition of the offence will result in another significant sentence. (iv) Retribution [32] Although not specifically mentioned as a principle of sentencing in s. 718 of the Criminal Code, Retribution is woven into theprinciples that are mentioned in that

section (C.A.M., at para. 79). Retribution in sentencing sanctions the moral culpability of anoffender, and thus, the moral blameworthiness of an offender is an important consideration in determining an appropriate sentence. [33] Retribution should not be confused, however, with vengeance which plays no role in sentencing.

Retribution was described thisway by Lamer, C.J., at para. 80 of C.A.M.: Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriatepunishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, theconsequential harm caused by the offender, and the normative character of the offender’s conduct. Furthermore, unlike vengeance,retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment and nothingmore. (

v) Separating Offenders from Society where Necessary [34] Where the offender’s circumstances lead to the conclusion that they present a danger to the public if out in the community, thenthey should be detained in custody for a period of time sufficient to reasonably conclude that the danger has subsided (R. v. Downey,[2010] O.J. No.1038).

(vi) Rehabilitation [35] A sentence must not eliminate all hope for an offender or any incentive for an offender to commit to their rehabilitation. Rehabilitation of an offender in custody involves programs designed to equip an offender with the ability to make productive and lawabiding choices when released. [25] I also wish to rely on Judge Sutherland’s words from R. v. Maan, 2016 BCPC 428, wherein at paragraphs 29 and 31 he makesgeneral comments with respect to the process of sentencing. In that case, the accused had killed someone while driving dangerously.

Once more, the facts of the case are not useful for our purposes, but I find great wisdom in Judge Sutherland’s sensitivity to the issues Imust be consider when a life is lost. General Comments [29] At the outset, I wish to make some comments about the complexity of the exercise the court must perform in sentencing anoffender such as Mr. Maan for dangerous driving causing death. [30] In a momentary but dangerous lack of judgment by Mr.

Maan, the Harjanti family, his own family, those that know them, and theircommunity, have been tragically changed. [31] A court must consider the purposes and principles of sentencing in ss. 718-718.2 of the Criminal Code, an offender’s personalcircumstances, and the circumstances of the offence in order to assess an offender’s moral blameworthiness for its commission. Thisassessment will guide the court to arrive at a sentence that is proportionate to the gravity of the offence and the offender’s degree ofresponsibility.

The process is individual to each case and each offender. [32] The purposes and principles of sentencing take into account the needs of the community and the offender. In the end, the sentencemust balance these needs, giving weight to some more than others, depending on all the circumstances of the individual case. As statedby Hicks J. in R. v.

Friesen, (unreported, December 15, 2011); Surrey Registry (B.C.P.C.), at para. 18: Sentences in cases like this usually involves the balancing of concerns the community has for deterrence both general and specific, anddenunciation, which often argue for a custodial sentence, balanced against rehabilitative and restorative principles which usually arguefor a sentence served in the community but with proper attention to acknowledgment of harm done and acceptance of responsibility. [33] From this, it is apparent that sentencing Mr.

Maan is a complex task. [34] The sentence I impose is not intended to replace the loss that has been suffered by the Harjanti family. Indeed, nothing will orcould replace that loss. [35] Further, the law cannot relieve the grief of the Harjanti family or the internal torment of Mr. Maan.

The law is simply not equippedto address those emotional consequences in a way that will ease the pain of those who have suffered from this tragic accident. [26] While the crimes the accused had pled guilty to in this case are not by any means ‘an accident’ as in the Maan case, certainly inthe taking of his mother’s life many people’s lives have been tragically changed because of this offence. This includes the accusedhimself, as well as his wife and two daughters. [27] I emphasize that sentencing is a highly individualized process that involves a balancing of many considerations.

Thecircumstances of the offence are only a starting point. Understanding the circumstances of the offender is equally important. I must alsoconsider all the aggravating and mitigating factors that will assist me in reaching a just, fair and fit sentence. CASES [28] There are rarely ever two cases exactly the same. Certainly, there are almost never two individuals with the exact samepersonal circumstances. However, both Crown and defence have submitted a number of authorities for the courts consideration. A.

Crown Authorities [29] I have reviewed all the authorities, but do not believe they all need to be addressed in these reasons. However, I will addresssome of them. [30] In R. v. Green, 2001 BCCA 672 , [2001] B.C.J. No. 2434 (C.A.), the 33 year old accused, with no record, stabbed hisfriend 37 times. The accused was high on drugs at the time of the offence – to the point that the trial judge accepted psychiatricevidence that he was in a drug-induced psychotic state at the time of the killing. Even though he had no memory of the incident, he wasremorseful.

The court upheld a seven-year sentence and found: Green’s violent behaviour severely encroached upon society’s basic code of values. The brutality of the killing merited a sentence in thehigher range. While he acted under the influence of a drug, deterrence and denunciation were the principal considerations. By usingcocaine, he embarked upon a highly irresponsible course of conduct. [31] R. v. Hicks, (BC CA), [1995] B.C.J. No. 545 (C.A.) is a case where the accused was found guilty of twocounts of manslaughter. While in a cocaine-induced psychotic state he stabbed two victims to death.

He received ten years’imprisonment. [32] In R. v. Lindsay, [1997] O.J. No. 5317, the 46-year-old accused smothered his mother with a pillow. He was remorseful andhad pled guilty. He received a 10-year sentence of imprisonment. The court commented that the killing of a parent by a child is a rareoccurrence. In imposing sentence, the court must express society’s outrage at this type of offence.

[33] R. v. McCormick, 2017 BCSC 145 , [2017] B.C.J. No. 139 is a case where the accused pled guilty to beating his 64-year-old mother to death while in a self-induced crystal methamphetamine psychosis. The attack was prolonged and severe. He had arelated record. He received a 12-year sentence of imprisonment. Assault Offences [34] R. v. Kaiser, [2001] B.C.J., No. 1798 (C.A.) is a case where an accused with a very related record for domestic violencereceived a sentence of four years’ imprisonment. In R. v. Goodings, [1991] B.C.J.

No. 2126 (C.A.), the accused was sentenced to 20months, plus three consecutive years for his repeated violence against women. In R. v. Julian, [1990] B.C.J. No. 2775, the BritishColumbia Court of Appeal upheld a three-year sentence for an assault causing bodily harm charge. That was a trial matter and theaccused had five prior convictions for assaulting his wife. [35] R. v. Bell, [1992] A.J. No. 495 is an Alberta Court of Appeal authority where the high court adjusted a sentence from two and ahalf years imprisonment to two years less a day, for an assault causing bodily harm offence.

The court described the assault as lengthy,brutal, and degrading, and that it occurred in the presence of the children. The accused was intoxicated and the wife indicated sheforgave the accused and wanted to reunite the family. Justice Stratton pointed out that the psychological effects on the victim andchildren cannot be fully measured. [36] R. v. Orozlo-Ovinones, [2004] B.C.J. No. 906 (C.A.) is a Vancouver decision that was upheld by the British Columbia Court ofAppeal where the accused received a 14-month jail sentence for whipping a woman with a belt. B. Defence Authorities [37] R. v.

Engebretsen, 2015 BCSC 1752 is a case where the Crown sought a four to six-year sentence for an accused who pledguilty to manslaughter. Defence sought a suspended sentence and probation. In that case, the accused had spent most of the daydrinking alcohol. While extremely drunk he “armed himself with a knife and stabbed his step son in the heart.” The court, at paragraph10, found that “unlawful homicide can range from deaths that are almost accidental…right up to just a touch shy of murder.” JusticeBaird concluded that the accused stabbing his step son was closer to the murder end of the spectrum.

Quoting the Green case, which Ihave mentioned under the Crown’s authorities

section at para. 10: [10] The maximum sentence for manslaughter is life imprisonment. It has been said that the range of sentence for this offence is from asuspended sentence to life imprisonment. I think, however, that most cases fall within the period of four to 15 years. A sentence belowor above that range is imposed only in a case involving special circumstances. [38] The accused was sentenced to four years. The court took into account he was 56 years old, that the crime was out of character,and that the accused quit drinking alcohol. [39] R. v.

Ispanovic, 2008 BCCA 270 is a case where the trial court essentially gave the accused a sentence amounting to eight yearsfor shooting and killing the victim. The accused was extremely intoxicated. At para. 16, the court referred to Chief Justice McEachern,in R. v. Gillies (1998), (BC CA), 107 BCAC 157, the range for manslaughter was described as being between 8 to 10years or more, explaining that the upper range usually involved torture, long records of violent offences, violence against a spouse,woman or child. [40] It was emphasized that a timely guilty plea was a factor that should be given significant weight.

At paragraph 20 the courtrelies on R. v. Randhawa, 2007 BCCA 598, for the proposition that “the early guilty plea spared the family and friends from theuncertainty of a trial, and his early assumption of responsibility” saved the expense of further proceedings, as well as indicated that theaccused accepted responsibility for his crime, a step towards rehabilitation. No criminal record was also relevant to the assessment offuture risk, and the fact that the accused was 71 also played a role. The court lowered the sentence to one of six years, minus timeserved. [41] In R. v.

Johnson, 2017 BCSC 1240, the accused stabbed a stranger with a knife. The court at paragraph 85 found that theaccused’s degree of responsibility or lower level of moral blameworthiness reduced by his alcohol consumption, amongst other things. He received a four-year sentence. [42] R. v. McCulloch, 2016 BCSC 2069 is a case where the accused stabbed the victim with a knife. The accused was an addict andreceived a sentence of six years. [43] At paragraph 37, the court sets out factors in R. v.

Stone, (SCC), [1999] 2 S.C.R. 290, where the court helps asentencing judge focus on some general considerations in attempting to come to an appropriate sentence. I may consider the choice ofweapon used, if any; the degree of force used; the extent of the victims injuries; the degree of brutality; the existence of any additionalgratuitous violence; the degree of deliberation involved; the extent to which the act reflected forethought of action or planning; thecomplexity of the act; what, if anything, provoked the act; the time taken to effect the act; and the element of chance involved in theresulting death. C.

Mental Illness [44] In my view, mental illness is too often misunderstood. Depression, if caught early and properly treated, can be a manageablecondition. Almost daily in these courts, I hear counsel refer to their client as ‘self-medicating’ with alcohol or non-prescription drugs. To me, this suggests that there is something medicinal about drinking alcohol to excess. In fact, common sensedemands that we recognize that those suffering from depression should stay away from alcohol. After all, alcohol is a depressant.

It ismy experience that many, if not most, crimes of violence in our court system have been committed while a person was under theinfluence of alcohol.

[45] Whether you or a family member suffer from any mental health issues, it is clear that we must work together and communicateas a family and a community. We must actively take steps to do anything we can to support professional, medical and mental healthinterventions. Failing to provide for those that suffer from mental illness will certainly lead to more unimaginable tragedies. (

i) Report of Dr. Rakesh Lamba, Forensic and General Psychiatry, Dated September 17, 2017 – The Psychiatric Assessmentof Mr. Badhesa [46] The report details that in June 2015, the accused’s brother died. At paragraph 13, Dr. Lamba writes: 13. Almost immediately after his brother’s death, Mr. Badesha [sic] became depressed and his symptoms progressed gradually worsenedover the following days and weeks. He felt sad and cried a lot. He would cry spontaneously and then cry more upon watching hismother cry. He felt lonely and broken inside. He felt very uneasy … would not be able to sleep … 14.

He reported that in response to the anxiety and panicky feelings he experienced, he started drinking alcohol. … … 16. He reported that a couple of days prior to the incident in which he was charged, one of his friends had taken him to a drug dealer andobtained a ball of what he believed was opium for $840. [47] Essentially he told Dr. Lamba that he vaguely remembered being arrested. He did not have any clear recollection of any of hisactions. [48] The report details his history of psychiatric illness. In 2007, he was on a psychotropic medication and he reported a familyhistory of psychiatric problems.

In short, Dr. Lamba concludes that Mr. Badhesa’s symptoms indicate an underlying serious mentaldisorder. [49] At page 11 of his report he writes: The instant offence is likely contributed jointly by the disinhibiting effects of depression of psychotic proportions and intoxication withalcohol. It is not possible to parse out the relative contribution of either factor, and the best one can say, is that these two factors had adeterminative effect in causing Mr.

Badesha [sic] to act out in an uncharacteristically violent act. … However, it is my opinion that Mr.Badesha [sic] would have been unlikely to act in the manner he did, absent the combination of psychotic depression and theintoxication/disinhibition from alcohol. [50] Dr. Lamba put his risk to re-offending at “Low”, commenting that depression associated with increased alcohol consumptionmay create a higher risk of violence, suggesting that the victims would be those immediately close to him. (ii) October 6, 2017 Pre-Sentencing Report [51] Mr.

Badhesa asserts that he “wants to serve his sentence, put this incident behind him and return to his family as his wife isstruggling financially and children are missing him.” [52] Under the heading “Attitude and Understanding Regarding Offence”, the accused states due to the offence and him beingabsent from the family home, his wife is having a difficult time, especially financially.

He states “we were living good family lifebefore.” With regards to how his children have been impacted by the offence, Sukhvir states “if (they have) good life in future, thenthey will forget.” He states upon his release from custody, he will ensure his children have a good life, so that is all they remember. Sukhvir states “what’s happened is happened.” He indicates he needs to move on and focus on having a good life in the future for hisfamily. [53] One issue in this case is how does the court deal with the concept of mental illness in the sentencing process?

There are twodecisions that I wish to acknowledge as helpful when attempting to answer this question. (iii) R. v. McConnell, 2014 BCSC 1743 [54] R. v. McConnell is a decision of Mr. Justice Romilly that I have found very useful in considering mental illness. It is a 2014decision from Prince George. In that case, the charge was an assault causing bodily harm and assault with a weapon. The details aside,Justice Romilly at paragraphs 8 through to 16 remind me again that every sentencing decision must reflect the applicable sentencingprecedents and principles and that sentencing is a highly individualized process.

The sentence must be fit, similar to sentences imposedon similar offenders for similar offences, and generally within the usual range set out by our Superior courts. [55] Most relevant to our case is Justice Romilly’s analysis of mental illness as a mitigating factor. At paragraph 20 he writes: Mental Illness of the Accused [20] In some cases, mental illness will be a mitigating factor, as it affects the moral blameworthiness of the offender. See, for example:R. v. Battise, 2009 ONCA 114 ; R. v. Brown (1972), (ON CA), 8 C.C.C. (2d) 13 (Ont. C.A.); R. v. Wallace(1973), (ON CA), 11 C.C.C. (2d) 95 (Ont. C.A.); R. v.

Valiquette (1990), (QC CA), 78 C.R. (3d)368 (Que. C.A.); R. v. D. (C.) (1990), (QC CA), 54 C.C.C. (3d) 161 (Que. C.A.); and R. v. Messervey (1991), 96Nfld. & P.E.I.R. 314 (Nfld. Prov. Ct.). In R. v. Shahnawaz (2000), (ON CA), 149 C.C.C. (3d) 97 (Ont. C.A.), theaccused was convicted on four counts of trafficking in one-and-a-half pounds of heroin. There was evidence that the accused sufferedfrom post-traumatic stress disorder and the trial judge held that imprisonment had and would probably have an “extreme effect” on theaccused.

In view of this, the appeal court imposed a sentence of six years for the offence after also taking into consideration the sevenmonths that the accused had already spent in custody awaiting sentence. In R. v. Marsman, 2007 NSCA 65 , a mentally ill

accused viciously assaulted a police officer. The court held that the sentencing judge erred in principle by overemphasizingrehabilitation. By concluding that denunciation and deterrence need not be stressed in the circumstances, the error was compounded. Asa result, the sentence imposed was clearly unreasonable. The court held that the principles of deterrence and denunciation could only beproperly addressed through a period of incarceration.

However, given the special circumstances of the offender, the court substituted aterm of two years less one day to be served in the community. [21] In order for a mental illness to be considered as a mitigating factor in sentencing, the offender must show a causal link between hisillness and his criminal conduct. That is, the illness is an underlying reason for his aberrant conduct: R. v. Robinson, [1974] O.J. No. 585(C.A.). In R. v.

Ellis, 2013 ONCA 739 , Strathy J.A. (as he then was), for the court, adopted this principle when he wrote: 116 The authorities, some of which were referred to by the trial judge, indicate that it is not enough to determine that the offender had amental illness at the time of the offence. The trial judge must also determine the extent to which that illness contributed to the conductin question and the impact of that finding on the appropriate sentence.

The trial judge will consider whether there a causal connectionbetween the offender's mental illness and the commission of the offence and, if so, whether it diminished the offender's culpability. 117 There is no doubt that an offender's mental illness is a factor to be taken into account in sentencing. Where mental illness plays arole in the commission of the offence, the offender's culpability may be diminished, punishment and deterrence may be ineffective orunnecessary and treatment and rehabilitation of the offender may be paramount considerations. As this court explained in R. v.

Batisse,2009 ONCA 114 , 93 O.R. (3d) 643, at para. 38: ... here the appellant's mental health problems played a central role in the commission of the offence. In such circumstances, deterrenceand punishment assume less importance. As this court emphasized in R. v. Robinson (1974), (ON CA), 19 C.C.C. (2d)193, at p. 197, where offenders commit offences while they are out of touch with reality due to mental illness, specific deterrence ismeaningless to them.

Further, general deterrence is unlikely to be achieved either since people with mental illnesses that contribute tothe commission of a crime will not usually be deterred by the punishment of others. As well, severe punishment is less appropriate incases of persons with mental illnesses since it would be disproportionate to the degree of responsibility of the offender. In suchcircumstances, the primary concern in sentencing shifts from deterrence to treatment as that is the best means of ensuring the protectionof the public and that the offending conduct is not repeated.

This is especially so where a lengthy prison term may be regarded ascounterproductive: see also R. v. Hiltermann (S.G.) (1993), (AB CA), 141 A.R. 223 (C.A.), and R. v. Peters (D.A.)(2000), 2000 NFCA 55 , 194 Nfld.& P.E.I.R 184 (Nfld. C.A.), at paras. 18-19. 118 In Batisse, Gillese J.A. found that the appellant's mental health issues played a central role in the commission of the offence. Shewas described as having serious mental health challenges, which were the product of "an atrocious childhood and an abusive earlyadulthood" (at para. 39).

The court found that these mental health challenges led to the commission of the offence. The appellant wasremorseful and pleaded guilty. 119 This court's decision in Davies, [(2005), (ON CA), 199 C.C.C. (3d) 389 (Ont.C.A.)] one of those considered bythe trial judge, also illustrates the point well. A crown attorney pleaded guilty to four offences involving fraud and breach of trust, twoof which related to the performance of his duties. He had a history of bipolar disorder and had been treated with medication for someseven years prior to the offences.

The sentencing judge concluded that his behaviour was not attributable to his mental illness andsentenced him to a total of two years less a day imprisonment. 120 In varying the sentence, this court concluded that the sentencing judge misconstrued the evidence concerning the relationshipbetween the offender's mental illness and the crimes he had committed and failed to consider certain other evidence.

Specifically, infinding the offender's medication was always in the therapeutic range, the sentencing judge ignored the uncontested evidence of one ofhis physicians that his medications were not sufficient to prevent a manic episode. Second, the same physician's opinion was that duringthe relevant time the offender was in an "uncontrolled state of hypomania" (at para. 30). In the circumstances, Blair J.A. substituted ablended sentence of twelve months less a day in custody plus a 12 month conditional sentence, to run consecutive with the term ofincarceration. 121 R. v.

Dickson, 2007 BCCA 561 , 228 C.C.C. (3d) 450, is another example. The appellant, a book-keeper, forged chequesfor her personal benefit. She had undiagnosed and untreated bipolar disorder at the time of the offence. Her psychiatrist opined thatthere was a direct causal connection between her mental illness and the commission of the offences. In allowing an appeal from asentence of twelve months' imprisonment, and substituting a conditional sentence, Finch C.J.B.C. stated, at para. 70: In my respectful opinion, a sentence of imprisonment is unfit in these circumstances.

It cannot be necessary in the interests of generaldeterrence for serious theft, to incarcerate someone who is mentally ill when the offences were committed, whose mental illness was acause of her committing the offences, who pleads guilty, who makes restitution, and who undertakes an appropriate course of medicaltreatment.

To the extent that public opinion is relevant to the principle of general deterrence, I am satisfied that reasonable citizensinformed of all the relevant circumstances in this case would consider that the provisions of the Criminal Code and the ends of justiceare met by a conditional sentencing order. [56] Justice Romilly also recognizes the consequences of the offence at paragraphs 23 to 25: CONSEQUENCES OF THE OFFENCE [23] In R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500 at 557-8, Lamer C.J.C suggested that the consequences of thecrime should be taken into consideration in imposing a sentence: … Retribution in a criminal context … represents an objective, reasoned and measured determination of an appropriate punishmentwhich properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, theconsequential harm caused by the offender and the normative character of the offender’s conduct. [Emphasis in original.] [24] In R. v.

Johnson (1996), (BC CA), 112 C.C.C. (3d) 225 (B.C.C.A.), Ryan J.A. at 237 interpreted the above

statement from the Supreme Court of Canada as follows: It is clear from this passage [the passage quoted from M. (C.A.)] that a determination of moral culpability, for purposes of sentencing,includes an examination of the intentional risks taken by the offender, the harm he or she has caused, and the degree of deviation fromacceptable standards of behaviour the conduct represents. [25] In R. v.

MacDonald, 2012 BCCA 155 , Madam Justice Smith, at para. 52, said: … there is nothing in the jurisprudence to support [the] submission that the extent of the injuries to a victim of an aggravated assault isdeterminative of where in the range of sentences the appropriate sentence should fall. While the extent of a victim’s injuries isundoubtedly a relevant factor, it is the circumstances of the assault, including whether the attack was unprovoked, planned orspontaneous, or involved a weapon, that are most relevant to where in the range a particular sentence should fall.

Thereafter, additionalaggravating or mitigating factors may increase or decrease the sentence. Fundamental to this balancing process is the overarchingprinciple that a sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender. [57] Justice Romilly found that the accused in McConnell was suffering from a type of mental illness at the time of the offence andtreated this illness as a mitigating factor, concluding that it affected his moral blameworthiness. (iv) R. v. Whitlock, 2017 BCSC 1998 [58] The second case that I found extremely helpful is R. v.

Whitlock 2017 BCSC 1998, which is a decision of the HonourableMadam Justice DeWitt-Van Oosten. The accused was found guilty of second degree murder in the beating death of his mother. Thevictim was killed at her residence. She received blunt force injuries to her face and head, amongst other injuries. The accused’s brothersfound her in the back yard, where she had been dragged down an outside stairwell and left on a cement patio. Justice DeWitt-VanOosten described the attack as a brutal assault.

As might be said in our case, the Whitlock case was described as “any family’s worstnightmare.” [59] The accused had a documented history of mental illness and was assessed as suffering from paranoid schizophrenia andsubstance misuse, specifically alcohol and marijuana use. In short, a well-known forensic psychiatrist concluded that the accused “haslikely suffered from symptoms of genuine psychotic illness for years prior to the death of his mother.” It is obvious that the accused haddelusional thoughts for quite some time before he killed his mother. He had a limited but disturbing and related record.

While incustody he was prescribed antipsychotic medication. [60] At paragraph 47, while referring to murder in that case, but equally applicable to our facts here, the court comments that “Allhomicide that is not justifiable is profoundly antisocial…the unlawful taking of a life is always an attack on the community and itsvalues, regardless of the circumstances.” The court then determined that the nature and extent of the injuries, the use of weapons, thefact that the victim was in a vulnerable position and unable to defend herself were all aggravating.

As well, leaving her on the patio to befound by others was aggravating. Further, specifically with reference to s. 718.2(iii), the court found perpetrating an offence against hismother involved a significant breach of trust. [61] In Whitlock, the accused failed to acknowledge the existence of a mental illness. Of course, in the case of Mr.

Badhesa, heknows that he has some degree of mental illness and is willing to seek some assistance from professionals. [62] In Whitlock the defence argued that the existence of the mental illness should be treated as a mitigating circumstance in that itsexistence mitigates the accused’s moral blameworthiness. This is the same argument that defence counsel makes on behalf of Mr.Badhesa. [63] The Crown’s position in Whitlock is found at paragraphs 61 through to 64. I repeat them here, as they are extremely similar tothe Crowns position in this case: [61] Relying on R. v.

McConnell, 2014 BCSC 1743 , at para. 21, and other cases, the Crown takes the position that beforemental illness can be considered a mitigating factor on sentencing, including the setting of parole ineligibility, the offender mustdemonstrate a clear "causal link" between the illness and the criminal conduct that underlay the offence. [62] In this case, a psychiatric assessment was conducted post-verdict. Although the outcome of the assessment confirms that Mr.Whitlock likely suffered from a mental illness at the time of the offence, the assessor was not able to conclude that this same illnessrendered Mr.

Whitlock incapable of appreciating the nature and quality of what he was doing when he killed his mother, or fromknowing that causing her death was morally wrong. As such, the Crown says there is no basis to find a relationship between BrianWhitlock's mental illness and the offence, sufficient to ground a claim of mitigation. [63] In my view, the Crown's approach is too narrow in scope. [64] As I read R. v. O.

V., 2016 BCCA 454 , at para. 8, the existence of a mental illness (or disorder) at the time of the offencecan reduce an offender's moral culpability at sentencing, even in the absence of a definitive causal nexus between the illness andcommission of the actus reus. The weight to be given to this factor is a matter for the Court to decide, as informed by the uniquefeatures of the case. [64] The court in Whitlock then made a finding that she was satisfied that at the very least, Mr. Whitlock’s mental condition “fuelledhis behaviour” on the night of the offence.

Starting at paragraph 81, she summarized the courts position: [81] Ms. Whitlock was the victim of a significant and sustained assault in her own home, using weapons and considerable force. Shewas then callously left on a cement patio in the back yard, only to be discovered by her youngest son who, because of the manner inwhich she had been placed, and the condition of her body, was not able to recognize her.

[82] This offence was committed by someone she loved and presumably trusted. Although Barbara Whitlock's relationship with her oldest son may not have been perfect, and, on the evidence, I accept there were times of tension, frustration and even anger between the two of them, she was Mr. Whitlock's main support. [83] By all accounts, she was the one person he could turn to when he believed that everyone else was against him. And yet, he brutally took her life. Through his actions, he has unquestionably devastated a family unit.

This includes his two younger brothers who three years after the fact, continue to struggle with the loss of their mother – a central figure in both of their lives. [84] Within the context of this case, the sentencing principles of denunciation and general deterrence are paramount. [ 65 ] The court determined that parole ineligibility period was to be for 12 years. I acknowledge that in imposing a sentence, I am not making a finding regarding parole. I also acknowledge that Mr. Whitlock was found guilty of murder, after a trial versus Mr.

Badhesa who has pled guilty to manslaughter. [ 66 ] Once more, with respect to Mr. Badhesa, according to Dr. Lamba, there were likely two factors that contributed to the crimes committed by Mr. Badhesa, and they were his state of depression and his state of intoxication. This conclusion must be tempered with Dr. Lamba’s oral testimony where he made it clear that he could not say with any degree of certainty what Mr. Badhesa’s mental state was at the time of the offence. But it is clear that he had a history of depression.

Since the time of the killing of his mother, the accused has received treatment for his mental health while in custody and appears to be mentally stable. Of course he is sad and remorseful. But he is mentally sound and fit. 9.

SUMMARY OF MITIGATING FACTORS [ 67 ] I find that there is likely a connection between his mental state and the crime. I believe Mr. Badhesa must be given the benefit of a doubt as to whether his state of mental health played a role in the killing of his mother. Therefore, I find that his mental illness both at the time of the offence and since the offence is a mitigating factor. However, I conclude that this factor does not significantly lessen his moral blameworthiness. [ 68 ] Another significant factor is his remorse.

It is obvious that he is extremely saddened by the tragedy that he is solely responsible for. [ 69 ] His guilty plea has saved the expense of a trial and the further trauma to his wife who would have probably had to testify. His children, while very young, would no doubt have been negatively impacted by a trial as well. [ 70 ] In considering his wife’s victim impact information, I appreciate that she takes the position that she is willing to wait for the accused to serve his sentence. I understand she wants the marriage to continue.

She envisions a future when she and her husband can take the remains of his mother back to India to the holy river. I do not consider her ability to forgive as particularly mitigating. However, the fact that the accused has supportive family in the community might be considered a mitigating factor. There are letters of support from other community members showing that he generally has a good reputation in the community. 10.

SUMMARY OF AGGRAVATING FACTORS [ 71 ] Mr. Badhesa’s crimes were brutal. He drank to excess over the course of days, smoked opium, and deprived himself of nutrition and sleep for a prolonged time period. His personal antecedents are somewhat unique, in that he has a criminal record for being in possession of drugs for the purpose of trafficking. What his limited record shows is that he received a three-month intermittent jail sentence and 18 months’ probation for a drug offence.

In total, for approximately two years, he had an opportunity to benefit from the deterrent effect of a jail sentence and a rehabilitative order of probation. [ 72 ] With respect to the assault causing bodily harm, he picked up a USB cable and whipped his wife continuously with it. This USB cable was his weapon of choice. With respect to her injuries, she is physically, mentally, and spiritually scarred for life. This act was done in front of his children, which I find is extremely aggravating. This act was done in front of his own mother.

It is statutorily aggravating that he abused his spouse. [ 73 ] Domestic violence is a profound problem and the sentence must denounce such offences in clear terms and attempt to deter its recurrence. Both the accused and all other men need to know that the courts treat domestic violence seriously. [ 74 ] He killed his mother. She was a new immigrant to Canada and lived with him. He was the sole financial provider to the household and thus, in my view, in a position of trust and authority.

Much like the Whitlock case, his mother was the victim of a significant and sustained assault in her own home, using weapons and considerable force. She was then callously left in her room, only to be discovered by his eldest daughter. Once more, I find the fact that his children were exposed to this violence extremely aggravating. Again, as in Whitlock , this offence was committed by someone she loved and trusted. Through his actions, he has unquestionably devastated the family unit.

I apply Justice Van-Oosten’s conclusion from the Whitlock case that the sentencing principles of denunciation and general deterrence are paramount. 11. CONCLUSION [ 75 ] The facts of this case are serious. I also find that the accused’s moral blameworthiness is high. Clearly, to me the principles of denunciation, general and specific deterrence are paramount. I accept the range for manslaughter and assault causing bodily harm is extremely broad, as I have examined above. I appreciate that the two offences for which the accused is being sentenced happened during the same time frame.

However, I find that the crime committed on his mother and his wife are distinct from each other. I am mindful of the provisions of the Criminal Code that guide the decision as to whether sentences should be consecutive or concurrent. In this case, I find the sentences should be consecutive. [ 76 ] In balancing the competing sentencing values, considering the totality of the circumstances of this offence and this offender,

while I believe the Crown’s position of twelve years for the crime of killing his mother and one year for whipping his wife to the point of causing her significant bodily harm is reasonable, I believe it should be adjusted to 11-and-a-half years, taking into account his state of mental health and the principle of restraint. [ 77 ] In considering the principle of restraint and the sentence in its totality, I have put my mind to whether serving such a lengthy sentence would be unduly harsh on the accused due to any mental illness that he might suffer.

Based on the evidence I have heard, I do not believe that the sentence would be unduly harsh. [ 78 ] Mr. Badhesa, you are sentenced to ten years’ imprisonment for the crime of manslaughter. Specifically, for the killing of your mother Darshan Badhesa. [ 79 ] Further, you are sentenced to eighteen months’ imprisonment for the crime of committing an assault on your wife, Piratpal Badhesa, and in committing this assault, causing her bodily harm.

I appreciate the Crown has only sought twelve months for this crime, and have acknowledged that I find that position to be reasonable, but in my view, I believe an 18-month sentence is more appropriate for the crime of whipping your wife in the manner described, even in the situation where you have pled guilty to the offence, versus after a trial. [ 80 ] These sentences are to be served consecutive to each other. Thus, you are sentenced to 11-and-one-half years’ imprisonment. [ 81 ] Mr.

Badhesa will be credited with his pre-sentence custody on an enhanced basis. [ 82 ] There will be a DNA order requiring the accused to provide the authorities with a sample of his DNA. There will also be a lifetime firearms prohibition. The Honourable Judge A. Wolf Provincial Court of British Columbia