R. v. Thompson Date:, 2017 BCPC 336

Citation: R. v. Thompson Date: 20170829 2017 BCPC 336 File No: 215686-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. MARCUS ROBERT THOMPSON ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P. DOHM Counsel for the Crown: S. Rail Counsel for the Accused: D. Melville Place of Hearing: Surrey , B.C. Date of Sentence: August 29, 2017 [ 1 ] THE COURT: Following a brief trial the accused, Marcus Thompson, was found guilty of committing the aggravated assault

[ 1 ] THE COURT: Following a brief trial the accused, Marcus Thompson, was found guilty of committing the aggravated assault of Kwon Yan Tsui and possessing a weapon for a purpose dangerous to the public peace or for the purpose of committing an offence. The trial was brief because the accused admitted the facts of the Crown's case. He then sought and obtained an assessment towards pursuing a verdict of not criminally responsible on account of mental disorder (NCRMD). When the assessment provided no support for such a finding, the accused did not dispute convictions being recorded for these two offences.

He is now before the court for sentencing. [ 2 ] The circumstances are most disturbing and alarming. [ 3 ] On the evening of March 22nd, 2016, 59-year old Mr. Tsui was walking from his residence to meet one of his daughters at a nearby bus stop. He heard someone running up behind him and immediately felt pain in the back of his arm. The accused had stabbed him with a large butcher knife. Further multiple stabs by the accused ensued, causing penetrating wounds to both Mr. Tsui's arms and his upper back and his chest. The accused then ran away. [ 4 ] Mr.

Tsui was somehow miraculously able to walk a short distance to a gas station where he met his daughter who called 9-1-1 for assistance. Mr. Tsui was in critical condition due to the massive blood loss he suffered as a result of being stabbed. One of the first responders applied tourniquets to both of his arms and seals to the wounds on his chest and upper back. [ 5 ] En route to the hospital, Mr. Tsui's heart stopped beating due to the extensive blood loss he suffered. Paramedics administered drugs and performed CPR for 10 to 15 minutes in an effort to try and save Mr.

Tsui's life. [ 6 ] He was still in cardiac arrest when he arrived at the hospital where a team of doctors immediately began treating him. He had to be intubated because he could not breathe. Large amounts of blood and plasma had to be pumped into his body to replace the blood he had lost. [ 7 ] During the surgery that immediately followed, Mr. Tsui almost died because he could not be ventilated and his body was not oxygenating properly. Mucous filling his lungs had to be removed and chest tubes inserted to help ventilate him. The surgery doctors determined the damage to Mr.

Tsui's left arm caused by the stabbings included the transection of the biceps and left forearm muscle which flexes the forearm at the elbow, as well as the cutting of the median nerve, other veins and the major vessel artery of the upper arm. This latter cut was approximately 10 centimetres long and a vein harvested from Mr. Tsui's leg had to be inserted into his arm to repair this injury. The radial artery in his right forearm had to be ligated with clips and sutures and the other stab wounds to his body had to be stapled or sutured shut. The surgery was interrupted because Mr.

Tsui went into full-blown, acute respiratory distress syndrome due to the difficulties with his oxygenation. A special machine was used, after a tube was inserted into his jugular vein, to pump and oxygenate his blood outside his body so that his heart and lungs could rest. [ 8 ] In the days following the surgery, it was determined Mr. Tsui developed shocked liver and acute tubular necrosis of his kidney due to a lack of oxygen resulting from insufficient blood flow. [ 9 ] While in the hospital, Mr.

Tsui had to undergo another lengthy surgery, included in which, was an attempt to repair nerve damage in both his arms using nerve graphs. [ 10 ] During the month Mr. Tsui spent in the hospital, he also suffered renal failure that required dialysis, a gastrointestinal bleed and prolonged delirium. [ 11 ] Mr. Tsui has been very significantly impacted by the accused's crimes. Due to the injuries to his arms and hands, he was not able to return to his previous occupation, nor is he able to obtain employment in the future.

He is also not able to do all the many handyman tasks he used to perform around the home and for his family. He relies on their assistance "for everything in day-to-day life, from getting snacks and pouring a glass of water, to switching on a lamp or opening a door." Sometimes he wakes up in the middle of the night due to the cold, painful feelings in his fingers. Every morning it takes an hour for him to feel some relief from the pain and stiffness he wakes up with in his arms and fingers.

His whole body has slowed down and he feels considerably less of himself and useless because he cannot provide for his family, and relies on them for continuous assistance. He feels sorry for his family and feels his daughters' fear when they hug him every night. The loss of employment has generated financial concerns including the need to pay bills and the funding for his treatment needs not being discontinued. [ 12 ] Mr. Tsui's wife has also significantly suffered from the accused's conduct.

In her statement she says, "Everything about (her) life - from daily routines to leisurely activities - has changed" because of it. She has not been able to return to work as a babysitter to earn an income, nor to continue all her activities because she has to care for her husband. They rely on the Victim Assistance Program and their children for financial support. She cries very easily and has attended counselling to deal with the emotional impact of this crime. She does not let her husband go out by himself, and she worries about the safety of all the family when they are out in the community.

When they do walk around in their community, they take items with them for protection. [ 13 ] Two of their three daughters also provided victim impact statements expressing similar concerns about their lost sense of security and safety in their community.

They also describe the changes they have had to make in their own lives, as well as having to deal with their emotional struggles arising especially from seeing their parents' extensive suffering. [ 14 ] I was informed that the third daughter, the one who found her badly injured father at the gas station, was not able to provide a victim impact statement or attend these proceedings because of the difficulty she is having dealing with the impact of this crime. [ 15 ] What is abundantly clear from the information provided is that this family, most particularly Mr.

Tsui and his wife, have significantly suffered physically, emotionally and financially from the accused's criminal conduct and they will continue to do so for the rest of their lives. [ 16 ] I turn to the accused. He is 21 years old. He did not graduate from high school but he has been taking courses while incarcerated since committing these offences in order to satisfy his GED requirements. He has minimal employment experience and was on Income Assistance and Persons With Disability coverage in the months prior to his incarceration.

[ 17 ] His parents separated when he was a very small child and he has only had minimal contact with his father over the years. However, he has had two stepfathers in his life, the first for about one year when the accused was around two years old and the second for approximately five years beginning when the accused was age 13. He says he recalls his first stepfather as violent and abusive but he reports a good relationship with the second one. He acquired two younger step-siblings out of these relationships. [ 18 ] The accused resided with his mother until he was 18 years old.

He had a positive relationship with her from his early childhood through to his early teenage years. After that their relationship began to deteriorate, resulting in frequent arguing but never physical altercations or abuse. Around 2012, the accused began to threaten her and his step-siblings, resulting in his mother hiding knives out of fear of him acting out on these threats. [ 19 ] In 2014, when the accused was 18, he heard a rumour that his mother was involved in prostitution.

To ascertain if there was any truth to this rumour, the accused propositioned his mother, offering to have sex with her if she would forego his rent payment. In response, she ordered him to leave the home and not return. She immediately changed the locks on the residence due to a threatening comment the accused made about harming his stepbrother. Later that evening the accused returned to the home armed with four knives. He tried to break in and expressed his intention to kill family members. When the police were called he left but was apprehended a short distance away.

He said he had planned to kill his stepbrother in front of his mother and then kill his mother, after which, he was going to kill himself or have the police do it for him. He also said that he would have fulfilled his intentions if his mother had not changed the locks. [ 20 ] The accused was apprehended under the Mental Health Act and remained in custody until he pled guilty to an uttering threats charge for which he was credited with 30 days jail and placed on probation for a period of one year.

He has not had any contact with his mother or siblings since he uttered the threat, which is the extent of his criminal record. [ 21 ] In February of 2016 he was served with a family protection order his mother had obtained prohibiting him from having any contact with his family. [ 22 ] Following his release from custody, the accused lived in a group home for several months before being removed due to an argument with other residents.

His journal from this residence contained "disturbing entries about murder and torture and a list of 13 identified females" (Pre-Sentence Report (PSR), p. 3). [ 23 ] After the group home, the accused moved in with an elementary school friend and another acquaintance. He continued to live with them until his arrest.

It appears alcohol and controlled substances, particularly marihuana and cocaine, were consumed in this residence, although the accused presently advises counselling and treatment in this area are not required as substance abuse for him is "not an issue" (PSR, p. 4). [ 24 ] The accused only identified one possible positive support in the community. That is a female friend he met at a short-stay treatment residence back in 2014 or 2015.

They kept in touch upon their departure from this residence but that contact slowly diminished, particularly once the accused moved in with the two men he was residing with at the time he committed these offences. She has not been in contact with him since his arrest but she has expressed an interest in having contact with him in the future. [ 25 ] The accused was arrested by the police a short distance and time after he stabbed Mr. Tsui. In his extensive interactions with the police that followed, he claimed to have little or no memory of what he had done to Mr.

Tsui and attempted to blame his "demons" and "voices" for his conduct. This behaviour formed the basis for seeking the NCRMD finding. The accused continued this behaviour with the doctors conducting the assessments including, during one of the interviews, pointing to the corner of the room where no person was present but telling the doctor, "Can you just tell him to shut up, please.

He's really annoying!" [ 26 ] The accused advocated that he suffered a multiple personality disorder but the doctors found no evidence to support a diagnosis of a psychotic disorder, nor any other major mental health disorders. [ 27 ] In his interviews with the author of the Pre-Sentence Report and with Dr. David Wiebe, one of the doctors who conducted the NCRMD assessment, as well as the Pre-Sentence Psychological Evaluation, the accused readily admitted that all his earlier behaviour was fabricated in order to try and obtain an NCRMD finding.

He also acknowledged that he had fabricated symptoms in the past with other mental health professionals "in order to garner attention, explaining that attention gives him a feeling of power and control and makes him feel as though someone cares about him" (PSR, p. 6). [ 28 ] As for the reason why he carried out this random attack on Mr. Tsui, the accused is now fairly clear in that regard.

Anger and resentment caused by stressors in his life, including abandonment by his mother, rejection by a girl he liked and difficulties with his roommates, built up to such an extent that he "wanted to make someone feel the pain that (he) had felt for years... (He) felt like (he) was being backstabbed by everyone and thought he should stab someone in the back as (his) form of revenge... (He) convinced himself that hurting someone else was 'a good way to deal with all (his) anger, resentment and desire for revenge.' " (Pre-Sentence Psychological Evaluation by Dr. David Wiebe (Dr.

Wiebe), p. 6). [ 29 ] In his comprehensive Pre-Sentence Psychological Assessment, Dr. Wiebe references a number of features about the accused, including his history of interpersonal relationship difficulties, his "extensive history of significant emotional problems and contacts with the police, social workers and mental health professionals in mid-adolescence," and his "history of obsession with violence, weapons, rape, murder, serial killers and school shooters, as well as multiple incidents of threatening and/or planning violence." (Dr. Wiebe, p. 3). [ 30 ] With regards to a diagnosis, Dr. Wiebe concludes: Mr.

Thompson has a long history of problems with extreme mood swings, anger management problems, suicidal ideation and threats, impulsivity, relationship issues and violence or threats of violence. It is my opinion that he meets the DSM-5 diagnostic criteria for both Antisocial Personality Disorder and Borderline Personality Disorder.

Relevant symptoms of Antisocial Personality in this case include criminal behaviour, deception, impulsive behaviour, aggression and violence, disregarding the safety of self and others, irresponsibility and lack of remorse. Associated features in this case include lack of empathy, dysphoria, anxiety and substance use. Relevant symptoms of Borderline Personality include frantic efforts to avoid abandonment, unstable relationships, identity disturbance, impulsivity, recurrent suicidal threats or gestures, affective instability, chronic feelings of emptiness and anger management problems.

Relevant associated features include self-defeating behaviour, anxiety, depressive symptoms and substance use. (Dr. Wiebe, p. 5) [ 31 ] As for the accused's risk for future violent offending, Dr. Wiebe concludes that is "high," stating as follows: When anticipating future risk scenarios it is very important to note that Mr. Thompson stabbed and nearly killed a random stranger on the street in response to his own inner anger and turmoil.

In addition, he perpetrated this unpredictable violent offence even after years of interventions by his family, social services, the police, school staff, various programs and multiple health professions. It is my opinion that, given Mr. Thompson's history and personality disorder diagnoses, he is capable of perpetrating deadly violence again if he allows his rage and resentment and need for revenge to build up to a similar level as occurred prior to the current offences. At this point in time Mr. Thompson is a very dangerous individual and will remain so unless he undergoes intensive treatment. (Dr.

Wiebe, pp. 6-7) [ 32 ] With regard to treatment of the accused, the doctor makes the following observations: Mr. Thompson has been the recipient of many attempts at treatment by various mental health professionals and programs with little or no impact on his functioning and behaviour. This is likely because Mr. Thompson's specific combination of personality disorder traits have been demonstrated to be notoriously difficult to treat, especially in individual therapy sessions or in programs utilizing treatment methods designed for less-disturbed individuals. It is very important that Mr.

Thompson receive long-term, intensive therapy specifically targeting his problematic thinking and behaviours such as Dialectic behaviour therapy, which has had some success in the treatment of severe personality disorders. (Dr. Wiebe, p. 7) [ 33 ] Dr.

Wiebe concludes his assessment with a number of treatment recommendations, most particularly that the accused "is in need of intensive treatment programming for violent offenders," as well as concurrent psychiatric care, medication monitoring and psychological treatment, all of which is available in the federal correctional system but not the provincial one. [ 34 ] I turn to the principles of sentencing set out in s. 718 of the Criminal Code .

In my view, foremost among those principles in this case is the concern for the protection and safety of the public, including the need to separate the accused from society.

The accused's criminal behaviour, his reasons for that behaviour, his personality disorders and high risk that he poses for future violent offending all support the importance that this principle must play in determining an appropriate sentence for this accused. [ 35 ] Similarly, necessary sentencing objectives are the need to denounce the accused's unlawful conduct and the harm done to the victims and this community, as well as deterring the accused and others from committing offences in the future. As many in our country do on a daily basis, Mr.

Tsui was out peacefully walking in his neighbourhood when all of a sudden he was randomly and brutally attacked with a knife by the accused, resulting in very significant, life-long injuries and harm to him and his family. Such criminal behaviour represents one of the most serious encroachments on our society's values. It must be very strongly denounced by our courts through the sentences imposed.

The sentence must also communicate to this accused, particularly given his circumstances, as well as other persons, that this sort of criminal conduct must not occur and will never be tolerated in our communities. [ 36 ] The accused is a young adult with only one prior conviction. As such, his rehabilitation requires some consideration. However, on the material before me, that rehabilitation must start in the federal correctional system and any success will depend, to a large extent, on the accused's desire to rehabilitate himself in that system ( R. v. Irwin , 2004 BCCA 433 at paras. 9 , 12 and 13).

At this time, given the almost complete absence of any positive supports in the community, along with Dr. Wiebe's comments about the treatability of the accused's personality disorders, his rehabilitation prospects do not appear promising.

As such, his rehabilitation does not attract the weight normally afforded a youthful offender nor, more specifically, near that of the other sentencing objectives I have already identified. [ 37 ] The last s. 718 sentencing objective requiring some comment is the desire to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims or to the community. At the sentencing hearing, the accused read out a statement he prepared offering his apologies to the victims.

While this statement presented as meaningful and an acknowledgment of harm caused, I am not able to find any genuine remorse by the accused in this statement nor in anything else he has said or done. It is clear from the material before me that the accused has demonstrated considerable inconsistency in his communications. More importantly, consistent with his personality disorders, he has no difficulty saying what needs to be said in order to attempt to achieve his purpose. His communications and behaviour towards obtaining an NCRMD verdict is a glowing example of that ability.

Obviously, his purpose at this point is to attempt to obtain the shortest jail sentence and he knows showing some remorse has a potential to assist in that regard. In addition, there were no compelling indications of remorse prior to the convictions being recorded. Lastly, I note that Dr. Wiebe, in his considerable dealings with accused, found that he "did not demonstrate any genuine remorse or empathy for the victim and any statements made to that effect did not seem to have any real emotion behind them (as if they were his impression of what people would want to hear)" (Dr.

Wiebe, p. 6). [ 38 ] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. There can be no doubt the accused's criminal conduct is at the very high end of the scale. He almost killed a man peacefully out walking in his neighbourhood in a random, alarming act of extreme violence. [ 39 ] The accused relies on the following observation of Dr. Wiebe to suggest that his moral culpability is somewhat reduced: It is important to note that although there is no evidence of any major mental disorder, Mr.

Thompson's combination of personality disorders can result in as much disruption and impairment of functioning (or more so) than such a mental disorder. In addition, these personality disorder traits contribute to an increased risk for future violence (Dr. Wiebe, p. 5).

The accused cannot be blamed for having these personality disorders and while they may have played some role in his criminal behaviour on this occasion in the manner Dr. Wiebe describes here, it is clear the accused knew what he was doing when he attacked Mr. Tsui and why he was doing it. He sought revenge against a completely innocent person for what others had done to him.

In my view, in these circumstances, his degree of responsibility still falls at the high end of the scale with this observation, re-emphasizing the serious risk the accused currently presents to society. [ 40 ] In determining an appropriate sentence in this case, I must also factor in the aggravating and mitigating features. Those in aggravation include the following: 1. There was premeditation to this attack.

In my Reasons for Judgment finding the accused guilty, I also found the Crown had proven to the criminal standard that the accused left his residence this evening armed with a butcher knife with the intention of using it to harm someone. 2. The accused's revengeful attack was randomly carried out on an unsuspecting, somewhat elderly man, doing what most people enjoy doing on a daily basis, that is, walk in their community. The accused was armed with a deadly weapon which he savagely inflicted on Mr. Tsui multiple times. 3. The accused did not summon any help for Mr.

Tsui but rather, ran away and then later sought to avoid the consequences of his criminal conduct by fabricating a mental condition. 4. Pursuant to s. 718.2(a)(iii.1), the offences have caused very significant physical, emotional and financial impacts on the victims, most particularly, Mr. Tsui, and those impacts will last the remainder of his life. [ 41 ] The mitigating facts are the accused's youthfulness; his limited criminal record; his completion of his prior probationary period without any breaches; and his admission of the Crown's case such that Mr.

Tsui and members of his family did not have to testify. [ 42 ] The Crown seeks a jail sentence of 12 years less the credit the accused is entitled to for the time he has spent in custody to today's date. [ 43 ] The accused suggests that jail sentence should be four years which, with pre-sentence custody, would result in a jail sentence of less than two years.

That sentence would be served in the provincial correctional system and the accused further suggests he should be placed on three years of probation so that upon his release from custody he can be re-established and stabilized in the community. [ 44 ] I have no difficulty rejecting this sentencing position. It completely fails to adequately address the seriousness of the accused's criminal conduct and the principles of sentencing I have identified. Moreover, it is clear from Dr.

Wiebe's report, the accused's rehabilitation can best be commenced in the federal correctional system and any concerns about his re-integration into society can be addressed through terms of parole or a s. 810.2 peace bond. [ 45 ] Counsel provided a number of authorities to support their sentencing positions. The accused relies on several cases from our Court of Appeal to the effect that the range of sentences for those who commit aggravated assault is 16 months or two years to six or eight years, depending on which case is relied upon.

In suggesting these ranges, I do not understand the court to be suggesting that all aggravated assault offenders must be sentenced within that range and that no offender could be sentenced outside of that range at either the lower or higher end of it. To do so would be usurping Parliament's paramount authority in this area because Parliament, through the Criminal Code , has set the sentencing range for aggravated assault as between a suspended sentence and 14 years in jail.

I understand the court's range, whatever it may be, to be a suggested guideline from which a court is permitted to depart from when, in carrying out its duty to determine a fit sentence having regard to the particular accused and circumstances of the aggravated assault they have committed and the principles of sentencing, it determines that a just and appropriate sentence is outside that range on either end of it. [ 46 ] Although I have read all the authorities provided, I only propose to reference one of them because of the many similarities between that case and this one. [ 47 ] In R. v.

Wallin , 2003 BCSC 809 , the accused received an effective nine-year jail sentence for strangling a woman who had been jogging in Stanley Park. Mr. Wallin was 25 years old and, unlike the accused, he did not have a criminal record. After committing their aggravated assaults, both Mr. Wallin and the accused attempted to deceive their culpability although, unlike the accused, Mr. Wallin's deception only lasted a few hours after which he fully admitted his full culpability. Both of them also had mental health issues in their backgrounds which was most likely involved in their criminal conduct.

Both aggravated assaults were horrific, random, senseless, vicious acts of extreme violence by young men against completely innocent persons out in the community performing activities which many of us enjoy doing on a daily basis. Each of the victims suffered life-threatening injuries that will impact them for the rest of their lives. [ 48 ] One distinguishing feature between the cases is that Mr. Wallin's victim suffered more extensive injuries and harm than Mr. Tsui in that she suffered a "diffuse, severe anoxic brain injury" that left her in a "painful, spastic, vegetative state." ( Wallin , paras. 6 & 7 ).

However, in that regard, there is merit to the Crown's submission as follows. While the injuries to the victim in Wallin appear, on their face, to be more significant than those suffered by Mr. Tsui, the reality is that he is in pain, robbed of his manhood, unable to earn an income to support his family and dependent upon them for the most basic activities of daily life. It is a difference of degree; a living hell of another type. [ 49 ] Moreover, there are additional features between the cases which elevate, for sentencing purposes, the seriousness of the accused's circumstances over that of Mr. Wallin.

Those include, Mr. Wallin expressed sorrow and remorse; his attack was not premeditated; he did not suffer personality disorders; and there is no suggestion he was a high risk to re-offend violently. [ 50 ] These additional features more than balance out the difference between the seriousness of the injuries suffered by the two

victims and could justify a sentence greater than that imposed on Mr. Wallin. However, due to the accused's youthfulness, the other mitigating factors and the need to place some weight on the accused's rehabilitation, despite its bleakness, like that of Mr.

Wallin, I have decided not to do so. [ 51 ] When I consider all the circumstances of the accused and the offences he has committed, along with the principles of sentencing as I have analyzed them, I find that a fit sentence for this accused, committing these offences in this community, is a period of incarceration of nine years on Count 1, the aggravated assault of Mr. Tsui.

The accused is entitled to 26 months credit for the time he has spent in custody on this matter, resulting in a sentence today of six years and 10 months. [ 52 ] On Count 2 the sentence is two years concurrent with Count 1. [ 53 ] Count 1 is a primary designated offence and accordingly, pursuant to s. 487.051, the accused is ordered to provide a sample of his DNA. [ 54 ] Pursuant to s. 109 of the Criminal Code , he is prohibited from possessing firearms and all the other items in that

section for a period of 10 years. [ 55 ] Pursuant to s. 743.21(1), the accused is not permitted to have any contact with Mr.

Tsui or his family members while he is serving his jail sentence. [ 56 ] Pursuant to s. 743.2, I order that all the exhibits at trial and on sentencing, as well as the Pre-Sentence Report, all the doctors' reports, the victim impact statements and my reasons for conviction be forwarded to the Correctional Services of Canada. [ 57 ] Lastly, I order the accused pay the mandatory victim fine surcharges and I give him two months to pay those following his release from custody. [ 58 ] One final word for you, Mr. Thompson.

I know this was not the sentence you were hoping for but how long you actually spend incarcerated will depend very much on you and your behaviour. I strongly suggest that you use your time in custody wisely. Take all the programs you can and stay out of trouble as that is the sort of behaviour that will put you in the best position to obtain parole. [ 59 ] I wish you all the best as I do to the Tsui family. (REASONS FOR SENTENCE CONCLUDED)