R. v. D.I.M. Date:, 2012 BCPC 94

Citation: R. v. D.I.M. Date: 20120116 2012 BCPC 0094 File No: 21618-1 Registry: Salmon Arm IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D.I.M. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE DE WALLE Counsel for the Crown: W.J. Hilderman Counsel for the Accused: I.F. McTavish Place of Hearing: Salmon Arm , B.C. Date of Hearing: January 16, 2012 Date of Judgment: January 16, 2012 [ 1 ] THE COURT: D.I.M. is before me today for the purpose of sentencing. He previously entered a plea of guilty to the sole count on Information 21618.

It is a charge that: . . . from the 1st day of August, 2010, to the 14th day of September, 2010, inclusive, at or near Salmon Arm, in the Province of British Columbia, in committing an assault upon the complainant, A.S-M, did cause bodily harm to the complainant, contrary to

Section 267 (

b) of the Criminal Code . [ 2 ] The Crown outlined the circumstances of the case, which are as follows. [ 3 ] A., at age 8 weeks, was presented to a clinic in Salmon Arm by his parents. The Ministry at that time became involved. A social worker took the child to the RCMP detachment here in Salmon Arm, and subsequently, the child A. was taken to Kamloops hospital where he was checked by a pediatrician and examined. X-rays were taken. [ 4 ] The child A. presented with a number of bruises. There was bruising to his cheek, his left leg, his back, shoulders, and on one arm near his wrist.

A mouth injury was also noted. X-rays indicated that this young infant's left tibia had a fracture, and X-rays also determined that there were seven fractured ribs and, as well, a fracture to his wrist.

[ 5 ] Investigation took place that involved both the mother and father. The father provided the RCMP with a number of statements. He admitted to squeezing the child around the chest on several occasions.

He also admitted to changing the young infant child on the couch one day and then grabbing the child by the leg and throwing the child to another part of the couch, probably explaining the fracture to the left tibia. [ 6 ] The Crown in this case suggests a sentence of two years less a day plus a period of probation of three years to follow the custodial sentence. [ 7 ] Defence counsel submits that this is an appropriate case for a suspended sentence and a lengthy period of probation with conditions. [ 8 ] Fortunately, it would appear from the material that the child made a good recovery; at least I have not been advised of any permanent injuries to the child.

The child continues to be in the care of the Ministry. Child protection proceedings are ongoing and are set to continue in February, I am told. There is an access regime in place where the parents are exercising supervised access visits to the child, and I am told that those visits are going well. [ 9 ] Defence counsel submits that this is a case where the father of the child, who has pled guilty to the offence of assault causing bodily harm, was a parent with virtually no experience, was immature, and explains the behaviour by not being able to control his temper.

Defence counsel submits that his client exercised poor decision-making, that his only intent was to stop the child from crying. The father was working, and the child was waking up through the night repeatedly, and the father was stressed as a result of waking up a lot. The father was frustrated and, as a result, applied force to the child on several occasions, causing the injuries. [ 10 ] The father takes full responsibility for the injuries that were caused. [ 11 ] I have before me two reports. They are both quite detailed. One is a pre-sentence report that was prepared by an experienced probation officer.

I am just going to briefly quote from several passages in that report. The report goes into detail with respect to the background of Mr. M., his family relationships, living arrangements, and associates, and indicates that when Mr. M.'s son was born, the Ministry of Children and Families placed both parents into a mentorship program. The couple resided in a basement suite of a contracted worker who was to provide aid to the couple if they required help. [ 12 ] Mr. M. complained about that particular situation. He said that the mentor individual was an alcoholic and was not there when they wanted support from her.

The support worker described the relationship between the subject and the mentor as strained. [ 13 ] Mr. M. admitted, and this is in the pre-sentence report, that: [H]is frustration with the lack of parental supervision in combination with his son's crying, along with his own lack of parenting, and control of anger, led to some poor choices which he did not consider harmful but caused . . . damage to his son. [ 14 ] The report then details the behaviour and emotional status of Mr. M.

Again, I am going to quote, in part, from the report: The subject admitted he has symptoms related to depression, anxiety, and anger but takes no medications. He reported of being weaned of Lithium at the time of the present matters before the Courts - approximately one year ago. He requested this through his own family Doctor. MCFD Social Worker, Jill Kendall, stated that in the agreed upon terms of the child custody agreement, Mr. M. was to remain on his medications. She was not informed the subject weaned himself off his medications prior to the incident.

She stated that previous psychiatric assessments indicated that the subject showed a high level of symptoms when off his medications. Mr. M. said the Seraquil made him tired and unproductive and Lithium "did not help at all". Mental Health Worker, Allison Nadeau, contradicted this information and stated that lithium was working "excellent" for Mr. M. as he was both mentally stable and productive as he held a part- time job while on his meds. Ms. Nadeau confirmed that a common occurrence for bi-polar clients is that they will quit taking medication because they are feeling really good. Ms.

Nadeau then identified "aggression" as a core feature of an individual taken off of their Bi-polar medication. She thinks the subject will benefit with Forensic involvement and being placed back on his medication. Currently, Mr. M. admitted he is depressed and has extreme lows. He feels he may have seasonal affect disorder, during the winter months, as he "mopes around", does not talk with anyone, and has no drive or desire to do anything. With regards to psychosis, Mr. M. admitted he has not experienced any psychosis since being off his meds.

He figures his past psychotic episodes were drug induced as it occurred when he was heavily abusing substances. With regards to his past behaviour, Mr. M. admitted that when he was younger he did have problems with anger and often got in fights in school. He claims he did not start these altercations but was often called names and teased which led to the subject protecting himself. He then began associating with a peer group that abused substances and were pro-criminal. He admitted that he often rebelled against rules etc. This included Court Ordered conditions.

He admitted to acting out in school and he would not attend for days at a time. Mr. M. acknowledged he had a period of time when his life was "unstable" and he succumbed to the effects of escalating substance abuse. Mr. M. admitted he has cut all ties with negative associates. This was verified by his foster parents and other collaterals. Mr. M. reported he would comply with any direction of the Court which would include any counselling and/or Rogers Conditions to take medications as prescribed. [ 15 ] Mr. M. is a young man. He is 20 years of age now.

He has almost completed his grade 12, and that is reviewed in the report. The report further talks about his prior drug use, which apparently started when Mr. M.'s birth mother returned to Salmon Arm and assisted him in beginning to engage in a drug culture, in a drug lifestyle. [ 16 ] With respect to the "summary and proposed interventions," the pre-sentence report goes on, and again I will quote where the report says: On a positive note, Mr. M. indicated an understanding that his drug use and negative peers impacted his life and he has since quit hard

drug use and has cut all ties with negative associates. As well, while on Youth Probation supervision, his previous Probation Officer, Bob Sawatzky, described the subject as compliant and a good community supervision candidate. The subject attended and completed alcohol and drug counselling, attended appointments with a psychiatrist, and attended regular appointments with his Forensic Youth Worker. Of Note: None of these services are in place at this time. [ 17 ] With respect to "attitude and understanding regarding the offence," the report states that: Mr.

M. did place some blame on this offence towards his contracted mentorship worker and [the Ministry]. He felt his worker should have helped him more and that [the Ministry] should have been more responsible and not place them with an alcoholic support worker. He maintains he did not realize the extent of the injuries caused to his son. Although, he did admit that his emotions (anger), poor parenting skills, and poor decision making played a role with him in harming his son. [He] reported he will follow any direction of the Courts. [ 18 ] The second report that I have before me was prepared by Dr.

Lessing, a psychiatrist with Forensic Psychiatric Services Commission. That report - again, I am just going to refer to it briefly - details some of Mr. M.'s background and indicates, and quoting from the report, that: Mr. M. was removed from the care of his mother K.A., in March 1998 at the age of 7 years because of neglect, poor care and progressive deterioration of Miss A.'s household probably as a result of her involvement with the drug culture (cocaine addiction). Mr. M. was placed into foster care and later adopted by D. and T.M. . . . Mr. M.'s schooling proceeded uneventfully.

In April or May 2007 K.A., Mr. M.'s biological mother, returned to Salmon Arm and her presence precipitated a period of lifestyle and behavioural instability for Mr. M. which resulted in him using (and perhaps becoming dependent) on cocaine and marijuana, experiencing psychotic episodes and running afoul of the law. [ 19 ] The report also points out that both Mr.

M. and his girlfriend's extended families live in the Salmon Arm area. [ 20 ] I would note that both reports before me indicate that the upbringing by the M.’s appears to have been a very loving and proper home for the accused, and it would appear that it was the return of his biological mother to the community that precipitated the downward spiral in his life, at least for a period of time. [ 21 ] With respect to medical history, the report points out that, overall, Mr. M. is a healthy person. The report indicates that Mr. M. does not attend at mental health.

He is registered with a family doctor but does not have much contact there. There is no history of surgery, no history of allergies. [ 22 ] Mr. M. acknowledges that he smokes marihuana every day. [ 23 ] With respect to a bipolar disorder diagnosis, the report indicates that what the psychiatrist, Dr. Lessing, looked at indicated that there may be symptoms of bipolar but to this point in Mr. M.'s life, there has not been a specific diagnosis of bipolar disorder. [ 24 ] With respect to the mental status examination, the report of Dr. Lessing is that when she interviewed Mr.

M., she determined that his "mental status exam during the interview on November 10, 2011 showed a friendly 20-year-old young man, appearing his stated age. He was relaxed and appropriately dressed in jeans and a sweater. He made good calm eye contact and tolerated an hour of interview well. He spoke freely without any evidence of mood disturbance, anxiety, suicidal or homicidal ideation or any psychotic symptoms." [ 25 ] Finally, the report indicates and concludes with these words: From a developmental perspective I would furthermore suggest that Mr.

M. be encouraged to establish age appropriate goals and achievements i.e. complete his high school education, obtain further training, establish himself in a job that can support him, a partner and children. Mr. M. should also be closely monitored in the event he establishes more relationships and has more children (by age 20 he has already fathered two children, one abortion).

Ongoing mentorship, counselling, and sobriety as well as increased social stability (in other words lower general level of stress) might all help to prevent further instances of child abuse and offending behaviour. [ 26 ] Turning to the purpose, objectives, and principles of sentencing, s. 718 of the Criminal Code sets out a number of objectives a sentencing judge should bear in mind when sentencing.

The objectives of this sentence must include the following, and they are that the court must denounce unlawful conduct; deter the offender and other persons from committing offences; because it is necessary to do so, separating the offender from society; assisting in rehabilitating the offender; providing reparations for harm done to victims or to the community; and promoting a sense of responsibility in offender and acknowledging the harm done to the victim and to the community. [ 27 ] With respect to the objectives, I refer to s. 718.01, as well, which reads: When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [ 28 ] I also consider the provisions of s. 718.2 of the Criminal Code , and in the decision of Mr.

Justice Cohen dated April 13, 2004, in the case of R. v. DNK , Mr. Justice Cohen, in paragraph 62, I think summarizes the law quite appropriately where he says: A common thread which runs through the authorities submitted by the Crown and defence is that general deterrence is most important in cases of child abuse involving brutality, excessive discipline and issues of anger management.

As oft mentioned in the authorities, it is the duty of the Court to protect those members of society who, like children, are unable to protect themselves and the Court should impose a conditional sentence in cases involving violence to children only in exceptional cases. I am satisfied that this is such a case. [ 29 ] I would note as well a reference in that decision to the case of R. v. Habib , [1999] O.J. No. 5751 , again a case involving the abuse of a young child, and Mr. Justice Cohen refers to the reasons of Justice Wilson in that case where he refers to two distinct types of

physical child abuse, and he says this: Physical child abuse frequently falls into two distinct types: (

i) the application of force with, if not the intention, the expectation of causing injury or, an indifference as to whether injuries will result, and (ii) the application of force where a parent or other custodian of a child is immature and is unskilled in matters of child care, and, acting out of emotional upset, frustration or impatience, does not fully appreciate the serious injuries which might result. In the first situation, there is a high degree of culpability and the court will in most cases impose a severe sentence.

In the second situation, while punishment is warranted, a sentence, where such is warranted, will not ordinarily be a severe one and will usually be followed by a period of probation, a condition of which would be that the abuser receive training and counselling to the end that further acts of abuse will be avoided. [ 30 ] The first category of cases that Justice Wilson is referring to are cases, in my view, where there is significant injury that results quite often in permanent harm and are cases, and there are several of them before me here today, where federal terms of incarceration are imposed. [ 31 ] The second category is the category, in my view, in which the case at bar falls.

That then leads me to consider the aggravating and mitigating factors in this case. [ 32 ] The aggravating factors, in my view, are as follows. [ 33 ] The injuries in this case were occasioned over a period of time between the beginning of August and the middle of September of 2010. In other words, this was not a one incident case; there were several incidents of violence imposed upon this child. [ 34 ] Another aggravating factor is the extremely young age of the child.

A. was eight weeks old when doctors examined him, so the injuries would have occurred when he was only weeks old in his young life. [ 35 ] The other aggravating factors are that the injuries in this case were clearly serious, and there were a number of injuries: bruising and fractures as well as a mouth injury which I am told would typically be connected to feeding the child with a bottle and using force in that process. [ 36 ] Furthermore, clearly another aggravating factor here is that Mr. M. was in a position of trust to this young infant child.

The child was totally dependent on those around him for his care, well-being, and safety, and clearly, Mr. M.'s actions were a breach of that trust. [ 37 ] With respect to mitigating factors, I take into account the following. [ 38 ] Mr. M. has entered a plea of guilty to the charge. Although not specifically stated by the Crown in his submissions, I suspect that prosecution of this case would be a difficult matter. The only two eyewitnesses to the incident were the mother and the accused father. In any event, even with the admissions of Mr.

M., these prosecutions are never easy. [ 39 ] Another mitigating factor is that Mr. M. has accepted responsibility for his actions both in his statements to the probation officer and in his statement to me in court here today. [ 40 ] Another mitigating factor is that although Mr. M. has a Youth Court record of property offences - break and enter, breach, theft under - he does not have an adult criminal record and he has no prior record of violence. [ 41 ] Another mitigating factor, in my view, is that Mr. M.'s life has stabilized to some extent.

He now does have a full-time job, as I understand it, as a labourer on a chicken farm outside of Salmon Arm. He earns approximately $1,700 a month. I am told that his relationship with A.'s mother is very good. They are living together in an apartment and hope to move into a rental home in the near future. [ 42 ] I am told as well that Mr. M. is making efforts to cut down on the amount of marihuana he uses, that he is using much less now than he did before, and hopes to get to the point where he will not be using marihuana at all. [ 43 ] I am also told, when considering the circumstances in this case, that Mr.

M. and A.'s mother are now expecting another child. She is now pregnant, and they hope to raise that child. They hope, as well, to regain custody of A. at some point in time so that he will also be part of their family unit. That obviously is a process that is ongoing in family court, so I cannot really comment on that at this particular stage as to what the final outcome will be. [ 44 ] There are also some other issues that cause this court some concern. Firstly, while Mr. M. does take full responsibility for his actions, it somewhat troubles this court that the material before me would suggest that Mr.

M. does not fully understand the impact of his actions on this young child. I note that he put some blame on the mentor program, the mentor and the Ministry, and yet at the same time I note that if Mr. M. was struggling with his temper or with his lack of parenting experience, he did have extended family. Both he and the mother have extended family in the Salmon Arm area. Mr.

M. has a good relationship with his adoptive parents; yet it would appear that confronted with a situation where they were inexperienced parents, that they did not reach out for help that clearly and likely would have been available to them. [ 45 ] I would note as well that although there is a history of using hard drugs, that by the time A. was born, the material before me indicates that Mr. M. was no longer using hard drugs at that time. He was using marihuana. I would note as well that the material indicates that there are no significant mental illness issues with Mr.

M. [ 46 ] I have been referred to several decisions that I have reviewed: R. v. S.W.M. , which is a decision of Mr. Justice Ehrcke, January

17, 2006. That was a case which clearly fit into the first category of cases that I referred to and defined by Mr. Justice Wilson. That wasa case of aggravated assault. There was significant trauma to the child that likely has resulted in long-term impact on the child's life, andin that case, Mr. Justice Ehrcke imposed a sentence of four and a half years of jail. [47] I have also been referred to the decision of R. v. Shaun Costello, a decision of the British Columbia Court of Appeal from July15, 2003.

Again, that was a more serious case, also falling into the first category, an aggravated assault, very significant injuries withsignificant impact on this child, and a sentence of four years' incarceration was imposed. [48] I have also been referred to the DNK case that I have already referred to from Mr. Justice Cohen, April 13, 2004. That was acase where the charge was aggravated assault. The child, again a young child being, I believe, three months of age, suffered injuries thatincluded a broken femur and two skull fractures.

Fortunately, it would appear from that case there were no long-term or lasting injuriesor impacts on the child. [49] In that case, Mr. Justice Cohen does a very thorough review of a number of other decisions and concludes that a sentence of twoyears less a day would be appropriate, and he ordered that that be served in the community by way of a conditional sentence order, asentence that I can say is not available to me here today. [50] In that case, Mr. Justice Cohen refers to the decision of R. v.

A.E. (2000), (ON CA), 146 C.C.C. (3d) 449.That was a case where the accused was charged with assault causing bodily harm on his two-month-old daughter. The child hadfractures of both the thigh bone and lower leg bone around the knee area on both legs, and it indicated some sort of a rotational motionrequiring significant violent force that would involve something like a throwing action, which clearly appears to describe what Mr.

M.said he did to A. which likely resulted in the leg fracture when the child was thrown from one part of the couch to the other. [51] In that case, at trial, the accused was convicted of assault causing bodily harm, as I have said, and was sentenced to 22 months'imprisonment followed by three years of probation. The Ontario Court of Appeal dismissed the sentence appeal and the convictionappeal. [52] So what is the appropriate sentence to be imposed in this case? [53] I have considered the principles that I have referred to as set out.

I have also considered the aggravating factors in this case andthe mitigating factors in this case, and as is indicated by the authorities, the primary focus of sentencing must be placed on both generaldeterrence as well as denunciation. I accept that Mr. M.'s life has stabilized somewhat since this event occurred in the sense that he hasnow found full-time employment. I would note that hard drugs were not involved in this incident. Mr. M. continues to use marihuanabut he has cut back, and he hopes to cut back to the point where he is not relying on it at all. [54] I am mindful of Mr. M.'s rehabilitation.

I would note what I read out that was in the report of Dr. Lessing, and it would appearfrom that report that it is important that Mr. M. follow through with a number of goals and that he continue to be closely monitored sothat further instances of child abuse and offending behaviour can be prevented. [55] So it is my view that it is too early to say that Mr. M. is no risk at this point in time to any other young children that may be in hiscare. [56] Mr. M., if you would stand, please. [57] It is my view, Mr.

M., based on the case authorities that I have referred to, the aggravating factors and the mitigating factors inthis case, that a period of imprisonment is required to give effect to the principles of general deterrence and denunciation. There needs tobe a very clear message, and I am not making an example to you, but the courts have made it clear that there needs to be a clear messagethat young infant children who are totally dependent on a parent need to be safe and protected. [58] This was not a one-incident case. There were a number of incidents that resulted in very severe and serious injuries to this child.

Thankfully he has made what would appear to be a full recovery. [59] Your sentence will be 18 months' incarceration, and it will be followed by a term of probation of three years. [60] The terms of your probation order will be as follows. [61] MR. McTAVISH: I just have one comment to make at the end, the commencement date for the incarceration. If I could make itnow I would. The family case is coming on. It is in the middle; he hasn't given his evidence yet.

And I would ask that since you haveimposed a term of incarceration - he hasn't been a threat; he hasn't been a problem in the community whatsoever in this time period - thathe be allowed to finish that case before the commencement of the incarceration. [62] THE COURT: I do not think I can do that, Mr. McTavish. My view is that his sentence should start immediately, and he willhave to arrange for a spring order to get him to court for the court process. [63] So the terms of your probation order will be as follows, Mr.

M. [64] You are to keep the peace and be of good behaviour. [65] You are to report to the probation office in Salmon Arm within 72 hours of your release from custody, and after that you are toreport as and when directed by your probation officer. [66] Paragraph 203: You shall reside at a residence approved in advance by your probation officer and you are not to change thatresidence at any time without first obtaining the written consent of the probation officer. [67] With respect to counselling - paragraph 227, Madam Clerk - you shall attend, participate in, and successfully complete any

assessment, counselling, or program as directed by your probation officer. Without limiting the general nature of this condition, such assessment, counselling, or program may relate to anger management, alcohol or drug abuse, psychiatric and/or psychological health. [ 68 ] There will be an abstention clause. That would be 215, Madam Clerk. You are not to possess or consume any alcohol or any illegal drug or controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act .

Any prescription drugs that you possess or consume must only be those which are specifically prescribed to you by a qualified medical practitioner or a dentist. [ 69 ] There will also be a term of probation that you are not to possess any weapons as defined in s. 2 or any item listed in s. 109 of the Criminal Code or any imitation thereof. [ 70 ] Furthermore, I will also make a DNA order. [ 71 ] MR. HILDERMAN: I think there would also have to be a s. 109 order for 10 years. [ 72 ] THE COURT: Is that -- [ 73 ] MR. HILDERMAN: It's mandatory. [ 74 ] THE COURT: Okay.

So there will be an order under s. 109 that you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, and explosive substance, and that is for a period of 10 years. (REASONS CONCLUDED)