R. v. Deng Date:, 2017 BCPC 225

Citation: R. v. Deng Date: 20170503 2017 BCPC 225 File No: 218851-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. ABIEM DENG DENG ORAL REASONS FOR SENTENCE OF HONOURABLE JUDGE A. WOLF Counsel for the Crown: D. Thomas Counsel for the Defendant: A. Falk Place of Hearing: Surrey , B.C. Date of Hearing: May 3, 2017 Date of Judgment: May 3, 2017

[ 1 ] THE COURT: These are the oral reasons in the sentencing matter of R. v. Abiem Deng Deng . As this matter is on the list today and I have not had as much time that I would prefer, I reserve the right to make non-substantive changes to these reasons, if required. [ 2 ] With respect to the charges, Mr. Deng has pled guilty on Information 218851-1 to assaulting and causing bodily harm to Nancy Cordick, contrary to s. 267 (

b) of the Criminal Code . [ 3 ] The facts that have been admitted are that on October 6, 2015, Mr. Deng was walking past a transit worker who was in her personal vehicle near the Tsawwassen Mills bus stop. It was her job at that time to gather statistics regarding those that were riding the bus. If I am not mistaken, it was around 4:00 p.m. when Mr. Deng walked up to her vehicle and asked her for a ride. She said no but then attempted to give him some information about the bus schedule. ACT OF VIOLENCE [ 4 ] It was at this point that, without provocation, Mr. Deng punched Ms. Cordick in the face.

INJURIES [ 5 ] In her victim impact statement she describes the injuries. She writes that: The punch caused my eyes to be blackened. My eyeglasses were broken. I have four chipped front teeth, one shattered more. A bruised jaw, concussion, soft tissue issue. I continue to suffer from headaches, migraines, sore muscles and sleep deprivation. She has suffered physical injuries and continues to seek medical attention as required. EMOTIONAL INJURIES [ 6 ] Long after her physical injuries healed, Ms. Cordick will have lasting emotional injuries. She describes in her words that: I was affected emotionally.

Immediately following the attack my husband and I were worried for my safety at home. My personal sense of safety and trust in strangers has been shattered. I feel nervous in public and workplaces. I fear walking in the dark in my neighbourhood and when going to and from work on transit. [ 7 ] While Ms. Cordick expresses her emotional injuries very well, there is no way that one can capture on paper the feeling of being physically abused at the hands of another. As a result of this one punch, Mr. Deng changed Ms. Cordick's life forever.

Perhaps this was not his intention but the reality is that he stole her sense of security. CROWN POSITION ON SENTENCE [ 8 ] The Crown seeks a period of incarceration in the range of four to six months to be followed by a period of probation for three years. They also seek a weapons prohibition, counselling conditions, protective conditions, a DNA order and a s. 110 firearms order forbidding Mr. Deng from having a lengthy list of firearms and other items. They rely on a limited record. In that record, Mr.

Deng was placed on a peace bond in June 2016 and received the equivalent of a 30-month sentence for sexual assault in March 2017.

DEFENCE POSITION ON SENTENCE [ 9 ] While defence counsel submits that the range of sentence proposed by the Crown is reasonable, they further submit that a period of three months incarceration may be warranted, and asked me to consider the fact that he has already been in custody and will continue to be in custody for a lengthy time period as a result of an unrelated offence that he was sentenced on March 2017 for, just less than a couple of months ago. [ 10 ] Defence counsel further submits that his background circumstances are tragic.

He is originally from Sudan but came to Canada when he was around 18 years old. His birth date is January 1st, 1990. I agree his background is tragic. I interrupted counsel indicating that I am familiar with some of the history of Sudan. It is well known and I believe that I am in a position to take judicial notice of this fact. Sudan is a country that in the 1980s was a country that was basically full of civil war largely due to religious and ethnicity reasons. Many, many tens of thousands of Sudanese were forced to flee their villages that were being attacked. Sometimes young males were forced to fight.

Quite often young females were killed. I think it was a group of approximately 25,000, maybe little more than 25,000, Sudanese boys, and mostly of tribal descent, that were forced to flee their homes and some of them, a much smaller number than that, ended up in a refugee camp. They landed at that camp with no fathers and no mothers. Many drowned on their long journey to the refugee camp. They were called The Lost Boys. Eventually, some of those boys grew up and were lucky enough to find homes in other countries such as Canada. I cannot imagine a more tragic childhood. SENTENCING PRINCIPLES [ 11 ]

Section 718 of the Criminal Code sets out the purpose of sentencing and objectives enumerated. The fundamental purpose of sentencing is to contribute, along with crime preventive initiatives, to respect for the law and the maintenance of a just, peace and safe society by imposing just sanctions.

Section 718 sets out some of the relevant sentencing principles. [ 12 ] I agree with the Crown that the main principles in this case are the need for denunciation of the unlawful conduct. As well, the sentence needs to be imposed that will deter the offender and other persons from committing similar offences. [ 13 ] I especially wish to note Ms. Cordick's profession. She serves our community by working for the transit system. Many individuals in our community have important jobs that make them somewhat vulnerable. Our bus drivers put themselves at risk of

assault every day when they pick up passengers. Gas station attendants, cab drivers, cashiers in 24-hour convenience stores, they are allessential to our society but often they are at more risk than others due to the nature of their interactions with the public. [14] I must also bear in mind that this young man does come from tragic circumstances and he will be in jail for a lengthy period oftime before he even commences service of the sentence that is imposed today. [15] Lastly, s. 718(2)(

e) asks that I consider the principles of restraint; that is, to impose the least onerous alternative appropriate inthe circumstances, or to put it in terms of that section, consider all available sanctions other than imprisonment that are reasonable in thecircumstances should be considered for all offenders. That particular

section reads "with particular attention to Aboriginal offenders." Iunderstand that this accused is not an Aboriginal offender and that the last part of the

section is often referred to as the Aboriginalsentencing provision but it also refers to the broader principles that are captured in a case called Gladue. While not raised by counsel inthis case, in September 2016 I noted in the Richmond Provincial Court decision of R. v. Diabikulu, that Gladue actually makes referenceto the incarceration of black Canadians in our prison system. At paragraphs 32, 34-36 of that decision, captured under the heading of"Individual and Societal Considerations", I wrote that: [32] It was submitted by Mr.

Diabikulu’s counsel that it is open for me to consider the defendant’s race as a potentially mitigatingcircumstance. “Individual and Societal Considerations” is how R. v. Reid, 2016 ONSC 954, phrases this consideration.

It is an April2016 decision of the Honourable Justice Morgan from the Superior Court of Justice in Ontario that has been provided as an authority forthis submission. [34] The decision continues and makes reference to the “Report on Race Relations in Ontario” (1992) by Stephen Lewis thatconfirmed that “Black inmates are one of the fastest growing sub-populations in federal corrections.” [35] Further, at paragraphs 23 to 27, the decision reminds me that R. v.

Gladue, (SCC), [1999] 1 SCR 688, atparagraph 57, is a case that recognizes that for the Black community, as with aboriginal Canadians, “Over incarceration is a long-standing problem that has been many times publicly acknowledged but never addressed in a systematic manner by Parliament.” [36] I am mindful that in Reid the court had the benefit of relying on the “Report on Race Relations in Ontario” ... [16] And much the same as in R. v.

Diabikulu, I find myself in the same position, not having any expert reports or furtherinformation with respect to any systemic factors that might affect our immigrant population from other countries to Canada. [17] By way of mitigation, I take into account your tragic circumstances; the fact that you have immigrated to Canada under difficultcircumstances; and that you have pled guilty saving the expense and distress of having the victim testify in court. I also accept that youare young, have the ability to change your ways and become a law-abiding citizen. [18] By way of aggravation, your assault was serious.

In Canada you are not allowed to assault anyone. I find it particularlyaggravating that Ms. Cordick was on the job, in her car, sitting alone, and as a result of this was not in the position to defend herself. Shewas, in that circumstance, vulnerable. [19] Further, you were on probation and bail for two separate offences. In those circumstances one would think you would havealways erred on the side of caution and politeness, not violence. CONCLUSION [20] No matter what your background, sir, in any country in the world, common, decent, law-abiding individuals would know thatyou cannot punch somebody in the face.

I pause to say the obvious. While I understand that maybe you were having a 'bad day' and Iaccept that somebody stole your shoes and that you wanted a ride home, there was a bus. Ms. Cordick was trying to help you get homesafe by telling you about the buses. You should feel ashamed for your acts of violence. Sir, please stand up. [21] For the offence of assaulting Ms. Cordick and causing bodily harm to her, I sentence you to what I consider the least reasonablesentence possible in the circumstances.

You are sentenced to four months imprisonment to be served consecutively to any sentence thatyou are currently serving. [22] There will be a period of probation for three years. I appreciate that your counsel has asked for that to be less. I also appreciatethat you are bound by a two-year probation order which is attached to your March 2017 sentencing, but I believe, in the very least,protective conditions need to be imposed.

As well, considering your background and your very complicated history, I believe you willbenefit by receiving counselling. [23] The conditions are that you shall keep the peace and be of good behaviour. [24] You shall appear before the court when required to do so by the court. [25] You shall report to Surrey Probation in person within 24 hours after completing your jail sentence and thereafter as and whendirected.

Upon attending to your probation office you shall advise them of your residential address and not change that address withoutfirst obtaining their prior written approval. [26] You shall attend, participate in and successfully complete any assessment, counselling or program as directed by the probationofficer. Without limiting the general nature of this condition, such assessment, counselling or program may include and relate to angermanagement. [27] You shall have no contact or communication directly or indirectly with Nancy Cordick or any of her family members that areknown to you.

[ 28 ] You shall not attend at any known place of residence, employment, worship or education of Nancy Cordick. [ 29 ] You shall not be found on any Coast Mountain transit vehicle. [ 30 ] You are not to possess any knives except for the immediate preparation or consumption of food or for employment purposes while at your place of employment. [ 31 ] You are not to possess any weapons as defined by s. 2 of the Criminal Code . [ 32 ] There will be a firearms prohibition pursuant to s. 110 of the Criminal Code for a period of 10 years. [ 33 ] There will be an order that you provide your DNA. [ 34 ] I will turn to Ms.

Falk first of all to see if I have missed anything. [ 35 ] MS. FALK: Thank you. That covers everything, Your Honour. (REASONS FOR SENTENCE CONCLUDED)