R. v. Wyslouzil Date:, 2017 BCPC 307

Citation: R. v. Wyslouzil Date: 20170906 2017 BCPC 307 File No: 221482-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TIMOTHY JAMES WYSLOUZIL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G. S. GILL Counsel for the Crown: J. Lopes Counsel for the Defendant: B. Coleman, Q.C. Place of Hearing: Surrey , B.C. Date of Hearing: September 6, 2017 Date of Judgment: September 6, 2017

[ 1 ] THE COURT: The accused, Timothy James Wyslouzil, is charged and has pled guilty to three of the counts on Information 221482-1, Count 1 being that between the 2nd and 3rd of June, 2012 inclusive, at Surrey, British Columbia, in sexually assaulting the named complainant used a weapon, contrary to s.272(2) (

b) of the Criminal Code . Count 2, at the same time, date and place, with the intent to assist himself to commit the indictable offence of sexual assault, did attempt to choke or suffocate or strangle the same named victim, contrary to s.246 (

a) of the Criminal Code . And finally Count 3, at the same time, date and place, that he, without lawful authority, confined the same named victim, contrary to s.279(2) of the Criminal Code . [ 2 ] The circumstances of the offence are very serious and admitted as set out in paragraphs 1 through 4 on pages 2 and 3 of the Crown book filed in these proceedings, specifically at tab 1. I am going to read those in because I think it is important. They comprise the following facts, and I may paraphrase where appropriate.

That the offence occurred in the late evening hours of June 2nd at 20:12 or the early morning hours of June 3rd, when the complainant was walking home and was accosted by a man coming out of bushes near a public park in Surrey, and he is a man, it is now undisputed, was the accused, approximately six foot, two inches, large build, and who grabbed the complainant, forcibly took her into the bushes at the park and proceeded to sexually assault her.

Those acts included putting a white cord around her neck and pulling her to the ground and sitting on top of her, using that cord to strangle her into compliance, as well telling her that she would be killed if she fought back or made any noise, then removing her clothing while hitting her, penetrating her vaginally and anally using his fingers and his fist, striking her on various parts of her body, forcing her to commit fellatio and to masturbate him.

Then taking her to another area of the park where he continued the sexual and physical assault, striking her sufficiently hard that she almost blacked out, threatening her family if she told anyone, threatening to burn her with a cigarette he then had, with the entire episode lasting approximately two hours at which point she was voluntarily let go by him. When she reported the matter to the police, who attended, took various forensic samples including a DNA, as a result of which he was eventually identified, albeit some years later. [ 3 ] Those are the circumstances of the offence.

I should add that the complainant was left with some injuries and they are depicted in the book of photos filed. Those injuries include red eyes from the strangulation, ligature marks on her neck from the strangulation with the cord, and faint bruising that is still visible in the photograph about her face where she was repeatedly struck. [ 4 ] The victim was contacted for a victim impact statement but did not wish to participate.

I do take judicial notice of the kind of impact that can be reasonably inferred to arise from this type of victimization. [ 5 ] With respect to the offender, he is a 46-year-old male who, according to the pre-sentence report, was born in Ottawa and placed for adoption at a very early age. He has no remaining meaningful family contacts, either biological or adoptive, and has very few, if any, supports in the community. [ 6 ] He moved to British Columbia eventually and became involved and addicted to drugs and alcohol, living essentially a homeless existence in the downtown east side.

He was married in 2008 and has three children from that relationship. The marriage is over. There is no contact with his family members as he is prohibited from contacting them by court order. He has a Grade 12 education. [ 7 ] His criminal record consists of conviction in or about the early 2000’s for assault with a weapon for which he received a 24- month probation order.

He then gets a couple of breach of probation charges netting him sentences relatively low on the scale, and most pertinently, in 2015 he is sentenced for the sexual assault of two women on two separate dates; one in April and one in May of 2014. He was sentenced to and continues to serve a five-year sentence pursuant to a joint submission before the Honourable Judge Lamperson on those and related charges.

At the time of his sentencing before Judge Lamperson, I am told that the police had become aware of his connection, potentially his connection, to the matters for which he is currently before the court, the 2012 matters. It is difficult to know whether or to what extent Crown or defence knew of it at the time that they made submissions before Judge Lamperson.

There is no reference in his reasons to any such connection. [ 8 ] Here it is important to note, without going into too much detail, that there are many factors with respect to the matters before Judge Lamperson for which this offender was sentenced in 2015 as compared to the facts before me today, in particular the involvement of vulnerable women, encountered by chance, who were seriously sexually assaulted using violence, actual and threatened, over a sustained period of time. [ 9 ] The pre-sentence report in this matter describes this offender as being of moderate to high risk to reoffend, elevating him from a previous assessment when before Judge Lamperson in 2015 of low to moderate.

The offender, through counsel, does not take particular issue with that finding per se, but does note that there are some factors that are problematic and perhaps should not be taken into consideration that underlie that assessment. [ 10 ] I agree there are some problematic factors, in particular those relating and set out in the latter part of the third paragraph of page 5 of the pre-sentence report, but as Crown has pointed out, and I agree, that paragraph constitutes a

summary of a more detailed assessment that was done up by Corrections Canada with respect to a risk assessment of this offender for the purposes of his pending statutory release, so on that basis I am nonetheless of the view that even with the inappropriate portions excised, the assessment of this offender as being moderate to high risk deserves significant weight. [ 11 ] The statutory principles, of course, are set out in s.718 of the Criminal Code and include, pertinent to this case, the factors of denunciation, deterrence, public protection, rehabilitation, reparation, and the promotion of a sense of responsibility in offenders. [ 12 ] In the present case the matter of denunciation, and in particular protection of the public are of paramount importance.

This is not to say that the matter of rehabilitation should be ignored, but rather, it must be considered having regard to the other factors and to the extent that it supports those factors rather than detracting from them. [ 13 ] Crown presented a number of cases going to the question of an appropriate sentence. It set out both the principles of sentencing

and the ranges that are encountered with respect to matters having facts such as those before the court. I have considered those cases. It is clear that there is a broad range for cases involving sexual assault, but it is equally clear that on the facts of the case before me I have an offender who has committed acts having a very high culpability and moral blameworthiness. Sexual assaults of this type on these facts are very grave. They impact core human dignity interests and are deserving of the highest denunciation. [ 14 ] There are mitigating and aggravating factors that I recognize.

They have been set out and referred to by Crown and implicitly, I think, endorsed or not contested particularly by defence. [ 15 ] I take into consideration the mitigation arising as a result of the guilty plea before me, the expression of remorse, and I accept that expression of remorse despite the comments that ought to be excised in the pre-sentence report that described him as perhaps making self-serving comments with respect to insights or remorse.

I accept his remorse, as well as his willingness to undergo treatment. [ 16 ] The aggravating factors, of course, are the random and unprovoked attack on a woman much smaller than him, not able to defend herself, in a public place where one ought to feel safe and secure from this kind of thing. The manner of the assault, including the strangulation, leaving physical marks, and that was clearly used to facilitate the commission of the assault and to overcome resistance that the victim was otherwise offering.

It was a cruel and degrading thing he did to her, a number of things he did to her that I have already recounted. He threatened her and her family while he was doing these things. [ 17 ] Also aggravating are his previous record, which I have already recounted, the harm he caused to the victim, and the significant risk to public safety that, in my view, continues to exist in the event of his release. [ 18 ] As I have already alluded, the protection of the public is of paramount consideration. In this regard, the Crown seeks an incarceration term of six to eight years.

The defence does not offer a range, noting only that there ought to be some accommodation for this matter being dealt with at this late stage as opposed to, under more ideal circumstances, having been dealt with at the time that the matter was before Judge Lamperson for the 2014 offences, in other words, in the year 2015, and that there ought to be some reduction or accommodation in the sentence imposed today to reflect that situation. [ 19 ] The total range of sentence in cases of this type can be very broad as noted in the cases, including W.N.C ., 2005 BCCA, ranging from two-and-a-half all the way to nine years, but clearly facts of the type before me are those that gravitate to the higher end of that range, unquestionably. [ 20 ] It is difficult to know exactly what sentence would have occurred or been imposed had this matter been dealt with at the same time as the 2014 offences, but this much is clear based on, I find, the comments made by Judge Lamperson at the time, indicating his surprise with respect to the range for that type of offence, that had that this matter also been before him, the sentence would have been higher.

There is no question in my mind that would have occurred. [ 21 ] At the same time, I am not sure I completely agree with the Crown’s submission that this matter ought to be handled on an entirely stand-alone basis without any regard whatsoever to the particular circumstances and timing of this matter being dealt with today.

There ought to be some accommodation, even if it is not amenable to a mathematical analysis, that would detract from what, in other circumstances, would be what I agree is a very reasonable submission with respect to a six to eight-year range. [ 22 ] Having regard then to all of those circumstances, in my view the sentence that would be a fit sentence for this offender under the circumstances I have recounted and having his personal circumstances, would be a sentence of five years. That is the sentence I impose commencing today.

That sentence would be concurrent to any sentence he is currently serving, as well as to Counts 1, 2 and 3 themselves. [ 23 ] The other prayers for relief sought by Crown are, in my view, fit and appropriate and specifically are as follows: I direct that he provides samples suitable for analysis of his DNA, Counts 1, 2 and 3 being primary designated offences. [ 24 ] As well, pursuant to s.109(2)(b), a lifetime ban prohibiting the possession of all the items set forth in that section. [ 25 ] As well, the sex offender’s registry order in Form 52, and the victim fine surcharge in the amount stipulated per count. [ 26 ] I direct, as requested, that this being a penitentiary sentence, that the reasons for sentence and the pre-sentence report be forwarded to the Correctional Services of Canada. [ 27 ] Those are my reasons, unless there are any other matters that require attention. [ 28 ] MS.

LOPES: Crown directs a stay of proceedings on Count 4 and Count 5 of the indictment, if that hasn’t been done before. [ 29 ] COURT CLERK: No, it hasn’t. [ 30 ] MS. LOPES: Thank you. (REASONS FOR SENTENCE CONCLUDED)