R. v. W.X.L. Date:, 2012 BCPC 116

Citation: R. v. W.X.L. Date: 20120412 2012 BCPC 0116 File No: 222047-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. W.X.L. EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. L. BAGNALL Counsel for the Crown: J. Cryder Counsel for the Defendant: G. Lee Place of Hearing: Vancouver , B.C. Date of Judgment: April 12, 2012

[ 1 ] THE COURT: W.X.L. is charged with having assaulted his 15-year-old son D. with a weapon. The Information indicates that the weapon was a knife, but the weapon in question was actually a meat cleaver. The charge arose as a result of events which occurred on August 14, 2011. The Information was sworn the next day. [ 2 ] The Crown proceeded summarily and the matter was scheduled for trial commencing on January 10, 2012. On that day, the complainant did not attend court. The prosecutor, Mr.

Cryder, told the court that the wife of the accused and the mother of the complainant, I.J., had been served with two subpoenas, one for herself and one for her son, D. Neither person attended at the time scheduled for interviews with the prosecutor. [ 3 ] On January 9th, the day before the trial was to commence, I.J. attended Mr. Cryder's office. Mr. Cryder told me that she indicated to him that she and D. were reluctant to attend court. Mr. Cryder told me that he explained the obligations which were hers and D.’s in respect of the trial to I.J.

On January 10, 2012, the first day of the trial, I.J. attended court, but D. did not. [ 4 ] Having met with I.J. again, Mr. Cryder made an application for a warrant for the arrest of D.L. The application was granted with a direction that the warrant be held in the file until the next day. I.J. was present in court during the proceedings dealing with the issuance of the warrant. [ 5 ] On the second day scheduled for trial, January 11, 2012, D. did attend court. The accused then entered a plea of guilty to the single charge on the Information.

All of this, of course, is relevant to the issue of remorse and the taking of responsibility for these events by the accused. [ 6 ] Counsel for the Crown then recited the circumstances which gave rise to the charge to the court. The matter was adjourned so that a Pre-Sentence Report with a psychological component could be prepared. [ 7 ] As a result of an error made by counsel, the sentencing was originally scheduled before another judge and that situation took some time to correct.

On the next day that the matter convened before me, April 3, 2012, I heard further submissions and I reserved my decision respecting sentence until today. [ 8 ] As I have said, the circumstances which gave rise to this charge were related to the court both on January 11th and on April 3rd, 2012. On the basis of those submissions and what has been said on behalf of the accused, I accept the following facts. [ 9 ] At 7:30 p.m. on August 14, 2011 at the family home, an argument broke out between the accused and his 15-year-old son, D.

The wife of the accused, I.J., and the three-year-old daughter of the marriage were present at the time. The accused and D. ended up in a tussle or a struggle over a laptop computer. The accused pulled the computer away from D. and punched him once. [ 10 ] D. ran to his bedroom to call the police and the accused went to the kitchen of the home and picked up a meat cleaver. He waved the cleaver at D. and struck him on the shoulder with the flat end of the cleaver, that is, the edge opposite the blade, as I understand what I was told.

D. was able to telephone 911, but the main phone jack was disconnected from the wall in another room in the home and this disabled the phone that he was using. It is unclear whether it was the accused or I.J. who disabled the phone. [ 11 ] D. then left the home and went to an adjacent apartment to seek help including calling the police and I.J. followed him and indicated to the neighbours that there was no problem. The police did arrive and, as I understand the circumstances, the accused was arrested. [ 12 ] D. suffered injuries as a result of this assault.

He had a minor cut on his hand, which may have resulted from the struggle over the laptop or it may have resulted from the attack with the cleaver. He had bruises and red marks on his neck, his arm, and his back. [ 13 ] Alcohol and drugs were not factors in this event. [ 14 ] On behalf of the accused, counsel told me that W.X.L. became angry with his son because of his disrespectful attitude. I was told that D. was "very aggressive" towards his father, but counsel did not dispute any of the allegations respecting the facts made by the Crown. [ 15 ] There is a history of some violence within the family.

W.X.L. was convicted of a charge of assaulting his wife as a result of events which occurred on July 13, 2008. He entered a plea of guilty on February 5, 2009. [ 16 ] The circumstances alleged by the Crown on that occasion were that W.X.L. was seen in a vehicle with his wife and children, then aged 12 and one. He was punching his wife, which caused people in the area to intervene.

During submissions respecting the appropriate sentence, it was clear that the accused did not agree with the Crown's estimate of the number of blows he struck, which was approximately 10, but counsel on behalf of W.X.L. agreed that he "struck out at his wife". Counsel made a joint submission with respect to the appropriate sentence so the facts were not related to the court on that occasion in great detail. [ 17 ] In sentencing the accused, Judge Kitchen said as follows: W.X.L., this matter I heard about is quite serious and upsetting.

I do not know how many times you hit your wife, but hitting her at all is a serious matter and particularly upsetting and concerning is the fact that your child was there, your 12-year-old. No child should be exposed to that sort of nonsense. In cases such as this, it is somewhat exceptional for the court to consider a discharge. Because you have pled guilty and accepted responsibility and you now understand the seriousness of the situation, I will give you a discharge, but I want you to understand that as far as I am concerned, you are getting a considerable break here.

I hope you take advantage of that and there are no more problems. [ 18 ] Judge Kitchen then discharged the accused conditionally, placed him on probation for nine months, and ordered that he report

to a probation officer and take anger management counselling. [ 19 ] The author of the psychological report filed in the present proceedings, Dr. Lewis, wrote the following about these events. I am reading at page 4 of the report: When asked about his previous conviction for assault against his wife, W.X.L. reported that the assault occurred in July 2009. His wife and son stated that they wanted to go swimming while W.X.L. attended a party. He told them that he could drive them to the pool on his way to pick up other party guests at the request of the host.

After arriving at the pool, W.X.L.'s wife decided that she wanted to attend the party with him. He told her that she could not attend because there was not enough room in the vehicle for her. According to W.X.L., his wife became very angry and would not exit their vehicle. He stated that he tried to pull her out of the vehicle and, during the struggle, his phone dropped to the floor. His wife picked up the phone and threatened to call 911 if he did not leave her alone.

W.X.L. believed that his wife threatened to make this call to Emergency Services because she was angry at him and because she wanted him to stop trying to pull her from the vehicle. W.X.L. denied that he punched or struck his wife in any manner as was indicated in the police reports. He stated that he was not really angry during the interaction. Rather, he was trying to make her understand that he had a "mission from his friend" and could not take her with him.

He reported that he regrets attempting to pull her from the vehicle and now realizes that he should have either taken her to the party or not attended the party himself. W.X.L. reported that most of the time he is a very peaceful person and that he and his wife do not argue often. He stated that when they disagree on something, he tries to convince her of his point by talking through the issue.

W.X.L. indicated that he did not remember ever being physically aggressive with his wife during the 20 years that they have been together. [ 20 ] The relevance of this is, of course, in respect to W.X.L.'s remorse and sense of responsibility regarding his resort to violence in the domestic context. He did not dispute that he struck his wife at the sentencing before Judge Kitchen. At the present time, he asserts quite a different version of the facts. [ 21 ] This event was serious as reflected in Judge Kitchen's comment.

In addition, I note that I.J. told the author of the Pre- Sentence Report that she considered seeking a divorce as a result of the assault on her committed by the accused. [ 22 ] The Pre-Sentence Report also sets out the fact that after the assault W.X.L. did not return to the family home until May, 2011, because he feared further conflicts and that is his reasoning. The fact that he did not return to the family home was not something which occurred as a result of a court order. This was apparently W.X.L.'s choice. [ 23 ] Returning to the matter before me.

In submissions, counsel for the Crown took the position that a conditional sentence of six months duration followed by probation for one year is the appropriate sentence. Counsel for W.X.L. submitted that the court ought to suspend the passing of sentence and place the accused on probation for 12 months. Each counsel made submissions respecting appropriate conditions to attach to the various orders suggested which I will not recite in detail here. [ 24 ] The Pre-Sentence Report was prepared in March, 2012, and is filed in these proceedings. W.X.L.'s antecedents are set out in that report. He is 46 years of age.

He came to Canada from his native China in 2005 with his wife, I.J., and the then nine-year-old D.. The couple's daughter was born in Canada and is now four years old.

W.X.L. is well educated and he is employed here as a geotechnician and he also works as a realtor. [ 25 ] The Pre-Sentence Report sets out that W.X.L. did complete the Respectful Relationships program in 2009, I am assuming as a result of Judge Kitchen's order, but that conflict has continued in the home in spite of that counselling. [ 26 ] W.X.L.'s attitude towards the offence may be discerned from the various reports, the submissions of counsel, and his comments in court. The author of the Pre-Sentence Report wrote this at page 4 under the heading "Attitude and Understanding Regarding Offence": K. is contrite.

He states he will accept the consequences of his behaviour. He is disappointed with his conduct being a poor model. K. reiterates several times that he had no intention of hurting his son, but only to scare him. He highlights the underlying factors for the present offence. He was frustrated by his son's behaviour including being disrespectful to the parents. He had poor parenting skills and anger management. [ 27 ] W.X.L. told the author of the psychological report the following at page 2 of the report: While they were struggling with the laptop, W.X.L.'s son punched him on the left chest area.

W.X.L. stated that he became angry because he realized that his son had changed and now seemed to think that he was grown up and it was okay for him to hit his father. He pointed out that his son is taller and stronger than he is. He added that he had no difficulty dealing with a verbal conflict with his son or with anyone else. However, he was not comfortable with his son being physically aggressive. He stated that he felt that his son has "completely lost control." W.X.L. picked up a book from the table and threw it at his son in [sic] attempt to scare him.

His son ran away and knocked over one of his sister's toys as he was going. W.X.L. indicated that his son was looking back at him as he was leaving the living room and he believed that his son was going to come back and be more aggressive. W.X.L. stood up and went into the kitchen. He saw a knife sitting on the chopping board and picked it up. W.X.L. stated that he picked up the knife in an attempt to scare of [sic] his son and to send the message to him not to come back. He indicated that he was in the doorway while his son was in the living room and his wife was standing between the two of them in the doorway.

He believed that his son was going to try to hurt him. W.X.L. described standing in the kitchen and reaching around his wife in [sic] attempt to scare his son with the knife at the same time that his son was trying to reach around his mother in order to punch W.X.L. W.X.L. believed that the flat part of the blade of the knife struck his son on the shoulder and his son ran away and tried to call 911. W.X.L. stated that he could not remember if he and his son were yelling at each other during the altercation. He believed that his wife was speaking to both of them in an attempt to de-escalate the situation.

[ 28 ] This, of course, is not at all like the description of the events related by the Crown in submissions, which were not disputed by the accused on April 3, 2012. [ 29 ] W.X.L. expressed a concern to the author of the psychological report that: The entire family has difficulty communicating with each other and he worries that inappropriate and possibly violent behaviours will occur in the future if they do not learn how to communicate properly.

That this concern is expressed by the offender here is, of course, very telling. [ 30 ] The psychological report concludes with the opinion that W.X.L.'s violence results from poor coping skills, increased stress, poor communication skills and an authoritative personality style. [ 31 ] Counsel for the accused filed a letter from I.J. setting out her positive view of the accused as a father and her desire that he be allowed to return home.

I was told that D. agrees that his father should come home. [ 32 ] This issue, of course, is of the greatest concern for me as I sentence the accused. [ 33 ] W.X.L. assaulted his wife in the presence of his children in July, 2008. He entered a guilty plea six months later. At the present time, it is clear to me that he minimizes the events which gave rise to that charge.

He was ordered to take counselling as part of the conditional discharge which resulted and he did so. [ 34 ] He did not return to the family home, although he was not ordered to stay away, until May, 2011, and I have already indicated the reasons he gave for that. He expresses the same concern about the future, as I have just indicated.

Three months after he returned to the family home, he assaulted his 15-year-old son by hitting him repeatedly with the flat edge of a cleaver, causing multiple bruises and marks on his son's neck, back, and arm. [ 35 ] I said during submissions that this was an extraordinarily dangerous weapon to choose to discipline his son, if indeed that is what W.X.L. was doing, and I repeat that comment here.

The result of this event and, in particular, the result if the event unfolded the way W.X.L. described it could very easily have been a fatality. [ 36 ] W.X.L. entered a plea of guilty on the second day scheduled for the trial of this charge when his son, in effect, was forced to attend court by the issuance of a warrant for his arrest, and was prepared to testify.

In his interviews with the authors of the Pre- Sentence Report and the psychological report, W.X.L. has minimized his involvement in the assault on his son in the same way that he minimized his involvement in the assault on his wife. [ 37 ] He told me in his comments during proceedings in court that he is remorseful, but in view of the timing and the circumstances of this plea of guilty and what he said when interviewed, I must conclude that he actually does not take full responsibility for what he did. [ 38 ] I turn to a consideration of the safeguards which might be put in place to protect D. once his father returns home as suggested by counsel.

I.J. cannot, in my view, be relied on to provide any protection for D., or indeed for her daughter. She has been a victim of the accused's violence, having been assaulted by him in the presence of the children in July, 2008. Further and much more telling, on the occasion which concerns me she made significant efforts to prevent D. from contacting the police and getting help from them. She intervened when he sought help from a neighbour. [ 39 ] In addition, it is impossible to conclude that I.J. was not either responsible for or complicit in her son's failure to attend court on the first day scheduled for trial.

Indeed, she came and met with the prosecutor and indicated that both she and he were reluctant to come to court. Her obligations having been explained to her, D. still did not appear the next day, and I take this into account, also, given the age of the complainant. [ 40 ] Finally, I must highlight that the family includes a four-year-old child.

I must be concerned about her safety in the future given W.X.L.’s assaults on his wife and his teenage son and the presence of this child on both occasions, although she would have been too young to remember the first occasion. [ 41 ] This is a case in which a jail sentence is not just appropriate, but is necessary, to address the principles of sentencing set out in s. 718 through 718.2 and especially ss. 718.01 and 718.2(ii.1). I am directed in these circumstances to consider as paramount the principles of deterrence and denunciation.

I am directed to consider the age of the complainant and the position of trust his father held towards him as aggravating circumstances. [ 42 ] I am satisfied that six months is the appropriate length of sentence given the circumstances here. I am also satisfied that with certain conditions in place, W.X.L. may serve his sentence in the community. [ 43 ] You may stand up now, please, W.X.L. The sentence will be as follows. [ 44 ] W.X.L., you are going to serve six months by way of a conditional sentence order. The statutory conditions will apply.

You will have two days to report to a supervisor and I will add the following conditions. [ 45 ] You will take counselling as directed by your supervisor. [ 46 ] You will possess no weapons, and the definition of "weapons" for the purposes of this order includes knives, except knives you possess for the purposes of food consumption or preparation. [ 47 ] You will not enter a two-block radius of the 7100 block ---- Street, Burnaby, B.C. [ 48 ] You will have no contact directly or indirectly with D.L. except during family counselling sessions which may be approved

by your supervisor. [ 49 ] There will follow a probation order. W.X.L. will be placed on probation for a period of 18 months. The statutory conditions will apply and I will add the following. [ 50 ] Within 72 hours of the commencement of this order, he will report to the probation office at 275 East Cordova Street, Vancouver, B.C., and thereafter as directed. The remaining conditions will be exactly the same as those included in the conditional sentence order. [ 51 ] The orders will be prepared in writing. They will be read and explained to W.X.L. Copies of these orders will be given to him.

I delegate to the clerk of the court the other responsibilities I have under the Criminal Code . [ 52 ] There will be no surcharge with respect to this matter. [ 53 ] I am going to make the two orders that have been suggested by Crown. The first is a mandatory order. There will be an order the W.X.L.'s DNA will be taken pursuant to s. 487.051. Submissions were made suggesting that this was an unwarranted intrusion. It is not. It is necessary to take samples in this case. [ 54 ] Under s. 110, he is prohibited from possessing any of the articles listed in that

section for a period of 10 years. [REASONS FOR SENTENCE CONCLUDED]