R. v. Wheatley Date:, 2017 BCPC 318

Citation: R. v. Wheatley Date: 20170920 2017 BCPC 318 File No: 222691-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DARREN WHEATLEY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. D. GULBRANSEN Counsel for the Crown: K. Wendel Counsel for the Defendant: I. Ferbey Place of Hearing: Surrey , B.C. Date of Hearing: September 14, 2017 Date of Judgment: September 20, 2017

INTRODUCTION [ 1 ] THE COURT: Darren Wheatley has pleaded guilty to a charge of failing to comply with his long-term supervision order, contrary to s. 753.3 of the Criminal Code . He left the residence in which he was required to live and was not arrested until three weeks later. The Crown seeks a prison sentence of 15 to 18 months while the defence suggests that a fit sentence would be a further three months incarceration. [ 2 ] The sentencing in this case is complicated by the interplay between three important sentencing goals or principles.

First, a long-term supervision order is designed to protect the public from the offender committing further violent offences. Thus, a significant prison sentence is required to protect the public from someone who will not obey the terms of this order. Second, however, the order is also designed to facilitate the rehabilitation of the offender and to reintegrate him into society. Third, the court must consider his circumstances as an aboriginal offender and consider imposing a sentence on Mr.

Wheatley which takes into account the need to reduce the over-representation of aboriginal persons in our prisons. [ 3 ] The circumstances of the offence are roughly as follows. BACKGROUND [ 4 ] On July 25, 2005, Mr. Wheatley was convicted in the Ontario Superior Court of Justice of two counts of sexual assault, one count of sexual assault causing bodily harm and two counts of attempting to choke or strangle a person under s. 246 of the Criminal Code . That offence relates to someone attempting to choke someone to make them unconscious or to render them unable to resist. The sentencing judge found that Mr.

Wheatley was a long-term offender and imposed a prison sentence of a total of 10 years, to be followed by 10 years of supervision in the community pursuant to the terms of the long-term supervision order. [ 5 ] Mr. Wheatley had considerable difficulty in complying with terms of his parole when he was eventually released from prison. His parole was revoked several times. He was eventually released from prison on August 20, 2015, two days before the expiry of his prison term, to begin serving the long-term offender supervision order.

He violated the order on the very day that he was released by failing to go to the residence in which he was ordered to live. He was arrested three days later. [ 6 ] He was originally sentenced on that offence to 18 months in prison. That was varied by the Court of Appeal to 15 months. Mr. Wheatley was released from custody on December 19th, 2016 to resume serving his long-term supervision order in the community. He began participating in the Sex Offender Community Maintenance program but on January 23, 2017, Mr.

Wheatley failed to return to the community residential facility in Surrey where he had been required to live pursuant to the terms of the order. He was not located until February 16, 2017, when he was arrested for trying to sell a small amount of cocaine to two undercover Vancouver police officers. [ 7 ] Mr. Wheatley admits that during the time that he was at large, he used drugs fairly extensively, including cocaine.

He has remained in custody since his arrest. [ 8 ] The Crown emphasizes that failing to obey the residential term of the long-term supervision order is a particularly serious breach of the order because no supervision or treatment can occur if the authorities do not know where the offender is. As well, the Crown notes that when he was arrested, Mr. Wheatley was completely uncooperative with the police. He swallowed the drugs that he was trying to sell.

He gave a false name and it was not until he was recognized by a police officer that he admitted who he was. [ 9 ] The Crown emphasizes that this is the second time that Mr. Wheatley has breached the long-term supervision order. That, in the Crown submission, is a significant aggravating factor as is the length of the time that he was absent. The Crown also notes that Mr. Wheatley had considerable difficulty in complying with the terms of his parole on the various times he was released before he completed his sentence. The only way to deter Mr.

Wheatley from continuing to disobey conditions in his long-term supervision order is, in the Crown's submission, to impose a significant prison sentence of 15 to 18 months. [ 10 ] Mr. Wheatley does not try to minimize the significance of his offence. He says that it was not, however, a planned or calculated act. Rather, he says that he acted on an impulse when he felt overwhelmed by the combination of the demands upon him made by the authorities and the psychological pressure that he felt upon making his first attempt to deal with the serious trauma that he had suffered during his life.

The Crown takes issue with his portrayal of the reasons for his fleeing and points out that Mr. Wheatley's considerable history of difficult and obstructive reactions to directions given by the Parole Board and in his reactions to involvement with the police. [ 11 ] Mr. Wheatley's main submission is that he has taken positive measures to benefit his rehabilitation by finding the type of counselling he needs to finally cope with the significant traumas of his life.

He implies that, if he is able to successfully deal with this, it will make it much less likely that he will reoffend and more likely that he will successfully complete the long-term supervision order. He also points out that he has spent his time at the Surrey Remand Centre in completing whatever treatment and counselling is available to him. He now has a concrete goal of attending a facility on Vancouver Island which will help him to cope with the burden of the trauma that he has suffered in his life. CIRCUMSTANCES OF THE OFFENDER [ 12 ] Mr.

Wheatley, who is 47 years old, is an aboriginal person from the Wasauksing First Nation near Perry Sound, Ontario. He is Ojibwe. His childhood and early youth were chaotic and tumultuous. He reports being sexually abused by the person he believes to be his father. But, Dan Wheatley, who was purportedly his father, denies being the parent of Mr. Wheatley. That came to as a complete shock to Mr. Wheatley. His parents separated when he was very young. He lived mainly with his mother. Shockingly, she died when he was 13 years old.

His recollection is that he and others were watching a football game on television when his mother's boyfriend noticed that she was not breathing. He still has no idea of the cause of her death. In later years, more than a few years later, one of his older siblings, his brother, died when he fell or jumped from a building.

[ 13 ] Mr. Wheatley lived for some time with Dan Wheatley who, he says, led him to start consuming alcohol as a kind of drinking companion. He says that his father treated him so brutally that he ran away and lived for a while on the streets of Toronto. This is at the age of 13. Eventually, he was put in the custody of child protection authorities and placed in a group home. He says that he was sexually abused by a man at that group home and when he reported the abuse, he was beaten until he retracted his complaint.

Eventually though, he was placed in a foster home which treated him properly but, of course, that placement ended when he became an adult. [ 14 ] It appears that Mr. Wheatley lived a disorganized and tumultuous life. It seemed to consist of hustling for money, committing crimes and consuming drugs and alcohol. He spent some time in prison as a youth. He continued to commit crimes as an adult and it is notable, in my view, on his very first conviction as an adult, at the age of 18, for the offence of theft, he received a prison sentence for what appears to be a relatively minor offence.

This is an all too common occurrence in the lives of young aboriginal men. However, at the age of 22, he was convicted of a grave crime, sexual assault causing bodily harm and attempting to choke or strangle a person contrary s. 243 of the Code . He received a sentence of six years in prison. After he served that sentence, he resumed his antisocial lifestyle and was convicted of a number of crimes for which he received shorter jail sentences. However, in 1992, at the age of 32, Mr.

Wheatley was convicted of the offences which resulted in him being declared to be a long-term offender. [ 15 ] As I have noted above, most attempts at parole were unsuccessful. There was however, one bright spot in his otherwise dismal performance on parole. For about 19 months, while he was on parole, he established a relationship with a woman and was gainfully employed. Unfortunately, he was laid off and the relationship did not last. He ended up back in prison.

However, it is notable, or important to note, that his former girlfriend was interviewed for the Gladue report and she spoke quite well of him. [ 16 ] Mr. Wheatley addressed the court after counsel made their submissions. He spoke quite frankly about his life and his current situation. It may be that he did not fully accept that he alone was responsible for fleeing and staying away for three weeks. However, he made it clear that he bore the responsibility for this breach.

He remarked, at one point in his address to the court, that when he is overwhelmed and in some despair he has a tendency to run away and to take drugs because the drugs make him feel better, in the sense that they temporarily relieve his feelings of despair and hopelessness. [ 17 ] He mentioned that he finally decided to delve into the effects of the trauma that he suffered in his childhood and youth before he was sentenced to his first federal prison sentence. That, he said, was a very difficult process and the counselling that he took affected him profoundly.

He believes that he must continue with this treatment or counselling for trauma if he wants to finally succeed in living in the community. [ 18 ] It was also clear to me that he is trying to understand both his course of development as a child and young man, and trying to understand why he committed the crimes that put him in prison. Like anyone else, he is sometimes baffled by the random blows that fate seems to deliver. My impression is that he has taken his time in custody for this offence to engage in some intelligent introspection about himself and what has to be done for him to change.

ANALYSIS [ 19 ] Two of the three important sentencing considerations in this case will never change. First, Mr. Wheatley has been convicted of four sexual assaults, two of them causing bodily harm and he has been convicted of, in relation to three of those offences, to attempting to choke or strangle his victims. The existence of that record means that he will always be regarded as a danger to the public, particularly women. Whether he is regarded as a medium to high risk, or a medium risk to reoffend, does not matter.

The view the authorities must take is that the best predictor of future behaviour is past behaviour. Thus, in a case like Mr. Wheatley's, the court must always impose a sentence which will deter him from violating the terms of his order and which will denounce his behaviour and which will isolate him from the public for a further length of time. [ 20 ] Similarly, his tragic, turbulent and violent life circumstance which is all too common among aboriginal men, has been, in some ways, of consequence of the state of many aboriginal people in Canada.

That is, aboriginal communities and families have been fractured, even torn apart, by the residential school system. Children in his reserve were forced into residential schools. This included his mother. A long history in Canada of aboriginal communities being marginalized in Canadian society and in the Canadian economy has also left many aboriginal people to feel despair, isolation and anger. Some of what Mr.

Wheatley has to do to reintegrate himself into society is to try to understand and overcome the consequences of his tragic history. [ 21 ] The third factor, prospects of rehabilitation, is the one factor that can change. In that regard, there are some hopeful signs among the many failures that Mr.

Wheatley has experienced, both on parole and then while attempting to participate in the long-term offender supervision order. [ 22 ] First, he has shown that he has an ability to maintain a successful, intimate relationship with a woman. [ 23 ] Second, he has demonstrated that he is able to obtain employment and stay employed for a significant period of time. He has been pursuing qualification as a carpenter and is relatively close to completing that qualification. Of course, he can only do so if he stays out of jail. [ 24 ] Third, he has finally taken some initiative to pursue his rehabilitation.

His decision to explore the trauma and pain that he himself suffered as a young boy and a teen, shows that he is taking responsibility for his rehabilitation. That, in turn, suggests that he may, one day, be able to overcome the impulses to run away whenever he feels overwhelmed and hopeless. None of this will be easy or straightforward for Mr. Wheatley. He has spent much of the last 30 years in various prisons.

In particular, he has served a six-year sentence at a federal institution and then the more recent 10-year sentence that he received 11 years ago. [ 25 ] He will have to work to change his attitudes towards those in authority and will have to realize that he will be under the strict supervision of the Parole Board for essentially the next 10 years or even longer. It is up to him to demonstrate that he will comply with their directions. This is not an easy thing for anyone to do, but given Mr. Wheatley's status as a sexual offender, the Parole Board really cannot permit him much leeway.

CONCLUSION [ 26 ] What is a fit sentence here? The court must impose a significant consequence for the breach of this long-term supervision order. This is the second time that he has violated the order. Therefore, he has spent very little time in the community so far. Both breaches of the order were ultimately a result of Mr. Wheatley's emotional state and were impulsive, irrational acts. [ 27 ] The first breach suggested that Mr. Wheatley was unable to even start the supervising program because he did not show up at the approved residence where he was supposed to start it.

Before he committed the second offence, the second breach, Mr. Wheatley had at least started on the program and taken some counselling. Of course, the length of time that he was away must be considered an aggravating factor. It is nonetheless significant that Mr. Wheatley, while awaiting sentence on this charge, has taken further counselling and has shown that he has thought seriously about what he needs to do to change.

That is, if he is able to obtain a better understanding of his life, what harm he has done to others, and how he can go about complying with the supervision order over the long term, the chances of reintegration into the community are much better. [ 28 ] As well, the fact that for a significant period of time he maintained an intimate relationship with a woman and was employed, provide evidence that he is at least capable of reintegrating into the community. [ 29 ] It is these hopeful signs, that rehabilitation is at least a reasonable possibility in this case that leaves me to conclude that the sentence to be imposed need not be as long as suggested by the Crown.

I take into account that Mr. Wheatley will have to overcome difficult consequences, the difficulty of his tragic and turbulent life as a youth and a young aboriginal man. Deterrence in this case will be achieved in two ways. First, Mr. Wheatley was immediately incarcerated upon his arrest and remained in custody. That sends the message that any breach of the long-term supervision order will result in immediate and harsh consequences. Second, there must be a significant prison sentence imposed as a consequence of the breach.

The need for a lengthier sentence, in my view, is mitigated by the positive signs that I referred to above. [ 30 ] I find that a fit sentence for Mr. Wheatley, therefore, would be one year in prison. I take into account that he has spent the equivalent of 184 days in custody, giving him credit for 1.5 days for each day spent in custody. I, therefore, sentence him to a further 181 days imprisonment. [ 31 ] I will exercise my discretion to make the $200 victim fine surcharge payable forthwith.

The two days in default of payment of the surcharge will be served concurrently with the sentence I imposed. [ 32 ] Pursuant to s. 743.1(3.1) of the Criminal Code , this sentence must be served in a penitentiary. [ 33 ] As we discussed before I started my reasons, this is a secondary designated offence. In my view, the law requires that I make such an order, and I do make an order that DNA samples may be taken pursuant to the relevant section. (REASONS FOR SENTENCE CONCLUDED)