R. v. J.R. Date:, 2012 BCPC 240

Citation: R. v. J.R. Date: 20120626 2012 BCPC 0240 File No: 222742-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J. R. EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. ST. PIERRE Counsel for the Crown: L. Krivel Counsel for the Defendant: A. Glouberman Place of Hearing: Vancouver , B.C. Date of Hearing: June 26, 2012

Date of Judgment: June 26, 2012 [1] THE COURT: Well, it is all a tragic situation for everybody involved. This is Mr. R. being sentenced for on 24th ofNovember, 2011, he committed an aggravated assault of J.S. contrary to s. 268(2) of the Criminal Code. [2] Mr. R., who is 25 years old, who was living with his girlfriend at the time or staying at the time with his girlfriend at atemporary shelter for homeless individuals in Vancouver. Mr. S. was also a resident there at that same place. Somehow -- well, thesubmissions are certainly that they knew each other before the incident.

What kind of relationship they had is difficult to determine fromthe submissions that have been made and the contradictions that arise from the different reporters of the information. [3] Mr. R., for whatever reason, had developed a beef with Mr. S. and, on this particular occasion, November 24th, 2011, wasarmed with a curved knife or hatchet-type object. There is a picture of it that was filed on the bail hearing and I was asked to and I didhave a look at that item. There are also pictures of Mr. S. after the assault. [4] Mr.

S. was apparently engaged in a common area stripping some copper wire as apparently it was normal for him to do somesalvaging-type operations. When Mr. R. approached him, and the incident is caught on video, Mr. R. lifted up his arm high over hishead with the curved knife in his hand and brought it down on Mr. S.'s head at least three times. What was apparent about this assaultwas it was a clearly unprovoked assault and the description is a vicious assault on an unarmed man at the time. [5] Mr. S. stood up at that time.

He still had his faculties about him, although he had fairly significant lacerations on his head. Hisskull itself was not fractured. So there is -- the photos show a significant blood loss, but in any event, Mr. S. stood up and startedengaging in a fight with Mr. R. which spilled outside and eventually the two separated and Mr. S., when he eventually got some medicalattention, had suffered some massive blood loss and has 25 stitches and a couple of staples in his head. [6] Miraculously, and I agree with that characterization, there does not appear to be any lasting injuries. The last we heard fromMr.

S. was that he was suffering from some headaches. When I say lasting injuries, I mean deficits to his brain functioning or anythinglike that. That is just completely fortuitous, of course, because the assault that was committed here could very well have resulted in Mr.R. being charged with a homicide. It is just really fortuitous that that did not happen. It was just luck, just blind luck. [7] I am told and everybody agreed that Mr. R. was under the influence of narcotics at the time of the offence. The Crown pointsto the violence of this incident and to the criminal record of Mr.

R. which dates back to a Youth Court record, back to 2001 where he hadsome assault on his record and, as a youth was carrying concealed weapons several times, a couple times, and then unauthorizedpossession of a prohibited or restricted weapon as a youth in 2004. [8] 2005 was the incident as an adult that he was charged with a serious robbery and forcible confinement where he received afederal sentence, 30 months, and that was four counts there of robbery. He received 30 months on each charge. He was paroled. Hewas recommitted as a parole violator in 2006, received statutory release in 2007.

In 2007, another couple of offences, obstruct peaceofficer and theft and was released again, was a statutory release violator, and recommitted. [9] Mr. R. has various other charges, various other criminal convictions for theft, possession, some narcotics offences. The Crownstresses his record and the seriousness of this particular offence and the cases that I was pointed to including some B.C. Court of Appealauthorities -- which I should note for the record, I guess. [10] R. v. Wright, [2010] B.C.J. No. 2684, a B.C. Supreme Court case where Mr. Wright there received a six-and-a-half-yearsentence.

Four years of that was the concurrent sentence for aggravated assault. [11] There is the case of R. v. Anderson, [2008] B.C.J. No. 78, a Provincial Court case, Judge Rounthwaite, where she had imposed asentence of 42 months for a stabbing where the potential consequences were deadly. It was an unprovoked assault there. There wasintoxication involved. The accused there was on probation at the time. [12] In R. v. B.G.P., 2006 BCCA 215 , [2006] B.C.J.

No. 1058, the Court of Appeal -- the Crown appealed his sentence ofan 18-month conditional sentence order for a slashing-type assault with a Bowie knife in the stomach. It was deep enough to expose theinternal organs. [13] Mr. P. had done a great deal of work in rehabilitating himself prior to his sentencing and, on that basis, the trial judge granted an18-month conditional sentence order, but the B.C.

Court of Appeal said that despite those rehabilitative efforts, it was the kind ofincident that required a federal penitentiary sentence and they would have sentenced him to four years, but reduced that to three yearsbecause of those extensive rehabilitative efforts and those kind of efforts are not present in this particular case, and in that case, theaccused had a violent criminal record, as well. [14] R. v. L.D.W., 2005 BCCA 404 , [2005] B.C.J. No. 1746, that was a person who went to a house to assault the ex andthe new boyfriend, it looks like, five-and-a-half years for an aggravated assault. The B.C.

Court of Appeal upheld that sentence. [15] R. v. Biln, a 50-year-old accused person had no record. It was an incident fuelled by intoxication where at a wedding, a familyfunction, he got into a fight with some family members and struck one of them with a crowbar to the back of the head leaving them onthe ground bleeding profusely. Mr. Biln had no record, received a three-year sentence and that was upheld by the B.C. Court of Appeal. [16] Finally, there was R. v. Lehoux [1997] B.C.J.

No. 2659 (B.C.C.A.) which was the well-known case in the legal world because itinvolved a lawyer being struck on the head by a disgruntled litigant in a Family Court proceeding, I believe it was, and the 71-year-oldaccused person had taken out a hatchet-type instrument and struck the victim on the head several times leaving that person with, as Irecall, significant ongoing and lasting cognitive difficulties and that was a seven-year sentence that was upheld by the B.C. Court ofAppeal.

[ 17 ] So there is obviously a range. The Crown says here that the range is four to seven years given all the circumstances of the case and that the circumstances warrant a sentence, perhaps, in the lower part of that range. [ 18 ] I have to say Ms. Glouberman on behalf of Mr. R. has said as much as she possibly could say on behalf of Mr. R. He is a difficult client to represent because it is difficult to receive instructions. That is evidenced by the fact that the doctor who prepared the psychiatric report, Dr.

Bartel and the person who prepared the presentence report, that is Raymond Young [phonetic], the probation officer, had difficulty in getting information from Mr. R. that would assist them in the preparation of those reports. [ 19 ] In addition to that, Ms. Glouberman has had her own difficulties in getting information from Mr. R. in order to try and assist him in the sentencing of this matter, and she has characterized Mr. R., and his involvement in the criminal justice system this time, in the most favourable fashion that she possibly could fairly, but put the facts that she has to the court and, for that, Mr.

R. should be grateful. [ 20 ] The fact remains is there is little evidence or any kind of insight that Mr. R. exhibits with respect to this incident and with respect to his ability to cope in the community in general given his -- what everyone agrees is quite an intractable drug addiction problem. Mr.

R. is addicted to crystal methamphetamine and previously been addicted to crack cocaine. [ 21 ] The crystal methamphetamine addiction is one that is well known in these courts because of its intractability, because of its seriousness, because of the incredibly devastating effect of that addiction to somebody's organized thought patterns. It is a brain melter is what it is. It significantly reduces an individual's ability to make reasoned decisions, to operate violence-free in the community. [ 22 ] The doctor, Bartel, all he could really surmise from his interviews with Mr.

R. in his assessment and on the issue of prognosis is that he found that Mr. R. was a high risk for future violence and criminality. He found a profound lack of insight and antisocial and antiauthority attitudes which appear to be active symptoms of either a major mental illness which nobody really knows what the cause of which, but is thought to be likely drug-induced. [ 23 ] The risk management concerns are what -- are concerns are for everybody and especially a sentencing judge.

What do you do with an individual where there is a high risk for future violence and criminality and there is little understanding of what could be put into place to manage that high risk in a community setting? He is likely to be exposed to destabilizers, the same kind of destabilizers that he suffered prior to his involvement in this particular incident, if he were in the community. [ 24 ] You know, he has the kind of background that could be described as unfortunate, but not much different than most of the people we see in these courts, unfortunately. He does have a supportive -- at least his girlfriend, Ms.

M. [phonetic], who he has been with -- I am not sure how long, but for some period of time, is supportive of him. That is a positive. He has got a mother who apparently still supports him and that is a positive, but mom does not know what to do. The doctor does not know what to do. The probation officer is not really sure what to do. [ 25 ] With the history that Mr. R. shows in engaging the resources that would have been available to him with his contact with the criminal justice system, he has clearly not taken that much advantage of those resources. [ 26 ] With his reporting to the, for instance, Mr.

Young who wrote the probation report, that Mr.

R. opposes seeing anyone in the mental health profession because he does not really believe he needs any intervention in that aspect of his life, but his inability to sort of say what the issue is with him, what is it that he is missing in his life that if he had it he might be able to get onto a positive track and stay on that positive track, that leaves few sentencing options for a judge. [ 27 ] I take into account the Court of Appeal in Furness where they say that, you know, even if sentencing principles like deterrence and denunciation are the principal sentencing principles in that particular case, and they are, you cannot forget about rehabilitative aspects of a person's sentencing and how are they going to be prepared to re-enter society.

You cannot forget about that. [ 28 ] I am also cognizant of the fact that Mr. R. has an aboriginal heritage and I take account for that for a number of different reasons, but the Supreme Court of Canada has indicated in Gladue and cases that follow that, that it is extremely important to address that.

They also say in the -- the cases say following that, that there are certain cases where using the factors that one might use on the Gladue principles to mitigate the consequences in the sentencing process to an individual who is facing, in this case, a federal penitentiary sentence, using those factors is often difficult in certain circumstances where the background and the history of that individual and how their aboriginal heritage relates to their current functioning and their ability to operate positively in the community is difficult to ascertain.

Sometimes you do not have all the information that you require to effectively use those principles that were stated in Gladue and this is one of those cases. [ 29 ] I have to say that given the cases that were presented and the record that Mr. R. has, it is extremely difficult to know what the future holds for Mr. R. All I can say is that I hope that he gets the help that he needs inside the federal penitentiary so that he is prepared when he comes out to be a productive and non-threatening member of the community. [ 30 ] I hope that for him because nobody likes to send a young man to jail.

No judge likes to do it, and the community should not relish in that eventuality either, but there are some certainties in life and the only certainty involved in this particular process is that by removing Mr. R. from the community for a period of time it will ensure the safety of the community pending his hopeful engagement in some kind of rehabilitative processes in the federal penitentiary. [ 31 ] I think a sentence of four years is the appropriate sentence, Mr.

R. [ 32 ] I have been told recently that expressing the sentence in days helps Corrections somehow, so I will do that, I suppose, in this particular case. [ 33 ] I would have sentenced you to 1,460 days incarceration, Mr. R., and that is a four-year sentence. You get credit for the 210 days that you have spent in custody already and that reduced the rest of the time you have to spend in custody to 1,250 days in custody and that is to be served in a federal penitentiary.

[ 34 ] I hope you get some help, Mr. R. There is lots of help in the federal penitentiary. You need to engage it. When you get out, you have got a lot going for you and a lot of people who have some positive regard for you and some positive things to say about you. Look in the mirror, know that you have two children that one day may want to re-establish a relationship with you and know that anything that you can do to better yourself and to make yourself a productive member of the community is going to help you re-establish that relationship.

I hope you get some help. [ 35 ] THE ACCUSED: I hope I do, too, there, Judge. [ 36 ] MS. GLOUBERMAN: Thank you, Your Honour. [ 37 ] MS. KRIVEL: Can we deal with the DNA order and the -- [ 38 ] THE COURT: There is a DNA order and the s. 109 -- Mr. R., s. 109 -- come back for a minute. Ten years? I think it is 10 years or is it life now? He is second -- this is the -- he had the robbery in 2005. [ 39 ] MS. KRIVEL: I am just -- [ 40 ] THE COURT: I think that -- [ 41 ] MS.

KRIVEL: Can I just take a quick look, Your Honour? [ 42 ] THE ACCUSED: How many days was that again? [ 43 ] THE COURT: You got 1,250 left. [ 44 ] MS. GLOUBERMAN: So that is about four years -- [ 45 ] THE ACCUSED: 1,250 days left. [ 46 ] MS. GLOUBERMAN: Four years minus the seven months you have served. [ 47 ] THE COURT: Four years minus seven months is what it is. [ 48 ] MS. GLOUBERMAN: There is about 1,250 days left. Three years and five months. [ 49 ] THE ACCUSED: We'll see how this goes. You've got my [indiscernible] right? It is okay. It is all right. [ 50 ] MS.

GLOUBERMAN: At least 10 years. [ 51 ] THE COURT: Yes, make it for 10 years, then. Thank you. [ 52 ] THE COURT: I am going to return these documents and these books to the registrar. [ 53 ] THE CLERK: Thank you. [ 54 ] MS. KRIVEL: Stay on Count 2, thank you. [ 55 ] THE COURT: All right, thank you, Ms. Glouberman. [ 56 ] MS. GLOUBERMAN: Thank you, Your Honour, and was Your Honour waiving the victim fine surcharge? [ 57 ] THE COURT: Yes. [REASONS FOR SENTENCE CONCLUDED]