R. v. Drydgen, 2020 BCPC 288

Citation: R. v. Drydgen 2020 BCPC 288 Date: 20200109 File No: 230179-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. MALCOLM JAMEL ERIC DRYDGEN BAN ON PUBLICATION Pursuant to s. 517(1) of the Criminal Code of Canada ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. WEATHERLY Counsel for the Crown: C. McPherson Counsel for the Accused: B. Coleman, Q.C. Place of Hearing: Surrey , B.C. Dates of Hearing: May 28, 29, 31; June 25, 2019 Date of Sentence: January 9, 2020 [ 1 ] This matter is for sentencing today.

I just heard submissions this morning, so obviously there is no written decision but if I reserved, the decision would still be the same, so I will provide it now.

[ 2 ] After a trial, I found Malcolm Jamel Eric Drydgen guilty of aggravated assault of Michael Hoffman. I provided reasons for judgment on an earlier date and it is not my intention to repeat them today. Rather, I will simply provide a

summary of what happened. [ 3 ] On June 14, 2018, after consuming eight beer and a half a gram of cocaine over a number of hours, Mr. Hoffman made arrangements to meet an escort, Ms. Talic, at a local Surrey hotel. After arriving at the hotel, Mr. Hoffman went to Ms. Talic's hotel room. He thought there were only two people in the room. [ 4 ] Mr. Hoffman paid Ms. Talic $160 for sexual services. He put the money on a dresser in the room. Both Mr. Hoffman and Ms. Talic took off their clothes and got on the bed. They engaged in sexual contact. Mr.

Hoffman was unable to maintain an erection. [ 5 ] He got dressed and picked up the $160 and began walking towards the door. Ms. Talic then grabbed him briefly from behind and yelled, "Hey." At the time, Mr. Drydgen, who had been in a closet near the entrance/exit door inside of the hotel room, came out of the closet and commenced stabbing Mr. Hoffman with a knife. [ 6 ] Before he could escape the room, Mr. Hoffman incurred six stab wounds as follows: (

a) a penetrating wound to his front chest; (

b) a penetrating wound to his upper back and an inoperable fracture to one of his thoracic vertebrae associated to this wound; (

c) a penetrating wound to the front of his upper right leg; (

d) a penetrating wound to the side of his upper right leg; (

e) a penetrating wound to the back of his upper left leg and at a penetrating wound to his right wrist and forearm, which damaged his radial artery, vein, and nerves and his extensor tendons required surgery to his arm, he has scarring to his arm. He also suffered various contusions and abrasions, blood loss, and the collapse of both lungs. [ 7 ] These were significant wounds resulting in serious injuries. Mr. Hoffman used the stairs and the elevator to get to the lobby of the hotel. He collapsed two or three times in the lobby and exit area of the hotel.

He went outside and was met by police and then was assisted by emergency medical personnel and ultimately was taken to the hospital. [ 8 ] He has provided a Victim Impact Statement, parts of which I will read: My name is Michael Hoffman and in the early hours of June 14, 2018, I was attacked by Malcolm Drydgen at knifepoint at the Sheraton Hotel in Surrey, British Columbia. I was stabbed six times during the assault, once in my upper back, three times in my legs, once in my chest causing both lungs to collapse, and one straight through my right wrist severing a tendon that required me to undergo surgery.

Just for the record, I will skip through different sections here: By the grace of God, I managed to free myself and my attacker and escape the room. Escaping the room was lucky but I considered the fact that I made it down 19 flights of stairs without losing consciousness to be a miracle. I remember telling myself repeatedly you cannot die like this. The police and emergency responders on the scene told me that anyone in less physical shape than I was in at the time probably would have lost their life. I lost eight point five litres of blood and had to undergo 15 blood transfusions to save my life.

My scars from the attack are visible and are a constant reminder of what I survived. When I meet someone new and shake their hand, I am constantly asked about the disfigurement of my right wrist. The scarring from the knife in my chest, back, and legs, along with the scars under my arms where the tubes were put to reflate my lungs are also a daily reminder of the attack. I worked hard at rehabilitating my hand but I have not regained full strength or mobility. I find it easier to talk about the physical pain than the emotional impact that this violent crime had on my life.

For months I couldn't close my eyes without reliving the attack. I suffered horrific flashbacks and nightmares that made it hard to function. There were days that I could not get out of bed, not because of physical pain but because of my state of mind. Not only did the attack haunt me but Mr. Drydgen was at large for several months. This terrified both me and my family. I refrained from leaving my house for most of those seven months. The fear and depression caused me to isolate myself in my basement. When Mr. Drydgen was finally found and arrested, I had to live this nightmare all over again.

My fear was so crippling that I was undecided on whether I could face him court. However, my family stood by me and made me realize that I had to face him and he had to be held accountable for how he tore apart our lives. I've worked hard to overcome the physical limitations caused by this violent act but I know that it is going to take me more time to heal emotionally. [ 9 ] Mr. Drydgen is currently 30 years of age. He was born in Vancouver and is a life resident of the Lower Mainland area of British Columbia. He has a Grade 12 education.

Although he has a limited work history, his counsel says that when he does work, he is a good worker. [ 10 ] He has a common-law relationship with Ms. Talic and has had for approximately five years. Ms. Talic has written a letter in support of Mr. Drydgen and she was present in court for today's proceedings as well. They do not have any children. [ 11 ] He has limited contact with his father but he has the support of his mother who is also present in court today, as well as the support of his siblings.

He also provided the court with two letters of support from two of his friends, Justin Rubenstein and Mario Maldonado. [ 12 ] He has a criminal record, which includes crimes of violence. Turning now to his record. [ 13 ] It commences in June of 2004 in Richmond, in youth court, a robbery conviction which he received a 15-month intensive support and supervision order.

On May 29, 2008, there is a breach of recognizance; on June 17, 2008, possession of a scheduled substance; September 16, 2010, fail to comply with a recognizance; October 31, 2011, dangerous operation of a motor vehicle and flight while being pursued by a peace officer, I note on that matter he received a federal sentence, six months on each, consecutive, plus credit of 45 months and 24 days pre-sentence custody credit; then January 16, 2013, possession of property obtained by crime; September 13, 2013, break and enter and on that break and enter charge, he received one day plus 48 months pre-sentence custody credit; October 23, 2017, accessory to a robbery, he received probation for two years and he was given credit for three years pre-sentence custody; and then most recently, March 19, 2019, fail to comply with a recognizance, I note that occurred after this incident and it was a recognizance he was on as a result of bail for the matter presently before the court. [ 14 ] I turn now to the sentencing position of the Crown.

[15] The Crown submits that the range for this offence is 16 months to six years’ incarceration and that in the circumstances beforethe court, an appropriate sentence is five years, less time credited for pre-sentence custody. Counsel agree that he has the equivalent of10 and a half months of pre-sentence custody to be credited. [16] Crown also seeks a lifetime weapons prohibition pursuant to s. 109 and a primary DNA order. [17] Mr.

McPherson on behalf of the Crown submits that the aggravating factors are the serious nature of the assault, that a weaponand in particular a knife was used, that there was a total of six stab wounds, that the stab wounds led to the collapse of both lungs, thatone of the knife wounds went completely through his right arm and has left permanent scarring on his arm and elsewhere on his body,that Mr. Drydgen has a serious record for property and violence offences and has served three federal sentences in the past, and thesignificant physical and emotional hardship the assault has had on Mr. Hoffman. [18] Mr.

McPherson submits there are few mitigating factors and specifically as not mitigating, as suggested by defence counsel, thatMr. Hoffman was not confined or chased down the hallway when he left the room. He submits that Mr. Drydgen had only been out ofcustody for approximately eight months when the incident present before the court took place. [19] In regard to the appropriate range of sentence, the Crown referred the court to the decision of R. v. Johnson, (BC CA) and R. v. Nguyen, 2016 BCJ No. 2197.

Particular, with respect to Johnson, at para. 10, where the court set out the 16-month tosix-year range and the court stated: …Sentences at the lower end of the range tend to be imposed in "fight" situations in which the altercation escalates and results in injuriesto the victim.

Sentences at the higher end of the range tend to be imposed in situations where the victims are attacked with a weapon,without provocation and without any opportunity to defend themselves. [20] In Johnson, the Court of Appeal upheld a five-year sentence for a 28-year-old offender who was convicted after trial ofaggravated assault and assault with a weapon. Mr. Johnson beat the unnamed victim with whom he had prior hostilities with a baseballbat resulting in serious injury, including a severely fractured skull. It was likely that the victim would be permanently disabled.

Mr.Johnson had a very minor record and no conviction for violence. [21] In Nguyen, the offender was sentenced to two years less a day and one-year probation, after being convicted after a trial ofaggravated assault. The accused, while intoxicated at a bar and thinking the victim had inappropriately touched his girlfriend, attackedthe victim from behind, punching him and knocking him to the floor where he continued to beat the unconscious victim. The victimsuffered fractures and lacerations and required hospitalization. He was unable to work for a period of time. The lacerations to his headrequired 60 stitches.

He was also left with a permanent scar on his face. The offender had no prior criminal record. [22] Crown also provided the following cases to the court, R. v. B.G.P., 2006 BCCA 215 , 2006 BCJ No. 1058, R. v. Billing,2017 BCJ No. 1258, and R. v. Grant, 2016 BCJ No. 2884. [23] In B.G.P., the offender went to the home of the victim to collect a drug debt and slashed him with a large knife resulting in anine-inch-long wound, sufficiently deep to expose his internal organs. Without prompt medical attention, the victim would have died. [24] The offender had an extensive record for violence.

At the trial level, he received a sentence for aggravated assault of an 18-monthconditional sentence followed by three years’ probation. [25] The Court of Appeal found that the trial judge placed too much emphasis on rehabilitation and did not adequately consider theprotection of the public and deterrence and denunciation.

The court said a four-year sentence was a fit sentence but reduced it to twoyears’ incarceration to recognize the positive steps B.G.P. had taken towards rehabilitation. [26] I note in that case, counsel, the head note says three years but as you read the decision, Justice Low says two, so that is why Ireferenced two. [27] In Billing, the 36-year-old Indigenous offender attended at a residence to speak to his girlfriend who refused to come out of thehouse she was at and speak with him. Mr. Billing ended up getting into an altercation with the victim, Mr.

Kevin Markland, who residedin the same house and he stabbed Mr. Markland six times. One of the wounds was seven centimetres deep and it punctured Mr.Markland's lung. He underwent surgery and part of his lung was removed. But for the victim's size, he would have died from the wound.After a trial, the offender was convicted of aggravated assault.

He also pled guilty to two counts of breaching non-communication ordersarising from different incidences. [28] The offender had a substantial record, including 14 prior offences for violence and breach of court orders and he was onprobation at the time of these offences. [29] He was sentenced to three years’ incarceration on the aggravated assault conviction and 162 days incarceration followed byprobation on the breach charges. [30] In Grant, the 38-year-old offender was convicted after a trial of aggravated assault, assault with a weapon, and theft whilewounding.

The offender and a third person and the victim consumed methamphetamine together after which the offender and a thirdperson then robbed the victim of his wallet, including his PIN, card and number, and his shoes. [31] The offender and the third person then stabbed the victim multiple times resulting in serious injury to the victim and leaving thevictim permanently disfigured.

The offender had a history of drug use and a criminal record that included three convictions for assaultand three drug-related convictions. [32] The court found that the general range of sentence for aggravated assault was between 16 months and six years’ incarcerationand that the primary sentencing considerations in that case were protection of the public and deterrence and denunciation.

[33] The offender was sentenced to four years’ incarceration on the aggravated assault charge and one year concurrent on each of thetwo remaining charges. [34] Mr. McPherson submits that while Mr. Hoffman should have left the money in the room, taking the money is not suchprovocation that Mr. Hoffman should have been stabbed six times. [35] I turn now to the sentencing position of the defence. [36] Mr. Coleman, on behalf of Mr. Drydgen, agrees with Crown with respect to the sentencing range but submits an appropriatesentence is a provincial sentence less time credited, followed by three years’ probation.

Alternatively, he submits that if the court feels afederal sentence is appropriate, then it should be in the range of two to three years less time served. [37] He provided for the court's consideration, the decision of R. v. George, 2014 BCSC 1944 , 2014 BCJ No. 2557. InGeorge, a 35-year-old offender pled guilty to aggravated assault.

The offender had, without provocation or warning, struck the victim inthe head a number of times with a hatchet resulting in long-lasting effects for the victim. [38] The offender had a considerable record, including convictions for crime of violence and he just finished a sentence for a robberyconviction only a few days before the incident. The offender was sentenced to four years’ incarceration. [39] Mr.

Coleman submits that many of the cases relied upon by the Crown are distinguishable as unlike the case at bar, many of thecases relied on by the Crown had more aggravating circumstances or the offender had a more significant record or they did not involveany provocation by the victim. Specifically in that regard, Mr. Coleman submits that the attack that took place on Mr. Hoffman was notunprovoked. [40] He submits further that Mr. Drydgen did not bring a knife with him with the intention of using it. Rather, he was there forsupport and protection and had Mr.

Hoffman not taken the money back, the incident would not have occurred. [41] He submits that while this does not justify what Mr. Drydgen did, it shows that it was not an unprovoked attack. [42] In that regard, Mr. Coleman directed the court to a passage from Madam Justice DeWitt-Van Oosten in the Billing decision,commencing at para. 66: The Crown argues that in this case, a sentence in the higher end of the range is appropriate in light of the aggravating factors; namely,four to five years.

However, in response to a question from the Court, Crown Counsel clarified that this position assumes a factual finding that the attack onKevin Markland was unprovoked. If the Court is not satisfied that Mr. Billing was the sole aggressor during the altercation, then asentence in the range of three to four years would not be inappropriate. Again, the higher end of this range is emphasized. [43] I note in the Billing decision, Madam Justice DeWitt-Van Oosten added at paragraph 68: As noted, the trial evidence does not convince me that the attack against Kevin Markland was unprovoked.

However, I have concludedthat donning a knife and stabbing Kevin Markland six times, including four stab wounds to the back, was neither necessary, norreasonable in all the circumstances. In light of this conclusion, I will treat the Crown's position on sentence for the aggravated assault asthree to four years. [44] Mr. Coleman notes that Mr. Drydgen only had two convictions for violence on his record, one in youth court in 2004 for robberyand in 2017 for being an accessory to robbery. He notes that the incident that gave rise to the 2017 conviction occurred in 2014 and hesays that was Mr.

Drydgen's last substantive offence. [45] Mr. Coleman submits Mr. Drydgen has a problem with alcohol abuse. While out of custody on this matter and on judicial interimrelease, he was a resident at Reaching Out Supportive Recovery Facility for a number of months. Initially he was doing well there, butunfortunately he relapsed and he ended up back in custody. [46] Mr. Coleman submits that the time Mr. Drydgen spent in custody has been very difficult for him. He says that of the sevenmonths Mr. Drydgen has spent in custody, six of those months have been in administrative segregation.

He says that while in custody,someone slit Mr. Drydgen's throat. [47] In mitigation, he points to Mr. Drydgen's family and community support. He also notes that Mr. Drydgen is not beyondrehabilitation and consideration must be given to his rehabilitation. He also notes that Mr. Drydgen, when employed, is a good worker. [48] I turn now to the principles of sentencing. [49]

Section 718 of the Criminal Code sets out the purpose and principles of sentencing and states in part: The fundamental purpose of sentencing is to ... contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders;

(

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 50 ]

Section 718.1 states that: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 51 ]

Section 718.2 states: A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances... And: (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; [ 52 ] I turn now to the aggravating and mitigating factors. [ 53 ] Other than to add that Mr. Drydgen was on probation when the incident occurred, I accept the aggravating factors as set out by Crown counsel. I also accept the mitigating factors as alluded to by his counsel, that Mr.

Drydgen has family and community support and that when he is employed, he is a good worker. [ 54 ] The sentencing process is an individualized process in which I have to take into account not only the circumstances of the offence and the role the offender played but also the specific circumstances of the offender: R. v. Angelillo, 2006 SCC 55 . [ 55 ] I cannot conclude on the evidence presented in the case at bar that this was an unprovoked assault. I note that prior to Mr. Hoffman attempting to leave with the money that Mr. Drydgen was in the closet essentially minding his own business until Ms.

Talic called out. His response unfortunately was to seriously injure Mr. Hoffman by stabbing him six times. This response was totally out of proportion and as found by Justice DeWitt-Van Oosten in Billing was, "neither necessary nor reasonable in all the circumstances" (paragraph 68). [ 56 ] He is very fortunate that Mr. Hoffman did not die. There is a high degree of moral blameworthiness on the part of Mr. Drydgen. [ 57 ] I have carefully considered all the evidence presented and the relevant sentencing principles in the Criminal Code , as well as all of the cases provided by counsel.

I have also considered all of the submissions of counsel. [ 58 ] In my review of the cases, I conclude that in the case at bar the primary principles of sentencing I must apply are denunciation and deterrence. Of course, rehabilitation is also a factor that I give consideration to. [ 59 ] I find that an appropriate sentence for this matter is three and a half years or 42 months of imprisonment. That works out to 1260 days. Mr. Drydgen has been in custody on that matter for a total of seven months.

He is entitled to credit for that time at a rate of 1.5 to 1, which works out to an additional 3.5 months for a total of 10 and a half months total pre-sentence custody credit. [ 60 ] That total pre-sentence custody credit in days is 315 days. The sentence I would have imposed of 1260 days is, therefore, reduced by his pre-sentence custody credit of 315 days, which leaves 945 days. [ 61 ] The sentence, therefore, is 945 days plus 315 days times credited. [ 62 ] In addition, I make the following ancillary orders. [ 63 ] Pursuant to s. 487 of the Criminal Code , I make the following primary designated DNA order.

I make an order in Form 5.03 authorizing the taking of the number of samples of bodily substance by any peace officer in the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the National DNA Databank on or before February 28, 2020. [ 64 ] Pursuant to s. 109 of the Criminal Code , I order that you are prohibited from possessing any firearm, crossbow, restricted weapon, prohibited weapon, prohibited device, ammunition, and explosive substance for life. (REASONS FOR SENTENCE CONCLUDED)