R. v. Bell Date:, 2015 BCPC 235

Citation: R. v. Bell Date: 20150805 2015 BCPC 0235 File No: 234835-8-KC Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. MELVIN DAVID BELL EXCERPTS FROM PROCEEDINGS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. BAGNALL Counsel for the Crown: G. Banning Counsel for the Defendant: S. Rauch Place of Hearing: Vancouver , B.C. Date of Hearing: August 5, 2015

Date of Judgment: August 5, 2015 [ 1 ] THE COURT: Melvin David Bell has been convicted after a trial on two counts of assault causing bodily harm and one count of threatening of one Kerri Barton, a woman with whom he has had an on-and-off dysfunctional relationship. [ 2 ] He is to be sentenced today respecting those charges, and also respecting two charges to which he recorded pleas of guilty: breaching a recognizance and another count of threatening Kerri Barton. [ 3 ] All of the charges are on Information 234835-KC-8. [ 4 ] The circumstances are, briefly, as follows: Count 1 involves an allegation of assault causing bodily harm between the 2nd of December, 2013, and the 23rd of February, 2014.

The Crown presented evidence respecting two discrete assaults during this timeframe and I found that they both occurred. [ 5 ] The first event occurred on the 3rd of December, 2013. Ms. Barton and the accused were at his residence. He accused her of sleeping with his roommate. He punched her in the face, fracturing her jaw. As she left the residence, he threw a screwdriver at her, which punctured her left calf, leaving a cut. Ms. Barton sought help through citizens in the area who contacted 9-1-1, but she declined to tell the police what had occurred when they arrived.

She saw a doctor at VGH the next day. [ 6 ] The relationship continued. Ms. Barton testified that it ended, from her perspective, on February 13, 2014, which was her birthday. On February 21, 2014, Ms. Barton went to visit the accused at his mother's residence. An argument arose when he found condoms in her purse. He punched her in the face, refused to let her leave the house, and then hit her over the head and on the right shin with a crowbar. She managed to leave the residence and sought medical attention at St.

Paul's Hospital where she received stitches to close the wound on her head, which was a significant wound. She lied to hospital personnel about what had occurred, claiming that she had been attacked by someone wielding a bat. [ 7 ] With respect to Counts 2 and 3, I found the following facts: On May 28, 2014, Ms. Barton was visiting a friend when Mr. Bell arrived at the location where they were. An argument arose when Mr. Bell accused her of engaging in sexual activity with some of the men who were present. He threatened to kill her. He kicked Ms.

Barton in the leg, causing her knee to buckle, and she fell on her knee on some broken glass. Mr. Bell insisted that she leave with him, which she did. They went to a nearby pizza shop. She went inside; he did not. She asked the clerk to call the police. She changed her mind about this when Mr. Bell left the area, and she told the clerk not to call the police shortly after. [ 8 ] She went to VGH by ambulance the next morning because she was having trouble walking. It turned out that her right knee was fractured in three places. Ms.

Barton did make a statement to the police about these events. [ 9 ] Count 4 is a charge of breach of recognizance arising from events on July 4, 2014, to which Mr. Bell entered a plea of guilty on the first day scheduled for the trial respecting this information, which was May 22, 2015. Mr.

Bell was at that time bound by a condition on the recognizance that he not be outside his residence between 6:00 p.m. one day and 6:00 a.m. the next day, unless he had written permission from his bail supervisor or was in the company of his mother, Martha Kahnapace. [ 10 ] At 10:00 p.m. on the day in question, police officers saw Mr. Bell leave a SkyTrain station and go into a pizza place. He went into the bathroom where he remained for about 30 minutes, until the police knocked on the door and arrested him. [ 11 ] Count 5 is an allegation of threatening Kerri Barton on March 22, 2015. Mr.

Bell also entered a plea of guilty respecting this count at the commencement of the trial on May the 22nd this year. [ 12 ] In the morning on March 22nd, Ms. Barton saw Mr. Bell outside a McDonald's restaurant where she was. She was frightened and she left the restaurant. He saw her, he followed her. She began to walk away and then run away. He chased her, yelling and screaming at her. Among other things, he was heard to yell at her, "You fucking bitch, I'm going to fucking kill you." [ 13 ] People in the area who saw these events were understandably concerned and notified the police, and Mr.

Bell was arrested. [ 14 ] These are the circumstances in very brief outline form. [ 15 ] The accused has a criminal record which is Exhibit 2 on sentencing. His record is lengthy and serious and includes numerous convictions for offences involving violence, threats, and failure to obey court orders. Mr. Bell has roughly 45 convictions on his criminal record. [ 16 ] Mr. Bell's antecedents are set out in the Pre Sentence Report, Exhibit 3, and in the Gladue report, Exhibit 4, which were prepared in November and December, 2014. [ 17 ] He is 35 years old, almost 36. He is of aboriginal descent.

He grew up in a household where violence was apparently considered to be normal. Nevertheless, he enjoys the ongoing support of his family. [ 18 ] He became a father first at the age of 19. He has no contact with his now-16-year-old son. [ 19 ] He wishes to enrol in a residential treatment program at New Vision S.H. Society in Surrey. A bed was available for him on the 15th of July, 2015, when this sentencing began, but the hearing was adjourned at the request of the accused, so I am not certain that situation still pertains.

I will assume, for the purposes of these reasons, that it does. [ 20 ] The Crown submits that a sentence of five to five and a half years is appropriate here and that Mr. Bell should be given credit for the time he has been in custody respecting these matters at a rate of one day for one day. The defence submits that an appropriate

sentence would be one day on each of the five counts, taking into account the time that Mr. Bell has been in custody at a rate of one and a half days for each day. [ 21 ] Mr. Bell has been in custody for 302 days which, at the enhanced credit rate, would be 453 days. I will address the question of credit for time served first. [ 22 ] There are two periods of time in issue when the accused was detained: between July 4 and December 23, 2014, and from March 22, 2015, until today.

The Crown says that the time should be credited at a rate of one day for one day, because of the mechanism of s. 719(3.1) of the Criminal Code . [ 23 ] The defence has submitted that I should not be satisfied that the accused was detained under the relevant

section which is 524(8), on either occasion and that I should give the accused one and a half days' credit for each day he has spent in custody as mandated by the Supreme Court of Canada in R. v. Summers . [ 24 ] I have listened to the proceedings respecting bail from July 7, 2014, and from the most recent bail hearing on April 14, 2015. It is clear that on each occasion, Mr. Bell was detained because he had breached conditions of his bail. He was in a reverse onus situation. Section 524(8) of the Criminal Code applied in each case.

The offender may therefore be granted only one day's credit for each day he has been in custody. [ 25 ] It is unfortunate but necessary to comment that Ms. Rauch was counsel and appeared for the accused on both December 23, 2014, when the accused was sentenced respecting another matter and released on bail again respecting the present matters, and on April 14, 2015.

She has submitted with respect to both of these dates that the nature of the proceedings were unclear; in respect of April 14, 2015, that it was unclear how the accused came to be detained; in respect of December 23, 2014, that it was unclear how time served had been dealt with by the sentencing judge. This was not an appropriate approach for her to take, as she was counsel who was present at the time. I have listened to these proceedings. It was all very clear on each occasion. In asserting a lack of certainty, Ms.

Rauch created a very real and time-consuming distraction from the important issues that arise in this case. [ 26 ] The Pre Sentence Report, which was filed and is Exhibit 3, was prepared for the sentencing which occurred on December 23, 2014, respecting a conviction for a charge of possession of stolen property after a trial. In the

section in the Report headed "Attitude and receptiveness to previous and proposed interventions" there is this comment at page 8: The subject offers no explanation for his history of non-compliance with court-imposed conditions. His attitude can be inferred by his behaviour, both in and out of custody. In the community, Mr. Bell appears to have no regard for court-ordered conditions. In custody, institutional logs indicate non-cooperation and anti-authoritarian attitudes. Correctional staff noted on November 2, 2014, "Inmate has displayed angry, violent tendencies towards staff.

Inmate also showboats for other inmates on the unit in hopes to defy staff authority." However, since November 6, 2014, he has been described by institutional staff as "polite and respectful". [ 27 ] The Gladue report, which was filed and is Exhibit 4, was also prepared for the sentencing in December 2014. Mr. Bell's antecedents are set out in detail here. [ 28 ] A note of caution must be sounded. Mr. Bell told the elder who prepared the report that he remained crime-free for "four years from the age of 22 until 2003", when he began using crack cocaine again.

His criminal record does not reflect any such gap in his criminal behaviour. There are convictions for offences which occurred in November 1998, June 1999, August 2000, July 2001, April 2002, and May 2003. It must be said that Mr. Bell cannot be considered a reliable historian, at least in respect to this assertion, and unfortunately it casts a shadow on some of the other things that he said. [ 29 ] In addition, I note a discrepancy between the description of Joshua Hofer's position in Mr. Bell's life in the Gladue report as opposed to elsewhere. The writer of the Gladue report says that Mr.

Hofer is the offender's maternal uncle, in that he was married to Mr. Bell's mother's sister, if I am understanding the situation correctly. The report notes that Mr. Bell's aunt passed away 10 years ago. The report attributes a number of very positive comments about Mr. Bell to Mr. Hofer. [ 30 ] I was not told this about Mr. Hofer. Mr. Hofer may have been Mr. Bell's uncle by marriage, but he is now his mother's partner and has been for some time, certainly since well before the Gladue report was written. In addition, I was told that Mr. Hofer suffers from dementia.

Apparently the writer of the Gladue report was not told about this. [ 31 ] The discrepancy is of course of concern. For some reason, and I am not able to discern a reason, the writer of the Gladue report was not told the whole story. One cannot help but wonder what other inaccuracies are present in the report. [ 32 ] The writer of the Gladue report is Caroline Buckshot, whose name is familiar to all of us in these courts.

She wrote this at page 7 of her report [as read in]: Melvin reported he has been in a common-law relationship with Crystal Brown since February 2014 and Crystal is presently four months' pregnant. He said he has been in the system for 22 years and is ready to start learning why he drinks, abuses drugs, and continues the cycle of self-destruction. Presently Melvin is incarcerated in North Fraser Pretrial Regional Corrections located in Port Coquitlam, B.C. However, in the past he has lived with family and relatives or common-law partners when not incarcerated.

He said he is interested and determined to get help with his addiction, finding work and supporting his common-law partner and his new baby. He expressed a sincere desire to provide a home for his family and learn how to live as a responsible, productive member of society and a man his partner can be proud of. He wants to be the kind of father his child will not be ashamed of. [ 33 ] Mr. Bell expressed his intention to Ms. Buckshot to complete his education and learn a trade. He was, at the time that the report

was written, two electives short of his Dogwood diploma. I was not told whether he has made any progress in this respect during 2015. So that it is clear, these intentions were expressed in respect of a sentencing and a bail hearing in late December 2015, at which time Mr. Bell was released from custody. [ 34 ] His girlfriend, Crystal Brown, then pregnant with his child, described to Ms. Buckshot a greater commitment between the two, that is herself and Mr. Bell, since she conceived, and she described the plans they were making to live a healthier lifestyle once the baby arrived.

The elder also wrote that the offender "presented as motivated to start addressing his addiction and lifestyle in an effort to change his risk to reoffend. He is going to be a father in the near future and expressed a sincere desire to take care of his family in a positive manner." [ 35 ] I wish to highlight again that this report was written before the most recent of the events involving Kerri Barton. [ 36 ] Letters written by Mr. Bell's mother, his grandmother, and his niece were filed by the accused and are Exhibit 5. Each of those relatives of Mr. Bell's has expressed her wish to see Mr.

Bell deal with his substance abuse issues. Each expressed significant support for him. His mother, Ms. Kahnapace, wrote that Mr. Bell planned to join her and her partner, along with Ms. Brown and the child of the couple, as soon as he is released from custody with respect to these offences. [ 37 ] The accused also wrote to the court expressing his wish to engage in rehabilitation. He noted that his son with Crystal Brown was born on March 22, 2015, at 1:40 in the afternoon. This is of course the very day that he was engaged in chasing and threatening Ms. Barton. His note also indicates that he and Ms.

Barton began seeing one another again in February 2015, when the very pregnant Ms. Brown moved up north. [ 38 ] All of this casts a serious doubt on what Mr. Bell's actual intentions are. It is impossible, in the circumstances, to accept as real his stated intention to engage in family life with the mother of his child and his baby who was born in March. [ 39 ] The defence also filed letters, now Exhibit 7, apparently written by Ms. Barton to Mr. Bell, who was in custody during April of 2015. The letters are affectionate, even loving, in tone. The defence filed letters, now Exhibit 8, attributed to Ms.

Barton and said to have been sent to the Crown. [ 40 ] The prosecutor who has had conduct of these matters since March 2015 had not seen these letters before. In any event, that Ms. Barton indicated a wish for charges to be withdrawn in letters obtained by the defence in some fashion is, in my view, irrelevant to the sentencing. [ 41 ] In addition, I was told that it was reported to the Crown by a person who was in court with Ms. Barton on July 15, 2015, that Mr. Bell mouthed the words "I love you" to Ms. Barton in court on that day. [ 42 ] All of this leaves me with a very confused sense of what Mr.

Bell actually intends in relation to Ms. Barton, on the one hand, and Ms. Brown and his son on the other hand, once he is released from custody. His intentions are, of course, relevant to the court's duty to protect the public, in particular Ms. Barton, from future offences committed by the accused. [ 43 ] A Victim Impact Statement written by Ms. Barton on the 15th of July, 2015, which is Exhibit 1 on this sentencing, indicates that she continues to be frightened of Mr.

Bell, that she bears numerous physical scars as a result of his violence, and that she is afraid of the possibility of retaliation by the accused and his family and friends because she testified against him during the trial. [ 44 ] I have not referred to all of the details of the offences. Further details may be found in my reasons for judgment of June 12, 2015, and in the evidence of Kerri Barton. I have not referred to all of the information included in the materials filed on sentencing, but I have certainly read and considered all of the materials. I am aware of my duties as set out in R. v. Gladue and R. v.

Ipeelee , and s. 718.2(

e) of the Code . I have also recently read and taken guidance from the case of R. v. Elliott , which is found at 2015 BCCA 295 . [ 45 ] I have prepared a list of cases referred to by counsel. I have read and considered all of these cases. I do not consider it necessary to review the cases in detail. Each is of assistance as a guide; none is exactly like the case at bar, of course. One case which is similar is R. v. Kaiser . The list of cases I am handing to the registrar now will be Exhibit 11 in these proceedings.

EXHIBIT 11 (on Sentence): List of case law [ 46 ] As aggravating factors, I have in mind that four of the offences in question here involve what is commonly referred to as spousal violence or domestic violence. [ 47 ]

Section 718.2(a)(ii) is somewhat relevant here. It refers to common-law spouses, in particular. The accused repeatedly here victimized a woman with whom he was or had been in an intimate relationship, often explicitly as a result of jealousy. Three of the four events seem to be based on jealousy. [ 48 ] Mr. Bell also breached his bail order on July 4, 2014, and he will be sentenced for that offence, but he was also in breach of bail conditions on March 22, 2015, when he accosted Ms. Barton.

He was in breach of a number of bail conditions on that day and I have to take that into account as an aggravating factor. [ 49 ] I also consider that the injuries suffered by the complainant were serious and she will have long-lasting consequences of Mr. Bell's actions to deal with. [ 50 ] Mr. Bell has a terrible criminal record for violence, threats of violence, and disobedience of court orders. [ 51 ] As mitigating factors, I take into account the dysfunction in his early life, connected as it is to his aboriginal heritage.

I have also considered that he entered pleas of guilty respecting two counts on the information, albeit on the morning that the trial began and in the face of what was overwhelming evidence in respect of his guilt.

[ 52 ] I have said that Mr. Bell wrote a letter to the court. It is now Exhibit 4, and in it he expressed his view of what he has accomplished over the last four months while this matter has proceeded. Mr. Bell said in that letter, among other things, that he has never admitted having a substance abuse problem before, that he has never asked for help from his family and friends or admitted that he has a problem that requires treatment. This is just not correct. [ 53 ] Because of the position taken by the defence respecting the reason for Mr.

Bell's detention on July 7, 2014, as I have indicated, I listened to the recording of the bail hearing. At that hearing, Mr. Bell's offending was attributed to his alcohol addiction. His plan to go to a particular recovery house was placed before the court and his mother addressed the court, indicating her understanding of Mr. Bell's addiction to alcohol and drugs. [ 54 ] I have also indicated that because of other concerns expressed by the defence about the basis for a particular decision, I listened to the recording of the bail hearing on December 23, 2014.

At that hearing, the explicit aim of the court was to eliminate, as much as possible, Mr. Bell's use of intoxicants. This was because Mr. Rauch told the court that he was sincere in his wish to address his substance abuse issues and that his family, especially his mother, who also addressed the court, and his then girlfriend, Ms. Brown, were supportive of him. Ms. Brown, it will be recalled, was pregnant with his child and his intention was said to be to enter family life with her and their child. On that occasion, Ms.

Rauch told the court that he intended to enrol in training programs if released from custody, and of course he was released from custody and apparently took up again with Ms. Barton, and I have already highlighted what he was doing on March the 22nd when his second child came into the world. [ 55 ] Mr.

Bell also addressed the court on July the 22nd, and the sum total of what he said was as follows: "I am sorry for the cause and effects of my actions." [ 56 ] In view of his criminal record and his behaviour which led to the charges that concern me here, his recent comments cannot stand as a reliable expression of remorse or as an expression of a true intention to behave in a different fashion in the future. [ 57 ] The principles of sentencing which must be primary here are denunciation, deterrence and, because I have concluded that it is necessary, to contribute to respect for the law and the maintenance of a peaceful and safe society, in short to protect the public, to separate Mr.

Bell from society. [ 58 ] His rehabilitation at the age of 35 and in consideration of all of the assistance which has been both offered to him and imposed on him in the past when he has broken the law, which is apparent from his criminal record, must be a secondary consideration. In practical terms, I have concluded that it would be foolhardy in the extreme to expect that Mr. Bell might obey an order of this court if released from custody in the near future. His rehabilitation will have to be addressed while he is in custody.

It would not be safe to attempt his rehabilitation out of custody. [ 59 ] In my view, the appropriate total sentence here is four and one half years' incarceration and it will be divided up as follows: [ 60 ] On Count 1, the appropriate sentence is two years. I will subtract from that two-year sentence 302 days, which I have considered as if it were 10 months. The remaining sentence on Count 1 is one year and two months. [ 61 ] On Count 2 and 3, Mr. Bell will serve one year each. Those two one-year sentences will be concurrent one to the other, but consecutive to Count 1. [ 62 ] On Count 4, Mr.

Bell will serve six months consecutive to the two other sentences. [ 63 ] On Count 5, he will serve one year consecutive to all of the other sentences. [ 64 ] The total, if my arithmetic is correct, is three years and eight months. [ 65 ] The victim fine surcharges are mandatory here. They will be at the prevailing rate, payable forthwith.

The default time on each will be one day. [ 66 ] Under s. 109, the order will be for his lifetime. [ 67 ] Under s. 743.21, I will order that he have no communication, directly or indirectly, with Kerri Barton during the time that he is incarcerated. [ 68 ] I will make the order with respect to his DNA, and that will be attended to while he is in custody. [ 69 ] I believe those are all of the issues on the sentencing. Is that correct? [ 70 ] MS. BANNING: That is correct, Your Honour. (REASONS CONCLUDED)