R. v. Jalal, 2020 BCPC 238

Citation: R. v. Jalal 2020 BCPC 238 Date: 20201207 File Nos: 253389-2-C; 251982-3-AC; 255438-2 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. ALI SUJJAD JALAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: K. Cronin, Q.C.; M. Myhre Counsel for the Defendant: M. Fogel Place of Hearing: Vancouver , B.C. Date of Hearing: October 2, 2020 Date of Judgment: December 7, 2020 INTRODUCTION

[ 1 ] Mr. Jalal is before the Court to be sentenced. He was convicted at trial of break and entering, committing an indictable offence, assault with a weapon, and assault causing bodily harm. Subsequent to his conviction, Mr. Jalal pled guilty to breaching his recognizance by disobeying a curfew condition and attempting to obstruct justice. [ 2 ] Counsel disagree over the appropriate sentence. For the break and enter and the assault, the Crown urges the Court to impose a sentence of 4 to 5 years, less the time that Mr.

Jalal has served in pre-trial detention, a custodial sentence of 14 to 30 days for the breach violations, and a consecutive sentence of 4 months for attempting to obstruct justice. [ 3 ] Counsel for Mr. Jalal argues that an appropriate sentence would be a global sentence in the range of 30 to 36 months. He breaks down the sentence as follows, 26 to 30 months for the break and enter and assault, followed by a consecutive sentence of 4 months for the attempt obstruction of justice. As for the breaches, counsel argues that Mr.

Jalal should receive 7 days for the first offence, and14 days for the second offence, with these sentences being served concurrent to each other but consecutive to the other sentences. CIRCUMSTANCES OF THE OFFENCES [ 4 ] On July 26, 2018, Mr. Jalal and three others knocked on the door of Mr. and Mrs. McGee’s apartment suite. When the door was opened, Mr. Jalal and two others rushed in. Two of the males went to Mr. McGee and assaulted him with a fish bat and scissors and Mr. Jalal went to Ms. McGee where he tried to prevent her from using her phone. Thereafter, Mr. Jalal went to Mr.

McGee, retrieved the fish bat and struck him with it. Mr. McGee suffered a half-inch cut to his head, an injury to his nose, a concussion and emotional trauma. Greater details of these offences may be found in the trial decision: R. v. Jalal and Kamzimbi, 20 BCPC 7. [ 5 ] Turning to Mr. Jalal’s attempt to obstruct justice, Mr. Jalal used another inmate’s phone card, and he called his girlfriend and told her to send a message to Mr. Jalal’s father informing him how he could avoid being brought to court as a witness against Mr. Jalal. On another occasion, Mr. Jalal tried to get a message to Mr.

Timbo advising him how to testify at Mr. Jalal’s trial. Essentially, Mr. Jalal was coaching Mr. Timbo to provide false testimony that aligned with Mr. Jalal’s evidence. Unfortunately for Mr. Jalal, the phone calls were captured by the police. [ 6 ] As for the two breaches, Mr. Jalal was bound by a recognizance containing a curfew condition. On May 24, 2019, and June 25, 2019, police checks revealed that Mr. Jalal was outside his residence contrary to his recognizance. MR. JALAL’S CIRCUMSTANCES [ 7 ] Mr. Jalal is 21 years old. He was born and raised in British Columbia. His parents are immigrants. When Mr.

Jalal was young, his younger sibling passed away and as a result his mother became depressed and she abused alcohol. [ 8 ] Mr. Jalal’s parents divorced and thereafter Mr. Jalal lived with his mother and he had limited contact with his father. Mr. Jalal’s father reported that t he contact was limited because of his employment. Mr. Jalal reported to the writer of his pre-sentence report that his upbringing was neglectful and abusive and this feelings of neglect which resulted in Mr. Jalal’s gravitating to persons who were older and criminally involved. [ 9 ] Mr.

Jalal started selling drugs in the downtown eastside when he was 16. He gave the writer of the pre-sentence report inconsistent reasons for this activity. In this regard, he stated he was bored, however, on another occasion, he stated he did it for the money and for the excitement. [ 10 ] Mr. Jalal claims that he worked for his father’s company in 2018 and 2019. If he did work for his father it was minimal. This is because Mr. Jalal was before the courts and in custody during portions of this period. When Mr.

Jalal is released from custody, he plans to go to BCIT where he hopes to be certified as a plumber or electrician. His father is also prepared to hire him and he reports that Mr. Jalal has devoted himself to Islam and that he is praying regularly. [ 11 ] As for his personal circumstances, Mr. Jalal has a young child, who he wishes to see when he is released from custody, however, the Ministry of Children and Families will only allow Mr. Jalal supervised access with his son. I also note that Mr.

Jalal’s offences were committed shortly after the birth of his son, and this suggests that becoming a father did not dissuade Mr. Jalal from violent criminal conduct. [ 12 ] In terms of offending behavior, Mr. Jalal has a Youth Court history for, assault, robbery with a disguise, and breach of orders. As an adult, he has a conviction for being unlawfully in a dwelling house. [ 13 ] With respect to the offences at issue, Mr. Jalal reports that his involvement with the McGee’s occurred when he was angry and intoxicated and as a result his inhibitions were lowered. As for the attempted obstruction of justice, Mr.

Jalal informed the pre-sentence report writer that he communicated what his friend should say at the trial because he wanted the Court to have all of the information. In fact, Mr. Jalal wanted his friend to give false testimony. [ 14 ] At the sentencing hearing, Mr. Jalal addressed the Court, and he expressed remorse. Despite this, I find that his degree of remorse is attenuated. In this regard, a person who is remorseful does not try and influence the outcome of their trial by telling their friend to falsely testify.

Additionally, a remorseful person does not minimize their conduct by stating that their inhibitions were lowered, nor, do they give inconsistent information to the individual who is preparing their pre-sentence report. [ 15 ] Despite my observations regarding his remorse, I note that Mr. Jalal has taken a number of programs while in custody. Specifically, he has taken courses in the area of socialization, relapse prevention, preparing for release, recovery, anger management, substance abuse 1, 2, and 3, housing needs, money management, nutrition, and communication. VICTIM IMPACT [ 16 ] Mr. and Ms.

McGee read their Victim Impact Statements at the sentencing hearing. Mr. McGee expressed that he has regular

migraines, and that his epileptic seizures now occur at a rate of 3 to 4 every month. Prior to the assault, he experienced a seizure onaverage of 1 every 6 months. Mr. McGee also expressed the fear and anxiety associated with being a victim. He is fearful about goingoutside, he has nightmares, his sleep is disturbed and he has bouts of anxiety. [17] As for Ms. McGee, she suffers emotionally. She recalls thinking that her husband was going to die. She is anxious when in thecommunity and she is afraid that Mr. Jalal or his brother will seek retribution.

The events and surrounding fear prompted the McGee’s tomove from their home. [18] Having heard Mr. and Ms. McGee, I am satisfied that Mr. Jalal’s violence and his intrusion into their home affected the McGee’sphysically and emotionally. Sadly, they continue to suffer. POSITION OF THE PARTIES [19] The Crown argues that the seriousness of the offences, the harm suffered by Mr. McGee, and Mr. Jalal’s criminal history,requires a sentence that denounces and deters. [20] Counsel for Mr. Jalal argues Mr. Jalal’s circumstances are exceptional and justify a sentence that is below the range.

In thisregard, counsel points to Mr. Jalal’s age and his strong prospects for rehabilitation. Counsel also points to the benefits of a probationorder in that a carefully crafted order can assist Mr. Jalal with his continued rehabilitation. Finally, counsel suggests that Mr. Jalal’s pre-trial custody warrants additional mitigation owing to the conditions created by Covid-19. [21] In support, counsel rely on: R. v. Moore, 2008 BCCA 129; R. v. Laramee, 2017 BCSC 1799; R. v. Younis, 2018 BCSC 1006; R.v. Craig, 2010 BCCA 174; R. v. Dragani, 2018 BCCA 1083; R. v. Gill, 2019 BCSC 461; R. v.

Stewart, 2014 BCSC 1770; R. v. Sherwin,2014 BCSC 1770; R. v. Dhaliwal, 2007 BCSC 1936; R. v. Brossault, 2009 BCSC 464; and R. v. Porter & Turner, 2001 BCPC 109, 2001 BCPC 0109. PURPOSE OF SENTENCING [22] Sections 718-718.2 of the Criminal Code sets out the purpose and principles of sentencing. [23] As per s. 718, the fundamental purpose of sentencing is to protect society and to contribute, along with crime preventioninitiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have particularobjectives. [24]

Section 718.1 mandates that any sentence I impose must be proportionate to the gravity of Mr. Jalal’s offences and his level ofresponsibility. A proportionate sentence is a fundamental principle of sentencing. [25] I am reminded that sentencing is an individualized exercise and I must consider the circumstances unique to the offender beforethe Court: R. v. M. (C.A.), [2001] 1 S.C.R. 500. No two offenders and no two sets of circumstances are the same. I also acknowledge thats. 718.2 (

d) and (

e) requires that I consider the least restrictive sanction necessary to attain the identified sentencing objectives: R. v.Johnson, [2003] S.C.C. 46 at para 28. [26]

Section 718.2 of the Criminal Code requires that I increase or reduce the proposed sentence to account for any mitigating oraggravating circumstances related to Mr. Jalal’s offence or his circumstances. Finally, the sentence that I impose must be similar tosentences imposed on similar offenders for similar offences committed in similar circumstances. ANALYSIS Sentencing Objectives [27] A person’s dwelling is a sanctuary, it is a place where one goes to be safe and secure, a place where one can enjoy their comfortsand escape the evils and busyness of the world.

For these reasons, the seriousness of entering a dwelling and assaulting those within isextreme. Support for this proposition is found in R. v. Meigs 2007 BCCA 394, wherein Justice Saunders said at para 25: [25] This case has four features that I consider particularly grave. First, it involved the breaking and entering into two homes, thebasement suite of T.S. and the residence above it of J.’s. In her submissions Ms. Duncan quoted that a woman’s home is her castle.

Thisis a paraphrase from the 6th century "One’s home is the safest refuge to everyone", famously rephrased by Sir Edward Coke as "a man’shouse is his castle" and then restated in Semayne’s Case (1604), [1558 -1774] All E.R. Rep. 62 (K.B.): "The house of everyone is to himas his castle and fortress, as well for his defence against injury and violence as for his repose." In a crowded world the sanctuary of thehome is even more important. In other words, it is a grave offence to enter another person’s home without permission, and graver toenter the home and violate the occupant.

The courts must and do impose stern sanctions for such crimes. [28] In addition to the above, extensive judicial commentary directs that the violent entry into a dwelling house require a sentencefocussed on denunciation and deterrence: Moore, para. 13; Dragani, para. 46; and Younis, para. 36. [29] Similarly, efforts directed at interfering with the justice system requires a sentence that denounces and deters. In R. v Hall, 2001BCCA 74 Justice Saunders commented: [12] However, I should say something in particular about the offence of attempting to obstruct justice.

Obstruction of justice also is aserious offence, but in a different way than the other three offences. Obstruction of justice or attempting to obstruct justice strikes at oursystem of a lawful society. The message must be clear that this type of interference with the community system for handling criminaloffences will not be tolerated. It is for this reason that the courts must act firmly to express society's disapproval and denunciation ofsuch conduct.

[ 30 ] Despite the pressing need for a sentence with a primary focus of denunciation and deterrence, I am mindful that Mr. Jalal is young, that he has taken some rehabilitative steps and that he has expressed a desire to change his offending behavior. Consequently, I am of the view that the sentence imposed must not crush Mr. Jalal’s rehabilitative prospects. Proportionality [ 31 ] As for proportionality, Mr. Jalal’s offences are serious. Pursuant to s. 348 (1) (

d) of the Criminal Code , the maximum penalty for break and entering into a dwelling house is imprisonment for life. Thus, underscoring the seriousness of the offence. Additionally, but to a lesser extent, attempts to interfere with the justice system is also a serious offence. [ 32 ] As for Mr. Jalal’s degree of responsibility, I accept he had consumed some alcohol and smoked marijuana prior to entering the McGee’s home. Despite this, I am not satisfied that these actions reduced his responsibility. This is because I am not satisfied that he was significantly impaired.

I note that the video evidence from the trial shows Mr. Jalal moving with purpose and without evidence of impairment. I also note that his actions of lining up outside the suite, approaching Ms. McGee, trying to get Ms. McGee’s phone, and assaulting Mr. McGee were goal oriented, focussed and purposeful which are inconsistent with heightened impairment. Aggravating and Mitigating Factors [ 33 ] Pursuant to s. 348.1 of the Criminal Code , it is aggravating that Mr. Jalal unlawfully entered an occupied dwelling house. I also find Mr.

Jalal’s criminal history and his use of a weapon against an unarmed individual who was in a vulnerable position to be aggravating. The presence of some degree of planning is also aggravating. [ 34 ] In mitigation, Mr. Jalal took courses while in custody, he has displayed some empathy for the McGee’s, he pled guilty to the obstruction and the breach charges, and he has some community support. Sentencing Authorities [ 35 ] I am grateful to counsel for the authorities. The authorities provide guidance regarding the relevant principles and insight into the sentences that have been imposed.

In considering the authorities, I remind myself that sentencing is an individualized exercise and previous sentences do not obviate the need to consider Mr. Jalal’s unique circumstances. I now turn to the authorities. [ 36 ] In Moore , the offender’s appeal of an effective sentence of 8 years was dismissed. The offences involved the offender and another forcing their way into the victim’s home, assaulting the occupants, threatening the occupants and trying to suffocate one of the occupants.

The offender was Indigenous, he was 24, while in pre-trial custody he had taken some rehabilitative steps, and he had a criminal record for violence and threatening. In dismissing the appeal, the Court observed at para.12: [12] At trial the Crown proposed a global sentence of six to eight years before taking into account the time already spent in custody. From the submissions of counsel and the reasons of the court read as a whole, it is apparent that the judge thought eight years was the correct sentence.

He reduced the total to six years after giving the appellant double credit for the time already spent in custody. The appellant is not correct in asserting that there was an error made on that account. [ 37 ] In Younis , the offender received a global sentence of 41 months [effective sentence of 60 months] after pleading guilty to break and enter, robbery, using an imitation firearm and trafficking cocaine.

The offences involved the offender forcing his way into the victim’s home, threatening the victim with an imitation firearm, striking the victim with the imitation firearm, stealing money from the victim’s wallet, using the victim’s bank card and forcing the victim to e-transfer funds. The offender spent approximately 90 minutes in the victim’s home. The offender was 21 at the time of sentencing and his actions were driven by a drug addiction drove. His criminal history was minimal and he had participated in recovery programs.

The sentencing Justice noted that the offender was genuinely remorseful, that he had taken courses while in custody, that he had the support of his family, and that he had good prospects for rehabilitation. [ 38 ] In Dragani, the Crown’s appeal of a 90-day intermittent sentence followed by a 2 year probation order was dismissed. The offender was convicted of break and enter, unlawful confinement, robbery, and assault bodily harm. The offences involved the offender and another, approaching the victim and taking him into the victim’s house.

The offender mistakenly believed that the house was empty and once inside the house he bound the victim to a chair, assaulted him, assaulted others in the house, demanded money and fled after 10 to 15 minutes. The offender was 24, he did not have a criminal record, after the offence he severed negative associations, he had the support of his family and his employer, and his personal circumstances had improved since his offences.

In dismissing the appeal, the Court noted that the sentence was at the very low end of the spectrum, but that it did not offend the parity principle, nor did it fail to consider the relevant sentencing principles. Justice Savage’s comments at paras. 44-50 are significant: [44] Since such offences occur in a wide variety of circumstances, Bernier cautioned that it is difficult to suggest a general range of sentences: [82] Because the combination of crimes charged in these cases will vary to some extent, it is difficult to determine a relevant range of sentence.

For this reason, the Court should exercise more caution than usual in attempting to suggest general ranges of sentence for home invasions. [45] There are, however, several sentencing principles normally engaged in home invasion cases. [46] First, deterrence and denunciation are the primary factors in sentencing for violent crimes, especially where these crimes violate the safety and security of a person’s home: R. v.

Vickers , 2007 BCCA 554 at para. 12 . [47] Second, while the prospects for rehabilitation cannot be overlooked, it generally is of secondary importance in dealing with violent crimes: Vickers at para. 13 .

[48] Third, s. 348.1 of the Criminal Code (“Aggravating circumstances – home invasion”) creates a statutory aggravating factor for certain offences when committed with violence or threats of violence in relation to a dwelling-house if the house was occupied when the offence(

s) occurred or the offenders were reckless as to whether the house was occupied. [49]

Section 348.1 of the Criminal Code reads: If a person is convicted of an offence under

section 98 [break and enter during which a firearm is stolen] or 98.1 [robbery during which a firearm is stolen], subsection 279(2) [unlawful confinement] or sections 343 [robbery], 346 [extortion] or 348 [break and enter with intent] in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence, (

a) knew that or was reckless as to whether the dwelling-house was occupied; and (

b) used violence or threats of violence to a person or property. [50] Fourth, higher sentences are appropriate when serious injuries are inflicted: R. v. A.J.C. , 2004 BCCA 268 at para. 42 . [ 39 ] In Craig , the Court dismissed the offender’s appeal of a three-year sentence for the offence of break and enter and committing an indictable offence. The offender accompanied a woman to her boyfriend’s home so she could recover her items. After this was done, the offender returned to the home, kicked the door open, punched the victim and threatened him.

The offender was Métis, he had a long criminal record with convictions for violent offences, and he expressed a desire to change his life. The Court concluded that the sentence imposed was fit and within the range of similar offences committed in similar circumstances. [ 40 ] In Laramee , the offender received a global 4-year sentence after he was convicted of a number of offences relating to a break and enter into a home and committing assault and robbery. The offender was 23 years old, he did not have a criminal record, and he had a difficult up bringing.

He had the support of his grandmother and extended family and he expressed great remorse. Prior to imposing sentence, Justice MacNaughton expressed: [56] A review of these cases relied on by both the Crown and the defence Indicates that the range of sentence for home invasions depends on the nature and the extent of the offender's involvement, the use of a firearm or weapon, the extent of the violence, and the offender's criminal record. In some cases, the reason for the home invasion or the motive for it was also taken into account.

The cases are, however, consistent in their conclusion that in these types of offences, the paramount sentencing consideration is deterrence and denunciation, given that home invasions violate the safety and security of a person's home. [ 41 ] In Stewart , the Court acceded to a joint submission of 2 years after the offender pled guilty, mid-trial, to break and enter and committing theft, and to using an imitation firearm during the commission of an indictable offence. The offender and another forced their way into the victim’s home, they pointed firearms at the victim and they committed theft.

The offender was 31, he had a difficult upbringing, and at the time of sentencing he was employed. As for a criminal record, the offender had convictions for carrying a weapon, drugs, and assault with a weapon. [ 42 ] In Sherwin, the offender was convicted of aggravated assault, and break and enter and committing an indictable offence. The offender received an effective sentence of 3 years and 3 months, however, after time served was taken into account, the sentence imposed was two years less a day followed by probation for three years. The offender had a bipolar disorder and a drug addiction.

At the time of his offences, he was not taking his medication and he was using street drugs. The offender was 26 at the time of sentencing, he had a grade 10 education, a supportive family and employment. The offender had an extensive criminal record for assault, threatening, obstructing a police officer, breach of court orders and numerous property offences. [ 43 ] In Dhaliwal , Justice Groberman imposed a sentence of 2 years less a day, followed by probation for 18 months after the offender pled guilty to break and entering and committing robbery and possession of a weapon for a dangerous purpose.

The offender and another forced their way into the victim’s home to steal from a marijuana grow operation. Once inside, the offender assaulted the victim with a Taser and threatened him. The offender and his partner did not find a marijuana grow operation so they took money from the victim’s wallet. The offender was 23, single, employed and genuinely remorseful. [ 44 ] In Porter, the sentencing judge took a creative approach wherein he credited the offender with 1-year pre-trial custody and he imposed a two-year less a day conditional sentence order followed by probation for 3 years.

The offences involved the offender and two others forcing their way into a home containing a marijuana grow operation. The occupant was assaulted (not by the offender) and a stereo was stolen. The offender was 21, without a criminal record, and he had the support of his friends. [ 45 ] In Brossault , the offender pled guilty to break and enter and theft and he received a 6 year custodial sentence. As for the offence, the offender and others broke into a residence and once inside they bound the victim, assaulted him and threatened him with guns.

In preparation, the offender armed himself with a weapon, clothed himself with a bulletproof vest and concealed his identity by wearing a mask. The offender was a 28-year-old Indigenous male. He grew up in an abusive environment, he entered foster care at a young age, he was on bail at the time of his offence, and despite having a criminal record, he had no convictions for violence.

In determining an appropriate sentence, Justice Joyce observed that violence was used, that the crime was planned, that the residence was targeted, and the offender armed himself prior to entering the residence. [ 46 ] From the above cases, I note that the following factors contributed to a higher sentence: 1. The degree of planning. 2. The presence of a weapon. 3. The presence of violence, including the degree and whether it was gratuitous.

4. The injuries suffered. 5. The amount of time spent inside the victim’s dwelling. 6. The offences committed while inside the dwelling. Sentences Imposed [ 47 ] The sentences that I impose must denounce and deter while preserving Mr. Jalal’s rehabilitative prospects. His offences were serious and his moral culpability was high. The entry into the McGee’s’ home was brief and involved a degree of planning, gratuitous violence, and the use of a weapon. [ 48 ] As for the submission that Mr.

Jalal falls into the exceptional circumstances category, I do not see any evidence to suggest that his upbringing, or post offence history supports such a finding.

I do accept he has taken some courses, however, his efforts to change the course of the trial, his breaches of curfews and his inconsistencies with the pre-sentence report writer, satisfies me that his circumstances do not justify a sentence well below the range. [ 49 ] In considering an appropriate sentence for the offences related to the McGee’s, I note in Craig , there was no planning, no weapon was used and the offender was older with a significant criminal history.

In Dragani, there was planning, the offender was in the home for 10 to 15 minutes, he committed theft, he did not have a criminal record, and he had made notable changes in his life. [ 50 ] With the above in mind and considering the aggravating and mitigating factors, I impose the following sentences: [ 51 ] On Information 253389-2-C, the break and enter and assault, I impose a global sentence of 30 months, however, after a reduction of 19 months and 8 days for his pre-sentence custodial time, there remains a balance of 10 months, 22 days.

As the sentence suggested by Crown, I decline to impose it because I see it as disproportionate in that Mr. Jalal’s offence lacked the aggravating features observed in other cases. [ 52 ] On information 251982-2-3-AC, the breach of recognizance counts, I impose a sentence of 7 days on count 1 and 14 days on count 2.

These sentences will be served consecutive to each and consecutive to any other sentence. [ 53 ] On Information 255438-2, count two attempt obstruction of justice, after considering the submissions of counsel, I am satisfied that the proposed joint sentence would not bring the administration of justice into disrepute, nor is it otherwise unfit. Accordingly, I impose a sentence of 4 months. This sentence is consecutive to all other sentences. [ 54 ] In considering the sentences, I have turned my mind to the totality principle and I conclude that the aggregate total is not crushing and would not interfere with Mr.

Jalal’s rehabilitation and reintegration. [ 55 ] As for counsel’s suggestion that the sentence should be reduced owing to Covid-19, I accept that the pandemic has placed some additional restrictions on individuals who are in custody. Despite this, no evidence has been tendered showing how or if the restrictions impacted Mr. Jalal. In fact, despite the pandemic, he was able to complete a number of programs and he had phone access. As for his custodial sentence, there is no evidence indicating the impact of the pandemic.

Specifically, what impact the pandemic would have on the institution where he would serve his sentence, or the potential impact of his health if he contracted Covid-19. Ancillary Orders [ 56 ] Pursuant to s. 743.21, Mr. Jalal must not have direct or indirect contact with Randy McGee or Michelle McGee. [ 57 ] Pursuant to s. 487.051, Mr. Jalal must provide a sample of his DNA. [ 58 ] Pursuant to s. 109 of the Criminal Code , Mr.

Jalal is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, ammunition, and explosive substances for life. ____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia