Her Majesty the Queen - v. -, 2018 SKPC 32

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 032 Date: April 20, 2018 Information: 991019450 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kelly Baht Appearing: Ms. L. Andrews For the Crown Mr. D. Hitchcock For the Accused SENTENCING DECISION M. HINDS , J I. Introduction [ 1 ] A trial respecting the accused took place before me on December 20, 2017. The trial was concerned with events which occurred in Regina on July 18, 2017.

On January 31, 2018 I determined that the accused, Kelly Baht was guilty of the following offences: 1. That he committed an assault on Allyssa Kerth, by grabbing her arm and punching her in the head three times, contrary to

section

266 of the Criminal Code . 2. In committing an assault on Allyssa Kerth he used a weapon, a knife, by holding a knife to her throat and to her side, contrary to

section 267 (

a) of the Criminal Code . 3. That he did kidnap Allyssa Kerth with the intent to cause her to be confined against her will contrary to section 279(1) (

a) of the Criminal Code . On this charge I found that Mr. Baht confined Ms. Kerth in her vehicle against her will by grabbing and punching her and holding a knife to her. He took control over Ms. Kerth and made her drive her vehicle to the outskirts of Regina. Fortunately the situation cooled after 30 minutes and Mr. Baht permitted Ms. Kerth to return to the city of Regina and eventually to the Federated Co-op office building where she had previously been working. 4. He did have a weapon, a knife, for a purpose dangerous to the public peace contrary to

section 88 of the Criminal Code . [ 2 ] On March 26, 2018 Mr. Baht entered guilty pleas before me to a charge arising on July 18, 2017 of unlawfully possessing a controlled substance, morphine, contrary to section 4(1) of the Controlled Drugs and Substances Act . In addition, Mr. Baht entered a guilty plea to a charge which occurred between July 27 to 28, 2017, of without lawful excuse disobeying a non-contact order made by a Judge under section 516(2) of the Criminal Code of communicating directly or indirectly with Allyssa Kerth, contrary to

section 127 of the Criminal Code . Sentencing submissions were heard on March 26, 2018. [ 3 ] The only issue which remains concerns the appropriate sentence for Mr. Baht. [ 4 ] For the reasons which follow I sentence Kelly Baht to a term of incarceration of 36 months going forward from this day. II. Background [ 5 ] Mr. Baht is 25 years of age. He and Ms. Kerth met over two years ago on a dating site. They became friends, briefly dated and then stopped seeing each other. They resumed a relationship sometime in the spring of 2017. Near the beginning of June 2017, Mr. Baht moved in with Ms. Kerth.

During the weekend of July 14, 2017, the couple made a quick return trip from Regina to Vancouver. On the way back to Regina on July 17, 2017, Ms. Kerth looked at Mr. Baht’s cell phone and discovered that he had been lying and cheating on her. As a result Ms. Kerth did not communicate with Mr. Baht for the rest of the trip back to Regina and that evening, which they spent apart despite numerous attempts by Mr. Baht to communicate with her. The next day July 18, 2017, the offences, which I have found Mr. Baht guilty of, occurred. III. Mr. Baht ’s Criminal Record [ 6 ] Mr. Baht has a criminal record.

It was filed as Exhibit P-2 at the sentencing hearing. Mr. Baht committed 16 offences as a youth. Some of these offences were serious and involved violent behaviour. As a youth he had three convictions for robbery. The first robbery occurred on August 30, 2007, when he was 15 and involved the use of a knife on a taxi driver. At the age of 17 on August 24, 2009 he was involved in another robbery during which he hit a taxi driver in the head and face with a sledge hammer and crowbar. A short time later on October 21, 2009 he struck a cab driver in the face with a hammer and was convicted of a robbery. Mr.

Baht received a sentence of 20 months closed custody and 10 months community supervision. His case was reviewed approximately a year later and he was diagnosed as having conduct disorder and assessed as being high risk to commit a violent act. [ 7 ] Mr. Baht has committed nine previous offences as an adult. On November 16, 2011, he was sentenced to 3 months incarceration for carrying a concealed weapon and possessing a weapon for a purpose dangerous to the public peace. These offences involved him confronting two people while he held a hunting knife.

When he was subsequently searched by police a steak knife was found in his front pocket. This sentence was Mr. Baht’s first adult sentence. [ 8 ] On January 23, 2013 he received a sentence of 2 years less a day (less 4 months as credit for

time spent on remand) incarceration for two arson offences which involved starting two garages on fire. [ 9 ] Overall I find Mr. Baht’s criminal record is concerning for a person of his age. Victim Impact Statement [ 10 ] Allyssa Kerth provided the Court with a Victim Impact Statement which is Exhibit P-3. Ms. Kerth is fearful of Mr. Baht. She indicated that the events of July 18, 2017 have had a negative impact on her life. She has gone from being a very outgoing, fun, happy, open person, to someone who does not want to socialize in big crowds. She has developed severe anxiety and depression.

She has lost some friends and distanced herself from other friends. As a result of being punched in the head she suffers from migraines, dizziness and the area of injury is sensitive to the touch. Ms. Kerth took 12 days off work after the incident. Overall, I am satisfied that Mr. Baht’s criminal actions traumatized Ms. Kerth who suffers from these actions to this day. IV. Sentencing Position of the Parties [ 11 ] The Crown submits that going forward, a sentence of 53 months or 4 years and 5 months of incarceration is appropriate.

The Crown takes the position that the proper sentence for all of the offences committed on July 18, 2017 should be 5 years. The Crown submits that this Court should impose a consecutive sentence of 6 months for the offence of disobeying the non-contact order contrary to

section 127 of the Criminal Code . The Crown proposes a 15 day concurrent incarceration for the possession of morphine charge. From the 5 ½ years (66 months or 1980 days) of incarceration, the Crown submits that Mr. Baht should be given credit for time he has spent on remand since July 18, 2107 which she equates to 252 actual day (as of March 26, 2018 the date of sentencing submissions). The 252 days multiplied by 1.5 equals 378 days. Therefore, 1,980 days less 378 equals 1,602 days or approximately 53 months incarceration going forward. The Crown also has requested that I make an order prohibiting Mr.

Baht from possessing firearms and weapons for life and that I make an order authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis. [ 12 ] Counsel for Mr. Baht submits that I should impose a sentence of incarceration of 3 years for kidnapping and other offences of July 18, 2017. I understood that counsel for Mr. Baht agreed that it would be appropriate to impose an additional 6 month term of incarceration for the offence of disobeying the non-contact order, contrary to

section 127 of the Criminal Code . Counsel for Mr. Baht further submits that Mr. Baht’s remand credit of 378 days (as of the date of sentencing submissions, March 26, 2018) should be deducted from the proposed sentence of 3 ½ years. Hence the defence submits that the sentence going forward should be 30 months or 2 ½ years of incarceration. V. Law [ 13 ] Sections 718 to 718.2 of the Criminal Code guide the Court in determining the appropriate sentence for an offender. [ 14 ]

Section 718 provides that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions with one or more of the objectives set out in that section. These objectives include: a. Denouncing unlawful conduct; b. Deterring the offender and other persons from committing offences; c. Separating offenders from society if necessary; d. Rehabilitating offenders;

e. Providing reparations for harm done to victims or the community; and f. Promoting a sense of responsibility in offenders. The weight to be placed on each of the objectives listed in

section 718 is determined by the circumstances of the offence and the offender. [ 15 ] The fundamental principle of sentencing set out in

section 718.1 of the Criminal Code requires that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 16 ]

Section 718.2 of the Criminal Code lists a number of other sentencing principles a Court must take into consideration when fashioning a sentence. These factors include consideration of aggravating and mitigating circumstances, as well as the principles of parity, totality, and restraint. Aggravating and Mitigating Factors [ 17 ]

Section 718.2 (

a) of the Criminal Code states that the sentence imposed on an offender must take into account any aggravating and mitigating circumstances. I consider the following facts to be aggravating circumstances in this case: a. In committing these offences Mr. Baht abused his then intimate partner Ms. Kerth. b. There was physical harm done to Ms. Kerth. c. There was serious psychological harm done to Ms. Kerth. d. Despite an order prohibiting him from contacting Ms. Kerth, Mr. Baht did so on July 27 and 28, 2017. e. The offence of kidnapping is a very serious offence, and involved some deliberation and planning by Mr.

Baht. f. Mr. Baht has a previous history or violence involving knives. [ 18 ] I consider the following to be mitigating circumstances: a. Although Mr. Baht’s initial actions of July 18, 2017 were violent and reprehensible, the violence diminished over time. After approximately spending 30 minutes of time with Ms. Kerth in her vehicle, Mr. Baht was persuaded to get out of the vehicle and allow Ms. Kerth to return to her work place. b. He has entered guilty pleas to two charges before the Court. Parity [ 19 ] The parity principle requires that sentences be similar to sentences imposed on similar

offenders under similar circumstances. In their submissions, counsel submitted a number of cases concerning unlawful confinement andassaultive behaviour. I found the following cases helpful in determining sentencing in this case. [20] After a lengthy trial the Court in R v Trecartin, 2017 NBQB 71 , 2017 NBQB 071 [Trecartin] determined that Mr.Trecartin was guilty of 9 counts of a 12 count indictment. His actions giving rise to the convictions relate to involvement with his formergirlfriend and the abusive and criminal behaviour he subjected her to over a significant period of time during their relationship.

The trialJudge determined that during the trial there was an escalating pattern of Mr. Trecartin threatening and/or assaulting his formergirlfriend. This was accompanied by a hesitancy on the girlfriend’s part to seek help and escape because of Mr. Trecartin’s promises thathe would do better. Some of the facts and offences for which Mr. Trecartin was convicted bear a striking similarity to the offencesbefore this Court. During the dark of night on February 15, 2016, Mr. Trecartin broke into his girlfriend’s car which was parked at herwork place.

He waited in the back seat until she got into the car and then ambushed her at knifepoint forcing her to drive against her willfor approximately an hour. During that time he threatened her, and physically assaulted her by banging her head against the car windowand cutting her with the knife. The cut was minor - the emotional damage was not. Mr. Trecartin was convicted of uttering threats,assault, assault with a weapon, unlawful confinement and attempting to obstruct justice. Unlike the Baht matter, Mr.

Trecartin wasconvicted of obstructing justice when he made his girlfriend promise to go away with him in an attempt to prevent her from testifyingagainst him in an upcoming trial. In Trecartin, Mr.

Justice Christie imposed the following sentences respecting the events of February15, 2016: - Uttering threats to kill or do bodily harm - 18 months incarceration - Assault with a weapon - 36 months incarceration - Unlawful confinement of the victim against her will, in recognition of the devious thinking that went into planning and executionof the incident and further recognizing the very purpose for doing so (to obstruct the course of justice) - 48 months [21] The courts of Newfoundland also have some experience in sentencing individuals for kidnapping.

In R v Newhook, 2008 NLCA 28 [Newhook] the Newfound Land Court of Appeal dealt with the sentencing of Mr.Newhook for a variety of crimes involving his former live-in girlfriend. He was charged on three separate informations. The first chargeof assault on the complainant occurred when the complainant tried to move out. The second information related to an assault outside aparty, after which Mr. Newhook followed the complainant to her sister’s home, then broke into the complainant’s home and waited forher to get there. He then assaulted the complainant again as she tried to get him to leave.

The third information related to an incident amonth later, when Mr. Newhook waited outside the complainant’s home for her male companion to leave, then broke her door down,handcuffed her and forced her to come to his home, where she was threatened and confined before she managed to escape. At trial Mr.Newhook was sentenced to a global sentence of 9 years and 2 months which included a sentence of one year’s imprisonment forkidnapping (third information). Mr. Justice Rowe (as he then was) considered the appropriate sentence for Mr. Newhook on appeal.

He adjusted the sentences so as to achieve, in total, a term of imprisonment of 5 years. What is particularly relevant to the matter beforethis Court relates to Mr. Justice Rowe’s major upward adjustment of the sentence for kidnapping from 1 to 4 years. [22] I find Mr. Justice Rowe’s analysis of the appropriate sentence for an offence of kidnapping in Newhook to be instructive. He stated as follows in paragraphs 41 to 46: 41. Regarding kidnapping, I would note the view expressed by Chief Justice Finch in R. v.

Deo (2007), 2007 BCCA 626 ,249 B.C.A.C. 167 at para. 13: Given the infinite range of personal circumstances of those convicted of kidnapping, and the infinite variety of circumstances that canoccur in the commission of the offence itself, it seems evident to me that the full spectrum of penal consequences should be open to atrial judge when sentencing for this offence. Although this Court sometimes expresses views as to an appropriate range of sentence forcertain classes of offences, it has no mandate to exclude from consideration any sentence that is permitted by law under the CriminalCode. 42.

I agree with the foregoing with one caveat. It is proper for appellate courts to set an “acceptable range” of sentences for variousoffences (indeed, this is contemplated by Iacobucci J. in Shropshire). Where a sentence falls within the range, it will usually not be seenas “demonstrably unfit”. Sentences above or below the range will attract appellate intervention, unless the Trial Judge has set out areasoned bases for departing from the range. 43. As Gary Clewly and Paul McDermott state in Sentencing: The Practitioner’s Guide, looseleaf (Aurora, Ont.: Canada Law

Book, 2008) at p. 8-185, since kidnapping requires the transportation of the victim, its commission is infrequent and, accordingly,opportunities to develop an acceptable range of sentences have been rare. They state: “Nevertheless, for most kidnapping offences, theCourt will impose a substantial custodial sentence.” I agree with their view that the planning involved in the successful execution of suchan offence is an aggravating factor that ought to increase the sentence and that other aggravating factors include the use of a weapon andany injuries to the victim (p. 8-187).

These elements were present in this case. 44. This is a “domestic” kidnapping case. I do not look to cases involving other types of fact situations, e.g. kidnapping for ransom orkidnapping a hostage in an escape attempt, for sentencing precedents. 45. Sentences for “domestic” kidnapping vary greatly, including: five years in R. v. Robbie (1989), 1989 ABCA 182 , 68Alta. L.R. (2d) 386 (C.A.); twelve years in R. v. Senior (1996), 1996 ABCA 71 , 181 A.R. 1 (C.A.) (affirmed at (SCC), [1997] 2 S.C.R. 288); 34 months in R. v. R.F., [2000] Y.J. No. 54 (Terr. Ct.) (Q.L.); 54 months in R. v.

P.S. 2007 ONCA299, (2007), 221 C.C.C. (3d) 45 (ONCA) (this was a global sentence for kidnapping and sexual assault). The case with the highestsentence, 12 years in R. v. Senior, had further aggravating factors, notably the offender forced his former girlfriend to become aprostitute. Thus, aside from R. v. Senior. sentences for “domestic” kidnapping range from 34 months to five years. 46.

In the circumstances of this case, I would impose a sentence of four years for kidnapping (rather than one year, as had beenimposed by the Trial Judge). [23] I am in agreement that the range of sentences for “domestic” kidnapping ranges from 34 months to 5 years. [24] In case of R v Templeman, 2016 NLTD(G) 114 involved the sentencing of Mr. Templeman who was convicted after a trial by jury of breaking and entering a residence of a female complainant with intent, committing assaults ona male and female complainant, kidnapping the male complainant, drive while disqualified and refusal to provide a breath sample.

TheCrown sought a global sentence of 8-9 years. The defence sought a period of incarceration of 4 - 5 years. The judge imposed a sentenceof 5 years and 9 months. In arriving at this sentence the judge imposed a sentence of 3 years incarceration for the offence of kidnappingof the male complaint who was taken from the female complainant’s residence against his will and detained by Mr. Templeman formuch of the morning, during which on two occasions he was locked in the truck of Mr.

Templeman’s vehicle. [25] In arriving at the sentence of 3 years for kidnapping, Justice Burrage in Templeman stated as follows at paragraphs 76 - 78: [76] The following non-exhaustive list of factors to be considered in sentencing for domestic kidnapping such as that in Newhook,can be gleaned from the case law: - The duration of the kidnapping; - The degree of planning involved in the successful execution of the offence; - Whether a weapon was used; - The degree of force involved and whether restraints were used in carrying out the offence; - Injuries to the victim, physical and psychological; and - Whether threats were used in the commission of the offence. [77] While the kidnapping in this instance had domestic overtones, it is clearly not your classic domestic situation, which tragicallyoften involves men kidnapping their estranged spouse, or girlfriend.

That is not to suggest, however, that the offence is any less seriousbecause DO happened to be the victim. His Victim Impact Statement was read into the record and it is apparent that DO was greatlytraumatized by the event and continues to suffer to this day. The impact on him and the fact that the kidnapping was prolonged is also an

aggravating factor on sentencing. [78] That said there is no evidence to conclude that the kidnapping of DO involved premeditation and planning on Mr. Templeman’spart, such as that in Peddle and Newhook. No weapons were involved in the kidnapping, nor was DO threatened , handcuffed, orotherwise restrained. He did what he was told by Mr. Templeman out of fear of what might happen to him if he did not comply. Thisincluded climbing into the trunk of Mr. Templeman’s car not once, but twice. Mr. Templeman’s power of persuasion lay in the simplefact that DO was afraid of him. Nothing more was required.

After returning to Carbonear DO was told to pack his things and leave. Hecomplied, after helping Mr. Templeman clean up the broken door window. [26] R v Arcand, 2013 SKCA 75 involved a review by the Court of Appeal of Mr. Arcand’s sentence of 5 years incarceration after being convicted of sexual assault of a female acquaintance and a sentence of 5 years forkidnapping the female acquaintance, concurrent to the first sentence. This was a case where Mr.

Arcand took advantage of anintoxicated, unconscious female acquaintance by kidnapping her (taking her away from her parents vehicle and placing her in hisvehicle), going to a field, where the complainant woke up with Mr. Arcand on top of her trying to penetrate her vagina with his finger orpenis. The complainant screamed for help. Mr. Arcand let her get up and she managed to get away from Mr. Arcand and make her wayto a highway where she was picked up and returned to her parent’s home. The Court upheld the 5 year sentence for each offence.

TheCourt concluded that the trial judge’s decision to impose concurrent sentences was entitled to deference. Ottenbreit J.A. speaking forthe Court stated as follows at paragraphs 41, 42 and 44: [41] The starting point for sentences for serious sexual assault is three years and assumes an offender of good character and nocriminal record R. v. Cappo (1993), 116 Sask. R. 15 (Sask. C.A.), R. v. Jackson, (SK CA), [1994] 3 W.W.R. 125(Sask, C.A.)).

The trial judge observed that the offences were a major sexual assault and unlawful confinement, both of which wereserious matters which required emphasis of the sentencing objectives of denunciation and deterrence. Given his age, Mr. Arcand has alengthy criminal record of 36 prior convictions, some of which involve violence to women. A sentence of four years for the sexualassault offence by itself may have been appropriate looking at all the relevant circumstances and factors.

The real issue is the overallfitness of the sentence and the trial judge was obviously working toward crafting the overall sentence. [42] The kidnapping offence is, in itself, an offence which is equally as serious as the sexual assault and would attract, by itself, asubstantial incarceral sentence. If the judge had sentenced consecutively for each offence, a total sentence of five years would not be outof line. This is clear from R. v.

Bermudez-Rivera, 2010 ONCA 653, at paras. 1-3, where the accused’s appeal of a sentence of five yearsfor an assault and attempted kidnapping of a young woman was dismissed. . . . [44] The trial judge specifically noted as important the principle set forth in s. 718.2(

c) respecting consecutive sentences not beingunduly long or harsh. He clearly had in mind a total sentence and I take it that he chose for this reason to make the sentences for bothoffences the same but concurrent in keeping with the second approach described above. The trial judge’s decision to impose concurrentsentences is entitled to deference. Range of Sentences [27] Given the above review of the case law, I conclude that there is a broad range of sentences for kidnapping. Kidnapping is a serious offence and requires an emphasis on the sentencing principles of denunciation anddeterrence.

As indicated earlier, I am of the view that the range of sentencing for “domestic” kidnapping is between 34 months to 5years. Sentences will obviously vary based on the circumstances of each case. Duration of Sentence [28] In this case the convictions for assault, assault with a weapon, kidnapping and having a knife for a purpose dangerous to the public peace arise from a single criminal “adventure” or “enterprise” which occurred onJuly 18, 2017. I find that Mr. Baht deliberated and planned his kidnapping and assaults on Ms. Kerth.

Timing was key to his undetectedentry into her vehicle while she completed a delivery. Initially, he surprised her by his presence in the back seat of the courier vehicle. He then grabbed her and prevented her from escaping the vehicle. This was followed by punching, threatening and placing a knifeagainst her body and forcing her to drive the vehicle out of town. The duration of the kidnapping was approximately 30 minutes. It isfortunate that Mr. Baht’s violent behaviour did not escalate, but rather diminished over time.

Taking all of these circumstances intoaccount and to avoid an overall sentence which is unduly long or harsh, I sentence him as follows:

- Kidnapping - 42 months incarceration; - Assault - 18 months incarceration, concurrent; - Assault with a weapon, a knife - 36 months incarceration, concurrent; - Have a weapon, a knife for purpose dangerous to the public peace - 12 months, concurrent; - Possession of morphine, 15 days of incarceration, concurrent. [29] The conviction for disobeying a court order to have no contact with Ms. Kerth occurred about nine days after the offences of July 18, 2017 and involved Mr. Baht contacting Ms. Kerth on her cell phone from the jail and Mr. Baht having a third party contact Ms. Kerth on his behalf.

This is a separate and distinct offence which further traumatized Ms. Kerth. I am of the view that a sentence of 6 months incarceration, consecutive to above - mentioned offences is appropriate. Conclusion [30] In

summary, I sentence Mr. Baht to 48 months incarceration. Mr. Baht has been on remand since July 18, 2017 which is 8 months and 2 days. When I multiply 8 months times 1.5 (for remand credit) this amounts to 12 months remand credit which I deduct from 48 months. Therefore, I order Mr. Baht to be incarcerated for a period of 36 months from today’s date. Other Orders [31] I consider this an appropriate case, given the serious nature of these offences, to impose a forensic DNA order under

section 487.051 the Criminal Code , and I do so in the standard terms. [32] Pursuant to section 109(3) of the Criminal Code , Mr. Baht is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substances for life. [33] Lastly, pursuant to

section 743.21, I am making an order prohibiting Mr. Baht from communicating, directly or indirectly, with Allyssa Kerth during the custodial period of his sentence. [34] The matter before the Court has been difficult and I would like to thank counsel for their very thorough and thoughtful submissions which have been of assistance to the Court.

___________________ M. Hinds, J