R. v. Smith Date:, 2014 BCPC 261

Citation: R. v. Smith Date: 20140930 2014 BCPC 0261 File Nos: 3461-KC, 3461-KA, 3461-5-KA Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BUCKIE LEON SMITH REASONS FOR SENTENCE OF THE HONOURABLE JUDGE CHALLENGE Counsel for the Crown: J. Riddle Counsel for the Defendant: H. Chambers Place of Hearing: North Vancouver , B.C.

Date of Hearing: September 30, 2014 Date of Judgment: September 30, 2014 [ 1 ] THE COURT: These are my reasons on sentence in the matter of Buckie Leon Smith. On July 25th of 2013, the accused pled guilty to committing an assault causing bodily harm on his spouse, Rachel James, between March 1st and 10th, 2013, contrary to s. 267(

b) of the Code and to uttering a threat to her between the same dates contrary to s. 264.1(1). The offences arose in Mount Currie in the Pemberton area. A Pre-Sentence Report with a Gladue and psychological component was ordered at that time. [ 2 ] On April 29th, 2014, he pled guilty to breaking and entering a business premise and mischief to that property on April 16th, 2014, in Surrey. On the same date, he pled guilty to one count of breach of recognizance by failing to attend and complete a recovery program between October 3rd, 2013, and February 12th, 2013.

An updated Pre-Sentence Report was ordered at that time which was completed June 20th, 2014. On September 10th, 2014, he pled guilty to breaching the terms of his recognizance by consuming alcohol on July 25th, 2013. [ 3 ] The Crown proceeded summarily on all Informations. The maximum jail sentence for the assault cause bodily harm is 18 months. All of the other counts carry a six-month maximum jail sentence. [ 4 ] The Pre-Sentence Report and updated Pre-Sentence Report with a Gladue component and the psychological assessment were before the court for the sentencing proceedings on September 10th and 18th, 2014.

Circumstances of the Offences [ 5 ] Mr. Smith and Ms. J. had been in a common law relationship for approximately four years. They have one child, a boy, who was two at the time of the offences. There were also three other boys living with them, age six, eight, and 10, who were the children of Ms. J. from a previous relationship. Their children were present in the home for the assaults and threats which form the basis for those counts. [ 6 ] Ms. J. described their relationship as one involving ongoing emotional and physical abuse by Mr. Smith and a mutual addiction to crack cocaine. Mr.

Smith's mother died in the early part of their relationship from a suicide and he, quite irrationally, blamed Ms. J. for this loss. Ms. J. lost a baby in 2010 and then joined Mr. Smith in the abuse of crack cocaine. [ 7 ] On March 4th, 2013, the accused choked Ms. J. to the point where she nearly lost consciousness. On March 5th, he punched her in the jaw and head and kicked her in the arm. On March 7th, he repeatedly slammed her into a screen door and punched her in the jaw, cheek, and side of her head. [ 8 ] On March 10th, the accused became angry because there were no drugs in the house. Ms.

J. was in bed with the children when the accused confronted her and threatened to punch her in the face. He told her he wanted her dead because she had ruined his life. He said he was going to, "choke the life out of you." He then encouraged their two-year-old child to say, "Choke Mommy out." He told the child he was, "going to choke the life out of Mama and then it would be just you and Papa." There were screen shots of texts filed in which further threats and degrading comments were made by the accused and to which Ms. J. responded by agreeing with him that she was worthless. [ 9 ] Ms.

J. left the residence and the relationship on March 10th and reported the foregoing incidents to the police. The police observed a visible lump and a fading bruise some three inches in diameter on her chest. They also noted bruising around her left eye and cheek, a fading black eye, a mark on her temple, and various bruises to her thigh, arms, and shin. [ 10 ] According to Ms. J., the assault on March 7th resulted in a bump and swelling to her head and face and bruising to her arms, back, and legs. The blow to her cheek was particularly forceful. Ms.

J. suspected her cheekbone was fractured as the injury bothered her for six months and is still tender to the touch. Mr. Smith acknowledged to the police that he "hit her good" on the cheek as she described. [ 11 ] The first breach in time arose July 25th, 2013, and involved the police finding Mr. Smith intoxicated at a Greyhound bus stop. He was arrested and released at the scene. [ 12 ] The second breach involved Mr. Smith failing to reside at a recovery program as ordered on his bail on the Pemberton assault matter.

He never attended that program and was not reporting on bail from October 3rd, 2013, to February 12th, 2014. [ 13 ] The break and enter and mischief occurred while he was released on bail and required to reside in a recovery facility. The police responded to an alarm in a liquor store. They found Mr. Smith outside a nearby restaurant where the alarm was also activated. He was on the phone to the alarm company passing himself off as a property reference. He had broken a window to enter. He was in possession of a glass drug pipe as well as crack, methamphetamine, and heroin. Victim Impact [ 14 ] Ms.

J. attended and participated in the First Nations sentencing proceedings on both dates. Mr. Smith consented to having her speak which involved facing her at the table as she expressed herself about the terrible harm he inflicted on her and the children. This has, hopefully, served a restorative purpose by allowing her to achieve some closure and given her a sense of having been heard by the court and the offender. [ 15 ] She was also present to hear Mr. Smith talk about his remorse and his acknowledgement that he alone is and was responsible for his criminal behaviours.

He acknowledged that she was not to blame and spoke about how he regrets losing someone who loved and

cared for him and that he struggles to understand why he behaved so despicably. [ 16 ] Ms. J. resided in a safe house for some time after leaving the relationship with Mr. Smith. She has relocated to Squamish and does not feel comfortable living in her home community of Mount Currie any longer. She is unable at present to care for her children as she attempts to rebuild her life and overcome her addiction. They are now being cared for by her parents in Mount Currie. She does not want Mr. Smith to have any contact with any of the children. [ 17 ] She was very upset and crying during her comments.

It is clear that the impact of Mr. Smith's ongoing abusive conduct has been profound. She continues to live in fear of him and was shaken to learn that he had been at large and back in the Mount Currie area when she believed he was in the Fraser Valley at a recovery facility. She said she only felt safe once he was taken into custody. [ 18 ] Much to her credit, she told Mr. Smith she hopes he can overcome his issues and that he will never treat anyone else as he treated her. She also forgave him and made clear that she was moving on with her life and with her own healing. [ 19 ] I am mindful that Ms.

J.'s views and statements must not be given disproportionate weight in the determination of a fit and proper sentence. Although her victim impact information was not given in strict accordance with the provisions of s. 722, I may consider the nature of the harm which was done to her and any sentence imposed may be increased to reflect the principle of retribution as distinct from vengeance. [ 20 ] The court is not sentencing Mr. Smith for the entirety of his bad or illegal conduct during the relationship.

This information is before the court to provide context for the offences and to inform the court with respect to the offender's prospects for rehabilitation. [ 21 ] The owner of the restaurant is seeking restitution in the amount of $1,224 for the cost of replacement of the window that was broken. Antecedents of the Accused [ 22 ] Mr. Smith was born in Prince George. His mother, who was from the Mount Currie Band, was a residential school survivor. She was an alcoholic and drug addict who was confined to a wheelchair.

He was neglected and subjected to physical, emotional, and sexual abuse throughout his childhood. Mr. Smith's own substance abuse issues started when he was only 12 years old. [ 23 ] His father, who is Caucasian, was not involved in his life until he was an adult. He had a positive relationship with him until his death. His brother with whom he was close committed suicide in 2009. His mother committed suicide in 2010 leaving a note blaming him. His father passed seven days later from cancer. His relationship with Ms.

J. was new at the time of these losses and one theme of his abuse was blaming her for the death of his mother. [ 24 ] As a young adult, he had a five-year relationship that produced a child. Mr. Smith was also abusive and violent with that partner. He has no involvement with that child as her mother left the community out of fear after ending the relationship. [ 25 ] After the relationship with Ms. J. ended and until being taken into custody, Mr. Smith had lived primarily with an uncle in the community with whom he has a good relationship and who remains supportive. [ 26 ] Mr. Smith is 33 years of age.

He has a grade 12 education and has been able to find employment in construction throughout his adult life. He has been involved in First Nations cultural activities, but sometimes feels he is an outsider and has been mocked for being "a half-breed." [ 27 ] Mr. Smith has a criminal history which commences in 2007 with two convictions for spousal assault. In 2008, he was convicted of breach of probation for failing to report and forcible entry of his former partner's home. In 2011, he was convicted of assaulting a female police officer.

He body-checked that officer and then threatened to find her, sexually assault her, and strangle her. He has received only one jail term of seven days for the forcible entry. He has not been compliant with community supervision in the past or since being charged with the current offences. [ 28 ] He reports remaining clean for seven months from July to October of 2013. However, since that time, he has failed to report or reside in treatment and has continued abusing substances and has committed another substantive offence.

He had some brief periods of abstinence while in recovery facilities in the spring of this year. Over his adult life, he has attended for counselling and residential treatment which he reports did not assist him. He has only been able to maintain sobriety for a few months at a time. All of his criminal offences have been committed while under the influence of alcohol or drugs. The break and enter occurred when he was high on drugs and looking for a place to sleep. [ 29 ] Mr. Smith was fully cooperative and forthright in the preparation of the Pre-Sentence Report and psychological assessment.

He has not been diagnosed with any mental disorders, although he has experienced some episodic depression. He reported a lifelong lack of self-esteem to the psychologist. Mr. Smith is of average intelligence and is clearly capable of understanding the causes of his anger and substance dependency. [ 30 ] He acknowledged his relationship of violence with both his partners and that he "broke" Ms. J. during their relationship. He agrees that she has good reason to fear him given his conduct.

He demonstrated some lack of insight by suggesting that she was responsible to some degree by remaining in the relationship with him. [ 31 ] He was determined to be at high risk for spousal assault. With respect to his personality, the psychologist said: Evidence suggests that Mr. Smith presents as somewhat of a Jekyll and Hyde. During periods of emotional instability and substance abuse, Mr. Smith would appear to present as very rageful, cruel, irresponsible, and with reckless disregard for the safety of others.

During these times, it would appear that his substance use destabilizes and disinhibits him making him much more prone to act on violent or aggressive impulses. During somewhat more stable periods, however, Mr. Smith would appear to present as much more

prosocial and oriented towards gainful employment and productive activities. [32] The report also observes that Mr. Smith has had little exposure to healthy lifestyles or relationships which impacts his ability tolive prosocially. Mr. Smith readily recognizes his conduct towards Ms. J. and his previous partner was unacceptable and damaging. Healso understands that it arises from his own terrible experiences as a child.

He has struggled over the years to deal with his substanceabuse and emotional or psychological issues. [33] I have no doubt that his upbringing, to use his own words, broke him in a way he has been unable to overcome to date. I havesympathy for him as he wishes to feel love and to be loved, but cannot change the pattern of reactivity which has ensnared him. Positions of Counsel [34] The Crown submits that a period of institutional incarceration should be imposed because, although a conditional sentence isavailable for all offences, Mr.

Smith cannot be found to be able to safely serve any sentence in the community and it would not meet theprinciples of sentence. Ms. Riddle suggests that a sentence of 12 months for the assault and threats with concurrent periods for thebreaches is appropriate. The break and enter should be at the lower end as a consecutive sentence. [35] Counsel for Mr. Smith submitted that a sentence of time served, being approximately 115 days, at an enhanced credit of 1.5 orthe equivalent of a six-month sentence would be appropriate to be followed by a lengthy period of probation. They point out that this isthe first time Mr.

Smith has been in prison for any lengthy period of time. Aggravating and Mitigating Factors [36] The aggravating factors are that the victim was his spouse and that the assault took place in front of their children and that thethreatening involved their son. The assaults were brutal in nature, repeated, and escalated in seriousness. Mr. Smith has a criminalhistory for spousal assault and was on bail at the time of the break and enter and mischief. [37] The mitigating factors are his guilty pleas, his acceptance of responsibility, and his remorse. He has not made any attempt tocontact Ms.

J. and has had some success in abstaining and living prosocially. The Law Relating to Spousal Assaults [38] In cases of spousal assault, deterrence, both general and specific, and denunciation must be the paramount considerations inimposing sentence.

Section 718.2(a)(ii) of the Criminal Code states that it is an aggravating factor where the accused in committing theoffence abused his spouse or child. A custodial term is normally required, especially in cases where there has been bodily harm. Wherethe assaultive behaviour is repeated or persistent, a lengthy term may be warranted; R. v. Inwood (1989), (ON CA), 48C.C.C. (3d) 173 (Ont. C.A.); R. v. Weekes, [1990] B.C.J. No. 1897 (B.C.C.A.); R. v. Julian, [1990] B.C.J.

No. 2775 (B.C.C.A.). [39] The Crown provided the court with the following cases, all of which deal with aboriginal offenders, and suggested the range ofsentence is from four to 16 months: R. v. Wallace, (BC CA), 17 B.C.A.C. 27; R. v. Kendi, 2007 YKTC 27; R. v.Akan, 2012 BCPC 31. [40] I agree that the Wallace decision is closest on the facts with respect to both the circumstances of the offence and the offender.

In that matter, the court was dealing with a count encompassing only a single incident, although it was a protracted and vicious assaultby an offender who had achieved some degree of rehabilitation between the time of the offence and the imposition of sentence. Therewas a history of violence in the relationship and the offender had one prior conviction for spousal assault relating to an earlierrelationship.

At page 3, the court said: All of the information of the appellant obtaining employment, the fact that he had some counselling at Tillicum was before the trialjudge and also the fact that he was involved in a new relationship. In my view the trial judge by imposing a sentence of only fourmonths which is a lenient sentence in the circumstances gave the appellant the full benefit of any good conduct prior to sentence.

Thesentence for this serious offence with a previous conviction for a similar type of offence could very easily have been in the range of 12 to20 months if the sentencing had been dealt with in the normal fashion without the lapse of time. Counsel argued strenuously that the principle of general deterrence is not an applicable principle in this case or if it is it should step asideto the principle of rehabilitation because he has been through this reformation. That argument cannot succeed. This crime is all tooprevalent in our society.

I can express the current sentiment no more effectively than Lambert, J.A. did in R. v. Stanley [1986 B.C.J. No.695] (8 September 1986) Victoria Registry VI00338 (B.C.C.A.): I wish to say particularly in this case that society has a deep interest in this kind of conduct. It is not a private matter between the partiesto the relationship nor a matter that goes away if there is forgiveness within the relationship. This kind of conduct endangers andimperils society.

In addition, the guardians of the social interest, the people involved in social work and the police who are called outand into these situations, must have the protection of the law and the understanding that these offences will not be ignored by society orthat forgiveness by one spouse will not put an end to the offence. Other people are at risk. Children are at risk and the neighbours are atrisk. The nature of the assaults can escalate to the point where they are completely unbearable. And again by Macfarlane, J.A. in R. v. Goodings [1991 B.C.J. No. 2126] (5 June 1991) Victoria Registry VI01415 (B.C.C.A.):

It is clear from reading those cases that violence in the community cannot be tolerated, and violence by men against women is particularly reprehensible. In Wallace , Madam Justice Proudfoot finished by saying: Women are entitled to be protected from this type of brutal behaviour. It is the courts that they look to for this protection. I agree with Crown Counsel and I repeat, this sentence was at the bottom end of the range, it is not unfit. I would grant leave but dismiss the appeal subject to some amendments to the probation order to reflect changes requested by both counsel.

Gladue Factors [ 41 ] As noted above, Mr. Smith's upbringing was fraught with the consequences so common to our aboriginal peoples as a result of Canada's policies with respect to assimilation. All of Mr. Smith's aunts and uncles were sent to residential schools. All have had alcohol abuse issues. Only three remain alive. [ 42 ] I find that Mr. Smith has been impacted by the Gladue factors and his moral culpability for his offences should be seen to be reduced as a result.

Nevertheless, for the reasons set out by the Court of Appeal in Wallace , I find that the nature of the assault and threatening is so serious that a custodial sentence to be served in an institution is required to meet the principles of denunciation and general deterrence. [ 43 ] In these circumstances, I find that this outweighs the mitigation which arises from his experiences as an aboriginal person. I have taken into account his remorse and acceptance of responsibility and that he willingly participated in the restorative process of First Nations Court.

However, his efforts at dealing with his issues since the time of the offences have not been successful. Analysis and Conclusion [ 44 ] I find that Mr. Smith engaged in an ongoing pattern of control and degradation of his intimate partner. His conduct is consistent with an all too common pattern of violence followed by apology and remorse followed by escalating emotional abuse and then further violence. He was able to maintain a relationship with his victim by manipulating her emotionally by threatening to commit suicide if she left him or threatening to take the children.

In this matter, the assaults over the timeframe in the count were brutal and repeated. They occurred in the presence of children. The threat to choke Ms. J. to death and the coaching of their child to repeat that threat is particularly abhorrent. [ 45 ] This is clearly a case in which denunciation and general deterrence must be given significant weight. Mr. Smith, unfortunately, has entrenched addictions and longstanding emotional issues which have caused him to act out as he did with Ms. J. and his previous partner. His property and breach offences also result from his substance abuse.

I conclude that his prospects for rehabilitation will be limited until such time as he embraces the need for significant and long-term intervention both with respect to trauma and substance abuse. [ 46 ] I find there is a need to specifically deter Mr. Smith and make clear to him that he must take steps to address his rehabilitation. In turn, I find he is a danger to any female with whom he may become intimate. His conduct caused serious harm. For all these reasons, I find that a conditional sentence is not appropriate. Mr.

Smith is wholly responsible for his conduct, although the responsibility for his condition lies, to a great extent, at the feet of his society. [ 47 ] As I am dealing with a number of offences, I must consider the totality of the sentences imposed in addition to the principle of restraint. [ 48 ] Mr. Smith, if you will stand. [ 49 ] I find that a sentence of nine months' incarceration concurrent for the assault and the threatening is appropriate. He will receive credit for four months' actual time served and enhanced credit at a ratio of 1.5 for a total time served of six months.

There will be three further months to serve on that matter. [ 50 ] There will be a concurrent sentence of seven days on the breach involving his drinking while on bail and, Mr. Clerk, that is the KA-4. [ 51 ] With respect to the break and enter and mischief, there will be a sentence of one month concurrent on each count, but consecutive to the sentence on the mischief and assault. [ 52 ] With respect to his failure to reside at a recovery centre, and Mr. Clerk, that is the KA-5, there will be a consecutive sentence of 60 days.

This is to reflect the seriousness of his utter failure to comply with the terms of his bail over a four-month period. [ 53 ] I will attach a probation order for two years on the assault and mischief. [ 54 ] You may be seated. [ 55 ] So I am just going to pause for Mr. Smith's benefit. The sentence is a further six months' time to be served. The total time in custody is 12 months.

[ 56 ] I will also make a s. 738 restitution order in the amount of $1224.00 in favour of the owner of the restaurant, Fumio Sageishi. [ 57 ] MS. RIDDLE: Your Honour, you said the probation attaches to the assault and mischief, do you mean the threats? [ 58 ] THE COURT: Oh, I am sorry, the assault and threats.

Thank you. [ 59 ] With respect to the probation, you must keep the peace and be of good behaviour, and appear before the court when required to do so by the court. [ 60 ] You must report within 72 hours of your release from custody in person to a probation officer at 100, 233 West 1st Street in North Vancouver and report thereafter as and when directed. [ 61 ] You must reside as directed by your probation officer and do not change your residence without the prior written permission of the probation officer. [ 62 ] He is consenting to a term on probation that he reside in residential treatment and recovery? [ 63 ] MR.

CHAMBERS: He is not consenting to that, Your Honour. [ 64 ] THE COURT: You shall attend, participate in, and complete any assessments, counselling, and/or programs as directed by your probation officer, including but not limited to substance abuse and anger or emotional management programs, or reporting to any Forensic Psychiatric Outpatient Clinic. [ 65 ] You are to abstain absolutely from the possession or consumption of alcohol or any drugs or substances scheduled in the Controlled Drugs and Substances Act save and except according to a medical prescription and then only according to the dosage prescribed. [ 66 ] You are not to possess any weapons or imitation weapons as defined by the Criminal Code . [ 67 ] You are not to possess any knives except for the immediate preparation or consumption of food or such knives as are necessary to carry out the duties of your employment at your place of employment. [ 68 ] You are to have no contact direct or indirect with R.J. [ 69 ] You are not to attend any known residence, educational facility, or place of employment of R.J. [ 70 ] You are not to attend to ***** King George Boulevard in Surrey, British Columbia. [ 71 ] You are to have no contact direct or indirect with Fumio Sageishi save and except for the provision of restitution through the clerk of the court. [ 72 ] You are not to attend to Pemberton or Mount Currie, British Columbia, save and except with the prior written permission of your probation officer, and you must not reside in those areas in any event. [ 73 ] You must not engage in any romantic or intimate relationship with any female unless you have provided their name and contact information to your probation officer to allow your probation officer to inform them of your criminal history with respect to the abuse of your female partners. [ 74 ] Now, I think those are all of the terms that I intended to impose. [ 75 ] Ms.

Riddle, any further terms or comments about those terms? [SUBMISSIONS RE NO-CONTACT CONDITIONS] [ 76 ] THE COURT: All right. So I will rephrase that, that you are to have no contact directly or indirectly with R.J. or L.K.P.S. or E.W., K.W., L.W., or M.J. save and except according to the terms of an order made under the Family Law Act . I will include that you are not to attend at any known residence, education facility, or place of employment of R.J. or L.K.P.S. or E.W., K.W., L.W., or M.J. [ 77 ] MS. RIDDLE: Thank you. [ 78 ] THE COURT: And I will give that note back to you, Mr.

Clerk, with the spellings of those names. [ 79 ] MS. RIDDLE: With respect to the no-go to Pemberton or Mount Currie, I anticipate likely an inquiry from probation as to what the court has in mind with respect to his going back to those areas. Now, you have said not to reside. So I take it you are contemplating for visiting family -- [ 80 ] THE COURT: Yes, and that he must advise them in advance of his intention to go there. [ 81 ] MS. RIDDLE: Your Honour, I am not sure if I understood the counselling condition.

You made reference to a mental health or forensic outpatient clinic, that he is to report to one of those? [ 82 ] THE COURT: Yes, that it includes reporting to a forensic outpatient clinic. [ 83 ] MS. RIDDLE: Okay, thank you.

[ 84 ] MR. CHAMBERS: For Mr. Smith's benefit, Your Honour, in terms of the not residing and not going to Pemberton or Mount Currie, I note he has not agreed to a residential treatment program, but perhaps for his benefit, if he were to attend and successfully complete that type of program, would the court be prepared to consider revisiting the questions around his living in Mount Currie and Pemberton? [ 85 ] THE COURT: Yes, that will depend on what is going on with the family and the children and all of those issues. [ 86 ] MR. CHAMBERS: Okay. [ 87 ] THE COURT: So, Mr. Smith, that is to give comfort to Ms.

J. and her family and the children, that they will know if you are coming up there. If you are going to pursue what you need to pursue, you are not going to be able to do that from Mount Currie, in any event, because there are not the necessary resources there. I do hope that you come back before the court and have information to establish that you are not a risk and that you can, in fact, go back to Mount Currie and live a healthy, sober, straight life there. [ 88 ] Now, there are two other incidental orders that have to be made. I am going to order that he provide a sample of his DNA.

It is primary ground on the Count 1 of the assault, 3461-KC-3. Also, on that same count, there will be a firearms prohibition under s. 110 for a period of five years. He is not to possess any firearm, crossbow, prohibited weapon, restricted weapon, imitation weapon, prohibited device, ammunition, prohibited ammunition, explosive substance, or all such things and any related authorizations, licences, and registration certificates. That is for a period of five years. [ 89 ] Do you have any such items to surrender? [ 90 ] THE ACCUSED: No. [ 91 ] THE COURT: Anything further, then? [ 92 ] MR.

CHAMBERS: With regards to victim fine surcharge, Your Honour, I would ask Your Honour to make a finding he is not able to pay -- [ 93 ] THE COURT: Yes. [ 94 ] MR. CHAMBERS: -- find him in default and impose a one-day concurrent sentence or one day in default concurrent with Your Honour's existing sentence? [ 95 ] THE COURT: Yes, there would otherwise be $600 in victim fine surcharges for Mr. Smith to pay and he has been in custody now for well over three months at this point in time and he will remain in custody.

I will find that he does not have the ability to pay and will not have the ability to pay within a reasonable period of time. Instead, I will impose one day in default concurrent on each count to be served concurrent with the sentences just imposed. [ 96 ] MR. CHAMBERS: Thank you, Your Honour. [ 97 ] THE COURT: Good luck, Mr. Smith. [ 98 ] THE CLERK: Sorry, Your Honour, Count 1 on 3461-5-KA ? [ 99 ] ms. riddle: I direct a stay of proceedings . (REASONS FOR SENTENCE CONCLUDED)