R. v. Sharma Date:, 2012 BCPC 176

Citation: R. v. Sharma Date: 20120516 2012 BCPC 0176 File No: 33601-4-C Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. VISHNU DATT SHARMA REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. W. CALLAN Counsel for the Crown: N. Barber Counsel for the Defendant: J. Duncan Place of Hearing: Prince George , B.C. Date of Judgment: May 16, 2012 [ 1 ] THE COURT: Mr. Sharma, at the conclusion of the trial of this matter with regards to Information 33601-4-C, the Court found you guilty of Count 1 and Count 4. The Court must now impose a fit and just sentence in this matter.

[ 2 ] With regards to the general principles of sentencing, as indicated by the Court of Appeal, it is fundamentally subjective, an individualized process where the trial judge has the advantage of having seen and heard all of the witnesses, and is one of the most difficult tasks that a judge has to do. [ 3 ] Our Court of Appeal has also clearly stated that the fundamental purposes and goals of sentencing found in the Criminal Code of Canada must consider when determining sentence.

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

a) to denounce unlawful conduct; (

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

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

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 4 ] The sentencing provisions in the Criminal Code at ss. 718 to 718.2 provide an individualized sentencing process in which the court must take into account not only the circumstances of the offence but the specific circumstances of the offender: see R. v. Angelillo , 2006 SCC 55 . [ 5 ] A sentence must also be similar to other sentences imposed in similar circumstances: see R. v.

L.M. , 2008 SCC 31 . [ 6 ] In addition, there is the principle of something called proportionality at the heart of any sentencing. This comes from a case called R. v. Nasogaluak , 2010 SCC 6 .

The Supreme Court of Canada tells us at paragraph 42 of Nasogaluak that proportionality means a sentence must not exceed what is just and appropriate in light of the moral blameworthiness of the offender and the gravity of the offence, but a sentence is also a form of judicial and social censure; a proportionate sentence may express to some extent society's shared values and concerns. [ 7 ] A judge must weigh the objectives of sentencing that reflect the specific circumstances of the case, and it is up to the sentencing judge to decide which objective or objectives deserve the greatest weight. [ 8 ] The importance given to the mitigating or aggravating circumstances will move the sentence along the scale of the appropriate sentences for similar offences. [ 9 ] The prosecution suggests that the following principles of sentencing apply in this case, and that is, general and specific deterrence and denunciation.

The prosecution has provided the court with two cases (it is the same case with decisions at the Provincial level and the Court of Appeal level) in support of the submission that the proper sentence in this matter should be a range of five to six years. [ 10 ] In that regard, I have considered the following factors: 1. the significant injuries suffered by the victim, Mr. Cody Mcbeth. The medical reports that were filed in the trial indicate that the stab wound had serious repercussions, and Mr.

Mcbeth testified during the trial that he is still having medical issues as a result of the stabbing; 2. the premeditation, the fact that you left the party and returned to inflict injury in what can only be described as a revenge attack that was swift and energetic in its nature; 3. a weapon was used in a deliberate manner, and as the prosecution had pointed out, this was not an emotional escalation of force such as a fist fight that goes bad between two people who consent to fight. Basically, as the Crown has said, Mr. Mcbeth never had a chance to defend himself; 4. You were 33 years old at the time.

You are a man with certain responsibilities, as you have told the Court, and so this is not a case where your youth or inexperience with life and society can be considered a mitigating circumstance; 5. you were out on bail at the time of the attack for the offence of uttering threats; and 6. although your counsel has submitted that you may have been under the influence of a drug or alcohol, at the material time, I have to agree with the prosecutor's submission that this factor, if true, is a breakeven issue.

It neither mitigates nor aggravates. [ 11 ] I have to add that the wound from the knife was 10 centimetres deep, and certainly, the effect on Mr. Mcbeth still continues. [ 12 ] Now to look at the issues of mitigation.

[ 13 ] You are now 34 years old; that since the stabbing, while in custody, you have achieved your grade 11 education; that you have two children, a son aged 13, and a daughter age one year. You have parents who are getting on in years and are in need of your assistance.

Before the incident, you were certainly addicted to drugs and alcohol, as indicated by your counsel, but you have taken steps to try and deal with this by attending AA, that you have been sober since the stabbing and during your period of custody. [ 14 ] Your counsel has indicated that you have worked very hard to deal with these problems that you have had and that while you were out on bail, you were working as a roofer down in the Lower Mainland.

Your counsel suggested to me that you are moving forward trying to get your life reorganized. [ 15 ] We have to now look at the law with regards to aggravated assault. [ 16 ] The Criminal Code , s. 268, states: 268.

(1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. [ 17 ] In looking to the jurisprudence for guidance, what I note is the case considered at two levels of court, as mentioned previously. That is the case of R. v. C.A.H. in the Provincial Court, which is found at [2011] B.C.J. No. 2175 , a decision of F.E. Howard, Provincial Court Judge.

This involved an aggravated assault in similar circumstances, and the judge, in determining how to deal with the matter, discussed the sentencing range on page 10, paragraph 50: In support of her sentencing position, Crown counsel relies upon the decisions in R. v. Biln , 1999 [and then lists off some additional decisions from British Columbia jurisprudence] . . . At paragraph 51, the judge says: After reviewing the above decisions, I have concluded that the authorities simply do not support the range of sentence proposed by the Crown.

Defence counsel has fairly pointed out that none of the cases cited by the Crown resulted in a sentence of 10 to 12 years. In fact, the longest sentence is actually 9 years. This was the sentence imposed in Wallin , supra . In this case, the accused was a 24-year-old male with significant psychiatric issues, but no criminal record. He grabbed his female victim off a trail in Stanley Park and put her in a headlock. She fought back. During the struggle, the accused strangled his victim with the cord from her headphones. He let the cord go and continued to strangle her with his hands, rendering her unconscious.

The victim was a talented and intelligent exchange student from Korea. Her injuries were catastrophic. She suffered a "diffuse severe anoxic brain injury." She remains in a "painful spastic vegetative state" and has significant cortical blindness. She requires full-time care for the rest of her life. Of the other cases discussed on page 12 of 17,of the judgement there is: R. v. Suris The accused used a knife with a 10" blade to threaten the victim. He inflicted several puncture wounds of a less serious nature.

The provincial court judge affirmed the principle that "as a general proposition" the range of sentence for an aggravated assault is 2 to 6 years. (para. 14) He imposed a 2 year jail sentence on this first-time offender. R. v. Anderson : During a drunken argument with the victim, the accused pulled out a knife and held it to the victim's neck for a second or two. He then pushed the blade into the victim's throat. He stated to the victim, "You're going to bleed to death now and I'm going to jail for the rest of my life." He then fled. The victim's trachea was not cut, but he had trouble breathing.

He was treated at the hospital and released the next day. The 54-year-old accused had a criminal record that included a conviction for uttering threats, and two convictions for possession of a dangerous weapon. The latter conviction arose when he brandished a machete at a family who were camping near him on the beach. He was on probation for this latter weapons conviction when he committed this aggravated assault. The psychological assessment indicated that the accused had a longstanding history of mood instability, alcohol abuse and antisocial personality traits.

In addition to the history of aggressive behaviour, he was prone to loosing his temper and his self control especially in reaction to comments that he viewed as insulting. He was sentenced to 3.5 years in jail. The judge also cited R. v. Caulfield , 1999 BCCA 190 : During an intoxicated argument, the accused pushed the victim off the balcony. He [that is, the victim] managed to save himself and climb back up. The accused again pushed him off the balcony. This time the victim fell three stories and hit his head on a cement abutment. He was rendered a paraplegic.

The jail sentence of 3 years imposed by the sentencing judge, [1998] B.C.J. No. 2119 , was upheld by the court of appeal. [ 18 ] The Crown in the C.A.H. case appealed the sentence that was awarded against the accused, which basically amounted to another 22 months in custody when time served was included.

The Court of Appeal in its decision of R. v C.A.H . 2012 BCCA 47 , looked at the issue of range of sentencing, and on page 8 of the decision at paragraph 20, Justice of Appeal Low says: [20] Although I am not persuaded that we should interfere with this sentence, I am reluctant to agree that the range here was two to six years. Where there is unrestrained violence such as occurred here, coupled with stalking and a surprise attack, I think the lower end is more than two years and the upper end is about eight years, with the possibility of sentencing above eight years in particularly egregious circumstances.

This is often a difficult offence for which to fashion an appropriate sentence and I am not attracted to a practice of

breaking down the types of aggravated assault and suggesting a relatively narrow range for each type. Sentencing in this area is very subjective having regard to the particular aggravating and mitigating factors which can vary greatly from case to case. [21] The sentencing judge here considered all the aggravating and mitigating factors. Her reasons are thorough and she was well aware of the egregious circumstances of the attack of the complainant by the respondent. Taken by themselves, those circumstances would dictate a substantial prison sentence.

No matter what else is said about the offender, deterrence and denunciation are the most important sentencing factors in this case. But the role of the sentencing judge requires that consideration of other factors not be abandoned. [ 19 ] Having considered those decisions of the Provincial Court and the Court of Appeal, I have to look at the range of sentences in light of the aggravating and mitigating circumstances. I understand what your counsel has said, and I certainly appreciate your remorse and the efforts that you have made and your responsibilities.

However, two years imprisonment plus two years' probation as suggested by your counsel is not adequate to deal with this case given the weight of the aggravating circumstances. [ 20 ] I note from your criminal record that you have had convictions for assaults in the past and that what is significant is that the attack on Mr. Mcbeth with the knife is a new level of violence for you. The question of deterrence not only for you specifically but a general deterrence to protect the safety of the public is required.

People should be able to go to social functions without having to worry about waking up in hospital the next day suffering from a stab wound. I hope you understand this, and for that reason, as to Count 1 on Information 33601-4-C, aggravated assault on Mr. Cody Mcbeth, I impose a sentence of four years' imprisonment. With regards to Count 4, possession of a weapon dangerous to the public peace, I impose a sentence of one year imprisonment which is concurrent to the four years. [ 21 ] I suspect, Mr. Barber, you will want a ban with regards to weapons, and a DNA sample? [ 22 ] MR. BARBER: Yes, Your Honour.

DNA is automatic, essentially, under the Code , as is a firearms prohibition, and just before I forget, as well, Your Honour, maybe -- no, well, the Crown is seeking to have the records that we relied on filed as an exhibit at sentencing as well, if that's still possible at this point. I don't know what my friend's position is. [ 23 ] THE COURT: Yes. [ 24 ] MR. DUNCAN: That should be done. I agree with my friend on that. [ 25 ] THE COURT: I agree. [ 26 ] MR. DUNCAN: And if I may make a request, too, so that we can just handle them all at once, the victim fine surcharge, if that could be waived on this?

There's no way, in a four-year sentence, he can pay that in a timely manner. [ 27 ] MR. BARBER: So yes, Your Honour, there is a s.109 mandatory firearms order when a person is convicted of aggravated assault. As well, it is a primary designated DNA offence. [ 28 ] THE COURT: All right. So this will be a lifetime ban? [ 29 ] MR. BARBER: It is a lifetime ban, yes, Your Honour. [ 30 ] With regards to s. 109 of the Criminal Code , Mr. Sharma, you are prohibited from possessing any firearm, crossbow, restricted weapon, prohibited weapon, prohibited device, and ammunition, prohibited ammunition and explosives for life.

You understand that, sir? [ 31 ] THE ACCUSED: Yes. [ 32 ] THE COURT: In addition, pursuant to s. 487.051 of the Criminal Code , I make an order in Form 5.03 authorizing the taking of a number of samples of bodily substances by any peace officer for the Province of British Columbia that is reasonably required for the purposes of forensic DNA analysis and registration in the national DNA databank from Vishnu Datt Sharma by the 31st of May 2012. [ 33 ] I order that the victim fine surcharge be waived. [ 34 ] I think that brings matters to a conclusion. [ 35 ] MR.

BARBER: Yes, Your Honour. [ 36 ] THE CLERK: And the record will be Exhibit 1 on sentencing? [ 37 ] THE COURT: Yes, thank you. EXHIBIT 1 (on Sentence): Conviction

summary report and CPIC printout for Vishnu Sharma (6 pages) (REASONS CONCLUDED)