R. v. Mann Date:, 2014 BCPC 138

Citation: R. v. Mann Date: 20140529 2014 BCPC 0138 197466-1 Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ONKAR SINGH MANN M.B. HICKS

R. Khangura D. Birch Surrey, B.C.

May 29, 2014 Date of Judgment: May 29, 2014 [ 1 ] THE COURT : Onkar Singh Mann has pled guilty to Count 2 on Information 197466 that on the 18th of November 2012 at Surrey, British Columbia he did operate a motor vehicle in a manner that was dangerous to the public having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably be expected to be at that place, and thereby did cause bodily harm to J.S., contrary to s. 249(3) of the Criminal Code . [ 2 ] The Crown has proceeded by indictment; in fact, I believe this is a straight indictable offence.

The maximum sentence for this offence is ten years' incarceration. Of course, a sentence of ten years for this offence would only be imposed in the most unusual circumstances. The Crown seeks a custodial sentence of nine to 12 months. A conditional sentence order is not available in this case. The Crown seeks a probation order for a period of two to three years to address ongoing rehabilitation issues and to ensure that Mr. Mann's mental health is stabilized in a positive way in the community.

The Crown seeks a DNA databank order which is I believe not contested, and I believe that this is a secondary designated offence. The Crown is also seeking a two to three-year driving prohibition under s. 259(2) of the Criminal Code . [ 3 ] Mr. Birch on behalf of Mr. Mann says the particular circumstances of Mr. Mann's mental health, including consideration of his circumstances on the day of this offence argue strongly against a custodial sentence.

The defence says the objectives of sentencing are best achieved in this case through a suspended sentence with probation as proposed in the terms that Crown counsel has set forward in their submissions. The defence does not oppose, as I indicated, any of the ancillary orders. [ 4 ] The circumstances were reviewed in detail by Crown counsel this morning and are not in dispute. The victim J.S., who is present in court today, was walking from her home south along 148th Street in Surrey. She was going to a bus stop at 76th Avenue and 152nd Street.

As she proceeded along the west side of 148th Street she became aware of a motor vehicle which passed her southbound and then turned and passed her again now proceeding northbound. Mr. Mann was the owner of that vehicle and the sole occupant. As he passed Ms. S. he waved. She found this odd, she did not know him, but she waved back. She continued south on 148th Street. As she approached 76th Avenue she looked over her shoulder to check traffic in order to cross to the northeast corner of the intersection. She saw Mr. Mann's vehicle parked behind her on 148th Street.

Just as she was reaching the northeast corner of the intersection she heard Mr. Mann's vehicle accelerate from behind her. His vehicle, travelling south on 148th, crossed from the right side of the road to the left side of the road and struck Ms. S. as she reached the corner of the intersection. She was catapulted forward, landing near an electrical utility box adjacent to the roadway. [ 5 ] After striking Ms. S., Mr. Mann drove across that corner of the intersection, through a signboard, across 76th Avenue and onto the lawn of a residence on what I determine to be the southeast corner of the intersection. Mr.

Mann began to reverse his vehicle in order to leave. Ms. S. heard that sound. She was fearful that he was driving back towards her and she screamed out for help. A neighbour came out of a residence nearby and came to her assistance. Mr. Mann drove away. Police were called. [ 6 ] The path of Mr. Mann's vehicle can be seen in photographs. Tread marks of his vehicle are visible in the photographs that are marked Exhibit 2. The licence plate from his vehicle was detached and left at the scene. Police who attended were then able with the licence plate to determine Mr. Mann's residence and they went there.

That residence is nearby to the site of this event. They found Mr. Mann's vehicle parked in the driveway of his parents' home. It was damaged as is shown in photographs included with Exhibit 2. [ 7 ] It appears that after leaving Ms. S. injured and driving away from the scene, Mr. Mann drove to his home. He went then to the home of the neighbour next door and from there he called the police. That call was placed about 22 minutes after the initial call to police by the resident who had attended at the scene. Mr. Mann was arrested by police at his neighbour's home.

I am told that he was then in custody for a period of 19 days before his release on bail. [ 8 ] J.S., and Ms. S. is here as I pointed out, and I hope I am not doing great harm to the proper pronunciation of your name. Ms. S. suffered significant injuries. She suffered a broken arm, two sprained ankles, a number of scrapes and bruises and she has suffered back and neck pain in the time since this incident occurred. The break in her arm occurred near the shoulder joint and required surgical repair with plates and screws. She attended physiotherapy two times a week for a year.

She has been in a rehabilitation program over the last three months. Once the program has ended in two to three weeks she will be able to return to work, although she must now look for work because she has not been able to work since these events occurred. In her prior work she was required to lift using her arm, and she was unable to do that and so was not able to continue with her employment. As I said, she has not been able to work, as I understand it, since these events. Ms.

S. has only recently been able to resume a greater role in the household chores that she used to do but which her boyfriend has had to do in the meantime during her rehabilitation. [ 9 ] Significant as well has been the emotional impact of this incident on Ms. S. I am going to read the following paragraph from her victim impact statement. It states the following: This incident has taken a tremendous toll on me emotionally. I have had insomnia off and on and found that I was dealing with depression. I went through therapy due to the overwhelming fear of traffic and general anxiety from the accident. I still become

irrationally afraid of similar-coloured cars, especially when they are or end up behind me. [ 10 ] That victim impact statement demonstrates the significant effects this event and Mr. Mann's criminal conduct has had on Ms. S.'s life, and no doubt on the lives of the people close to her, and on her ability to enjoy every aspect of her life. That ability to enjoy life in every aspect, from what I can determine based on this statement, has been impacted significantly.

I have all of that in mind as I consider an appropriate outcome in this case. [ 11 ] In determining a fit sentence I must consider the purpose and principles of sentencing which are set out in s. 718 of the Criminal Code . For the benefit of the people here and Mr. Mann, I am just going to read that section. It states this: 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. [ 12 ] I must consider, in determining a fit sentence, aggravating and mitigating circumstances in respect to this offence and this offender. I must consider sentences imposed on similar offenders in similar cases. I must consider all available sanctions other than imprisonment that are reasonable in the circumstances. I must not deprive Mr. Mann of his liberty if less restrictive sanctions are available and appropriate.

The sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Thus, sentencing in a criminal case is not an arbitrary application of a simple formula. It is a careful balancing of the sentencing objectives and principles applied to the particular facts of the case, that is, the circumstances of the offence and the offender. [ 13 ] Here, I am asked to determine whether a custodial sentence is required or whether those objectives can be best achieved through a suspended sentence, Mr.

Mann remaining in the community but subject to a probation order which addresses rehabilitative and restorative objectives. Mr. Mann's circumstances are important to these considerations. I have reviewed the Pre-sentence Report and the psychological report and considered the submissions of counsel on this issue. Mr. Mann is 44 years of age. He has no prior criminal convictions. He has a lengthy motor vehicle record which includes five 24-hour prohibitions and three extended prohibitions of three or four months, the last of which ended in February of 2008.

He has six prior driving-related violations including five speeding convictions. In addition, in 2009 he was fined for driving without due care and attention. There are no violations from that point to this offence in November of 2012 that I am aware of. He has not driven since that time and Mr. Birch says that he may not drive again. [ 14 ] The Pre-sentence Report and the psychological assessment detail a relatively unremarkable childhood, raised in a stable family. However, Mr.

Mann, from an early stage in his school, appears to have had few friendships and his life has developed a well- documented, isolated and lonely nature. He has completed Grade 12 and some post-secondary education but has had a limited and unstable work history. He has not worked in some time. He has a substance abuse history which over the years has included marihuana, alcohol, heroin and cocaine. He lives in his parents' home and spends most of his waking hours there, it would appear. [ 15 ] Most significant in this sentencing hearing is his psychiatric and psychological circumstances. Dr.

Lewis, who completed the psychological assessment, at page 10 of her report summarized her conclusions respecting Mr. Mann as follows, and I am going to quote several passages where Dr. Lewis states the following, "It is clear that Mr. Mann experiences persecutory delusions and that he has a psychotic disorder." She goes on to state that Mr. Mann meets the diagnostic criteria for schizophrenia. She states further that further information and observation are required to rule out the presence of schizoaffective disorder and/or bipolar disorder. She states that it is her clinical opinion that, "Mr.

Mann's schizophrenic symptoms are related directly to the commission of the index offence." She goes on to state that it appears that he was experiencing delusional beliefs and disorganized thinking. "It is important to note," she states, "that he acknowledged knowing that he was engaging in illegal behaviour." [ 16 ] She made the following recommendations. She stated that Mr. Mann requires psychotropic medication to help manage his active symptoms of schizophrenia. She stated that he will need to remain under the care of a psychiatrist. She stated that Mr.

Mann would benefit from a referral to a community mental health team that specializes in managing psychotic disorders. She stated that it would be best if Mr. Mann could serve his sentence in a facility that specializes in treating psychiatric disorders if he is to be incarcerated. She states that once his psychiatric symptoms have stabilized he would benefit from participation in a form of training that might allow him to obtain part-time employment or volunteer work, and she states that he must remain substance-free. [ 17 ] These findings make the sentencing of Mr. Mann particularly challenging.

That is reflected in the explanation which Mr. Mann gave to Dr. Lewis for his actions on this particular day. In her report she summarized that information as follows: When asked to describe the index offence Mr. Mann initially stated, "This chick ran across the street and I hit her. It happened too quickly and that's all I can say about it." With further questioning he was able to add, "She ran across the street and it triggered a chase response so I hit her. I thought I was in a movie and hunting spies and she was a spy. She ran and I thought she was guilty of something so I hit her." Mr.

Mann also added that if the woman had stood still he would not have chased her. With further encouragement and

questioning, Mr. Mann was able to explain that the incident initially began while he was standing by his vehicle at his residence around the corner from where the victim was injured. He explained that the woman walked up behind him and passed him and it startled him. He got into his vehicle and followed the woman around the corner. He stated that as she walked by him he thought that she was his ex- girlfriend because she was very similar in appearance and he followed her to try to make sure that it really was his ex-girlfriend. According to Mr.

Mann, his ex-girlfriend had previously stabbed him and he wanted to get revenge on her. He also thought that because this woman was his ex-girlfriend she was stalking him. Mr. Mann clarified that he was under the impression that it was his ex-girlfriend crossing the street when he hit the victim. He reported that he hit the victim due to a mixture of wanting to harm his ex-girlfriend, thinking that he was hunting spies and being triggered to a chase response by a woman running across the street. Mr. Mann stated that, "Everything happened so fast.

I didn't plan on hitting her but then she ran so I hit her." When asked how many times he drove past the victim Mr. Mann stated that he turned around and was going to help the victim after he hit her, but two men came out of their homes so he left the area. He denied he intended to hit the victim again. Mr. Mann reported that he immediately realized that he did something wrong and he went home and called the police. [ 18 ] Dr. Lewis then referred to discrepancies between his version of the events and the complainant's version, and that Mr.

Mann stated that he did not slow down for the victim and/or wave at her and that she randomly ran across the street which triggered his response. He referred to this as a terrible mistake. [ 19 ] Mr. Khangura for the Crown very fairly acknowledged that Mr. Mann's specific deterrence is not a significant sentencing issue today. He has apologized for his actions in court, he has pled guilty and has been fully compliant with strict bail over the last year. He has been attending counselling sessions and is engaged with a counsellor through Fraser Health based on an oral update today.

And that oral report, which is an update on references made to the counsellor's observations in the Pre-sentence Report, sounded to me to be generally positive. [ 20 ] From this I conclude Mr. Mann is not such a risk in the community today that his separation is required to ensure the safety of the community. All parties agree his continued psychiatric and psychological rehabilitation, counselling or treatment is not best served in a custodial situation.

The issue I have to address is whether a custodial sentence is therefore required to address the very important objectives in cases like this to deter others and to denounce driving conduct as displayed by Mr. Mann in strong terms and to reflect his moral blameworthiness. The Crown says cases of this sort require that statement to be made by way of a custodial sentence. [ 21 ] Mr. Khangura has referred to three cases which he says support that proposition, including R. v. Chickite 2006 BCPC 192 , R. v. McKinley 2013 BCPC 370 and R. v. Gelowitz 2013 BCPC 256 .

As is usually the case, those authorities assist but they are also different in significant aspects. Here we have, as Mr. Birch points out, a man who is criminally responsible for this offence and the serious injuries that it caused, but who was acting with the burden of mental illness which must weigh in the balance when determining how best to address general deterrence and denunciation, without in the bigger picture setting back any rehabilitative progress which has been made or can be made, or simply increasing the burden on Mr.

Mann which becomes more difficult to overcome during or following an extended stay in custody. [ 22 ] Motor vehicle offences, and particularly conduct like this in which a vehicle is used by the offender to track down a victim and then to strike her down, requires a strong statement directed to general deterrence and denunciation. I have concluded, despite the challenges Mr. Mann faces, that a proper balancing of sentencing principles requires a custodial sentence.

I am satisfied, however, that with his circumstances in mind and the challenges that he would face in the institution, that a sentence at the lower end of the scale is justified. In my view, a sentence of 90 days would allow other options to be considered in relation to how that sentence may best be served in his circumstances. He would be entitled to 19 days of credit for pre-sentence custody, and I will impose a 79-day sentence of incarceration.

I would hear any submissions as to how that sentence should be served. [ 23 ] In addition, of course, in addressing probation I intend to impose a three-year probation order. I intend to impose the DNA databank order sought by the Crown. I am satisfied it is appropriate under the considerations in the Criminal Code . I intend to, as well, impose a three-year driving prohibition under s. 259(2) . [PROCEEDINGS] [ 24 ] The sentence will be served from this day forward. Mr. Mann is in custody of the sheriff. [ 25 ] In terms of the probation order, there will be a probation order for a period of three years.

The terms I am proposing will be those as proposed by Crown counsel. They are the following: That Mr.

Mann will keep the peace and be of good behaviour; he will appear before the court when required to do so; he will report immediately following his release to a probation officer at the address to be provided and thereafter will report to a probation officer as directed. [ 26 ] He will reside at the residence of his parents (names removed for publication) at (address removed for publication), Surrey, British Columbia, and he will not change that address without the prior written permission of the probation officer or the court. [ 27 ] Mr. Mann is to have no contact, directly or indirectly, with J.S.

He will not attend at any place of residence, school or employment of J.S. that he knows of or learns of while the order is in effect. [ 28 ] The following conditions will be included. As directed by your probation officer, you will attend the forensic outpatient clinic at 10022 King George Boulevard, Surrey, British Columbia for the purpose of assessment, treatment and counselling as may be recommended except that you shall not be required to submit to any treatment or medication to which you do not consent.

If you do not consent to the form of medical treatment or medication which is prescribed or recommended, you shall forthwith report to your probation officer and thereafter as and when directed by your probation officer. [ 29 ] You shall provide your treating physician with a copy of this order and the name, address and telephone number of your probation officer. You shall instruct your treating physician that if you fail to take medication as prescribed by him or her, or fail to keep any

appointment made by him or her, he or she is to advise your probation officer immediately of any such failure. [ 30 ] You will take reasonable steps to maintain yourself in such condition that you are not likely to conduct yourself in a manner dangerous to yourself or anyone else and it is not likely that you will commit further offences. [ 31 ] You will attend, participate in and successfully complete any counselling as directed.

I am going to add to that any assessment, treatment or counselling that may be directed by the probation officer, including but not limited to life skills counselling. [ 32 ] I am going to add, as well, the following condition. You will attend an educational or vocational program if so directed by the probation officer. [ 33 ] You will not possess or consume alcohol or controlled substances within the meaning of s. 2 of the Controlled Drugs and Substances Act except as prescribed by a licensed physician or dentist. [ 34 ] You are not to possess any weapon as defined in the Criminal Code .

You are not to possess knives except to prepare or consume food or at a workplace for the purpose of lawful employment. [ 35 ] I have imposed the DNA databank order and also the driving prohibition for a period of three years. The surcharge is waived. (REASONS FOR SENTENCE CONCLUDED)