R. v. Witso Date:, 2011 BCPC 403

Citation: R. v. Witso Date: 20111230 2011 BCPC 0403 File No: 35109-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DONALD GEORGE WITSO REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. J. O'BYRNE Counsel for the Crown: T. Lawrence Counsel for the Defendant: K. Joanes Place of Hearing: Prince George , B.C. Date of Judgment: December 30, 2011 [ 1 ] THE COURT: Donald George Witso appears before the Court for sentencing on Information 35109, which is a three - count information proceeded with by way of indictment. [ 2 ] Count 1 alleges the robbery of Bogdan Latala on the 10th of October.

Counts 2 and 3 involve Mr. Mike Nahal; Count 2 is a robbery of Mike Nahal, and Count 3 is aggravated assault of Mike Nahal. Both Mr. Latala and Mr. Nahal are taxicab drivers who work here in the City of Prince George, Province of British Columbia. Counts 2 and 3 occurred before Count 1, but they are on the same information as the Crown chose to proceed in that fashion. [ 3 ] The offence of robbery is an indictable offence which is punishable by a maximum sentence of life imprisonment.

Aggravated assault is not as serious, but still a serious offence in and of itself. [ 4 ] The sentencing principles that I have to use as I deal with the matter of sentencing are as follows: [ 5 ] One, I must consider deterrence, and that is deterrence to this accused, specific deterrence, and deterrence to those who might be likeminded, general deterrence. Next, I have to consider protection of the public, and in this particular case these cab drivers are vulnerable members of the public who work at night, alone, and I have to consider their protection.

And lastly, I have to consider the rehabilitation of this accused.

[ 6 ] The facts in this matter were provided to me by Crown counsel and, as I understand it, counsel for Mr. Witso, Mr. Jones, does not take issue with them. Briefly stated, those facts told me that at just after midnight on the 10th of October, 2011, there was a call that came in to the cab company to have Mr. Nahal, who was at that time operating his cab, he went to pick up a fare. [ 7 ] When he went to pick up the fare, the fare pulled a knife on him, said, "Give me my money or I'll kill you." He then said, after he got 20 to 40 dollars, "Is that all you've got?" He made a demand for Mr. Nahal's wallet.

He again repeated, "I'm going to kill you." He pulled a seven-inch long knife. Mr. Nahal grabbed the knife and, as a result, suffered wounds, including a wound to left hand, possibly a wound to his neck, and was bleeding heavily. [ 8 ] He has significant medical care yet to go through. He needed suturing and it appears there may be some severed tendons that will require surgery. [ 9 ] Mr. Nahal was able to provide a licence number of a vehicle. [ 10 ] Approximately six hours later, that is in the early morning hours of the same date, another cab operator, Mr.

Bogdan Latala, was dispatched to a 7-Eleven store here in Prince George. He picked up his fare and then a knife was held to Mr. Latala's throat, he was ordered to turn over his money. He did. The male left and Mr. Latala was severely shaken. [ 11 ] Filed as Exhibit 3 in these proceedings is a photograph taken in the cab at the time the knife is being wielded by Mr. Witso. It is by one of those cameras that are in the cabs to provide security to the cab drivers. That has been marked Exhibit 3. Unless anybody think I am being harsh in my sentencing, they should look at that photograph.

I have been at the bar and practising law over 31 years and it is the most frightening thing I have ever seen. [ 12 ] The Crown, in their submissions, provided me with a victim impact statement and, as well, told me that the accused in this matter freely admitted his involvement, denied his involvement to harm either of the two cab drivers, and said the offences were motivated by crack cocaine. [ 13 ] The Crown also advises me, quite correctly, that the appropriate range for sentencing in this nature is that of a sentence of between five and seven years to be served in a penitentiary.

I was told that the pre-trial custody that I could credit is two and a half months. Crown also sought a lifetime ban from firearms under s. 109 and an order that Mr.

Witso provide samples of his DNA. [ 14 ] I have two reports that were prepared for me and I have reviewed those, and I intend to make them exhibits and refer to them at length as, if this matter is reviewed in any other forum, they should be aware of the contents of these reports. [ 15 ] First, there is a pre-sentence report, eight pages in length, which is date-stamped December 13th, 2011, and it is over the signature of Grace Dyer, probation officer here in Prince George. Ms. Dyer, in the report, goes through various things including the antecedents of Mr.

Witso, and advising that when he was 19 years of age, he was involved in a serious car accident that left him brain injured. I am told, as well, he completed Grade 10 at Duchess Park Secondary School, but was kicked out for using illegal drugs and fighting. [ 16 ] I am told that he has been involved with a brain-injured group here in Prince George, and particularly Linda Glover, who has worked with him over the past two years. She confirmed his participation and advised that the nature of his injuries to the frontal lobe of his brain are such that he lacks insight as to extent or seriousness of his injuries. Ms.

Glover describes this is a difficult impairment to deal with, especially as it relates to employment. [ 17 ] I am also told that Mr. Witso is in receipt of disability payments in the amount of $1,200 per month, and he purchased a home with the money he received from the car accident in 1998. He resides with his parents. [ 18 ] Ms. Glover, from the brain-injured group, further goes on to advise that she is aware of the prior struggles with addiction and anger issues that Mr. Witso has suffered. [ 19 ] Mr.

Witso advised the probation officer who prepared the report that in 2004, he attended and completed a three-month course in Kelowna for addiction issues, and that he was clean for almost a year thereafter. [ 20 ] He has basically what I would call no criminal record. He has a diversion that occurred in 2004 and a conditional discharge in 2007. Mr. Witso himself attributes his criminal behaviour to the use of crack cocaine.

In addition to substance misuse issues, cognitive abilities due to his brain injury, poor coping mechanisms, and anger management, lack of communication skills and insight are all factors that Ms. Dyer, the probation officer who authored the report, considered as issues for Mr. Witso. [ 21 ] The prognosis for Mr. Witso in the pre-sentence report is guarded, and Ms. Dyer gives me a full range of sentencing options, including from penitentiary to community dispositions. [ 22 ] That will be marked, please, as Exhibit 4, and I will write that on it, Madam Registrar. You can get it later. [ 23 ] MR.

JONES: Your Honour, I have a note that Exhibit 4 is the victim impact statement of Mr. Latala. [ 24 ] THE COURT: All right, five then. [ 25 ] MR. JONES: Yes. [ 26 ] THE COURT: Exhibit 5. Thank you, Mr. Jones. EXHIBIT 5 (on Sentence): Pre-sentence report [ 27 ] THE COURT: Then as Exhibit 6, I have the 14-page report of Dr. Morgan from the B.C. Mental Health and Addiction Services

of the Forensic Psychiatric Services. EXHIBIT 6 (on Sentence): Report of Dr. Morgan [ 28 ] THE COURT: Dr. Morgan gives me an extensive report. Dr. Morgan is a consulting psychiatrist with the Forensic Psychiatric Services Commission. This report is also date-stamped December 13th, 2011. [ 29 ] As did Ms. Dyer in the pre-sentence report, Dr. Morgan goes into the antecedents and background of Mr. Witso. On page 3, he further details the injuries suffered by Mr. Witso in the car accident that caused his brain injuries, indicating Mr.

Witso advised him he had four months in hospital and was in a coma for two months, and was on life support for a period of time. He, Mr. Witso, described how he had to learn how to walk and talk again after the accident, and he underwent protracted rehabilitation. [ 30 ] In addition, on page 5, Mr. Witso went on to describe how, subsequent to the accident, his crack use became out of control and he would typically binge on crack, spending several hundred dollars at a time in periods of heavy use. Mr.

Witso identified factors which lead him to using crack, those being having lots of money and his being unable to deal with stress. He also described how he has previously been unable to regulate his intake of crack and how he would spend all of his available money on the drug. [ 31 ] Dr. Morgan, in relation to the offence of October the 10th, repeats what he is told by Mr. Witso, that Mr.

Witso continued to smoke crack cocaine over a two to three day period and he started reporting having strong cravings for crack cocaine, yet not having any money, and thus he decided to engage in the two robberies that I have described, while armed with a hunting knife. He got about $120 in total, he advised Dr. Morgan. [ 32 ] Mr. Witso spoke of how remorseful he was about his actions, and indicated to Dr. Morgan he has written apology letters to both cab drivers. Dr. Morgan advises that Mr. Witso's remorse appears to be genuine, and that Mr.

Witso was certainly very distressed at the time during the interview. [ 33 ] In reviewing the input from other sources, Dr. Morgan notes that there was a Dr. Schmidt who saw Mr. Witso in 2000 and did some assessments of him at that time. At that time, Dr. Schmidt noted that the functioning for Mr. Witso was below the unimpaired range. Dr. Schmidt reported: This is a very discouraging finding given the amount of time that has passed since he was initially seen. [ 34 ] Dr. Morgan goes on to say: Despite this, Mr. Witso viewed himself as largely recovered and discontinued virtually all treatment.

His lack of insight was significant. [ 35 ] Dr. Morgan then does a risk assessment as it relates to Mr. Witso. During the risk assessment, under "Substance use problems", Dr. Morgan notes: Mr. Witso has a significant problem with crack cocaine. He has continued to use the drug despite detrimental effects to his health, employment and relationships. [ 36 ] Under "Clinical items and lack of insight", Dr. Morgan notes as follows: Mr. Witso appears to have little insight into the nature of his cognitive and emotional difficulties, or his difficulties with impulse control.

He does not seem to appreciate how his risk of violence is considerably elevate[d] by his use of illegal stimulants. [ 37 ] Under "Impulsivity" in the same category, Dr. Morgan notes the lack of impulse control and says: This impulsivity appears to have been related to his craving crack cocaine. [ 38 ] Under a formulation for possible further treatment or interventions, Dr. Morgan notes in the second full paragraph on page 12: Mr. Witso has a significant history of addiction to stimulants, particularly crack cocaine. [ 39 ] Then Dr.

Morgan as well provides a variety of options dealing with in-custody and out-of-custody possible rehabilitative tracts for Mr. Witso. [ 40 ] The Crown has provided me with case law which I have reviewed and just for the record I will indicate what those cases were. There is R. v. B.(E.P.) , cited as 1999 BCCA 278 , our Court of Appeal; another British Columbia Court of Appeal, R. v. Rogers , cited as 2011 BCCA 156 ; then R. v. McDowell , a British Columbia Supreme Court case of Madam Justice Ker reported as 2009 BCSC 1912 .

All of these cases show sentences within the range as suggested by the Crown, and certainly they support the submission of the Crown. [ 41 ] As I have indicated earlier, the Crown indicated to me that a sentence of five to seven years was appropriate, and that is what I should impose. [ 42 ] Mr. Jones, on behalf of Mr. Witso, underscores quite heavily the fact that Mr. Witso has severe head injuries that are overlying a drug addiction; that is an addiction to crack cocaine. Mr.

Jones also, as did the Crown, drew my attention to the fact that there are mitigating circumstances here, including the fact there was a very early guilty plea, there was no trial, and the victims in this matter, although having been harmed, are not harmed further by having to relive the circumstances here in court. [ 43 ] Nonetheless, Mr. Jones concedes that a term of incarceration has to be called for. The issue here is what to do about rehabilitation. As Mr. Jones points out, Mr.

Witso is not somebody who is able to take a normal rehabilitation course, and therefore one must be tailor-made in order to assist him.

[ 44 ] Mr. Jones does not disagree that a sentence of approximately three years is appropriate in the circumstances. [ 45 ] I am also required to look at the fact that Count 3, the aggravated assault of Mike Nahal, is an offence that is also charged by the Crown. I put to Mr. Lawrence for the Crown and Mr. Jones for the defence the question as to whether or not this was covered by the principle of Kienapple , that is against double jeopardy. It is a lesser included offence. Mr. Lawrence's position was that it was not and it should attract a different sentence. Mr.

Jones took a contrary position. [ 46 ] On my review of the law and looking at what I have seen on the cases, I find that assault causing bodily harm is a lesser included offence in robbery. Assault causing bodily harm is a lesser and included offence in aggravated assault. [ 47 ] The definition of robbery set out in 344(b)of the Criminal Code says this: 343. Every one commits robbery who . . . (

b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person [commits robbery]. . . [ 48 ] In the circumstances of this case, I find and I hold that the aggravated assault is part of the robbery, and I would therefore direct a conditional stay on Count 3.

If, however, I am in error in that regard, then I would sentence to no more than concurrent time. [ 49 ] Dealing then with the appropriate sentence to be considered, some of the factors that I have to look at against the four principles that I set out earlier, which I will repeat now -- deterrence, both general and specific, protection of the public, and rehabilitation of this accused -- include was there physical harm involved and was there actual harm caused? In this case, yes, there was. To Mr.

Nahal there were cuts to his hands, severe cuts, he is going to require surgeries. [ 50 ] I must also look at whether Mr. Witso used more violence or caused more damage than was necessary for the successful completion of the offence. I think in that regard the only thing I can refer to there is the fact that the photograph, number 3, shows somebody who is absolutely out of control.

There was a weapon involved here, a seven-inch knife, which is graphically again shown in Exhibit 3. [ 51 ] The loss in terms of what was taken was $120. [ 52 ] I must also note that drugs were a contributing factor in the commission of this offence. Then I must also look to see, was this unusual or is this a relapse, what was it? I think I have to follow Mr. Jones' submissions here that this is a case where somebody has relapsed, that he has an underlying brain injury that was exacerbated by the use of drugs. [ 53 ] I must also take into account the accused's present attitude towards the crime.

I do accept the fact that he is remorseful, he is repentant, and again I note here the early guilty plea and the fact there was not a trial. [ 54 ] Taking again into account what is the maximum possible penalty, it is life imprisonment on both of these, I must therefore look at whether or not he is somebody who has a criminal record, such as to disallow him any consideration from the court or any leniency. He does not; for all intents and purposes, he is a first-time offender.

Nonetheless, I must look to see whether the average sentence is appropriate, and again the Crown here says five to nine years and the cases support it, and I do take that into account. [ 55 ] Mr. Witso does not have a record that shows that he is a persistent offender whose removal from society for a substantial period of time is necessary to protect the public, nor is he a dangerous, mentally-abnormal person who has to be removed for the same purpose.

He is somebody who is suffering with a brain injury and is coping with it as best he can. [ 56 ] The real issue here, though, is that this offence is of a type that raises genuine fear on the part of the public and the part of a special group, that is cab drivers. I must consider that and I have to consider that when I impose the sentence. [ 57 ] The question I have to ask myself is can the victims of this type of offence, cab drivers, adequately protect themselves? Balanced against that, I have to concern myself with the short-term gain achieved by removing Mr.

Witso from society through imprisonment, may be offset by the possible destructive effects of the experience of imprisonment on his behaviour when he is finally released. I am mindful of that. [ 58 ] However, looking at sentencing here, is deterrence a major objective in this case? I have to then look at the extent of similar crime in the community that has been committed recently.

There have not been a great deal of cab driver matters here in Prince George, but enough in my six and a half years that I think I have to give deterrence a very heavy-weighted position in this sentencing. [ 59 ] Further, I have to make sure the sentence that I impose adequately satisfies the public's sense of justice, so that confidence in the system is maintained, but I cannot, however, impose a sentence that is so severe that public sympathy would bring the law into disrepute. Therefore, I have to do a balancing act. I have to keep in mind, when I look at rehabilitation of Mr.

Witso, that he committed the crime in large part due to his addiction and the craving for crack cocaine. I have to look at the events as they lead up to it and take that in context. [ 60 ] He is not somebody who has committed himself to a life of crime, and I must keep that in mind as well. [ 61 ] When I look at his addiction to drugs, I see that he does have a view of it being a problem, and Mr. Jones, however, put it quite succinctly: Mr. Witso said he is never going to do cocaine again, but, however, cocaine does not know that. That is going to be for Mr.

Witso to learn and to deal with. [ 62 ] I will direct that he will provide such samples of his DNA as required for inclusion in the DNA Data Bank, pursuant to

Part XV

of the Criminal Code . [ 63 ] In addition, I will order, pursuant to s. 109 of the Criminal Code , that he will be banned for life from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substances. [ 64 ] Although I may have not asked about this, but I am going to anyway, I will waive the victim fine surcharge, because it seems to be a little bit ridiculous in this case. [ 65 ] The sentence on Count 2, which is the first robbery of Mr.

Mike Nahal, I think in all the circumstances, taking into account the range and what has been put forward, there will be a sentence of three years. [ 66 ] On Count 1, that is the robbery of Mr. Bogdan Latala, I think the circumstances of this case, it has to attract a consecutive sentence, and I will impose a consecutive sentence of one year. [ 67 ] I will take into account, though, time served, pre-trial custody, so the appropriate sentence is four years, pre-trial custody is two and a half months.

I will credit him with two and a half months of pre-trial custody, so therefore I get a sentence of three years, nine and a half months. Do you agree with my math, Mr. Jones? [ 68 ] MR. JONES: Yes, I do, Your Honour. [ 69 ] THE COURT: Mr. Lawrence? [ 70 ] MR. LAWRENCE: I do. [ 71 ] THE COURT: I have already conditionally stayed Count 3. Anything else, counsel? Did I miss anything? [ 72 ] MR.

JONES: I had asked Your Honour to consider whether you would endorse the warrant of committal with a recommendation that he be considered for placement in the Regional Health Centre, and also -- [ 73 ] THE COURT: What is the Regional Health Centre? Is that -- [ 74 ] MR. JONES: That's a penitentiary facility in Abbotsford which is essentially a hospital. [ 75 ] THE COURT: Okay. [ 76 ] MR.

JONES: And secondly, that the reports accompany the -- copies of the reports accompany the warrant of committal, as well, so that they're available to classification when he gets to RRAC. [ 77 ] THE COURT: So you want Exhibit 5 and 6 to accompany? [ 78 ] MR. JONES: Yes, please, Your Honour. [ 79 ] THE COURT: All right. Any comment on those requests, Mr. Lawrence? [ 80 ] MR.

LAWRENCE: No objection to either, Your Honour. [ 81 ] THE COURT: All right, so I will then ask that he be considered on the warrant of committal for the regional hospital, and I will ask that copies of Exhibit 5 and 6, the reports, be attached to the warrant of committal. [ 82 ] Anything else, gentlemen? [ 83 ] MR. JONES: No, thank you, Your Honour. (REASONS CONCLUDED)