R. v. Davyduke Date:, 2016 BCPC 92

Citation: R. v. Davyduke Date: 20160212 2016 BCPC 0092 File Nos: 32970-1, 32917-1-B 43939-1-K, 43939-2-KC, Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TYLER RAY DAVYDUKE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: D. Larsen Counsel for the Defendant: L. Cooper Place of Hearing: Prince George , B.C.

Date of Judgment: February 12, 2016 [ 1 ] On February the 2nd, 2006 Tyler Ray Davyduke pled guilty to the following four offences: a. Information 32970-1, a Dawson Creek Information with respect to a charge of possession of property obtained by crime, contrary to s. 354(1) (

a) of the Criminal Code . He entered a guilty plea to the sole charge in that Information as well as on Dawson Creek Information 32971-1-B, a charged of breach of the probation order. b. With respect to Information 43939-2-KC, a two-count Information, Mr. Davyduke also pled guilty to both counts in that Information, namely assault causing bodily harm to Megan Roberts, contrary to s. 267 (b)of the Criminal Code , and breach of recognizance, contrary to s. 145(3) of the Criminal Code , by failing to comply with his curfew.

Both these offences took place in Prince George on January 9th, 2016. [ 2 ] All of the matters proceeded summarily. CIRCUMSTANCES OF THE OFFENCES ON DAWSON CREEK INFORMATIONS 32970-1 AND 32971-1-B [ 3 ] With respect to the circumstances of Informations 32970-1 and 32971-1-B, the incident giving rise to these two Dawson Creek Informations came to the attention of RCMP on September 17th, 2015 by Mr. Andrew Devuyst, a site supervisor in the employ of H.F. Nodes Construction. [ 4 ] Mr.

Devuyst reported a break-in at a road construction lease site at 275 Road, eight kilometres north of Langley on Wrangler Road near Dawson Creek at a work site of H.F. Nodes Construction, which was resurfacing the Stuart Lake Road. The company had a road camp to store its construction equipment. The site was also equipped with a trailer used for crew meetings and as an office. [ 5 ] When Mr. Devuyst arrived at work on January 17, 2015 he saw that the side window to the office had been smashed. There was a wooden pallet propped against the office trailer below or near the smashed window.

The side and main door had been jimmied, but the burglar obtained access through the smashed window. [ 6 ] A number of items were stolen: a. a flat-screen TV; b. a remote; c. a hand-held two-way radio with a charger; d. a Vertex two-way radio unit with an antenna; e. small brown garbage bags; f. some double-A batteries; g. portable air horn; h. two Jensen remote controls for a built-in stereo, and some other items. [ 7 ] Mr.

Devuyst estimated there was about $2,000 in damage caused to the trailer, to the doors and smashed windows. [ 8 ] Also stolen from the site was a SPYPOINT camouflage trail camera, and approximately 100 to 500 litres of purple diesel from the parked construction equipment. [ 9 ] One thing that was not stolen was a second SPYPOINT Trail camera which was used as a security camera.

It showed grainy footage of a truck with its headlights pointed at the trailer at about 2139 hours, that is 9:39 p.m., on September 16th, 2015, the night before the offence date. [ 10 ] From this footage it appears that a truck backed up to the site trailer, a wooden pallet propped against the trailer, and the window broken. The video does not identify the burglar. It does, however, show approximately the time of the burglary. [ 11 ] The tire tracks left at the scene indicated the suspect vehicle was outfitted with Toyo Open Country mud terrain tires. [ 12 ] This was the second burglary of the H.F.

Nodes Construction site within three days. On September 15th, 2015 several pieces of construction equipment had their two-way radios partially removed or stolen. Also missing was several hundred litres of fuel. [ 13 ] Dawson Creek Officer Arien Flikweert investigated the complaint. Mr. Devuyst told him of a suspicious-looking vehicle that he had seen the previous day, September 16th, 2015. He described it as a brown or tan Chevy Silverado with a large red fuel tank in the box.

There was fuel spilled all over the top of the Tidy Tank and over the tailgate. [ 14 ] As he was providing this description to Constable Flikweert, Mr. Devuyst saw the truck to which he was referring drive by and pointed it out to Constable Flikweert, saying, "That is the vehicle I'm talking about." [ 15 ] Officer Flikweert located the suspicious vehicle, that is, a tan Silverado with a fuel-encrusted Tidy Tank. He effected a traffic stop. The driver said he was a registered owner of the vehicle and produced a Saskatchewan driver's licence in the name of Tyler Ray

Davyduke. [ 16 ] The vehicle was extremely dirty. His taillights and licence plates were covered with mud. It bore a B.C. licence plate. The vehicle check showed it belonged to Tyler Ray Davyduke. [ 17 ] The officer asked Mr. Davyduke what he was doing on the road and Mr. Davyduke said he had been hunting with a friend. The constable gave him a warning for the dirty licence plates and dirty taillights. Mr. Davyduke cleaned off the licence plates and lights and he went on his way. [ 18 ] A few minutes after Mr. Davyduke left, Officer Flikweert received a CPIC showing that Mr.

Davyduke was under a probation order in Alberta and was prohibited from being outside of Alberta without the written permission of his probation officer. The police also received written information from Probation Officer Jennifer Doyle confirming that Mr. Davyduke was in B.C. contrary to the terms of his Alberta probation order, as he had no written permission to be outside of Alberta. [ 19 ] Officer Flikweert pursued Mr. Davyduke. He caught up with him at about 12:45 p.m. and conducted a second stop. Mr.

Davyduke got out of his truck and told the officer that he had cleaned off his taillights. [ 20 ] Officer Flikweert arrested him for breaching his Alberta probation order. After having been provided a warning and searched, Mr. Davyduke said, "Yes, I guess I should have notified my probation officer I was leaving Alberta." [ 21 ] The probation order in question was one made by Judge Hougestol on October 27th, 2014. On that day Mr. Davyduke had been convicted in Alberta Provincial Court for uttering threats against Alicia Legare, contrary to s. 264.1(1)(a).

I understand the threats were to damage her vehicle. [ 22 ] Mr. Davyduke was sentenced to two days in jail and 12 months' probation. One of the terms of the probation order was that he stay within the jurisdiction of the court, which was the Province of Alberta, without written permission of his probation officer. [ 23 ] The officer noted Mr. Davyduke's vehicle was outfitted with Toyo Open Country mud terrain tires with treads which matched the ones found at the scene. The officer also noted in plain view a small garbage can behind the driver's seat.

Inside the garbage can was an antenna attached to a small black Vertex hand-held radio. The officer seized the garbage can containing the items. By the way of serial number the officers confirmed the Vertex two-way radio was that belonging to H.F. Nodes Construction. [ 24 ] Mr. Devuyst later confirmed the garbage can and its contents the officer seized from Mr. Davyduke's truck were stolen from inside the site trailer. [ 25 ] The officers also noted Mr. Davyduke had a Tidy Tank in the back of his truck containing fuel.

They examined the fuel in the red fuel tank in the box of the truck and found it had a purplish colour. [ 26 ] Mr. Davyduke explained to the officer that he had a company fuel card. He has a Tidy Tank in his pickup in which he stores diesel for the cat he operates. He says his buddies gave him the diesel. [ 27 ] Mr. Davyduke refused to tell the officer who he was camping with and where he was camping. Mr. Davyduke admits he was camping in the area and being in B.C. without permission of his Alberta probation officer. [ 28 ] Mr.

Davyduke told officers and the court that he came upon the garbage can at the Waldie Road intersection. He said it was half in and half out of the ditch. He threw it in the back of the truck and did not think much of it. He denied having anything to do with a break-in at the H.F. Nodes Construction site. [ 29 ] Mr. Davyduke has pleaded guilty to possession of property obtained by crime. He maintains he found the garbage can containing the two-way radio and the other items on the road. He admits that he knew that they likely had been stolen, or was wilfully blind to that fact.

It is on this basis that he had pled guilty to the possession of property obtained by crime on Information 32970-1, consisting of the garbage can, the two hand-held radios, and remote control. [ 30 ] Mr. Davyduke has no estimate of the value. He admits he knew the items were too valuable to be simply left by the side of the road. He knew they were stolen or he was reckless to the fact they were likely stolen. He made no efforts to return the items to the officer when initially stopped. [ 31 ] Mr. Davyduke was taken into custody on September 17th, 2015.

He was released on a recognizance of bail before a JJP in Dawson Creek on September 21st, 2015. One of the conditions of that recognizance was a curfew confining him to his residence between 10 p.m. and 6 a.m. each day. [ 32 ] Mr. Davyduke does not dispute the circumstances of the offences on Information 32970 and 32971-1-B as presented by the Crown. He limits his culpability to being in possession of the property he knew had been stolen and to the breach of probation.

CIRCUMSTANCES OF THE OFFENCES IN INFORMATION 43939-2-KC [ 33 ] The circumstances of the offences of Counts 1 and 2 on Information 43939-2-KC occurred in Prince George on January the 9th, 2016. At 3 a.m. on January the 9th, 2016 the Prince George police were dispatched to a residence at 3676 Brentwood Drive in Prince George. The caller, a Brandon Trudeau, reported that Megan Roberts had just been beaten up by her boyfriend, Mr. Davyduke. [ 34 ] Officers Rowe and Tyshynski attended at the 3676 Brentwood Drive residence. This was the home of Megan Roberts and her infant son. The officers were told by Ms.

Roberts and Mr. Trudeau that Mr. Trudeau had chased Mr. Davyduke out of the residence and he had fled. [ 35 ] Ms. Roberts provided an audio-recorded statement to the officers at 3:39 a.m. on January the 9th, 2016, shortly after the

incident. Ms. Roberts said that she was at home at the time. Her friend, Brandon Trudeau, and another male friend were visiting her. Mr. Davyduke had been her boyfriend. They were together in a relationship for two months. At the time this happened they had been separated for two days. [ 36 ] On January 9th, 2016, in the early hours, Mr. Davyduke arrived at Ms. Roberts' residence at 3676 Brentwood Drive, Prince George. She believed it was because he saw an unknown truck in the driveway, which belonged to one of the males who was visiting. [ 37 ] Mr.

Davyduke arrived at her residence, I gather unexpected and uninvited. She saw him drive up. Ms. Roberts sent Mr. Trudeau and the other male to an upstairs suite in her residence to avoid any conflict. [ 38 ] Mr. Davyduke burst into Ms. Roberts' residence, yelling at her about there being men in her house. He admits he was jealous and angry. Mr. Davyduke grabbed Ms. Roberts by the bottom jaw. He put his fingers in her mouth. He then tossed her around the kitchen and smashed her head into the kitchen table. [ 39 ] As a result of this assault Ms.

Roberts suffered lacerations inside her mouth, a bloody nose, and a cut on her right temple. Mr. Davyduke also broke her glasses. [ 40 ] At the time of the assault Ms. Roberts had a young son sleeping in her residence. The child, who is not Mr. Davyduke's child, was under a year old. [ 41 ] Mr. Davyduke had nothing in her residence. He had no reason to return to her residence. [ 42 ] Ms. Roberts said there was no history of violence in her brief relationship with Mr. Davyduke. [ 43 ] Mr. Trudeau also provided an audio-statement to the police. He said he was visiting Ms. Roberts when Mr. Davyduke arrived.

She sent him upstairs when Mr. Davyduke arrived in the driveway. He went upstairs as requested. From there he could hear Ms. Roberts yelling at Mr. Davyduke to get out. He heard furniture being pushed around. [ 44 ] Mr. Trudeau went downstairs to see what was going on. He saw Ms. Roberts bleeding and crying and Mr. Davyduke leaving. Mr. Trudeau says he chased Mr. Davyduke out of the house. Ms. Roberts agrees and corroborates this claim. [ 45 ] Mr. Trudeau says initially he chased Mr. Davyduke on foot, and then he and Mr. Davyduke got in their separate vehicles. Mr. Davyduke then hit Mr.

Trudeau's vehicle. [ 46 ] The Crown says there may have been some contact, but there is no evidence of vehicular damage or a physical fight between Mr. Trudeau and Mr. Davyduke. [ 47 ] When the police arrived, Ms. Roberts was extremely upset, scared and crying throughout her dealings with them. Ms. Roberts was injured and treated by Emergency Health Services. The police took a photograph of her injuries, which has been marked as Exhibit 1 in these proceedings. [ 48 ] The police could not locate Mr. Davyduke until January the 10th, 2016. Although his Alberta probation order had expired, Mr.

Davyduke was still under the recognizance of the justice of the peace, made September 21st, 2015, as a result of the charges under file 32970-1. [ 49 ] The police located Mr. Davyduke on January the 10th, 2016. On that day, he was arrested and taken into custody and he has remained there ever since. [ 50 ] Mr. Davyduke substantially agrees with the circumstances of the offence in Information 43939-2-KC as outlined by the Crown. He takes exception only with Mr. Trudeau's claim to having chased Mr. Davyduke out of the house and down the street, first on foot, and then in a vehicle. [ 51 ] Mr.

Davyduke says he was leaving Ms. Roberts' house on his own accord and suggests that Mr. Trudeau embellished his role in the altercation because he felt badly about not doing enough to protect Ms. Roberts. Mr. Davyduke said Mr. Trudeau did not chase him down the street and points out there was no evidence of a collision. VICTIM IMPACT STATEMENT [ 52 ] Ms. Roberts confirms with the Crown she does not want any further contact with Mr. Davyduke. Although she has not provided a written Victim Impact Statement, Ms.

Roberts remains in contact with the Crown and is very interested in seeing these charges through. [ 53 ] Mr. Davyduke has a criminal record that has been marked an exhibit in these proceedings. All the offences, except for the ones before the court are from the Province of Alberta. [ 54 ] The Crown has provided a copy of Mr. Davyduke's CPIC. The Crown added that it needed to be updated because it did not record the uttering threats conviction, subject to the October 27, 2014 probation order. The probation order indicates that Mr. Davyduke was convicted on October 27th, 2014 of uttering threats to Alicia Legare.

The offence occurred on February 15th, 2014. The probation order has been marked as an exhibit in the sentencing proceedings. [ 55 ] Between December the 3rd, 2007 and October 27th, 2014 Mr. Davyduke has accumulated multiple convictions, including: a. mischief under $5,000 - three convictions; b. obstruction of a police officer - three convictions (s. 129);

c. possession of property obtained by crime, he had two, now three convictions with respect to those offences; d. failing to appear or attend court, he has at least three, perhaps four convictions with respect to that offence; e. a conviction for impaired driving; f. two convictions for assaults; and g. one conviction for uttering threats. [ 56 ] With respect to the charge of possession of property obtained by crime, this would be Mr. Davyduke's sixth property-related criminal offence, which includes possession of property obtained by crime and mischief. [ 57 ] The assault causing bodily harm will be Mr.

Davyduke's fourth conviction for a violent offence; the last being the conviction for uttering threats in October 2014. CROWN'S POSITION ON SENTENCE Dawson Creek Informations 32970 and 32971-1-B [ 58 ] The Crown seeks a 30-day jail sentence on Information 32970-01. This is the September 17th, 2015, charge of possession of property obtained by crime, namely the Vertex two-way radio belonging to H.F.

Nodes Construction. [ 59 ] The Crown seeks a one-day jail sentence on Information 32971-1-B for the September 17th, 2015, breach of the Alberta probation order by being in B.C. without written permission of his probation officer. This sentence ought to be served concurrently with Information 32970-01. So, globally, the Crown seeks a 30-day sentence for the Dawson Creek files 32970 and 32971-1-B.

Information 43939-2-KC [ 60 ] With respect to Count 1 on Information 43939-2-KC, the January 9th, 2016, assault causing bodily harm to Megan Roberts, the Crown seeks a 90-day jail sentence. [ 61 ] With respect to Count 2 on Information 43939-2-KC, the January 9th, 2016 breach of the September 21st, 2015 recognizance, the Crown seeks a seven-day jail sentence. The Crown submits a seven-day jail sentence for breach of recognizance ought to be served concurrently with the 90-day sentence for assault causing bodily harm. [ 62 ] The Crown is seeking a global sentence on Information 43939-2-KC of 90 days.

The Crown submits that Counts 1 and 2 on that Information, 43939-2-KC, ought to be served consecutively to the sentences on the Dawson Creek files, Informations 32970 and 32971-B. [ 63 ] In total, the Crown seeks a sentence of 120 days for all four offences. Crown also seeks 18 months' probation on both the Dawson Creek and Prince George substantive files. [ 64 ] The terms suggested were: a. keep the peace and be of good behaviour; b. report and reside; c. no weapons or knives; d. no contact with the victim, particularly Megan Roberts; e. no contact with Mr.

Trudeau; f. no going to the residence, school or work place of Ms. Roberts or Mr. Trudeau; g. not to go to the work site where the items were stolen; and h. counselling as a condition, as well as counselling specifically directed at respectful relationships. [ 65 ] With respect to ancillary orders, the Crown seeks a discretionary firearms prohibition, pursuant to s. 110 of the Criminal Code and a DNA order. POSITION OF THE DEFENCE ON SENTENCE [ 66 ] The matter before the court is not a joint submission. Mr. Cooper, on Mr. Davyduke's behalf, argues this case engages the step- up principle. Based on Mr.

Davyduke's record a moderate increase in sentence is appropriate. With respect to the charge of assault causing bodily harm, the longest sentence Mr. Davyduke had previously served for the related offence of assault was a global period of incarceration of 30 days. This sentence is for a conviction on May 9th, 2011 for two counts of assault and one count of possession of property obtained by crime. [ 67 ] Mr. Cooper acknowledges that a review of Mr. Davyduke's criminal record shows a recurring tendency to become involved in violent crime. Accordingly, some gross up in sentence is appropriate.

Nevertheless, the 90-day jail sentence proposed by the Crown for the offence of assault causing bodily harm departs too significantly from this previous high-water mark. The step-up principle mandates

a sentence in the range of 60 days. The appropriate sentence, giving consideration to the step-up principles, is as follows: a. for the offence of the possession of property obtained by crime, the 30-day jail sentence proposed by the Crown is appropriate; b. for the offence of breach of the Alberta probation order, the one-day jail sentence proposed by the Crown is appropriate; c. for the offence of assault causing bodily harm, a 60-day jail sentence is appropriate; d. for the offence of breach of recognizance by being out after curfew, the seven-day jail sentence proposed by the Crown is appropriate; e.

All the sentences ought to be served concurrently. [ 68 ] The Defence agrees with the terms and conditions of probation proposed by the Crown on the substantive offences: possession of property obtained by crime and assault causing bodily harm. The Defence takes no position with respect to the imposition of the ancillary orders requested by the Crown. CIRCUMSTANCES OF THE OFFENDER [ 69 ] Mr. Davyduke is 29 years old. He is from Grande Prairie, Alberta. It has been his home for the last 10 years. He has a grade 10 education. He is fully certified as a heavy equipment operator.

He has worked in the oil and gas fields for his entire working life. He does eventually hope to save enough money to purchase his own Caterpillar. Upon his release from jail, his immediate intention is to return to the Peace, and seek employment, perhaps at the Site C development. ANALYSIS [ 70 ]

Section 718 of the Criminal Code sets out the fundamental purpose of sentencing: 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. [ 71 ] In considering s. 718 of the Criminal Code , R. v.

Berner 2013 BCCA 188 , Madam Justice Ryan, for the unanimous court held that “The purpose of sentencing is to protect the public through sanctions a court imposes upon a person found guilty of committing an offence.” [ 72 ]

Section 718.1 of the Criminal Code codifies proportionality principle which requires “...a sentence [to] be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [ 73 ]

Section 718.2 (

a) of the Criminal Code specifies that a sentence should be increased or reduced to account for aggravating or mitigating circumstance, including those listed in that section.

Section 718.2(a)(ii) of the Criminal Code indicates that “evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner...shall be deemed an aggravating circumstance.” A criminal record, particularly a lengthy one, is typically an aggravating factor because it shows a person is conducting himself in a manner contrary to the law for an extended period of time. On the other hand, an early guilty plea is generally a mitigating factor. [ 74 ]

Section 718.2 of the Criminal Code codifies the parity principle, which requires “a sentence to be similar to sentences imposed on similar offenders for similar offences...in similar circumstances.” [ 75 ]

Section 718.2(

c) codifies the totality principle, which requires a judge to ensure that when imposing consecutive sentences “the combined sentence should not be unduly long or harsh.” [ 76 ]

Section 718.2 (

d) of the Criminal Code codifies the restraint principle, which holds that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.” [ 77 ]

Section 718(

e) codifies the second restraint principle, which holds that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders...” Concurrent Versus Consecutive Sentences [ 78 ] One of the issues in the sentencing hearing is whether the sentences the court intends to impose on the four offences to which Mr. Davyduke has entered a guilty plea should be served consecutively or concurrently. I am required to fix an appropriate aggregate sentence that reflects the specific circumstances of the offences of which Mr. Davyduke has been convicted, as well as his unique circumstances.

[ 79 ] In R. v. Li , 2009 BCCA 85 , the B.C.

Court of Appeal held that the test for whether sentences should be concurrent or consecutive is “...whether the acts constituting the offence were part of a linked series of acts within a single endeavour." [ 80 ] In Li the appellate court also said, at paragraph 24, the issue of concurrent versus consecutive sentences: “...involves a factual assessment of the degree to which the circumstances of the offences are interconnected or separate.” [ 81 ] Except for Counts 1 and 2 on Information 43939-2-KC, the assault causing bodily harm and the breach of recognizance matter, the acts constituting the offences in this sentencing hearing are manifestly separate and distinct.

They occur on different dates, involve different victims, and very different acts of criminal conduct. One specific point of similarity is that all the offences occurred while Mr. Davyduke was under a court order to keep the peace and be of good behaviour. [ 82 ] The most serious offence of assault causing bodily harm occurred when Mr. Davyduke was under a bail order upon the release of Informations 32970 and 32971-1-B. [ 83 ] In my view, these offences do not warrant a concurrent sentence on the basis of similarity.

I would add that the sentences for breach of court orders should normally be consecutive, even when part of a single criminal transaction. My finding the substantive offences subject of this sentencing hearing were not part of a "linked series of acts within a single endeavour" does not end the inquiry. Totality Principle [ 84 ] As the sentencing judge, I must still consider the appropriateness of consecutive sentences in light of s. 718.1 and 718.2 of the Criminal Code . These provisions codify the totality principle, which requires me to consider Mr.

Davyduke's overall culpability in fixing a global sentence. [ 85 ] As explained in Li , this is a two-step process, and I quote from paragraph 28 of that decision. [28] Thus, there is a two-stage approach to sentencing an offender convicted of multiple offences. The first stage is to determine the appropriate sentence for each offence, and decide whether the individual sentences should be made consecutive or concurrent. If consecutive sentences are imposed, then the second stage is to determine whether the sentences, in the aggregate, offend the totality principle.

If the sentence, as a whole, is unduly harsh or disproportionate, then the length of the individual sentences should be adjusted in order to arrive at an appropriate global sentence. See R. v. P.P.H. , 2003 BCCA 591 . Step One: The Appropriate Sentence [ 86 ] In determining the appropriate sentence I have taken into consideration the oral submissions of the Crown and the defence in the context of the goals, principles, and objectives of the sentencing principles set out in s. 718 through 718.2 of the Criminal Code . I have considered Mr. Davyduke's personal circumstances, including his family and work history.

I have also considered his criminal record and his early guilty pleas. Informations 32970-1 and 32971-1-B [ 87 ] The offences on Informations 32970-1 and 32971-1-B are

summary conviction offences pursuant to s. 355(b)(ii). The offence of possession of property obtained by crime attracts a maximum jail sentence of six months. Failure to comply with a probation order under s. 733.1 attracts a maximum jail sentence of 18 months. [ 88 ] Counsel for the Crown and defence agree that the appropriate jail sentence for the offence of possession of property obtained by crime as set out in Information 32970-1 is 30 days. In light of Mr.

Davyduke's criminal record, I concur with counsel's submission that a 30-day jail sentence is fit for that offence, the possession of property obtained by crime. [ 89 ] I might add that in addition to his prior convictions for this very offence, Mr. Davyduke has three prior convictions for mischief to property under s. 430(4). In my view, the mischief offences further demonstrates Mr. Davyduke's disregard for the property rights of others. [ 90 ] Counsel for the Crown and defence agree that one day jail is appropriate for Mr.

Davyduke's breach of his probation order in Alberta to remain within the jurisdiction of the court without the written permission of his probation officer. [ 91 ] Although Mr. Davyduke has no convictions for court orders on his record, he does have a number of convictions for failing to appear to attend court, as well as three convictions for obstructing a peace officer. These convictions indicate a person with serious behavioural and attitudinal issues. Having said that, I accept counsel's submission for a one-day sentence on Mr. Davyduke's breach of his probation order.

Assault Causing Bodily Harm [ 92 ] A conviction for assault causing bodily harm, when proceeded summarily, as in this case, attracts a maximum jail sentence of 18 months. [ 93 ] Crown counsel argues for the offence of assault causing bodily harm a 90-day sentence is fit. The defence argues for a 60-day jail sentence. [ 94 ] The defence points to Mr. Davyduke's last conviction for assault, that was a s. 266 offence, on May 9th, 2011, in which he received a jail sentence of 30 days. This assault conviction is one of four convictions on that date, one of which was another s. 266 assault charge. [ 95 ] Mr.

Cooper says that a 60-day sentence is still a step up from Mr. Davyduke's last assault conviction.

[96] In considering the appropriate sentencing, I consider the aggravating factors to be: a. Mr. Davyduke's previous record for assaults and uttering threats; b. the victim, Megan Roberts, was someone with whom he had been in an intimate relationship; c. Mr. Davyduke came to Megan Roberts' home in the early morning hours uninvited and refused to leave when she asked him to; d. Ms. Roberts' young son was in the home at the time of the assault; and e. the impact of the assault on Ms. Roberts. [97] I have not considered as an aggravating factor that Mr.

Davyduke was on a recognizance of bail at the time requiring him to bein his home between 10 p.m. and 6 a.m., because that is subject of another charge to which he has already entered a guilty plea. [98] Mr. Cooper fairly concedes that Mr. Davyduke's assault on Ms. Roberts was disturbing and distressing, which likely caused herpsychological as well as physical injury. I agree. Mr. Davyduke showed up uninvited at a time when most people would be soundasleep. He had no reason to go to Ms. Roberts' home. He refused to comply with her demand to leave. He grabbed her by the bottomjaw. He put his fingers in her mouth.

He tossed her around the kitchen and smashed her head into the kitchen table. She sufferedlacerations inside her mouth, a bloody nose, and a cut on her right temple. She was extremely upset, scared, and crying. [99] In considering the appropriate sentence, I reviewed R. v. McConnell, 2014 BCSC 1743 ; R. v. Donnelly, 2010 BCSC1786 ; R. v. Miller, 2014 BCSC 772 ; R. v. Langille, 2013 BCCA 274 ; R. v. Miller, 2014 BCSC 772 ;R. v. Chow, 2009 BCCA 369; and, R. v. K.S.C., 2015 BCPC 199 . I find the words of Justice Joyce in Donnelly instructive: 28.

Spousal assault is a very serious matter, and a sentence for a serious spousal assault must impress upon the offender and others theabhorrence with which society ought to view violence committed in a person's home. All persons have a right to feel safe within theirhome, from their spouses as well as from strangers. If it is to act as a deterrent to others, the sentence for a serious spousal assault mustimpress upon others who might be inclined to engage in similar conduct that, if they are convicted, they will receive a punishment that ismore than simply a partial denial of one's liberty. [100] In R. v.

Desjarlais, 2006 BCSC 888, Justice Smith noted at paragraph 69 that: The range of sentence for assault causing bodily harm falls between a suspended sentence and a sentence of two-to-three years [101] The wide range of sentence in assault causing bodily harm cases is attributable to what the Supreme Court of Canada in R. v.Knott, 2012 SCC 42 s. 47 and R. v. Pham, 2013 SCC 15 (at paragraph 8) refers to as the "correctional imperative ofsentence individualization". It requires a sentencing judge to tailor the sentence to fit the offender and the crime.

In other words, I mustconsider relevant aggravating or mitigating circumstances as well as the objective and subjective factors related to Mr. Davyduke'spersonal circumstances. [102] Although Mr. Davyduke was not Ms. Roberts' spouse, they had been in a relationship, which is most certainly why he feltjustified in bursting into her house at 3 a.m. and assaulting her for having a male visitor. [103] In my view, this assault engages 718.2 of the Criminal Code. Outside Mr. Davyduke's early guilty plea, I find little mitigatingcircumstances in this offence.

The focus of the sentence needs to be on denunciation, deterrence, and public protection. [104] I do not accept the step-up principle applies to the extent suggested by defence counsel. As Madam Justice Ryan points out inthe R. v. Kory, 2009 BCCA 146, at paragraph 6: The "step-up principle" is not a principle or goal set out in the Criminal Code. It is a short hand way of expressing the idea thatsentencing requires a measured approach, even for repeat offenders. [105] In R. v.

D.F.B., 2006 BCCA 350, Madam Justice Ryan describes the step-up principle as follows: Counsel for the Crown submitted in her written materials that the step-up principle has no application in the case at bar. I agree that theprinciple is one that is often used to describe the philosophy that sentences should usually increase in moderate steps since a sudden,large increase in the length of a sentence may interfere with the goal of rehabilitation, if that is the focus of the sentence.

The step-upprinciple has little application where a sentencing judge determines that the offence in question calls for a sentence in which the primarygoals are denunciation and deterrence. [106] This passage was recently cited in R. v. Jimmie, 2009 BCCA 215, (at paragraph 18). [107] Mr. Justice Smith, R. v. L.D.W., 2005 BCCA 404, said: [30] I would not accede to the appellant’s submission that the sentence violates the step principle.

That principle acts as a restraint bytending to limit increases beyond sentences previously imposed and is particularly relevant where rehabilitation is a significantsentencing factor and the sentence ought not to be such as would discourage attempts at rehabilitation. I do not consider this to be such acase.

Moreover, the principle is not helpful in situations where, as here, the offence under consideration represents much more culpableand serious criminal conduct than the previous offence. [108] The focus on this case is on general and specific deterrence and denunciation is paramount in crafting a fit sentence for Mr.Davyduke's offence of assault causing bodily harm. It must be a sentence which will deter men who have the mindset they are permittedto pummel their girlfriends when feeling rejected, angry, or jealous. In this regard I rely on the R. v.

Thomson, 2013 BCCA 220, citingMadam Justice Saunders; and Evers, 2009 BCCA 500:

[22] The offence of assault with a weapon in this case was serious and caused injury to the victim. Given the persistent and violentnature of the assault offence here, calling for a sentence addressing denunciation, deterrence and protection of the public, it is my view asentence significantly longer than previous sentences was called for. The concept of step-up is not of assistance in this case, and I referto R. v. Vickers, 2007 BCCA 554 , in which Frankel J.A. said at para. 16: [16] ...

However, this Court has held that the step principle has no application when the dominant sentencing factor is protection of thepublic: R. v. Robataille (1993), (BC CA), 31 B.C.A.C. 7 at paras. 8, 9; R. v. McCallum, 2004 BCCA341 , 200 B.C.A.C. 112 at para. 10; R. v. Willier, sub nom R. v. L.D.W., 2005 BCCA 404 , 215 B.C.A.C. 64 at para.30. [109] Mr. Davyduke's sentence for assault in 2011 was 30 days. We know nothing about the circumstances of that offence. In thiscase, Mr. Davyduke is charged with assault causing bodily harm to his former girlfriend. In between those offences Mr.

Davyduke wasconvicted of the offence of uttering threats for which he received the two days' jail and the one year probation order from Alberta. [110] It is clear that Mr. Davyduke's previous convictions were not effective to restrain his behaviour. If this sentence is to act as adeterrent, then it must impress Mr.

Davyduke and others who might be inclined to engage in similar conduct that, if they are convicted,they will receive significant punishment. [111] In my view, a 90-day jail sentence for the offence of assault causing bodily harm is at the low, if not the very low end of therange of sentence for an offence of this nature committed in the circumstances by this offender. It was a vicious and unprovoked attackon a young woman in her own home in the middle of the night. As a result, she suffered not insignificant physical injuries and emotionaldistress.

Step Two: Aggregate Sentence [112] Having considered and applied the appropriate sentences to the four distinct offences before the court, I must now consider thecumulative effect to determine if the global sentence is just and appropriate. I am of the view that an aggregate sentence of 128 days forthe four offences for which Mr. Davyduke has entered a guilty plea is just and appropriate.

It is not unduly harsh or disproportionate forthese offences by this offender in the circumstances of these offences. [113] Accordingly, the sentence on Information 32970-1, the s. 354 possession of property obtained by crime, and Information 32971-1-B, the breach of the Alberta probation order offence, will be served consecutive to each other and to Counts 1 and 2 of Information42013-4-KC. In sum, Mr. Davyduke will receive a global jail sentence of 128 days. All sentences will be served consecutively. Nofurther adjustments are required to insure the cumulative sentence does not exceed his overall culpability.

Presentence Custody [114] Mr. Davyduke has been in custody since January the 10th, 2016. Not counting today, Mr. Davyduke has been in custody withrespect to the matters before the court for a total of 38 days. [115] The Crown and the defence agree Mr. Davyduke should receive enhanced credit for the time served, based on R. v. Summers,2004 SCC 26. Credit for his time in pretrial custody will be calculated on a one point five to one basis, for a total of 54 days. Mr.Davyduke's jail sentence is 128 commencing today, on February the 12th, 2016, less the 54 days that he has already served in pretrialcustody.

Probation [116] In considering the appropriate probation period I have to consider the purposes of probation orders is to rehabilitate the offenderand to protect the public while the offender is in the community:

Section s. 732.1(3)(

h) CC; R. v. Proulx, 2000 SCC 5 , [2000]1 SCR 61, paragraphs 31-34; R. v. Shoker, 2006 SCC 44 , paragraphs 10, 13. [117] Shoker was recently applied by the BCCA in R. v. Voong, 2015 BCCA 285. The court noted that while a probation order hasprimarily a rehabilitative objective, the statutory terms of "protecting society" and "reintegration into the community" mean that suchorders are not limited to this objective (See: R. v. Maxmenko, 2015 BCSC 2224). I find a moderate to lengthy period of probation isnecessary for this purpose, including Mr.

Davyduke's rehabilitation and to protect the public, including Megan Roberts. [118] I will make the 18-month term probation order, as requested by the Crown and agreed by defence. As to the condition ofprobation I am guided by s. 732.1(2) and (3) of the Criminal Code.

Subject to certain conditions, s. 732.1(3) empowers the court toimpose “such other reasonable conditions as the court considers desirable for facilitating the offender’s successful reintegration into thecommunity. [119] In Shoker, Charron J., speaking for the majority, stated at paragraph 13: [13] Reasonable conditions will generally be linked to the particular offence but need not be.

What is required is a nexus between theoffender, the protection of the community and his reintegration into the community [120] In my view, those conditions include those requested by the Crown with the addition of a curfew for the first six months of theprobation order. DNA Order [121] The offence of assault causing bodily harm is a secondary designated offence within the meaning of s. 487.04 of the CriminalCode. This means I have the discretion to order the taking of a DNA sample from Mr. Davyduke. Mr. Cooper did not argue that thiswas not appropriate. Mr.

Davyduke has not established that the impact of this order, including on his privacy or liberty, would be

grossly disproportionate to the public interest in protecting society, which is served by these kinds of orders. I find Mr. Davyduke's existing criminal record and the seriousness of those new offences justify a DNA order. Therefore, Mr. Davyduke will be subject to a DNA order pursuant to s. 487.051 of the Criminal Code , and that order will be in Form 5.04. [ 122 ] Where the Crown proceeds summarily, as it has done in this case, the sentencing judge also has the discretion to order a firearms prohibition pursuant to s. 110 of the Criminal Code .

I understand the defence does not oppose such an order, and the Crown is seeking a period of five years. SENTENCE [ 123 ] So, Mr. Davyduke, if you stand up, please. [ 124 ] You have entered guilty pleas to the charge under Information 32970 of Dawson Creek, the possession of property obtained by crime. You have entered a guilty plea to that count. I accept your plea and I find you guilty of that offence. [ 125 ] You have entered a guilty plea on Information 32971-1-B of Dawson Creek to breach of a probation order. You have entered a guilty plea to that.

I accept your guilty plea and I find you guilty of that offence. [ 126 ] You have also entered guilty pleas to Counts 1 and 2 on Information 43939-2-KC in Prince George. This is the assault causing bodily harm to Megan Roberts and the breach of the recognizance. I accept your guilty plea and I find you guilty of those offences. [ 127 ] I am going to sentence you to 30 days in jail on Count 1, possession of property obtained by crime; that is Information 32970-1, the Dawson Creek Registry. On the following Information, 32971-1-B, I will sentence you to one day in jail.

These two sentences will be served consecutively with each other and consecutively with all other jail sentences imposed today. [ 128 ] On Count 1 of Information 43939-2-KC, for the assault causing bodily harm to Megan Roberts, I sentence you to 90 days in jail, to be served consecutively with respect to all other jail terms imposed today. [ 129 ] On Count 2 of Information 43939-2-KC, this is the breach of the recognizance, I sentence you to seven days in jail, to be served consecutively with respect to all other jail terms imposed today. [ 130 ] With respect to the probation order, upon your release you will be on an 18-month probation order on Information 32970-1, that is, the possession of property obtained by crime, and on Count 1 of Information 43939-2-KC, that is, the assault causing bodily harm to Megan Roberts. [ 131 ] So on those two offences there will be an 18-month probation order upon your release, the terms of which will be a.

You shall keep the peace and be of good behaviour; b. You shall appear before the court when required to do so by the court; c. You shall notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; d. Within 72 hours of completing your jail sentence you shall report in person to the probation office located at 101 - 250 George Street, Prince George, B.C., and thereafter you will report when directed to do so; e.

When first reporting to the probation officer, you shall inform him or her of your present residential address and phone number, and you shall not change your address or phone number at any time without first obtaining the written consent of the probation officer; f. For the first six months of probation you shall obey a curfew by being inside of your residence, or on the lot on which your residence is located, between the hours of 10 p.m. and 6 a.m. each day except as follows: i. with the written consent of your probation officer, obtained in advance.

Such consent to be given only for compelling, family, or employment reasons; ii. when travelling directly to or directly from your place of employment, or while in the course of your employment. You shall provide the probation officer with written proof of employment; iii. when travelling directly to or returning from an educational institute at which you are enrolled, or while in the course of classes or extracurricular activities approved by the probation officer at such educational institution.

You shall provide the probation officer with written proof of your educational enrollment, your attendance at classes, and your involvement in extracurricular activities; and iv. in the event of a medical emergency and only when travelling directly to or directly from the hospital emergency ward. g. You shall present yourself at the door to your residence when any peace officer or probation officer attends there for the purpose of determining your compliance with the curfew conditions of this order; h. You shall have no contact or communication, directly or indirectly, with Megan Roberts; i.

You shall not attend at any place which you know to be the residence, school, or workplace of Megan Roberts; j. You shall have no contact or communication, directly or indirectly, with Brandon Trudeau;

k. You shall not attend at any place which you know to be the residence, school or workplace of Brandon Trudeau; l. You shall not attend at any place which you know to be the worksite of H.F. Nodes Construction; m. You shall not possess any weapons as defined in s. 2 of the Criminal Code ; n. You shall not possess any knives outside your residence, except for the immediate preparation of eating food, or for the purposes directly and immediately related to your employment; o.

You shall attend, participate in and successfully complete any assessment, counselling, treatment program or any other program as directed by the probation officer. Without limiting the general nature of this condition, such assessment, counselling or program will include anger management, spousal abuse prevention; and you shall comply with all the rules and regulations of any such assessment or counselling program. [ 132 ] With respect to the ancillary orders there will be a DNA order in the Form 5.04. Pursuant to s. 487.051(3)(

b) of the Criminal Code I make an order in Form 5.04 authorizing the taking of a number of bodily substances by any peace officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration on or before March the 15th, 2016. [ 133 ] I am making an order under s. 110: you are prohibited from possession of any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for five years. [ 134 ] Now, Mr. Cooper, have you got the time left that Mr.

Davyduke will have to serve on his sentence; 128 minus 54? So what is that, 74 days? Do I have that right? [ 135 ] MR. COOPER: That sounds right to me, Your Honour. [ 136 ] THE ACCUSED: And I do two-thirds of that? [ 137 ] MR. COOPER: Yes, as long as you're getting statutory remission. [ 138 ] THE COURT: I have one more item, the victim fine surcharge. Mr. Davyduke is ordinarily employed and likely has or will have the ability to pay the victim fine surcharge. I will order it paid on or before December 31st, 2016. [ 139 ] MR. COOPER: Thanks, Your Honour. (REASONS FOR SENTENCE CONCLUDED)