R. v. Jones Date:, 2017 BCPC 218

Citation: R. v. Jones Date: 20170406 2017 BCPC 218 File No: 40250-2-C Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KANNON MICHAEL JONES REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. HARVEY BAN ON PUBLICATION PURSUANT TO S. 486.4(1) AND S. 486.5(1) OF THE CRIMINAL CODE *NOTE - THE ABOVE BANS WERE REMOVED UPON APPLICATION BY THE COMPLAINANT AND BY ORDER OF THE THE HONOURABLE JUDGE HARVEY EFFECTIVE JUNE 8, 2017 Counsel for the Crown: R. Richardson

Counsel for the Defendant: D. Evans Place of Hearing: Courtenay , B.C. Date of Hearing: February 7, 2017 Date of Judgment: April 6, 2017 Background [ 1 ] The accused Kannon Michael Jones is before the Court for sentencing, having previously elected to be tried by a Provincial Court Judge. The accused pled guilty on November 17, 2016 to the following two offences: Count 2 alleges that on or about August 18, 2016 at or near Comox, British Columbia, in committing an assault of CHANTAL SWAYZE, did carry, use or threaten to use a weapon or an imitation weapon, contrary to

section 267 (

a) of the Criminal Code . Count 3 alleges that on or about August 18, 2016 at or near Comox, British Columbia, with intent to enable or assist himself, did attempt to choke CHANTAL SWAYZE by administering a choke hold, contrary to

section 246 (

a) of the Criminal Code . [ 2 ] The accused was 26 years of age in the time of the offences and has no prior criminal record. [ 3 ] Also, the accused has been in custody since his arrest of September 14, 2016 on these matters. Defence and Crown had calculated that as of February 7, 2016, the date I heard sentencing submissions from counsel, the number of days the accused had been incarcerated was 147 days. As of today’s date, April 6, 2017, that total now stands at 205 days.

Both counsels agree the accused should be given the usual 1.5 to 1 credit; therefore, the accused is entitled to 308 days of credit towards any further jail sentence this Court imposes today. [ 4 ] The issue for this Court to decide today is what is the appropriate and fit sentence for these two offences to which the accused has pled guilty. Circumstances of the Offence [ 5 ] At approximately 10 - 10:30am on Thursday, August 18, 2016 the complainant and victim in this matter, CHANTAL SWAYZE, had headed off for a morning run through Condor Park in Comox, British Columbia.

Condor Park was explained to the Court as a wooded area, approximately 5 acres in size which is bordered by several residences, including a trailer park where this accused resided on the relevant date in question. Condor Park is regularly used by joggers and runners, people walking their dogs, and children who often frequent the area. [ 6 ] CHANTAL SWAYZE was an active runner at the time and she regularly took various routes that suited her conditions. By all accounts, CHANTAL SWAYZE was a fit and active person who enjoyed her running. The day in question was a particularly a hot summer day in the Comox Valley.

During her run CHANTAL SWAYZE headed for the confines of the shade through Condor Park. Condor Park has a series of trails that are protected from the hot summer sun. As was common, CHANTAL SWAYZE was wearing her earbuds whilst listening to music on her phone. [ 7 ] Whilst entering Condor Park the complainant stopped to change her music on her phone. Suddenly, without any prior notice or provocation she was hit from behind with what she initially thought was a tree to the back of her head. Before she knew it, there was a male on top of her holding her in a “rear naked choke hold”.

This is often referred to in the wrestling world as the “sleeper hold”. [ 8 ] If the rear naked choke hold is applied appropriately and continuously, it will inevitably cause its victim to be rendered unconscious. Furthermore, it can cause permanent and serious injury or death if the move is not applied properly or if it is not removed in time. [ 9 ] The complainant recognized this type of hold that was placed upon her by the accused notwithstanding she been struck violently in the back of her skull and knocked to the ground. Both she and her family are familiar with martial arts.

The complainant was able to put her two fingers between her carotid artery and the accused’s arm and, miraculously, she was further able to punch the accused with her other hand at the same time. [ 10 ] Eventually, both the complainant and the male assailant were on the ground and when he got up, the complainant saw the assailant pulling up his pajama bottoms which had exposed his naked buttocks as he started to run away from her. The complainant yelled out for help. Fortunately, she had not been rendered unconscious and despite being lightheaded, she tried to run after her assailant.

She then went to the Rob Road entrance to Condor Park and attempted to telephone her husband. Finally, on the second or third attempt, she was able to reach him. When her husband arrived upon the scene, the complainant was bleeding from her head wound. She was driven to the local hospital by her husband and at approximately 10:47am, a 911 call was placed from the hospital. [ 11 ] The complainant did not know or recognize her attacker. Her attacker was described as a male, approximately 5 foot 8 to 5 foot 11 inches tall with a medium build wearing blue and grey pajama bottoms.

The male person was also wearing a hoody. The complainant CHANTAL SWAYZE then met with the local R.C.M.P. Tips were given from the general public identifying this accused as generally matching the description. [ 12 ] The police initially met with the accused who at first denied any responsibility for being involved in this attack. This meeting occurred after August 25 th when a witness came forward, namely one of the accused’s former best friends, who thought that the attacker was this accused. The accused gave an explanation that he was working that day. Ultimately, the Police attended in Port McNeill to

speak with this accused further. After some period of time during that interview the accused then admitted he was the person responsible for the attack. Accordingly, he was arrested at that time which was on September 14, 2016. [ 13 ] The accused initially advised the Police that he been looking at Facebook at approximately 9:40am on August 18, 2016 and that approximately at 10:10am he attended Condor Park. He had become enraged with something he saw or read on Facebook and was looking to take it out on someone. He began running around the park and picked up a rock roughly the size of a croquet ball.

Whilst running in the park he did not know his victim, CHANTAL SWAYZE. In addition, he does not know what exactly triggered his anger to do such a thing. Furthermore, he agreed he placed the victim in a reverse naked choke hold. He further indicated to police that his pants fell down when he ran away as they were too big for him. He also advised the police that he had smoked some marijuana and had some Baileys in his coffee earlier that morning. It was clear that this accused was angry and agitated and wanted to lash out at someone for no apparent reason other than his intense anger.

After he returned to his home in a trailer park that bordered Condor Park, he threw his clothes in the garbage and proceeded to go to work later that day. [ 14 ] The Court was given a number of documents as Exhibit 3 that included photos of the victim’s injuries, photos of the park entrance and path, aerial photos, the media release by the RCMP and the apology letters written by the accused addressed to the victim dated September 17, 2016. Circumstances of the accused [ 15 ] The accused is presently 27 years of age and comes before the Court with no prior criminal record.

The Court has had the benefit of a detailed pre-sentence report as well as a psychological report prepared by a registered psychologist, Dr. Darcangelo, PhD. [ 16 ] The accused was 26 years of age at the time of his arrest in this matter with no history of violent behaviour. The accused agreed with the circumstances of the offences as outlined in the police report. This accused completed his grade 12 education and has regularly been employed but for a brief period time when he looked after his ailing grandmother.

He did have some difficult upbringing and his grandmother was the most stable influence in his life when she was alive. Unfortunately this accused’s grandmother passed away in 2015. At that point he sunk into a poor depressive state and he attempted suicide. In the psychological report after testing of this accused, Dr. Darcangelo found that this accused as showing a moderate to elevated risk to re-offend if he is left untreated.

This accused expressed a willingness to get treatment to help prevent this type of incident happening again. [ 17 ] This accused also suffers from Crohn’s disease in addition to his reporting of depression which started in 2013. After his grandmother’s passing the accused remained depressed and isolated himself from everyone. However, the accused has a positive and supportive relationship with his mother. He has never been married and has no children.

His ultimate plans are to live with his mother upon release. [ 18 ] Ultimately, this accused takes responsibility for his assaultive behaviour and as mentioned by his counsel during submission, he confessed early, expressed remorse and never set the matter for Trial.

The early guilty pleas were entered once full disclosure was made to the defence. [ 19 ] Lastly, the Court was advised this accused has been in protective custody in jail given the threats of violence that have been made against him and it has been suggested to this Court that this accused will not be able to live in the Comox Valley area safely again. Impact on the victim [ 20 ] The Court has also reviewed the victim impact statement of the victim CHANTAL SWAYZE filed as Exhibit 4 in this matter.

To say that this senseless and vicious attack on her has had a negative impact would be an understatement. [ 21 ] It is only perhaps fortunate that this accused met a victim who had the wherewithal to recognize the nature the chokehold that was placed upon her. But for that knowledge this case may very well of had a much worse outcome. The victim may very well have been rendered unconscious and could have sustained permanent life altering injuries or even death. [ 22 ] The victim has clearly been traumatized by this incident and struggles to go into public alone. She also worries for her two teenage children.

She no longer walks in or down a wooded area or path since this incident. [ 23 ] Although as of November 2016 the victim had physically recovered from her injuries, she nevertheless was suffering frequently from headaches and advises she has been haunted nightly by this incident. Positions of the Crown and Defence [ 24 ] The Crown seeks a global jail sentence of 4 years. The Crown is also seeking ancillary orders of DNA order under

section 487.051 of the Criminal Code as well as the 10 year minimum section 109(1) (

a) prohibition along with a

section 743.21 prohibition for this accused to contact the complaint directly or indirectly during the balance of his custodial sentence. [ 25 ] The defence says a more appropriate sentence would be a high end provincial jail sentence along with a lengthy period of probation to follow. [ 26 ] Crown counsel provided a number of authorities to the court dealing with the offences of assault and choking. The closest one on the facts would be the R. v. Wallin decision,

(2003) BCSC 809 of Justice Dillon of the B.C. Supreme Court dated May 23, 2003. That was a tragic case of a young Korean exchange student who was jogging alone on a trail in Stanley Park in Vancouver on the evening of May 27, 2002. The accused in that case Mr. Wallin, had pled guilty to aggravated assault of J.P. The facts in that case are similar to the facts in Mr. Jones’ case in that Mr.

Wallin knew what he was doing from the start. [ 27 ] As in this accused’s case, that assault was a motiveless, unprovoked, savage attack on a female who was a complete stranger to him in a public park relied on by all citizens of Vancouver. Mr. Wallin showed a callous disregard for the victim immediately after the

assault which shocked the community and particularly scared women from exercising alone, anywhere. However, in the Wallin case, unlike in this present case, sadly the victim, J.P. sustained a life- altering catastrophic permanent brain injury. After considering all of the relevant principles of sentencing Justice Dhillon of the B.C. Supreme Court sentenced Mr. Wallin to 9 years imprisonment which when after time being credit for time served, resulted in an additional sentence of 7 years. Mr. Wallin also had no prior criminal record at the time of his sentence. [ 28 ] I have also reviewed all of the defence cases in detail. The closest one on the facts is R. v. Compton

(2015) BCPC 0395. That was a case before my brother Judge MacCarthy heard in Nanaimo Provincial Court on February 6, 2015. [ 29 ] In that case the accused was a 20 year old male at the time of the offence but 21 years of age at sentencing with one prior theft and possession of a motor vehicle on his record. Mr. Compton pled guilty to a variety of offences, including choking the complainant contrary to

section 246 (

a) of the Criminal Code . [ 30 ] Essentially, the victim in the case was driving on a rural road on or about June 11, 2014 when she stopped her vehicle. She was alone by herself when she heard another vehicle approach. Ultimately, in an attempt to take her vehicle, the accused Mr. Compton choked the victim. The injuries that were sustained by the victim were described as multiple scrapes and abrasions and markings on the victim’s neck. Although there was no facial fracture injury to the jaw, there were however, observable facial marks.

Similarly, as in this present case, the victim in that case was able to fight off the offender notwithstanding she had briefly been rendered unconscious. [ 31 ] Ultimately, DNA led to the arrest of the offender. The victim in that case was young, approximately 17 years of age. The accused in that case was also in protective custody and the Crown’s position on sentence for that case was one of an upper provincial jail sentence.

After taking all the factors into account Judge MacCarthy sentenced the accused to a 21 month global sentence including 21 months for the choking offence concurrent with the assault bodily harm conviction. Principles of sentencing [ 32 ] The Court is guided by

section 718 , 718.1 and 718.2 of the Criminal Code . Purpose: [ 33 ]

Section 718 reads as follows: 718 The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 or to the community. Fundamental principle:

Section 718.1 reads as follows: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles: [ 34 ]

Section 718.2 reads as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, or (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. Aggravating and mitigating circumstances [ 35 ] The aggravating factors in this case are as follows: 1. Firstly, the very nature of the offence, which involved the sudden, unprovoked, senseless and vicious attack upon a female at a public park during daylight hours in the summer whilst she had her back turned to her attacker. 2.

Secondly, the accused approached his unknown victim from behind and struck her up on the back of the head with a rock approximately the size of a croquet ball. 3. Thirdly, if that action of striking with the rock wasn’t enough, he then placed her in a reverse naked chokehold which miraculously did not result in the victim being rendered unconscious or furthermore sustaining more serious injuries. The victim struggled fiercely and after her fighting back, the accused fled with his pajamas down around his ankles. 4.

Fourthly, the accused did not remain at the scene but fled leaving the innocent victim traumatized by his horrific attack upon her. 5. Fifthly, the offence shocked the community of Comox and a police media release was sent out seeking a suspect after this attack. This case was very well-publicized in the local media and; 6. Sixthly, this accused’s potential and real risk for him to re-offend if left untreated. [ 36 ] The mitigating factors in this case are as follows: 1. Firstly, the young age of this accused, being 26 years old at the time of the offences. 2.

Secondly, the accused is before the Court with no prior criminal record. 3. Thirdly, the accused had a difficult upbringing but has graduated from high school and been gainfully employed except for a period of time when he cared for his ailing grandmother during the latter part of her life. 4. Fourthly, the accused’s admission of guilt relatively close to the offence date. 5. Fifthly, the expression of remorse by way of a detailed written letter to the victim dated September 17, 2016. 6.

Sixthly, the accused has entered early guilty pleas, which has spared the victim and witnesses from having to testify in this matter. What is a fit and appropriate sentence in this case? [ 37 ] Notwithstanding all of the mitigating factors I’ve outlined in this case, I find that the moral culpability of Mr. Jones to be very high. There is absolutely no question that he knew what he was doing and had every opportunity to stop and not lash out in his anger and rage as he did upon this innocent woman who was alone along a trail in a wooded area, namely Condor Park.

It is very troubling that he would choose to do this simply on something that he saw or read on Facebook that was never particularized in any detail to anyone. Moreover, it would appear that he was otherwise in a relatively sober condition at the time of the offences. [ 38 ] Such deliberate attacks in public parks are, regrettably, becoming all too frequent.

This deliberate attack on an unsuspecting female enjoying her day whilst out on a run on a trail in a public park used by persons of all ages in the community is very concerning. [ 39 ] I am mindful that this accused has indicated a willingness to follow through on having treatment and is sorry for what he did. Nonetheless, I am satisfied that the main factors of concern in this case are those of general deterrence and denunciation.

These are the overriding objectives and concerns that I have with respect to the facts and circumstances involving this accused. [ 40 ] I am extremely mindful that every accused is different from those involved in other cases and that the sentence must be crafted with this particular offender in mind, having regards to all the circumstances along with the principles of sentencing that I must follow. Other cases are a useful guide and help to formulate ranges of sentences but a sentencing judge must exercise discretion to impose a sentence that reflects the unique circumstances of each case.

I do take into account all of this accused’s background and circumstances in coming to my decision in this regard.

[ 41 ] All citizens, and indeed visitors to our Province have the right to be free from such senseless violence. It has no

part in our villages, towns and cities in this Province. [ 42 ] I have no doubt that this crime had a chilling effect upon the local citizens, particularly women in this area, let alone this victim. [ 43 ] With respect I cannot agree with the submissions of defence counsel which asked this Court to accede to a provincial institution jail sentence along with a lengthy period of probation to follow.

I am confident that the Parole Board will see fit to place this accused on appropriate conditions, once he is released back into the community as they do with other offenders who have been sentenced to serious jail sentences. Disposition [ 44 ] Taking all the factors into consideration it is my view that the appropriate sentence for the offences to which this accused has pled guilty to is as follows: • On Count 2 the assault with a weapon charge from August 18, 2016 there will be a 2 year jail sentence; • On Count 3 the choking offence charge from August 18, 2016 there will be a 3 year jail sentence.

Both jail sentences are to be served concurrently. [ 45 ] Thus in these circumstances taking into consideration this accused’s prior pre-disposition credit of 308 days already served in custody to date, he is therefore sentenced to a further 2 years and 57 days in jail. [ 46 ] In addition there will be the following ancillary orders: • Pursuant to

Section 487.05(1) of the Criminal Code I make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances by any Police Officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the national DNA Databank from this accused, Mr. Kannon Michael Jones. • Pursuant to section 109(1) (

a) of the Criminal Code the accused Kannon Michael Jones is prohibited from possessing any firearm, cross bow, restricted weapon, prohibited weapon, prohibited device, ammunition, prohibited ammunition and explosive substances for ten years. • Pursuant to

section 743.21 of the Criminal Code , the accused Kannon Michael Jones is prohibited from contacting the complainant, CHANTAL SWAYZE, directly or indirectly during the 2 year and 57 days custodial period. [ 47 ] Given this accused’s custodial status, I will order victim fine charges payable forthwith and thus he will serve 3 days on counts 2 and 3 concurrent with each other and concurrent with the jail sentence I have imposed today. [ 48 ] Lastly, a copy of these reasons will be forwarded to the Correctional Service of Canada pursuant to

section 743.2 of the Criminal Code . BY THE COURT ____________________________ The Honourable Judge B. Harvey