R. v. W.E.S. Date:, 2018 BCPC 23

Citation: R. v. W.E.S. Date: 20180111 2018 BCPC 23 File No: 40498-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. W.E.S. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Crown: B. Goddard Counsel for the Defendant: R. Bennu Place of Hearing: Campbell River , B.C. Date of Hearing: September 5 & 7, December 18, 2017 Date of Judgment: January 11, 2018

Introduction: [1] Following a trial in September, 2017, I found W.E.S. guilty of the following charges: • Assault causing bodily harm to T.G. on March 31, 2016 (Count 1) • Assault of T.G. (Count 3) and of his son S.S. (1) (Count 4) on April 17 2016 [2] A stay will be entered on Count 2 (assault with a weapon - a glass) on March 31, 2016) on the basis that it arises out of thesame occurrence as count 1: R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729 and s. 12 of the Criminal Code. [3] The circumstances of the offences are that on March 31, 2016 W.E.S. and his wife T.G. had been arguing all day.

W.E.S. wasfrustrated, angry and aggressive and was throwing things, swearing and being belligerent. The family was experiencing significantfinancial stress at the time and this appeared to be, at least in part, the reason for W.E.S.' anger. I accepted T.G.’s evidence that on theevening in question, at around 11 pm, W.E.S. was standing by the bed in their bedroom when he swore at her and threw a large glass cupat her striking her right large toe. [4] Her toe was badly injured and bled profusely.

She sustained a comminuted crush fracture of her right big toe bone and hasongoing and likely permanent problems with her big toe which affect her ability to walk and run. The toe is always painful. [5] On April 17, 2016, W.E.S. once again had been behaving badly during the day. Earlier in the day, T.G. had taken the childrenout for a walk in an attempt to get away from W.E.S. and in the hopes that he would calm down. Two neighbours, not known to W.E.S.or T.G., saw them walking by and testified that they observed his aggressive, obnoxious and belligerent behaviour towards T.G. and thechildren.

They also observed that T.G. was trying to calm him down but to no avail. [6] I accepted the evidence from T.G. and S.S. (1) that when they returned home the arguing continued and ultimately a physicalfight took place in the kitchen of their home. [7] It resulted in W.E.S. shoving T.G. onto a table causing her to fall. S.S. (1) physically intervened to stop his father fromattacking his mother and to protect her. W.E.S. responded by pushing this young boy onto the kitchen counter causing him to stumbleand strike his head on the counter. T.G. told her son to run and get help.

She was able to get on her feet and fled down the stairs to thefront door. This resulted in an even greater display of rage and aggression from W.E.S. who came after her and, while outside the frontdoor, grabbed her by the front shirt and tried to forcibly pull her back into the house. [8] W.E.S.’ behaviour was aggressive, verbally abusive and generally speaking, obnoxious. [9] It was W.E.S.’ yelling and threatening behaviour that attracted the attention of passers-by who also happened to be the samepeople who saw the earlier aggressive behaviour of W.E.S. during the walk.

Effect on Complainants: [10] No twelve year old should ever have to be exposed to this behaviour from a trusted parent figure or have to fight a father in anattempt to protect his mother. No one should have to be exposed to this form of violence - especially in one’s own home. [11] S.S. (1) provided a victim impact statement in which he expresses that he was scared to go to school and scared to see his fatheranywhere in [omitted for publication]. He couldn’t sleep and felt sick. [12] The assaults and aggressive behaviour have impacted T.G. She also provided a victim impact statement.

She suffers fromchronic pain in her right toe and has lost range of motion. She is fearful of W.E.S. and is afraid to have him around their children. Circumstances of Offender: [13] W.E.S. will be 39 years of age in March, 2018. He described a positive relationship with his parents and a normal upbringingwith an absence of violence in the home. He has been employed throughout the years sporadically or seasonally in the logging andfishing industries including working with his parents business.

He has also maintained other employment including the operation ofcranes and tugboats. [14] The various reports that were provided to the court indicate that W.E.S. has had long-standing challenges with anxiety, alcohol,and an inability to manage his emotions, in particular, anger when he is feeling stressed, anxious or overwhelmed. [15] W.E.S. may have suffered a number of head injuries over the years and both he and his mother have questioned whether hisdifficulty with emotional control is related to consequences of a head injury. [16] W.E.S. has participated in alcohol treatment programs in the past as well as respectful relationships and relationship violenceprevention program.

The latter courses were completed during a probationary period following an assault conviction in April, 2014. [17] Following the offences, W.E.S. returned to work but in January 2017 was injured and has not been able to return to work at leastas of the date of the updated presentence report in October 2017. [18] W.E.S. has since entered into a new relationship with a woman who has two young daughters, aged eight and six and they areengaged to be married. Prior Criminal History:

[ 19 ] In 2011 he was placed on probation as a result of an incident of domestic violence that occurred on October 20, 2010. W.E.S. was in a rage and stepped on T.G.’s foot while she was holding their then six month old baby. [ 20 ] On April, 2014, following a conviction for assault, he was given a suspended sentence arising out of events on February 6, 2014. Police attended at the residence following a dropped 911 call. The woman present (I assume was T.G.) was crying and advised the police that W.E.S. was angry and held her down on the couch and struck her in the face with his open hand.

This occurred in the context of her unsuccessful attempt to prevent him from leaving the home with their nine year old son. This likely was S.S. (1) [ 21 ] W.E.S. has no remorse for what has occurred and even after being found guilty of assaulting T.G. and his son, he still maintains that he doesn't agree with that finding and also acknowledges that he has a hard time accepting authority and also harbours "ugly feelings towards the RCMP": page 7, updated Pre-Sentence Report. [ 22 ] I have had the benefit of reviewing a report dated August 27, 2016 (the First Report) and a letter dated October 25, 2017 by Dr.

Ferguson, a registered psychologist with the Forensic Psychiatric Services Commission. In his first report, Dr. Ferguson discusses his conversation with W.E.S.’ mother, S.S. (2). S.S. (2) acknowledged “that her son is prone to "anxiety meltdowns" where he becomes extremely elevated, overwhelmed and out of control, on one occasion she left the home out of fear of his behaviour.” She also told Dr.

Ferguson that W.E.S. was taking medication which she felt was helping him to manage his anxiety. [ 23 ] Similarly, W.E.S. blames what has occurred during these offences, as well as prior incidents of domestic violence on his anxiety and/or his partner’s behaviour. [ 24 ] W.E.S. has previously entered a residential treatment program for alcohol and recognizes that drinking increases his anxiety. He denies ever using illicit drugs. Clearly, both these substances will worsen anxiety as well as symptoms stemming from a head injury. [ 25 ] In Dr.

Ferguson's first report, at page eight, he summarizes W.E.S.’ risk for violence in the future and his attitude towards his own behaviour. Dr. Ferguson's opinion is that W.E.S. is at high risk for violence in the future although he noted that in the context of risk management factors, there may well be a reduction in his risk for violence. Those risk management factors relate to future problems with his living situation, stress and coping and future problems with personal support and treatment response. [ 26 ] Dr.

Ferguson is of the opinion that W.E.S. “… presented with no insight into his difficulties with anger and his poor anger management is associated with his offending. He also has little insight into his history of violence, tending to minimize and deny past violent behaviour.” [ 27 ] At the time of his first report, W.E.S. was living in an unstable living situation whereas he is now living with his fiancé. Also, at the time of Dr. Ferguson's report, W.E.S. was firm that he was going to continue taking his medication although Dr.

Ferguson noted that at that time, there was a recent history of W.E.S. ceasing to take his medication. [ 28 ] Dr. Ferguson also noted positive factors in that W.E.S. is not an antisocial individual and that he has family support. Positions of Counsel: [ 29 ] Crown, pointing to W.E.S.’ lack of remorse and the fact that the assaults were in the context of domestic or intimate partner violence as aggravating factors, seeks a jail sentence of sixty days on Count 1; thirty days on Count 3 and thirty days on Count 4.

Counts 3 and 4 are to be concurrent with each other but consecutive to count 1 for a total of ninety days. He also seeks probation for two years and ancillary orders including a DNA order and an extended weapons prohibition under

section 110 of the Criminal Code for a period of five years. [ 30 ] Crown asserts that the paramount sentencing principles are denunciation and deterrence. [ 31 ] Defence submits the appropriate sentence is a conditional sentence order (CSO) for one hundred and twenty days followed by two years of probation. The terms of the CSO would be strict and would include a curfew at night.

She points out that he spends his time in the evening at home anyway and this condition would not be difficult. [ 32 ] She asserts that the foremost consideration ought to be W.E.S.’ rehabilitation and points to his mental health issues, that he needs to learn skills and suggests that he is on “the right track”. By that she refers to his new relationship, the medication (Effexor) he is now taking and his reported improvement in his anxiety and mood generally. This appears to be supported by Ms. N who provided a letter to the court advising that W.E.S. is kind and loving both with her and her two young daughters.

Ms. N advised the writer of the updated pre-sentence report that W.E.S. periodically displays anxiety behaviour but that he maintains that anxiety by "diligently taking his prescribed medication daily." She also has advised both the court and the pre-sentence report writer that W.E.S. does not consume alcohol and also that she has zero tolerance towards alcohol use.

Sentencing Principles: [ 33 ] I am mindful that the primary purpose of sentencing is to contribute to a just, peaceful and safe society by imposing just sanctions that will serve one or more of the following objectives: denunciation; deterrence; removal of an offender from the community where necessary; rehabilitation of an offender; reparation to victims and the community; promotion of responsibility on the part of the offender and acknowledgment of the harm to victims and the community. [ 34 ] A sentence must be proportional to the seriousness of the offence and not be excessive or unduly harsh. [ 35 ] All available sanctions other than imprisonment that are reasonable in the circumstances should be considered.

Aggravating Factors:

[ 36 ] These offences involved W.E.S.’ son and wife.

He was in a position of trust and individuals in an intimate or family relationship are particularly vulnerable to the effects of family violence. [ 37 ] Parliament has reflected the seriousness of offences of this nature and society’s concern that domestic violence be stopped, by mandating that assaults of this nature are to be deemed an aggravating factor that must be considered by a court when imposing a fit and appropriate sentence: s. 718.2. [ 38 ] W.E.S. does not display genuine remorse for his actions, other than to say he believes he scared his wife and son during the incident on April 17, 2016 and that he was behaving erratically because of extreme anxiety.

It is my impression that he still minimizes both what he did and the consequences of his actions upon those closest to him. [ 39 ] Based on the evidence and the reports, I find that W.E.S., and his mother, explain his aggressive and violent behaviour by blaming it on W.E.S.’ anxiety. Many people in society suffer from anxiety but do not act out in such an aggressive or violent manner. Explaining away or minimizing this conduct only enables W.E.S.' behaviour and does not assist him in the long term. [ 40 ] Furthermore, during the trial, W.E.S. denied certain events, which is of concern to the court.

He denied going outside the front door of the house and trying to drag T.G. inside. Instead, he initially testified that he was trying to “coax” her back inside so that the neighbours wouldn’t hear them fighting, and then testified that he never went outside the front door at all but left through the back door. I expect the latter is true, but only after the police were called and he, essentially, fled before the police arrived. These are just some examples of how W.E.S. minimizes his own actions. Mitigating Factors: [ 41 ] It is a mitigating factor that W.E.S. is in a stable relationship with Ms.

N and is taking his medication as prescribed - on a daily basis. It is also a mitigating factor that W.E.S. has not consumed alcohol and that he is in a relationship with someone who has zero tolerance for alcohol. [ 42 ] The only other mitigating factor here is that W.E.S. may suffer from reduced cognitive ability and his inability to control his anger and actions may, in part, be related to a brain injury. Discussion : [ 43 ] W.E.S. has been given two previous opportunities in the criminal justice system to learn how to control his anger and stop hurting others in his family.

He clearly hasn’t learned from his prior experiences and, in particular, from his conviction in April, 2014. [ 44 ] He has now been convicted of assault causing bodily harm and assault arising from events which occurred only two years later. It appears to me that his behaviour since 2014 was in fact escalating. I refer to the evidence of the independent witnesses - Mr. and Mrs.

S - who described that during the incident on April 17, 2016 W.E.S. had T.G. by the front of her shirt and was attempting to forcibly drag her back into the house through their front door after she had fled. [ 45 ] Furthermore, during the same incident he picked up a knife and used it in a threatening manner and clearly intended to intimidate T.G. into submission. [ 46 ] In all the circumstances, deterring W.E.S. and others who are inclined to deal with conflict in this unacceptable and harmful manner and expressing the community’s denunciation of his actions must be given primary emphasis. [ 47 ] I accept that a conditional sentence order can accomplish denunciation and deterrence.

This is a jail sentence served in the community and should include conditions that are punitive in a nature and that are a restriction on a person’s liberty. Furthermore, unlike probation, if a person fails to comply with the conditions, he can be brought back before the court and may well be required to serve the remainder of the conditional sentence order in jail. [ 48 ] Conditional sentence orders as a sentencing option were introduced in 1996. In 2000, the Supreme Court of Canada set out the principles that should guide judges in assessing whether this type of sentence is appropriate: R . v.

Proulx , [2000] 1 S.C.R. 525 . [ 49 ] It is important to consider the reason for the introduction of conditional sentence orders: “…in Proulx the Supreme Court recognized that, through the enactment of the conditional sentence provisions, “Parliament has sent a clear message to all Canadian judges that too many people are being sent to prison” and that this problem must be remedied.

In sending this message to the courts, Parliament was influenced by many reports in regard to over-incarceration, and “mandated that expanded use be made of restorative principles in sentencing as a result of the general failure of incarceration to rehabilitate offenders and reintegrate them into society”. Sentencing : Clayton C. Ruby, Eighth Edition, para.15.2. [ 50 ] Imposing this type of sentence in a domestic violence case is problematic in that an offender would potentially be allowed to serve a sentence in the very home in which the offence was committed.

In addition, although it may not be the same home as the original offence, the fact is domestic violence most frequently occurs in the home environment. [ 51 ] However, sentencing is such an individualized exercise; the fact that an offence involved domestic violence should not preclude this type of sentence in the right circumstances. [ 52 ] There are certain offences in which Parliament has mandated that a conditional sentence order sentence is expressly excluded.

A conditional sentence order for a domestic violence offence such as assault causing bodily harm is not available if the Crown proceeds by indictment which would reflect the severity of the assault. Here, Crown proceeded summarily and a conditional sentence order is

available. [ 53 ] W.E.S. has never received a jail sentence. His last sentence was probation with a suspended sentence. I am of the view that a more significant sentence is required in all the circumstances, including the fact that his behaviour appears to be escalating.

In determining whether a conditional sentence order as opposed to jail would be appropriate, I must consider whether a custodial sentence would be imposed and secondly, if so, if a conditional sentence order would be appropriate. [ 54 ] The latter involves an assessment of the risk to the community if a sentence is served in a non-custodial setting.

I must assess, in this case, the risk that W.E.S., while bound by the conditions of a conditional sentence order and under supervision, will reoffend and, if so, the degree of harm that is likely to occur. [ 55 ] But for the ability to impose a conditional sentence, I would have sentenced W.E.S. to a period of time in jail. [ 56 ] In assessing the potential risk to the community - and that includes risk of harm to his fiancé and her two young children - if W.E.S. served his sentence in the community, I take into account the fact that W.E.S. has had no further involvement with the police or the law since March, 2016 - almost two years. [ 57 ] I also consider the fact that he is now in a stable relationship, is taking his medication as prescribed, is not drinking and for all those reasons appears to be in a much better emotional condition. [ 58 ] I have concluded that a conditional sentence order, with appropriate conditions, can be imposed that will satisfy the objectives of sentencing that apply and that the safety of the community, in particular, the safety of women and children in his home, would not be endangered. [ 59 ] His rehabilitation is also important and will be supported by imposing certain conditions while he is serving a conditional sentence as well as a follow up period of probation.

He will be given opportunity to learn from these events and, most importantly, to take responsibility for himself and his actions. By that, I mean that he is the only one who can decide to change his behaviour. He will have help learning how to do that, but he must be an active and willing partner with those who are trying to assist him. Conclusion: [ 60 ] On Count 1 (assault causing bodily harm) W.E.S. will serve a conditional sentence order for a period of three months. On Count 2 and 3, he will serve a conditional sentence for a period of two months, to be served concurrently.

The sentence on Count 1 will be consecutive to Counts 2 and 3 for a total period of five months. [ 61 ] Both will include the statutory conditions. This first conditional sentence order on Count 1 will include a condition of house arrest. The conditional sentence order on Counts 2 and 3 will include a curfew condition. There will be exceptions to allow him to maintain employment, attend medical treatment, forensic assessments or for other compelling personal reasons.

There will also be a condition that he abstains from alcohol and illicit drugs. [ 62 ] This will be followed by a period of probation for two years which will include similar conditions without the house arrest and curfew condition.

It will include counselling and assessment provisions. [ 63 ] Both the conditional sentence orders and probation will include conditions to have no contact with T.G. or S.S. (1) except in accordance with a family court order. [ 64 ] There will be an order that W.E.S. provide a sample of DNA and, pursuant to s. 110 of the Criminal Code , an extended weapons prohibition for a period of five years. BY THE COURT: ________________________________ Honourable Judge Flewelling