R. v. Geraghty, 2019 BCPC 202

Citation: R. v. Geraghty 2019 BCPC 202 Date: 20190611 File Nos: 41469-1-K, 41469-2 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KIERON MICHAEL GERAGHTY ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE CROCKETT Counsel for the Crown: J. Petty Counsel for the Defendant: D. Marion, Q.C. Place of Hearing: Campbell River , B.C. Dates of Hearing: December 5, 6, 7, 2018, January 31, February 14 and May 9, 2019 Date of Judgment: June 11, 2019 [ 1 ] THE COURT: These are my reasons for sentence. Mr. Geraghty pleaded guilty on February 14th, 2019, to mischief, uttering threats to Mr.

Jones, assaulting Mr. Jones, and assaulting Mr. Jones and causing bodily harm to him. All of these offences took place on Cortes Island, British Columbia, on March 28th, 2019. His guilty pleas came after I heard evidence on a voir dire in which he alleged abuse of process and sought a judicial stay of proceedings. I found there was not an abuse of process. [ 2 ] I will summarize the facts underlining the pleas of guilty. Mr. Geraghty was in a 28-year relationship with Ms. Janet Gazdik. He is currently 46 years old. At the time of the offences, they were living together as a family with their children.

Shortly before the offences before the court, unbeknownst to Mr. Geraghty, Mr. Jonathan Jones and Ms. Gazdik entered into a romantic relationship. On March 27th, 2017, Mr. Geraghty was suspicious that Ms. Gazdik was having an affair. He asked her to speak with him in their car that

evening, which she did. He confronted her about the affair and she denied it. They argued. [ 3 ] Ms. Gazdik left the car and, later that evening, made her way to where Mr. Jones was living. [ 4 ] Mr. Jones is a builder. He was living in a house he was working on. Ms. Gazdik and Mr. Jones spent the evening together at that house and then fell asleep together in bed. [ 5 ] In the early morning hours of March 28th, sometime after midnight, Mr. Geraghty arrived at the house. He called out to the occupants. Ms. Gazdik heard him and called back to him. Mr. Geraghty arrived in the room in which Mr. Jones and Ms.

Gazdik were, up until Mr. Geraghty arrived, sleeping. Ms. Gazdik grabbed her clothing and fled. [ 6 ] Mr. Geraghty focused his attention on Mr. Jones. He straddled Mr. Jones overtop of the bed and punched him in the face. Mr. Jones tried to cover his face to ward off the blows. Mr. Jones' bone under his right eyeball was broken as a result of the punches. Mr. Jones estimates he was struck at least 20 times. Mr. Geraghty also broke Mr. Jones' laptop with a hammer. Mr. Jones got some clothing on and followed Mr. Geraghty downstairs. Mr. Jones, due to the punching, was off-balance and Mr.

Geraghty was, in effect, directing Mr. Jones' movements. Mr. Geraghty also shoved Mr. Jones into a pile of wood in the kitchen. Mr. Jones' elbow, shoulder, forehead, and hip came into contact with the wood. [ 7 ] Mr. Geraghty damaged various items in the house with the hammer including stairs, the hot water tank, the glass top stove, a mitre saw, and some other tools belonging to Mr. Jones. I understand Mr. Geraghty paid to repair or replace the items he damaged that belonged to the homeowners. Mr. Geraghty did not compensate Mr. Jones for the damage to his tools or laptop.

The plea of guilty to mischief is in relation to the damage to Mr. Jones' belongings, and I include the stairs since Mr. Jones said he had to repair them at his own expense. [ 8 ] At one point, Mr. Geraghty uttered a threat to kill Mr. Jones if he told the police about what he had done. [ 9 ] Charlotte Walker, a neighbour, came to Mr. Jones' property. At that point, Mr. Geraghty and Mr. Jones were outside. She described what she saw as pushing and shoving, but more yelling than physical activity. She observed a hammer in Mr. Geraghty's hand. Mr. Geraghty was yelling for Janet. Ms. Walker told Mr.

Geraghty to put the hammer down, which he did. She asked Mr. Jones to walk with her to her house. She described Mr. Jones as really out of it and she had to somewhat support him while he walked. [ 10 ] Mr. Jones walked with Ms. Walker to her house. When they were in the driveway of Ms. Walker's house, Mr. Geraghty drove up, exited his vehicle, and pushed Mr. Jones into a pile of logs. Ms. Walker observed Mr. Geraghty punch and kick Mr. Jones. She said Mr. Geraghty delivered at least 12 blows to Mr. Jones. Mr. Jones became unconscious and Mr. Geraghty stopped hitting him. Mr. Geraghty told Ms.

Walker he would kill her and Mr. Jones if they called the police. He then left in his vehicle. Once Mr. Jones returned to consciousness, he and Ms. Walker left the area in her vehicle and phoned the police. [ 11 ] As a result of the assault by Mr. Geraghty, Mr. Jones suffered a broken bone under his eye, a broken front tooth, head trauma, a sore shoulder and elbow. He required medical and dental care. His recovery time took around two months. Since he was self-employed, he had to hire someone to carry on his work at the house, so this came out of his profit.

He continues to have headaches and experiences pain in the back of his head if he lifts heavy objects or digs with objects such as a pickaxe. [ 12 ] Mr. Jones provided further information to the presentence report writer that he suffers fear of Mr. Geraghty as well as nightmares, anxiety, and being mistrustful of people. I accept that Mr. Jones fears Mr. Geraghty despite the fact I heard evidence of what sounded like drunken phone messages and texts delivered to Mr. Geraghty by Mr. Jones.

Phone messages and texts of the sort provided in evidence do not preclude what I accept is a legitimate fear of physical confrontation with Mr. Geraghty. [ 13 ] The presentence report also provides information about Mr. Geraghty's background and current situation. He had an unremarkable upbringing and has no other criminal convictions. His relationship with Ms. Gazdik has ended. He splits his time between Campbell River where his children go to school and Cortes Island where he works. He is in a new relationship.

He is in good physical and mental health. [ 14 ] Under "Attitude and Understanding Regarding the Offence," the presentence report reads in part as follows: Mr. Geraghty admits responsibility for his actions. He states he caught his wife in bed with Mr. Jones and got into a fight. He offers little insight into his behaviour. Mr. Geraghty expresses regret for his actions due to the impact on himself and his kids. He does not display remorse for the impact of his actions on the victim. [ 15 ] In court, Mr. Geraghty said he did have remorse and regret for his actions against Mr.

Jones, but more so for his own family. [ 16 ] The Crown seeks a jail sentence in the range of one to three months followed by 12 to 18 months' probation with protective conditions and terms to address rehabilitation and safety of the public, plus a s. 109 firearms prohibition for 10 years and a DNA order. [ 17 ] Mr. Geraghty seeks a conditional discharge pursuant to s. 720 of the Criminal Code . Mr. Marion submitted that this offence should be viewed in its context. Mr. Geraghty became upset and enraged when confronted with the infidelity of his wife.

He submits that, while this is not an excuse, it does provide an explanation for his reaction. He submits there is no ongoing requirement to protect the public since this was a unique and specific set of circumstances that led to violence. He makes a similar submission with respect to specific and general deterrence. [ 18 ] Mr. Geraghty has submitted letters of support and he is an otherwise law-abiding and productive member of society. He has provided cases where individuals convicted of violent offences were granted discharges: R. v. Tone , 2003 BCSC 880 ; R. v. Ranspot , 2017 BCPC 101 ; R. v.

Miller , 2015 BCSC 1052 . Mr. Geraghty has no criminal record. He has received an absolute discharge in the past for possession of a marihuana plant.

[19] In determining a fit sentence, I must be guided by the purposes and principles of sentence contained in sections 718 to 718.2 ofthe Criminal Code.

Section 718 reads as follows: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for thelaw 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. [20] I am also mindful of the language in s. 730 of the Criminal Code with respect to the prerequisites for a discharge. The B.C.Court of Appeal in R. v. Fallofield, (BC CA), [1973] B.C.J. No. 559, provides instruction to judges on how to apply s.730, which was formerly s. 662.1, at paragraph 21 of that decision: From this review of the authorities and my own view of the meaning of s. 662.1, I draw the following conclusions, subject, of course, towhat I have said above as to the exercise of discretion.

(1) The

section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law orthe offence is punishable by imprisonment for 14 years or for life or by death.

(2) The

section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivialviolation.

(3) Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the bestinterests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused,that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the nextconsideration into operation.

(4) The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest.

(5) Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that itis not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of aconviction against him may have significant adverse repercussions.

(6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does notpreclude the judicious use of the discharge provisions.

(7) The powers given by s. 662.1 should not be exercised as an alternative to probation or suspended sentence.

(8) Section 662.1 should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in theapplication of the discharge provisions. This lack will be more apparent than real and will stem from the differences in the circumstancesof cases. [21] There is not a lot of case law which interprets how to apply the second prerequisite: that a discharge would not be contrary tothe public interest. One case that does address this is R. v. Atleo, 2014 BCPC 15. In that case, the Honourable Judge Gouge consideredwhat is meant by the public interest with reference to discharges.

He summarized at paragraph 35 of his judgment: As noted in Fallofield, the public interest most commonly mentioned in relation to the grant or refusal of a discharge is the publicinterest in the denunciation and deterrence of crime. However, Fallofield cautions against giving undue weight to denunciation anddeterrence. I find in that brief remark an appealing solution to the uncertainty created by the existing jurisprudence.

It seems to mereasonable to conclude that the factors which Parliament intended judges to consider in determining whether a discharge would not becontrary to the public interest must be those identified as the objectives of sentencing in sections 718 [and the following] of the CriminalCode. Put another way, it seems to me that, in any individual case, a discharge would not be contrary to the public interest unless itwould materially inhibit the achievement of one or more of those objectives.

Only in that way can a judge adjudicate the question byreference to the public interest as defined by Parliament. [22] Judge Gouge further quoted from the Alberta Court of Appeal in R. v. MacFarlane on relevant factors to consider whengranting or refusing a discharge: I am also assisted by the following guidance from the Alberta Court of Appeal in R v.

MacFarlane [1976] AJ #429; @ paragraphs 14 -20: In consideration of the exercise of the discretion to grant an absolute or conditional Discharge, we emphasize that it is quite impossible tolay down rules which would cover the myriad of situations which may appear before a Judge confronted with the task of appropriatesentence in any given case. We are of the opinion, however, that the following are some of the relevant factors which must be consideredin every case.

Firstly, there is the nature of the offence. While it is to be borne in mind that the

Section may be used in respect of any offence other than one for which a minimum punishment is prescribed by law or the offence is punishable by imprisonment for 14 years or for life, or by death, one must nevertheless be concerned with the seriousness of the offence, and it would seem appropriate that the more serious the offence, the less frequent would be the use of a Discharge in sentencing. It would, for instance, be a most exceptional case where a crime involving violence would be dealt with by an order of Discharge.

Secondly, one has to consider the prevalence of the particular offence as it may exist in the community from time to time. Thirdly, one must consider whether an Accused stood to make some personal gain at the expense of others, as distinct from some activity which might be in the nature of a prank or in respect of which his motives were other than self-interest. Fourthly, where the offence is relating to property, as here [I am not referring to this case, but referring to the MacFarlane case], the value of the property destroyed or stolen must be relevant.

The theft of a ball-point pen would not ordinarily be regarded as seriously as the theft of a colour television set. Fifthly, we think that it is relevant to consider whether the crime was committed as a matter of impulse, and in the face of unexpected opportunity, or whether it was calculated.

Sixthly, we think it relevant to consider whether the circumstance that an Accused has committed the offence is something which should be a matter of record so that members of the public may have the opportunity of being aware of the fact that that Accused had committed the offence in question. [ 23 ] The first prerequisite to a discharge, that it must be in the best interests of the accused, is normally quite easily met. I accept the submissions that a criminal record could affect Mr. Geraghty's work, travel, and volunteering in relation to his children's activities.

Despite my concerns about specific deterrence in this case, which I will come to later in these reasons, I find that it would be in Mr. Geraghty's best interest to be discharged. [ 24 ] The second prerequisite, that it is not contrary to the public interest, is a higher hurdle for Mr. Geraghty. While I expect that Mr. Geraghty became enraged within the context of infidelity, seeing his wife in bed with Mr. Jones, this is not a case where he was confronted with such a scenario out of the blue. He and Ms. Gazdik had discussed the infidelity earlier that evening. Mr. Geraghty then sought out Ms. Gazdik.

He entered the home of Mr. Jones uninvited in the early hours of the morning while Ms. Gazdik and Mr. Jones were sleeping. He then called out and advanced through the house up the stairs to where they were in bed. When he arrived, Ms. Gazdik grabbed her clothes, ran away, and hid from Mr. Geraghty. It was clear from her evidence that she was fearful of him at that moment. [ 25 ] Mr. Geraghty then attacked Mr. Jones. There was no mutuality to this altercation except to the extent Mr. Jones tried to protect himself from the blows by Mr. Geraghty. Ms. Gazdik said she did not see injuries on Mr.

Geraghty as a result of this altercation, nor has he complained of any. This was a brutal, violent attack on an unsuspecting person. Mr. Geraghty then effectively assumed control over Mr. Jones' motions in the house. He threatened to kill him. He damaged his belongings. He pushed him down into a pile of wood. [ 26 ] Mr. Jones left his home in the company of Ms. Walker to get away from Mr. Geraghty. Mr. Geraghty then pursued him and beat him again, this time to the point of unconsciousness and again threatened to kill him if he told the police. [ 27 ] Mr. Geraghty set out that night to find his wife.

This was not a fleeting response to an unexpected scenario. In addition, Mr. Geraghty was so intent in his pursuit of violence that he was not deterred by the presence of Ms. Gazdik or Ms. Walker. [ 28 ] To suggest that Mr. Geraghty does not need to be deterred from future violence is absurd. I emphasize again that this was not a fleeting moment of heightened emotion that resulted in a brief assault. He pursued the victim of his violence not once, but twice, and was not deterred from entering the victim's home or from assaulting him in front of other people, and he threatened to kill Mr.

Jones if he told the police. [ 29 ] Further, Mr. Geraghty has expressed only the most minimal remorse for Mr. Jones in his statement to this court. Rather, he is remorseful for the impact on himself and his family. Mr. Geraghty is precisely the type of person who needs to be specifically deterred from this type of violent behaviour. [ 30 ] I pause here to say that I was surprised by the contents of the letter of support from Ms. Kendall Foster, Mr. Geraghty's current partner. In it, she said, and I quote: The situation in question precipitated his separation from his partner of 27 years. Keiron [referring to Mr.

Geraghty] is not a violent person. Neither am I and I couldn't be sure that I wouldn't do the same thing if placed in the same set of circumstances. I think most people, if they took an honest look at themselves, would agree. I know Kieron regrets his actions and will never be in any kind of situation like this again. [ 31 ] I do not accept that Mr. Geraghty is not a violent person. I do not accept that most people would act in the way Mr. Geraghty did. Nor is it possible to say that he will not be in the situation again or that he would not behave in the same way if he were. From what I have heard from Mr.

Geraghty, in particular his lack of remorse and insight into his behaviour, I do have concern that if faced with the same situation Mr. Geraghty would behave in precisely the same manner. That is why specific deterrence is such an important principle in this case. [ 32 ] The attitude presented in Ms. Foster's letter, and Mr. Geraghty's lack of remorse, and the submissions of the defence in general, overlook the fact that Ms. Gazdik and Mr. Jones were autonomous consenting adults exercising their free will to engage in a relationship with each other. Jealousy and anger are understandable.

Seeking out one's spouse at her lover's home and beating that man in this protracted and brutal manner are not acceptable actions in a civilized society. [ 33 ] In particular, doing so in front of Ms. Gazdik was an attempt to communicate an additional message, "If you choose to exercise

your will to have a relationship with someone other than me, there will be serious repercussions. I will hurt the person you care about. I will damage their property and threaten them with death." This is an attempt not only to deter and inflict harm on Mr. Jones, but also to control Ms. Gazdik. [ 34 ] Such attitudes and actions must be deterred not only in Mr. Geraghty but in the general public. If people believe they are justified in taking similar action in similar situations, this court must send a message that they are wrong and can expect the court to impose a sentence that will reflect that message.

This court must denounce Mr. Geraghty's violence, the harm done to Mr. Jones and Ms. Gazdik, and the attitude that led to his conduct. [ 35 ] I have discussed denunciation and deterrence which are the primary principles to apply in offences of this nature, but other sentencing principles are also applicable here, notably, promoting a sense of responsibility in Mr. Geraghty and acknowledgment of the harm done to Mr. Jones in particular. I am not convinced that anything I say will change Mr. Geraghty's attitude to this offence. However, this court has an obligation to sentence a person with that objective in mind.

Similarly, rehabilitation should form a part of the consideration of a fit sentence. [ 36 ] If it is not abundantly obvious at this point, I find that it would be contrary to the public interest to grant a discharge in this case. The principles of sentence together, but particularly specific and general deterrence, require a more significant sentence. As well, this is the type of offence which should be part of Mr. Geraghty's permanent criminal record to make others aware of his violent acts. [ 37 ] I next turn to what would be an appropriate sentence in this case.

I have determined that jail would be appropriate in all the circumstances despite his lack of record. Nothing short of jail will address, in particular, denunciation and specific and general deterrence. [ 38 ] I have also turned my mind to whether a conditional sentence would be appropriate in this case. The conditional sentence regime is set out in s. 742.1 of the Criminal Code . Under this section, the court may order that an accused who is sentenced to a term of imprisonment serve that sentence in the community.

There are four conditions that must be present before a conditional sentence can be imposed: 1. the offence must not be punishable by a minimum term of imprisonment; 2. the sentence of imprisonment imposed must be less than two years; 3. the court must be satisfied that serving the sentence in the community would not endanger the safety of the community; and 4. the court must be satisfied that serving the sentence in the community would be consistent with the fundamental purpose and principles of sentencing. [ 39 ] I can say that this has been a close call. However, I accept that given Mr.

Geraghty has no prior criminal record and has not committed any offences of violence, nor to my knowledge any other offences including breaches of his bail, since the offence before the court, he will not at present endanger the community if he were to serve his sentence in the community. As well, a carefully crafted conditional sentence will be consistent with the purpose and principles of sentence which I have outlined in some detail. [ 40 ] A conditional sentence is a jail sentence in the community. While I appreciate that a curfew will present some challenges for Mr.

Geraghty given that he splits his time between two homes in Campbell River and Cortes Island, those challenges are not insurmountable. A strict curfew is required in order to meet the principles of denunciation and deterrence, in particular. [ 41 ] The Crown sought a one to three-month jail sentence. Our courts have accepted that a conditional sentence in the community may be longer than would otherwise be an appropriate jail sentence. Accordingly, on Count 4, assault causing bodily harm, I impose a conditional sentence of five months.

On each of Counts 2, which was amended to be a count of mischief, Count 3, uttering threats, and Count 5, assault pursuant to s. 266 of the Criminal Code , on all of those counts, I impose a conditional sentence of one month concurrent on the same terms. [ 42 ] The five-month conditional sentence will be followed by 12 months of probation and the terms of the conditional sentence will be as follows. [ 43 ] I am going to read out the terms of the conditional sentence. When I read out those terms, I also read out numbers like 3001.

Those numbers are so the clerk here can find the paragraph in her computer because she drafts the order while I am saying it. I do tend to read quickly and I know I have given you a lot of information to absorb, but someone else will go over the terms with you before you go and you will get a copy of the order. You will get a copy of the conditional sentence and the probation order to follow. [ 44 ] So starting with 3001: You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or your conditional sentence supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change of employment or occupation.

You must remain in British Columbia unless you have prior written permission from the court or your conditional sentence supervisor to leave the province. [ 45 ] 3002: You must have no contact or communication, directly or indirectly, with Jonathan Arthur Jones. [ 46 ] 3005: You must not go to or be within 50 metres of any residence, school, or workplace of Jonathan Arthur Jones. [ 47 ] Now, could you report -- I know that sometimes you spend some of your time here and some in Cortes. Normally, I would have somebody report by 3 p.m. today, but the documents will not be ready by then.

Would you be able to report by 3 p.m. tomorrow to the conditional sentence supervisor? [ 48 ] THE ACCUSED: I believe that -- yes.

[ 49 ] THE COURT: You could? Okay, because that is in Campbell River. [ 50 ] THE ACCUSED: Okay. I can -- I was going to go back to Cortes, but I can stay in Campbell River for the night. It is not a problem. [ 51 ] THE COURT: Okay. All right, and if the paperwork gets done and you can report today, I think they close at 4:30, probably. [ 52 ] MR. MARION: Four, I think, Your Honour. [ 53 ] THE COURT: Four o'clock. [ 54 ] MR.

MARION: Yes. [ 55 ] THE COURT: If you can get there by 4, you can report today. [ 56 ] THE ACCUSED: Okay. [ 57 ] THE COURT: Okay, but I am going to give you until tomorrow in case the paperwork is not done.

I do not want you to be in breach by not making it there -- [ 58 ] THE ACCUSED: Okay. [ 59 ] THE COURT: -- today, okay? [ 60 ] So, 3101: You must report in person to the conditional sentence supervisor, that is in Campbell River, British Columbia, the address will be provided to the order, by three o'clock p.m. tomorrow, that is June 12th, 2019, and after that, you must report as directed by the conditional sentence supervisor. [ 61 ] Okay, 3201: This is a modification, Madam Clerk, okay, and I would ask counsel to listen carefully to the wording of this.

It is a residence condition because I have tried to cover off the Cortes/Campbell River issue. [ 62 ] When first reporting to the conditional sentence supervisor, you must inform him or her of your phone number and your residential addresses in Campbell River and Cortes Island and the evenings on which you will be staying at each residence for each day of the week. If you intend to deviate from the residency

schedule you provide to your supervisor, you must provide him or her with at least 72 hours' written notice of any change of residence. [ 63 ] Any difficulty with that language? [ 64 ] MR. MARION: No. [ 65 ] THE COURT: Do you want to talk to your client for a minute? [ 66 ] MR. PETTY: Sounds clear. [ 67 ] THE COURT: No? Okay.

So the idea being you give your schedule, whatever it is -- [ 68 ] THE ACCUSED: Okay. [ 69 ] THE COURT: -- to your conditional sentence supervisor and, if for some reason that is going to change -- [ 70 ] THE ACCUSED: Right. [ 71 ] THE COURT: -- your normal schedule, you have to give them 72 hours' notice. [ 72 ] THE ACCUSED: Okay. [ 73 ] THE COURT: Okay, because the reason for that is I am going to impose a curfew, which I am going to get to in a minute, and the police will come banging on your door during the curfew and if they do not find you at the place you are supposed to be, you will be in breach -- could be found in breach of the order. [ 74 ] THE ACCUSED: Okay. [ 75 ] THE COURT: Okay? [ 76 ] THE ACCUSED: Yes. [ 77 ] THE COURT: So that is why it is really important that your supervisor knows where you are going to be each night. [ 78 ] THE ACCUSED: Okay. [ 79 ] THE COURT: Okay?

Make sense? [ 80 ] THE ACCUSED: Yes. [ 81 ] THE COURT: All right.

[ 82 ] So, 3209: For the duration of this order, you must remain inside of your residence between the hours of 9 p.m. and 6 a.m. each day. You must present yourself immediately at the door to your residence or answer the phone when any peace officer or conditional sentence supervisor attends at your residence or calls to check your compliance with the curfew condition of this order. [ 83 ] You may be away from your residence during the curfew hours with the written permission of your conditional sentence supervisor. Such permission is to be given only for compelling reasons.

You must carry the written permission when you are outside your residence during the curfew hours. You may also be away from your residence during the curfew hours: (

a) while in the course of your employment or when travelling directly to or returning directly from your place of employment; if requested, you must provide your conditional sentence supervisor with details of your employment, including location and hours of work; (

b) in the event of a medical emergency and then only while at a healthcare facility or when travelling directly to or returning directly from the facility; if requested, you must provide your conditional sentence supervisor with written confirmation that you went to the facility, signed by a representative of the healthcare facility to which you went. [ 84 ] Now, are there any other exceptions that we should address at this point, Mr. Marion, for the curfew? It is 9 p.m. to 6 a.m. [ 85 ] MR. MARION: I do not think so, Your Honour. [ 86 ] THE COURT: Okay.

All right. [ 87 ] Next, 3401: Now, these next two terms that I am going to impose, they are related to alcohol consumption and going to bars.

The reason for these is because, as I said, a conditional sentence is a jail sentence in the community and when you are in jail, you are not allowed to drink. [ 88 ] THE ACCUSED: Right. [ 89 ] THE COURT: I appreciate that there is not evidence here of alcohol consumption that led to these offences, but that is the reason for this alcohol term and I can say that I will not put this term on your probation order, but as part of your conditional sentence because you are in jail. [ 90 ] THE ACCUSED: Okay. [ 91 ] THE COURT: Okay? All right.

So which will raise a question which you can think about when I get to the end of this condition about I know the type of work that you do. I do not know if it would involve at any time having to be in a bar.

So I will let you think about that while I read these conditions. [ 92 ] So, 3401: You must not possess or consume alcohol, drugs, or any other intoxicating substance except in accordance with a medical prescription. [ 93 ] 3403: You must not enter any liquor store, beer and wine store, bar, pub, lounge, nightclub, beer garden, or any other business from which minors are prohibited at any time by the terms of a liquor licence. [ 94 ] So all of those things that I have read out, I do not know if you would be doing any kind of work in one of those types of establishments. [ 95 ] THE ACCUSED: I tend to -- like I just did -- went to work at that Velocity Lounge, stonework, so it could come up, I am just not sure, but it is rare. [ 96 ] THE COURT: Okay.

Well, then, perhaps what I will do is you may enter any -- I am going to add to that term, Madam Clerk, you may enter any such establishment if it is for the purposes of your work. If you are required to work in any such establishment, you must provide the details of that work to your conditional sentence supervisor. [ 97 ] THE ACCUSED: Right. [ 98 ] THE COURT: Okay? Does that make sense? [ 99 ] THE ACCUSED: Yes, and the only other thing which I think not -- I could change it, but I have -- I do sound, but that I would not be out after the curfew, anyways, so I do not think -- but there is a couple things I have.

Like on Canada Day I was supposed to do sound for a show for somebody from noon until 3 and that is in a bar. So would that -- [ 100 ] THE COURT: Sound, meaning like -- [ 101 ] THE ACCUSED: For -- [ 102 ] THE COURT: -- is that work or is that -- [ 103 ] THE ACCUSED: Yes. [ 104 ] THE COURT: -- volunteer work? [ 105 ] THE ACCUSED: Paid work. [ 106 ] THE COURT: That is paid work.

[ 107 ] THE ACCUSED: It is paid work, but it is something I could change. It is kind of something I do on the side. [ 108 ] THE COURT: Okay, well, if that is work, then that is something you should be able to discuss with your conditional sentence supervisor -- [ 109 ] THE ACCUSED: Right, okay. [ 110 ] THE COURT: -- and they should give you an exception for that. If they do not, you could also come and make an application to court -- [ 111 ] THE ACCUSED: Okay. [ 112 ] THE COURT: -- and ask for an exception for that, as well. [ 113 ] THE ACCUSED: Okay. [ 114 ] THE COURT: That is a bit of a cumbersome way to do it.

I am hopeful that the conditional sentence supervisor would permit that and that is why I have said that -- the condition as it is worded says you can do that, but you need to provide details of that work to the -- [ 115 ] THE ACCUSED: Okay. [ 116 ] THE COURT: -- conditional sentence supervisor. [ 117 ] THE ACCUSED: Right. [ 118 ] THE COURT: Okay? [ 119 ] THE ACCUSED: Yes. [ 120 ] THE COURT: Make sense? [ 121 ] THE ACCUSED: Yes. [ 122 ] THE COURT: I mean, you know what it is directed at. [ 123 ] THE ACCUSED: I understand it, yes. [ 124 ] THE COURT: You are not supposed to be drinking, right -- [ 125 ] THE ACCUSED: Yes. [ 126 ] THE COURT: -- or be in there drinking.

Okay. All right. So any other concerns about that before I move on from that -- [ 127 ] MR. MARION: No, Your Honour. [ 128 ] THE COURT: -- area? [ 129 ] MR. MARION: No. [ 130 ] THE COURT: No? Okay. All right. [ 131 ] So the final term before I ask if there is any further terms that counsel want to address and this is on the conditional sentence, is 3501: You must attend, participate in, and successfully complete any intake, assessment, counselling, or program as directed by the conditional sentence supervisor. So you can expect they will be directing you.

It may be things like anger management, things like that, but I leave it open to them to determine what that counselling may be. [ 132 ] THE ACCUSED: Okay. [ 133 ] THE COURT: Okay. So, before I move on to the probation order, are there any other terms from the Crown's perspective that you sought or that you believe need clarification, Mr. Marion? [ 134 ] MR. MARION: I am just thinking, Your Honour, about the last term. Anger management seems appropriate, but oftentimes they slide in the Respectful Relationships. One, it is at night, and two, there is no indication that there was violence to her.

Might Your Honour consider restricting it to anger management so he does not end up with a nighttime course that could be in violation of his curfew, in any event. I just see them sliding towards Respectful Relationships. That seems to be the sort of the default program they rely on and I am not sure that that is completely appropriate here. Anger management may be, but it was not really directed at her in the relationship, it was directed at him. So that is my thought. [ 135 ] THE COURT: Okay. Mr. Petty, I know this was not your file. [ 136 ] MR.

PETTY: No, but just given the court's findings, I think the court has made it clear that this was an incident that also engaged directed violence in a sense towards the female complainant, as well, and it is obviously spousal violence in the sense that -- the circumstance and the context in which this incident arose, and so if the supervising conditional sentence supervisor or probation officer sees fit to direct this gentleman to Respectful Relationships, in the Crown's respectful submission, that would be in the public interest and

that supervisor is best situated to make that assessment and then that direction. So I would prefer that the condition be a broader one than my friend seeks. [ 137 ] THE COURT: I have to say that does accord with my view, as well, given the reasons that I have given. [ 138 ] MR. MARION: Mm-hmm. [ 139 ] THE COURT: I am very mindful that there was an original charge with respect to Ms. Gazdik and that that has been stayed and he has not been sentenced on that, but as I indicated in my reasons, there is an element here of control of Ms. Gazdik in the violence that he committed against Mr.

Jones and so it may be that that type of counselling is appropriate, but I am not -- what I am going to do is I am not going to specifically order anger management. I am not going to specifically order spousal abuse prevention. I am going to leave that at the discretion of the conditional sentence supervisor -- [ 140 ] MR. MARION: Very good. [ 141 ] THE COURT: -- and they can have those conversations. All right. So, other than that, I am just going to move on to the probation order next? [ 142 ] MR. PETTY: Was there a no-weapons condition, Your Honour?

Sorry. [ 143 ] THE COURT: You know what, I did not have that on there and it absolutely should be on there. So I will put that on there. [ 144 ] Okay, this is 3610: You must not possess, either personally or through another person, any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, or explosive substance, anything that resembles a weapon or firearm, any weapon as defined in s. 2 of the Criminal Code , or any related authorizations, licences, or registration certificates. [ 145 ] Okay.

So now dealing with the probation order, that is going to be for 12 months, and rather than repeating a whole lot of those terms over again, it is going to have the same terms, but it will not have terms, Madam Clerk, of a curfew. So there will be no curfew on the probation order. There will also be no term relating to alcohol or attendance at bars, pubs, etc.

Those terms will be deleted in their entirety for the probation order. [ 146 ] Otherwise, all the terms will remain the same and I will add to the probation order, okay, this is 2104, Madam Clerk. [ 147 ] THE CLERK: Yes. [ 148 ] THE COURT: You must report in person to a probation officer in Campbell River, British Columbia, the address will be provided in the order, within two business days after the completion of your conditional sentence order unless you have obtained, prior to the completion of your conditional sentence order, written permission from the probation officer to report elsewhere or within a different timeframe.

After that, you must report as directed by the probation officer. [ 149 ] As well, I am going to deal with the issue of restitution and this is 2514, Madam Clerk. All right. Mr. Jones spoke to the presentence report writer about the financial loss as a result of damage to his laptop, his tools, and his building materials. He also lost time from work and had to pay someone else to do some of that work. He had dental bills in the amount of $2,000, he said. He estimated his total cost as a result of this incident was $13,000, but unfortunately, he did not provide documentation to support the losses. Mr.

Geraghty has offered through counsel that he would agree to replace the laptop which he estimates would be a value of $2,000. [ 150 ] It is difficult in this case to quantify the loss, but I did hear Mr. Jones' evidence in court and I have the information from the presentence report and, on that basis, I am going to order restitution as part of the probation order in the amount of $3,000.

I do believe this to be a low estimate of the total loss, but without further documentation, I cannot make an order any higher than that, in my view. [ 151 ] So this restitution order will be paid in the following manner: you must pay restitution in the amount of $3,000 to the Clerk of the Court for the benefit of Jonathan Arthur Jones. Your restitution must be paid in full by -- I am just going to count here -- I am going to say November 2nd, 2020. So that is just before the end of the probation order. Okay. [ 152 ] All right.

Any other issues with the probation order before I move on? [ 153 ] THE CLERK: The duration of the probation order, Your Honour? [ 154 ] THE COURT: Twelve months. [ 155 ] THE CLERK: Thank you. [ 156 ] THE COURT: Okay. So there are a couple of ancillary orders to deal with. With respect to the assault cause bodily harm, Count 4, that is a primary DNA designated offence.

So, pursuant to s. 487.051(1), I make an order in Form 5.03 authorizing the taking of samples of bodily substances from you for the purposes of registration in the DNA national databank. [ 157 ] So what happens is you are going to have to go to the Campbell River RCMP detachment and they will take a sample. Usually they do it by pricking your finger and taking some blood. So I am going to give you a few days to do that. You can go and then check in with them and then figure when is a good appointment. So if I were to set that for say -- would you be able to do that by the end of this week?

Are you going to be in Campbell River for this week or -- [ 158 ] THE ACCUSED: Well, if I am here for tomorrow, I could do it tomorrow. [ 159 ] THE COURT: Okay. Otherwise, you --

[ 160 ] THE ACCUSED: I can make it happen. Yes, I can stay, and it is an appointment I need? [ 161 ] THE COURT: Well, you need to go to the RCMP detachment and then ask them. They may do it right then when -- [ 162 ] THE ACCUSED: Okay. [ 163 ] THE COURT: -- you go or they may say, "Oh, come back at this time." [ 164 ] THE ACCUSED: Okay. [ 165 ] THE COURT: Okay? So if you are -- all right.

I will make it, then, that you must attend at the Campbell River RCMP detachment in Campbell River, British Columbia, the address will be given to you, on or before June 14th, 2019, at three o'clock p.m. and submit to the taking of the samples. This order is valid until executed.

So, again, if you are here today, just go there -- [ 166 ] THE ACCUSED: Okay. [ 167 ] THE COURT: -- and get it dealt with. [ 168 ] Okay, and then next dealing with s. 109, this is a firearms prohibition, you are prohibited from possessing any firearm other than a prohibited firearm or restricted firearm and any crossbow, restricted weapon, ammunition, and explosive substance for a period of 10 years; and (

b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. Now, do you have any firearms? [ 169 ] THE ACCUSED: No. [ 170 ] THE COURT: No, okay. All right. Anything else we need to address before we go? [ 171 ] MR. PETTY: I do not believe so. [ 172 ] THE COURT: Okay. [ 173 ] MR. MARION: No, Your Honour. [ 174 ] THE COURT: Clear? Okay, any questions? Was it clear? Okay. All right. Good luck to you, sir. I really do hope that we will not see you back here again. [ 175 ] THE ACCUSED: Me, too. [ 176 ] THE COURT: All right, thank you. (REASONS FOR SENTENCE CONCLUDED)