R. v. Yang, 2021 BCPC 137

Citation: R. v. Yang 2021 BCPC 137 Date: 20210428 File Nos: 64681-1, 64681-KA2 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Jian Yang REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P. CHEN Counsel for the Crown: V. Soon Counsel for the Defendant: J. Wu Place of Hearing: Richmond , B.C. Dates of Hearing: April 8, 14, 2021 Date of Judgment: April 28, 2021 [ 1 ] The Accused, Jian Yang, has pled guilty to the following counts on Information 64681-1:

Count 2: That on or about June 23, 2020, at or near Richmond, B.C., he did knowingly utter or convey a threat to Yuexi Lei to cause death or bodily harm to An An Annie Zheng, contrary to

Section 264.1(1) of the Criminal Code . Count 3: That on or about June 23, 2020, at or near Richmond, B.C., did carry or have in his possession a weapon, a knife, for a purpose dangerous to the public peace or for the purpose of committing an offence, contrary to Section 88(1) of the Criminal Code . [ 2 ] The Accused also pled guilty on Information 64681-KA2, to Count 1: that on or about October 24, 2020, at or near Richmond, B.C., being at large on a release order, did fail to comply with a condition of that release order, by failing to comply with condition 1: you must have no contact or communication, directly or indirectly, with Yuexi Lei (aka Alex Lei), contrary to Section 145(5) (

a) of the Criminal Code . [ 3 ] At the end of submissions, I asked counsel to provide additional case authorities to support their positions on sentence. Those authorities were provided by April 21 and sentencing was adjourned to today for my decision. [ 4 ] The Crown and the Accused have jointly provided Admissions of Fact, which include the following agreed facts: • Jian Yang (YANG), 37 years old, and An An Annie Zheng (ZHENG), 34 years old, broke up at the beginning of June, 2020. They had been boyfriend and girlfriend.

YANG is married to another woman, separated, and has two children with his ex-wife. • Yeuxi Lei (LEI) is a mutual friend of ZHENG and YANG. • ZHENG resided at [omitted for publication], Richmond, British Columbia, in an apartment ("Zheng's residence"), and YANG was living in an apartment at 1504-5911 Alderbridge Way, Richmond, British Columbia (the "Alderbridge residence"). • On June 22, 2020, YANG'S friend LEI had been staying with YANG at the Alderbridge residence for 4-5 days. LEI had ZHENG and others over for a social visit and YANG was present. ZHENG told YANG there was a younger man interested in her.

YANG was angry but "seemed normal" to LEI. • On June 23, 2020, YANG sent LEI Wechats stating that he “would not give up until she dies” and that “if he had time he would go to [omitted for publication] [the ZHENG residence]”. LEI replied he did not know why YANG would do this. YANG stated that she said something that made him so mad he would just “kill her”. YANG also told LEI to get them to wait inside their residence.

YANG sent LEI screenshots of a conversation between YANG and other friends stating, among other things, that if they called police, he would kill them all when he got out, then that he would not kill them but instead make them crippled, and to pass on a message to ZHENG that he would kill her whole family. • On June 23, 2020, at 1:04 p.m. video surveillance shows YANG attending at ZHENG's residence and entering the building, going to apartment [omitted for publication] without any tools, then leaving at 1:17 p.m.

On this occasion, YANG banged on the door and told ZHENG to let him in but she refused, so YANG left. • YANG returned to his own apartment where he retrieved a hammer, and at 3:28 p.m. on June 23, 2020, YANG returned to ZHENG's residence, entered an open back door to the building, went up to apartment [omitted for publication] carrying a purse and wearing a facial mask. LEI went to ZHENG's apartment and saw YANG re-attend ZHENG's apartment and enter the building.

LEI saw YANG outside the apartment carrying a purse with the handle of the knife protruding. • YANG used the hammer to damage the door around the handle but did not gain entry. YANG is seen on surveillance at 3:48 p.m. exiting the building swinging the stainless steel hammer with black handle later seized from his apartment. ZHENG and LEI were inside ZHENG's apartment and heard the banging. • At 20:55 hours, Richmond RCMP officers arrived at ZHENG's residence and noted extensive damage to the door, wood splinters on the hallway floor and that the door was still secure.

ZHENG and LEI were present and provided statements to police. [ 5 ] Photographs provided to the Court included one depicting the “knife” which was a Chinese style meat cleaver. [ 6 ] The Accused was arrested and released on conditions which included having no contact with Mr. Lei. On October 24, 2020, the Accused was found in the company of Mr. Lei.

He admitted to residing with him after separating with his wife who had been his surety and with whom he had been ordered to reside, under conditions of house arrest. [ 7 ] The Crown is seeking sentences of 6 months less a day on each of the S.264.1(1) and S.88(1) charges to be served concurrently and of 3 months on the breach of release conditions charge to be served consecutive to the S.264.1((1) and S.88(1) sentences, followed by a 3 year probation order. [ 8 ] The Accused seeks a sentence of 36 days for the S.88(1) weapons charge and a 4 month conditional sentence to follow for the threatening and the breach charges to be served concurrently. [ 9 ] I have considered in this sentencing, the Accused’s pre-sentence report, the forensic psychological report, the circumstances of the offence, the circumstances of the Accused and the submissions of counsel.

I have also reviewed and considered the case authorities presented by counsel. [ 10 ] The mitigating circumstances are that the Accused has no prior criminal history and has entered a relatively early guilty plea. [ 11 ] There are a number of aggravating factors. It is aggravating that these offences were committed in the context of a domestic relationship. The circumstances of the offences are also aggravating. Uttering Threat Charge CCC 264.1(1) and Possession of a Weapon for a Purpose Dangerous to the Public Peace CCC 88(1)

[ 12 ] The Section 88(1) charge of possessing a weapon for a purpose dangerous to the public peace or for committing an offence is the most serious of the offences the Accused has pled to. Parliament has expressed that clearly by enacting

Section 742.1(e)(iii) which precludes the availability of a conditional sentence order for this offence, where proceeded by indictment. [ 13 ] The

Section 264.1(1) charge of uttering the threats to Mr. Lei that he would kill Ms. Zheng is also a serious offence. However, in my view, it is the intersection of the circumstances of each of these two offences that presents the Accused’s conduct in the most serious light and is the most aggravating factor. [ 14 ] The threat to Ms. Zheng was that he would kill her and her entire family. This threat was conveyed through Mr. Lei. It was also conveyed to other people through texts. He threatened to kill or maim the other recipients of his threatening texts if they were to call the police.

This was followed in short order by his attendance at Ms. Zheng’s door. The Accused left when he was unable to gain entry, but returned to Ms. Zheng’s residence after a couple of hours, with a hammer and a meat cleaver, using the hammer to damage the door around the lock, in an apparent effort to gain entry, while Ms. Zheng and Mr. Lei were inside. [ 15 ] These offences were not the result of a sudden impulse of rage. The Accused did not immediately show his anger at Ms. Zheng when she revealed she was dating another man. Unable to gain entry to Ms.

Zheng’s apartment, the Accused left to obtain a hammer and a meat cleaver and returned to Ms. Zheng’s door, where he swung the hammer at the door in the area of the lock causing it extensive damage. The Accused had time to think about his actions. There is a degree of premeditation in the circumstances of these offences. Failure to Comply with Condition of Release CCC145(5)(a) [ 16 ] The Accused’s performance on bail has been poor. He was placed on conditions of house arrest, to be out of his home only in the presence of his wife who was his surety, and to have no contact with either Ms. Zheng or Mr. Lei.

Four months after his release, the Accused breached both his no contact and his house arrest conditions by having contact with Mr. Lei. The Accused was released again with the consent of the Crown after agreeing to enter guilty pleas to the charges now before the Court. Because the Accused had stated that he did not understand the conditions were still in effect when he breached them on October 24, 2020, after the conditions of release were read to him again with the assistance of an interpreter, he was asked whether he had any questions and whether there was anything he did not understand.

The Accused assured the Court that he did understand the conditions.

The Court warned the Accused to ensure that he complied with the conditions, and made clear that the conditions would continue to be in force until the conclusion of his trial or until his charges had otherwise been disposed of. [ 17 ] The Accused has been released on bail on these charges before the Court but finds himself in custody because of an incident in Vancouver. [ 18 ] On December 5, 2020, at approximately 3:30 p.m. in the afternoon, police responded to shots fired in the lane behind the Lucky Dragon Restaurant at Victoria Drive and 43 rd Avenue in Vancouver. Mr.

Lei was seen entering a van being driven by the Accused. The Accused tried to escape but was caught, and he and Mr. Lei were apprehended by police. The police located a Glock handgun under the 3 rd row of seats. The Crown submitted that 7 shots from the Glock were fired by Mr. Lei at an unoccupied vehicle in the lane that had been driven there by an associate of Mr. Lei’s. The police also located a duffel bag on the centre console between the front seats which contained a sawed off shotgun, shotgun shells and a wallet containing the Accused’s driver’s licence. Subsequent to their arrest, the Accused and Mr.

Lei were ordered detained in custody on firearms charges. The Accused maintains that he was just Mr. Lei’s driver and did not know the contents of the duffel bag. [ 19 ] The charges arising out of Vancouver on December 5, 2020, are still outstanding and he is entitled to the presumption of innocence on those charges. However, apart from the firearms charges that he faces in Vancouver, the Accused was clearly not complying with the conditions of his release on the Richmond charges now before the Court when he was arrested on the Vancouver charges. He was again in the company of Mr.

Lei after being warned again, after his initial breach of the Richmond bail conditions, to have no contact with him. He was also in breach of the house arrest condition of his release. Case Authorities [ 20 ] When I requested further case authorities from counsel, I had hoped to see more case authorities where Courts had considered both Section 88(1) and

Section 264.1(1) . Section 88(1) is the most serious offence – the only one where Parliament has precluded the availability of a conditional sentence order where the charge is proceeded by indictment. It would have been particularly helpful to have had case authorities where courts had considered situations where the possession of the weapons followed soon after threats to cause death – hopefully in circumstances similar to those in the case at bar.

Sentencing case authorities for offences that are not before the Court are of limited assistance. [ 21 ] Unfortunately, the only case authority provided where both of these offences were considered, and the only case provided in which Section 88(1) was considered, is still the case first provided during submissions, that of Regina v. Gibson , 2015 BCPC 197 . [ 22 ] In Gibson , the Court imposed a conditional discharge with 2 years of probation conditions for possession of a weapon for a purpose dangerous to the public peace and for uttering threats.

The Crown in Gibson had initially agreed to a 30 day conditional sentence order before realizing that the conditional sentence order was precluded under

Section 742.1(e)(iii}. [ 23 ] The facts in Gibson were much different from those in the case at bar. The complainant was Mr. Gibson’s common-law spouse with whom he had an 11 month old baby. The incident involved a domestic dispute, while both Mr. Gibson and the complainant were highly intoxicated, which accelerated into a significant shouting and screaming match. At one point, Mr. Gibson was seen holding a shotgun which was not loaded and was never pointed at the complainant. At another point, Mr. Gibson mimicked holding a handgun and made a clicking noise.

However, no handgun was ever produced. [ 24 ] Unlike the situation in the case at bar, the pre-sentence report and psychological reports were favourable to Mr. Gibson. Gibson was a case from the Port Alberni Court decided by my brother, Judge McCarthy. In describing the circumstances of Mr. Gibson, Judge

McCarthy noted that he had been employed for some 20 years as a custodian with the local school district. He also worked outside of that employment in the local community as a qualified butcher following a tradition started by his father who had also done that work in the local community for an extensive period of time. Mr. Gibson was noted to have taken steps to deal with his alcohol and drug issues and was assessed as being at low risk of violence to others. The reports also described Mr. Gibson as having insight into his offence, and insight into the impact that his offence had on the complainant.

The Court found that Mr. Gibson had accepted that his behaviour during the night of the offence was totally inappropriate. By that, I infer that the Court found that Mr. Gibson was remorseful. At age 57, Mr. Gibson had no prior criminal history and had a long history in the community as a law-abiding resident of the Port Alberni area where his family had been established for at least 2 generations. [ 25 ] The Court is entitled to give more weight to the principle of rehabilitation in appropriate cases. In my view, the first priority for the Courts should be the safety of the public.

In appropriate circumstances, a Court may find that the safety of the public is best served when an offender can be rehabilitated to carry on as a law-abiding and peaceful member of society. In granting a conditional discharge, I infer that Judge McCarthy found that the offences committed were out of character for Mr. Gibson. I infer that Judge McCarthy was of the view that it was likely that Mr.

Gibson would never again come before the Court having committed another offence. [ 26 ] Other than the guilty plea and the lack of criminal history, the mitigating circumstances found in Gibson are not present in the facts of the case at bar. The inferences that Judge McCarthy was able to draw with respect to Mr. Gibson are not inferences that I could make with respect to the Accused. Discussion [ 27 ] In determining what sentence would be fit, in my view, it is important to consider the Accused’s prospects for rehabilitation.

In my view, even where an accused has no prior criminal history, it is important to assess whether the Accused is a good candidate for rehabilitation. [ 28 ] The pre-sentence report and the forensic psychological report are not encouraging in that regard. The Accused appears to lack insight or understanding with respect to his offending behaviour. He has not expressed any remorse. [ 29 ] The pre-sentence report is not particularly favourable to the Accused. The Accused immigrated to Canada with his wife from China in 2012 and has 2 children with her. They are currently separated.

According to the pre-sentence report, since arriving in Canada, the Accused has worked at a number of occupations – at a car wash, in landscaping and for a moving company. The Accused reported to the probation officer that he has most recently been self-employed as driver, in a business similar to Uber. He did not communicate any plans for future employment in his interview for the pre-sentence report and has not provided evidence of his past employment. He has not provided reference letters from past employers or any other evidence of support in the community. [ 30 ] The pre-sentence report states at page 6: Mr.

Yang appeared to have limited insight towards his offending behaviour. He did not express remorse however maintained he did not have any issues relating to anger, emotion regulation or impulsivity. Mr. Yang presented as quiet and did not elaborate on his thoughts, feelings or emotions during the interview. [ 31 ] The forensic psychological report prepared by Dr. Kropp was more unfavourable. It states at page 3: Mr. Yang provided the following version of the events before the court. He told me that he was upset with the victim because he learned that she was dating another man while in a relationship with him.

He became “angry” and attended her apartment to “confirm” the allegations. He knocked on her door, and when nobody answered he “hit the door with a hammer…couldn’t get in, so I left”. He adamantly denied any violent intent behind the threats to kill A.Z.: “I didn’t mean it…was just upset.” At the end of the above paragraph, the Dr. Kropp states: He added that A.Z. “has a bad record…has several children she can’t visit… uses methamphetamine every day.” He stated that her allegations against him are “revenge” for breaking up with her. He now wants “nothing to do with A.Z.” [ 32 ] In his

Summary and Recommendations, Dr. Kropp referred to Version 3 of the Spousal Assault Risk Assessment Guide (SARA- V3), a set of professional guidelines for assessing risk for intimate partner violence (IPV). At the last page of his report, Dr. Kropp concluded as follows: Mr. Yang appears to minimize the seriousness of his behaviour, and he places much of the responsibility for his aggression upon A.Z. (and his former wife)… Mr. Yang appears to lack insight into the causes of his IPV, and denies any need for educational or psychological intervention… Overall, it is my opinion that Mr.

Yang represents a moderate risk to reoffend in a threatening or violent manner towards an intimate partner, possibly with the use or threat of weapons. [ 33 ] The Accused’s denial of violent intent towards Ms. Zheng contains no explanation as to why he returned to Ms. Zheng’s residence with weapons. I find the Accused’s blaming of the complainant for his current charges to be concerning. [ 34 ] In my view, the facts in Gibson are distinguishable from those in the case at bar. Conclusion [ 35 ] In my view, a conditional sentence is not precluded by

Section 742(e)(iii) because these charges all proceeded summarily. However, I am of the view that a conditional sentence order would not be appropriate in the circumstances of this case, in light of the following factors: • The seriousness of the circumstances of the offences in Information 64681-K1;

• The Accused’s poor performance on conditions of release; • The Accused’s lack of insight into his offending behaviour, including minimizing his own actions and blaming the complainant for his current charges; • Apart from having entered a guilty plea, the Accused’s lack of remorse. [ 36 ] T he Accused has demonstrated that he cannot be trusted to comply with conditions of a sentence to be served in the community.

In my view, a conditional sentence order would not provide adequate protection for the safety of the community and would not be consistent with the fundamental purpose and principles of sentencing. [ 37 ] I find that the position of Crown with respect to sentence is a reasonable one with respect to the Section 88(1) and 264.1(1) charges. With respect to the breach charge, I find that it was not the most egregious breach. The Accused’s contact was not with the complainant and he was not committing another offence.

It is appropriate for the sentences for the charges in Information 64681-1K to be served concurrently and for the sentence on the breach charge to be served consecutively. [ 38 ] Mr. Yang, please stand. [ 39 ] I sentence you to a term of 6 months less a day to be served in a provincial correctional institute on each of Counts 2 and 3 of Information 64681-K1, to be served concurrently. You will be given credit for the time you have served in pre-sentence custody which is 36 days, after applying a ratio of 1.5 to 1 for the 24 actual days you have spent in custody on these charges.

The 6 months less a day will be set at 182 days, less the time credited of 36 days, leaving 146 days left to be served concurrently on counts 2 and 3 of Information 64681-K1. [ 40 ] I sentence you to a term of 1 month on Count 1 of Information 64681-KA2, to be served consecutive to the sentences on Information 64681-K1. [ 41 ] Upon your release, you will be placed on the terms of a probation order for a period of 3 years. The conditions will be as follows: 2001: 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 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. 2002: You must have no contact or communication, directly or indirectly, with An An Annie Zheng. If you should see her you must leave her presence immediately without word or gesture. 2005-1: You must not go to any place where An An Annie Zheng lives, works, attends school, worships or happens to be.

If you see her, you must leave her presence immediately without any words or gestures. 2101: You must report to a probation officer within 2 business days following your release from custody at 210-7577 Elmbridge Way, Richmond, B.C., by telephone to 604-660-3577 and after that you must report as directed by the probation officer. 2105: If you are arrested, detained or served a sentence for another offence, you must report to your probation officer within 2 business days of your release from custody or completion of your sentence. 2202: When first reporting to your probation officer you must provide them with the address where you live and your phone number.

You must not change your address or your phone number without notifying your probation officer in writing at least 2 days in advance of any such change. 2501: You must attend, participate in and complete any intake, assessment, counseling, or education program as directed by your probation officer.

This may include counseling or programming for: anger management, spousal abuse prevention and mental health. 2601: You must not possess, directly or indirectly, any weapon as defined by the Criminal Code , Including: a. firearms and ammunition, b. cross-bows, prohibited or restricted weapons or devices, or explosive substances, c. anything used, designed to be used or intended for use in causing death or injury to any person, or to threaten or intimidate any person, d. any imitation of all the above, including any compressed air guns or BB/pellet guns, or e. any related authorizations, licences and registration certificates and you must not apply for any of these. 2616: You must not possess any knife outside your residence, except for the immediate purpose of preparing or consuming food. [ 42 ] In addition, I make the following ancillary orders: Pursuant to

Section 487.051, you must provide such samples of bodily substances as are reasonably required for forensic DNA analysis. Pursuant to Section 110(2.1) of the Criminal Code , I prohibit you from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things for life. [ 43 ] I find that the Accused is impecunious and will not be in a position to pay a Victim Fine Surcharge. Accordingly, I hereby waive

the requirement to pay the Victim Fine Surcharge. [ 44 ] Because of the situation that has been caused by the covid-19 epidemic, I waive the re-reading of these conditions to Mr. Yang and I waive the requirement for Mr. Yang’s signature to my order. _____________________________ The Honourable Judge P. Chen Provincial Court of British Columbia