R. v. Volk, 2018 BCPC 58

Citation: R. v. Volk 2018 BCPC 58 Date: 20180222 File No: 44022-1 Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MERVIN JOSEPH VOLK REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. KOTURBASH Counsel for the Crown: N. Devji Counsel for the Defendant: N. Yates Place of Hearing: Penticton , B.C. Dates of Hearing: Apr. 25, 26, Jun. 29, Aug. 11, Nov. 9 & 10, 2017 and Jan. 8, 2018

Date of Judgment: February 22, 2018 Introduction [ 1 ] Mr. Volk was found guilty of assaulting and causing bodily harm to Manuel Medeiros on June 6, 2016. [ 2 ] The assault was a single punch to the head knocking Mr. Medeiros unconscious, and causing a serious injury to his brain. [ 3 ] Mr. Medeiros’, adult son, had been subjecting Mr. Volk and his family to harassing and threatening behaviour over a long period. Mr. Volk had reached a “tipping point” and decided to go to the Medeiros residence to confront Mr. Medeiros’ son. He confronted Mr. and Ms. Medeiros outside their residence. He was angry and agitated.

The Medeiros’ told Mr. Volk that their son did not live there and told him to leave; Mr. Volk did not. He and Mr. Medeiros yelled at each other and Mr. Volk eventually punched Mr. Medeiros in the head. [ 4 ] The Crown opines that the range is between 12 to 18 months jail and urges me to impose a sentence at the higher end of the range. [ 5 ] The accused on the other hand urges me to consider imposing a conditional sentence, or in the alternative, a jail sentence in the intermittent range so that Mr. Volk can continue working and being a productive member of society.

The terms of the conditional sentence proposed would place Mr. Volk on house arrest in the remote logging community of Rivers Inlet. [ 6 ] The dilemma posed by this case is that the offence committed by Mr. Volk is very serious, but he has a very minor and dated background of criminality, and is a contributing member of society who is not likely to ever commit such an offence again. Circumstances of the Offender [ 7 ] Mr. Volk is 49 years old. He is married with two adult children and is a grandfather. [ 8 ] He has limited education, and works in the logging and fishing industry.

His colleagues in the industry describe him as a very dependable, and hardworking family man. [ 9 ] He grew up in an unstable home, supervised by an alcoholic stepfather, who subjected him to physical abuse from a very early age. [ 10 ] He has a very dated and minor criminal record for property and drug related offences. Circumstances of the Victim [ 11 ] Mr. Medeiros is in his late 60’s. [ 12 ] He too is of limited education and at the time of the incident operated a janitorial service with his wife. [ 13 ] Mr. Medeiros was hospitalized for 10 days following the assault.

As a result of the brain injury, he had to learn to walk again, continues to suffer from depression, confusion, frustration and bouts of anger. He is on a restricted drivers licence and has not been able to return to work. In order to keep their business going, the Medeiros’ have had to hire an employee to do the work that Mr. Medeiros did. [ 14 ] Mr. Medeiros has become very dependent on his wife and family. It has been very hard on them emotionally, physically and financially. [ 15 ] Mr. and Mrs. Medeiros are not the same people anymore.

They cannot do the things, a married couple at their stage of life should be doing. Instead, Mrs. Medeiros is required to care for her husband who has a serious brain injury, and this can be like taking care of a very emotionally demanding teenager. She understands, of course, that this behaviour is not his fault. [ 16 ] Their lives have been forever changed, and he has likely forever lost his freedom to enjoy life to its fullest. Analysis [ 17 ] It is an obvious and painful reality that the accused’s sentence today can do nothing to change what happened to Mr. Medeiros.

A sentence has a limited ability to provide closure and cannot restore the life that Mr. Medeiros and his family shared before the assault. Objectives and Principles of Sentence [ 18 ] The paramount objectives in a case like this are denunciation of Mr. Volk’s actions, deterring him from future offending, deterring others from committing similar offences, assisting in his rehabilitation, and acknowledging the harm done to Mr. Medeiros and his family. [ 19 ] It is a fundamental principle of sentencing that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

It requires that the sentence not exceed what is just and appropriate. At the same time, the sentence must also ensure offenders are held responsible for their actions and the sentence properly reflects and condemns their role in the offence and the harm caused. This is closely tied to the objective of denunciation and promotes justice for victims and ensures public confidence in the justice system.

[20] Imposing a proportionate sentence is a highly individualized exercise, and will be achieved when a fit sentence is imposedhaving regard to all relevant factors. Mitigating and Aggravating Circumstances [21] When the circumstances are assessed in light of the proportionality principle, Mr. Volk’s offending behaviour is grave, butthere are some factors that attenuate his moral culpability or blameworthiness. [22] Mr. Volk was upset, and concerned about the continued harassment and threats from Mr. Medeiros’ son towards him and hisfamily. He decided to go to the Medeiros residence to put a stop to it.

Although his motivations were compelling, his actions weremisguided and misplaced. [23] When he arrived at the Medeiros residence he asked to speak to Mr. Medeiros’ son and refused to believe the Medeiros’ whenthey said he did not live there. Mr. Volk believed the Medeiros’ were covering for their son, and became angry and frustrated with theirunwillingness to help him resolve the situation. [24] An acute level of anger and frustration consumed Mr. Volk, which led him to assault Mr. Medeiros; he lost control. [25] This was not a consensual fight that went too far.

It was not a fair punch given the difference in size and age. Although Mr.Volk clearly intended to punch Mr. Medeiros, I accept that he did not intend the catastrophic consequences. He failed, possibly due tothe effects of his anger, to factor in the elements of danger that were so obviously present in punching a man of Mr. Medeiros size andage. [26] Fortunately, unlike many other cases that come before this court there was no gratuitous violence following the single blow,and Mr. Volk took steps to call for assistance for his victim. [27] Other circumstances serving to mitigate sentence are: • Although Mr.

Volk did not plead guilty, his demeanor, and his words to the police, and to the court, are consistent withsome level of remorse and regret for his actions. • Strong support of family and co-workers. • Out of character. • Contributing member to society with a good employment history. • Mr. Volk cooperated fully with police. • He contacted police and requested assistance for Mr. Medeiros. • Court delays. In R. v. Leaver, 1996 CarswellOnt 4228 (ONCA), the court held that excessive delay, not reachingconstitutional limits, may be factor mitigating sentence.

In the case at hand, some institutional delays had a financial impact on Mr.Volk. I have given this some but not “significant” weight in the analysis. [28] The circumstances serving to aggravate sentence are: • The attack will have a long-standing impact for Mr. Medeiros, emotionally, financially and health wise. • The difference in strength, physical size and age. • Mr. Medeiros age made him a more vulnerable victim. • The location of the offence. The assault occurred outside the Medeiros’ residence, a place that they ought to have been able to feelsafe. Since the assault, Ms.

Medeiros was unable regain the sense of security they had in their home and the couple relocated. Crown Election [29] It was urged upon me to find that the decision by the Crown to proceed summarily is an important consideration in determiningthe appropriate sentence. In essence, the argument is that regard must be had to the maximum sentence that can be imposed for asummary offence, and the sentence in the particular case scaled down accordingly. In support of this proposition counsel relied on R. v.Lequiere, 2006 BCSC 668.

I do not agree. [30] The Crown election is neither an aggravating factor nor a mitigating factor, nor, beyond setting out the maximum penaltyavailable, is it normally even a proper consideration in fashioning a fit sentence. [31] The seriousness of the offence must be determined by the judge’s assessment of the facts and not the prosecution’s election. There can be a multitude of reasons behind the decision to proceed summarily beyond just the perceived seriousness of the offence. [32] The appropriate sentence for a hybrid offence should not be slid upwards or downwards based on the Crown's mode of election.

In R. v. Solowan, 2008 SCC 62 , [2008] 3 S.C.R. 309, at paras. 10-15, the Supreme Court of Canada noted that: “...A fit sentence for a hybrid offence is neither a function nor a fraction of the sentence that might have been imposed had the Crownelected to proceed otherwise than it did. More particularly, the sentence for a hybrid offence prosecuted summarily should not be "scaleddown" from the maximum on

summary conviction simply because the defendant would likely have received less than the maximum had

he or she been prosecuted by indictment. Likewise, upon indictment, the sentence should not be "scaled up" from the sentence that the accused might well have received if prosecuted by

summary conviction. … In short, the sentencing principles set out in

Part XXIII of the Criminal Code apply to both [page315] indictable and

summary conviction offences. Parliament has made that clear in the definition of "court" at s 716 of the Code . And when the Crown elects to prosecute a "hybrid" offence by way of

summary conviction, the sentencing court is bound by the Crown's election to determine the appropriate punishment within the limits established by Parliament for that mode of procedure . Absent an error of principle, failure to consider a relevant factor, or overemphasis of the appropriate factors, any sentence within that range -- including the maximum -- should not be varied on appeal unless it is demonstrably inadequate or excessive.” Maximum Sentence [ 33 ] Counsel for the accused argued that the maximum sentence of 18 months in jail is reserved for the worst offender. I do not agree. [ 34 ] In R. v.

Vienotte, 2016 BCCA 21 the Court of Appeal made the following observation at paragraph 26: The fallacy inherent in the Crown’s argument is that there is an invariable rule that a mandatory minimum sentence is reserved for the least serious offence and the least culpable offender. That submission cannot be logically sustained. It would mean, by comparison, that the maximum sentence is reserved only for the worst offenders and the worst offences.

To accede to this would eviscerate the fine balancing that sentencing judges are charged with performing. (emphasis added) [ 35 ] If the circumstances warrant the maximum sentence then it should be imposed. Sentence Range [ 36 ] The range of sentence for assault causing bodily harm is broad. This is because it can be committed in so many different ways. The maximum penalty is a term of incarceration of 18 months. [ 37 ] The Crown argues that the range is 12 to 18 months jail. In support of the range they rely on the following cases: R. v. Mikasinovic , 2017 ONSC 3192 ; R. v. S.A.T. , 2016 BCPC 355 ; R. v.

Clyne , 2005 BCPC 199 ; and R. v. Charlie, 2002 YKTC 13 . [ 38 ] Counsel for the accused requests a conditional jail sentence. They propose that Mr. Volk be subject to house arrest while working at a remote logging camp in Rivers Inlet. [ 39 ] Although by proceeding by

summary conviction, the Crown has left the door open for the possibility of a conditional sentence the Crown argues it would not be a fit and just sentence. They argue that given the remoteness of the location where the conditional sentence would be served, it would be difficult to monitor, but more importantly, a conditional sentence would be inconsistent with purposes and principles of sentencing. R. v. Clyne, 2005 BCPC 199 [ 40 ] The accused pled guilty to aggravated assault. The victim was arguing with a woman when the accused walked up to him and sucker punched him on the side of the head.

The victim sustained a serious brain injury. He had to move into a permanent care facility with fulltime aids. The accused had a very lengthy record including convictions for robbery and assault. He was also on parole at the time he committed the assault. He was described as having a very poor future. The court commented that the range was 2-3 years and imposed a sentence of two years less one day in addition to the equivalent of 300 days spent in pre-sentence custody for which he was given double credit. R. v. Rai, 2013 BCSC 1826 [ 41 ] The accused was convicted of aggravated assault.

Acting as a good Samaritan the victim tried to break up a fight when, the accused who was intoxicated, sucker punched him, permanently blinding him in one eye. The pre-sentence report was described as very positive and the accused ’ s actions were perceived as very uncharacteristic. His only record was for breaching a no alcohol condition while on bail. The accused also agreed to pay restitution of $18,483. The court imposed a sentence of two years less one day. R. v. Charlie , 2002 YKTC 13 [ 42 ] The accused was convicted of assault causing bodily harm.

The victim was crossing the street when the accused engaged the victim in a yelling match. The accused then ran up to him and punched him once in the head. The victim sustained a brain injury resulting in serious physical and cognitive impairments. He was employed as a musician and unable to continue working. The accused was described as having little insight into his offending behaviour, requiring high treatment needs, and unmanageable in the community. He was a 20 year-old Aboriginal with a difficult upbringing. He had a criminal record including a conviction for assault.

The court imposed a sentence of 12 months. R. v. Miskavonic , 2017 ONSC 3192 [ 43 ] The accused was convicted of assault causing bodily harm. The victim tried to defuse a situation between the accused and others. A shoving match started between the two and the accused punched the victim. The first punch threw the victim off balance, and a second resulted in him collapsing. The victim did not initiate the shoving match, nor did he demonstrate any aggressiveness.

Following the incident the victim suffered from severe headaches, could not read for a period, suffered from depression and had to attend a brain injury rehabilitation program. The accused was 33 years old, and assisted his parents financially. He had a youth and

adult record, which included a conviction for assault and assault causing bodily harm as an adult. He told police that he punched the victim “as hard as he could”. Although he apologized, the court did not find him to be sincere. The court imposed a 14-month jail sentence. R. v. Dinney , 2012 ONCA 497 [ 44 ] The accused was convicted of assault causing bodily harm. The victim, a bouncer, intervened to stop the accused from assaulting another. The accused left but returned to sucker punch the victim in the head. The victim suffered a serious head injury.

The accused told police that he hit the victim with the hardest punch but claimed it was in self-defence. The accused appealed. In upholding a 6-month sentence, the Court of Appeal observed that the trial judge correctly considered the youthfulness of the offender, the unblemished record, and the fact that the assault involved a single blow. This case is of limited assistance because the extent of the injuries are unknown, and it was an appeal by the offender and not the Crown. R. v. Desgagne, 2013 ONSC 6319 [ 45 ] The accused pled guilty to assault causing bodily harm.

The offender and the victim had an argument over rent money. Both had been drinking. The victim threw the first punch and hit the accused in the mouth. The accused responded by punching back. The last blow was described by one witness as a “massive” punch which knocked the victim unconscious. The victim sustained a serious and permanent brain injury. He required the assistance of a walker and could not live unaided. The accused was 51 and without any record. He admitted having a serious alcohol problem and expressed deep remorse for his action. Counsel for the accused sought a conditional sentence.

He was sentenced him to 8 months in jail and two-year’s probation. [ 46 ] No two cases are alike. Some of the distinguishing features of the cases noted-above, include a guilty plea as opposed to a finding of guilt; aggravated assault versus assault causing bodily harm; serious criminal records; intoxication; near self-defence; youthfulness; and the degree of injury.

Sentence [ 47 ] It is challenging to balance all of the competing factors to achieve a proportionate sentence in these misfortunate and tragic consequences. [ 48 ] The Crown proceeded summarily which means the maximum sentence is 18 months jail and three years’ probation. [ 49 ] As with all offenders, I must also exercise restraint, and remind myself that jail is always an option of last resort. When two different sentences can address the objectives and principles of sentencing, I must impose the least restrictive option.

Further, if I decide jail is the only option, I must impose the shortest sentence that is commensurate with the gravity of the offence and the responsibility of the offender. [ 50 ] Mr. Volk’s counsel proposes that I impose a conditional sentence. Mr. Volk recently obtained employment in a small remote logging community called Rivers Inlet. The position would require him to live at the camp 10 months of the year. What is proposed is that Mr.

Volk would be placed under house arrest with the exception that he be allowed to work. [ 51 ] While a conditional sentence is able in some circumstances to adequately, reflect denunciation of a serious offence like assault causing bodily harm, achieve deterrence and the principle of proportionality, in the present case I am unable to come to that conclusion. The Crown raises concerns about the ability of Community Corrections to adequately supervise a conditional sentence order in a remote location like Rivers Inlet.

I appreciate that police and Community Corrections officers are and do get to the community occasionally but in reality it is doubtful that it could be done on a consistent basis. In R. v. Proulx, 2000 SCC 5 at paragraph 73 , the court said that the likelihood to be able to properly monitor and enforce a conditional sentence order is an important consideration. [ 52 ] A conditional sentence in the case at hand would not be consistent with the purpose and principles of sentencing. In order to fulfil these purposes and principles the sentence must be punitive in nature.

Outside of the two months of the year that Mr. Volk would return to his residence from Rivers Inlet, the sentence proposed would merely mimic the conditions of ordinary life for him, it would be minimally inconvenient, and in little respect punitive. [ 53 ] Although the assault was out of character and can be described as momentary lapse of control, does not detract from the gravity of the offence and the lifelong consequences for Mr.

Medeiros and his family. [ 54 ] A fit and proper sentence is 10 months incarceration followed by 12 months’ probation. [ 55 ] The primary purpose of the probation is to ensure that you do not have any contact with Mr. or Ms. Medeiros. I am satisfied alcohol did not play a role in this incident, and I am not ordering that you abstain from alcohol.

I also considered a condition that you take counselling, but I am mindful of your age, the circumstances of the offence, and your ability to access counselling while working, and I have concluded it unnecessary and would be counterproductive to you regaining your position as a productive member of society. [ 56 ] The 12-month probation order 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 Manuel or Maria Medeiros except (

h) through or in the

immediate presence of a lawyer who has reviewed this order. [ 57 ] I am also making the following ancillary orders: 1. Pursuant to

section 743.21(1), you must have no contact or communication directly or indirectly with Manuel and Maria Medeiros while you are in custody except through a lawyer. 2. Pursuant to

section 110, you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, and explosive substance for 5 years. 3. Assault causing bodily harm is a primary designated offence. Pursuant to

section 487.051(1), I make an order in Form 5.03 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National Databank. The samples will be taken from you while you are in jail and you must submit to the taking of the samples. [ 58 ] The Medeiros family paid $2,900 in home care costs to assist in Mr. Medeiros’ care. They were reimbursed through the Crime Victims Assistance Program. This program is funded by the collection of victim surcharges. It is appropriate that the surcharge that I impose replaces those funds withdrawn to assist Mr. Medeiros.

I am satisfied, if given time to pay, that you will have the ability to pay an enhanced surcharge of $2,900. [ 59 ] To comply with the principle of totality, I did consider the imposition of the enhanced surcharge when I determined the length of the sentence imposed. [ 60 ] You must pay a victim surcharge in the amount of $2,900 to the Clerk of the Court. I am extending the time for you to have it paid to March 1, 2020. ______________________________ The Honourable G. Koturbash Provincial Court Judge