R. v. C.R.W., 2019 BCPC 327

Citation: R. v. C.R.W. 2019 BCPC 327 Date: 20191121 File Nos: 49610-2-C, 49698-1-A, 49720-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.R.W. ORAL REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M.J. BRECKNELL Counsel for the Crown: M.K. Bond Counsel for the Defendant: E.K. Jones Place of Hearing: Prince George , B.C.

Date of Hearing: November 21, 2019 Date of Sentence: November 21, 2019 [ 1 ] THE COURT: C.R.W. comes before the court today to be sentenced on two different informations, the first being 49720, in which he has pled guilty to a charge commonly referred to as shoplifting on October 20, 2018, where he and a co-accused stole some meat from a local store. That type of behaviour is not unknown to Mr. W., who has an extensive criminal record that I will detail in a moment that includes many theft unders.

So he is, if not an accomplished thief, because he has many convictions, at least a person with knowledge of how one goes about stealing things from stores. [ 2 ] The second and far more serious matter that he has pled guilty to today is on Information 49610, in which he has pled guilty in

Count 2 to a charge of sexual assault causing bodily harm of J.P. that occurred on November 22, 2018. [ 3 ] The Crown has kindly provided a written

summary of their submissions. Defence counsel does not take much, if any, issue with regard to those submissions and I am relying in large part on those submissions with regard to crafting a just and appropriate sentence for Mr. W. in these circumstances.

As a result of relying on the Crown's written submissions, I am going to be asking the Crown to provide another hard copy of them to the court clerk so they can be stamped, not as an exhibit, but so that any other entity who may be reviewing my decision on sentence has before it what I had before me today. [ 4 ] THE CLERK: Thank you. [ 5 ] THE COURT: Turning to the circumstances of 49720, that is the shoplifting, as I said before, Mr. W. and a co-accused went into a local grocery store, stole some meat. They were approached outside, and they were not cooperative. They ran away, and Mr.

W. was located shortly after. He was intoxicated at the time of his arrest. He was placed on bail, as he has been placed on bail many times before, did not show up to his bail supervisor, and other charges were laid, but they are going to be stayed at the end of this proceeding. [ 6 ] The circumstances of 49610 in

summary are as follows: On November 22, 2018, J.P., who was already under the influence of some intoxicants earlier that day, met up with Mr. W. They have known each other for almost a decade, not because they were in a relationship, but the complainant described knowing Mr. W. from "drinking". Although the Crown did not say so explicitly, given what has been told to me about the circumstances, it is clear that Ms. P., the victim, has her own issues that include some form of substance abuse. [ 7 ] Mr. W. invited Ms. P. to go to another local Superstore. He had a bottle of Listerine.

They committed a shoplifting and then started drinking Listerine. They then went to a secluded place. [ 8 ] The next thing Ms. P. remembered, having consumed the Listerine, was that Mr. W. was having sexual intercourse with her. She did not consent to that activity. She has a vague recall of having her clothing removed and Mr. W. using both his fingers and his penis to penetrate her vagina and commit the sexual assault. [ 9 ] She tried to resist but was unsuccessful and Mr. W. at one point put his arm across her neck and his hand over her mouth to keep her quiet. Ms. P. described that as a smothering. Mr.

W. also used his hands to try to strangle Ms. P. while he was attacking her. [ 10 ] After five or 10 minutes, she managed to get away. She is not sure how. She went back to the shelter where she was residing, advised the staff of the assault. The police were brought onto the scene. They took statements and made investigations about the attack, noted many injuries to Ms. P. and, based on that, they went out and found Mr. W. a few hours later. He was arrested and has been in custody since then. [ 11 ] Mr. W.'s personal circumstances are detailed in the presentence report.

He has lived a very hard life, starting from birth. He originates from the [omitted for publication], north of Prince George. He had eight siblings. He was raised in some respects “on the land”. He suffered sexual abuse at the hands of a relative. Because his own family was largely dysfunctional – [ 12 ] Ms. P.: Your Honour – [ 13 ] Ms. P.: We've been together before that happened. [ 14 ] THE COURT: Madam Sheriff, could you ask that person to please be quiet or leave the courtroom. Thank you very much. [ 15 ] He turned to alcohol at an early age and has been an alcoholic throughout most of his life. [ 16 ] Ms.

P.: I want him to be released. Me and him were together. [ 17 ] THE COURT: The presentence report details that when Mr. W. is residing in the [omitted for publication] area, he seems to be able to stay away from alcohol, but that when he is here in the Prince George area where he spends a great deal of his time, alcohol overtakes his life. I do not think it comes as any surprise to come to the conclusion that Mr.

W.'s alcohol consumption is, in large part, a result of his attempts to deal with the trauma he has lived with throughout his life, both personally and the pre-existing and, perhaps in some cases, ongoing discrimination that First Nations people face in this area and have faced for hundreds of years. [ 18 ] However, the nature of the offence to which he has pled guilty is such that the court must keep in mind that, although the Supreme Court of Canada has spoken at length about the negative effects of western society on First Nations people and how, as a result, the court must endeavour to utilize a sentencing regime for indigenous people that is different in many respects to the sentencing regime of non-indigenous people, in recognition of that systemic discrimination.

That view is codified in s. 718.2(

e) which says that: (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 19 ] Of course, part of that clause deals with the harm done to victims and in this case there was extensive harm done to the victim, Ms.

P. [ 20 ] The other thing that has to be considered and is talked about in Gladue is that one has to consider not only the history of the convicted person personally and the history of how our Western society has treated indigenous people, but we must not forget that indigenous people, like any other citizen of Canada, are entitled to and in fact expect that they should be able to conduct their affairs in a safe fashion and without becoming victimized, even if it is by other members of the indigenous community. [ 21 ] That is summarized very conveniently in the Martin's 2020 Annual Criminal Code where the annotations for s. 718.2(

e) are

found on page 1521, where the authors say the following: The sentence imposed will depend upon all the factors that must be taken into account for each individual case. It is unreasonable to assume that Aboriginal people themselves do not believe in the importance of the objectives of denunciation, deterrence, and separation. Generally the more violent and serious the offence, the more likely it is a practical reality that the terms of imprisonment for Aboriginal and non-Aboriginals will be close to each other or the same. [ 22 ] Mr.

W. has, as a result of his alcohol addiction, fallen into criminal activity for over 20 years. He is now 60, which means up until the time he was approximately 40, he had not committed any criminal offences. But starting in 1998, he has gone on to commit, according to the Crown, over 50 offences. [ 23 ] Mr. Jones quite rightly points out that there are some gaps in his criminal history, although not as lengthy as Mr. Jones suggested, but those gaps can be, according to Mr. W.'s counsel, be attributed to times where he remained sober and hence did not commit any crimes. [ 24 ] This link between Mr.

W.'s alcohol consumption and the commission of crimes is highlighted in the presentence report and the two Forensic Psychiatric Services Commission reports which have been marked as exhibits in this proceeding. The authors of the Forensic Psychiatric Services Commission reports dated June 19 and April 3, 2019, were unable to assist the Court with regard to providing insight into Mr. W.'s psychological and psychiatric circumstances and the possible risk that he will commit further offences, because Mr.

W. declined to participate in the assessments that they would have had to complete in order to provide that information to the Court. [ 25 ] What we are able to confirm concerning Mr. W.'s behaviour as it pertains to others, with regard to assaults or other violent crimes, is that in 1987 Mr. W. acknowledges that he was acting sexually inappropriately with a female friend while they were drinking.

In 2001, there was again an occasion where he was acting sexually inappropriately with a female while they were drinking; and for many, many years his alcohol consumption was so severe that he committed many breach offences because he was so intoxicated most of the time, he could not keep track of his obligations to bail or probation. [ 26 ] He has a history of other violent offences, including an aggravated assault, an assault, an assault causing bodily harm, and uttering threats.

He told the presentence report author that he could not remember the details of those behaviours towards persons that he had befriended when they were drinking alcohol together, because when he becomes intoxicated, he has no recollection of what occurs. [ 27 ] So Mr. W.'s cycle of alcoholism, his befriending people and then committing assaults against them has been, in his past, a matter of some repetition and that is how Ms. P. found herself the victim of this latest offence of sexual assault causing bodily harm on November 22, 2018. [ 28 ] It is also possible that, in addition to Mr.

W.'s alcohol consumption which can, in itself, cause some cognitive difficulties, he may have an underlying cognitive deficit history. Again, the Court is unable to ascertain that because Mr. W. did not assist by participating in the assessments that the Court ordered. It is also possible that Mr. W., due to his low educational level, may have some learning or understanding disabilities, all of which, in combination, could provide some underlying insight into Mr.

W.'s offending behaviour. [ 29 ] Now, when it comes to deciding on an appropriate sentence, the Court has to consider, first of all, the fundamental purposes and principles of sentencing. They are laid out in s. 718 through 718.2 of the Criminal Code . I am not going to repeat them here, but suffice to say that the Court is required in all cases of criminal conduct to denounce the behaviour, to try to deter the offender and others from committing similar offences. [ 30 ] In this particular case, it is necessary, and even Mr. W.'s counsel acknowledges, that Mr.

W. must go to prison, given the nature of the offence that he committed and the circumstances surrounding it, and the aggravating and mitigating factors arising from it. [ 31 ] I am unable to determine the level of Mr. W.'s moral culpability or blameworthiness, because there are far too many unanswered questions about his understanding of his situation, how he got himself into that situation, and the circumstances of the offence in relation to the undetermined mental and cognitive circumstances he finds himself in. [ 32 ] Ms.

P. has prepared a victim impact statement that was written and signed by her on December 7, 2018, a couple of weeks after the event. She describes the nature of the attack and words like, "I feared my life was over." She talks about his interactions with her in the past, including interactions with her family.

She talks about being choked on the day in question and being stopped and held against her will by him holding her down, punching her, that she was injured, including injuries to her genitals, and that she suffered physical injuries and damage to her property and loss of money. [ 33 ] She describes what she alleges are previous events between her and Mr. W., which I am not going to consider in deciding on an appropriate sentence. She also makes mention in her victim impact statement that Mr.

W. was the one who had the Listerine they were drinking and that he at one point held it up to her mouth to encourage her to drink more. [ 34 ] So dealing with aggravating and mitigating factors, I would first of all say that the Gladue considerations are neither an aggravating nor mitigating factor. They are other factors that must be considered in every case by the court involving indigenous offenders. I have gone over that topic already in these reasons. [ 35 ] The aggravating factors, and I agree with the Crown's list of them, include the following. [ 36 ] First, Ms. P. was a vulnerable indigenous woman.

She was intoxicated, making her even more vulnerable. She had limited means, residing in a shelter and relying on public transportation to get around. Second, Ms. P. was overwhelmed by Mr. W. He physically held her to the ground. He physically tried to choke her. He tried to render her incapable of repelling his advances. Third, Mr. W.'s actions in committing the sexual assault were at the higher end of the scale. He penetrated Ms. P.'s vagina, both digitally and with

his penis, and without taking any safety precautions by way of a condom. [37] Fourth, it is clear that Mr. W. has a lengthy criminal record with over 50 convictions and a related criminal record, includingfive convictions for violence and, in one particular case, a previous conviction involving Mr. W. choking the victim like he did in thiscase. At the time of this event, Mr. W. was under the term of multiple court orders by virtue of probation orders and a

section 810recognizance. [38] Further aggravating factors include that he provided the alcohol by way of the Listerine, that he either forced Ms. P. or certainlyassertively encouraged her to consume alcohol, and in doing so made her less capable of defending herself. [39] Finally, I consider it an aggravating factor that Mr. W. guided Ms. P. to a secluded area so that others could not observe what hewas doing and, by doing that, he was acting in a predatory way. [40] Mr. W. does have some mitigating factors. I would say the biggest one has to be the guilty plea in this matter, thereby savingMs.

P. the stress of having to give evidence in the matter. The Crown has kindly provided the decision of R. v. Ralph, 2014 BCSC 467,where the Court discusses the mitigating effect of a guilty plea and the Court says: … An early guilty plea in this sort of case spares the victims and family members from uncertainty and from the trauma of testifying andreliving the very unpleasant circumstances of these types of crimes. A guilty plea is also of benefit to the justice system [by] avoidingunnecessary trials.

As well, it can also be said, as was observed by the sentencing judge, that such a disposition at an early stage ofproceedings indicates an offender has taken responsibility for the crime and is a step on the road to rehabilitation of the offender. [41] Now, some might say entering a guilty plea back in February of 2019 and then being sentenced in November 2019 for an eventthat occurred in November of 2018 is not exactly early, but in fact it is, because Mr. W. entered his plea within a matter of four monthsof the events.

The delay has been, first, in getting the reports prepared and, secondly, in the Court having sufficient time to deal with Mr.W.'s sentencing. [42] The Court is unable to determine whether or not Mr. W.'s risk to reoffend is a mitigating or aggravating factor, because theCourt has no information about Mr. W.'s psychological and psychiatric makeup, because he did not participate in the assessments thatwere ordered. However, it is clear from the materials placed before me that Mr.

W. has a related record for violence against women,including violence of a sexualized nature, and it does not appear from the reports that have been prepared that Mr. W. has any insight intohis offending, and has very limited motivation to pursue any rehabilitation on his own. [43] In fact, he said to the presentence report author words to the effect that violence is a part of life on the streets andover-consumption of alcohol. If that is the perspective that Mr.

W. has, there is very limited chance that his rehabilitation is going to besuccessful. [44] The Crown in its written submissions, has provided the Court with eight cases of similar circumstances that suggest a variety ofpotential prison sentences for people who commit offences of a similar nature to that to which Mr. W. has pled guilty. A conditionalsentence order is not available in these circumstances, and the maximum sentence for the offence to which Mr.

W. has pled guilty,sexual assault causing bodily harm, is 14 years. [45] In any set of circumstances, the Court often has suggested to it a range of sentences.

Sentencing ranges are available to assistthe court in determining an appropriate sentence, but they are just that, they are ranges, and it is generally accepted that sentencesimposed in other cases can only be of limited assistance in determining a just and appropriate sentence. [46] Canadian courts, particularly the Supreme Court of Canada and appellate courts, have provided numerous cases in an attempt toassist and instruct sentencing judges on how to deal with the whole issue of ranges. [47] In R. v.

M.(C.A.), found at (SCC), [1996] 1 S.C.R. 500, the Supreme Court of Canada said at paragraph 92: … Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similarcrime will frequently be a fruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected tovary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencinggoals will depend on the needs and current conditions of and in the particular community where the crime occurred. [48] The latest commentary on the issue of range of sentences by our Court of Appeal is found in R. v.

Williams, 2019 BCCA 295,where the court said at paragraphs 57 and 58 the following: [57] This Court has adopted the approach of sentencing ranges because, in our view, they provide an optimal balance between furtheringparity and individualization in a sentence. Sentencing ranges are not more rigid than starting points but simply reflect an overview ofsentences that have previously been imposed for a particular offence.

They are intended to assist judges in arriving at a sentence that isconsistent with sentences for similarly situated offenders, in similar circumstances—furthering the principle of parity—withoutconstraining the judge’s discretion to go outside of the range to properly reflect the unique circumstances of the offence or the offender.They do not set out “practical minimum and maximum sentences.” . . . [58] Individual circumstances of the offence or the offender may require an increase or reduction from the range of sentence in order toensure that the sentence is a proportionate one that properly reflects the offender’s moral blameworthiness. [49] The cases provided by the Crown describe similar circumstances, similar types of offenders, and the range of sentence that mayor may not be appropriate for Mr.

W., in light of his personal circumstances, including his criminal history, the circumstances of theoffence, the Gladue factors, and the harm he has caused both to Ms. P. and to the community in general. [50] I am now going to turn to the actual sentence, Mr. W.

[ 51 ] Count Number 2 on the Information 49610-C-2 is a primary designated offence. Pursuant to s. 487.051 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 Data Bank. The samples will be taken from you while you are in jail. You must submit to the taking of the samples. [ 52 ] There will also be a lifetime weapons prohibition, Madam Clerk, under s. 109. Mr.

W., you are prohibited from possessing any firearm, crossbow, restricted weapon, prohibited weapon, prohibited device, ammunition, and explosive substance for life. [ 53 ] I am going to make the SOIRA order, Madam Clerk. Pursuant to s. 490.012, you are required to comply with the Sex Offender Information Registry Act for 20 years, because it is an indictable offence. That document will be brought to you, Mr. W., prior to you leaving the building. You are expected to sign it, so that I can sign it, so that it can be filed. [ 54 ] There will also be an order under s. 743.21 of the Criminal Code prohibiting Mr.

W. from communicating, directly or indirectly, with J.P. during the time he is in custody. [ 55 ] Mr. W., please stand up, sir. With regard to 49720, the shoplifting, in my view the appropriate sentence in that matter would have been 30 days in custody. You have 30 days of credit, so it is 30 minus 30 equals time served.

I am going to order that that sentence be concurrent, Madam Clerk, and not consecutive to the other sentence. [ 56 ] THE COURT: Sir, with regard to 49610-C-2, the charge of sexual assault causing bodily harm, I agree with the Crown, and in fact your lawyer accepts that it is probably the best and most just sentence. I am going to impose a sentence of five years in prison, or 1,825 days. You have 546 days of credit which means you will serve a further 1,309 days at a federal penitentiary. [ 57 ] I do not know if there is anything else we need to do today, counsel. [ 58 ] MS.

BOND: I need to stay the final file that I had referred to at the beginning of my submissions, Your Honour, so Crown is directing a stay of proceedings on File 49698, please. [ 59 ] THE COURT: Thank you. Anything further from your side, Mr. Jones? [ 60 ] MR. JONES: No, thank you, Your Honour. [ 61 ] THE COURT: Mr. W., you are going to have some time at the federal penitentiary to think about whether or not you can, with the time you have left in your life, turn your life around. It is up to you as to how you want to approach it. Nobody can help you until you are ready to be helped. Thank you, sir.

Please go with the sheriff. (REASONS CONCLUDED)