R. v. P.E.L. Date:, 2011 BCPC 274

Citation: R. v. P.E.L. Date: 20110914 2011 BCPC 0274 File No: 46552-2-KC Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. P.E.L. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.R. SMITH Counsel for the Crown: H. Pontious Counsel for the Defendant: J. Thorne Place of Hearing: Vernon , B.C. Date of Hearing: September 14, 2011 Date of Judgment: September 14, 2011 [ 1 ] THE COURT: Before me today is P.E.L. He is in his late 20s, single, no children, raised in Salmon Arm, British Columbia. His father died in a house fire in 1999. His mom, with the children, moved to Ontario.

The accused, for three-and-a-half years, worked as a diamond driller with a home base out of Ontario. His grandfather died. He received a large inheritance and had this good income from the diamond drilling work. [ 2 ] I am told that he was depressed over his father's death and, with all of this money in his pocket, he started doing cocaine and drinking.

He had not been diagnosed with any particular mental health thing at that time, but he was subsequently years later diagnosed with schizophrenia and depression. [ 3 ] He, starting in Ontario in 2002, had multiple criminal convictions; in November of 2002 in Timmins, Ontario, care and control while impaired and possession of a scheduled substance dealt with by way of fines.

In February of 2005, multiple other offences, some seven offences, mischief, obstruction, attempting to choke or strangle another person contrary to s. 246 of the Criminal Code , failing to comply with recognizance, driving while disqualified, and assault. So two of those six that I have said thus far were violence related and the seventh matter was yet another failing to comply. [ 4 ] On all of those things, they were dealt with by way of jail, but not long windows of time with jail, mostly probation and short sharp jail sentences of either 30 or 60 days.

The jail time I see was consecutive so I guess maybe it would be fair to say that the global

disposition was closer to three months. [ 5 ] So he would have been out of jail probably around April of 2005 and then his next registered convictions were in Timmins, Ontario, in February of 2006, failed to comply with a probation order and failed to comply with a recognizance, dealt with by way of 60- day consecutive sentences. So yet another four months of jail, in effect. [ 6 ] So he would have gotten out sometime in the late spring of 2006 and he was convicted in December of 2006 in Ontario of uttering a criminal threat and received another 24 days jail plus another year of probation.

Eleven months later on the 20th of November, 2007, he received another 30-day jail sentence for five other offences, theft over, uttering a criminal threat, failing or refusing to provide a breath sample, driving while impaired, failing to comply with a probation order. In addition to the 30 days jail, he had another probation order for one year. [ 7 ] The pattern that I am saying here is he has actually been on some form of supervision or probation, if not in jail on some short sharp sentence, for many years now.

So he would have gotten out of jail in late 2007 and then he was next convicted of multiple offences in June of 2008, two counts of assault dealt with by way of four months conditional sentence; in addition, a mischief and a failing to comply with probation order. I gather he had also done a couple of months of dead time prior to that and it was dealt with - as I say, all of it was dealt by way of a conditional sentence. [ 8 ] However, while that conditional sentence was outstanding -- oh, I stand corrected.

Just within weeks -- less than a month after that conditional sentence had ended, he was then convicted in November of 2008 of a break and enter and failing to comply with probation and received three months jail in addition to the 67 days of pre-trial custody. [ 9 ] So he gets out of that either at the end of 2008 or early 2009 and he is out of jail in Timmins, Ontario, and then he is convicted for several more offences in October of 2009 in Ontario, break and enter, possession of property obtained by crime times two, fail to comply with probation times three, unlawfully at large.

All in all, he received a global eight-month jail sentence and, in addition to those eight months, he had also served another three months of pre-trial custody making the time in jail 11 months. [ 10 ] So that is the background of his criminal record.

The Crown points out that in total there were six offences that were violence related. [ 11 ] With that background, I am told while in jail at some point or while under supervision from some sentence, some doctor diagnosed him with the schizophrenia and attention deficit hyperactivity disorder and severe depression and he went through a gambit of different medications eventually settling on the medication called Conserta, and he tells his lawyer that that medication worked well, but when he got out of jail on the 5th of January, 2011, he was on that medication and he was able to get his job back.

He started drinking again and was having difficulties then getting the medications and he lost his job. [ 12 ] Everything went downhill again and, while it was all downhill, he moves to B.C. on the 26th of May, 2011. It is basically two months later in late July 2011 that takes us to the offence dates that I am now sentencing him for.

I am told that throughout all of this time in Ontario, he has never received any drug and alcohol residential treatment or even non-residential treatment, that the closest to anything like that he has done was on two occasions going to detox. [ 13 ] Now, we come to the present offence for which I am sentencing, for which he has pled guilty on four counts. One is Count 8 which alleges that on the 23rd of July, 2011, he assaulted his common law near Vernon. They were living in some type of a mobile home park and, on that date, of the 23rd of July, 2011, he and his common law were in some kind of an argument.

It really matters not what the argument was about. The unfortunate thing is how it ended. [ 14 ] It ended with P.E.L. choking Ms. F. and some third party more elderly neighbour lady coming and asking the accused to let go and he did comply with that request and none of that incident was reported to the police on the 23rd of July. [ 15 ] However, three days later on the 26th of July, 2011, the violence escalated. The parties were both drinking. Ms. F. had gone to this other neighbour lady's place to return some dish. She did not return to her trailer as quickly as P.E.L. would have liked her to.

P.E.L. then goes to that residence and brutally assaults not only his girlfriend, Ms. F., but also the two elderly people that were living in that residence, that being D.B. and Y.H. [ 16 ] P.E.L. tells his lawyer that when he came over to the residence, he was agitated, but what made things worse was that Y.H. had a bat in hand. That may be true. I am not sure. Not a lot turns on that because this was not a situation where Y.H. had in any way struck P.E.L. and it was Y.H.'s house and he has this angry man coming into the residence.

So in all of that context, it might be true, what is being said there, I do not know, but what is accepted by everyone is that P.E.L. just lost it, flipped out, as it were, and started acting up very violently with all three of those people there. [ 17 ] He picked up a bat that was in the residence. He started striking and beating his girlfriend, Ms. F., with the bat striking her on the arms, legs, ribs, right ear.

Y.H. tried intervening and the accused, P.E.L., then turned on Y.H. with the bat and struck him on the arm and struck D.B. when she tried intervening and this pattern seems to have repeated itself on multiple times. This was not an insignificant beating. I have seen the photos, lots of broken bones, and it just did not end after the initial assaults. [ 18 ] As I see my detailed notes here now, I might have misspoke just a little bit earlier.

When he initially was hitting his girlfriend with the bat, he was hitting her in the arms, legs, and back and Y.H. tried to intervene and Y.H. was struck in his arms and ribs with the bat and the accused then punched and kicked this elderly Y.H. to the ground and then the accused's girlfriend started yelling again at the accused and that deflected the attention of the accused from the elderly gentleman that he was beating back to his girlfriend.

He came at her again with the bat and hit her and then he struck the coffee table and broke it, slammed the bat on the floor of the trailer, broke the bat, picked up a broken piece of the bat and began hitting his girlfriend with the broken piece of bat. [ 19 ] Then the elderly lady, D.B., tried intervening and yelling at him to stop. Unlike three days earlier when he followed those directions, this time he turned the bat on D.B. and hit her in the back and the ribs and then he poked her in the chest and swung the bat at

her again and she reached out her left arm to block the swing and I see a picture of where the bat landed just below the left elbow doing significant damage there. [ 20 ] Then the girlfriend yells at the accused to stop and so he stops hitting the elderly lady and turns back on his girlfriend.

At some point, she tells him, "You promised not to kill me." It seems that that comment had some kind of a calming influence on him because he repeated, "I promised not to kill you," and he became apologetic and started hugging her, but after being apologetic and hugging, he started telling everybody in the trailer, all of the other three, that if any one of them would be a rat, he would come and "fucking kill them." He said, "You call the cops and you are all dead." [ 21 ] One of the elderly couple said something along the lines that they were not going to comply with that and the accused then hit the elderly gentleman again and he then helped his girlfriend get up to get her outside and back to the other trailer.

The accused is telling his girlfriend that their friend, J., was going to be there soon with the beer and that they would all be happy again. Evidently, sometime shortly thereafter, this fellow, J., did come with the beer, but the victim, Ms.

F., did not go with those two gentlemen as they then took the beer and left and went somewhere else to do their drinking. [ 22 ] The police were called, the arrest was made, but even before the arrest, of course, there is the ambulance that comes out to Coldstream near Vernon, multiple ambulances because you have multiple victims, and I have read from the victim impact statements and I am not intending to read that totally now, but anyone reviewing the sentencing of this really must take the time to read those victim impact statements. [ 23 ] They speak of three individuals who to this day continue to be terrified of this man, the comments that one might expect from his ex-girlfriend that she now has a sleeping disorder and has nightmares every night and that she feels like she has been left broken and battered and that she is paranoid and boards up all of her windows in her home and that she is constantly looking over her shoulder and sometimes even scared to open her eyes.

Such is the emotional damage done to someone that gets repeatedly hit with a baseball bat by someone that is a lot bigger than them. [ 24 ] With all of that background -- oh, and I should make it clear, there are four charges for which I am sentencing. For the 26th [sic] of July, there is but one count and that is a common assault on Ms. F. and, with regards to the 26th of July, there are three guilty pleas, one of aggravated assault on Ms. F., one of assault with weapon with the victim being D.B., and then another assault with weapon with the victim being Y.H.

The weapon in question, of course, is the baseball bat. [ 25 ] The aggravated assault charge was in part because of the broken bones. In particular, the girlfriend had a broken right forearm. Her right pinkie finger was broken. She had extensive deep tissue bruising in multiple places. She had a black eye. For the first few days, she was in a wheelchair, I think four days.

It was a significant battering in circumstances where she felt unsafe even being in this province and then moved from here back to Ontario and, of course, had to endure the pain of travelling in a car back to Ontario in this condition making frequent stops because of the pain of it all. [ 26 ] So that is the gist of the victim impact statements where notwithstanding all of the significant physical injuries, it is pretty apparent from the victim impact statements that mental and emotional injuries far outweigh the physical injuries notwithstanding the seriousness of the physical injuries in this case. [ 27 ] That having been said, Crown submits that the proper range of sentencing without mitigating factors for this type of offence would be four to six years jail if there was a conviction after trial and, giving significant credit for the mitigating factor of an early guilty plea, that I should impose three years jail.

Defence agrees that the range of sentence for this type of violent offence would be in the federal range. She is not asking for two years less a day or anything lower than that. She is simply asking for a global two-year sentence in federal time. [ 28 ] I have been doing this job for 15 years now. I am all too familiar with the provisions of the Criminal Code and the things that I need to be considering here on such a serious matter. I do and have turned my mind to all of those sentencing principles. [ 29 ] I have been referred to four cases, two by the Crown and two by defence.

The Crown provided me with the Woodward case. It was a 2010 case of our British Columbia Provincial Court Judge Palmer dealing with an aggravated assault in a so-called gay bashing where a six-year sentence was imposed. [ 30 ] The other case that the Crown referred to was the 2005 British Columbia Court of Appeal case of Craig . In that case, the accused had initially been charged with attempted murder, but was eventually sentenced on aggravated assault. That accused had no violent record, was remorseful.

He was in a 23-year relationship and he got out a knife and stabbed his former wife some few short days after they had separated, stabbed her three times in the lower abdomen before someone else pulled him off. In that case, the Court of Appeal that later reviewed it indicated that two years would be at the lower end for this type of violence for someone who had no record. [ 31 ] Defence referred to two cases, firstly, the Schindler decision reported at 2003 BCCA 617 . In that case, it was before my sister, Judge Cartwright, in Kelowna. The accused was aged 37.

He had a very long record including 12 prior violence-related convictions. The Crown had proposed a one-year jail sentence. [ 32 ] Defence asked for a conditional sentence. In those days, in 2003, a conditional sentence was a legal sentence. Nowadays, the law has been changed such that a conditional sentence, of course, is no longer an option where there is this kind of violence involved.

At any rate, Judge Cartwright did not limit her range of sentence to what the Crown had proposed and, even though the Crown had proposed one year, she imposed two years and, on appeal, that two-year sentence was upheld. [ 33 ] Part of the problem I have with this particular case is that for whatever reason, the circumstances are not really set out with regards to what happened other than to say that it was serious.

So it is hard to make a comparison from that point of view, but it was but one victim and not three. [ 34 ] Then I was also referred to the Walker decision, another Provincial Court decision that is local given by my brother Judge

Chapman. I have a copy of that. I do not know whether that is reported now or not, but it is Kelowna Registry File 74439-1, a terrible fact pattern of assault with weapon, just one victim in a domestic relationship where the accused, after beating up his partner, then chose to up the ante by getting some scissors and cutting open the forehead of the complainant with the scissors leaving a permanent scarring on the forehead. That accused also had a significant record for violence. [ 35 ] The Crown had asked for two years jail and three years probation.

Defence counsel was the same defence counsel as in the case at bar and she tells me that she was asking for some lesser jail sentence in that case. Judge Chapman eventually decided to impose the two-year jail sentence that the Crown was seeking coupled with that lengthy probation order. [ 36 ] Now, all of those cases are good guiding principles. The difficulty is when dealing with these types of situations, one could never find an exact fact pattern. [ 37 ] The mitigating factors in the case at bar are, firstly, this guilty plea.

This accused really did plead guilty at a very, very early opportunity and significant credit is given for that mitigating factor. A much lesser significant mitigating factor is the fact that he has done 20 days of dead time. The reason that that is much less significant is because he has pled guilty so quickly that he just really has not been in jail very long yet. [ 38 ] MR. THORNE: I think it is 40 days. [ 39 ] THE COURT: Forty days? [ 40 ] MR.

THORNE: All of August. [ 41 ] THE COURT: Okay, I misspoke with that, 40 days, but still, the reason that it is not a long time that he has been in jail is because he has pled guilty at such an early opportunity. He has never done federal time before.

I do not know if I would call that mitigating, but it would sure be aggravating if he had. [ 42 ] He has been diagnosed with these mental health issues as schizophrenic, who probably was not properly medicated at the time of this offence, but also in circumstances where he is not medicated because he has fled the province where he was at where they knew how to treat him and he is here and he is self-medicating with alcohol, a recipe for disaster. [ 43 ] I am first going to address the ancillary orders and then I will come back to the length of the jail sentence. First, the DNA order is now made.

This is a primary offence and I direct that he provide a DNA sample as soon as practicable for that purpose. [ 44 ] I now make the s. 109 firearm prohibition order. When someone has this many prior violent offence convictions and now these four really serious ones, one an aggravated assault, notwithstanding the fact that he perhaps has never been under such a prohibition before, I now impose that lifetime firearms prohibition order. [ 45 ] THE CLERK: Your Honour, does that prohibition order and the DNA apply to all four counts, on each one, like each -- [ 46 ] THE COURT: Yes, that is a good question.

No, I think I will not do that. Why do we not do all of this on the Count 1 because it will just make it cleaner if I just do it -- [ 47 ] THE CLERK: Okay.

Thank you. [ 48 ] THE COURT: -- on the one count and then I will not do it on the other ones. [ 49 ] THE CLERK: Okay, thank you, Your Honour. [ 50 ] THE COURT: That is the aggravated assault count I am talking about. [ 51 ] THE CLERK: Yes, thank you. [ 52 ] THE COURT: I do waive any victim fine surcharge in a case like this because he is going to be incarcerated so long that that makes no sense, which brings me, then, full circle to the one last part of this and that is the length of the jail sentence, be it the two years that counsel for the accused is requesting or the three years that Crown counsel is seeking.

You can find cases that are so all over the road in this regard. [ 53 ] It is clear that it would be a federal sentence, by that, I mean something in the range of two to six years after trial. I think that that general comment is a correct one for an aggravated assault of [sic] someone who has multiple prior violence-related convictions. How could I possibly disagree with the Court of Appeal in the Craig decision when they say that two years would be at the low end of an aggravated assault conviction even for someone who had no prior violence-related record? [ 54 ] Here we have some aggravating factors.

We have this related criminal record for violence. We have the fact that it was two separate incidents. We have the fact that it is aggravating that it is a K file, by that I mean a domestic assault. We often say that that is an aggravating factor and then you wonder if that is really the case when you look at the sentence and whether it is just lip service, but truly, that is an aggravating factor. We have the fact that there are three victims as opposed to one. [ 55 ] Having said all of that, I think the Crown has got it right. I impose on the lead Count 1 three years.

On the other counts, I will impose on Counts 3 and 4 one year concurrent on each of them and on Count 8, six months concurrent. [ 56 ] I think that covers everything because -- hey, look, P.E.L. I am hoping that you can do better than this. Really, you know, like you have been dealt a bad deck in some ways, right, with some of the issues that you are struggling with, but on the other hand, you have got to appreciate if you were sitting where I am, my goodness --

[ 57 ] THE ACCUSED (via videoconference): [Indiscernible]. [ 58 ] THE COURT: -- this lady was worried that she was going to die from this and she had good reason for worrying about that. But you can do better than this. I am counting on you finding some way to reach within here and find the better part of you to do better with all of this. Do your time, but find a way to just appreciate you just cannot allow yourself to get in this kind of a rage again. [ 59 ] You say that you have not got a lot of the counselling, but a lot of these things are available right within the facility where you are going to be.

I know it is not quite the same as doing it when you are out in the fresh air of, you know, non-custodial air, but still you need to start with taking advantage of all those programs that you can, because you can do better than this. You are still pretty young and you can do better than this and I do wish you luck at your efforts at trying to rehabilitation yourself. Good luck. [ 60 ] THE ACCUSED: Thank you, Your Honour. [ 61 ] MR. PONTIOUS: Your Honour, I will direct stays of the other counts we did not -- [ 62 ] MR. THORNE: Yes, thank you.