R. v. Green, 2022 BCPC 255

Citation: R. v. Green 2022 BCPC 255 Date: 20221004 File Nos: 88510-1 - Nanaimo and Registries: 242795-2C - Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REX v. INVINCEABLE GREEN BAN ON PUBLICATION PURSUANT TO s. 486.4(2) CCC ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE S. SIDHU Counsel for the Crown: A. Fok, M. Stacey Counsel for the Accused: Z. Myers Place of Hearing: Surrey , B.C. Dates of Hearing: August 3, 2021; August 15, 2022 Date of Sentence: October 4, 2022

Introduction [ 1 ] On August 25th, 2007, Invinceable Green, the offender, drove L.D. to an isolated and rural area of Nanaimo and physically and sexually assaulted her. He then left her there at that location. She was found by police walking on the roadway, intoxicated and partially naked. Mr. Green has pled guilty to sexual assault causing bodily harm. [ 2 ] On June 3rd, 2020, Mr. Green and Mr. Carlos Robles Palafox lived in a homeless camp in Surrey. They had an altercation, after which Mr. Green shot two arrows towards Mr. Palafox. One of the arrows struck Mr.

Palafox in the back and caused significant injury to his left lung, killing him. Mr. Green has entered a guilty plea to manslaughter. [ 3 ] Mr. Green now comes before me for sentencing. Position of the Parties [ 4 ] The Crown submits that the appropriate sentence is a jail sentence of six years for the sexual offence, followed by a six year jail sentence for the manslaughter. The Crown argues that the sentences ought to be consecutive as the offences are separate and unconnected, occurring years apart.

The Crown also submits that a total sentence of 12 years is not unduly long or harsh and, thus, the total sentence ought not to be reduced. The Crown argues that such a sentence is required to address the principles of sentencing, the gravity of the offences, and the moral culpability of the offender. [ 5 ] The Crown also seeks a number of ancillary orders including a s. 109 firearms prohibition, DNA samples under s. 487.01, and a 20-year SOIRA order. [ 6 ] Mr. Green acknowledges the seriousness of the offences and concedes that the sentences ought to be consecutive.

However, he argues that given his guilty pleas and expression of remorse, lack of criminal record, and difficult upbringing, the sentence sought by the Crown is excessive. He submits that a jail sentence of four years for the sexual offence and a consecutive three-year sentence for the manslaughter is appropriate. However, he argues that the total sentence of seven years violates the principle of totality and, thus, the sentence for manslaughter ought to be reduced to two years. Mr. Green submits that a jail sentence of six years imprisonment addresses the principles of proportionality and restraint. [ 7 ] Mr.

Green has been in custody since December 16th, 2020. Accordingly, he has been in custody for 657 actual days to today's date and 986 days with enhanced credit. That time is to be deducted from the sentence that he receives today. [ 8 ] My task is to determine what is a fit and proper sentence for Mr. Green. Facts [ 9 ] The facts regarding each of the offences were set out in separate agreed statements of fact.

Sexual Assault Causing Bodily Harm [ 10 ] I begin first with the facts relating to the offence of sexual assault causing bodily harm. [ 11 ] On the evening of August 25th, 2007, L.D. attended a birthday party at friend's home. She and her friends consumed alcohol at the party and then went for a limousine ride. She was 16 years old. [ 12 ] At approximately 10:30 p.m., the limousine stopped at the Nanaimo Aquatic Centre to allow the friends to use the restrooms. While some of the party guests went into the aquatic centre, L.D. stayed outside and walked around to the back of the building.

She did not return to the limousine. After a search by her friends failed to locate her, they contacted the police at 12:28 a.m. Unbeknownst to the friends, L.D. had been located at 11:40 p.m., five kilometres from the aquatic centre walking along a rural road. [ 13 ] Police officers driving on Nanaimo Lakes Road observed L.D., partially naked, walking alone on the street. L.D.'s black tank top had been pulled down, exposing her left breast. She was naked from the waist down. She had marks on her knees, a swollen left cheek, and blood near her genitals and on her hands. L.D. was intoxicated and confused.

She told police that she might have been sexually assaulted. She was transported to the hospital. [ 14 ] L.D.'s skirt, underwear and boots were located by police near a pull-out on Nanaimo Lakes Road. [ 15 ] At the hospital, L.D. was examined by a Sexual Assault Nurse Examiner. L.D. had numerous injuries. She had scratches, bruises and broken skin on her back, arms, right hip, thighs and knees. She also had a swollen left cheek and vaginal bleeding and tenderness.

Semen DNA was identified on a vaginal swab taken from L.D. and a DNA typing profile of an unidentified male was generated. [ 16 ] L.D. told the police that after she had become separated from her friends she remembered possibly being in a vehicle with an unknown male who took her to a forested area. L.D. could not recall having sex with the male. She stated that she would not have willing had sex with the unknown male and did not consent. [ 17 ] It was not until almost 13 years later, in June of 2020, when the police identified Mr.

Green as a donor of the DNA typing profile obtained from the vaginal swab taken from L.D. At the time, the police were investigating the homicide of Mr. Palafox and obtained castoff DNA from Mr. Green in the course of an undercover operation. The profile from the castoff DNA matched the DNA profile obtained from the vaginal swab. [ 18 ] During the undercover operation, Mr. Green admitted to sexually assaulting L.D. He stated that he was driving alone when a confused L.D. got into his vehicle at the aquatic centre. She told him she wanted to go home.

He did not know L.D. but was aware that she was under the age of 18. He drove her out to Nanaimo Lakes Road and pulled off at the side of the road. When she exited the car, he

pursued her. She fell to the ground and he jumped on top of her. He pulled off her underwear and hiked up her skirt. She struggled and he punched her in the face. He had sexual intercourse with her and ejaculated on her vagina. He drove away and left L.D. at the side of the road. Manslaughter [ 19 ] The circumstances of the manslaughter are as follows. [ 20 ] Mr. Palafox had immigrated to Canada from Mexico in 2011. In June 2020, he was living in the Lower Mainland and homeless. Members of the Surrey RCMP Mental Health Outreach discovered Mr. Palafox's body on June 4th, 2020.

The members were conducting foot patrols in an area commonly referred to as the “Billboards”, a heavily forested area located near Bridgeview Drive in Surrey. That day, the outreach team had been searching for displaced persons and homeless encampments to provide referrals for housing and community resources. [ 21 ] Mr. Palafox was located lying face down by police. His body was in full rigor mortis, and he had injuries to his back. The police searched the nearby area and located a single, intact arrow in a bush approximately 10 metres from Mr. Palafox.

Police also found a makeshift arrow target in the woods. [ 22 ] Mr. Palafox died from a penetrating arrow wound to his back. The trajectory of the arrow was back to front and there was no exit wound. The arrow caused injuries primarily to Mr. Palafox's left lung and caused his death. The pathologist recovered the arrowhead and the shaft. [ 23 ] Two days prior to the discovery of the body, the police had conducted routine checks in the Billboards. Both Mr. Palafox and Mr. Green were checked in the area on June 2nd, although they were not together. Video surveillance analysis indicated that Mr.

Palafox was killed in the very early morning hours of June 3rd, 2020. [ 24 ] During the investigation, the police identified Mr. Green as a prime suspect. The police conducted an undercover operation during which Mr. Green admitted to killing Mr. Palafox. He told undercover officers the following: 1) Mr. Palafox had tried to steal items from Mr. Green, and he demanded their return. 2) He yelled at Mr. Palafox who started to leave. However, when Mr. Palafox was 20 feet away, he stopped, turned around, and began to come back towards Mr. Green. 3) It was midnight and there was just enough light for Mr.

Green to see Mr. Palafox standing. 4) Mr. Green shot two arrows within 20 to 30 seconds. The second arrow hit Mr. Palafox but Mr. Green was unable to see where as it was dark. 5) Mr. Green went to check on Mr. Palafox. Mr. Palafox was laying on the ground and not breathing. He made a grunting noise one time. Mr. Green saw a lot of blood. 6) Mr. Green thought the arrow had snapped in half when Mr. Palafox fell. He collected the pieces of arrow but was unable to locate the arrowhead. 7) He threw the bow and arrow pieces in a swamp. [ 25 ] Mr.

Green accompanied undercover officers to the crime scene at the Billboards. He directed the officers to the area where the events had occurred. The information he provided was generally consistent with the police evidence. Mr. Green also pointed out where he had disposed of the bow and arrow pieces. Police recovered a black bag from that location which contained a bow, intact arrows, and the rear portion of a broken arrow. [ 26 ] A forensic examination determined that the rear portion of the arrow located by the police and the front portion of the arrow obtained from Mr.

Palafox during the autopsy had formed a single arrow. [ 27 ] At the time of the killing Mr. Green was intoxicated by drugs. [ 28 ] The plea to the manslaughter was premised on the basis that, while Mr. Green admitted to shooting the arrow which killed Mr. Palafox, he did not have the intention to do so. Mr. Green was reckless in shooting the arrow towards Mr. Palafox and knew that there was a strong likelihood that he could hit Mr. Palafox with the arrow which, in turn, could kill him.

Circumstances of the Offender [ 29 ] A pre-sentence report and psychological assessment were prepared for the purpose of sentencing. The reports detailed Mr. Green's background and circumstances. [ 30 ] Mr. Green has Indigenous heritage through his mother; however, he has not expressed interest in pursuing his Indigenous culture and indicated that he did not feel a connection to his Métis heritage. Mr. Green waived the preparation of a Gladue report. [ 31 ] Mr. Green is currently 36 years of age and was born in Nanaimo. He was raised by his biological parents and has two younger siblings. Mr.

Green's father abused alcohol and was mentally and emotionally abusive to both his mother and him. Mr. Green's parents often argued and fought in the home. There was also significant conflict between Mr. Green and his father which, on occasion, gave rise to physical altercations. Mr. Green's father treated him poorly, making negative comments to Mr. Green about Mr. Green's failings in life and poor potential. On one occasion, his father even told Mr. Green that he did not like or love him.

[ 32 ] In school, Mr. Green was often in trouble and engaged in fights with other students. He was expelled in Grade 3 for that reason. In Grade 8, he was transferred to an alternative school due to ongoing fighting. He returned to regular high school and graduated. [ 33 ] By Grade 8, Mr. Green was consuming alcohol and marihuana to escape his family life. He later moved on to other drugs including fentanyl, crystal methamphetamine and crack cocaine. He continued to use substances to self-medicate and to make things easier for him. Drug use became a constant part of Mr. Green's lifestyle.

Other than a brief period, he had consistently used drugs until his arrest for these offences. [ 34 ] Mr. Green lived with his parents until he was 19 years old. Over the next few years, he moved in and out of the family home, leaving for good at the age of 21. Mr. Green enrolled in college but dropped out primarily due to his drug use and homelessness. He ventured to Alberta and Quebec, eventually returning to live in the Lower Mainland. [ 35 ] Mr. Green has a limited work history. He was last employed as a bouncer when he was 24 years old.

He has not had any legitimate work since and receives social assistance and disability. He has been homeless for a large part of his adult life, by circumstance and it appears at times, by choice. [ 36 ] Mr. Green has had several intimate relationships. His most significant relationship was that with the mother of his son. She and Mr. Green had met when he returned to BC and cohabitated together for a short period. When Mr. Green relapsed with his drug use and made no further attempt to overcome his addiction, his son's mother told him that he was not welcome back at the residence.

After the parties separated, Mr. Green had supervised visits with his son until he refused to provide the social worker with his drug test results. Thereafter, Mr. Green has only had telephone contact with him. His son's mother advised that Mr. Green often called while he was high on drugs. His son is currently eight years old. [ 37 ] Mr. Green has not had any contact with his father for over 10 years. He has maintained contact with his mother but she reports it has been difficult because of his homelessness.

She has offered to assist him in accessing resources for substance abuse but he has not accepted. [ 38 ] Mr. Green has few friends and is estranged from his brother and sister. He is not currently in an intimate relationship and his community supports are limited. [ 39 ] Mr. Green does not have a criminal record. He has been in custody since his arrest in December 2020. While on remand, he has been in protective custody. He has had no difficulties in the institution and tends to keep to himself. Despite being offered, Mr.

Green has not availed himself of any programming, even declining an occasion. [ 40 ] The psychological assessment was prepared by Dr. Lindsey Jack. The report noted that Mr. Green embraced his street lifestyle and that he enjoyed living on the streets, the lack of responsibility and accountability, and using substances. Mr. Green told Dr. Jack that he felt respected on the street and often fought to protect his interests and property. He engaged in antisocial conduct which included endorsing violence to resolve problems and trafficking drugs. [ 41 ] The report also indicated that Mr.

Green's street lifestyle and drug use had left him vulnerable to assaults and violence. On one occasion, Mr. Green reported that he had been kidnapped and assaulted. On another, he attended at the hospital for a head injury he suffered from being struck on the head with a weapon. [ 42 ] When discussing the sexual offence, Dr. Jack noted that Mr. Green was clearly distressed and appeared to be crying. He stated that the crime was one of opportunity and that he was using drugs. He also informed Dr. Jack that he had just lost his job and was upset about his girlfriend cheating.

He refused to discuss the offence any further. He offered no explanation as to his motivation for the offence and could not understand how it happened. He was unable to identify his risk factors for the sexual offence. [ 43 ] Mr. Green was more amenable to discussing the manslaughter offence with the report writers, although he provided a version of events inconsistent with the Agreed Statement of Facts. Mr. Green has repeated a story that Mr. Palafox was coming towards him with a hatchet and it was then that he shot the arrows to scare him. Mr. Green also stated that the arrow hit Mr.

Palafox in the side. [ 44 ] The Agreed Statement of Facts did not refer to Mr. Green shooting an arrow as Mr. Palafox approached with a hatchet. The facts before me show that Mr. Palafox was struck in the back with the arrow. The photographs provided clearly depict the arrow wound to Mr. Palafox near the centre of his back. This is consistent with the fact that Mr. Palafox had his back turned towards Mr. Green when he was shot. [ 45 ] Mr. Green further stated to Dr. Jack that he panicked and thought that Mr. Palafox was going to die.

As such, he decided there was nothing he could do and gathered his belongings and left. He felt anxious and panicky afterwards and tried to forget about the incident going about his usual business. Mr. Green did not believe that his drug use caused the offence and was unable to identify risk factors. [ 46 ] Dr. Jack concluded that Mr. Green had an Opioid Use disorder but that the disorder did not directly cause the violence against Mr. Palafox. [ 47 ] Mr. Green acknowledged his use of violence to solve problems but did not view his substance use as increasing his risk for violence. Furthermore, Mr.

Green denied that his use of methamphetamines had any effect on his sexual interests or focus and did not identify substance use as a risk factor for the sexual offence. [ 48 ] Dr. Jack found that Mr. Green had little insight into the effects of his drug use and offending. She opined that Mr. Green's ongoing substance abuse and associated street lifestyle increased his risk for conflict and general violence. [ 49 ] Dr. Jack did not diagnose Mr. Green with a major mental disorder and was unable to say if he had a personality disorder. She did, however, note that Mr.

Green showed antisocial traits which interfered with his functioning. Those traits, which included unlawful

behaviour, sense of being unique, and indifference or rationalizing negative conduct, were risk factors which contributed to his offending. In Dr. Jack's opinion, Mr. Green's risk for future violent offending was high. [ 50 ] Because of his reluctance to discuss the sexual offence, she was not able to provide an opinion regarding Mr. Green's risk for sexual offending. However, based on the limited information provided by Mr. Green, Dr. Jack held that factors such as job loss, drug use, and relationship failure did not account for the severe escalation of the sexual assault. Noting Mr.

Green's lack of insight into his risk factors for the sexual offending, Dr. Jack held that understanding those risk factors was essential for effective risk management. [ 51 ] Mr. Green initially expressed ambivalence towards treatment and programming, indicating that he did not require it. He subsequently told Dr. Jack that he would accept any treatment and programming as ordered as part of his sentence. While Mr. Green has been able to manage relatively well in custody, Dr.

Jack noted that his coping strategies seemed to be avoidance, repression and withdrawal which would likely be barriers to programming. [ 52 ] With respect to future treatment or supervision, at page 17 of the assessment Dr. Jack writes: … issues are most likely to be responsiveness rather than compliance. It is early in Mr. Green's time in custody although so far he has not actively engaged in treatment or supervision but also has not caused problems in custody.

I expect he will complete programs as required but it will likely be challenging for him to do so given his reluctance to discuss personal risk factors (particularly regarding the sexual violence); his limited insight and his history of avoidance. In programming he may continue to suppress and block any actual emotional reactions, thereby limiting potential for internal change. [ 53 ] Counsel for Mr. Green has expressed concerns regarding the psychological assessment and submits that some of Dr. Jack's conclusions are unsupported by the objective facts and ignore statements of insight and remorse made by Mr.

Green. [ 54 ] First, he submits that Dr. Jack found Mr. Green to be a high risk for future violent offending based on Mr. Green's endorsement of using violence to resolve conflict and to deal with stressors. He submits that it is inconsistent with her acknowledgment that Mr. Green has not resorted to violence while in custody, demonstrating that he can avoid the use of violence when motivated to do so. [ 55 ] I do not find Dr. Jack's conclusions to be inconsistent with the facts. [ 56 ] First, her report must be read in its entirety. Her opinion that Mr.

Green poses a high risk for future violence was not solely based on his endorsement of violence to resolve problems but also due to drug use and street lifestyle. [ 57 ] Second, when Dr. Jack referred to Mr. Green's future risk and his endorsement of violence to resolve conflict, she was referring to his risk in the community, not in a custodial setting. A custodial setting is a very controlled and regimented environment, subject to constant supervision by institutional staff. Mr. Green is in protective custody and, thus, his opportunities to interact with other inmates are limited.

He has kept to himself and avoided interactions with others which he is able to do in a highly structured environment. However, once Mr. Green is in the community, outside the controls of the institution, he will be forced in interact and face challenges and stressors. [ 58 ] Dr. Jack was unable to provide an opinion about Mr. Green's risk for future sexual offending because of limited information and Mr. Green's unwillingness to discuss the details and motivations for the offence. Counsel advised that Mr. Green was uncomfortable speaking to Dr.

Jack about the sexual offence but that he was very upset about his crime. Counsel submits that it is inexplicable that, despite acknowledging that Mr. Green “hates” that he committed the offence and that he “cannot forgive himself”, Dr. Jack did not include these comments when scoring the Sexual Violence Risk-20 (SVR-20). She did not do so under the headings “Attitudes that Support or Condone Sexual Offending”, or under “Extreme Minimization of Denial of Sexual Offending”. [ 59 ] Dr. Jack clearly noted in her report that Mr. Green appeared remorseful and expressed distress about the sexual offence.

However, she found that information regarding the details of the offence and specifically what motivated Mr. Green to commit the sexual violence was limited. Without knowing what motivated Mr. Green, it was difficult for Dr. Jack to determine his underlying attitudes towards sexual offending. [ 60 ] Similarly, Dr. Jack felt there was insufficient information for her to assess whether Mr. Green was minimizing the sexual offending. While Mr. Green accepted responsibility and expressed remorse, he did not provide details of the offence which would have permitted Dr. Jack to consider any minimizing.

Accepting responsibility and expressing remorse do not necessarily indicate that an offender is not minimizing his participation in the offence. The manslaughter is a case in point. Mr. Green entered a guilty plea and was remorseful, yet he minimized his role in the offence by claiming that Mr. Palafox came towards him with a hatchet. [ 61 ] I accept Dr. Jack's opinion that there was insufficient information about the sexual offence for her to properly assess those factors. Victim Impact Statement [ 62 ] The Crown has tendered victim impact statements in relation to these matters.

Sexual Offence [ 63 ] Victim Impact Statements were provided by L.D.'s mother and father regarding the sexual offence. L.D. was unable to complete her own victim impact statement because of the trauma she suffered. [ 64 ] Her parents’ statements speak to the physical and severe emotional and psychological harm to L.D. as a result of the offence. The offence has left L.D. with feelings of anger, sadness, worry, bitterness and helplessness. After the offence, she was unable to function properly and had difficulty sleeping. L.D. was also fearful.

She feared that her classmates would learn about the details of the assault and that she would be judged for the crime. She feared about the potential long-term medical issues and about her ability to form healthy

relationships in the future. She lived with the fear that the perpetrator, whom she could not identify, was free in the community and couldappear at anytime. She feared that there was no safe place for her. [65] The impact of the offence has also been felt by her parents. They both struggle to deal with the guilt that parents feel when theyare unable to keep their children safe from harm. L.D.'s father spoke of the terror and devastation he felt when he first learned of hisdaughter's disappearance and his fear that she was dead.

L.D.'s mother suffered from repeated nightmares of losing her daughter and hasrequired therapy to deal with the trauma. Manslaughter [66] With respect to the manslaughter offence, a victim impact statement was filed by Mr. Palafox's brother, Julio Robles Palafox, onbehalf of himself and his mother. Mr. Palafox was a brother and son and loved by his family who resides in Mexico. He came to Canadafor adventure, to learn English, and to establish himself with a new job and friendships. Mr.

Julio Palafox describes his brother assomeone who had his flaws and virtues, but someone who was happy and deeply loved by his family. There is no doubt that Mr. Palafoxis very much missed by those who loved and cared for him. Sentencing Principles [67]

Section 718 outlines the purpose of sentencing and objectives a sentence may address. These objectives include denunciation,deterrence, protection of the public and rehabilitation. [68] As noted by the Supreme Court of Canada in R. v. C.A.M., (SCC), [1996] 1 SCR 500, the nature of the crimeand the circumstances of the offender will impact the weight and the importance to be given to each sentencing objective: see also R. v.Ipeelee, R. v. Ladue, 2012 SCC 13 at paragraph 37.

While there are other objectives and principles to be considered by a court, it is theprinciple of proportionality which must be reflected in all sentences. At paragraph 82 of C.A.M. the court emphasized the importance ofthe principle of proportionality when sentencing an offender.

It stated: …In the final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determinea "just and appropriate" sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender. [69] Proportionality incorporates both the principles of denunciation and retribution. Denunciation takes into account the gravity ofthe offence and ensures public confidence in the justice system.

In commenting on the role of denunciation in the sentencing process, thecourt in C.A.M. noted at paragraph 81: …The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender'sconduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct shouldbe punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. [70] Proportionality also encompasses retribution, a principle which ensures justice for the offender.

Retribution relates to the moralblameworthiness of the offender's action and is premised on the principle of restraint. As noted in C.A.M. at paragraph 80, “Retributionrequires the imposition of a just and appropriate punishment and nothing more.” [71] The importance of restraint when sentencing an offender is also noted in s. 718.2. In particular, s. 718.2(

e) states the following: A court that imposes a sentence shall also take into consideration the following principles: (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [72]

Section 718.2(

e) is a remedial provision, speaking to the principle of restraint and applies to all offenders particularly with respectto Indigenous offenders. Imprisonment is only to be imposed when no other sanctions are appropriate for the offence or the offender. [73] A primary purpose of this

section is to address the serious problem of over-representation of Indigenous persons in the prisonpopulation and to encourage judges to take a restorative approach to sentencing. Thus, when sentencing an Indigenous offender, asentencing judge must consider. (

a) the unique systemic or background factors which may have played a

part in bringing the particular Aboriginal offender before thecourts; and (

b) the types of sentences, procedures and sanctions which may be appropriate in the circumstances for the offender becauseof his or her particular Aboriginal heritage or connection: see R. v. Ipeelee at paragraph 59. [74] The unique systemic and background factors that play a role in the life of an Indigenous person are important factors to beconsidered as they may bear on the moral blameworthiness of the offender: Ipeelee at para. 73. [75] Gladue principles apply to all offences and there is no discretion as to whether to consider the systemic and background factorsof an Indigenous offender.

The only discretion of the sentencing judge is to determine what is a fit and proper sentence: Ipeelee at para.85. [76] At the end of the day, any sentence imposed must reflect the gravity of the offence, the moral blameworthiness of the offender,and the harm caused by the offence. Generally, the presence of Gladue factors in the life of an Indigenous offender will be a mitigatingfactor and reduce the offender's moral blameworthiness. Concurrent and Consecutive Sentences [77] As indicated, Crown seeks consecutive sentences.

When an offender is being sentenced for more than one offence, the sentence may be served concurrently or consecutively.

Section 718.3(4) of the Criminal Code provides that consecutive sentences should be considered for an offender where “the offences do not arise out of the same event or series of events.” [ 78 ] Thus, the test to determine if sentences should be served concurrently or consecutively is whether the acts constituting the offences are part of a linked series of acts within a single transaction.

Factors for consideration include the nature and quality of the acts, the temporal and special dimensions of the offences, the nature of harm caused to the victim and society, the manner in which the acts were committed, and the role played by the offender in the offences: R. v. Anderson , 2020 BCCA 297 at para. 82 ; see also R. v. Li , 2009 BCCA 85 . [ 79 ] Where consecutive sentences are imposed, the court must ensure that the aggregate sentence for the offences is not excessive or unduly harsh. The principle of totality is very much in play.

As noted in C.A.M. , the totality principle requires the sentencing judge to ensure that the cumulative sentences do not exceed the moral culpability of the offender, at para. 42. [ 80 ] When sentencing an offender for more than one offence, the sentencing judge ought to employ the following procedure: 1. The court must decide the appropriate sentences for each offence. 2. After taking into consideration the various factors set out in s. 718.2(4), the court must decide if the sentences should be concurrent or consecutive. 3.

If consecutive sentences are imposed, the court should assess the overall moral culpability the offender for the offences; and 4. If the aggregate sentence is excessive or unduly harsh, the court should adjust the length of the sentences to reflect the gravity of the offences and the degree of responsibility of the offender: Anderson at para. 90 . [ 81 ] A reduction of the aggregate sentence is not required where the total sentence is not unduly harsh but rather is proportionate to the gravity of the offence and the moral culpability of the offender: see R. v. Sipes , 2013 BCSC 383 ; and R. v.

Botticelli , 2019 BCSC 1330 . Aggravating Factors [ 82 ] When sentencing an offender, the court must take into consideration both the aggravating and mitigating factors. Sexual Assault Causing Bodily Harm [ 83 ] I first turn to the aggravating factors in relation to the sexual offence. I find the following to be aggravating factors: 1. The statutory aggravating factors listed in s. 718.2(a)(ii.1) and (iii.1) are both applicable.

They state: (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years; and: (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation... -- shall be deemed to be aggravating circumstances. L.D. was only 16 years at the time of the offence. The victim impact statements of her parents outline the profound and lasting impact the offence has had on L.D.'s life.

I also acknowledge the emotional, psychological, and physical harm to her as a result of the sexual offence. 2. The devastating impact of the offence on L.D.'s parents. They, too, suffered emotional and psychological trauma as a result of the offence against their daughter. 3. L.D. was intoxicated and extremely vulnerable at the time of the offence. 4. Mr. Green drove L.D. to an isolated area in Nanaimo in the middle of the night to commit the offence. 5. The sexual assault consisted of penile vaginal intercourse. The sexual act was extremely intrusive and of a significant nature. 6.

The sexual intercourse was unprotected and exposed L.D. to possible sexually transmitted disease and unwanted pregnancy. 7. The bodily harm suffered by L.D. was significant and consisted of numerous injuries to her. These included cuts, bruises, swollen left cheek and vaginal bleeding. 8. Mr. Green abandoned an injured L.D. alone, in the middle of the night, in an isolated area. She was partially dressed, naked below the waist and without shoes. Manslaughter [ 84 ] I find the following to be aggravated factors with respect to the killing of Mr. Palafox. 1.

The statutory aggravating factor listed in s. 718.2(a)(iii.1) which states:

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation... -- shall be deemed to be aggravating circumstances. Mr. Palafox died as a result of the offence. 2. The impact of Mr. Palafox's death on his family and friends. He was loved by his family and they grieve the loss of their brother and son. 3. Mr. Palafox was a vulnerable person. Like Mr. Green, Mr. Palafox was homeless and living on the streets without the safety or security of a residence. 4. Mr. Green used a weapon to kill Mr.

Palafox and shot two arrows towards him. 5. Mr. Green shot the second arrow when Mr. Palafox had his back to Mr. Green and was in a defenceless position. 6. Mr. Green took no steps to provide any medical assistance to Mr. Palafox after he shot him with the arrow. Rather, he left Mr. Palafox in a heavily wooded area to be found some time later. 7. Mr. Green's risk for future violent offending is high. Mitigating Factors [ 85 ] There are a number of mitigating factors which I also take into consideration. The mitigating factors include the following: 1. Mr. Green's guilty pleas and acknowledgment of responsibility.

The guilty plea to the sexual offence has spared L.D. the trauma of having to testify and valuable court time and judicial resources have been saved. The guilty plea to the manslaughter has saved significant court time and avoided what likely would have been a prolonged Hart voir dire . 2. Mr. Green has expressed remorse for the offences. 3. Mr. Green has had a difficult upbringing. His home environment was marked with alcohol misuse and emotional and physical abuse. In particular, his relationship with his father was poor and involved violence. 4. Mr.

Green does not have a criminal record and comes before the court as a first-time offender. 5. With respect to the manslaughter offence, I take into consideration that Mr. Green himself was homeless and attempting to safeguard his possessions from Mr. Palafox. [ 86 ] Mr. Green is of Indigenous heritage. I take into account the Gladue factors that may have played a role in the criminal offences committed by Mr. Green. Although Mr. Green does not identify as Indigenous, I am mindful of the unique and systemic background factors that have negatively affected Indigenous communities generally.

Specifically, I also take into consideration that those factors likely may have had an impact on his mother and his grandmother. Even though Mr. Green is not aware of how these systemic factors such as the effects of Indian residential schools, colonialism and displacement may have affected him or his family, I recognize that intergenerational trauma continues to impact Indigenous people. Sentencing Ranges [ 87 ] Counsel have provided sentencing ranges for the offences before the court. Before discussing those, I wish to make some remarks about the principle of parity. [ 88 ]

Section 718.2(

b) speaks to the principle of parity - in that a sentence an offender receives should be similar to that which is imposed on similar offenders for similar offences. The parity principle is intended to preserve fairness by avoiding disparate sentences where similar facts relating to the events and the offender suggest like sentences. [ 89 ] The principle, however, does not mean that equal or identical sentences are required for similar offenders or similar offences. The rule against unreasonable disparity requires understandable sentences when examined together: R. v.

Bhatti , 2016 ONCA 769 at para. 6 . [ 90 ] As noted in C.A.M. , there is no such thing as a uniform sentence for a particular crime. Sentencing is inherently an individualized process. Disparate sentences are permitted if they are warranted by all of the circumstances. [ 91 ] Thus, I remain mindful that while the principle of parity is an important objective of sentencing, it is secondary to the principle of proportionality and the imposition of a fit sentence. Sentencing ranges are useful and can provide the court with assistance but sentencing guidelines are just that - guidelines, not hard and fast rules.

The primary duty of the court is to impose a fit and proper sentence for this particular offence and this particular offender. [ 92 ] Sexual offences are crimes of violence in which the sexual integrity of the victim is violated. In serious sexual offences, absent exceptional circumstances, the sentencing principles of deterrence and denunciation are of paramount importance: R. v. G.M. , 2015 BCCA 165 at para. 17 - 18 . [ 93 ] This is particularly true where the victim of the sexual offence is under the age of

Section 718.01 states: When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[94] The Crown has provided a number of sentencing cases which they have grouped into three categories: sexual offences involvingsexual intercourse; sexual assault causing bodily harm of a stranger; and sexual offences against children. The sentencing principles fromthese cases are relevant to the matter before me in court. [95] In the case at bar, the circumstances involve a child victim who was a stranger to Mr. Green and with whom he had sexualintercourse and caused bodily harm. The Crown submits that these cases collectively support their sentencing position for a six-year jailsentence. [96] Mr.

Green has also provided authorities. He relies on the cases of R. v. Wren, 2004 BCCA 167; R. v. D.T.K., 2002 BCCA 190;R. v. Morgan, 2004 BCCA 628; R. v. R.L.W., 2011 BCSC 1363; and R. v. Latreille, 2009 BCSC 1892, to support his sentencingsubmission for four years of imprisonment. [97] I will first review the authorities of the Crown. [98] It has been accepted by our courts that absent unusual circumstances the range of sentences for sexual assault involving sexualintercourse is two to six years imprisonment: R. v. G.M. at para. 22; see also R. v.

Pouce Coupe, 2014 BCCA 255. [99] The Crown's cases regarding sexual assault causing bodily harm of a stranger provides a sentencing range of four to five yearsimprisonment: see R. v. Chinneck, 2005 BCCA 346; R. v. M.P., 2011 BCPC 382; R. v. Patrick, 2018 BCSC 1033; R. v. Nadeau, 2017BCPC 158. The range for these types of cases appear to be higher in Ontario, ranging from seven to nine years: see R. v. Assing, ; R. v. Wyatt, 2017 ONCJ 390; and R. v. O'Kane, 2021 ONSC 3946. [100] The Crown has also provided the recent case of R. v.

Friesen, 2020 SCC 9, a decision of the Supreme Court of Canada which haschanged the sentencing landscape for offences of sexual violence committed against children. Friesen sent a strong message thatsentences for sexual offences against children must be increased to give effect to Parliament's intent. In doing so, the court acknowledgedthe vulnerability of children and recognized not only the physical harm of sexual violence perpetrated on a child but also the emotionaland psychological harm which could be more pervasive and permanent.

The court stated that the wrongfulness of the sexual violence andthe harm, long-term consequences on children increased the gravity of the offence and the moral blameworthiness of the adult offender.As such, sentences for sexual violence against children needed to reflect the inherent wrongfulness of the offences, the potential harm tochildren resulting from sexual violence, and the actual harm caused to children. [101] In concluding that sentences for sexual violence against children ought to be punished more severely than where the victim is anadult, the court held that sentences for sexual violence, offences against children needed to be increased which required an upwarddeparture from the prior sentencing ranges. [102] The Crown argues that to give full effect to the ruling in Friesen, the sentencing ranges in the earlier cases must be adjustedupward.

They argue, as such, a six-year sentence for the sexual offence is the appropriate sentence in the circumstances of this case. [103] The sexual assault cases relied upon by Mr. Green provide a sentence range of four to five years. The cases cover a variety ofcircumstances. For example, Wren and R.L.W. involved violent sexual assaults perpetrated against intimate partners. In D.T.K., theoffender broke into the victim's home and sexually assaulted her by digital penetration. In Morgan, the offender confined and sexuallyassaulted a 16-year-old female in his apartment.

The offender in Latreille violently sexually assaulted a sex-trade worker. All of thesecases were decided prior to Friesen. Manslaughter [104] The sentencing range for manslaughter is broad, ranging from a suspended sentence to life imprisonment. As the offence can becommitted in many ways and across varying circumstances, the need for flexibility in sentencing is obvious. A manslaughter can becategorized from a near accident to a near murder, or somewhere in between. As such, the sentence can be tailored as needed to addressthe moral blameworthiness of the offender: R. v.

Cote, 2013 BCSC 2424. [105] Where the circumstances of the manslaughter presents as near accident scenario, the moral culpability of the offender is low and alesser sentence may be imposed. Where the circumstances are aggravated and the manslaughter meets a near murder scenario, a highersentence may be needed to reflect the offender's greater moral blameworthiness. To address the need for general deterrence andprotection of the public, the sentences in such cases will generally range between six to 12 years imprisonment.

A manslaughter whichfalls in the midrange, between a near accident and a near murder, will generally attract a jail sentence from one to seven years: Coteciting R. v. Mintert, (BC CA), [1995] BCJ No. 652. [106] In assessing the moral blameworthiness of an offender, the court may take into account a number of factors. These include thenature and quality of the unlawful act, the manner in which the offence was committed, the use of a weapon, and the degree of planningor forethought.

The court can also take into consideration the amount of force used by the offender, the presence of gratuitous violence,and the time involved in committing the offence: Cote at para. 56. [107] The primary sentencing objectives include denunciation, deterrence, and protection of the public. Rehabilitation is also aconsideration for the court. [108] The authorities provided by counsel set out the applicable sentencing principles and sentencing ranges. While the Crown hasprovided a number of authorities including R. v. Coopper, 2002 BCCA 259; R. v. Aburto, 2003 BCSC 925; R. v. Billings, 2004 BCSC653; R. v.

Danda, 2005 BCCA 533; R. v. Aubin, 2008 BCSC 400; R. v. Newton, 2016 BCSC 1440; R. v. Nguyen, 2017 BCSC 1401; R.v. Ansari, 2009 BCCA 381; R. v. Gillies, (BC CA), [1998] BCJ No. 1153; and R. v. Fabas, 2017 BCSC 1693, it isthe cases of R. v. Quinlan, 2009 BCSC 1327 and R. v. Mulligan-Brum, 2013 BCCA 231 which they say are the most helpful in the caseat bar. [109] In Quinlan, the offender had been drinking heavily and was intoxicated. While on a search to purchase more liquor, he

encountered a group of men with whom he had an altercation. One of the members of the group bopped the offender on the head with a liquor bottle and another pushed him to the ground. The offender began to walk away from the group. As he did, a beer bottle was tossed over his head, smashing in front of him. The offender took out a loaded gun that he had brought with him from home. The gun fell on the ground and fired. The group began to run away. The offender picked up the gun and shot eight times, striking three of the men, killing one of them.

After the shooting, he turned himself and his gun into the police and provided a full confession . [ 110 ] The offender entered a guilty plea and expressed remorse. The court noted that the offender's conduct was aggravating given the number of shots fired and the number of people struck. However, it found that the offender's actions, while foolish and reckless, did not involve any degree of planning. [ 111 ] The court took into account a number of mitigating factors, including the offender's young age, lack of criminal record and family support.

The court also noted that the offender was gainfully employed and had excellent prospects for rehabilitation. The court imposed a six-year sentence. [ 112 ] In Mulligan-Brum , the offender appealed a seven-year jail sentence for manslaughter. The circumstances of the offences were as follows. [ 113 ] The 16-year-old victim had been drinking with a group of friends and vandalizing cars, including the offender's vehicle. The offender came out of his residence, carrying a gun and pursued the group. He fired two shots from approximately 25 to 30 feet away and struck and killed the victim.

The offender entered a guilty plea. [ 114 ] The offender was 20 years old and had a criminal record for threats, obstruct, and driving offences. At the time of the shooting he was on probation.

The court expressed concern about the use of a handgun, the firing of the shots despite the limited visibility, and the time involved in committing the offence. [ 115 ] The court noted a number of mitigating factors: the offender's youthfulness, his significant family support, and his efforts in pursuing education. [ 116 ] The Court of Appeal dismissed the offender's appeal and held that the seven-year sentence of imprisonment was fit. [ 117 ] Mr. Green primarily relies on R. v. Stanford , 2017 BCSC 530 , and R. v.

Andrew , 2008 BCCA 141 in support of his position that a three-year sentence of imprisonment is appropriate. [ 118 ] In the case of Stanford , the offender was attacked by an extremely intoxicated victim who had mistaken him for another person. The victim pursued the offender and the two men engaged in a physical altercation. During the fight, the offender stabbed the victim seven times. The offender entered a guilty plea and expressed remorse. [ 119 ] The offender was 42 years old and had a minor, dated criminal record consisting of two driving offences.

He had completed some post-secondary education and was employed at the time of the offence. At the time of the offence, he was also addicted to substances. [ 120 ] While in custody, the offender undertook substance abuse counselling, attended AA and NA meetings and participated in Suboxone therapy.

While on bail, he went to a recovery house where he made substantial rehabilitative progress and demonstrated serious commitment and great insight into his substance abuse. [ 121 ] He had no previous violence in his history and the court was satisfied that specific deterrence was not required. [ 122 ] Given the offender's significant prospects for rehabilitation, a three-and-a-half year sentence was imposed. [ 123 ] In R. v. Andrew , the Crown appealed a two-year-less-a-day conditional sentence order imposed on the offender.

The offender and the victim were in the back seat of a vehicle after spending the day drinking beer and smoking marihuana. The victim and the offender had an altercation in the car. The victim punched the offender in the face. The offender attempted to get out of the vehicle but the victim tried to hold him back. The offender was able to leave but pursued by the victim. The offender took out his fishing knife and stabbed the victim twice. The offender was convicted of manslaughter. [ 124 ] The Crown sought a three to six-year jail sentence.

The offender sought a conditional sentence order. [ 125 ] The offender was 23 years of age, Indigenous, and suffered from fetal alcohol syndrome. He had provided a statement to the police and was remorseful. After the offence, the offender had engaged in counselling and had stopped using alcohol and drugs. He was employed and had been compliant on bail.

The offender had a minor, unrelated criminal record. [ 126 ] The sentencing judge concluded that a jail sentence of three years was a fit sentence; however, after taking into consideration the time the offender spent in custody, (four months), the court held that the sentence fell in the range of two years less a day. The offender was permitted to serve the jail sentence in the community. [ 127 ] The Crown appealed, arguing that a CSO was neither available nor a fit sentence. The appeal was allowed.

The BC Court of Appeal held that absent unusual circumstances for the type of offence committed by the offender, the bottom end of the range was a four-year custodial sentence. At paragraph 19 the court stated: A sentence of less than three years would not have been a fit sentence.

It is debatable whether the mitigating factors constitute unusual circumstances such that a sentence of less than four years can be considered appropriate, but I am not persuaded that the conclusion of the sentencing judge in this regard should be disturbed in view of the position taken by the Crown at the sentencing. [ 128 ] Because the offender had been having success with his rehabilitation and had served a portion of his conditional sentence order, which included house arrest and community work service hours, the court replaced the illegal sentence with one of two years and five

months' jail. Analysis Sexual Assault Causing Bodily Harm [ 129 ] Mr. Green has entered a guilty plea to sexual assault causing bodily harm. The circumstances which give rise to the sexual offence committed by him are very serious and cause the court significant concern. [ 130 ] L.D. was a vulnerable 16-year-old child who was driven by Mr. Green to an isolated and rural area where she was violently sexually assaulted. With complete disregard for her safety and well-being, Mr. Green abandoned an injured and intoxicated L.D. alone in the middle of the night at roadside. L.D. was a complete stranger to Mr.

Green. [ 131 ] Mr. Green's motivation for the sexual offence and his risk factors remain unknown. He has, however, taken responsibility for the offence and expressed remorse. I also take into account his personal circumstances, including the lack of a criminal record and the Gladue factors. However, the gravity of the offence is high and Mr. Green's moral culpability is great. [ 132 ] I do not accept that a four-year jail sentence proposed by Mr. Green is an appropriate one, particularly in light of Friesen .

Such a sentence does not reflect the inherent wrongfulness of the offence, the potential harm to L.D. resulting from sexual violence, and the actual harm caused to her. Nor does such a sentence address the paramount sentencing principles of denunciation and deterrence. There is a strong need to denounce this conduct and to deter others from committing crimes of sexual violence against children. [ 133 ] I have considered the applicable sentencing principles, the nature of the offence, and the circumstances of the offender. Given the gravity of the offence, the moral culpability of Mr.

Green, and the harm caused by his conduct, I find that an appropriate sentence is one of six years imprisonment. Manslaughter [ 134 ] Mr. Green has also entered a guilty plea to manslaughter and expressed remorse. The mitigating factors include his lack of criminal record, his personal circumstances, and the Gladue considerations. [ 135 ] There are also a number of aggravating factors including Mr. Green's use of a weapon, the shooting of two arrows, and his failure to provide assistance to Mr. Palafox. As well, I take into consideration that Mr.

Palafox was homeless, thus vulnerable, and that he was defenseless when shot. [ 136 ] Mr. Green relies on the cases of Stanford and Andrew to support his position that a three-year sentence is appropriate. I find that those authorities are distinguishable from the case at bar, in particular with respect to the offender's personal circumstances. [ 137 ] In both Stanford and Andrew , the offender had made significant rehabilitative efforts to address their risk factors. In Stanford , the offender undertook substance abuse counselling and attended AA and NA meetings in custody.

He also attended at a recovery house where he actively participated in treatment and programming. The court held that he had excellent prospects for rehabilitation. [ 138 ] In Andrew , the youth offender attended for counselling after the offence and stopped using substances.

It is noteworthy that even despite those efforts by the offender and the presence of other mitigating factors, the appellate court indicated that a fit sentence would have been four years of imprisonment, although they did not interfere with the sentencing judge's view a three-year sentence was appropriate, given the Crown's position at sentencing. [ 139 ] In contrast, Mr. Green has not taken any programming or treatment while in custody for almost two years. The psychological assessment notes that Mr.

Green did not have insight into his risk factors, nor believe his substance abuse had impact on his criminal offending. He has now, through counsel, indicated that he recognizes the need to address his drug addiction. I consider that information with caution as I am uncertain if Mr. Green truly believes that in light of his past comments to Dr. Jack and given the stage of these proceedings. [ 140 ] Taking into consideration the relevant sentencing principles, the gravity of the offence, and the moral blameworthiness of Mr.

Green, I find that the appropriate sentence for this offence is a jail sentence of five years. [ 141 ] The Crown submits that the sentences for the two offences ought to be consecutive. They argue that the offences were completely unrelated matters that occurred years apart. I agree with the Crown and am satisfied that consecutive sentences are appropriate in these circumstances. [ 142 ] I must then consider whether the total sentence of 11 years imprisonment is appropriate. In doing so, I need to ensure that the total sentence is not unduly harsh, nor exceeds the overall moral culpability of Mr.

Green. [ 143 ] In taking into account all of the circumstances, I am satisfied that there ought to be a reduction in the total sentence to properly reflect the principle of proportionality and restraint. [ 144 ] Therefore, I reduce the sentence for manslaughter from five years to four years, for a total sentence of imprisonment of 10 years. Mr. Green is to be credited with 986 days to reflect the time he has spent in custody. [ 145 ] There will also be mandatory ancillary orders. [ 146 ] There will be a DNA order for both offences, pursuant to s. 487.051(1) of the Criminal Code .

Sexual assault and manslaughter are primary designated offences. I authorize the taking of samples of one or more bodily substances for the purpose of forensic DNA analysis. The samples will be taken from Mr. Green while he is in custody and he must submit to the taking of the samples.

[ 147 ] There will also be a weapons prohibition pursuant to s. 109 of the Criminal Code . Mr. Green will be prohibited from possessing any firearm, crossbow, restricted or prohibited weapon, prohibited device, ammunition, or explosive substances for 10 years following his release from prison. [ 148 ] He is also prohibited from possessing any prohibited firearm, or restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 149 ] Sexual assault causing bodily harm is a designated offence and, thus, Mr.

Green must comply with the Sexual Offender Information Registration Act , pursuant to s. 490.012 of the Criminal Code . It will be for a period of 20 years. [ 150 ] Given the lengthy term of imprisonment Mr. Green has been sentenced to and in light of his personal circumstances, I waive the applicable victim fine surcharge as it would be a financial hardship. (ORAL REASONS FOR SENTENCE CONCLUDED)