R. v. Perimal, 2018 BCPC 162

Citation: R. v. Perimal 2018 BCPC 162 Date: 20180606 File Nos: 217602-2-KB, 223358-1-K, 224460-1- K (Surrey); 62319-1-K (Richmond) Registries: Surrey/Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. ADRIAN DEEPAK PERIMAL ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. GAFFAR Counsel for the Crown: W. Sayson, Q.C. Counsel for the Defendant: R. McConchie Place of Hearing: Surrey , B.C. Date of Hearing: June 5, 2018 Date of Judgment: June 6, 2018

INTRODUCTION [ 1 ] THE COURT : Adrian Deepak Perimal is before me for sentencing on a series of assault charges, all of which relate to his former intimate partner, Robyn Folster. He has pled guilty to an assault arising from an event in February of 2016. He has also pled guilty to an assault on Ms. Folster in July of 2017 and a breach of probation matter arising from the same incident.

He has also pled guilty to assault causing bodily harm arising from an incident on April the 1st, 2017. [ 2 ] The Crown seeks sentences as follows: With regards to the February 2016 assault, the Crown seeks a sentence of two months in custody, plus two to three years of probation. With regards to the July 16 assault, the Crown seeks a sentence of four months in custody, consecutive to other sentences, plus two to three years probation.

With regards to the breach of probation arising from the July 2017 incident, the Crown seeks a four-month custodial sentence, concurrent to the July 2017 assault but consecutive to all other sentences. With regards to the April 2018 assault causing bodily harm, the Crown seeks a sentence of 12 to 15 months in custody, plus two to three years probation. [ 3 ] The defence seeks the following sentences: On the February 2016 matter, the defence seeks a suspended sentence plus two years probation.

With regards to the July 2017 assault, the defence seeks a sentence of 30 to 60 days in custody, consecutive to all other sentences. With regards to the breach of probation arising from the same incident, the defence seeks a seven-day, ostensibly concurrent but probably consecutive sentence (in accordance with the law) to all other sentences.

With regards to the April 2018 assault causing bodily harm, the defence seeks a sentence in the range of six to nine months, consecutive to all other sentences, plus two years probation. [ 4 ] I must apply and balance the sentencing principles in s. 718 through s. 718.2 of the Criminal Code as I consider the circumstances of the offences and Mr. Perimal. I must also assess any aggravating or mitigating factors arising from the circumstances of the offence and Mr. Perimal.

Some of the principles of sentencing may require more emphasis than others, in all the circumstances. [ 5 ] The parties are agreed that denunciation (meaning the community's condemnation of Mr. Perimal's conduct) and deterrence (both with regards to other members of the public in similar situations, as well as Mr. Perimal) are the primary sentencing objectives for this sentence. However, the parties also agree that the principle of rehabilitation, which in many ways serves to best protect the public and Ms. Folster, is also a factor on sentencing; and of course I shall not ignore that.

CIRCUMSTANCES OF THE OFFENCES [ 6 ] The offences, simply put, are as follows: On February 15th, 2016, Ms. Folster and Mr. Perimal had been to a hockey game where Mr. Perimal became intoxicated. When they arrived home, Mr. Perimal was being loud and Ms. Folster told him to be quiet. Mr. Perimal slapped Ms. Folster, causing a cut below her right eye from his fingernail. Mr. Perimal then choked her with one hand to the point where she almost blacked out, leaving red marks on her neck. [ 7 ] On July 16th, 2017, Mr. Perimal and Ms. Folster were at home at approximately 2:00 a.m. Mr. Perimal was intoxicated and upset.

During the argument, Mr. Perimal struck Ms. Folster twice, hitting the bottom part of her nose with his palm by moving his hand upward in a pushing motion. Ms. Folster's nose began bleeding profusely. Ms. Folster left her residence and went to her mother's nearby residence, where she called the police. Due to his intoxication, Mr. Perimal was charged and has pled guilty to violating his probation order, which forbade him from consuming alcohol. [ 8 ] On March 31st, 2018, Mr. Perimal and Ms. Folster attended the River Rock Casino Resort in Richmond, B.C. They got a hotel room and played in the casino. Mr.

Perimal consumed alcohol while in the casino and in their hotel room, contrary to the conditions of his bail with regards to the previously described offences. During the course of the evening, Mr. Perimal became angry due to events on that evening. The couple got into an argument back in their hotel room during the early morning hours of April the 1st, 2018. Mr. Perimal physically assaulted Ms. Folster. During the course of the assault, Mr. Perimal pulled the back of Ms.

Folster's hair with great force, ripping out a chunk of hair and causing the back of her head to hit the corner of the coffee table's metal frame. He also dragged her across the floor at one point. Mr. Perimal struck Ms. Folster in the face repeatedly, including hitting her nose with the palm of his hand. He also threw her against the wall, causing her head to hit the wall. He threw her cell phone, with force, into her face. Mr. Perimal was verbally abusive towards Ms. Folster during the assault. He said, "Fuck you, you stupid bitch.

You slut." He yelled, "I'm going to fucking kill you!" When hotel security and then, eventually, the police attended, Ms. Folster was visibly injured and there was blood visible in the hotel room. [ 9 ] I have viewed the photographs of the injuries to Ms. Folster from the July 2017 matter and the April 2018 matter. With regards to the photographs for the April 2018 matter, it is clear that there was a copious amount of blood both on Ms. Folster's face, by the sink and on her clothing. I am just going to make sure I am not confusing the photographs.

My apologies, the photographs with regards to blood on her clothing, sink, hand and arm pertain to the July 2017 matter. The photographs of her face, before and after the blood was cleaned off, and then a short time later with her black eye and various lacerations, including from the cell phone, pertain to the April 2018 matter. CIRCUMSTANCES OF THE OFFENDER [ 10 ] Mr. Perimal has a criminal conviction from August of 2016 pertaining to an assault on Ms. Folster, for which he received a conditional discharge and was placed on probation for one year at that time. [ 11 ] Mr.

Perimal is currently 29 years old but he will be 30 at the end of this month. I have reviewed the pre-sentence report as to his background. He was born in Burnaby, British Columbia. He has lived with his family in Delta and in the Lower Mainland. [ 12 ] Mr. Perimal and Ms. Folster have two biological children. Ms. Folster has two children from a previous relationship but whom have been considered as stepchildren for Mr. Perimal and with whom he had a strong parental relationship.

[ 13 ] I have reviewed his educational background and I accept that, prior to his recent incarceration, he was gainfully employed. He has a history of long-term employment with various companies. He also has a diploma in computer graphic design and has attended automotive training for approximately one year. [ 14 ] The key issue for Mr. Perimal is his alcohol addiction. He has had an alcohol addiction for almost 10 years. This addiction has been debilitating and has been the primary overt cause of the violence in this home.

He also experienced various levels of trauma as a child that he is now learning to deal with and that he is now understanding may be directly related to his alcohol addiction. He has a history of cocaine use which does not seem to be a problem at this time. [ 15 ] Ms. Folster and Mr. Perimal were in a relationship since 2014, approximately. I note that Mr. Perimal has never hurt the children and that does not form part of the allegations before me. He has engaged in various counselling over the past year or so. There was a period of time when he was not permitted to have contact with Ms.

Folster and focused significantly on rehabilitating himself. Since he has been in custody he has attempted to rehabilitate himself by taking appropriate counselling for his alcohol addiction. [ 16 ] He is currently seeing a counsellor by the name of Flo Gilbert who is a counselling psychologist. I have reviewed and accepted the contents of a letter from Ms. Gilbert. I have reviewed two letters, one that was written prior to the April 2018 incident and one that was written afterwards, and I am quoting. The counsellor writes: Though I am saddened by the events that have occurred...

And this is the May 2018 letter: ...I continue to believe that Mr. Perimal has the capacity to change and the potential to be a decent and caring human being. Even his partner, Robyn, continues to speak highly of him when she comments on witnessing his warmth and dedication towards his children, as well as experiencing his supportive and collaborative behaviours as a parenting partner. In my professional opinion, Mr. Perimal suffers from PTSD or severe trauma as a result of negative childhood experiences which he has not processed or healed from.

Therefore, he is vulnerable to triggers which are likely to be acted upon inappropriately, leading to emotional disregulation and violence when he is under the influence of alcohol. Thus, I believe that with proper trauma treatment and continuing drug and alcohol management, Mr. Perimal can be rehabilitated. [ 17 ] I have also reviewed the support letters written by a family friend by the name of Salubchna Gounder (phonetic), as well as Mr. Perimal's parents and his sister. I note that his sister was present in the courtroom yesterday and his parents are again present in the courtroom today. [ 18 ] Mr.

Perimal finds himself in custody since the April the1st arrest for the matter that occurred in the hotel room. ANALYSIS [ 19 ] I have to consider a number of legal principles. The requirement for denunciation and specific and general deterrence in this matter is high. The need for a custodial sentence on these matters is necessary, given the primacy of denunciation and deterrence in sentencing Mr. Perimal.

I note that his specific deterrence is underway with the significant amount of counselling that he has undertaken. [ 20 ] Unfortunately, that counselling and rehabilitation ended in some form on March 31st when he felt it was possible or permissible to drink alcohol in contravention of what I am sure was his knowledge that he should not be doing so, and with the violent assault that occurred against Ms. Folster.

However, I accept his resolve and his intention to continue to rehabilitate himself once out of custody and, particularly, in residential treatment - which is the most significant factor for a person's rehabilitation when struggling with the form of addiction Mr. Perimal struggles with. [ 21 ] The need for public protection is high, and most particularly, that of Ms. Folster. I have referred to his rehabilitative efforts. I accept them and consider them to be an important factor on this sentencing. [ 22 ] I must impose a sentence that is proportional to the gravity of the offence and the moral culpability of Mr.

Perimal. In these circumstances, his moral culpability is high. The repeated nature of these assaults, even in the midst of counselling, raises the moral culpability. The gravity of the offences is also high, but I must caution that I am not permitted to sentence an individual solely on the gravity of the offence or the moral culpability of an offender. I must consider their personal circumstances, as well as any efforts they have made for rehabilitation. I must also consider the totality principle, such that the sentence is not overly harsh.

AGGRAVATING CIRCUMSTANCES [ 23 ] The aggravating circumstances in this particular case are many. Mr. Perimal has a previous criminal record from June of 2016. He was on probation for that matter when he committed the assault in July of 2017. He violated a court order. [ 24 ] He was released on bail with regards to the July 2017 offences and committed the April 2018 offence; again, another violation of a court order. [ 25 ] I apply the statutory aggravating factor that Mr. Perimal engaged in abuse of his spouse.

I have considered, to a more attenuated level, that there was an abuse of trust as two of those incidents occurred in the family home. I also consider the significant impact of these offences on Ms. Folster, given the nature of the injuries and the emotional trauma that it has impacted on her. [ 26 ] I consider that the parties have agreed that, with regards to the July 2017 matter, the children were present in the home, it being the middle of the night.

I do consider as well as another factor that the children were exposed to family violence, as that is defined, by having violence inflicted on their mother by their father. The children cannot but be exposed to that when they have to see their mother and her injuries, and now deal with the break-up of their family due to this violence.

MITIGATING CIRCUMSTANCES [ 27 ] The mitigating factors are also numerous. Mr. Perimal is relatively youthful - but at 30, essentially - I cannot say that he is a youth as that term is interpreted by our Court of Appeal in terms of sentencing. [ 28 ] He entered guilty pleas. That has, most importantly, saved Ms. Folster from having to testify and be re-traumatized about the events. He has also saved considerable resources of the court and law enforcement.

His guilty plea is also an acceptance of his responsibility and that is a significant mitigating factor. [ 29 ] I accept his expressed remorse and regret, as expressed both through counsel, through his discussion with me at the end of sentencing, and the pre-sentence report. [ 30 ] I acknowledge that he has maintained gainful employment and that is important and will continue to be important for the support of his children.

I also acknowledge that he has received community support, ongoing support from his family, as well as others in the community. [ 31 ] I consider his counselling efforts to be a much less attenuating mitigating factor because it was ongoing when the April 2018 offence occurred. However, I will not ignore his counselling efforts because they bring the greatest hope for the future for this entire family. I accept that Mr. Perimal has insight into his offending, which has significant implications in lowering his risk level. CONCLUSION [ 32 ] Mr.

Perimal, I have considered the sentences described in various cases provided by your counsel during her excellent submissions. I have also considered the case provided by Mr. Sayson, which is extremely similar to your case and in which there was a significant sentence imposed. [ 33 ] Sentencing is a delicate process. I am mindful of the victim impact information provided by Ms. Folster in these proceedings.

They were extremely personal and gave great insight into the consequences of your conduct. [ 34 ] In all of these circumstances, after considering the range of sentence, considering the series of assaults that became more and more serious over time - even as they were concurrent at some stage with counselling - I impose the following sentences. [ 35 ] With regards to Information 224460-1-K, that is the assault on February 15th, 2016, the sentence will be two months in custody. [ 36 ] With regards to Information 223358-1-K, Count 1, the sentence will be four months in custody, consecutive to all other sentences. [ 37 ] With regards to Information 217602-2-KB, the sentence will be seven days in custody, consecutive to all other sentences. [ 38 ] With regards to Information number 62319-1-K, assault causing bodily harm on the 1st of April, 2018, the sentence will be 12 months in custody, plus three years probation.

This sentence is consecutive to all other sentences. [ 39 ] Mr. Perimal has been in custody for approximately, I believe you said 71 actual days, Ms. McConchie, with credit for time served of 107 days. So, the total I have, and if counsel can please verify, is 18 months and seven days, total. [ 40 ] MR. SAYSON: Yes. [ 41 ] MS. McCONCHIE: Yes. [ 42 ] THE COURT: Less. I am going to give him credit. I am going to round it up to four months. That leaves a sentence of 14 months and seven days after credit for time served.

So, Madam Registrar, the sentence is 18 months and seven days, less credit for time served of four months, for a remaining sentence of 14 months and seven days. [ 43 ] There will be a three-year probation order attached to Information 62319-1-K. The terms of that probation order will be as follows: You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or your probation officer seven days in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 44 ] You are to report within three business days of your release from custody to a probation officer at unit 102 - 14245 56th Avenue in Surrey, British Columbia, and, thereafter, as and when directed.

If at any time prior to the expiration of this order you are arrested, detained or must serve a sentence for another offence, you must report to the probation officer within two business days of your release from custody. [ 45 ] When first reporting to the probation officer, you must inform the probation officer with your current residential address and phone number, and you must not change your residence or phone number without written permission from your probation officer. [ 46 ] You are not to have any contact or communication, directly or indirectly, with Robyn Folster, except through email, text or telephone or Skype, or any other type of visual video electronic communication for the sole purpose of arranging and facilitating access to your children, if such access is permitted by the Ministry of Children and Family Development, through a Family Court Order, by a separation agreement, and/or through a Family Justice Counsellor. [ 47 ] You are not to have any contact or communication, directly or indirectly, with (omitted for publication), except in accordance with the Ministry of Children and Family Development, a Family Court Order, a separation agreement, and/or the determination of a Family Justice Counsellor.

[ 48 ] You must forthwith file a copy of this order in any family proceedings in which you are a party or become a party. You must give notice of any family court application for parenting or contact time with your children, with a copy of this order attached, to the Director of the Ministry of Children and Family Development. [ 49 ] You are not to attend within a 100-metre radius of any known residence, educational facility, workplace or place of worship of Robyn Folster, (omitted for publication). [ 50 ] I am reviewing the exceptions. Are there personal belongings at any residence? [ 51 ] MS.

McCONCHIE: I believe there are because they were living together at the time of the latest incident. [ 52 ] THE COURT: It's been a month. [ 53 ] MS. McCONCHIE: I know. I'm not sure if that issue is resolved or not. [ 54 ] THE COURT: All right. The exceptions to the area restriction are as follows: You are permitted one attendance, in the presence of a peace officer, for the purposes of retrieving your personal belongings.

Such attendance must be arranged by your probation officer or in accordance with a Family Court Order made by a judge who has reviewed this Order. [ 55 ] You must forthwith file a copy of this order in any family proceedings in which you are a party or become a party.

You must give notice of any family court application for parenting or contact time with your children, with a copy of this order attached, to the Director of Children and Family Community Services, or if such access is permitted by the Ministry for Children and Family Development. [ 56 ] You must attend, participate and complete any intake assessment, counselling or program as directed by your probation officer, which shall include alcohol counselling, respectful relationships counselling, and any programs with regards to domestic violence. [ 57 ] You are not to possess nor consume any alcohol or illicit substances as defined by the Controlled Drugs and Substances Act except as prescribed by a licensed physician. [ 58 ] You must not possess, either personally or through another person, any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, explosive substance, anything that resembles a weapon or firearm, or any related authorizations, licenses or registration certificates. [ 59 ] You are not to possess any weapons as defined by s. 2 of the Criminal Code , including any knives - and this is new to counsel, so tell me if you have any objections to this.

I am contemplating: "no weapons including knives except for food and work." [ 60 ] MS. McCONCHIE: That, I think, should be agreeable. [ 61 ] THE COURT: Mr. Sayson? [ 62 ] MR. SAYSON: Yes. [ 63 ] THE COURT: No weapons except as defined by the Criminal Code s. 2, including any knives, except for the immediate purpose of preparing and consuming food, or during the course of lawful employment while at your worksite. [ 64 ] There will be victim fine surcharges imposed with regards to this matter on each count to which there has been a guilty plea. Mr.

Perimal, you have 12 months after your release from custody to pay the victim fine surcharges. [ 65 ] Mr. Sayson, you were also seeking further ancillary orders. Just give me a moment. [ 66 ] MR. SAYSON: Yes, it's on page 1 at the bottom. Page 1 at the bottom. [ 67 ] THE COURT: Pursuant to s. 743.21, I am ordering that you not have any contact with Robyn Folster while you are in custody. [ 68 ] You are prohibited from possessing firearms pursuant to s. 109 of the Criminal Code , for life. [ 69 ] I am ordering that a sample of DNA be taken from you on Information 62319-1-K, pursuant to s. 487.051. Mr.

Sayson, I am not imposing it with regards to any of the other matters, and you have not specified which assault you wanted in any event. [ 70 ] MR. SAYSON: The ACBH is primary so it's mandatory; the others are secondary, so that's fine. [ 71 ] THE COURT: That's why I'm only imposing it on the assault causing bodily harm. All right. What have I forgotten? [ 72 ] MR. SAYSON: I think the victim surcharge, the total amount is $500. [ 73 ] THE COURT: He can be informed of that by the authorities. He'll need to sign a probation document, I believe, in any event. [ 74 ] MS.

McCONCHIE: Yes, I believe that there's an actual order that's given to him with those details on it. [ 75 ] THE COURT: Yes. Just for the record, Mr. Sayson has done the calculation, so the total amount for victim fine surcharges is $500. [ 76 ] Anything further?

[ 77 ] MR. SAYSON: Yes, I will now, in recognition of the guilty plea of the accused to these four files, the Crown will now stay the following files. Madam Clerk, the Crown directs a stay of proceedings on 217602-4-KBC, the Crown directs a stay of proceedings on 217602-5-KA, stay of proceedings on 217602-6-KAC, and a stay of proceedings on Information 224460-1-K, on Counts 1, 3, 4 and 5. [ 78 ] THE CLERK: Thank you. I have that. [ 79 ] MR. SAYSON: And that concludes our matters. [ 80 ] MS.

McCONCHIE: Can we just maybe confirm that there are no outstanding files. [ 81 ] THE CLERK: I think I have one, file 62319-1-K. [ 82 ] MR. SAYSON: That's the ACBH from Richmond where the probation order was attached to. [ 83 ] MS. McCONCHIE: As long as there are no -- [ 84 ] THE COURT: I just want to make sure that there are no -- [ 85 ] THE CLERK: Count 2. [ 86 ] THE COURT: Yes. [ 87 ] MR. SAYSON: Oh, yes. Count 2, there was an uttering threats, that is a stay of proceedings on that file, Count 2. (REASONS FOR SENTENCE CONCLUDED)