R. v. Cailing Date:, 2011 BCPC 131

Citation: R. v. Cailing Date: 20110303 2011 BCPC 0131 File No: 56480-6C Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KEITH RAYMOND CAILING ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K.D. SKILNICK Counsel for the Crown: J. Lester Counsel for the Accused: G. Gill Place of Hearing: Chilliwack , B.C. Dates of Hearing: December 10, 2010, February 14, 2011 Date of Judgment: March 3, 2011 [ 1 ] THE COURT : This is the sentencing of Keith Cailing for four counts on Chilliwack Information 56480-6C. [ 2 ] Mr.

Cailing was convicted following a trial of offences, all occurring on June 13th, 2009. Count 1 convicts him of the offence of assaulting Ronald Austin with a weapon, in this case a metal baseball bat or a metal bat. Count 2 convicts him of the offence of assaulting Ronald Austin causing bodily harm.

Count 3 convicts him of the offence of assaulting Erica Austin with a weapon, also the same bat; and count 4 convicts him of the offence of threatening Ronald Austin and Erica Austin to cause them death or bodily harm. [ 3 ] I went over the facts on which those convictions were based and I will not repeat what I said in my reasons for conviction. [ 4 ] In sentencing Mr. Cailing, I am taking into account a number of factors, both mitigating and aggravating. [ 5 ]

Section 718 of the Criminal Code says that in sentencing individuals for any offence, the purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that take into account the following factors: I am required to denounce unlawful conduct; to deter both Mr.

Cailing and other persons from committing offences; to separate offenders from society where necessary; to assist in rehabilitating offenders; and to provide reparations for harm done to victims and the community, as well as promoting a sense of responsibility in offenders and acknowledgement of the harm that has been done to the community and to the victims of the offence. [ 6 ] The Criminal Code also requires me to take into account a number of other factors. [ 7 ]

Section 718.1 of the Criminal Code says that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

I am required to either increase or reduce a sentence, taking into account aggravating and mitigating circumstances, and as I say there are a number of other factors. [ 8 ] The Criminal Code also directs that an offender should not be deprived of liberty if less restrictive sanctions are appropriate in the circumstances, and also that I take into account all available sanctions other than imprisonment that are reasonable in the circumstances with particular attention to the circumstances of aboriginal offenders. I take into account Mr. Cailing's background as a

First Nations person in imposing sentence. [9] As I say, there are aggravating and mitigating circumstances that I have to consider in this case. [10] Mr. Cailing comes before the Court as a person with a previous criminal record. Mrs. Gill said it is not the worst record that thisCourt has seen, although again there are a significant number of convictions which I have to take into account and I take into account thatMr. Cailing has, on a number of occasions, been given opportunities from sentences passed in this Court to work on his ownrehabilitation.

He was originally given a conditional discharge which is a very lenient sentence for spousal assault; a domestic assault. [11] I see that he has been placed on probation four times not including the last month because of course he would not have had anyopportunity to take advantage of that probation, but I see that he has also on one previous occasion been permitted to serve his sentencein the community. [12] This is a sentencing that in my view I cannot consider a conditional sentence order because of a number of factors, including thefact that this is a serious, violent offence for which the Criminal Code now prohibits the imposition of a conditional sentence order.

Buteven if that provision was not in the Code, one of my concerns of course is safety of the community. [13] In looking at the aggravating and mitigating circumstances, I cannot give Mr. Cailing the same mitigation that I would givesomeone who had either pleaded guilty or admitted the offence at an early stage. He is not penalized for having had a trial; I am notgiving him a higher sentence because of that, but I cannot discount the sentence as I would to someone who accepted responsibility. [14] The Crown points out that there is no acceptance of responsibility in this case.

There are no suggestions of sympathy or empathyfor the victims and no expression of concern or remorse in this case. [15] I am mindful of the fact that this was a very brutal assault and that a weapon was used, a weapon that had the potential not just toresult in the very serious injuries that Mr. Austin sustained but it really is a matter of luck in this case, given the number of times thatMr.

Austin was struck, given that the blows were to his head, and we know that they were very hard blows especially when we take intoaccount the damage that was done to his ear -- his ear was almost torn off as a result of the number of times and the manner in which hewas hit -- so it really is a matter of luck that this did not result in more serious injuries, and in fact it had the potential to result in deathgiven the nature of the assault. [16] It was a very brutal assault and it is troubling because in the circumstances of the offence, it was a heartless assault. Mr.

Austincontinued to be struck even after he was seriously injured, even after pleas were made on his behalf for some compassion or somehumanity, some restraint. Those were unheeded and of course that is a concern because that suggests a greater need for rehabilitationand a greater need for protection of the community. [17] I have taken into account as well the time that Mr. Cailing has spent in custody awaiting his trial and his sentencing on thismatter. Both counsel are in agreement that I should credit him with having served the equivalent of a seven-month sentence to date.

That is a bit longer than the calculations, but given that there is unanimity on that I will not depart from that. I will credit him withhaving served a seven-month sentence. [18] There are a number of other factors mentioned. As I say, I am mindful of the fact that Mr. Cailing is of First Nations origin. Iam mindful of what the Supreme Court of Canada said in the R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 decision thatgiven that the First Nations population of this country is over-represented in jails, that the Court ought to look for alternatives tosentencing other than simply long jail sentences.

However, the Supreme Court of Canada also said in that case that that should not betaken as an automatic reduction in the penalty, particularly for violent offences of this nature, and as the Supreme Court of Canada said itis unreasonable to assume that First Nations people themselves do not believe in the importance of the objectives of denunciation,deterrence and protection of the public in cases of violent offences. [19] There are a number of other submissions that have been made in this case that in my view I have some difficulty in accepting. [20] There is some suggestion that there has been a changing of the Crown's position with respect to the sentencing position.

In myview, that is not really a relevant consideration for me to factor in because of course this Court is not bound by any negotiations madebetween counsel. In an appropriate case, a joint submission will be honoured.

This is not a case of a joint submission and clearly myfirst responsibility is not to honour any agreements made by counsel but rather to be accountable to the community for offencescommitted in the community and of course the community includes the victims of these offences. [21] It has been suggested as well that because there were two offenders in this case, one of whom has not been identified, that thereshould be some discounting of the sentence.

Again, I am not aware of any authority to support that proposition. [22] In my view, the wealth of the authorities supports the contention that where two individuals embark on a common purpose andthe common purpose is to commit violence on an individual, that there is a shared responsibility and in fact I agree with Mr. Lester'ssuggestion that on the facts of this case, I am satisfied that the most significant injuries to Mr.

Austin and to his sister were committed bythis offender. [23] There was some suggestion in the submissions of defence counsel that because the principal victim was a former boxer, that thatsomehow ought to go in mitigation of sentencing. I make no distinction here. A very brutal attack was performed on Mr. Austin. Hesuffered serious injuries, and the fact that he may or may not have been a boxer at some point in his career offers no excuse or nomitigation in this case. [24] So I am factoring in all of those considerations as I pass sentence on Mr. Cailing, and I am mindful that in recent timesMr.

Cailing may have made some progress in the type of individual that he has become, but I also have to take into account as I say thecircumstances of this offence, what this community expects when its citizens are injured this brutally, and also Mr. Cailing, not as hemay be today, but as he was at the time that he was reputedly striking those blows with the baseball bat to the head of Mr. Austin.

[ 25 ] The defence suggests that an appropriate sentence is something in the range of six months. I am mindful that in the R. v. Donnelly , [2010] B.C.J. No. 2508 (B.C.S.C.) case that was an individual with no previous record, and again I could spend some time commenting on each of the facts in the cases that have been presented and in distinguishing them. I am not going to do that. [ 26 ] The Crown suggests a range of 30 months.

I am mindful that the Crown has proceeded summarily and that on the first two counts the maximum sentence is one of 18 months, but I am also mindful of the fact that the law says in cases where the Crown has proceeded summarily where it could have proceeded by Indictment, the maximum sentence is not limited to the worst offender and the worst facts situations. [ 27 ] I am also mindful of the authorities that permit me and indeed suggest that it is appropriate to treat separate transactions as separate offences and to consider the imposition of consecutive time. [ 28 ] Now, as I say, the Crown suggests an aggregate range of 30 months which is significantly different than what the defence is suggesting. [ 29 ] I take into account all of the factors that I have mentioned.

The key components here are protection of the public, denunciation of the violent and unlawful conduct, deterrence of this offender and other offenders from committing offences, but I am also taking into account rehabilitation because I am concerned as I say that in the past four attempts of probation, a conditional sentence order, and even a conditional discharge failed to prevent this offence from occurring and it seems to me that further work at rehabilitation is required in a more structured setting for a longer period of time. [ 30 ] In my view, an appropriate sentence is in this range.

I am going to sentence the accused accordingly. Because the elements of counts 1 and 2 are not identical -- this is not a situation where one offence is entitled to be stayed -- but I am mindful that the same act constitutes both offences in that it is the swinging of the bat that injured Mr. Austin, and my sentence on counts 1 and 2 are going to be concurrent with one another. On counts 1 and 2 I am going to sentence Mr. Cailing to 18 months.

I am going to credit him with having served the equivalent of seven months, so that will leave a remaining sentence of 11 months concurrent, one with the other on counts 1 and 2. [ 31 ] With respect to count 3, the assault on Erica Austin which occurred after she had watched her brother be brutally injured, and after she made pleas and efforts to prevent further injury, in my view that calls for a consecutive sentence. I am going to sentence Mr.

Cailing to a further period of six months consecutive. [ 32 ] As to count 4, while some people consider threats to be the least significant offences because there is no actual physical violence imposed, in this case where a weapon is being yielded and individuals are being threatened not to report the crime that is a serious matter as well. In my view, that calls for a further period of consecutive time and I am going to sentence Mr. Cailing to a further sentence of three months consecutive. [ 33 ] The aggregate sentence will be one of 27 months.

As I have said, 18 months on the first two counts, six months consecutive on the third count, and three months consecutive on the fourth count, but I am going to credit him with having served seven months so that will require him to serve a further period of 20 months in custody. [ 34 ] In addition to that I am going to place him on probation for a period of three years following completion of his sentence. I am not going to impose elaborate probation terms. That has been tried in the past. Mr.

Cailing has been given a number of opportunities, but I am going to put in conditions requiring him to keep the peace and be of good behaviour, he is to have no contact or communication directly or indirectly with Ron Austin or with Erica Austin, and he is not to attend to any residence, school or workplace of Ron Austin or Erica Austin as may be known to him or within 100 metres of such location. [ 35 ] I am also going to make an order pursuant to the DNA

section of the Criminal Code , the discretionary section, directing that a sample of his DNA be taken for inclusion into the National DNA Databank. That is a discretionary order, but I am going to direct that that be taken by a peace officer in one of the methods prescribed by the Criminal Code . [ 36 ] Finally, I am going to make an order pursuant to s. 110 of the Criminal Code prohibiting him from possessing any firearm, crossbow, prohibited weapon, restricted weapon, ammunition, prohibited ammunition or prohibited device and that would be for a period of ten years. [ 37 ] Given that Mr.

Cailing will not have the ability to earn an income in the near future, I will make an order waiving payment of the victim fine surcharge. SUBMISSIONS BY COUNSEL [ 38 ] THE COURT: I think the houses are more than 50 metres apart so I can make that 50 metres. I am not requiring them to take him off the Reserve; I just want him to stay away from these people. __________________________ K.D. SKILNICK Provincial Court Judge