R. v. Pullman Date:, 2012 BCPC 394

Citation: R. v. Pullman Date: 20120914 2012 BCPC 0394 File No: 56804-2C Registry: RICHMOND IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CARLY PULLMAN REASONS ON SENTENCE OF THE HONOURABLE JUDGE FRATKIN Counsel for the Crown: G. Nelson Counsel for the Defendant: K Filkow Place of Hearing: Richmond , B.C. Date of Judgment: September 14, 2012 [ 1 ] THE COURT: I have had the opportunity well in advance to read the various materials except that which just arrived in the

[ 1 ] THE COURT: I have had the opportunity well in advance to read the various materials except that which just arrived in the last 24 hours, which is fine. I was here this morning about 6:30 and I had the chance to get everything in order. I know that all the people that are gathered here want an answer, they want an answer now. And I think it is appropriate, given what I have heard, to be able to provide that. [ 2 ] As a judge, we have to make, and I speak pretty much for every judge, we have to make decisions that are very, very difficult. And there are some questions for which there is no one right answer.

We all have questions in our lives for which there is not one right answer, there are many answers, and they can all be said to be right. The best evidence of that is the cases that Ms. Nelson has provided, the eight or so cases. Each one has a different fact pattern and each one has a different answer, and each of those answers may well be right given the context within which that question was asked. And that is what I am faced with today. [ 3 ] Guidance is provided by the Criminal Code , s. 718, which sets out the considerations the court has to have in passing sentence.

The facts of this case are very clear and very straightforward. They are also very concerning because there is a death involved. The fact of the matter is that unbeknownst to the accused in this particular case, Ms. Pullman, was the fact that she was pregnant, and unbeknownst to the fact that she was pregnant was also a fact her fiancé didn't know. Nor did her family. Nor did the people who would normally be privy to rather exciting news of a child coming into this world. And though there were some comments from associates that she looked pregnant, "Are you pregnant?" "No." She did not go to the doctor.

I think the last time she had been to the doctor was about six months before this event, so she had really no way of knowing. And I am summarizing that which is found in the psychiatric report and the facts that both counsel are aware of. And on the day in question, the 15th of August, she starts feeling uncomfortable, to the point where she leaves work, goes home, gives birth. Anybody with any sense would know full well that under those circumstances it was rather shocking. [ 4 ] We are hearing this some time thereafter, not having gone through what she went through.

We only hear about things such as this, and each time we ask that question; how could she not know? That's number one. Number two, if this did happen, pick up the damn telephone and call the authorities immediately. Of course. But she didn't. [ 5 ] So what are we to do with somebody who does something like that under those circumstances? Ms. Nelson for the Crown stated it very clearly and correctly; There was a bit of a reserve in her submissions, but she just simply said, had she picked up the telephone, we wouldn't be here. She's absolutely right.

What got her here, what got us here, is the fact that when confronted with that which she knew to be true, she lied. And she lied repeatedly. She lied to the people who should have known. [ 6 ] Now, one thing that has not been stated here is that she wanted to go to the hospital. She tried to go to the clinic, the clinic was closed. She came back home. Not feeling well again. The boyfriend and the mother-in-law were present and she stated: "I want to go to the hospital." Well, surely when she went to the hospital she should know that somebody would discover that which had happened.

She should be well aware that something, these people there would know, and sure enough, within a very short time an experienced obstetrician knew that she was pregnant and had delivered a child. [ 7 ] So we now have the conflict. She says no, I didn't; the obstetrician professional says yes, you did. The police are called in. The police are told that she had a child. The doctor knew that it could well be that this could be a surprise to the accused because of her body shape, and that these things can happen.

As a matter of fact the doctor said this could be a dissociative state, in other words, not connected to the act. That's what the doctor said. [ 8 ] But the police have the responsibility to look for a body. That body may be alive. The child may be alive. And so that is the dilemma. She'd already staked out her position when she talked to the obstetrician, "No, I was not pregnant. No, I did not have a child." But, of course, she did, and the police are going to find out. So what does she do? 22, 23, 24 years of age. Everybody put yourself back to that time in your life.

No matter how mature you were or able to cope with the world as you are now. Of course it's going to be different. When you reach a certain age in life you are able to hopefully handle problems as we would expect for them to be handled. [ 9 ] But of course, that's the perfect world. We don't live in a perfect world. We live in a world where we muddle along as best we can and we try to make proper decisions. Usually we do. But what happens when somebody doesn't? What Ms. Pullman did is, having staked out her position, she stuck to it.

But they knew she was lying because they kept asking, because they kept looking and they couldn't find it, and she kept diverting them. Not well, by the way. She gave them specific places to go such as Safeway, garbage can at the Safeway No. 3 Road, I believe, 3 and Williams. And of course it was the wrong colour garbage can, didn't match up with the lie that she was telling. And they knew full well she was lying, but they've also got the responsibility of finding a possible child alive. [ 10 ] And it gets to the point where they are going to all lengths to find this child.

They are going through the garbage disposal companies, waste management companies. They go on at length about the attempts that were made to contact some people, specifically taxi drivers. They go through everything. And it wasn't until such time, as Mr. Filkow says, and he is correct, somewhere in the 24- hour/36-hour mark, she finally confesses.

And it came out incrementally, and finally the truth became known and the child was discovered in the same place where a police officer had searched within five hours, and had he gone further into the garbage can he would have discovered the truth. [ 11 ] A tragic case to say the least. Here we have a young woman, never been in any kind of trouble with the law, probably would never be in trouble with the law, about to get married, life is good. Of course, when I say life is good, there are complications.

The struggle of two young people who are out to make their way in the world, they had their ups and downs, and then this happened. And she made a terrible mistake. [ 12 ] I have heard from counsel the legal considerations, the cases that have been set out, and I am asked to do a number of things. And as experienced counsel, I agree with both of them, certain aspects of their submissions, and I disagree with some of their submissions.

I have asked certain questions along the way, I have read the psychiatric report and I have marked off, you can see yellow stickies attached to it, those are things that I paid particular attention to. I was thinking, when I was going to give my reasons, I was thinking of reading each one of those, but I'm not going to. You've heard them already. Both counsel have covered it, everything that they should cover.

[ 13 ] The basic principles of sentencing deal with general and specific deterrence, denunciation. Protection of the public, rehabilitation, separating offenders from society, et cetera, et cetera. There is acknowledgement of reparations that may be due. There are aggravating and mitigating factors that I have to consider such as, in terms of mitigation, her age and her circumstances. [ 14 ] Her circumstances mean life's experiences. Where did she come from? Under what circumstances was she raised? What was her level of education? How did she make her way in the world as a youngster? What were the pitfalls?

What were the hurdles? What were the complications? What were the benefits? What were the things that make up a person's life? What were her life's experiences? Did she exercise good judgment? Usually we know that good judgment comes from experience, and experience usually comes from bad judgment. Each and every one of us have gone through things such as that. So these are the considerations that you ask yourself in mitigation in terms of her criminality. [ 15 ] We know that she had been left pretty much on her own at the age of 13 onward.

I believe there's a younger brother, that they made their way back and forth between their parents, and at certain points reconciliations have taken place over the years, but pretty much on her own. Now, that shapes a person's character and shapes a person's experience, it shapes a person's ability to handle stressful situations, ability to make good judgments. Or, in many cases, an inclination to make bad judgments. [ 16 ] She has pled guilty, and she pled guilty virtually immediately. Once all the dust settles and the positions are known, she pled guilty. And I have been told, and I don't think Ms.

Nelson would argue with Mr. Filkow or ague with the psychiatric report, she has done everything that she could do to try to make amends and try to do the things that would be necessary after having been involved in an event such as this, having pled guilty to two criminal charges. [ 17 ] So she has demonstrated a desire and an attempt to make amends, and to make amends for the future, and my guess is, my guess is that she has done one large amount of growing up in a relatively short span, something that she may not have tackled but for this event.

It just strikes me that she loses her job fairly quickly and then she regains a job with the same company. She has a three-hour turnaround for getting back and forth to work every day, which is not unusual. People travel a lot longer under tougher circumstances to get their occupation, but she's done it and she's done it consistently, I'm told.

She has some hopes for the future. [ 18 ] What she has left in her wake from this event is a great deal of harm to her fiancé, former fiancé, he has been aggrieved considerably, expended a considerable amount of money as a result of this event, as have the police in terms of parts and pieces of their investigation, and Ms. Nelson has set out the amounts. [ 19 ] I am of the view that this is not the case, nor the individual to deal with restitution in the fashion that has been suggested.

Not without some reluctance do I say this, but when I consider what has happened here and how this event grew into something that should never have occurred, that as unfortunate as it is for those that are out-of-pocket, out of in terms of psychological loss, psychiatric loss, there are certain things that happen in life that are totally unfair, but that is part of being on this earth. Not everything is fair. [ 20 ] In terms of the discharge that is being sought, I am not with you, Mr. Filkow, on that. Sorry to say. But I am of the view that a conditional sentence order is appropriate.

It is, to a certain extent, demanded. By that I mean the public has to be made aware that there are events like this, this is not the only one, obviously, there are many, and as has been said in the psychiatric report in terms of assessing recidivism or the risk of re-offending; if you miss the first one, you're certainly not going to get the second one in terms of discovering this event, and this, by all accounts, is a one-off for this young woman.

But the public has to be made aware that it is in the public interest for there to be a consequence for not doing that which is necessary. [ 21 ] Now, the cases that talk in terms of a practical purpose why people have to be cooperative with the police or the authorities is so we can discover what happened. We've come a long way from the Medieval times as talked about in the case from Ontario, the case of Levkovic . [ 22 ] We have come a long way. And we have come a long way because the law has developed to require people to do certain things, and if you don't do certain things, you're in peril.

But it's all meant for societal good. Not just one or two people, it's meant for the good and stability of society and it is to keep the substructure of our society intact. There are other reasons that go with it, I need not go into those, but that is the essential point and that is what goes to the public interest. And for those reasons I am of the view that the public interest requires a conviction to be registered and not just a finding of guilt. [ 23 ] I am satisfied that a conditional sentence order of six months is appropriate.

I know it is less than what the Crown has suggested, but I have paid particular attention to what this young woman has done since this event, I have paid particular attention to the positive aspects that are talked about in the psychiatric report. The pre-sentence report is rather thin, but it really defers to the psychiatric report. [ 24 ] So there will be a conditional sentence order, in other words, a jail sentence for six months, on each count, one concurrent with the other. It will be served by a conditional sentence order.

That means she is serving her sentence in the community. [ 25 ] There will be a probation order of 12 months to follow. I am not making restitution orders, nor am I making a DNA order. I am not satisfied that this particular situation calls for that. But I am of the view that Ms. Pullman should be monitored rather closely and that some of the conditions on the CSO and the probation order are appropriate and some may not be necessary. [ 26 ] She will report to a CSO supervisor to supervise the conditional sentence order within 24 hours of release from court, and that means by 4:00 p.m. today.

You are directed to do that, you will report by 4:00 p.m. today to your supervisor, and thereafter as and when directed by your supervisor. [ 27 ] You are to provide your current residential address to your supervisor and not to change that without the prior permission of the supervisor. [ 28 ] You are to attend, participate in and complete any counselling or treatment as directed by your CSO supervisor to the satisfaction of your supervisor [indiscernible] psychological or psychiatric treatment or counselling.

[ 29 ] There will be a Rogers order.

You shall provide your treating physician with a copy of this order and the name, address and telephone number of your CSO supervisor. [ 30 ] You shall instruct your treating physicians that if you fail to take medications prescribed by the physicians or fail to keep any appointments made with your physicians, he or she is to advise your CSO supervisor immediately of such failure. [ 31 ] You are to take any medications prescribed for you by your medical practitioners except that you shall not be required to submit to any treatment or medication to which you do not consent. [ 32 ] If you do not consent to the form of treatment or medication which is prescribed or recommended, you shall forthwith report to your CSO supervisor and thereafter report daily to your CSO supervisor. [ 33 ] Yes? [ 34 ] MR.

FILKOW: I didn't address the specific conditions because I didn't know how the sentencing would proceed. I obviously have some comments to make with respect to the Rogers condition, but the term 7, I'm not sure what the purpose of reporting daily to the CSO supervisor is -- [ 35 ] THE COURT: Not -- no. [ 36 ] MR. FILKOW: I understand, but -- [ 37 ] THE COURT: -- and she will by your submissions and by all accounts from the physiatrist report, I'm not worried about it. [ 38 ] MR.

FILKOW: I'm not worried either, I just -- [ 39 ] THE COURT: And if there's a problem, I'll be here, and I'm sure you'll be on your hind legs saying to me, very forcefully, that it's not -- that term is not appropriate and you would like it withdrawn. I'd like it there now. [ 40 ] Condition 8: If you become pregnant you must immediately report that pregnancy to your CSO supervisor.

If you become pregnant you are to attend and maintain all necessary medical and counselling appointments as directed by your CSO supervisor or your medical practitioner. [ 41 ] If directed by your CSO supervisor, you are to attend for a medical examination for pregnancy and then provide the results of such examination to your supervisor. [ 42 ] Condition number 11, I am not going to impose that. [ 43 ] The probation order will include all the same terms and conditions. I am not imposing any new terms. She has her hands full six out of seven days per week. [ 44 ] Anything else from either counsel? [ 45 ] MS.

NELSON: No, Your Honour. There were three counts on the Information initially. I think the remaining count was -- [ 46 ] THE CLERK: Count 1. [ 47 ] MS. NELSON: Okay. The Crown stays that count. [ 48 ] THE COURT: So Counts 2 and 3 are six months each concurrent CSO. [ 49 ] Now, Ms. Pullman, you pay attention to what's going on and you make sure that nothing untoward in your life occurs. Good luck.