R. v. Abernathy Date:, 2013 BCPC 61

Citation: R. v. Abernathy Date: 20130304 2013 BCPC 0061 File No: 58319-2-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. AARON EDWARD ABERNATHY EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: A.V. Lee Counsel for the Defendant: P. Stark Place of Hearing: North Vancouver , B.C. Date of Judgment: March 4, 2013

[ 1 ] THE COURT: Aaron Edward Abernathy has pled guilty to one charge of assault simpliciter arising July 15, 2012, here in North Vancouver. [ 2 ] The circumstances of the offence are that on that date, he attended to the Lions Gate Hospital. According to his counsel, he was there attempting to get treatment and was refused treatment. He the went to a separate unit of the hospital, in fact, the psychiatric unit, and entered a quiet room inside the psychiatric unit. The female victim entered the quiet room. She asked Mr. Abernathy if it was okay for her to be there, and he said it was.

He offered her a back massage, which she declined. He invited her to sit on the couch where he was seated, and she agreed and moved to sit there. He then got up and turned off the lights, returned to the couch, advised the victim that he wanted a hug and hugged her. He tried to kiss her, and she pushed him away. She tried to leave; however, he blocked the door, saying that he did not want her to leave, he needed a friend, and he wanted another hug. [ 3 ] He then left the quiet room, and the victim left after him and reported the incident to the nursing station.

The two were in the room, if I understood the circumstances correctly, for a total of four minutes. [ 4 ] Mr. Abernathy then left the psychiatric unit and got in a taxi. The taxi returned him because they realized that he was not the patient they had been called to pick up. He was familiar to the staff at the hospital and was, I gather, detained or arrested on the scene. According to the police, his thoughts were confused to some degree. [ 5 ] There is no victim impact statement. [ 6 ] Mr. Abernathy has a significant criminal history which I will get to in a moment. He is currently 31 years of age.

There was a psychiatric report prepared for an offence for which he was sentenced in April of this year, and it is that which provides the primary information I have as to his history. He experienced a difficult birth. As a child he had delayed speech, and by early childhood he had been identified as suffering from ADHD. [ 7 ] His parents had substance abuse issues, and as a result, he was raised primarily by his grandparents. He was unable to complete formal schooling past Grade 10 and had significant difficulties with his schooling in his middle school years. [ 8 ] His grandfather passed in early 2012.

His mother is now clean and supportive of him, and he continues to have the support of his grandmother. [ 9 ] The report indicates that he engaged very early on in life - in fact, prior to being an adolescent - in the use of street drugs and alcohol. He has a long history of substance abuse. In his teens he was using cocaine and heroin. At age 17, he developed an addiction to crystal methamphetamine. That is now his substance of choice and the substance which continues to impact his behaviour.

He has engaged in chronic abuse of crystal methamphetamine since he began using it at age 17. [ 10 ] In the psychiatric report under "summary of risk assessment," it states as follows [as read in]: Mr. Abernathy's history of assaultive and bizarre behaviour clearly results from episodes of drug-induced psychosis while intoxicated with crystal methamphetamine. Under the influence of this drug, he has repeatedly engaged in disinhibited sexual behaviour such as masturbating in public. He admits that crystal methamphetamine makes him hypersexual, and this is, in fact, one of the main reasons that he uses the drug.

When not high, his behaviour is generally organized, reasonable, and pro-social with no evidence of psychopathic or antisocial personality traits. He does carry a diagnosis of attention deficit disorder from childhood, and while this resulted in early behaviour problems at home and at school, it does not appear to have been a driver of his offending behaviour as an adult. It is possible that his crystal methamphetamine use is partly an attempt to self-medicate the ADD problem.

By his own account, he uses crystal methamphetamine mostly because he enjoys the high that it gives him and, in particular, because of the heightened sexual pleasure that he experiences when using it. He admits to some residual symptoms when not intoxicated, e.g., sometimes hears voices, but maintains that he can recognize that these are not real and is therefore not upset by the experience.

However, the information from his mother would suggest that he might have more significant and persistent psychotic symptoms even when not using crystal methamphetamine, although he is guarded and reluctant to answer questions about his beliefs. Based on the current information, there is no convincing evidence to suggest that Mr.

Abernathy has developed a chronic psychotic disorder such as schizophrenia, but this eventuality cannot be excluded in light of his recurrent psychotic symptoms, his persistent use of psychostimulant drugs, the information his mother provided, and his likely genetic vulnerability to schizophrenia. Unfortunately, Mr. Abernathy has virtually exhausted the treatment options for addictions in the Lower Mainland, and his commitment to abstinence is modest at best. Antipsychotic medication, even taken on a continuous basis, is unlikely to prevent Mr.

Abernathy from experiencing psychotic symptoms when intoxicated with crystal methamphetamine. [ 11 ] She went on to state in the next paragraph [as read in]: Until Mr. Abernathy decides that he is fully committed to sobriety, I anticipate that he will continue to exhibit bizarre behaviour when intoxicated on crystal methamphetamine, but based on the history over the past decade, it is very unlikely that his offending will escalate in severity or that the risk posed to the public will be increased.

In particular, there is no evidence to indicate that he will engage in more serious sexual offending. [ 12 ] In the course of that report, the doctor also noted that Mr. Abernathy has been too disorganized to attend to Forensics on a regular basis and has only managed very brief periods of abstinence over time. She also noted that he did not appear to be committed to

abstinence or recovery. [ 13 ] That psychiatric report was related to a previous related offence. With respect to that, he was sentenced on April 26, 2012, for an offence which arose December 2, 2011. On that occasion, he entered the emergency area of the Royal Columbian Hospital and approached a female patient in a bed. He closed the door behind him and began speaking to her about love and suggesting that she was an angel. He kissed her neck and body. He reached under her blanket and touched her hip and thigh with a pen. He then kissed her on the mouth and said he was going for help. [ 14 ] On that occasion, Mr.

Abernathy was, in fact, a patient at the hospital at the time. [ 15 ] Mr. Abernathy has an extensive criminal record. I will review only those offences of assault or related offences such as committing indecent acts. He has numerous other convictions for minor property offences as well as breaches of bail and probation. [ 16 ] On September 12, 2002, he committed an indecent act in a public place. That offence was dealt with June 13, 2003. He received a conditional discharge. [ 17 ] On May 25, 2003, he assaulted a peace officer.

That matter was also dealt with June 13, 2003. [ 18 ] On October 29, 2003, he committed a forcible entry and was sentenced on November 27, 2003, and received a four-month jail sentence. [ 19 ] On May 10, 2004, he committed a forcible entry. It was dealt with September 20, 2004, and he received an equivalent sentence of four and a half months in custody. [ 20 ] On October 27, 2004, he was found to be unlawfully in a dwelling house. That offence was dealt with February 22, 2005, and he received a conditional sentence of 18 months.

It appears that there were some difficulties serving that sentence, but I am unable to determine whether it was terminated at the end of the day. [ 21 ] On April 20, 2005, he committed an assault. It was dealt with July 4, 2005, and he received a jail sentence equivalent to two and a half months in custody. [ 22 ] On April 28, 2007, he committed an assault. It was dealt with June 18, 2007, and he received jail for one day and probation for one year. [ 23 ] On September 16, 2007, he committed an assault. It was dealt with November 30, 2007.

He received jail time served of 50 days plus one day and probation for 18 months. [ 24 ] On January 8, 2008, he was found committing an indecent act in a public place. That charge was dealt with January 24, 2008. He served 15 days and received credit for 30. He received one further day plus probation. [ 25 ] On February 1, 2008, he committed an assault. It was dealt with April 10, 2008. He received jail time served of 66 days with credit for 112 days, plus probation for two years. [ 26 ] On May 24, 2008, he committed another forcible entry. It was dealt with November 14, 2008.

He received a sentence of actual time served three months. He was credited with six months and received one further day. [ 27 ] On October 1, 2009, he was found committing an indecent act in a public place. It was dealt with December 1, 2009. He received a sentence of actual time served 82 days, credit for 164, plus one further day and probation. [ 28 ] On January 1, 2010, he committed another indecent act in a public place. It was dealt with April 14, 2010.

He received a sentence of actual time served three months, credit for six months, and one further day plus probation for 18 months. [ 29 ] On February 26, 2011, he committed another indecent act in a public place. It was dealt with March 11, 2011, in Community Court. He received the equivalent of a 15-day sentence. [ 30 ] July 8, 2011, he committed another indecent act in a public place. It was dealt with August 22, 2011. He received credit -- or time in custody of 46 days plus one further day and probation for 18 months. [ 31 ] The last entry on his record is for an assault.

It relates to the events at the Royal Columbian Hospital. Again, the offence date was December 2, 2011, and dealt with April 26, 2012, in Community Court. On that matter, he received a sentence equivalent to eight months in custody and was placed on probation for 18 months. [ 32 ] He has been in custody since the date of this offence on July 15 of 2012. [ 33 ] He was released into the community from his previous sentence, the one that related to the incidents in the Royal Columbian Hospital, only 11 days before re-offending at the Lions Gate Hospital.

This indicates a disturbing potential pattern of offending for Mr. Abernathy, and in particular, it involves vulnerable victims and his continued voluntary use of a substance which causes him to act out in the community. [ 34 ] My sister Judge Burgess dealt with his sentencing on the Royal Columbian Hospital matter, and I will quote her decision of April 26, 2012, Vancouver Registry 222897-1-T. At paragraph 40, she said: [40] The accused has a long history of drug use which, in his case, is particularly linked to his own sexual gratification and to his offending.

He also has a long history of criminal convictions, many of which are related to this [substance].

[41] He has proved himself to be noncompliant with court orders and totally resistant to treatment over a period of years. He has received jail sentences of five and six months in the past. [42] This case represents an escalation in terms of gravity. [43] Those are the outstanding features in the circumstances of this offence and this offender. [44] Because of these, I am satisfied that of the principles of sentence set out in s. 718 of the Criminal Code , those of denunciation, specific deterrence, separation of the offender from society, and acknowledgement of the harm done to the victim must be emphasized.

Rehabilitation must always be a factor, but for the reasons I have just reviewed, I do not consider Mr. Abernathy a good candidate for rehabilitation at this point. [ 35 ] I adopt those comments. I would only add that this case represents an even greater escalation in terms of gravity as demonstrated by what appears to be an emergent pattern of significant antisocial conduct. [ 36 ] In mitigation, Mr. Abernathy was at the hospital trying to seek treatment. He was turned away because the hospital staff had determined that, again, his symptomology was due to substance abuse and not a medical issue.

It would appear from the psychiatric report that that was correct. [ 37 ] I also accept that this was opportunistic in the sense that Mr. Abernathy went to the psychiatric unit trying to seek help, entered the quiet room, and it was the victim who entered after him. [ 38 ] I also accept that Mr. Abernathy is a vulnerable inmate when in custody and would have a difficult time serving a sentence in custody.

This is due to the nature of his offence and his history of offending, as well as his ADD or ADHD, which I accept to be a significant disability for him. [ 39 ] It is his stated intention at this time to attend long-term treatment and to abstain from the use of crystal methamphetamine. [ 40 ] As noted earlier, he received the equivalent of an eight-month sentence for his previous offence.

In my view, it is necessary to increase this penalty with a view to his specific deterrence as well as the protection of the public. [ 41 ] Crown's position in this matter is that a range of eight to 12 months is appropriate plus probation to follow. Defence asks me to consider a sentence of time served plus probation. There was a suggestion made that Mr. Abernathy should be considered for a conditional sentence. I cannot conclude on the basis of his record or the psychiatric report or any of the information before me that he would be a suitable candidate for a community-based jail sentence.

He has proven himself unable to comply with court orders. [ 42 ] In all the circumstances, I am going to impose a sentence of 10 months. [ 43 ] Mr. Abernathy, I can only say at this time that if you enter another hospital room and interfere with any patient at any time, the likelihood is, it will be met with a significantly lengthy sentence. [ 44 ] I am also going to place you on probation for a period of three years, the maximum allowable. The terms of that probation will be that you will keep the peace and be of good behaviour.

You will report within 72 hours of your release from custody in person to a probation officer at 100 - 233 West 1st Street in North Vancouver, and report thereafter as and when and where directed. [ 45 ] You will reside as directed by your probation officer and not change that address without their prior written permission. [ 46 ] You must carry a copy of your probation order on your person at all times when outside your place of residence and produce it to any peace officer who stops or questions you for any purpose. [ 47 ] You must have no contact, direct or indirect, with S.E. [ 48 ] You must attend for, accept, and complete any counselling and/or programming to include but not limited to substance abuse counselling or attending at the Forensic Psychiatric Outpatient Clinic as directed. [ 49 ] You are not to attend to any hospital except for a bona fide medical emergency for yourself or with your probation officer's prior written permission.

If you attend at any hospital for a medical emergency for yourself, you must go directly to the emergency department. You must immediately produce a copy of your probation order and produce it to a staff member.

You must not leave the emergency department except in the company of a hospital staff member or when discharged. [ 50 ] You must abstain absolutely from the possession or consumption of alcohol or any drugs or substances scheduled in the Controlled Drugs and Substances Act save and except according to a medical prescription and then only according to the dosage prescribed. [ 51 ] You are not to possess any weapons or imitation weapons as defined by the Criminal Code of Canada . [ 52 ] You are not to possess any knives except for the immediate preparation or consumption of food or such knives as are necessary

to carry out the duties of your employment at your place of employment. [ 53 ] I'm sorry; did you want a firearms? [ 54 ] MS. LEE: I did not ask for a firearms. Perhaps out of an abundance of caution, it should be. I know that the SOIRA and the DNA has been done previously. [ 55 ] THE COURT: I just wanted to know whether you wanted me to -- [ 56 ] MS. LEE: Oh, I see that -- [ 57 ] THE COURT: -- include it as a condition of probation. [ 58 ] MS. LEE: Oh, for -- oh, yes, Your Honour. I didn't seek it.

I note that Judge Burgess ordered a 10-year firearms prohibition under s. 110 of the Criminal Code . [ 59 ] THE COURT: I do not think we need to repeat that then. [ 60 ] I will order that he provide a sample of his DNA. It is a secondary or primary? [ 61 ] MS. LEE: This is a secondary. [ 62 ] THE COURT: Secondary ground. [ 63 ] All right. I will waive the victim fine -- well, there isn't a victim fine surcharge, I don't think, but if there is, I will waive it. [ 64 ] Any comments or concerns about any of those terms? [ 65 ] MS. LEE: No, Your Honour. [ 66 ] MS.

STARK: Well, given his longstanding addiction issues, obviously, I understand why Your Honour ordered that, but I am sure that Your Honour can see that the likelihood of him being able to comply with that condition is -- is clearly set out in all the reports, so -- [ 67 ] THE COURT: The difficulty is this. [ 68 ] MS. STARK: -- that's obviously -- I -- [ 69 ] THE COURT: Mr. Abernathy is -- [ 70 ] MS. STARK: I -- I'm sorry, Your Honour. [ 71 ] THE COURT: I recognize that he may not be able to comply with this, but it has come to a point in Mr.

Abernathy's life where he can choose to use methamphetamine or he can choose to be in jail. This kind of conduct cannot be tolerated. It will not be tolerated. So when he is released from custody, he will have to take steps to abstain or, if he acts out again, he will face the consequences. (REASONS CONCLUDED)