R. v. Hildebrandt Date:, 2015 BCPC 130

Citation: R. v. Hildebrandt Date: 20150316 2015 BCPC 0130 File No: 62171-1K Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSHUA JAMES HILDEBRANDT ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE W.A. YOUNG Counsel for the Crown: L. Stevens Counsel for the Accused: G. Gill Place of Hearing: Chilliwack , B.C. Dates of Hearing: January 5 & March 2, 2015 Date of Judgment: March 16, 2015 [ 1 ] THE COURT : Joshua Hildebrandt has been found guilty of the following charge:

That on or about the 1st day of January 2014, at or near Agassiz, in the Province of British Columbia, in committing an assault upon the complainant, A.A., did cause bodily harm to the complainant, contrary to

Section 267 (

b) of the Criminal Code . [ 2 ] The Crown proceeded summarily.

The Crown seeks a period of incarceration in the range of nine to 12 months while the defence seeks either a shorter period of incarceration of four to six months, but preferably a longer period of incarceration in the range of six to 12 months to be served however in the community as a conditional sentence order. [ 3 ] The Crown in addition seeks a period of probation of two to three years while the defence submits there is no need for a lengthy period of probation in that the accused has already commenced counselling. [ 4 ] I want to turn to the circumstances of the offence and nature of the injuries. [ 5 ] The complainant and the accused lived together for about two to three years.

They had purchased a house in Agassiz. The complainant described the relationship as being good for the first year but then it became more emotional and abusive. [ 6 ] The accused had been laid off his work in December of 2013, a few weeks prior to this incident. He was drinking more, in particular, beer. In December, the couple had a discussion about his applying for EI which discussion seemed to upset him. The complainant told the accused to leave the house.

He did so for a period of eight days, however, he returned to the house and the complainant gave him permission to remain. [ 7 ] The complainant was 40 years of age and she is a petite woman who was approximately 5 feet in height and weighed 100 pounds. The accused was 39 years of age and he is 6 feet, 1 inch in height and weighed 205 pounds. He acknowledged he is physically much stronger than the complainant, Ms. A. [ 8 ] The incident occurred at New Year's. The accused had a friend come over to the house. The accused and this friend started to drink beer as well as hard liquor in the den area of the house.

Later on, the complainant joined them. She too consumed beer. [ 9 ] The complainant asked the accused's friend not to return to the house with any more alcohol. When the complainant advised the accused that she did not want his friend back in the house that evening, he became upset. He started to swear at her and became loud. The exchange lasted about a minute. The accused then picked up the television remote and threw it at the complainant. She, in turn, threw it back at him. [ 10 ] She got up to leave the den when he stood up and punched her in the nose. She fell down. She felt like she was going to pass out.

The next thing she remembered was lying on her back and the accused was grabbing her and shoving her head onto the floor. He asked her if she liked it and called her names. He sat on top of her and grabbed her neck and shirt, lifted her up and slammed her back down on the floor on her back. He was straddling her so that his knees were on either side of her. [ 11 ] The accused kept slapping her in the head and punching her, asking her if she liked it. She could not recall how many times he slapped her in the head but she estimated it as being about 20 times. He struck her on the head and forehead.

She did not recall how many times she was pushed onto the floor. He used a closed fist to slap and punch her in the head. She was struck in the cheek as well as the forehead. [ 12 ] The incident lasted about two minutes. She felt like she was seeing black and she may have blacked out momentarily. She could not see properly because there was blood in her eyes. She pretended to be unconscious in the hope that he would stop hitting her. [ 13 ] The complainant tried to reach out to hit the accused back in the face, to push him off, but she could not reach with her arms.

She then tried to push the accused off with her feet. She got her feet up and kicked him in the face. The accused would not stop hitting her. [ 14 ] She told her nine-year-old daughter, who at this point in time had come into the room, to call 9-1-1 and the child did so. The accused stopped, got up, and left the house. The police arrived and the complainant was taken to the hospital. [ 15 ] The complainant's daughter, S.A., was nine years of age when she testified. She had just finished Grade 4.

She had been in bed prior to the incident but she felt something bad was going to happen so she went to the den area where her mother and the accused were located. She eventually heard some yelling in the downstairs area. She peeked inside the den and saw blood. She saw her mother on the floor and the accused was on top of her. It appeared to S. that her mother was not awake. She saw the accused punching her mother and yelling at her. S. saw blood on her mother's head, her mother yelled at her to go back to bed, but she peeked again into the den and kept watching.

Finally, her mother told her to call 9-1-1, which she did. [ 16 ] Photographs entered by the Crown show that the complainant's face and hair were covered in blood. There was also blood on the floor and on adjacent closet doors. [ 17 ] The complainant received a number of injuries being a nasal fracture, which left her with a deviated septum, swelling and haemorrhaging in the right eye, swelling and soft tissue damage under both eyes, a cut in her forehead, several bruises around the base of her neck, and soft tissue swelling on either side of her neck. She had swelling on the top of her head and forehead.

She had a cut, scraped and swollen lower back and bruised thighs. She has since had plastic surgery to repair her broken nose. [ 18 ] The complainant seeks restitution in the amount of $2,750.00 for the medical repair to her broken nose, plus an additional $80.00 for the ambulance bill, for a total of $2,830.00. The accused has agreed to pay restitution as part of a probation order. The complainant was off work for a period of time after the surgery to her nose in September of 2014. [ 19 ] The victim impact statement prepared by the complainant has been filed as Exhibit 2. She states that she has developed high

anxiety as a result of this assault. She has been diagnosed with Post Traumatic Stress Disorder and has lost weight. She had difficulty sleeping for about four months. Due to her facial injuries, she was not allowed at work for a two-week period. The complainant worked as an educational assistant with young children. [ 20 ] The complainant was also concerned that her daughter had witnessed the assault. Her daughter has had difficulty sleeping; they have both been seeing a therapist; the complainant no longer resides in the house which had been jointly purchased by the accused and the complainant.

The house has since been sold. The complainant and her daughter want no contact with the accused. They are clearly fearful of him. [ 21 ] The accused received a swollen left eye and he had scratches to his face. I found that his injuries were as a result of the complainant's trying to defend herself. [ 22 ] In my reasons I found that the accused did strike the complainant in the face, breaking her nose, and that she fell to the ground. The accused got on top of her and continued to strike her in the head and face such that blood from her nose sprayed onto adjacent closet doors.

The physical evidence of blood was consistent with the complainant's version of where the incident had occurred in the den. I rejected the accused's version of what occurred. [ 23 ] I want to turn to the position of the parties at sentencing. [ 24 ] The Crown seeks a period of custody in the range of nine to 12 months in addition to probation for a period of two to three years. The Crown has filed a number of decisions which I have had the opportunity to review. They are R. v. Weekes , [1990] B.C.J. No. 1897 ; R. v. Chirimar , 2007 ONCJ 385 ; R. v. Kirby , 2010 NWTTC 15 ; R. v. Jilg , 2010 BCSC 1476 ; R. v.

Donnelly , 2010 BCSC 1786 ; and R. v. Miller , 2014 BCSC 772 . [ 25 ] The Crown seeks, as part of probation, a term of no contact with the complainant and her daughter, non-attendance at their residence, place of employment or schooling and restitution; plus a DNA order, and a ten-year firearms prohibition. The Crown also of course implicitly seeks counselling. [ 26 ] The defence does not oppose a DNA order here nor a ten-year firearms prohibition. The accused agrees to pay restitution as part of a probation order.

The only issue is the length and nature of the jail to be imposed. [ 27 ] The Crown submits the sentencing principles in cases of spousal violence are general deterrence and denunciation. The Crown is opposed to a conditional sentence order and points out that the accused has one prior related conviction for spousal violence in 2004.

He did attend the Respectful Relationships course in 2004 and the follow-up Relationships Violence Treatment Program and yet, having attended those programs, he finds himself back in court for a similar if not more serious spousal assault. [ 28 ] The Crown submits there is a continuing need for rehabilitation despite his having taken some counselling with Fireside Addictions. [ 29 ] The Crown submits that the Court must be mindful of the aggravating factors set out in s. 718.2 of the Criminal Code R.S.C., 1985, c.

C-46 and that there is evidence that the accused in committing the offence abused the offender's common law partner. The Crown further submits that another aggravating factor is the presence of a young child in the home who was also a witness to the assault. The accused also has two prior convictions for driving while well over .08. Alcohol has proven to be a problem for the accused in the past as well as in the context of the current offence. [ 30 ] The Crown submits that the circumstances here are serious and that the complainant's injuries were significant.

There was also a significant amount of blood found in the house. The circumstances are more serious than the circumstances in some of the cases referred to in the Crown's book of authorities. [ 31 ] The Crown also submits that the accused poses a serious risk to re-offend given that the accused has taken counselling for a similar offence in the past and that such counselling did not benefit Ms.

A. on this occasion. [ 32 ] For all those reasons, the Crown submits a period of custody should be imposed in the range of nine to 12 months plus a longer rather than shorter period of probation. [ 33 ] The defence seeks a period of incarceration in the range of four to 12 months but urges the Court to consider a conditional sentence order. [ 34 ] The defence submits that the accused is very remorseful and has already done the necessary to commence counselling with Fireside Addiction Services which counselling addresses substance abuse and relationship difficulties. [ 35 ] The defence has also filed a number of positive reference letters from family, friends, and his current employer, K & R Excavating.

I have had the opportunity of reviewing those letters. [ 36 ] Defence counsel relies especially on the R. v. Donnelly , supra , decision in urging the Court to consider a sentence at the lower end of the range. In Donnelly the sentence imposed was one of six months. [ 37 ] The defence submits that it was the complainant who started the fight with the accused, but I disagree with that particular characterization by the defence. I did not find that the complainant had provoked the assault. [ 38 ] The defence submits the accused's judgment was clouded by his alcohol consumption and that there was no premeditation.

Rather, the parties' engagement in an argument beforehand had fuelled the eventual assault. [ 39 ] Defence counsel submits that the accused has not consumed any alcohol since the offence date and that he recognizes that he

needs to undertake counselling for his alcohol abuse.

The defence submits that the intervening 14 months has not been an easy time for him but he is now doing better and making positive progress. [ 40 ] The defence submits that the accused is a good person who was a productive member of society; that he continues to work and to hold down a job; that he has complied with the terms of bail; that he has a great deal of support within the community; that he has a stable family; that he has not hidden this offence from his family and friends; that he is not in denial that he has problems which need to be addressed; and that he has otherwise been described by his family, friends and employer as a good person. [ 41 ] The defence also submits that the accused has a 14-year-old daughter for whom he pays regular child support.

Thus, the defence submits, the accused has proven himself as being a responsible member of society. [ 42 ] The defence also points out that the accused has refrained from consuming alcohol since the offence, he has proven to be an effective worker for his employer, he is now living with his mother, and is prepared to undertake whatever counselling may be imposed by the Court.

In essence, the defence submits that the sentence can be served in the community with strict terms and that such a CSO would satisfy both the safety concerns and the purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code . [ 43 ] The accused also expressed his remorse to the Court, that he agreed he had been stressed out as a result of being laid off work, and that his heavy consumption of alcohol had overwhelmed him. He acknowledges he made a terrible mistake which resulted in his partner receiving significant injuries. He stated he is sorry to both Ms.

A. and her daughter for what occurred, which incident has irrevocably ended his relationship with them. [ 44 ] I want to turn to the pre-sentence report and the technical suitability report. [ 45 ] Firstly, the technical suitability report, now marked as Exhibit 6, indicates that the accused does have a phone system which is technically suitable and that he has not been subject to an electronic monitoring order. The equipment is available to him and a curfew would still allow him to work with his current employer.

He resides in his mother's house and she is prepared to accept that her son be restricted to the residence due to electronic monitoring. The accused and his mother deny the presence of weapons in the house. [ 46 ] Secondly, I wish to turn to some of the comments found in the pre-sentence report. The accused has one prior conviction for assault in 2004 and was placed on a one-year probation order. The victim in that case was his intimate partner. The police report advised that the couple had been in an on-and-off again relationship over two years.

The offence, which was witnessed by a police officer, involved the accused pulling the complainant by her hair and arm attempting to remove her from their residence. He was described as being under the influence of alcohol at that time. [ 47 ] Somewhat troubling is that his mother, Mrs. Hildebrandt, wrote in her letter dated December 2014 that her son had never had a problem with other girlfriends until he began his relationship with Ms. A.

His mother's lack of understanding of her son's prior history is somewhat troubling, especially given the proposal that he serve a conditional sentence order in his mother's residence while continuing to work. [ 48 ] The pre-sentence report does point out that the accused has had no contact with the complainant since his arrest in this matter in January of 2014. He is currently single. He was born and raised in Chilliwack and left his parents' home at the age of 20.

He can stay in the basement suite in his mother's residence for the foreseeable future, but his longer-term plan is to move to Alberta for work purposes. [ 49 ] He indicates that he has had positive relationships in the community although he agreed that in the past he has had friends and associates with whom at times he would consume alcohol to excess. He states that since his arrest in this matter he has made a point of not putting himself in that situation. He graduated from Chilliwack Senior Secondary in 1994.

He has held a variety of jobs in the past. [ 50 ] For the most part, he has been employed as a heavy equipment operator. He learned the trade working in his father's company. Since that time he has been employed by a number of companies. He began working with K & R Excavating in the summer of 2014. His current employer has described him as being very skilled and his only excavator operator.

The loss of his services would impact his employer. [ 51 ] The accused also received a positive reference letter from Fred McMaster who is a Manager with Vancouver Pile Driving Limited to the effect that the accused has expressed remorse for his actions and is motivated to address his substance abuse issues. [ 52 ] The accused acknowledges that any challenges he has had in his life including the present offence and his previous conflicts with the justice system has all been related to excessive use of alcohol.

A number of the reference letters remarked on the challenges which the accused has had with alcohol and with many of the writers expressing a belief that he is remorseful for his actions and motivated to address his drinking problem. [ 53 ] The accused denied any use of hard drugs. He stated that there is a history of alcohol abuse among members of his paternal and maternal extended family and that he has also misused it at various times in his life. He began drinking with his friends as a teenager. His use of alcohol increased over the years.

He offered that his personality changes when he is under the influence of alcohol. He agreed that he attended a number of AA meetings as a result of the probation which was imposed in 2004 for the assault and driving while over .08. [ 54 ] In late August 2014, he began taking weekly counselling sessions with an addictions counsellor with the Salvation Army Fireside Addictions Services. The accused believes he has gained some benefit from his time with the addictions counsellor and states that he intends to continue to have sessions with them.

The report states, "He has significantly cut down on his consumption of alcohol since his arrest in this case." He agreed he would attend and complete any recommended programs including the Corrections Branch Substance Abuse Management Course. [ 55 ] The report writer was of the view that although the accused presented as being sincere in his comments about complying with the conditions of a conditional sentence order, that any return to alcohol misuse could impact his compliance and progress in the

community on a conditional sentence order. The accused also stated that he had prior difficulties in his relationship with Ms. A. but he could comply with any no contact order. He did offer that he accepts responsibility for his actions and as I have stated he expressed remorse about what he did. [ 56 ] I want to turn to the purpose and principles of sentencing and the possible imposition of a conditional sentence order. [ 57 ] As the Crown proceeded summarily with regard to this offence, it is open to the Court to give consideration to a conditional sentence order pursuant to s. 742.1 of the Code .

The maximum sentence for assault causing bodily harm is 18 months when the Crown has proceeded summarily as here.

Section 742.1 of the Code provides for the possibility of a conditional sentence as follows: 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under

section 742.3, if (

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; (

b) the offence is not an offence punishable by a minimum term of imprisonment; …. As well as several other preconditions which are not applicable here. [ 58 ]

Section 718 of the Code states as follows: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 59 ]

Section 718.1 sets out that "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." [ 60 ]

Section 718.2 sets out that: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, … (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; … (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[61] The Supreme Court of Canada considered the principles to be applied under s. 742.1 in the leading decision of R. v. Proulx,2000 SCC 5 , [2000] 1 S.C.R. 61. A

summary of those principles is set out in Martin's Criminal Code Annotations under s.742.1. Some of those principles noteworthy here are the following. [62] Firstly, a CSO is intended to address both punitive and rehabilitative objectives. The court in ordering a CSO generally includespunitive conditions that restrict the offender's liberty. Therefore, conditions of house arrest or strict curfews should be the norm. [63] Secondly, the safety of the community not being endangered is merely one of the three prerequisites for imposing a conditionalsentence and is not the primary consideration.

In considering the danger to the community, a judge must consider the risk of theoffender re-offending and the gravity of the damage that could ensue. In the case of violent offenders, a small risk of very harmful futurecrime may warrant a finding that this prerequisite has not been met.

The danger that the offender might pose may be reduced to anacceptable level through imposition of appropriate conditions. [64] Thirdly, a conditional sentence can provide a significant amount of denunciation, particularly when onerous conditions areimposed and the term of the sentence is longer than would have been imposed as a jail sentence.

Generally, the more serious the offence,the longer and more onerous the conditional sentence would be. [65] Fourthly, a conditional sentence can also provide significant deterrence if sufficiently punitive conditions are imposed andjudges should be wary of placing too much weight on deterrence when choosing between a conditional sentence and incarceration.

However, Proulx, supra, does acknowledge that there may be circumstances in which the need for deterrence will warrant incarceration. [66] Lastly, while aggravating circumstances relating to the offence or the offender increase the need for denunciation anddeterrence, a conditional sentence may be imposed even if such factors are present. [67] I would now like to review the decisions to which counsel has drawn my attention. [68] In R. v. Donnelly, supra, Mr.

Justice Joyce reduced a nine-month sentence for assault causing bodily harm and a concurrentsentence of one week for the offence of common assault plus three years' probation to one of six months and one year probation. [69] In Donnelly, supra, the accused was 37 years of age and had no criminal record. He had recognized the effect that his misuse ofalcohol had on his conduct. He had taken a course in anger management, had been on bail without incident, and had pleaded guilty atthe first opportunity.

He was remorseful, there was no suggestion of a pattern of abusive conduct towards his spouse, and this eventappeared to be aberrant. The accused held his partner down in the family home. The victim bit the appellant in the thigh. He saw redand punched the victim in the face a number of times with his elbow. The blows to the complainant's face were excessive and causedconsiderable damage. She suffered a dislocated jaw, multiple bruises, including bruising around both eyes and lacerations on the insideof her mouth.

She also suffered some bruising and scrapes to other parts of her body. [70] At para. 26, Joyce J. pointed out that the sentencing judge correctly observed that in cases of spousal assault the principles ofdenunciation and deterrence are heightened. At para. 28, he goes on to point out that: [28] Spousal assault is a very serious matter, and a sentence for a serious spousal assault must impress upon the offender and othersthe abhorrence with which society ought to view violence committed in a person's home. All persons have a right to feel safe within theirhome, from their spouses as well as from strangers.

If it is to act as a deterrent to others, the sentence for a serious spousal assault mustimpress upon others who might be inclined to engage in similar conduct that, if they are convicted, they will receive a punishment that ismore than simply a partial denial of one's liberty. [71] Joyce J. then adopted what was said by Trotter J. in R. v. Chirimar, supra, at paras. 39 and 40. Joyce J. goes on to say that inDonnelly, supra, the assault was not a minor one and it was not consistent with a single slap or a single punch. He also referred to thepresence in the house of the couple's two children.

He stated at para. 31 of his reasons the following: [31] The fact that there was not a pattern of abuse in this case of which this assault was the last round, is a factor that certainly goes tothe gravity of the offence and the length of sentence but it does not mean, in my view, that it makes it an appropriate case for aconditional sentence. [72] And at paras. 32 and 33: [32] It is my view that conditional sentence in this case would not adequately address the principles of denunciation and generaldeterrence.

A conditional sentence that would enable the offender to carry on with his daily life, going to work, watching his television,sleeping at home, subject perhaps to a curfew forcing him to remain in his home during the evening and night-time hours, would not, inmy view, send the message that spousal assaults are considered serious. Even a condition akin to house arrest would not, in my view,serve as an adequate deterrent. [33] In my view, this case demanded a sentence that informs others that if a spouse allows a domestic dispute to develop into physicalviolence, that spouse will face serious consequences.

I believe that a sentence of incarceration was appropriate. [73] Joyce J. then goes on to say that the nine-month period of incarceration was well outside the appropriate range and in all the

circumstances was not a fit sentence and reduced the sentence to one of six months. There was not a lengthy history of spousal abuse. Also, Joyce J. was of the view that a period of probation of three years was excessive in all the circumstances in order to ensure the appellant's rehabilitation which is the focus of probation. The accused had already taken a number of positive steps towards his rehabilitation at the time he was sentenced. [ 74 ] The next decision, R. v. Chirimar , supra , was referred to as I say extensively by Joyce J. in Donnelly , supra .

In Chirimar that was a single incident of violence in which the accused inflicted bruises and abrasions all over the body of his wife. The abuse had been ongoing for months. It was an anxious neighbour who called the police. [ 75 ] On p. 7 of Chirimar , Trotter J. held that judges must emphasize the sentencing objectives of general deterrence, specific deterrence and denunciation when sentencing offenders for crimes of domestic violence.

On p. 12, Trotter J. determined that a non- custodial disposition would trivialize the magnitude of the offending behaviour and send a perverse message that this type of conduct would be treated leniently by the courts. Trotter J. also deferred to the Crown's sentencing range proposed of six to eight months. Trotter J. imposed a global sentence of six months imprisonment with a probation order for three years. [ 76 ] In R. v. Weekes , supra , the complainant suffered substantial injury to her right eye and had suffered permanent injury to that eye which necessitated surgery.

The appellant had punched the complainant twice in the area of her right eye. He had one previous assault conviction. The sentencing judge imposed a sentence of 12 months imprisonment followed by two years' probation. That sentence was upheld by the British Columbia Court of Appeal. [ 77 ] In R. v.

Jilg , supra , the appellant had applied to introduce fresh evidence in the appeal of his 12-month sentence for assault causing bodily harm and also sought to convert his sentence to a conditional sentence order. [ 78 ] The facts in Jilg , supra , are that the appellant struck the complainant about the face and head and at one point broke off the assault when third parties interceded, but then restarted his attack with renewed vigour. He also forcefully propelled the complainant into a wall and left. The complainant suffered significant injuries to her face and head.

The accused had no criminal record and argued that the incident was out of character for him. [ 79 ] Rogers J. considered the Proulx , supra , factors and determined that a conditional sentence was suitable in all the circumstances of that case. The Court then imposed a conditional sentence of 12 months upon the accused with a number of conditions including a curfew. [ 80 ] In R. v.

Miller , supra , Tindale J. imposed a global sentence of eight months plus a period of 12 months' probation for a young man, age 22, who entered guilty pleas to three separate charges including assault causing bodily harm of his partner. The facts of the assault are that the accused attacked the complainant, hit her several times and as a result of the altercation she had fallen at one point and cut her elbow requiring several stitches. The accused did have a prior record for common assault and breaches of court orders. There was a conviction for break and enter plus possession of stolen property.

The Crown did draw the Court's attention to a number of decisions including R. v. Donnelly , supra . At para. 20, the Court stated the following: [20] In my view, an appropriate sentence would be -- this is before we deal with the time served, but would be eight months…. [ 81 ] I note that was a global sentence. Count 3 which resulted in a conviction for assault causing bodily harm, attracted a sentence of six months in custody less the time that he had served in the five months pre-sentence custody. Count 3 was followed by a period of probation of 12 months. [ 82 ] Lastly, counsel drew my attention to R. v.

Kirby , supra , a decision of the Territorial Court of the Northwest Territories. The accused pleaded guilty to assault causing bodily harm of his partner. The Crown suggested a sentence in the range of 10 to 12 months and the defence urged the Court to consider a conditional sentence or in the alternative, a sentence in the range of six to eight months. [ 83 ] The Court decided that a conditional sentence would not be appropriate and for the offence of assault causing bodily harm there was a sentence of 12 months jail followed by three years' probation. The accused kicked, punched, and pushed the complainant.

He choked her, ripped off her necklace, punched her in the eye, pulled her hair, banged her head on the floor, kicked her in the rib cage, dragged her outside and threw her down the stairs. The complainant was taken to hospital and had bruising, swelling on her face, arms and legs, her shoulder and back, her neck, as well as lumps on her head. The couple had been in a relationship for four years. [ 84 ] The accused had a criminal record being a prior conviction for assaulting the same complainant. The Court was very concerned that one day the accused would seriously hurt or kill someone.

The Court also determined that the beating was not a single blow but a beating that lasted some time. The Court also considered that in mitigation the accused had pleaded guilty to the offence and for that reason he must be given credit for such. [ 85 ] The Court found that the community would be endangered if the accused was allowed to serve his sentence in the community and also that the purpose and principles of sentencing would not be met by the imposition of a conditional sentence.

At para. 42 the Court found that the need for general deterrence and denunciation was so pressing that a conditional sentence could not meet those objectives. Incarceration was necessary to send a strong message to denounce the accused's conduct and to deter him and others from engaging in similar conduct. The Court imposed a sentence of 12 months in jail in addition to three years' probation. [ 86 ] Now I want to turn to a conditional sentence here. [ 87 ] A conditional sentence is a custodial sentence to be served in the community under strict conditions. Would the safety of the community be endangered if Mr.

Hildebrandt were to serve the sentence in the community? [ 88 ] I must be mindful of the risk posed by him to re-offend. Here, the accused has one prior conviction for assault in 2004. That

assault was on a partner and resulted in a suspended sentence and probation for one year. The accused was an active participant in counselling but such counselling did not prevent a repeat of a spousal assault on this occasion. It is difficult to assess the risk of the accused to re-offend. [ 89 ] It is clear that the accused would benefit from further counselling and treatment with respect to spousal assaults and the use of violence. In addition, the letter from Fireside is dated November 24th, 2014 and I have not been given any recent update as to what has happened since that time.

However, the letter from Fireside is positive. The accused appears to have been involved in cognitive restructuring, relationship issues including communication skills, and what is called SMART Recovery. In mitigation, the letter states the accused has been motivated and cooperative during the counselling sessions which commenced in late August 2014; so some three months prior to the letter.

Also in mitigation I am mindful that the accused has complied with bail conditions and has filed a number of positive letters from family, friends, and his employer and he has expressed remorse. [ 90 ] However, having considered the serious circumstances of the current offence, especially the degree of violence on his partner resulting in her receiving significant injuries including a broken nose, the fact that the assault occurred in the presence of a young child, along with the accused's past record and the lack of any more recent update as to how the counselling may have successfully changed his behaviour for the better, I find that the community would be endangered if he were allowed to serve his sentence in the community. [ 91 ] Next, I must consider whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing.

The assault was not consistent with a single slap or punch. The assault lasted at the very least for a two minute period if not somewhat longer. I have also considered as I have stated that the assault occurred in the presence of a child. The accused has a prior related conviction. The assault resulted in the complainant receiving grave injuries as depicted in the photographs which were entered during the course of the trial. There is also the further aggravating factor that the accused abused his common law partner. [ 92 ] I find the decision of Joyce J. in Donnelly , supra , to be binding authority.

A conditional sentence in this case would not adequately address the principles of denunciation and general deterrence. A conditional sentence order would not send the message that spousal assaults are considered serious. A condition of house arrest after the accused has completed his work day would not serve as a form of deterrence. [ 93 ] Furthermore, with respect to the length of probation, the accused does need to undergo a period of rehabilitation to ensure this type of offence does not occur again. In addition, the complainant does not wish any contact with him and is fearful of him.

There is also the need for the accused to pay a substantial amount of restitution to the complainant and in my view a period longer than one year would give him adequate time to pay the restitution if he so requires that time. [ 94 ] Now, turning to my decision. [ 95 ] Having considered all of the circumstances, the material that has been filed, the aggravating and mitigating factors, the seriousness of the offence, the maximum sentence available, the prior record, and the authorities to which I have referred, as well as the submissions of counsel, I impose the following sentence. Mr.

Hildebrandt, if you would stand up, sir. I impose a period of incarceration of nine months plus a period of probation for two years. The terms of probation are as follows: 1. That you keep the peace and be of good behaviour. 2. That you report within 48 hours of your release to a probation officer here in Chilliwack at the Chilliwack Probation Office, thereafter as and when directed by your probation officer. 3. That you reside at an address approved of by your probation officer and not change that address without the prior written permission of your probation officer. 4.

That you have no contact, directly or indirectly, with A.A. and S.A. 5. That you not attend their residence, place of employment or place of schooling as may be known by you. 6. That you not possess any weapons or firearms as defined by the Criminal Code . 7. That you pay $2,830.00 restitution to the Clerk of the Court by the end of the 12th month of probation to be paid to A.A. 8. That you attend for and successfully complete any programs and counselling including respectful relationship counselling, anger management counselling, and substance abuse counselling as is directed by your probation officer.

[ 96 ] There is also a firearms prohibition pursuant to s. 110 of the Criminal Code for a period of ten years. There is a DNA order pursuant to s. 487.051 of the Criminal Code . [ 97 ] What does he want to do with respect to the victim fine surcharge? [ 98 ] MS. GILL : Your Honour, I am going to ask you to make that payable forthwith and in default one day. I think it is going to take some time to get back on his feet. He has got to pay a substantial amount in restitution as well and the jail sentence -– [ 99 ] THE COURT : So you are saying he is not prepared –- not in a position to pay it. [ 100 ] MS .

GILL: Correct. [ 101 ] THE COURT : And the Crown is not opposed to that. [ 102 ] MS . STEVENS: No. [ 103 ] THE COURT : All right. So there is a period of one day and that is concurrent then with respect to the victim fine surcharge. (ORAL REASONS FOR SENTENCE CONCLUDED)