R. v. Diligenti, 2022 BCPC 192

Citation: R. v. Diligenti 2022 BCPC 192 Date: 20220530 File No: 67063-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DARIN CARLOS SLADE DILIGENTI CORRIGENDUM TO THE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. SMITH Counsel for the Crown: J. McPherson Counsel for the Defendant: M. Klein, Q.C. Place of Hearing: North Vancouver , B.C. Dates of Hearing: September 9, 2021; March 25 2022 Date of Judgment: May 30, 2022 A Corrigendum was released by the Court on September 21, 2022. The corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] Mr.

Diligenti was found guilty of assaulting and causing bodily harm to Anthony Smith on May 5, 2021. He is now before the Court for sentencing. The Sentencing Context [ 2 ] The purpose of a sentence is to protect society and contribute to respect for the law and the maintenance of a just, peaceful, and

safe society. That purpose is achieved by imposing just sanctions that have one, or more, of the following objectives: denunciation,deterrence, separation of the offender where necessary, rehabilitation, to provide reparation, and to promote a sense of responsibility inoffenders and acknowledgment of harm done to victims or the community. [3] Sentencing is an individualized process. A sentence must take into account the particular circumstances of the offender and theoffence. As a result, the significance of any one of these objectives depends on those circumstances.

The existence of mitigating factorsor aggravating factors serves to decrease or increase the severity of a sentence. Evidence that the offence has had a significant impact onthe victim, considering their personal circumstances including their age, health, and financial situation, is deemed aggravating under theprovisions of the Criminal Code. Parity and restraint with regard to deprivation of liberty are also principles that must be considered. Thefundamental principle of sentencing is that a sentence must be proportionate to the offender's moral blameworthiness and the gravity ofthe offence.

All of these principles and objectives are set out in s. 718 through 718.2 of the Criminal Code. The Offence [4] The facts of the offence are set out in my Reasons for Judgment of May 6, 2021, which will be posted along with this decisionon the Court's website. Below is a

summary of those findings. [5] Briefly, Mr. Diligenti and the victim, Anthony Smith, were adult stepbrothers. The two men were at their parents' home themorning of May 6, 2019 - Mr. Diligenti to visit his mother and Mr. Smith to do some electrical work at the request of his father. [6] While Mr. Smith sought to go about his business without engaging with Mr. Diligenti, Mr. Diligenti sought to engage with Mr.Smith: Upon seeing him, he insulted Mr. Smith. When Mr. Smith ignored him, Mr. Diligenti continued to speak at him, includingsharing negative views of Mr. Smith's workmanship. Despite this, Mr.

Smith remained calm and did not engage. [7] When Mr. Smith left the house area and walked up a set of stairs to a nearby cul-de-sac where his work van was parked, to getsome tools, Mr. Diligenti followed him. Mr. Diligenti had no reason to do so, apart from his intent to engage with Mr. Smith. When inthe cul-de-sac, Mr. Smith finally turned and faced Mr. Diligenti and walked toward him. It is then that Mr. Diligenti slammed his headinto Mr. Smith's face, an assault described by a witness to the assault as a “head butt”. The assault was unprovoked and unexpected.

Mr.Smith fell to the ground and lost consciousness briefly. [8] I found, as a fact, that Mr. Diligenti was antagonistic toward Mr. Smith and sought to provoke him. Mr. Diligenti knew that Mr.Smith had suffered a prior head injury. Upon regaining consciousness, Mr. Smith, the witness Mr. Maurer, and Mr. Diligenti all returnedto the area of the house. Mr. Smith phoned the police. While Mr. Smith was taking photographs with his cell phone, Mr. Diligentiapproached him and slapped the phone out of Mr. Smith's hand. Mr. Diligenti left the home before the police arrived. [9] Later that day, Mr.

Diligenti was arrested and released on a promise to appear with a police undertaking. The terms of theundertaking were a prohibition against communicating with Mr. Smith or the Crown witness Maurer, along with a prohibition toattending at two addresses apparently associated to the two men, and to keep the peace and be of good behaviour, and carry a copy of theundertaking. [10] Mr. Diligenti was charged with assault causing bodily harm. The Crown proceeded summarily. Under s. 267 of the CriminalCode, as it stood at the time, the maximum sentence here is an 18-month jail sentence.

There is no mandatory minimum sentence. The Issue [11] The issue is: What is the appropriate sentence for this offender for this offence? The Parties' Positions [12] The Crown says that a jail sentence of six to nine months is appropriate given the nature of the assault and the lack of mitigatingfactors. Further, that the assault was violent and unprovoked; that the chosen site of the blow - the victim's head - is aggravating, and thatthat aggravating factor is exacerbated by the evidence that Mr. Diligenti knew that his victim had had a prior serious head injuryrendering him even more vulnerable.

The Crown says that there has been significant impact on the victim and notes that this is alegislated aggravating factor. As well, the Crown says that there has been no rehabilitative step taken by Mr. Diligenti and no remorseshown. [13] Crown counsel urges that the cases relied upon by Mr. Diligenti in support of his sentencing positions are all distinguishable bythe presence of significant mitigating factors, which are absent here. [14] While Mr.

Diligenti says that delay in this case is mitigating, the Crown disagrees, saying that, factually, delay is not relevanthere. [15] Finally, Crown counsel says that the letters filed in support by Mr. Diligenti, in the main, seek to victim-blame and do notamount to mitigation in the circumstances. [16] The Crown relies on the decisions R. v. Giraud, 2020 QCCQ 2657; R. v. Leavitt, 2019 BCPC 143; R. v. Volk, 2018 BCPC 58; R.v. Forsythe, 2016 BCPC 202, and R. v. M.F.T., 2013 BCCA 20. [17] Turning to the defence position: Mr.

Diligenti says that a custodial sentence is not appropriate and that a conditional dischargeor, at most, a suspended sentence, is the right outcome, given his prior good character and previous lack of contact with the criminaljustice system. He says that the assault occurred in an ongoing and emotionally charged longstanding family feud; that thisuncharacteristic involvement in the criminal justice system has had significant impact on him. [18] He cites R. v. Proulx, 2000 SCC 5 and R. v. Fallofield, (BCCA) in support of his position that a conviction is

not necessary to achieve the desired deterrence here, noting that he lives in a small community and people are aware of this charge; that he has suffered stigma as a result, and as well, that he has been significantly impacted by the process of being arrested, taken into custody, and released. He says that this impact has been profound. As mentioned, he also cites the delay in the completion of the trial process as a mitigating factor. [ 19 ] He relies on R. v. Ranspot, 2017 BCPC 101 ; R. v. Stard , 2016 BCPC 441 ; R. v. Smith , 2018 BCPC 266 ; R. v. Manahan , 2018 BCPC 332 , and R. v.

Kibangula, 2021 BCSC 1431 , as well as R. v. Harrison, 2019 BCPC 79 , and R. v. Hambleton , 2021 BCPC 130 . He also relies on the letters, referred to earlier, in support of his contention that a discharge or suspended sentence are appropriate as the letters largely reflect his contribution to the community and to his family. Th e Sentencing Hearing [ 20 ] No pre-sentence report was requested and there are no reports that provide an explanation for Mr. Diligenti's violent behaviour. The Crown filed an original victim impact statement and an updated statement, both authored by Mr. Smith. Mr.

Diligenti filed seven letters, most of which referred to a longstanding disharmony between Mr. Diligenti's biological family and Mr. Smith's. [ 21 ] The sentencing hearing began on September 9, 2021, continued on October 12, and completed on March 25, 2022. The Circumstances of the Offender [ 22 ] Mr. Diligenti is 49 years old. He has no criminal record. Based on counsel's submissions and letters filed at the sentencing, it appears that he has been a successful entrepreneur and accomplished athlete. He has a spouse and a young child. He is the primary caregiver of the child.

He grew up on the North Shore in an affluent family. He graduated from high school and pursued post secondary education. [ 23 ] His mother and Mr. Smith's father married about 20 years ago, both bringing children into the union. There were difficulties in the dynamics and some discord apparently emerged between some of the children as adults. In one of the letters filed, there is reference to an ongoing family feud. [ 24 ] There is no suggestion that Mr. Diligenti suffers from mental illness or addiction.

He has not engaged in counselling since the offence, but says he would participate in counselling if ordered to do so. [ 25 ] Counsel advises that Mr. Diligenti has a view of the circumstances of the offence that differs from my findings based on the trial evidence. Mr. Diligenti testified at trial that he acted in self-defence, but I found that the Crown disproved that defence. In significant areas of his evidence, I did not find Mr. Diligenti believable. Given that I found that he intentionally slammed his forehead into Mr. Smith's face, as described by a third-party witness, and Mr.

Diligenti has a different view, I am left to conclude that he has little insight into his actions. His counsel advises that Mr. Diligenti is not unsympathetic to Mr. Smith. He knows that he was injured. On his behalf, counsel says that the explanation for Mr. Diligenti's violence is animosity between two distinct tribes in this blended family, which boiled over. The Circumstances of the Victim [ 26 ] Mr. Smith is now approximately 39 years old. He is a certified electrician, and at the time of the offence had his own company and employed an apprentice. In his initial victim impact statement, Mr.

Smith described being changed emotionally as a result of the assault, having a sense of fear and anger. He describes losing clients and closing his business after the assault. He also described fearing retaliation by Mr. Diligenti, noting the unprovoked nature of the assault. He indicated an intention to move elsewhere to avoid Mr. Diligenti. [ 27 ] Mr. Smith sustained a displaced nose fracture and chipped teeth requiring repair. In the victim impact statement, he described four teeth affected. He describes lack of sleep and nightmares.

In the updated victim impact statement, he described loss of income, which he attributes to the impact of the assault, advising that as of October 2020, he was much recovered and back to work. He notes the assault was the last of several head traumas he has sustained. He described experiencing focus, memory and emotional regulation issues. Where this Particular Offence Lands on the Spectrum of Gravity [ 28 ] This is a critical question in arriving at the appropriate sentence here: That is, where does this particular offence land on the spectrum of gravity?

Assessing the gravity in an offence involves considering the reasonably foreseeable potential harm flowing from the violent act. As stated in R. v. Friesen , 2020 SCC 9 , at paragraph 84 , in part: … Even if an offender commits a crime that fortunately results in no actual harm, courts must consider the potential for reasonably foreseeable harm when imposing sentence (A. Manson, The Law of Sentencing (2001), at p. 90).… [ 29 ] Here, the reasonably foreseeable potential harm flowing from the single violent blow to Mr.

Smith's head includes facial and head fracture, mouth trauma, loss of consciousness, and brain injury, both temporary and permanent. Volk , one of the cases relied on by the Crown, is a tragic illustration of the risk posed by Mr. Diligenti's intentional act: In that case, a single blow to the head resulted in a serious brain injury and long-lasting and profound consequences; (see: paragraphs 2 and 13 – 16). [ 30 ] In Giraud , the judge observed that where an assault involves a blow to the head, that chosen site of impact has a significant impact on sentencing (see: paragraph 80). In M.T.F ., the B.C.

Court of Appeal quoted from the sentencing decision where the judge characterized a head butt as a manner of assault, "designed to cause injury and pain;" (see: M.T.F. , at paragraph 10). That is what Mr. Diligenti intended and that is what occurred. [ 31 ] The assault did not occur in the context of a consensual fight or anything of the kind: It was unprovoked and unexpected. It was, to use the language of some of the cases, "a sucker punch", a manner of assault described in Giraud as repugnant; (see: paragraph 75).

Because the assault was unprovoked and unexpected, Mr. Smith had no opportunity to defend himself from the blow. [ 32 ] Increasing the gravity of the offence, because of the increased risk, is Mr. Diligenti's knowledge before he head butted Mr. Smith, that Mr. Smith had suffered a significant head injury a few years earlier. While a single blow is distinct from repeated blows, the assault was designed to cause injury and pain, and that is just what it did. The single blow was sufficiently forceful that it felled Mr. Smith, who immediately went to the ground upon being struck. Unsurprisingly, Mr.

Smith was injured by the assault and has suffered some long-lasting sequela. The offence is on the high-end of the gravity spectrum. Mr. Diligenti's Moral Blameworthiness in Committing this Offence [ 33 ] In order to assess the degree of Mr. Diligenti's moral culpability in committing this assault, I must take into account the harm he intended, or was reckless or wilfully blind to; ( see: Friesen , paragraph 88 ). As well, I must consider the consequential harm he caused and the normative character of this conduct; ( see: R. v. Plowman , 2015 BCCA 423 , at paragraph 40 ).

a) The Intended Harm [ 34 ] As mentioned, a head butt is a manner of assault designed to cause injury and pain. In addition to that generalized characterization of this type of assault, I find that Mr. Diligenti was, at a minimum, reckless to the likely heightened risk of harm flowing to this particular victim from the blow to his head, given his knowledge of Mr. Smith's prior head injury.

b) The Actual Harm Caused [ 35 ] As mentioned, Mr. Smith sustained a brief loss of consciousness; also, a nosebleed, a displaced fracture of the nose, four damaged teeth, emotional and psychological harm manifesting in the loss of sleep, emotional dysregulation, and some loss of work.

c) The Normative Character Of His Conduct [ 36 ] In considering this factor, I have regard to the late Judge Gulbransen's language in R. v. Sutherland, 2006 BCPC 133 : “ How far beyond society's norms did he sway, did he go?” (at para. 33). [ 37 ] Mr. Diligenti was intent on engaging Mr. Smith the morning of the assault, while Mr. Smith sought not to engage with him. Mr. Smith, an electrician, was at the property at his father's request to do some work. Mr. Diligenti, upon encountering Mr. Smith, insulted him, and then continued to attempt engagement, talking at him, disparaging him, and seeking to provoke Mr.

Smith, ultimately following him away from the house to the nearby cul-de-sac where he assaulted him. [ 38 ] I will pause to note here that a number of the letters filed on sentence suggest that the authors believed that the protracted family dysfunction is legally relevant to the case before the Court. It is not. I found, as set out repeatedly above, that Mr. Diligenti struck Mr. Smith without provocation and in no way in self-defence.

In one of the letters, the writer states, "that in a family feud such as apparently exists between the Diligenti and Smith factions, it is not as though there is one innocent party and one guilty party.” Such a statement demonstrates that the writer has no appreciation of the facts proved at trial. Similar sentiments are found in most of the letters. It is clear that those writers do not appreciate the findings made, based on the evidence accepted at trial. In the result, I afford them little weight. [ 39 ] Returning to the facts in a consideration of the normative character of Mr. Diligenti's conduct, this was

an act of gratuitous violence, unprovoked, in combination with considered efforts by the offender to engage the object of the ultimate violence, his stepbrother. Mr. Diligenti could have taken Mr. Smith's lead and ignored him. He could have left the home area, since his mother could not visit. He was ready to drive away when he saw Mr. Smith up in the cul-de-sac and decided to, once again, interact with him. [ 40 ] There is nothing that attenuates Mr. Diligenti's moral blameworthiness here: No mental illness, nor addiction, nor provocation. Mr. Smith was doing his best to ignore Mr.

Diligenti, and it appears that that inexplicably triggered Mr. Diligenti's violent act. I find that Mr. Diligenti's moral responsibility in committing the assault was at the high end of the spectrum. [ 41 ] Thus, when considering the fundamental principle of sentencing as it applies here, the sentence I must impose must be proportionate to Mr. Diligenti's very high degree of moral blameworthiness and the significant gravity of the offence. It is the presence of mitigating factors that would attenuate the sentence otherwise appropriate here, and I will turn to a discussion of those factors now.

Mitigating Factors [ 42 ] Generally, the cases relied upon by Mr. Diligenti in support of his position on sentence all involve mitigating factors that are not present here. [ 43 ] The first such mitigating factor that I will discuss is the presence of a guilty plea.

In Ranspot , Smith, Stard , and Kibangula , the offenders all entered guilty pleas. [ 44 ] A guilty plea is a significant mitigating factor since, in addition to providing the certainty of conviction without the risk of re- traumatizing victims by their having to testify, a guilty plea is an acceptance of responsibility and often viewed as an expression of remorse.

Pleading not guilty and requiring the state to prove a criminal offence at trial is a citizen's constitutional right and is not an aggravating factor; it is simply that where a person chooses to do so, the mitigating value of a guilty plea is not present if she or he is convicted. That is the situation here. The absence of a mitigating factor is not the same as an aggravating factor. [ 45 ] The next mitigating factor in a number of these cases, not present here, is that the offender is a youthful first offender; see: Stard and Smith. While Mr.

Diligenti is a first offender, he is not youthful, and his moral blameworthiness is not reduced by considerations of youthful misjudgment or an undeveloped brain. [ 46 ] Next, genuine remorse and insight: A lack of remorse is not an aggravating factor. The presence of genuine remorse and insight

are mitigating factors relevant to an offender's rehabilitation and risk of re-offending. I glean no remorse here. Even moments afterobviously harming Mr. Smith by striking him in his previously injured head, Mr. Diligenti continued his aggressive behaviour towardshis victim, slapping his cell phone out of his hand. [47] Unlike the offenders in Ranspot and Stard and Manahan, there has been no expression of remorse to the Court by Mr. Diligenti;no letter expressing insight or remorse to his victim. [48] Mr. Diligenti’s trial testimony that Mr.

Smith “smugly” ignored him is consistent with his view and attitude towards his victim. [49] In one letter written by a friend, filed here, the author refers to Mr. Diligenti being remorseful. That is the only reference beforethe Court. Counsel here advised that Mr. Diligenti was not unsympathetic to Mr. Smith and appreciated that he was injured, but notedthat it was not a catastrophic injury. With regard to insight, counsel advised that Mr. Diligenti appreciates that something went wrong inhis life that day. [50] Turning to the consideration of meaningful community support.

I have already discussed the limited weight I place on the lettersreflecting a lack of understanding of the findings at trial. A number of letters refer to Mr. Diligenti's calm attitude and pro-social natureand disinclination to violence. I reflected on those descriptions in conjunction with Mr. Diligenti's demeanor while under cross-examination. I watched him carefully in the witness box and observed him to react aggressively at one point during cross-examination;his demeanor becoming challenging toward Crown counsel during her questioning. It was a telling moment.

Petulance also camethrough in his exchange with Crown counsel when it was suggested that the home shared by his mother and Mr. Smith was not his. [51] Turning next to counselling and other rehabilitative steps, Mr. Diligenti, as mentioned, is not engaged in any counselling or anyother rehabilitative steps. [52] Underlying addiction or mental illness? There are no such factors here. [53] Turning next to collateral consequences upon conviction: There are no collateral consequences upon conviction to Mr.

Diligentihimself - no suggestion of immigration consequences or employment impact or the like. [54] Next, no criminal record: The offenders, in the bulk of the cases relied upon by Mr. Diligenti, also did not have a criminal record.(One of the cases involved an individual who had been subject to an 810 peace bond). [55] Lack of criminal record is the most significant mitigating factor here. As well, Mr. Diligenti has not re-offended and he has notfailed to comply with the terms of his undertaking.

As mentioned, I accept that he is involved in his community, is a loving father andpartner. [56] Turning, finally, to the issue of delay. Mr. Diligenti points to the length of time this matter has been before the Court as amitigating consideration. He was charged on July 9, 2019. COVID paralyzed and delayed court proceedings beginning in March 2020.The trial proceeded on October 29, 2020, February 11, 2021, April 1, 2021, with judgment delivered on May 5.

No transcripts orevidence relating to scheduling is before me. [57] The court file scheduling memos show that sentencing was initially set to begin on June 25, 2021 but delayed to September 9,2021, at the request of the defence. Submissions did not conclude in the time allotted that day and continued on October 12. Again,submissions did not conclude in the scheduled time. January 14, 2022 was set for continuation of sentencing submissions; due to a familyemergency, I was unavailable and the sentencing continuation went over to March 25, 2022, when counsels’ submissions concluded.

Thematter was then set today for sentencing decision, taking into account counsel and the Court's availability, as is the usual course, Iexpect. No submissions were made detailing the reasons for the manner in which the case proceeded. [58] Mr. Diligenti cites R. v. Spencer, (ONCA), and Hambleton in support of his position that delay here should beconsidered a mitigating factor. The Crown says that, factually, there is not significant delay, other than that caused by Mr.

Diligenti,which could be properly factored into any such assessment. [59] A critical factor here, separate from the question of whether actual relevant delay has been made out, is that Mr. Diligenti'sliberty has only been slightly restricted by the terms of the undertaking while he has been before the Court. The undertaking, asmentioned, only requires Mr. Diligenti to keep the peace and be of good behaviour, not go to two addresses, and have no contact withMr. Smith or the other Crown witness. [60] In R. v. Perrault, 2005 BCCA 226, the Court cites Spencer and R. v.

Lau, 2004 ABCA 408, and states that they, "suggest that asentencing judge may properly take into account time spent on interim release where conditions approximate house arrest in deciding anappropriate term of imprisonment", (at paragraph 12). The terms of the undertaking here, in no way approximate house arrest; Mr.Diligenti was in no way restricted apart from being required to behave properly and stay away from his victim and the Crown witness.

Inthe circumstance of this case, I am not satisfied that the delay is a mitigating factor which affects a sentence appropriate for this offenderin relation to this offence. [61] To recap, the mitigating factors present in the cases relied upon by Mr. Diligenti, not present here, include a guilty plea, insight,remorse, rehabilitative steps taken, mental illness or addiction, youthful first offenders. Aggravating Factors [62] The assault was unprovoked, unwarranted, and was a sucker punch to the head. All of those are aggravating factors. The pre-existing vulnerability known to Mr.

Diligenti is an aggravating factor. The impact of the assault on Mr. Smith, given the provisions ofthe Criminal Code deeming significant impact an aggravating factor, is an aggravating factor here. (I am clear that the harm, that is tosay the displaced fracture and the broken teeth, are part and parcel of the offence of assault causing bodily harm).

Significant Sentencing Objectives Here [ 63 ] Denunciation and deterrence are the two most significant objectives here: Unexplained violence that poses real risk to someone has to be denounced in the strongest terms. In Forsythe , at paragraph 32 , Her Honour Judge Challenger stated the following: I find the court must send a strong message to the community that striking another person in the head or face will result in a significant penalty.

In my experience as a judge in the Provincial Court, many people suffer significant brain injuries and/or lose their lives from being punched and falling to the ground or being kicked or hit on the head with objects.

Thus, the court must respond by imposing retributive consequences which properly reflect the offender's moral culpability, intentional risk-taking, the consequential harm which is caused, and the normative character of the offender's conduct. ( M.C.A. cited.) [ 64 ] I also find relevant here promotion of a sense of responsibility in the offender and acknowledgement of the harm done to the victim and to the community. Rehabilitation is also a factor. Mr. Diligenti's lack of insight is troubling.

Those closest to him, and by that I mean many of the writers of the letters filed herein, seem to share of his lack of insight and acceptance of his responsibility. Consideration of a Conditional Discharge [ 65 ] A conditional discharge is not appropriate here. As discussed above, Mr. Diligenti's moral culpability is at the very high end and the offence he committed is grave. As also discussed, the cases he relies upon where discharges were granted are distinguishable from this case by the presence of significant mitigating factors, which are absent here.

While a conditional discharge is available for this offence under s. 731 of the Code, the

section sets out two preconditions, neither of which I find to be met here. [ 66 ] The leading case in this province in relation to discharges is Fallofield . In that decision, the Court describes the first pre-condition in s. 731 in the following terms: Generally, the first condition would presuppose the accused as a person of good character without previous conviction, that is not necessary to enter a conviction against him in order to deter him from future offences, or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions. [ 67 ] As stated, Mr.

Diligenti has no previous conviction. However, his violent and unprovoked act is unexplained apart from being the result of this boiling over in an unhappy family dynamic. While his counsel says he is not an unrepentant offender, I do not find that he is remorseful and there is no indication that he has insight into his violent act. In the circumstances, I am not satisfied that a conviction is not necessary to deter him from future offences or rehabilitate him. [ 68 ] In the result, I am not satisfied that the first pre-condition to granting a discharge is met.

While that is the end of the matter, I will say as well that, in my view, to grant a discharge would be contrary to the public interest: As discussed above, Mr. Diligenti's moral blameworthiness is high and the offence grave. I agree with the Crown that there are very few mitigating factors here attenuating either. In the circumstances, a discharge would fail to meet the fundamental principle of sentencing.

Consideration of a Suspended Sentence [ 69 ] While also available, I have concluded that a suspended sentence in this case is not appropriate; again, given the gravity of the offence and the offender's degree of responsibility and lack of mitigating factors. In R. v. Voong , 2015 BCCA 285 , the B.C. Court of Appeal observed that exceptional mitigating factors are usually present where a sentence is suspended. In R. v.

Ruiz, 2019 BCCA 323 , the Court clarified that the phrase, "exceptional circumstances" is a generalized description intended to encompass circumstances of the offender and the offence that call out for a sentence that is well below the generally accepted range; (see: paragraph 18 of Ruiz) . [ 70 ] Given the principle of proportionality and my findings in that regard, as well as the mitigating and aggravating factors here, I am not satisfied that this case calls out for a sentence well below the generally accepted range.

Consideration of a Conditional Sentence Order [ 71 ] Given the principle of proportionality and the sentencing objectives most significant here, and taking into account the mitigating factors and aggravating factors, I have concluded that a jail sentence is required followed by a period of probation. Since the sentence here will be under two years, I must consider the imposition of a conditional sentence order, even though neither party sought such a sentence; (see: s. 742.1 of the Code ). Mr.

Diligenti's counsel referenced Proulx in support of his submission that jail is not required to address the sentencing objectives of denunciation and deterrence. Proulx is the leading case with regard to conditional sentence orders. [ 72 ] The Court may order that an offender serve the sentence in the community if, (i), the safety of the community would not be endangered by the offender serving the sentence in the community, and (ii), a conditional sentence would be consistent with the fundamental purpose and principles of sentencing mentioned above. Because the actual cause of Mr.

Diligenti's violence is unknown, despite his having no prior criminal record, it is difficult to assess whether his serving the sentence in the community would endanger the community or not, since the community includes other members of the Smith family. That is a consideration. [ 73 ] A significant further consideration is my conclusion that a conditional sentence order would not be consistent with the fundamental principle of sentencing. As noted in Forsythe and in Volk , given the significant weight to be placed on denunciation here, factors of retribution and punishment come into play. In R. v.

Hurley , 2008 BCCA 461 , the Court observed that incarceration generally has a greater deterrent effect as compared to a conditional sentence, which is broadly accepted as a more lenient sentence; (see: paragraph 16). [ 74 ] Here, Mr. Diligenti was the sole provocateur. There are not sufficient mitigating factors here that satisfy me that the objectives of deterrence, denunciation, and protection of the public would be met by a conditional sentence order. Incarceration and the Appropriate Length of the Jail Sentence to be Imposed

[ 75 ] Given the individualized nature of sentencing, not surprisingly, most of the Crown's cases present significant differences from this case: In Giraud , (a decision from Quebec), the Crown proceeded by indictment and the accused had a criminal history. Leavitt involves prolonged violence rather than a single blow, and the offences occurred in the context of intimate partner violence, which is statutorily deemed aggravating, a factor not present here. As well, the offender had some prior contact with the criminal justice system by way of a s. 810 peace bond.

I have considered all of the cases the parties have referred to, as well as R. v. Janzen , 2015 BCSC 652 , a decision of our Supreme Court. [ 76 ] I found Volk to be particularly helpful. There the Crown proceeded summarily. The assault was a single blow to the head. The assault was out of character for Mr. Volk and was described by the Court as a momentary lapse of control. The consequences to the victim were more profound than here. Decision [ 77 ] Having taken all of the foregoing into consideration, Mr.

Diligenti is sentenced to six months jail, followed by a twelve month probation order, the terms of which are: i. You must keep the peace and be of good behaviour. ii. You must appear before the Court when required to do so by the Court. iii. You must notify the Court or your probation officer in advance of any change of your name or address, and promptly notify the Court or your probation officer of any change of employment or occupation. iv. You must have no contact or communication with Anthony Smith, directly or indirectly. You must not go to any residence, school, or work place of Anthony Smith. v.

You must report to a probation officer at Suite 100, 233 West 1st Street, North Vancouver, no later than 4 p.m. on the second business day after your release. After that, you must report as directed by your probation officer, and it may be by telephone. vi. You must attend, participate in, and successfully complete any intake assessment, counselling, or program as directed by your probation officer, including counselling with regard to anger management. vii. You must possess no weapons within the meaning of the Criminal Code . [ 78 ] The following ancillary orders will also go: i.

You must pay restitution in the amount of $1,294.38 to the clerk of the court for the benefit of Anthony Smith, in full, by January 31, 2023. ii. Pursuant to s. 487.051 of the Code , I am ordering that there be a sample of your DNA provided. iii. Pursuant to s. 110 of the Criminal Code , you are prohibited from possessing a firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance for a period of three years. iv.

You must pay a $100 victim fine surcharge within two months. (REASONS FOR SENTENCE CONCLUDED) CORRIGENDUM - Released September 21, 2022 In the Reasons for Sentence dated May 30, 2022, the following change has been made: [1] Paragraph [1] should read as follows: [1] Mr. Diligenti was found guilty of assaulting and causing bodily harm to Anthony Smith on May 5, 2021. He is now before the Court for sentencing. _____________________________ The Honourable Judge L. Smith Provincial Court of British Columbia