R. v. Jelinek, 2017 BCPC 454

Citation: R. v. Jelinek 2017 BCPC 454 Date: 20170306 File Nos: 209399-2-C; 209399-3 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT CHARLES JELINEK ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE GULBRANSEN Counsel for the Crown: R. Beram Counsel for the Accused: P. Evans Place of Hearing: Surrey , B.C. Date of Hearing: March 6, 2017 Date of Judgment: March 6, 2017 [ 1 ] THE COURT: Mr.

Jelinek has pleaded guilty to assault with a weapon in an unusual set of circumstances when one is considering weapons. [ 2 ] He was in Surrey Pre-Trial, almost finished the time he was going to serve in prison, in fact it was two days before he got sentenced to time served for some drug offences. It is likely true, he was likely pressured by some other inmates to do this. He approached the victim in this case, Officer Prchal, who was seated at a desk in an open area in the prison, in one of the units I guess, and he was carrying a paper cup as Mr. Beram described it, it had feces in it and urine.

The officer was not alerted at all. She was not

expecting anything at all. He walked up and threw the contents of this cup on her, on her face, on her shoulders and her arms. That is the event really. He was taken down by the officers and eventually charged, but that is the event and he has pleaded guilty. [ 3 ] The Crown has proceeded summarily. The maximum sentence is 18 months.

I take that from the Crown to mean that although they could have proceeded by indictment and sought a much harsher sentence, I think the Crown has been quite realistic taking into account this man's relative youth and relatively minor record of convictions that it was not necessary to seek a higher sentence than 18 months. [ 4 ] This has a bit of an unfortunate background. This man pleaded guilty in front of me a couple of years ago now I think, a long time ago, and it seems to me he just avoided, as much as possible, having to face the music. Mr. Evans and counsel before him have appeared several times.

They have been very responsible in trying to get this man to come in. I can understand why he would be afraid to face what he did. He has got his own problems, but that is something I do have to consider in terms of the other charge he is facing, which is failing to appear for his sentence in May of 2016. [ 5 ] What are the applicable principles here? I think Mr. Beram was quite correct and Mr. Evans does not really disagree that much, that the vital concerns the court has to have here are denunciation and deterrence. The court must denounce this kind of conduct.

I think both counsel have described it properly, it is disgusting, it is dehumanizing, it is vile, it is vicious. [ 6 ] Now, whether or not there is some chance of transmission of disease, I do not think is nearly as important as the obvious impact that this would have on this officer. She was off work for 11 months. She gave a very dignified and very brief victim impact statement in which she points out that this offence has had a terrible effect on her. Of course it had a terrible effect on her. One just has to think about this happening to another human being.

It was a terrible thing to do. [ 7 ] Deterrence is also very important here in that the court must not only show its abhorrence for this kind of act by imposing a prison sentence, the court must also impose a sentence which, in some way, we would hope deters others in the sense of showing that there are consequences for this kind of act which are more than trivial. [ 8 ] What counsel have said about the necessity to protect peace officers is important. Police officers, of course, are higher profile.

They are in the courts more often, I think, and in the public eye more often, so one knows right away, most people in our society know how important it is to protect police officers from violent acts by the people they are dealing with. [ 9 ] I think Mr. Beram is correct that prison and corrections officers are in some ways more vulnerable than police officers because they are dealing with a number of people who are concentrated in one building and they have to deal with all varieties of people; mentally ill people, drug addicts, personality disorders, gang members, pathetic people.

They have a whole variety of people and not only do they have to protect themselves, watch out for themselves, but they have to watch out for other prisoners. [ 10 ] The letter from Corrections, from the union, indicated the number of assaults that occur between prisoners. That is something they have a duty to prevent or to at least try to mitigate or lessen the impact of that kind of activity. [ 11 ] As in any other prison, at Surrey Pre-Trial, people have got to get along. In other words, the prisoners know that they have got rules that they have to obey. The corrections officers know it.

Corrections officers are not interested in punishing or harming people. They are interested in making sure people get treated fairly, get fed, get treated as human beings. I think in most prisons, at least in my experience both as a prosecutor and a judge, people do get along in prison. There are anomalous circumstances where they do not get along, some corrections officers in the distant past have done some terrible things to prisoners, that I recall at Oakalla in Burnaby, for example, but most of the time corrections officers are trying to help. It is almost always the case in my experience.

Then they have to look out for themselves when there are dangerous people. I am talking about violent people who punch or stab or try to get revenge in obvious ways. Then to have an event like this to look for, as Mr. Beram pointed out, this is not an uncommon occurrence. It is not a common occurrence but this kind of thing, feces or urine thrown in a face of an officer is, unfortunately, not a unique event.

As I said to counsel, I have heard cases in both Abbotsford and Chilliwack arising from federal prisons where similar matters have occurred. [ 12 ] I just want to reinforce that the court has to take into account, in terms of denunciation and deterrence, the vulnerability of these officers. This is a really good example, an officer is at a desk, prisoners are milling around, no one is causing any trouble, she is doing her job, they are obeying whatever rules they have to obey and there is some flexibility in what is allowed and this man walks up and throws feces in her face. She could not prevent it.

She could not prepare for it. [ 13 ] As I said, this accused indicates he might suffer from fetal alcohol spectrum disorder. It is a very difficult thing to analyze. All too many people in our system suffer from that. I do not know if he does or not. Persons suffering from that disorder often are easily manipulated, taken advantage of by others. That might have happened here. [ 14 ] But my point here is, as Mr. Beram has stressed, we have a vulnerable person here, who is trying to do her job, trying to do her job treating people in prison humanely, and this man threw feces in her face.

He may well have faced some consequences from a bully in the prison but that is too bad. He cannot depend upon that threat as an excuse for what he did. I know very well that in prison, you know, things can happen to other prisoners that guards cannot prevent, but it is something that a person has to make a choice on and he made the choice to do it.

It was also a particularly stupid thing to do, I have got to say, because he was on film, people saw him do it, and he clearly had no sense of the consequence of his action. [ 15 ] This is just a long way to say that one has to remember how important the job of corrections officers is, how vulnerable they are and how they have to be protected as much as a court can, by recognizing the seriousness of this kind of conduct on the health and on the well-being of this corrections officer. I agree with Mr.

Beram again, this attack on her was not a personal attack, it was an attack on all corrections officers and that is why denunciation is so important here. I also think that Mr. Beram has taken into account when coming up with his proposed sentence, that he took into account there was a guilty plea here and this man has a relatively minor record and that is why the Crown proceeded summarily. [ 16 ] For these reasons I conclude, first of all, that it is absolutely necessary that a prison sentence be imposed. The range of sentence

discussed by counsel, as Mr. Evan's suggests, this man has done six months 11 days in custody giving him enhanced credit for the time he has done and that should do the trick, that is enough. [ 17 ] Unfortunately, I disagree with that. I think Mr. Beram's submission is quite appropriate, both for the failing to appear -- because this man failed to appear on this sentencing after stalling it for a long time. People showed up to watch it or participate in the sentencing, he was not here, he was not here. He was recalcitrant in dealing with counsel. Once again, I understand.

I think he is afraid of what was going to happen, he just hoped it would go away. He is probably the, I do not know, the 500th person in my experience who has tried to do that. If he closes his eyes maybe the whole thing will go away. That does not help him, but it does mitigate a little bit from the seriousness of the failure to appear. But it is not a minor transgression of the requirement to appear in court, so I think that is an appropriate sentence submission by Mr. Beram that it should be a consecutive sentence. [ 18 ] Do you want to stand up, sir.

Stand up. [ 19 ] The sentence I would have imposed would have been, on the assault charge, a sentence of one year and I would have imposed a two-month consecutive sentence on the charge of failure to appear. I take into account you have done the equivalent of six months and 11 days in custody. The way I will account for that is instead of imposing the one year sentence, I will take into account you spent six months and 11 days in custody. Then, in my view, the sentence on the assault will be five months and 19 days, taking into account the time you have served and two months consecutive on the fail to appear.

That is a total sentence of seven months and 11 days. [ 20 ] I also impose a victim fine surcharge on both of those charges. It is $100 each one, $200. I will exercise my option to make the surcharge payable forthwith. It is one day in default on each charge, each count.

That is two days which will be served concurrently and so that the sentence is, you are basically doing one day in default on each of those. [ 21 ] I order under s. 487.051 on the assault charge, assault with a weapon charge, that DNA samples be taken. [ 22 ] I also order under s. 110 of the Criminal Code that you be prohibited from possessing any of the weapons named therein. It is mainly for a period of five years. That is mainly aimed at guns and bullets, but it also includes basically every other dangerous weapon we can think of. [ 23 ] I have considered whether I put you on probation. This is not

an act which convinces me that you need or you will benefit from probation, so I decline to impose a probation order. (REASONS FOR SENTENCE CONCLUDED)