R. v. K.S.C. Date:, 2015 BCPC 199

Citation: R. v. K.S.C. Date: 20150501 2015 BCPC 0199 File Nos: 230960-3-KC; 230960-6-AC Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. K.S.C. EXCERPTS FROM PROCEEDINGS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Crown: R. Sinclair Counsel for the Defendant: K. McGuire Place of Hearing: Vancouver , B.C. Date of Hearing: May 1 and 6, 2015

Date of Judgment: May 1 and 6, 2015 Introduction [ 1 ] THE COURT: On November 25, 2014, after a trial, I found the accused guilty of the following offences: (

a) assaulting his wife, JC, on April 17, 2014; (

b) assaulting his son LC, on April 17, 2014; (

c) breaking and entering into his own house on April 29, 2014. [ 2 ] In addition to the above-noted findings of guilt, the accused pled guilty to the following offences: two counts of breaching a recognizance on April 29, 2014; two counts of breaching a recognizance on June 9, 2014; and one count of threatening a police officer on June 9, 2014.

Background [ 3 ] In order to put the above-referenced findings and guilty pleas into context, I will briefly review my findings following the trial and, in the case of the pleas which were entered without a trial, the submissions of the parties as to the circumstances. [ 4 ] As noted, the accused pled guilty to breaching two conditions of a recognizance on April 29, 2014. The first condition was that he stay away from his family home. His recognizance on bail provided that he was not to go within a two-block radius of his home in Burnaby, British Columbia.

The second condition imposed was that he was prohibited from having any contact with his wife, JC, and son, LC. [ 5 ] As to the break and enter on April 29, 2014, the accused admitted that on April 29, 2014, he went to the basement suite where he and his wife lived. He used a two-by-four and smashed one of the windows. He climbed into the suite through that window and eventually reached the master bedroom door, which was closed. [ 6 ] JC and LC had gone into that room and closed the door after they heard the noise caused by the breaking window. They refused to let the accused into the master bedroom.

Consequently, he kicked in the door of the master bedroom, broke it open, and entered the room. In the meantime, however, JC and LC had left the bedroom by going into an adjacent laundry room which was shared with other tenants in the house. [ 7 ] With respect to the assault on LC on April 17, 2014, I found the accused was pushed by LC. After that push, the accused put his hand on LC’s shoulder and pushed him back. I found the accused pushed LC in the course of an argument the accused was having with his wife.

I had reservations about accepting the description given by LC; however, I also had reservations about accepting the description given by the accused. I found the accused was clearly minimizing the nature of the argument he had with his wife and his reaction to LC once LC pushed him. I concluded that the accused's push of LC was not immaterial or slight, as suggested by the accused. However, I did not accept that the push was as forceful as suggested by LC. [ 8 ] With respect to the assault on his wife, I found the accused pushed JC backwards into the sofa and pulled her hair. This occurred on April 17, 2014.

I did not accept his evidence regarding his actions toward JC in regard to the sofa incident. I found that the accused's memory was impaired by the fact he had been drinking that day. I accepted the evidence of his wife, JC, regarding the fact the accused pulled her hair. As well, there was circumstantial evidence from one of the officers who said JC's hair was "all messed up." [ 9 ] As noted previously, the accused pled guilty to two counts of breaching a recognizance and one count of threatening a police officer that he would cause death or bodily harm.

These offences occurred on June 9, 2014. [ 10 ] The accused was arrested on April 29, 2014, on Information Number 230960-3-KC. A bail hearing was held on May 12, 2014, and he was released on conditions. The accused eventually perfected bail and was released from custody on June 7, 2014. By virtue of the conditions of his bail, the accused was required to live at Vancouver Harbour Light Addiction and Rehabilitation Centre with certain exceptions; for example, appointments with his counsellor, appointments with the bail supervisor, and so on.

He was also ordered not to possess or consume alcohol or other intoxicating substances. [ 11 ] The Crown and the defence agree that the circumstances leading to the charges of June 9, 2014, were as follows. During the evening of June 9, 2014, that is, two days after the accused perfected bail and was released, two police officers were trying to find him in relation to another matter. At approximately 9 p.m., a police officer found the accused inside the new Brandiz bar. The accused was sitting at a table drinking beer. About five minutes later, two other police constables arrived at the bar.

One of them spoke to the accused about the other matter. A short while later, one of the constables told the accused he was under arrest for breaching his no- alcohol bail condition. The accused yelled and swore at the police officer repeatedly. The constable noted the accused appeared to be impaired. He smelled of alcohol, he slurred his words, and his stability was low. The accused presented as obnoxious, aggressive, and uncooperative. He said to Constable Tefenkdjian words to the effect "I'm going to find out where you live, get a gun, and get you fucking piece of shit. You prick. I know people.

You watch yourself." Pre-Sentence Report [ 12 ] The court requested and received a Pre-Sentence Report as well as a pre-sentence psychological evaluation. I will first deal

with the Pre-Sentence Report. The probation officer noted that the information provided in the report was based on the accused's own account and that of the victims. [ 13 ] The accused is 57 years old. He grew up in India with his parents and six siblings. He described his formative years as normal. His parents seldom argued because their relationship was seemingly amicable. His relationship with his siblings was, according to him, harmonious. [ 14 ] The accused first came to Canada in 1977 as a visitor.

He married his first wife, I believe her first name was “B”, in an arranged marriage shortly after he came to Canada. He and his first wife had two children, a son and a daughter. According to the probation officer, the accused left his first wife in 1994 and their divorce was finalized in 2000. [ 15 ] I pause to note that there is background information on this point in Dr. Speth's psychological assessment. It was pointed out by the defence that Dr. Speth's review of the background and of the accused's personal circumstances was incorrect in a number of respects.

It was certainly incorrect about when the accused first came to Canada, when his wife came, and so forth. The defence noted that once the accused was in Canada and had married, his entire family stayed in Canada. I am referring to his first wife and children. [ 16 ] The accused told the probation officer that he believed that the influence of his first wife's parents and her mood swings contributed to the failure of his marriage.

Be that as it may, on May 14, 1996, or thereabouts, the accused pled guilty to assaulting his first wife and to one count of uttering threats and one count of failing to comply with a condition. He told the probation officer who prepared the Pre-Sentence Report in 1996 that he often had to physically stop his first wife from hitting herself when she got angry.

He further said the only reason he pled guilty to the original charge of assaulting his first wife was because he wanted to shield his first wife and the children from the court process. [ 17 ] I pause to note that although the Crown submitted some earlier pre-sentence reports relating to earlier offences, I have not given them much weight in terms of the matter before me.

I have referred to a few comments made in those reports, but given the date the reports were made, which was many years ago, they are not particularly helpful in assisting me on my sentencing decision. [ 18 ] In 2001, the accused, who by then was divorced from his first wife, went to India and met and married his current wife who is the complainant in the proceedings before the court. That, too, was an arranged marriage. He stayed in India for a period of time after that marriage. In his evidence at trial, the accused said he lived in India for about a year and a half.

His counsel noted that the information contained in the Pre-Sentence Report is not accurate on this point. [ 19 ] While he was living in India, and his current wife had a son who was born in February 2002. Some months after LC’s birth, the accused returned to Canada. At that point, his son was only 10 months old. The accused did not return to India to visit his family but maintained contact with them by telephone. He attempted to sponsor JC and LC to come to Canada in 2003. However, that application was refused. It appears Immigration officials thought the marriage was not legitimate.

The accused testified he appealed that decision and eventually was successful. [ 20 ] His second wife, JC, and their son, LC, eventually were admitted into Canada. They were sponsored by the accused. The accused's brother and sister-in-law provided guarantees. JC and LC arrived in Vancouver on April 2, 2014. This was the first time JC and LC had seen the accused in person since he left India in 2002. [ 21 ] When JC and their son arrived, the accused moved in with them into a basement suite in Burnaby. By that point in time, the accused had been receiving disability income for a number of years.

At the trial, he told the court he had not worked for the last seven to eight years because of a bipolar condition. For the last six years before his family arrived from India, he lived in the Downtown Eastside. [ 22 ] The accused completed the equivalent of grade 10 while he lived in India. When he eventually settled in Vancouver in the late seventies, he enrolled at BCIT for a 10-month welding course and obtained a certificate. He said he worked for 15 years in the shipbuilding industry. However, he was supported by social assistance for about two years after he left his employment.

He told the probation officer he has no outstanding debts or unpaid loans. [ 23 ] When the accused was interviewed by the probation officer, he denied the use of illicit substances. However, during that interview, he admitted to a history of smoking crack cocaine. During submissions, defence counsel advised the court that the accused did use crack cocaine for a period of two years but has since stopped. The accused acknowledged he has also used alcohol. He began drinking when he lived in India and continued doing so once he arrived in Canada. At one point in 1994, he took a 35-day recovery program in Maple Ridge.

He said he maintained his sobriety for about three months. The accused told the probation officer he did not consider his alcohol consumption as problematic. [ 24 ] The probation officer was of the view the accused did not appear to have insight into how his substance misuse contributed to his current situation. During sentencing submissions, defence counsel noted that, after reading the victim impact statement prepared for this court, the accused now fully understands the impact his alcohol consumption has had on his son. [ 25 ] The accused told the probation officer he is in good health.

He had his first episode of hallucinations after the break-up of his first marriage in 1994. Shortly thereafter, he also suffered from depression. Six years ago he was diagnosed with a bipolar mood disorder. He was referred to the psychiatric assessment unit at VGH for assessment and treatment. He has received services from the forensic outpatient clinic at Strathcona Mental Health unit in the past. [ 26 ] While in custody, the accused has been given prescription medication for his mental illness. The accused told the probation officer he does not have suicidal thoughts.

He suggested his current situation was orchestrated by his wife, JC, at a time when the "back- stabbing" of his family had gotten on his nerves. During sentencing submissions, defence counsel noted the accused believed JC had exaggerated the situation that resulted in the charges and the eventual conviction in order to get him out of the picture. Psychological Evaluation

[ 27 ] Dr. Speth prepared two psychological evaluations at the request of this court. The first evaluation is dated January 27, 2015. The second evaluation is dated March 2, 2015. In the first report, Dr. Speth noted he interviewed the accused for approximately one and a half hours. The accused was fairly articulate and easy to understand. He occasionally expressed anger regarding the criminal justice system, but overall, he was calm, cooperative, and rapport was easily established. [ 28 ] Dr. Speth opined the accused generally presented as evasive and often did not answer questions directly.

Accordingly, questions had to be repeated to obtain basic information. Dr. Speth also said the accused went off on tangents and failed to provide information. [ 29 ] The accused had been referred to Forensic Services in the past. In 1999, he was arrested for being intoxicated in public and spent six days in the psychiatric ward of Richmond General Hospital. In 2009, while in custody at the Surrey Pretrial Centre, he was assessed by Dr. Philip Adilman. In his report, Dr. Adilman noted the accused had a history of depression, anxiety, and alcoholism. However, he found the accused fit for trial.

The accused did not meet the certification criteria under the Mental Health Act . [ 30 ] Later, in 2009, the accused attended Forensic Services in a manic and disorganized state. At that time, Dr. Adilman certified him under the Mental Health Act . He was a patient at VGH for approximately three weeks. Eventually, his symptoms of mania and disorganized thinking resolved, but he continued to have difficulty with alcohol. Moreover, as his acute symptoms resolved, clinicians noted problematic personality traits. [ 31 ] In 2012, the accused was again assessed by Dr. Adilman at the Forensic Services Vancouver clinic.

At that time, Dr. Adilman noted very significant symptoms of depression and thoughts of suicide and therefore certified the accused for involuntary treatment under the Mental Health Act . He was transferred to VGH. His depression resolved fairly quickly. His discharge diagnosis was major depressive episode and partial remission, past diagnosis of bipolar disorder, alcohol dependence relapse, cocaine abuse, and antisocial personality traits. During sentencing submissions, defence counsel noted that there are no reports that he used crack cocaine before 2012. [ 32 ] Dr.

Speth reported that the accused was admitted to VGH again in 2010. That appears to be a typographical error. The accused’s lawyer noted it was not clear whether Dr. Speth was, in fact, referring to an admission in 2013. Whatever the date, the accused was certified by Dr. Adilman at the time. The accused had been living at the Yukon Shelter for the previous six months. He reported increased alcohol abuse, feeling lonely, pessimistic, with poor sleep and decreased appetite. He was socially withdrawn and reported decreased energy and concentration. [ 33 ] Dr. Speth ended his first report with his impressions.

He noted the accused had an extensive psychiatric history beginning, by the accused's own report, in 1994. Since that time, the accused had been certified on three occasions, resulting in psychiatric hospital admissions. His symptoms typically consisted of anxiety and depression. For the most part, those symptoms resolved fairly quickly. Dr. Speth was of the view that the accused's primary problem appeared to be his addiction to alcohol. The accused voluntarily attended residential treatment three times and maintained sobriety for lengthy periods of time. Unfortunately, Dr.

Speth noted, he has continued to relapse. [ 34 ] Dr. Speth concluded his report by noting the accused represented a high risk to continue on his current trajectory of relapsing and reoffending. He based this conclusion on his view that the accused had a pattern of inconsistent medication compliance, relapsing, alcohol and cocaine abuse, as well as committing impulsive offences which sometimes involved personal and relationship violence and the accused's general poor compliance and adherence to court-imposed conditions. [ 35 ] In sentencing submissions, defence counsel stressed that Dr.

Speth had no factual basis for concluding there was a lengthy pattern of inconsistent medication compliance. She was not quite certain what the doctor meant by "impulsive" offences. She also noted that, while there were occasions when the accused did not comply with his court-imposed conditions, there were other occasions, notably, 2007 to 2012, when he, in fact, complied. [ 36 ] In an updated report requested by the court March 2, 2015, Dr. Speth reviewed the earlier Pre-Sentence Reports, to which he had not had access when he prepared his initial report. Those reports were prepared in 1996 and 1998.

There was also the report prepared for this matter in 2015. Dr. Speth said the contents of the three Pre-Sentence Reports were consistent with the information initially presented. The contents of the reports reinforced the opinions he offered in his original report. In

summary, Dr. Speth remained of the opinion that the accused represents a high risk for violent reoffending, particularly against his current or future partners. The accused's risk factors include a fairly extensive history of violence, including against intimate partners; his complete disregard for court- imposed conditions; his excessive denial; his ongoing alcohol abuse; and his admitted crack cocaine abuse. [ 37 ] Dr.

Speth further noted that the accused has been diagnosed as having antisocial personality traits and that these traits are consistent with his lack of remorse and his failure to change in response to fairly substantial treatment. I pause to note that I am fully aware of the case law with respect to remorse. I know I cannot take lack of remorse, even if it is evident, as an aggravating factor. It simply cannot be used as a mitigating factor.

So any concerns defence counsel may have had about this remark can be assuaged by the fact that I am not influenced and have not been influenced by it in reaching my decision on sentence. [ 38 ] Dr. Speth concurred with the views expressed by a probation officer that the accused will be extremely difficult to manage in the community. He said a period of provincial or federal incarceration should be considered in order to contain the accused and protect his family. Dr.

Speth noted that, if the accused were to remain in the community, he should be actively monitored by community mental health teams or Forensic Services in order to adjust his medications as necessary and to assist him in locating resources in the community, such as housing and treatment programs. Accused's Criminal Record [ 39 ] The accused's criminal record spans a period of time from October 1981 to September 2011. From 1981 to 1988, there were several offences related to impaired driving or similar offences. In 1989, there was a conviction for being unlawfully at large.

In 1990, there was a conviction for causing a disturbance. In 1994, there was a conviction for failure to comply with a recognizance, mischief,

and an assault. These, as I understand the submissions of counsel, related to an incident with his first wife. [ 40 ] In 1995, there was a conviction for failure to comply with a recognizance. In 1995, there was also a conviction for mischief and failure to comply with a recognizance. It was explained during submissions that this related to the 1994 domestic matter I referred to a moment ago. In 1995, he was also placed on a s. 810 peace bond and there was a conviction for fail to comply with a recognizance. [ 41 ] In 1996, he was convicted of uttering threats and failure to comply with a probation order.

In 1998, he was convicted of forcible entry. This related to his family home. In 1999, he was convicted of failure to comply with a probation order on two occasions. This appears to relate to the prior domestic files. [ 42 ] In 2007, there was a break and enter with intent, an assault, and a mischief under $5,000, all related to the previously mentioned domestic violence against his first wife. That year there was also another mischief conviction, but that was not related to a domestic situation. [ 43 ] In 2011, there were two assault convictions on two different occasions.

Neither of these convictions were related to a domestic matter. Victim Impact Statements [ 44 ] The accused’s wife, JC, provided a victim impact statement with the assistance of a support worker because of language barriers. In her statement, she noted she found the whole experience traumatizing. She said she spent many sleepless nights. She is fearful for her own safety and that of her son. She has had many nightmares about the incident and about what could happen if the accused were released.

JC said even with the safety planning she has undertaken with the help of the community and the numerous conditions imposed on the accused, she finds it hard to be relaxed and have peace of mind. [ 45 ] She also noted she experienced headaches - it is not clear whether she continues to experience them - due to the hair-pulling incident. She is also having difficulty going to sleep because of nightmares. At one point, she was unable to go to a doctor because initially she had no Care Card. [ 46 ] JC also noted she and her son went through a difficult time financially.

Because she had a new job and had recently arrived in Canada, she felt she was unable to take time off work. She also found it difficult to pay for the damage to the rental property in addition to paying her rent, groceries, and so forth.

She lost two days of work in order to attend court. [ 47 ] As part of the victim impact statement, JC submitted an invoice from JCE Development for replacement of the broken window in the suite where they lived at the time, repair and replacement of the doorframe and the door, and painting, as well as other miscellaneous costs occasioned by the actions of her husband on the night in question. The total invoice was $869.

There was, I believe I noted this possibly during the course of the trial, a management fee of $200, which seems excessive to the court. [ 48 ] The accused’s son, LC, also provided a victim impact statement with the assistance of a support worker. He wrote that as a result of the incident with his dad and the court process, he had to grow up fast and did not have the opportunity to be a normal kid. He feels he needs to be responsible not only for himself but also for his mother. When he lived in India, he was able to be a kid and not have any worries and just play.

However, after he arrived in Canada, because of what happened, he cannot be himself. He is always scared and looking over his shoulder. [ 49 ] He also has had difficulty concentrating at school. He often thinks about what will happen when his father is released. He is afraid his father may hurt him and his mother. He said he will be attending counselling soon, at least at the time that he prepared the victim impact statement that was the case. [ 50 ] As to other impacts, he noted that after the assault and the broken window incident, he had headaches for a little while.

However, those headaches have now gone away. He noted he may have restrictions placed on him regarding whether he can go outside. If his father is released, he will not be able to play outside with his friends or be able to attend school because he is scared. [ 51 ] LC wrote that it is hard to explain what he and his mom went through. After the incident, his whole life changed. His mother is always worried about him. He is still scared about what happened that night. Those incidents changed his life forever. He has had to become more mature and responsible instead of enjoying his childhood.

He is scared and terrified whenever he thinks about having contact with his father. He is afraid his father will hurt him and his mom. Sadly, he said he never wants to see his father again. [ 52 ] Two other people, the neighbours, provided victim impact statements. I have read them, but I am not going to review the contents on the record. Position of the Parties [ 53 ] The Crown prepared a chart setting out the sentence it seeks. The defence responded during oral submissions. The Crown seeks the following: (

a) on the assault of JC, three to four months plus a number of ancillary orders; (

b) on the assault of LC, three to four months concurrent to the sentence on the assault of JC as well as a number of ancillary orders; (

c) on the break and enter with intent to commit an indictable offence, 24 to 30 months consecutive to the assault sentence; (

d) on the two breaches of a recognizance, the breaches on 29 April, the Crown is seeking six months consecutive to one another, six months each consecutive to one another but concurrent to the other counts, as well as an ancillary order.

[ 54 ] I should have noted at the beginning, that on all of those charges, the Crown proceeded by indictment, that is on Information Number 230960-3-KC. [ 55 ] I next turn to Information Number 239060-6-AC. The Crown is seeking the following. The Crown proceeded summarily on the three offences, which are two breaches of a recognizance which occurred on June 9, and the uttering threats which occurred on June 9. The Crown is seeking a six-month sentence on each of the two breaches concurrent with one another but consecutive to the other offences.

On the uttering threats, the Crown is seeking a 45-day sentence consecutive to the other offences. [ 56 ] I now turn to the position of the defence. I will review the submissions made by the defence, but at the moment, I just refer to the position on the sentences sought by the Crown. [ 57 ] On Information 230960-3-KC, the defence is seeking one month for the assault of JC and one month for the assault of LC concurrent to one another but consecutive to the other sentences. On the break and enter, the defence is seeking a sentence of six to nine months, consecutive to the other sentences.

On the two breaches of a recognizance, that is, the breaches that occurred on 29 April, the defence is seeking three months on each breach concurrent with one another and consecutive to the other sentences. [ 58 ] I next turn to the defence position on Information Number 230960-6-AC. On the two breaches of a recognizance, the June 9, 2014, breaches, the defence is seeking one month on each breach concurrent to one another and consecutive to the other sentences, and on the uttering threats to cause death or bodily harm, the defence is seeking a sentence of 30 days to 45 days.

It acknowledged a 45-day sentence might be within the range, but defence counsel asks the court to consider a sentence at the lower end of the range. [ 59 ] I forgot to mention that ancillary orders are also sought by the Crown on the AC-6 information offences. None of the ancillary orders sought by the Crown are questioned by the defence. [ 60 ] I now turn to a more fulsome review of the defence position on sentence. [ 61 ] The defence submits I should look at the total sentence being imposed for all of the offences.

The defence argues proportionality requires that shorter sentences than those suggested by the Crown be imposed. Overall, the defence submits a sentence of time served, which essentially amounts to 16.5 months as of today, would be an appropriate global sentence. Such a sentence should be followed by a lengthy probation order. The defence reviewed appropriate conditions in that regard. [ 62 ] The defence reviewed at length the accused’s criminal record.

She did not minimize his prior offences but sought to place them into context and pointed to positive features that could be elicited from looking at the criminal record. For example, she pointed to the fact that after the 2007 conviction, the accused went to a residential program for three months and was clean and sober for approximately 25 months following that. She also pointed out that none of the convictions in 2007 and 2011 related to a domestic situation. [ 63 ] Defence counsel noted the accused sustained an injury and was on painkillers for a period of time.

The painkillers were not working, and he turned to crack cocaine. He stopped using drugs in 2012 after the incident mentioned by Dr. Speth, who was referring to a report of Dr. Adilman. [ 64 ] The defence submitted the accused is capable of changing. She maintained he does respect court orders. Moreover, she noted that the time he has spent in custody so far is clearly a strong intervention.

She submitted that when the accused read his son LC’s victim impact statement, it made him realize the full impact his actions have had on his son. [ 65 ] Defence counsel submitted the accused has recognized that he has a number of hurdles to overcome and that he hopes he can do so with the hope there may be a reconciliation with his wife and son. Defence counsel proposed a release plan which would see the accused residing for the moment at what I am going to call a less permanent residence, such as an emergency shelter. She pointed out she has determined that a bed is available at Beacon on 138 East Cordova.

It is an all-male shelter which has some degree of supervision, albeit it is not the degree of supervision that would be available in a residential recovery facility. She said the accused would be considering other options available to him for recovery. She noted that obtaining a place in a recovery home or in various other programs available in and around the city of Vancouver is not always easy.

It is a long process and it takes considerable time to be admitted to these programs. [ 66 ] Defence counsel reviewed the various Pre-Sentence Reports, including the most recent ones, and the psychological reports submitted to the court. She took issue with some of the information in those reports. She noted some of the information was incorrect and the court should be extremely careful about uncritically accepting the information contained in the reports given the lack of care that is evident in the reports.

In particular, the defence argued the court should not rely on the statement attributed to the police in the January 29, 2015, report. I think it is found both in the Pre-Sentence Report and in the psychological assessment, namely, that the accused is at the highest risk of domestic violence designation. [ 67 ] The defence had particular concerns about Dr. Speth's original psychological evaluation as well as his subsequent addendum. Not only was the defence concerned about the level of accuracy and care in the preparation of the report, in fact, she said, given some of the errors, Dr.

Speth's reports should be approached with the utmost care. Moreover, the defence objected to the various references made by Dr. Speth and, for that matter, by the Crown in its submissions to the very dated Pre-Sentence Reports from the mid-1990s. [ 68 ] The defence did not say no weight should be given to the Pre-Sentence Report prepared by the probation officer in 2015 or to Dr. Speth's psychological assessments. However, she urged the court to pay particular attention to the errors contained in the reports and to what she views as the limitations of those reports.

General Principles of Sentencing [ 69 ] The principles of sentencing which evolved in Canadian common law are now codified in the Criminal Code .

Section 718 of the Code provides that the fundamental purpose of sentencing is to contribute for respect for the law and the maintenance of a just, peaceful, and safe society. That fundamental purpose is achieved by considering the following objectives:

(

a) the denunciation of unlawful conduct; (

b) the deterrence of the offender and others from committing further offences; (

c) the separation of the offender from society where necessary; (

d) the rehabilitation of the offender; (

e) reparation for harm done; and (

f) promotion of a sense of responsibility in the offender, including acknowledgement of the harm done. [ 70 ] In this case, s. 718.01 also applies. That

section provides that where an offence involves the abuse of a person under 18 years, the court must give primary consideration to the objectives of denunciation and deterrence. [ 71 ] Additionally, under s. 718.2 (a) (ii), "evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner" is an aggravating factor, as is, under (ii.1), "evidence that the offender, in committing the offence, abused a person under the age of eighteen years." [ 72 ]

Section 718.1 sets out the most important and perhaps the most basic principle of sentencing, that is, that a sentence imposed on an accused must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Principles in Relation to Domestic Violence [ 73 ] The principles to be considered when sentencing an offender found guilty of spousal assault have been subject of review by courts of every level. Courts in Canada have emphasized the objectives of general deterrence and denunciation when sentencing an accused for domestic violence offences.

As I have noted, the sentencing provisions of the Criminal Code in s. 718.2 (a) (ii) require a court to consider abuse of a domestic partner as an aggravating factor in sentencing. The British Columbia Court of Appeal in R. v. Stanley , [1986] B.C.J. No. 695 stated that society has an interest in these types of cases: It is not a private matter between the parties to the relationship nor a matter that goes away if there is forgiveness within the relationship. This kind of conduct endangers and imperils society.

In addition the guardians of the social interest, the people involved in social work and the police who are called out and into these situations, must have the protection of the law and the understanding that these offences will not be ignored by society or that forgiveness by one spouse will not put an end to the offence. Other people are at risk. Children are at risk and the neighbours are at risk. The nature of the assaults can escalate to the point where they are completely unbearable. [ 74 ] Judge Gorman, in R. v. Jacobs , [2008] N.J.

No. 206 , undertook an extensive review of cases relating to assault in an intimate relationship. He quoted from an earlier decision he had written, R. v. King , [2005] N.J. No. 283 . He stated that a sentence in such cases must reflect the seriousness of the offence committed by the offender. It must deter the offender and others from committing such offences and, most importantly, it must reflect society's condemnation of such behaviour. He also noted it must be clearly understood that violence in intimate relationships is completely unacceptable.

It will not be tolerated, and it will result in a lengthy period of incarceration being imposed. [ 75 ] Similar views have been expressed by various courts, including the following. Mr. Justice Joyce, in R. v. Donnelly , 2010 BCSC 1786 , wrote that the sentencing judge had correctly observed that in cases of spousal assault, the principles of denunciation and deterrence are heightened. He went on to say that spousal assault is a very serious matter.

A sentence for serious spousal assault must impress upon the offender and others the abhorrence with which society ought to consider violence committed in a person's home. [ 76 ] In R. v. Rush , [2010] B.C.J. No. 1233 , a decision of the British Columbia Court of Appeal, the accused appealed from a custodial sentence of two years less a day on convictions of assault and choking with intent and assault and break and enter into a dwelling house. Both of the offences involved the same victim, namely, his common-law spouse. The Crown had proceeded by indictment for those offences.

The court noted that repeated acts of violence towards a spouse will lead to a sentence that properly reflects the principles of denunciation and deterrence and society's abhorrence of such acts. [ 77 ] In R. v. Jeurissen , [2014] B.C.J. No. 2301 , the court dealt with a long-term offender hearing. In the course of that decision Madam Justice Ker dealt with sentencing on assaults of domestic partners. In that case, the accused had punched his spouse in the face.

He did not leave following the assault and continued to assault her by choking her, restraining her on the floor and using a knife, and threatening to kill her. I appreciate that the facts are very different from the case before me. [ 78 ] In that case, this was a second conviction for assault on a domestic partner. The court noted the accused had not thought it was a very big deal. The court said domestic assault is a very big deal and something to be taken very seriously by the courts.

The court relied on the comments of the Court of Appeal in Stanley , which I have already quoted, to express the importance to society of denouncing spousal abuse. [ 79 ] In R. v. Gill , [2014] B.C.J. No. 394 , a decision of the Court of Appeal, the court considered the sentence imposed on an accused who had no criminal record and who had undergone treatment for depression prior to sentencing. The Court of Appeal found the sentencing judge had not erred by overemphasizing denunciation. Crimes of violence against women in domestic relationships require denunciatory sentences.

The sentencing judge had also properly considered that the accused presented an ongoing risk to the community. [ 80 ] With respect to range of sentences on assaults of domestic partners, our Court of Appeal, in R. v Kaiser , 2001 BCCA 494 , at paragraph 14 , said that the authorities before it suggested a range of sentence for assault causing bodily harm, by an accused with a

previous record for domestic violence to range from 20 months to three years. For common assault, the sentences ranged three to six months when consecutive to other sentences. The court noted: These significant sentences are imposed not only to protect the specific victim and other potential victims of the accused, but also to denounce spousal abuse . . . [ 81 ] I have reviewed these cases, however I appreciate each case is to be determined on its own facts, and while previous cases are helpful in establishing a range of sentence, sentencing is a highly individualized process.

Principles Regarding Breach of a Recognizance [ 82 ] In this regard, both counsel referred to a case submitted by the Crown, R. v. Seaward , [2003] N.J. No. 307 . It is a decision of Judge Gorman of the Newfoundland Provincial Court. In that case, the court reviewed the nature of breach orders and noted the following. [ 83 ] It is important that court orders be respected. It is critical that offenders not breach court orders or their undertakings to the court while on release. The proper administration of justice and the public's confidence in the administration of justice depends on compliance with such orders.

When such orders are breached, courts must stress the sentencing principles of specific and general deterrence. These type of offences strike at the heart, purpose, and intent of our criminal justice system because they rob the victims of any sense of security that the court might provide through such orders. These types of offences make the court look impotent. [ 84 ] An important factor in sentencing on a breach of a court order is the nature of the breach which occurred.

For instance, failure to comply with a condition that requires abstention from alcohol or which imposes a curfew is much less serious than one involving the failure to comply with a no-contact condition. [ 85 ] Given time constraints, I did not have the opportunity to set out a review of the sentencing principles for break and enter or for threatening. Appropriate Sentence in this Case [ 86 ] I now turn to my decision on the sentence which should be imposed. I will do so using the chart that the Crown provided for ease of reference.

In relation to Information Number 230960-3-KC, for the assault on his wife, JC, I sentence the accused to a sentence of four months. I will deal with the ancillary conditions all together at the end. [ 87 ] For the assault on his son, LC, which was less serious than the assault on his wife, I impose a sentence of three months which is to be concurrent to the sentence for the assault on his mother. [ 88 ] For the offence of break and enter with intent to commit an indictable offence, I impose a sentence of 24 months. That is at the low end of what the Crown suggested, but it is still a significant sentence.

I wish to say a few words about why I am imposing a sentence of 24 months. [ 89 ] The accused’s behaviour when he broke into his own house was totally unnecessary and uncalled for. First, I note, on the basis of the sentencing submissions I have received, that he has committed a similar act in the past with respect to his first wife. That is very troubling. His record, in fact, indicates he has not been able to deal with the situation and the domestic charges relating to his first wife.

He still had issues with her after a period of some years. [ 90 ] In this case, another factor I considered is the manner in which he broke in. I appreciate he had been drinking, but drinking does not exculpate him from the consequences of his actions. It is a factor, and I have considered it. The accused broke the window of their basement suite with a two-by-four. He did not stop there. He went on to kick down the door of the master bedroom. The force he used was so strong (it was evident in the pictures submitted in evidence) that it not only broke the door but it also broke the doorframe.

He did this in the presence of a wife and child who spoke no English and who had only arrived in Canada 27 days previously. He did this in the presence of his young child. In my view, all of these points are aggravating factors on the offence of break and enter. It was clear from the evidence of JC and LC that this was a very traumatizing and upsetting incident. [ 91 ] In the circumstances of this case, which I have only touched on in a

summary way (the full details are in my reasons for judgment) I am satisfied the primary objectives to be taken into account are denunciation and deterrence. Rehabilitation, while it is a factor, is not the primary factor to be taken into account. [ 92 ] I now turn to the two breaches of recognizance. These breaches related directly to no-contact conditions. One of them was not to go within two blocks of the family home. The other was not to have contact with JC and LC. He breached both of them.

In those circumstances, taking into account the observations made by Judge Gorman and the factors he laid out, I conclude these were serious breaches of a court order. In the case of each of those breaches, I impose a sentence of five months, which will be concurrent to one another but consecutive to the other sentences. [ 93 ] The ancillary orders I make in relation to that information are a s. 487.051(3) (

b) DNA order, a s. 110(1) (

a) weapons prohibition for a period of 10 years, a s. 743.21 non-communication order (I will give the list to Madam Registrar because it is a long list of people both in Canada and in India). The non-communication order applies on all of the sentences. The DNA order applies on the two assaults and the break and enter. The s. 110 prohibition applies on the two assaults. The s. 109 prohibition applies on the break and enter. [ 94 ] I now turn to Information 230960-6-AC. There are two breaches of a recognizance on June 9th.

One breach was that the accused did not comply with the condition not to possess or consume alcohol. The other breach was that he was outside of his rehabilitation centre. Given the comments of Judge Gorman and other cases, I am satisfied those breaches do not fall within the same

range as the no-contact breaches. I impose a sentence on each of those breaches of three months each, concurrent to one another but consecutive to the other sentences. [ 95 ] On the offence of uttering a threat to the police constable to cause bodily harm or death, I am satisfied the sentence proposed by the Crown (45 days) is appropriate. I appreciate that the accused had been drinking. However, there is nothing to excuse the vile comments he made to the police officer who was carrying out his duty as a police officer.

That sentence will be consecutive to the other sentences. [ 96 ] On those sentences, there will be the following ancillary orders. On the two breaches, there will be an ancillary order under s. 743.21 of no communication with any of the people on the list that I will give Madam Registrar, and on the threatening, there will be a DNA order under s. 487.051(3), and also, a s. 110(1) (

a) prohibition on weapons for 10 years. [DISCUSSION RE CONDITIONS OF PROBATION ORDER AND CALCULATION OF TIME SERVED ARE NOT INCLUDED IN THESE EDITED REASONS FOR SENTENCE] [ 97 ] THE COURT: I will go through each of the four items that we have just discussed for the purpose of the record. We will deal first with the calculation of the time the accused has already spent in custody and how that impacts the sentence. [ 98 ] Let me begin by acknowledging the calculation done by Corrections.

The total sentence I have imposed, taking into account those that were consecutive and those that were concurrent, is 37.5 months for all of the offences of which the accused was convicted. That 37.5 months equals 1,125 days. As of last Friday, when the sentencing hearing began, the accused had served 495 days. Since then he has been credited with five more days. The 495 days were both for time served and time credited. The total amount of time credited to the accused as of today, May 6, 2015, is 500 days. Accordingly, if we take 500 away from 1,125 the time remaining to be served is 625 days.

Corrections can apply remission and whatever else applies in accordance with Corrections' policies to that number of days. [ 99 ] Next, I will deal with the terms of the probation. The Crown prepared a list of conditions for a probation order. Those were provided to Ms. McGuire for the defence. Today I heard submissions on some changes suggested and agreed to by both parties. I will go through the conditions. [THIS SENTENCING DECISION HAS BEEN EDITED FOR PUBLICATION BY NOT INCLUDING THE TERMS OF THE 24 MONTH PROBATION ORDER WHICH FOLLOWED AND THE ANCILLARY ORDERS ISSUED.] (REASONS FOR SENTENCE CONCLUDED)