R. v. Mooney Date:, 2011 BCPC 55

Citation: R. v. Mooney Date: 20110210 2011 BCPC 0055 File No: 71107-1, 71347C2 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHELLE LYNN MOONEY REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D.R. GARDNER Counsel for the Crown: S. Quendack Counsel for the Defendant: R. Dhanu Place of Hearing: Abbotsford, B.C. Date of Hearing: January 28, February 8, 2011 Date of Sentence: February 10, 2011 [ 1 ] The accused Michelle Mooney has pled guilty to assault causing bodily harm. The assault occurred on March 3rd, 2009 when Ms. Mooney was a patient at the Abbotsford Regional Hospital.

At the time, her treating psychiatrist was on vacation and the file had been assigned to the victim, Dr. Sidhu . On that date, Ms. Mooney was scheduled to begin new employment. She requested a day pass, which the doctor refused to issue. Dr. Sidhu said words to the effect that, if you're well enough to go to work, you're well enough to be discharged from the hospital. [ 2 ] The accused became very upset, saying she had no place to stay and had only $23 on her. She accused the doctor of emotionally abusing her. She began swearing and using insulting language. Dr. Sidhu told Ms.

Mooney that if she continued to use abusive language she would be discharged. Ms. Mooney yelled, "You think you are in control?" then kicked the doctor and the chair the doctor was sitting on toppled to the floor. She then began punching Dr. Sidhu repeatedly in the facial area, damaging her left eye and breaking her glasses. It took five nurses to pull her off the victim. [ 3 ] Dr. Sidhu suffered numerous injuries as a result of the assault. She had a tear in her right iris which disrupted her vision for months afterwards.

She had internal bleeding within the right eye and swelling to the orbital area, resulting in loss of visual acuity in the right eye. There were patches of hair torn from her scalp and she experienced pain and tenderness in her neck. She experienced headaches, as well as pain in the right eye. She had lacerations on her left hand and scrapes on the left arm and elbow. She also suffered a scrape to the knee. As of May 9th, 2009, the date of Dr. Sidhu's victim impact statement, she had missed six weeks of work and lost in

excess of $40,000 in income. Her absence reduced the capacity of the hospital to manage psychiatric patients and emergencies, which had significant ramifications for patient care in the community. [ 4 ] Ms. Mooney has also pled guilty to threatening to cause death or bodily harm to Wendy Wiltshire on May 23rd, 2009. Ms. Wiltshire is the manager of the Duke of Dublin pub. Prior to the police arrival, Ms. Mooney had threatened to kill the victim because she "used to fuck her boyfriend". As she was being escorted away by the police she yelled, "You don't know who you're fucking with.

Next time I see you I'll kill you." She also called the victim "a fucking cunt". [ 5 ] The Crown has asked the court to consider a global sentence of one year in custody followed by three years of probation. The defence has asked the court to impose either a suspended sentence and probation or, in the alternative, a conditional sentence order which would allow her to serve a jail sentence in the community with a curfew which would allow her to continue to work, along with various other conditions including counselling. [ 6 ] Ms. Mooney was born in Hamilton, Ontario. She is now 36 years old.

Her background is set out in detail in the Presentence Report and the psychiatric reports. She is now living in Nanaimo, where she has secured fulltime employment at the Dorchester Hotel. She organizes and serves at banquets that are scheduled. [ 7 ] The defence has outlined a number of mitigating factors, including the guilty pleas and his client's lack of criminal history; the only previous one that she has is an impaired driving. Ms. Mooney has had a difficult personal history which has resulted in a history of mental health issues.

She has been diagnosed with personality disorder. [ 8 ] Counsel has pointed to a number of positive steps she has taken since being placed on a recognizance. She has secured employment and she has continued to receive psychiatric care. Counsel, on behalf of Ms. Mooney, also says that she is remorseful for her actions. He has provided the court with the report of Dr. Altman, dated October 5th, 2010. Her father died in May of 2009, two months after the assault on Dr. Sidhu . According to Dr. Altman, Ms.

Mooney shows remorse about the assault on the physician, explaining that she lost control and regrets that kind of action. She says she would like to continue with her counselling. [ 9 ] I have also read the reports of Dr. Joris Wiggers , dated December 14th, 2010 and January 21st, 2011. Dr. Wiggers has diagnosed Ms. Mooney with post-traumatic stress disorder, borderline personality disorder, depression, and has made a handwritten addition of bipolar disorder. Dr. Wiggers is concerned that incarceration would be very stressful for Ms. Michelle Mooney. Dr.

Wiggers points to her employment, her stable housing situation and support in the community. She now avoids alcohol and drugs. She is now working with her psychiatrist and taking her medications. He offers the following opinion, that Ms. Mooney is likely to suffer greatly if imprisoned and her particular personality style, prior history of violence and past trauma all make her especially vulnerable to confinement. She is described as being at a high risk of violence directly outwardly or inwardly if imprisoned. [ 10 ] The Presentence Report provides updates to Dr. Sidhu's victim impact statement.

She was initially seeing an ophthalmologist biweekly, and although the rupture of her iris has healed, she now suffers from neuritis, which is an inflammation of the eye, which results in both recurrent pain in the right eye as well as headaches. Dr. Sidhu says as a result of her problems with her vision, it has slowed her down. Other than painkillers and time off, there is no permanent cure. [ 11 ] As to the issue of remorse, Ms. Mooney reported to the doctor that she did not know what injuries Dr. Sidhu had suffered. I'm referring to the report of Dr. Latorre dated February 2nd of 2010.

He told her the report indicated rather extensive injury to the right eye and injuries to the scalp, neck, left hand, left elbow and both knees, and also reported the ongoing difficulties and the loss of income that Dr. Sidhu had been experiencing. In response to the list of injuries, Ms. Mooney volunteered, "She has no idea what injuries I suffered. Put her out on the street. Someone like her would have no idea what it's like. She is the professional. You don't throw someone out like that with no medication." [ 12 ] Counsel have provided the court with numerous cases.

Both counsel acknowledge that it would be impossible to find a case on all fours with the case at bar, but in one case cited by the Crown, the decision of R. v. Rauner , an April 24th, 2008 decision of Her Honour C.J. Rounthwaite in dealing with sentencing somebody on a serious assault Judge Rounthwaite had this to say, quoting from paragraph 9: In early adult years it makes sense to me that courts emphasize principles of rehabilitation. The hope is to try to provide a person such as you with all sorts of services, treatment, counselling within the community in order to try to assist in your rehabilitation.

At some point, however, the emphasis moves away from rehabilitation and onto, first of all, protection of the public. People have to be secure and safe from your anger and from your violent behaviour . Emphasis also has to be on deterrence, general deterrence of all people, but also, in particular, deterrence [to] you. [ 13 ] Crown has also referred the court to the decision of R. v. St. Onge , a decision made by Judge Steinberg of our Provincial Court on March 4th of 2005. In that case, Judge Steinberg was sentencing the accused for assault causing bodily harm.

I acknowledge his record was much more extensive than Ms. Mooney's, however, Judge Steinberg initially refers to s.718 of the Criminal Code which states: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law, and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

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

c) to separate offenders from society where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or the community; and (f) . . . And he emphasized this point: . . . to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.

He also quotes from s. 718.1 which states, "The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." Judge Steinberg then says, "Key to this particular case is the phraseology, 'the maintenance of a just, peaceful and safe society.'" He goes on to say: The damage done in the particular circumstances of Mr. McLeod and Mr. Wells is enormous. It has affected them physically, it has affected them psychologically, and it has affected them. It has affected the people that they live with and that they love.

It has, one hopes, only temporarily destroyed or at least severely damaged family life that both victims had worked years to build up. That is a direct consequence of the punches and kicks delivered by the accused. Beyond that, it has undoubtedly affected the broader community in which two individuals, the two accused live. It will undoubtedly influence to some degree the two victims, their colleagues and their friends. It will undoubtedly influence to some degree the attitude that other corrections officers may very well have towards other inmates.

In this case, he was dealing with an assault of a corrections officer by two inmates. It may very well limit the freedom and inhibit the relationship that other inmates may have with correctional officers. It would not be surprising if at least in the short to medium term everybody working in a close environment from which there is very little retreat might be that much more cautious and that much more limiting on whatever limited freedom an inmate might have within a jail setting. All because in the context put before me of an upset about a half-an-hour late release possibly and pencil marks on the wall.

He was referring to this whole matter escalated from a rather trivial beginning. As to whether or not these people should be incarcerated, Judge Steinberg says in paragraph 21: Jail does serve one very necessary function. Jail removes people from society who society cannot otherwise tolerate to operate on their own in freedom. Jail is good at that. [ 14 ] It is difficult to assess from where I'm sitting, the level of remorse Ms. Mooney has for her actions. What is far easier to assess is the physical damage and the traumatic effect it had on the victim, Dr. Sidhu . Also, Ms.

Mooney's violent actions must have had a traumatic effect on the medical staff which had to intervene to prevent further injury being inflicted upon Dr. Sidhu . In my view, it's not part of the job description of nurses to try and assist doctors who have been assaulted or are being assaulted by their patients. In any event, they were presented with a situation where they had to act. This is not a situation where the assailant realizes they have gone overboard in attacking someone and come to their senses and stop, knowing they have inflicted serious physical harm to another person.

As I have said, it took the intervention of five nurses to stop the inexcusable assault on a defenceless victim. [ 15 ] Having considered the facts of these two incidents, the Presentence Report and psychiatric reports, the relevant case law, the sentencing provisions of the Criminal Code and the submissions of counsel, I have concluded that a fit and proper sentence on the assault causing bodily harm of Dr. Sidhu is six months incarceration.

On the threatening conviction, there will be 45 days concurrent. [ 16 ] That will be followed by a period of three years probation, conditions of which are you are to report forthwith upon your release from custody to a probation officer here in Abbotsford and thereafter as and when directed. You are to provide a residential address to your probation officer and not change that address without the prior written approval of your probation officer.

You shall attend for, participate in and successfully complete any counselling as directed by your probation officer. [ 17 ] I am also making an order under s. 109 of the Criminal Code that she shall be banned from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of ten years. [ 18 ] I am also going to order that she provide a copy of a DNA sample. [ 19 ] I will also make a Rogers order.

You will take reasonable steps to maintain yourself in such condition that your mental disorder will not likely cause you to conduct yourself in a manner dangerous to yourself or anyone else and it is not likely that you will commit further offences. At the direction of your probation officer, you will attend from time to time upon your treating physician for the purpose of receiving such medical counselling and treatment as may be recommended, except that you shall not be required to submit to any treatment or medication to which you do not consent.

If you do not consent to the form of medical treatment or medication prescribed or recommended, you shall so notify your probation officer. [ 20 ] You shall provide your treating physician with a copy of this order and the name, address and telephone number of your probation officer. You shall instruct your treating physician that if you fail to take medication as prescribed by him or fail to keep appointments with him, he is to so advise your probation officer immediately. [ 21 ] I will waive the victim fine surcharge.

I also should have included on probation, you shall have no contact directly or indirectly with Dr. Sidhu . _____________________ D. R. Gardner Provincial Court Judge