R. v. Biemans Date:, 2012 BCPC 95

Citation: R. v. Biemans Date: 20120329 2012 BCPC 0095 File No: 74764-1 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL PAUL BIEMANS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: J. MacRae Appearing on his own behalf : The Accused, M.P. Biemans Court Recorder: N. Chaggar Transcriber: S. Wilson Place of Hearing: New Westminster, BC Date of Hearing: March 29, 2012 Date of Judgment: March 29, 2012 [ 1 ] THE COURT : Michael Paul Biemans is before the Court on Information 74764. This Information was sworn on March 14th, 2011.

This is a single count Information. It charges Mr. Biemans with the offence of assault with a weapon, the weapon being specified in the Information as a vehicle. The complainant in the assault was one Paul Whyte. The offence date set out in the Information is November 8th, 2010. [ 2 ] The trial of Mr. Biemans on this charge proceeded earlier this month and on March 16th, 2012 I convicted Mr. Biemans of that offence. [ 3 ] I will not dwell heavily on the facts in terms of the introductory narrative because I gave full expression to those facts in the reasons for judgment on conviction.

But I will read para. 112 of the reasons for judgment which are indexed at [2012] B.C.J. No. 558 as it summarizes the conclusions reached at the end of the trial. Quoting from para. 112: [112] So I come to my conclusions. That Mr. Biemans was the driver of the truck is not in controversy. Identification is proven. That the altercation occurred within the territorial jurisdiction of the Court, that is, within the Province of British Columbia, is not in controversy. It occurred in New Westminster. Jurisdiction is proven. That through the instrumentality of his pickup truck, Mr. Biemans applied force to Mr.

Whyte without Mr. Whyte's consent is proven on the credible evidence of Mr. Whyte and Mr. O'Sullivan who testified as to what they saw. The contact element of a contact assault is proven. The use of a weapon, that is to say, a vehicle, is proven.

That Mr. Biemans acted intentionally is plain. His vehicle moved forward because he drove it forward. It was stopped on an incline facing upward. The only way it could climb that incline and close the two to three foot gap between his hood and bumper and Mr. Whyte's stomach and legs was by Mr. Biemans putting his foot on the accelerator and propelling the truck forward. The mental element of intention is proven. [113] All of the essential elements of the offence of assault with a weapon are proven beyond a reasonable doubt. [ 4 ] Those really in essence are the facts.

I will turn to some of the contextual facts as I move forward through my reasons for sentence but those are the conclusions that the Court reached after considering all of the Crown evidence and all of the defence evidence and considering the arguments offered on both sides. [ 5 ] This is an offence under s. 267 (

a) of the Criminal Code , assault with a weapon. The Crown has proceeded against Mr. Biemans summarily as opposed to by Indictment. The maximum sentence available for an offence of this kind under the Criminal Code where the Crown proceeds summarily is 18 months imprisonment. The maximum sentence is of course prescribed by Parliament for the worst case conceivable under the

section but that gives some sense of what is available under the Code by way of sanctions. There are, as Ms. MacRae's submissions reflect, a vast array of other alternatives to the maximum custodial sentence but it is important to know what the maximum custodial sentence is. [ 6 ] I have not heard or seen a victim impact statement, but I do cast my mind back to the trial and I recall the testimony of Mr. Whyte, the complainant, now fairly described as the victim. Mr. Whyte was candid and fair in his testimony. He did not seek to overstate the physical character of the transaction with Mr. Biemans' vehicle.

He did say that he was struck by the vehicle, the bumper struck him in the legs, the hood of the vehicle struck him in the stomach area, but not with particularly strong force. [ 7 ] However, Mr. Whyte also said that the experience of being struck by a vehicle propelled forward in the manner as unfolded here was a frightening and traumatic experience and certainly left him in a state of shock. That is evident from among other things the fact that as a traffic professional whose duty it was to keep Mr.

Biemans out of an area where others were working and who intended to be able to work without being subjected to risk, he stepped out of the way and Mr. Biemans proceeded forward. That underscores the effect I think it is fair to say that the assault had on Mr. Whyte. He had to effectively abandon his mandate in order to safeguard his own person by stepping to one side. Once Mr. Whyte was out of the way, of course as the facts unfolded at trial Mr. Biemans proceeded into the prohibited area. [ 8 ] Mr. Whyte's evidence certainly makes plain that as the victim of the assault with a weapon, he suffered.

He suffered psychological consequences coupled with mild but nevertheless not trifling physical consequences. [ 9 ] I turn to the circumstances of the offender, Mr Biemans. [ 10 ] Mr. Biemans is a 44-year-old man. He has training and experience in the computer industry, but he prefers outdoor work. Consequently he has worked for some substantial amount of time in construction. He has lived in Ontario; he has also lived the better part of his adult life in British Columbia, mostly as I say in the construction field.

He has resided for some considerable time with a common law partner but there was a previous marriage in his background and a ten-year-old son for whom he pays child support as I understood his submission. [ 11 ] Mr. Biemans comes before the Court with a criminal record. Ms. MacRae for the Crown showed the written abstract of that record to Mr. Biemans and determined that Mr. Biemans agreed that it was an accurate portrayal of his criminal history.

Accordingly, the criminal record was marked and received as part of the material placed before the Court in respect of sentencing. [ 12 ] There are three entries on the criminal record, two of them quite dated and of a nature that is markedly different from the offence before the Court, and so those two early convictions in my judgment are immaterial to the sentencing exercise that I am to carry out today. [ 13 ] The more recent conviction, however, as I understood it came -- in fact it was a plea of guilty to the offence of uttering threats -- in July of 2009 in Surrey. Mr.

Biemans was conditionally discharged and placed on probation for a period of 12 months. I did not hear Ms. MacRae say that there were any breaches of the conditions that governed during his time of probation. So, I take it that the conditional discharge proceeded uneventfully to its conclusion at the 12-month point and the discharge was thereby perfected. That entry on Mr. Biemans' record is material to the matter before the Court. I say that because there are features of the offence of uttering threats that are common to the offence of assault with a weapon. [ 14 ] This entry on Mr.

Biemans' criminal record reveals that Mr. Biemans has in the past engaged in threatening behaviour, has suffered legal consequences for having engaged in such behaviour, and on some level may be said not to have carried away with him from that encounter with the criminal justice system the effects in terms of changed propensity to engage in threatening behaviours following having been sentenced with a conditional discharge.

That is a factor that I bear in mind along with all of the other factors that are germane to sentencing today. [ 15 ] One of the things that sentencing judges watch for in the submissions they hear in respect of sentencing are indications of insight into the subject offending and remorse. Undoubtedly, Mr. Biemans regrets this present encounter with the criminal justice system. Undoubtedly, this encounter with the criminal justice system has been distressing for him but I was disappointed, Mr.

Biemans, to hear you speak so carefully about the apologies you made and the focus of those apologies being your yelling and swearing. I heard clear signs of upset and distress in Mr. Biemans' words, but I did not hear expressions of remorse. I did not hear expressions of acceptance of responsibility for committing the offence for which Mr.

Biemans has been convicted. [ 16 ] One proceeds with the sentencing exercise with a different mentality and a different sense of confidence about proceeding down particular pathways when one is faced with expressions of remorse and regret and indications of insight into the offending that is at issue. I am sad to say that I did not hear those from Mr. Biemans.

[ 17 ] I turn to mitigating and aggravating factors. [ 18 ] Beginning with mitigating factors, it is clear to me that from the time that law enforcement stepped in and began to carry out an investigation of this matter, Mr. Biemans has cooperated. Mr. Biemans was released on an undertaking and there is no indication that he failed to abide by his conditions on his undertaking. He has made his court appearances. He was cooperative with the police when they sought his attendances at the police station for the purpose of obtaining from him information about his birth date and so forth.

Those are factors that I am required to give consideration to as mitigating factors and I do so. I have said it, but I will say it again, for the entire time leading up to his trial and indeed his sentencing, he has not had any breaches or committed any further substantive offences. [ 19 ] Let me turn back for a moment because in outlining the criminal record I omitted to make mention of the other half of the record. [ 20 ] It is not criminal, but it is the driving record that Ms. MacRae pointed out and the driving record is material because it shows recent offending.

It is less plainly associated or linked to the matters at issue in this case than is the criminal conviction for uttering threats, but it is nevertheless material that we see in Mr. Bieman's recent history driving without reasonable consideration for others. Well, the parallel between that and this case is plain and obvious although of course there is a question of the difference of degree. That offence attracted among other things a driving licence suspension and there followed thereafter two offences for driving in circumstances where Mr.

Biemans had lost his entitlement to drive. [ 21 ] Those two, while not directly applicable, reveal a failure to grasp the importance of confining one's driving behaviour in all forms to a lawful pattern. Those are relevant entries on Mr. Biemans' record and I omitted to refer to them when I was discussing his record so I have done that now. [ 22 ] I turn to the aggravating factors. [ 23 ] The law recognizes the use of violence when committing an offence as an aggravating factor. Mr. Biemans undoubtedly used violence when he committed this offence.

It was more measured violence than is seen in some other cases and indeed in some of the cases that were addressed in the discussions between the bench and Ms. MacRae when she was making her submissions, but it cannot be seriously contended that there was not violence displayed on the offence date. [ 24 ] This assault, using a motor vehicle as a weapon, was a violent offence. The use of a weapon when committing an offence is an aggravating factor recognized by the cases.

It is in this case part of the definition of the offence. [ 25 ] Where an offender commits an offence involving planning and premeditation that is an aggravating factor. While I would not say that the planning and premeditation here was as egregious as one often sees in criminal offences, there was a measure of planning and premeditation revealed on the facts as found at trial. Mr. Biemans had an objective. His objective was to reach a particular destination by an easy route. There was an alternative, an alternative that would require him to drive his vehicle a longer distance.

His objective was to save himself the trouble and the inconvenience of taking the longer route by passing through a prohibited area and he set himself upon a pathway to achieve that objective. When Mr. Whyte, performing his responsibilities as a traffic control person, sought to prevent him from entering the prohibited area, Mr. Biemans first through words and gestures, and then through actions overcame Mr. Whyte's will, overcame his professional obligations and realized his objective. [ 26 ] There were points along the way in what admittedly was a brief encounter when Mr.

Biemans could have revisited his plan, could have chosen to back up and go the longer route to his staging area, but he persisted. For the simple expedient of sparing himself extra effort and some inconvenience he forced his way into a prohibited area and passed a traffic control person whose task it was to keep that area free of vehicular traffic. There was in other words a conscious plan, something in the nature of planning and premeditation that lay behind this offence.

That is an aggravating factor and I consider it as such. [ 27 ] It is sometimes said in cases talking about aggravating factors that it is an aggravating factor where an individual, having unaddressed underlying factors is at an intolerable risk of re-offending. [ 28 ] Mr. Biemans' own history as revealed by his driving record and more particularly his criminal record, has underlying issues with anger. He has underlying issues with the way he conducts himself as the operator of a motor vehicle.

I think it is fair to say that his behaviour reflects a sense of entitlement, a sense of being above the law, a sense of an ability to force his agenda forward at the expense of others. A traffic control person trying to do his job to keep vehicles out of a prohibited area is going to have to yield to Mr. Biemans who is a too busy construction worker to take the other way around that does not involve passing through a prohibited area. [ 29 ] That these aspects of Mr. Biemans' personality have been at play before is revealed in his driving record and most particularly his criminal record.

He needs to address those underlying issues or we are going to see more of the same. This is a recognized aggravating factor and I view it and treat it as such. [ 30 ] Now, I move on to the purpose of sentencing, the principles of sentencing, the principle of proportionality. These are some of the matters that Ms.

MacRae addressed in her submissions to the Court and I am going to say some further things about them. [ 31 ] Sentencing judges are directed by Parliament in the relevant provisions of the Criminal Code to turn their minds to various things in the course of passing sentence. [ 32 ] I start with the purpose.

Section 718 says 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 society by imposing just sanctions. That is the purpose of sentencing and the way I sentence Mr. Biemans must reflect that purpose. [ 33 ] There are various enumerated objectives of sentencing in s. 718.

They include denunciation, which is a formal expression of disapproval of the conduct that gave rise to the charge; deterrence, specific and general: the sentence must operate to limit the likelihood that the individual offender will repeat the offence in the future, and must also send a message generally to the society we live in that

these behaviours are not tolerated and that they attract meaningful sanctions and thereby lessen the likelihood that other members will conduct themselves in the same fashion; separation of the offender from society where necessary; rehabilitation; reparation for harm done to victims and the community; promotion of a sense of responsibility in offenders plus acknowledgement of harm done to victims and society generally.

These are all of the statutory objectives of sentencing. [ 34 ] Of course each and every one of those objectives weighs in some way in the sentencing equation but they weigh differently in different cases to reflect the individual features of different cases. [ 35 ] Ms. MacRae for the Crown said that in her submission, denunciation, deterrence, reparations and rehabilitation were the four objectives that ought to loom largest in the Court's analysis on a case of this kind and I agree with that submission.

Those are all relevant and important aspects of the sentencing process and they do figure prominently in my sentencing approach to this case. [ 36 ] Another requirement that emerges from the Criminal Code in respect of sentencing is the principle of proportionality. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sometimes that is expressed as blameworthiness. [ 37 ] Still another feature of sentencing is the principle of restraint.

Section 718.2(

d) says that an offender must not be deprived of liberty if less restrictive sanctions may be appropriate in all the circumstances. [ 38 ] There is the principle of commonality: a sentence should be similar to sentences that have been imposed on similar offenders for similar offences committed in similar circumstances. [ 39 ] So these are all of the factors, these are all of the objectives, the purposes, the principles that I must be guided by in imposing a sentence upon Mr. Biemans. [ 40 ] Now, I pause to make some comments about some of the contextual facts that are relevant to sentencing.

They relate to the place and the circumstances where the offence occurred. The place was a construction site. The circumstances were that certain areas on the construction site were controlled areas, areas where vehicles ought not to go because as the evidence made clear, there were people working in those areas who would be placed in danger if vehicles were to enter those areas. The task, the responsibility of Mr. Whyte and his colleagues as traffic control people was to clearly demarcate areas that are acceptable areas for vehicles to travel on and those that are not and as the facts were found at trial, Mr.

Whyte was engaged in that very process at the time the incident giving rise to the charge against Mr. Biemans arose. [ 41 ] Mr. Whyte and those who do the work that Mr. Whyte does, I think it can fairly be said, assume a very significant responsibility. The vehicles, the equipment that moves about on a construction site are large, heavy, ponderous pieces of equipment that can unquestionably wreak havoc if they enter areas where they are not permitted to be. [ 42 ] Workers as we heard, including Mr.

O'Sullivan, carry on their tasks within prohibited areas, doing what they do in circumstances where they are vulnerable to be struck, run over, injured, or killed if they are not protected. That is why the boundaries are drawn, that is why the traffic control people raise their paddles to say "no entry". The object, the purposes of this is plain and obvious: it is to create safe working conditions for those workers. [ 43 ] The traffic control people themselves are uniquely vulnerable. They are in the field with very little protective equipment.

Their job is to prevent large pieces of equipment and vehicles from entering prohibited areas for the benefit and protection of others. In a contest between an individual standing holding a paddle and a vehicle, the traffic control person is plainly going to lose if there is a determined intention on the part of the operator of the vehicle to go where the traffic control person says he or she may not go.

Traffic control people place themselves in jeopardy in other words in order to carry out their functions on worksites for the benefit of all and their safety on the worksite is essential in order that other people's safety may be safeguarded. [ 44 ] Those contextual facts lend a substantial amount of the colour to this case that figures in the sentencing equation. [ 45 ] Traffic control persons as I say are uniquely vulnerable people who are there for the purpose of assuring the safety of others.

They need to know that when their lives and their safety and their health is put in jeopardy by persons acting deliberately and without justification, that the criminal justice system will respond in a manner that reflects society's disapproval of that behaviour and that will, in a very concrete and tangible and clear and unequivocal way, send a message, both to the offender and to others. That message is that behaviour of that nature involving victims at that level of vulnerability will not be tolerated. [ 46 ] Ms.

MacRae for the Crown submits that an appropriate sanction in these circumstances would be the imposition of what is known as a suspended sentence; the passing of sentence is suspended, the individual is placed on probation. In this case the Crown's recommendation is for a period of 12 months (I will not at this point go into the specific provisions of the probation.) [ 47 ] I am of course respectful of Ms. MacRae's submissions. She is an experienced and capable prosecutor and I have listened carefully to her suggestions as to sentence. [ 48 ] Mr. Biemans, on the other side, made few submissions as to sentence.

I believe he said that he agreed with some aspects of the Crown’s recommendations but was not particularly detailed in his recommendations as to what would be an appropriate sentence. [ 49 ] As was plain in the exchange between counsel and the bench during Crown's submissions, we are confronted here with facts that are unusual. This is not a pattern of criminal misconduct that is replicated closely in other cases that have been decided on other occasions such that there is a body of case law that points the way in a very clear and obvious manner as to what would be the right and proper sanction to impose here.

It is -- and I think we can say thankfully -- it is an unusual set of facts and so I am not able to turn to the cases and find a clear and simple prescription as to what should be done with Mr. Biemans. I have to apply all of the requirements that are set out of course in the Code to which I have made reference and then look at such cases as I can look at that are going to give me some guidance and take account of the fact that they are not directly comparable to the case at bar and make appropriate adjustments.

[ 50 ] I invited Ms. MacRae to make submissions on the R. v. Dawydiuk case which she did. I acknowledge that she did so with not as much time as she would have liked to brief herself on it given the fact that we lost some of our afternoon to another matter. But in my judgment while Dawydiuk on its facts is most certainly a more egregious example, there are aspects of Dawydiuk that I can turn to for assistance in determining how to sentence Mr. Biemans. [ 51 ] The incident in Dawydiuk arose out of a conflict that developed in a pub.

The individual who was involved with the conflict left in a state of agitation, found his vehicle boxed in -- I am summarizing very briefly -- and the way he found his way out of that boxed in location was to drive up on the sidewalk where some of the individuals with whom he had been in conflict happen to have congregated. He accelerated up on the sidewalk. A number of individuals had to jump out of the way to avoid being struck and one of them was struck.

This unhappy transaction produced a number of charges including criminal negligence in the operation of a motor vehicle causing bodily harm, the lesser and included offence of assault causing bodily harm, dangerous driving causing bodily harm, assault causing bodily harm, hit and run. There was an aspect of the case later where the individual left the scene and, importantly for these purposes, Count 5, assault with a weapon, a motor vehicle. [ 52 ] Now, some of the complainants in Dawydiuk were not struck by the vehicle. They scampered out of the way and avoided contact, so Mr.

Dawydiuk was convicted and they were the victims of a gestural assault so to speak with the weapon being the vehicle. [ 53 ] It is plain from the wording of the case that the assault with a weapon charge, the weapon being a motor vehicle, was the charge that relates to the individuals who were not struck. We see that in the way that the charges are first laid out in para. 1. We see it in para. 16 where among other things Judge Dollis says: [16] He [Mr. Dawydiuk] agreed he accelerated while on the sidewalk.

He agreed he did not use his horn to alert people that he was coming up on the sidewalk and after watching the videotape, he agreed that people had to jump out of the way of his truck. [ 54 ] Then at para. 18 she notes that "He narrowly missed striking other person on the sidewalk. Ms. S. suffered bodily harm". [ 55 ] Mr. Dawydiuk was convicted in that matter and as regards the assault with a weapon, para. 84 says the sentence was 12 months in jail concurrent to Count 1. Now, I hasten to say that that 12 month sentence for assault with a weapon must be understood within its broader context.

It was one element of a larger constellation of offences that resulted in serious injury to one of the victims. There were other factors that as I said repeatedly make the Dawydiuk case grossly more egregious than the case at bar. [ 56 ] What did Judge Dollis say about her motivation in sentencing Mr. Dawydiuk in the way she did? [ 57 ] Well, first she ruled out a conditional sentence order as being inappropriate because it was inconsistent with the sentencing objectives of deterrence and denunciation which she said were the dominant considerations. She made the observation that Mr.

Dawydiuk had not done anything in the nature of getting counselling to address the underlying issues and of course that is a feature that is common to the case at bar. She made observations about the mens rea , the mental element, at para. 68: [68] I agree with Crown that the offence of assault with a weapon is more serious than the offence of criminal negligence causing bodily harm.

I base this decision at least in part the potential difference in the level of intent. [ 58 ] She goes on to say: In the cases provided by counsel generally a conviction for assault with a weapon or a motor vehicle resulted in a jail sentence rather than a conditional sentence, while convictions for dangerous driving causing death or bodily harm or criminal negligence causing death or bodily harm more frequently resulted in a conditional sentence order. [ 59 ] Judge Dollis went through many cases in her analysis.

I am not going to do that here, but what she draws from those cases is the principle that where the offence is assault with a weapon, there is a reluctance -- not an absolute refusal -- to consider or use the conditional sentence order option and a predominance of custodial sentences as distinct from the other offences of which mention was made. She says at para. 70: [70] Therefore I find the cases dealing with sentencing on assault with a weapon to be more persuasive and more relevant. [ 60 ] I come back to the point about the intention requirement.

At para. 71 she says: [71] Many of the cases cited by counsel refer to moral culpability and generally they stated that the moral culpability of an accused is greater when he or she acts deliberately such as in this case than where the driving is caused by momentary inattention. [ 61 ] This was a deliberate offence. As I say, the case was much more egregious.

There was a constellation of other offending surrounding assault with a weapon that moves Dawydiuk onto an entirely different stratum but there are observations about the underlying logic that I can abstract from the case and make use of for the purposes of sentencing here. [ 62 ] Dawydiuk was appealed. The Court of Appeal upheld Judge Dollis. The sentence that she imposed was not set aside. At para. 18 of the appeal decision, indexed at [2010] B.C.J.

No. 2331 , Justice Levine speaking for the panel hearing the appeal said this: [18] She emphasized [referring to Judge Dollis] the principles of deterrence and denunciation because of the nature of the offences and the offender: the offences resulted from the deliberate, conscious, and highly dangerous acts of a member of the community with whom many ordinary citizens can identify. It is when such citizens step outside the bounds of acceptable into criminal behaviour, harming others in the process, that general deterrence through the imposition of a jail sentence may have a deterrent effect.

Such an offender and others like him are capable and more likely to contemplate the consequences of such offences, as compared to some of the other offenders seen in the justice system. [ 63 ] This is a passage from the appeal in Dawydiuk that to my mind underscores the importance, the overarching importance, of

deterrence and denunciation. [ 64 ] I will just read some passages from para. 20: [20] The assault resulted from the appellant using “his vehicle as a weapon”. He intended to frighten people on the sidewalk by deliberately driving his vehicle there. [ 65 ] That is what Mr. Biemans did when he deliberately drove his vehicle in the direction of Mr. Whyte. Justice Levine goes on to say: This was not a case of a few seconds of careless or negligent conduct, like straying over the centre line of a highway ….

While the intent was to threaten, the manner of threatening was highly morally blameworthy. [ 66 ] Again, these comments arise out of facts markedly different from those in the case at bar, but they provide a framework within which the analysis can proceed. [ 67 ] After taking all of the principles, purposes, the objectives of sentencing into account, and drawing upon the logic and the reasoning in cases like Dawydiuk , both at trial and on appeal, I am propelled to the conclusion that I cannot accept Crown's recommendation that those objectives of deterrence and denunciation, the ones that these cases show are most prominent in the analysis, would be adequately served by a suspended sentence coupled with a year of probation. [ 68 ] Traffic control people place themselves in jeopardy for the benefit of others as I have said already.

When one of their number is subjected to a deliberate intentional assault with a weapon, a vehicle, for no better reason than that the driver is not inclined to take an alternate less convenient route—that is, when a driver conducts himself in that way, intimidates and indeed assaults a traffic control person like Mr. Whyte—those who carry on the important work of traffic control people must have confidence that the criminal justice system will do all that is reasonable within its control and power to limit the likelihood that that sort of thing will happen again, either at the instance of Mr.

Biemans or of others who may be minded to act in the same way. [ 69 ] I am not persuaded, despite giving all due consideration to Ms. MacRae's arguments, that the sentence that she has recommended would serve that important purpose. [ 70 ] There are cases that refer to operators of convenience stores as being uniquely vulnerable victims of crime.

When those individuals who are often helplessly performing their functions alone in the dead of night find themselves assaulted or otherwise subjected to criminal acts, the sentencing in those cases takes account of the unique vulnerability of those victims. [ 71 ] Traffic control people in some respects can be compared to convenience store operators. They in a different way are uniquely vulnerable. They place themselves in jeopardy and danger for the benefit of others.

In order for society as a whole to continue to expect them to keep placing themselves in jeopardy for the benefit of others, when people do the kinds of things that Mr. Biemans has done, the consequences have to be meaningful and they have to be clear and they have to be emphatic in terms of expressing the Court's disapproval of the behaviour in question, and they have to have a reasonable prospect of shaping the future behaviour of people like Mr. Biemans (who has been in some respects around this block once before in his uttering threats incident).

And the consequences have to send a very clear message to others. [ 72 ] So with all those factors and considerations in mind, the conclusion I have come to is that the sentence that is right and proper to impose upon Mr. Biemans in these circumstances is a sentence of seven days in custody followed by a year of probation. [ 73 ] The probationary order engages the rehabilitative aspect of the sentencing equation most obviously. I will come to a discussion of exactly how when I get to the conditions that speak most directly to that. [ 74 ] So, Mr.

Biemans, stand up please. [ 75 ] I sentence you to seven days in custody for assault with a weapon under Information 74764-1, followed by a year of probation during which you will be bound by the following conditions: 1. You must keep the peace and be of good behaviour and report to Court as and when required to do so. 2.

You must report immediately upon your release from custody in person to a probation officer at 103 -- 88 6th Street, New Westminster, British Columbia, where the telephone number is 604 660-8834 and you must report thereafter as and when and where and in the manner directed by your probation officer. 3. You must provide your probation officer on your first reporting with your residential address and telephone number and not change either without first obtaining the written consent of your probation officer. 4. You must have no contact whatsoever, directly or indirectly, with Paul Whyte. 5.

You must not be found within a 50 metre radius of any residence, place of employment, or place of schooling known to you for Paul Whyte. 6. You must attend at, participate in, and complete to the satisfaction of your probation officer such counselling, including but not necessarily limited to anger management counselling, as your probation officer directs. 7. You must not be in possession of any weapons as defined in the Criminal Code including knives, save and except for the immediate preparation and consumption of food or for uses associated with lawful employment and then only at your place of employment.

Let me say lest there be any doubt or question on that point, that that prohibition does not prevent you from operating a motor vehicle. A motor vehicle figured as a weapon in this case. The prohibition against your having in possession any weapon as

defined by the Criminal Code does not embrace motor vehicles in case there is any doubt about that. 8. Mr. Biemans, you heard me make reference to my disappointment that there were few, if any, signs of insight into the offending and expressions of regret or remorse. I do believe that it would be helpful and I believe it has rehabilitative potential, as does the counselling of course, to require you to write a letter of apology to Mr. Whyte. So I am going to order that by the end of the second month of your period of probation you must deliver a letter of apology written to Mr.

Whyte; you must deliver it to your probation officer for onward transmission to Mr. Whyte. [ 76 ] This offence of assault with a weapon is a mandatory designated offence and so for that reason you must provide a sample of your DNA for incorporation into the DNA Registry. The time and place for the provision of that DNA sample will be arranged when you are in custody. Your obligation is to cooperate with those who seek to harvest a sample of your DNA when you are in custody and they approach you for that. [ 77 ] Ms. MacRae, are there any other probation conditions?

If I did say it, I will repeat myself, if I did not say it, I will say it now: The probation is in force for a period of 12 months and it commences immediately upon your release from custody and continues for 12 consecutive months thereafter. A probation order has multiple purposes, one of them to isolate you from Mr. Whyte. Another very important one is to provide you with some resources like counselling for example, to assist you in gaining control of aspects of your personality that have led you to engage in criminal wrongdoing. So I urge you, Mr.

Biemans, to approach the opportunity to learn from anger management counselling and such other counselling as you may be required to take with a mind open to all the benefits that can flow from that for you. That is animated by the rehabilitative purpose. You are having to pay a consequence for your conduct, you are having to suffer a consequence but part of the overall sentence has rehabilitative significance and rehabilitative purpose.

I truly hope that you will seize the opportunity to take something away from the rehabilitative feature of your sentence and set yourself up to move down a different pathway than the one that you have travelled down that led you to get into these difficulties. [DISCUSSION BETWEEN THE COURT, ACCUSED AND SHERIFF RE TELEPHONE CALL] [ 78 ] The victim fine surcharge, Mr. Biemans, is imposed for the purpose of funding services for victims of crime and it is a surcharge, if you will, on sentences. It will give way in circumstances of hardship.

While I do not think the argument for hardship in your case is particularly compelling as you are employed full-time in a gainful occupation, you are going to be extracted from the work force for a period of seven days and in all the circumstances, recognizing the economic hardship that that will bring with it, I am going to waive the victim fine surcharge which means I am not going to require that you pay it. [ORAL REASONS FOR SENTENCE CONCLUDED]