R. v. Cook, 2015 BCSC 1279

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Cook, 2015 BCSC 1279 Date: 20150617 Docket: 26591-3 Registry: Vancouver Regina v. Jason Vincent Cook, Joseph Leon Kidd and Roy Eric Parkinson Corrected Judgment: The date at the top of the first page has been corrected to read “20150617”, dated October 30, 2015. Before: The Honourable Madam Justice Fitzpatrick Oral Reasons for Judgment (Sentence) Counsel for the Crown: G. Banning Counsel for the Accused Jason Vincent Cook: B. Coleman, Q.C. J. Fung Counsel for the Accused Joseph Leon Kidd F. Arbabi B.

Ferguson, A/S (reasons only) Place and Date of Hearing: Vancouver, B.C. May 19, 2015 Place and Date of Judgment: Vancouver, B.C. June 17, 2015 Introduction [ 1 ] The accused, Jason Cook and Joseph Kidd, were charged as follows: Count 1, namely, that they both committed an aggravated assault on Dwayne William on January 3, 2014, contrary to s. 268(2) of the Criminal Code , R.S.C. 1985, c. C-46; count 2, that Mr. Cook was in possession of cocaine, contrary to s. 4(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (the “ CDSA ”); and, counts 3 and 4, that Mr.

Kidd was in possession of cocaine and heroin, contrary to s. 4(1) of the CDSA . [ 2 ] No issues were raised at trial in relation to the drug charges. The substantive issue for trial was whether the Crown had proven its circumstantial case relating to the aggravated assault on Mr. William. [ 3 ] Both Mr. Cook and Mr. Kidd were convicted on all counts on February 27, 2015. My reasons for judgment are indexed at R. v. Cook , 2015 BCSC 301 (the “Reasons”). Circumstances of the Offence [ 4 ] The detailed circumstances that gave rise to the convictions are set out in the Reasons.

For the purposes of sentencing, I will summarize the facts as follows. [ 5 ] The assault took place in the late hours of January 3, 2014 at Tellier Tower, a residential complex located on East Hastings Street, Vancouver, British Columbia, in the well-known area called the Downtown Eastside. The person assaulted was Mr. William, who was known as a drug dealer, both working in the area and dealing from his residence or suite on the seventh floor of Tellier Tower. The actions of Mr. Cook and Mr. Kidd on the night in question were captured, to some extent, on surveillance video. [ 6 ] Just before 11:00 p.m., Mr.

Cook, Mr. Kidd and their co-accused, Roy Parkinson, (who has since been acquitted), gained entry to Tellier Tower through the assistance of an unknown female who managed to get them buzzed into the building. All four persons then went to the seventh floor where the unknown female entered Mr. William’s suite. As she left the suite, the three men entered. Mr. Cook and Mr. Kidd were in the suite for about three minutes after which time they left and joined Mr. Parkinson in the hallway just outside. All of the men were then seen by the next-door neighbour “bolting” to the stairwell. Mr. Cook, Mr. Kidd and Mr.

Parkinson then exited Tellier Tower through the front doors and headed onto Hastings Street. [ 7 ] Members of the Vancouver Police Department were already on scene at this time. Their presence led to two events. Firstly, the

police arrived at Mr. William’s suite approximately five minutes after the departure of the men. He was found in a bloody state with fresh stab wounds and other injuries. His apartment also showed significant amounts of fresh blood on various items. Secondly, the three men were arrested on Hastings Street as they were moving away from Tellier Tower. [ 8 ] Later analysis of Mr. Cook and Mr. Kidd’s clothing and hands would reveal substantial amounts of DNA and blood, including that of Mr. William. The blood on their clothing and hands was visible to the naked eye.

Significantly, a partially-open knife was seen falling from Mr. Cook at the time of his arrest, which knife also appeared to have blood on it. Later testing of that knife indicated the presence of Mr. William’s DNA. This weapon was consistent with the stab wounds found on Mr. William that were later treated at the hospital. [ 9 ] Both Mr. Cook and Mr. Kidd have been in custody since their arrest immediately after the incident. Circumstances of the Offenders [ 10 ] I will address the circumstances of Mr. Cook and Mr. Kidd separately. Mr. Cook [ 11 ] Mr. Cook was born in Edmonton, Alberta, in May 1980.

He is now 35 years old. He moved to Vancouver Island with his mother and father. His parents were in an abusive relationship which ultimately led to their separation. Mr. Cook’s mother remarried but his mother’s relationship with his stepfather ended when he was about 12 years old. He continued to see his stepfather, even after the separation, until his stepfather’s death in 2013. [ 12 ] The most significant aspect of Mr. Cook’s history is his very extensive criminal record, including a long string of violent offences. His record begins in 1994 in youth court with an assault conviction.

Further convictions in youth court would follow: theft under $5,000 in 1995; break and enter and theft in 1996; uttering threats in 1997; and theft under $5,000 in 1998. [ 13 ] After reaching the age of maturity, further charges and convictions continued: In 1998, robbery and theft under $5,000 with the robbery charge resulting in one year jail time; and in 1999, possession of a weapon. In September 2000, he was convicted of numerous charges, including theft, assault and two robberies, the latter resulting in a sentence of three years in jail.

In 2004, there were further convictions, including for possession of stolen property which resulted in more jail time of nine months. In October 2006, Mr. Cook was convicted of uttering threats to cause bodily harm, assault, aggravated assault, assault with a weapon and making or possessing explosives. He was sentenced to 37 months in jail. In November 2011, he was convicted of possession of a prohibited or restricted firearm and ammunition for which he was sentenced to 574 days and a lifetime firearms prohibition. Finally, on December 5, 2013, Mr.

Cook was found guilty of assault and uttering threats and sentenced to time served and two years’ probation. Accordingly, at the time of the assault of Mr. William, Mr. Cook had just recently been released on these charges and had been on probation for approximately one month. [ 14 ] Mr. Cook obtained a grade-12 education while in the prison system.

He has virtually no employment record outside of that system, beyond short-term jobs. [ 15 ] His counsel describes problems with alcohol from early in his life and, still later, substance-abuse issues with crack cocaine, heroin and speed which were said to have arisen during his time in prison. I understand that Mr. Cook was treated for a time while he was previously incarcerated. Mr. Cook’s counsel advises, however, that he does not face any addiction problems now. Apparently, Mr. Cook was drinking at the time of the subject offences. [ 16 ] Mr.

Cook’s mother and his half-brother are said, by his counsel, to still have a relationship with him. They are said to be “supportive”, although my sense is that they have not been particularly involved in his life over the years, no doubt arising from his criminal activities and extensive bouts of time in jail. For obvious reasons, their support is conditional upon Mr. Cook not abusing alcohol or drugs. [ 17 ] On a final note, Mr. Cook is the father of a two-year-old son.

He has not had any real relationship with his son given his incarceration on these charges, although the birth mother has brought the boy to the jail for various visits. Mr. Cook professes a desire to develop a relationship with his son. Finally, Mr. Cook points out that there have been no offences committed by him while incarcerated. Mr. Kidd [ 18 ] Mr. Kidd was born in Winnipeg, Manitoba, in June 1984. He turned 31 years old today. [ 19 ] Mr. Kidd’s early childhood was marred by violence and neglect. His mother was charged or convicted of a serious crime when he was very young and he does not know his father.

He was raised by an aunt in Campbell River. [ 20 ] He began using cocaine at age 16, and he has had substance-abuse issues since that time. Some time before the incident here, Mr. Kidd was successfully addressing his addiction problems, but he was particularly affected by the later death of his aunt and was, again, under the influence at the time of his arrest for the assault of Mr. William. [ 21 ] Similar to Mr. Cook, Mr. Kidd is no stranger to the criminal justice system, having a significant criminal record, including violent offences dating back to his teen years.

His record begins in 2001 in youth court with a conviction on various charges, including possession of break-in instruments. Later convictions in youth court would follow in 2002 and 2003. [ 22 ] After reaching the age of maturity, further charges and convictions continued for Mr. Kidd. In May 2003, he was convicted of

robbery using a firearm which resulted in a sentence of 13 months in jail. In August 2004, there was a conviction for assault whichresulted in jail time of 30 days. In July 2005, Mr. Kidd was convicted in relation to two separate, but near-in-time incidents, ofaggravated assault and possessing weapons for a dangerous purpose, netting 18 months and 60 days in jail respectively. In February2007, numerous drug and theft charges resulted in more jail time. In October 2007, Mr. Kidd was convicted of robbery and sentenced totwo years in jail and probation for 12 months.

In August 2011, there was a conviction for assault with a weapon resulting in 30 days injail. Finally, in July 2012, Mr. Kidd was found guilty of assault causing bodily harm and sentenced to 171 days in jail and probation forone year. [23] Mr. Kidd obtained a grade-11 education. Like Mr. Cook, details of employment are non-existent beyond the fact that he hashad short-term jobs from time to time. [24] Mr. Kidd does not appear to have any immediate or extended family in his life. He is currently in a relationship and has been inthat relationship for the last two and-a-half years.

Positions of Crown and Defence [25] The Crown and defence counsel are considerably apart in terms of a recommended jail term. Before the matter of credit for timeserved, the Crown seeks a term of imprisonment between five and-a-half and six years. Mr. Cook and Mr. Kidd both seek a jail sentenceof three years. [26] There is agreement that Mr. Cook and Mr. Kidd were in custody from their arrest to the date of submissions on sentencing onMay 19, 2015. By the time of this hearing, a further 29 days would have accrued resulting in actual time served of 530 days.

As such, theCrown and defence agree that, with credit for one and-a-half times actual time served, both should be credited with 795 days. [27] Mr. Cook’s counsel argues for a further custodial sentence of 11 to 12 months after time served, with two years’ probation oncertain terms and conditions. He suggests that a term include that Mr. Cook attend at any assessment or counselling for substance-abuseissues as may be recommended by a probation officer.

This is difficult to reconcile with the submissions that he presently does not haveany addiction problems, but I acknowledge the use of substances has factored into his actions in the past. [28] Mr. Kidd wants to go to a provincial institution where he hopes to be accepted into a programme known as Ford Mountainwhich, I was advised, assists inmates with violence issues.

His counsel also suggests a two-year term of probation with conditions that hereside and attend at any residential treatment facility as may be recommended by a probation officer. [29] There is no disagreement on the ancillary orders sought by the Crown which I will outline at the end of these reasons. Principles of Sentencing [30] The principles of sentencing are set out in ss. 718, 718.1 and 718.2 of the Criminal Code and include denunciation, deterrenceand rehabilitation. [31] The maximum sentence for the aggravated assault conviction is 14 years: Criminal Code, s. 268(2).

The maximum sentence forthe drug convictions is seven years: CDSA, s. 4(3)(a). Mitigating and Aggravating Factors Mitigating Factors [32] The Crown asserts that it is not aware of any mitigating factors. [33] Both Mr. Cook and Mr. Kidd contend that their ages are mitigating factors. They say that they want to turn their lives aroundand “break the cycle of crime”. Mr. Cook’s counsel cites R. v. Desjarlais, 2006 BCSC 888 at para. 57, quoting from R. v.

M.(R.B.)(1990), (BC CA), 54 C.C.C. (3d) 132 at 136 (B.C.C.A.), which discusses the principle of applying less restrictivesanctions other than imprisonment where appropriate. [34] While I accept that age can be a mitigating factor in sentencing, I have difficulty applying that principle here in relation toMr. Cook and Mr. Kidd. The age factor is usually applied where the person convicted is a young adult who might be said to be lacking inmaturity and judgment that may well have been a factor that contributed to the incident in the first place.

This factor is also usuallyapplied where there is some sense that the person has a realistic ability to turn their life around and away from criminal activity. Thosevery circumstances were at play in Desjarlais where most of the accused were described as “young”, which I take to be in their earlytwenties. [35] The other cases cited in support of this factor are also of little assistance on this point. [36] In R. v. Glickman, 2011 BCCA 293, the court was addressing property offences. There, the offender was in his thirties at thetime of the offences and was not, therefore, what I would describe as “young”.

He had a long criminal record and also addiction issues.However, by the time of sentencing, he had taken substantial steps towards rehabilitation, which the Court of Appeal accepted assupporting a conditional sentence order. [37] Property offences were also involved in R. v. Bay, 2011 BCCA 297. The offender there was a young person, being 19 years old,

with little criminal history, and who had taken significant steps toward rehabilitation. [ 38 ] While I accept that there is always the chance that an offender might turn his life around, it is more than apparent here that Mr. Cook and Mr. Kidd have had numerous opportunities to do so. Both criminal records begin in their mid-teens and show a continuous pattern of violent offences and property offences throughout their lives into their adult years. In Mr. Cook’s case, his record now spans 20 years with a substantial part of his life being spent in jail. Mr.

Kidd is not far behind with 14 years of a pattern of crime and jail. [ 39 ] While I would not go so far as to describe Mr. Cook and Mr. Kidd as “career criminals”, their criminal activities arising from the choices they have made have taken place well beyond the stage in life where they might be described as lacking maturity and judgment. [ 40 ] Neither Mr. Cook nor Mr. Kidd has referred me to any case where the court has considered age a mitigating factor where the accused were in their thirties. [ 41 ] Mr. Kidd also argues that his background and addiction problems are mitigating factors.

I accept that his addiction problems did contribute to his participation in these offences. [ 42 ] Finally, neither of these offenders has indicated any remorse for the offences, which would have been considered as a mitigating factor. Aggravating Factors [ 43 ] The Crown asserts that there are a number of aggravating factors that support a higher sentence than might otherwise be the case. Those factors are said to include:

a) circumstances relating to the attack on Mr. William, including absence of provocation; planning; surprise attack; attack on a residential occupant; an out-numbered victim; no opportunity to defend; and, lastly, use of weapon;

b) the multiple and varied injuries inflicted on Mr. William; and

c) the serious criminal records of Mr. Cook and Mr. Kidd. [ 44 ] The defence dispute that many of the above factors have been proven. The Crown is, of course, required to prove any aggravating factors beyond a reasonable doubt. [ 45 ] I have already mentioned that the Crown’s case against Mr. Cook and Mr. Kidd was entirely circumstantial. Accordingly, there was no evidence about what actually happened in Mr. William’s suite at the time of the attack. All that is known is that Mr. Cook and Mr. Kidd participated in the attack of Mr.

William, and that one or both of them used the knife to inflict some of his injuries. The evidence that supports what occurred in that suite is set out in the Reasons and includes evidence of the neighbour about the “thump”, the video surveillance footage and the physical evidence, including Mr. William’s injuries and the state of Mr. Cook and Mr. Kidd’s clothing and hands immediately after the attack.

No other evidence was introduced at the sentencing hearing beyond what was available at trial. [ 46 ] In these circumstances, I am unable to make any findings of fact concerning whether or not there was provocation by Mr. William. It is well-accepted that Mr. William was a drug dealer and was under the influence of drugs at the time, which might have been the cause of the attack. We simply do not know. For the same reason, I am unable to make any findings as to whether or not Mr. William had any opportunity to defend himself. [ 47 ] The same can be said for the allegations of planning and surprise attack.

While I agree that Mr. Cook and Mr. Kidd gained entry to Tellier Tower surreptitiously (see Reasons at para. 115), I also said in the Reasons, at para. 112, that “[i]t remains pure speculation about why the accused were attending at Mr. William’s suite”. There is no evidence that they planned to attack Mr. William prior to the time that they entered the suite, by surprise or otherwise. [ 48 ] My findings of fact in the Reasons do support some of the aggravating factors asserted by the Crown. The knife that fell from Mr.

Cook’s person or clothing at the time of his arrest was the weapon used in the assault: Reasons at para. 163. Further, it is uncontroversial that Mr. William was attacked in his residential suite and that he was out-numbered by Mr. Cook and Mr. Kidd. [ 49 ] The evidence at trial also established the injuries suffered by Mr. William. In the Reasons, these were described as follows: [56] Mr. William was transported by ambulance to Vancouver General Hospital (VGH) Emergency.

On examination, he was found to have multiple stab wounds, including wounds to: the left side of his scalp, treated with four sutures; his left eyebrow, treated with three sutures; and, his left cheek, treated with three sutures. He had a broken nose, with two black eyes. In addition, he had stab wounds to his chest, across the front of the right side, and on the left side near the armpit. [57] Most serious of all, Mr. William had a deep, large horizontal stab wound to his right calf into his muscles. On examination, this wound was not bleeding profusely and was sutured. [ 50 ] At the trial, Dr.

Evans did not describe any of these injuries as being life-threatening. The broken nose was particularly described as not serious. Indeed, Mr. William was discharged from the hospital early in the morning on January 4, 2014, just hours after his admittance. There is no evidence as to whether Mr. William suffered any long-term or permanent consequences arising from his injuries. [ 51 ] There can be no dispute that the extensive criminal records of Mr. Cook and Mr. Kidd are aggravating factors here.

As I have stated above, these records span decades, and in addition to property offences, include violent offences, such as robbery, aggravated assault, assault, assault causing bodily harm and uttering threats.

[52] This is not a dated or even sporadic history in that there is a pattern of repeated violent offences over the years. Many are recentoffences, with Mr. Cook’s last conviction being from late 2013 and Mr. Kidd’s last conviction being from 2012. Mr. Cook’s sentencesinclude a three-year and a 37-month prison term from 2000 and 2006 respectively. He had just finished serving a jail term for assault anduttering threats in 2013 before this incident and was out on probation. He was prohibited from being in possession of the knife found inhis possession at the time of his arrest. Mr.

Kidd’s sentences also include recent jail time in 2011 and 2012 for assault and assaultcausing bodily harm. Reasons [53] Both the Crown and defence agree that the jurisprudence establishes a range of sentences for aggravated assault between 16months and six years. This was expressed in R. v.

Craig, 2005 BCCA 484, by Madam Justice Kirkpatrick as follows: [10] It is not disputed, and it appears clear on the cases, that a sentence of two years' imprisonment for the commission ofaggravated assault (which is the sentence that was effectively imposed by the judge) is at the low end of the range of sentences imposedon similar offenders in similar circumstances (R. v. Chana (1998), (BC CA), 115 B.C.A.C. 159, [1998] B.C.J.No. 2458 (Q.L.) (C.A.) at para. 6). The range of sentence for similar offences was described as being between 16 months and six years inR. v.

Johnson (1998), (BC CA), 131 C.C.C. (3d) 274 (B.C.C.A.), two years less a day to six years in R. v. Biln, 1999BCCA 369, and, most recently, between 18 months and six years in R. v. Willier, 2005 BCCA 404. In determining an appropriatesentence within this broad range, an unprovoked attack with a weapon tends to result in the imposition of a sentence at the higher endwhile a consensual fight that has escalated with resulting injury tends to result in a sentence at the lower end. See in particular: R. v.Willier, at para. 22, and R. v.

Johnson, at para. 10. [54] As the court discussed in Desjarlais at paras. 54-56, ranges must be used only as general guidelines and do not detract from theapplication of the sentencing principles to the particular circumstances before the court. See also R. v. Larose, 2013 BCCA 450 atparas. 17-18. In R. v. Pham, 2013 SCC 15 at para. 8, the Supreme Court of Canada recently emphasized the “value of individualization insentencing”. [55] In the usual manner, both the Crown and defence have provided cases which, while providing some guidance, also are, for themost part, distinguishable. [56] The Crown relies on R. v.

Hulshof, 2001 BCCA 308; R. v. Willier, 2005 BCCA 404; R. v. Ward, 2009 BCCA 556; and Larose. [57] In Hulshof, a young man committed a serious assault and robbery involving a taxi driver. The injuries were more serious thanthose suffered by Mr. William. Mr. Hulshof was sentenced to five years. That was lessened on appeal to four years but the offender hadmental issues, a realistic chance of rehabilitation, and only one previous conviction. [58] In Willier, many people were assaulted by a young offender (24 years old), and the injuries inflicted were more serious thanthose here.

There was a criminal record dating back over a decade and a clear risk of future violence. The sentence of five and-a-halfyears was upheld. The court noted that the sentencing judge referred to an aggravating factor arising from the “unprovoked attack on aresidential occupant”: para. 22. [59] The circumstances in Ward involved an aggravated assault and kidnapping of a drug dealer, which were more grievouscircumstances than here, and resulted in life-altering injuries being suffered by the victim. Mr.

Ward, a young man (28 years old) with arecord, but who had not directly participated in the attack, was sentenced to seven years. Mr. Thammavongsa, a young man (21 yearsold), with no record, was sentenced to five years. [60] Finally, in Larose, the court was addressing a very violent assault arising from an altercation on the street. The victims wereseriously injured to the point of life-threatening. Mr. Larose had a history of violent offences. In those circumstances, the sentence ofseven years (beyond the range) was upheld. [61] I have been referred to the following cases by defence counsel: R. v.

Pulido, 2010 ONSC 3143; Desjarlais; R. v. Short, 2005BCPC 407; R. v. Fraser, 2009 BCSC 1789; R. v. Addicott, 2003 BCSC 737; R. v. Hall, 2001 BCCA 74; Craig; R. v. Perrault, 2006BCCA 215; and R. v Flores, 2005 BCPC 13. [62] I will firstly, briefly, address the cases that are of little or very limited assistance. [63] The sentences in Short and Hall resulted in conditional-sentence orders (18 and 20 months) arising, in part, from thecircumstances of those offenders.

In Short, there were life-altering injuries arising from a neighbourhood dispute and altercation, but theoffender was very remorseful, had no significant criminal history and was a contributing part of the community. He also supported hisfamily. In Hall, a young offender (18 years old), was seen as having prospects for rehabilitation. There is little to take from these cases,since even the defence does not suggest a sentence in this range, much less a conditional-sentence order. [64] Similarly, lesser custodial sentences were imposed in other cases.

In Fraser, a sentence of 15 months (low end of the range)plus probation was imposed on a young offender (24 years old) with no criminal record. In Pulido, an older offender (35 years old) wasinvolved in a pub fight which resulted in serious injuries. The court ordered an intermittent sentence of 90 days in large part because ofhis employment and family commitments. [65] In Addicott, there are some similarities to this case (34-year-old male who gained entry to an apartment and inflicted a beating);however, it was premeditated and resulted in permanent injuries.

Mitigating factors included a lack of a criminal record, remorse andsupport from family and the community. The offender was sentenced to two years less a day and three years’ probation. [66] Of more assistance are other cases cited by the defence involving sentences of three to four years.

[ 67 ] In Flores , the offender was sentenced to three years and five months for an assault with a knife. Mitigating factors included his relative youth, no criminal record, and that the offender was a new immigrant to Canada. [ 68 ] I have already referred to the decision in Desjarlais where there were numerous youthful offenders involved in a pre-planned and serious assault. The sentence imposed on Mr. Desjarlais was three years and four months. Again, his youth was taken into account, along with his terrible family history and criminal record. That criminal record was far less extensive than those of Mr.

Cook and Mr. Kidd. [ 69 ] Craig involved an unprovoked and premeditated vicious attack on an ex-partner which left lasting injuries. The offender was drunk at the time. He had only a dated, non-violent criminal record. The Court of Appeal would have imposed a sentence of four years, but for the position taken by the Crown in the court below, resulting in a three-year sentence. [ 70 ] The final case relied on by the defence is Perrault which is said, by Mr. Kidd’s counsel, to be the closest to the facts of this case.

I agree that there are some similarities to this case: It was a violent assault at a residence during an effort to collect a drug debt; the offender was 29 years old at the time; he had come from family circumstances of neglect, violence and substance abuse; and the offender had a youth and adult criminal record which included violent offences for robbery, assault, aggravated assault and weapons offences. The Court of Appeal overturned an 18-month conditional-sentence order in the court below, terming it “unfit”; para. 17.

A sentence of four years would have been imposed, but was reduced to three years to recognize the positive steps taken toward rehabilitation while the offender was out on bail. [ 71 ] I have already referred to the principles of sentencing. This was a violent attack on Mr. William that did give rise to serious injuries. The knife used was a type of weapon that one would not normally just “carry around”. Sadly, this attack is not inconsistent with the significant violent criminal history of both Mr. Cook and Mr.

Kidd. [ 72 ] I appreciate that their respective dysfunctional upbringings, and later substance abuse, has contributed to their present circumstances and stand as mitigating factors. As the court noted in M.(R.B.) at 136: It appears self-evident to us that in any population there will be some disadvantaged members who, for many reasons, are likely to fall, or more likely drift, into a life of idleness and crime. … [ 73 ] It is more than apparent here that Mr. Cook and Mr. Kidd fall into that category. They have limited education and no indicated employment skills beyond basic labouring.

While I would not say that rehabilitation is hopeless, it remains the case that Mr. Cook and Mr. Kidd appear to have taken only “baby steps” from time to time in that direction, much less travelled down that road very far. Despite the possibility of addressing any substance-abuse issues , I would adopt the comments of the court in Desjarlais : [74] At the same time society must be protected from these offenders until they are able to address the problems which are causing their violent offending. … [ 74 ] Their “cycle of crime”, as Mr.

Cook’s counsel puts in, has been in place for some time, and neither of them has taken the opportunity over these many decades to break that cycle, whether in prison, jail or otherwise. Their criminal records include violent offences and, importantly, current violent offences. At the time of the offences, Mr. Cook, in particular, was just fresh from his previous offence and on probation. [ 75 ] Mr. Cook’s criminal record is also replete with various convictions for failing to comply.

As I have stated, he was on probation and in possession of the knife at the time of these offences in violation of those conditions. As with Mr. Cook, Mr. Kidd’s criminal record is replete with various convictions for failing to comply or appear when required. As the Crown argues, there can be no confidence that probation would be an appropriate part of any sentence here in the sense of protecting the public from the risk of further violence on the part of Mr. Cook and Mr. Kidd. [ 76 ] In my view, the paramount sentencing considerations in this case involve denunciation and deterrence.

This aggravated assault conviction is a serious crime, and there is significant risk to the public arising from Mr. Cook and Mr. Kidd’s behaviour, as compounded by their lifestyle choices. [ 77 ] As is evident from the submissions, a sentence of incarceration is appropriate. The Crown seeks a sentence at the high end of the range of sentence which, in my view, is justified in these circumstances. Final Decision [ 78 ] Mr. Cook and Mr. Kidd, would you please stand. [ 79 ] In my view, an appropriate sentence on the aggravated assault conviction for both Mr. Cook and Mr. Kidd is four and-a-half years.

I wish to emphasize that I have considered this sentence in respect of each of them, but would again note that the Crown and their counsel do not really suggest any different decision is justified as between them. [ 80 ] Mr. Cook and Mr. Kidd were also convicted on the drug charges. Mr. Cook does not have earlier drug convictions. However, Mr. Kidd has two previous convictions for possession for the purpose of trafficking and trafficking for which he was sentenced to jail time in February 2007. In those circumstances, I would impose a sentence of 21 days on Mr. Cook for Count 2 and a sentence of 45 days on Mr.

Kidd for each of Count 3 and 4. [ 81 ] On the issue as to whether the sentences should be consecutive or concurrent, the test is "whether the acts constituting the offence were part of a linked series of acts within a single endeavour": R. v. G.P.W. (1998), [1998] B.C.J. No. 838 at para. 35, 106 B.C.A.C. 239 (C.A.) . There is no evidence as to whether the possession of the drugs was linked in any way to the assault on Mr. William, beyond the fact that the drugs were found on Mr. Cook and Mr. Kidd at the time of their arrest. In any event, despite this

scant evidence, I do find that the drug possession is sufficiently linked to the assault conviction to justify concurrent sentences. The Crown did not make any submissions to the contrary. [ 82 ] In conclusion, I am sentencing Mr. Cook as follows: Count 1: aggravated assault – four and-a-half-years; and Count 2: possession of cocaine – 21 days, to be served concurrently with the above sentence. [ 83 ] I am sentencing Mr.

Kidd as follows: Count 1: aggravated assault – four and-a-half-years; Count 3: possession of cocaine – 45 days, to be served concurrently with the above sentence; and Count 4: possession of heroin – 45 days, to be served concurrently with the above sentences. [ 84 ] As agreed with the Crown, both Mr. Cook and Mr. Kidd are to be given credit for their pre-trial custody. Accordingly, the final result is my conclusion that Mr. Cook and Mr. Kidd are subject to a further custodial sentence of two years and four months.

Ancillary Orders [ 85 ] Both defence counsel take no issue with the ancillary orders sought by the Crown. Accordingly, there will be further orders in respect of both Mr. Cook and Mr. Kidd in relation to all convictions as follows:

a) an order pursuant to s. 109(2) (

a) of the Criminal Code that there be a lifetime prohibition in respect of the weapons that are referenced in that section; with respect to s. 109(2)(

b) of the Criminal Code , there will be a lifetime prohibition with respect to the weapons that are referenced in that section;

b) an order that Mr. Cook and Mr. Kidd each provide a DNA sample on a date and time to be determined by the prison authorities, pursuant to s. 487.051(1) of the Criminal Code ; and

c) pursuant to s. 737 of the Criminal Code , Mr. Cook is ordered to pay a victim surcharge in the amount of $200 per offence, or $400. Mr. Kidd is ordered to pay a victim surcharge in the amount of $200 per offence, or $600. “Fitzpatrick J.”