R. v. Feng, 2015 BCSC 1447

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Feng, 2015 BCSC 1447 Date: 20150623 Docket: 25061 Registry: Vancouver Regina v. Di Long Feng Restriction on Publication: Inherent Jurisdiction Before: The Honourable Madam Justice Wedge Oral Reasons for Sentence Counsel for the Crown: D.L. Mulligan S.A. Swift Counsel for the Accused: P.M. McGowan Place and Date of Hearing: Vancouver, B.C. June 5, 2015 Place and Date of Judgment: Vancouver, B.C. June 23, 2015 [ 1 ] THE COURT: Di Long Feng has entered a plea of guilty to the offence of manslaughter. Mr.

Feng acknowledges that he caused the death of Jeffrey Wong by stabbing him numerous times. These are my reasons for sentence. [ 2 ] Crown and defence have very helpfully provided an agreed statement of facts. Crown has read those facts into the record. I adopt them as part of these reasons. I will not repeat all of them verbatim here; however, I will summarize them as they form the basis for my decision as to the appropriate sentence for Mr. Feng. I will also include some additional facts provided by counsel for Mr. Feng and not disputed by the Crown. [ 3 ] At the time of the offence in March 2009, Mr.

Feng was 25 years of age. He was the boyfriend of Christa Wong. Mr. Wong, the deceased, was Ms. Wong's brother. Ms. Wong had told Mr. Feng that her brother was physically abusive toward her and had assaulted someone else. She said he also had gang affiliations. [ 4 ] Several months prior to the offence, Mr. Wong, annoyed by a noise from a fax machine caused by Ms. Wong and Mr. Feng, threatened Mr. Feng with a large kitchen knife and said he would kill Mr. Feng if he ever saw him again. Mr. Feng stayed away from the Wong home until the day of the offence, when Ms.

Wong asked him to come to the house to help her with a situation involving her dog and deal with an SPCA officer investigating a complaint about the dog. She assured Mr. Feng that her brother would not be home. [ 5 ] Mr. Wong arrived home and was extremely angry and aggressive about the situation concerning the dog. He swore and shouted at the SPCA officer, then returned to the house and twice struck his sister in the face. Ms. Wong called to Mr. Feng, asking why he was not helping her. When Mr. Feng stepped forward, Mr. Wong made a threatening gesture and Mr. Feng backed away, saying he did not want any trouble.

Mr. Wong then struck Ms. Wong in the face again. [ 6 ] A physical struggle between Mr. Wong and Ms. Wong ensued. Ms. Wong fell backward onto the floor with Mr. Wong standing over her. At that point, Mr. Feng came forward with a knife and stabbed Mr. Wong four times in the back. Expert pathology evidence indicates that any of the four was serious enough to cause eventual death, but that Mr. Wong would have been capable of continuing to fight, perhaps for minutes. Mr. Wong turned to Mr. Feng. The two men had a brief struggle, during which Mr. Feng inflicted four more wounds to the front of Mr.

Wong, who then fell to the floor. [ 7 ] Mr. Feng said he did not remember stabbing Mr. Wong. He had a knife in his pocket, but did not recall taking it out. He said he did not intend to hurt or kill Mr. Wong. His intention was to stop him from killing or hurting them. He realized that Mr. Wong was hurt after either Ms. Wong or Mr. Wong's girlfriend, who was also there at the time, screamed for him to stop and saw blood. When he realized how injured Mr. Wong was, he called 9-1-1 to summon help. When first responders arrived, he begged them to go to the house and save Mr. Wong. [ 8 ] Mr.

Feng said he had purchased the knife used to stab Mr. Wong several years earlier and always carried it with him, mainly for protection, but never used it except to open boxes and the like. He had never wielded the knife before. [ 9 ] According to psychiatric and child protection reports, Mr. Feng was, as a child, the victim of severe physical, verbal, and emotional abuse by his father. He had emigrated to Canada with his parents in 1990 when he was six years of age. His parents ran hair salons. Mr. Feng and his sister largely fended for themselves as children.

His mother left with the children when he was 12 and went to a women's shelter. This was because Mr. Feng's father was very abusive of her; Mr. Feng witnessed the father assault his mother on

several occasions. The mother was unable to care for the children and Mr. Feng was placed in the care of the Ministry of Children andFamily Development at the age of 12. He was placed in a series of group homes. [10] Mr. Feng exhibited emotional and behavioural problems while in care, including temper and aggression problems and assaultivebehaviour. At the age of 15, he came under the influence of a group of older men and was briefly transported to Alberta to sell drugs. Heturned his situation around in his later teen years with the help of therapists. [11] In 2003, Mr.

Feng obtained a secondary school equivalency certificate. He successfully completed courses at Langara Collegein web design and photography. He has been continuously employed in restaurants, clothing retail stores, electronics stores, and cardealerships. Recently he has been working as a night manager at a 24-hour restaurant. He has performed volunteer work with the YouthAgainst Violence program and for the Youth Community Action program. [12] The psychiatrist retained by the Crown concluded on the entirety of the record that, given Mr. Feng's childhood experiences, itis quite likely that witnessing Mr.

Wong assaulting Ms. Wong triggered emotional memories, such as intense fear and anger, and that thismay well explain why Mr. Feng's emotions escalated so rapidly and led to the actions he took against Mr. Wong. [13] I will quote verbatim the last paragraph of the agreed facts, paragraph 13: The Crown accepts that Mr. Wong’s wrongful act, assaulting Mr. Feng’s girlfriend, in the context of the prior threat against Mr. Feng,would deprive the ordinary person of self-control; and that Mr. Feng stabbed Mr. Wong [in] the heat of passion provoked by Mr.

Wong’swrongful act before there was time for his passions to cool as set out in

section 232 of the Criminal Code of Canada. [14] Mr. Feng's counsel has filed 26 letters of support from virtually every aspect of his life: teachers, social workers, therapists,former employers, former co-workers, customers, friends, and family. It is clear that Mr. Feng has a large network of communitysupport. He is widely regarded as a kind and compassionate young man whose offence was completely out of character. He lives with hismother and sister and cares for his mother, who is in ill health. [15] Mr. Feng was initially arrested on March 11, 2009, the date of the offence.

He remained in pre-trial custody at Surrey Pretrialfor 128 days, having been released on bail on July 16, 2009. He remained on bail until June 23, 2011, when he was convicted of seconddegree murder following trial by judge and jury. He was returned to custody on that date and remained in custody in a remand centreuntil sentenced on February 10, 2012. He was sentenced to life imprisonment with a parole ineligibility period of 10 years. Following thesentence, he was held at the Regional Assessment Centre for two and a half months, then Pacific Institution until April 11, 2013.

On thatdate he was granted bail with conditions pending the appeal of his conviction. [16] His conviction was overturned on February 25, 2014, and he has remained on bail with conditions since that time. [17] As Justice Casey Hill observed in R. v. Hermiz, , at para. 11, it is well recognized that the crime ofmanslaughter attracts a broad range of sentence depending on the circumstances of the offence and the offender. Justice Hill cites manycases which stand for that proposition, including our Court of Appeal in R. v. Dasilva, [1988] B.C.J. No. 1744 (C.A.), and R. v.

Richer,2005 BCCA 3. [18] Recently, the Court of Appeal in R. v. Pop, 2013 BCCA 160, noted at para. 22 that the offence of manslaughter can becommitted in a wide variety of circumstances, giving rise to significant variation in moral culpability, hence the wide variance in therange of sentences. [19] In R. v. Dasilva, the Court of Appeal stated that the sentencing judge must scrutinize the case-specific circumstances of theoffence of manslaughter, and the offender, including the context in which the death was caused. [20] In R. v.

Richer, the Court held that denunciation and general deterrence are ordinarily the predominant sentencing principles ina manslaughter sentencing. These are the principles that have primarily guided me in this sentencing although, given Mr. Feng'scircumstances, rehabilitation is also an important factor. [21] Crown has provided six authorities, most of which are Ontario authorities, for the proposition that the range of sentence inmanslaughter cases is 8 to 12 years.

Defence has provided primarily British Columbia authorities which suggest that the range isconsiderably less than that, in the range of four to six years, where the moral culpability of the offender is on the lower end of thecontinuum. Crown has agreed that Mr. Feng's actions were the result of provocation. [22] That is among the numerous mitigating factors in Mr. Feng's case. The other mitigating factors are as follows:

a) the psychiatric evidence concerning Mr. Feng's background and how it may have impacted him in the face of an assault on hisgirlfriend;

b) the prior threat to Mr. Feng by Mr. Wong holding him at knifepoint;

c) the fact that Mr. Feng's first interventions were non-violent, and the fact that Mr. Feng tried to avoid Mr. Wong;

d) the sudden and violent attack by Mr. Wong on his sister;

e) Mr. Feng's immediate attempts following the stabbing to assist Mr. Wong, rather than fleeing the scene;

f) his immediate remorse;

g) more than two dozen letters of support attesting to his character as a peaceful individual for whom this conduct was completelyout of character.

[ 23 ] The one aggravating factor is that Mr. Feng carried on his person a knife; however, he had never used it for an unlawful purpose. [ 24 ] As noted earlier, Mr. Feng was 25 years of age at the time. He is clearly a young man with a promising future. Rehabilitation must play a role in this sentencing. [ 25 ] In the six years since the incident, Mr. Feng's conduct has been above reproach. He has complied with all release conditions and, by all reports, was a model inmate while in custody. [ 26 ] It is also worth noting that Mr.

Feng was prepared to plead guilty to manslaughter before his trial on the second degree murder charge. That plea was not accepted by the Crown, which proceeded with the second degree murder charge. [ 27 ] I have reviewed all of the case law advanced by both the Crown and defence. I will, however, primarily deal with the case law from this province. [ 28 ] In R. v. Lennard , 2010 BCSC 1918 , cited by Crown, Mr. Lennard was 19 at the time of the offence. He pleaded guilty to manslaughter and aggravated assault arising from a confrontation with a group of individuals.

As a result of a joint sentencing submission, Mr. Lennard was sentenced to an effective sentence of seven years. However, there were many aggravating circumstances which the trial judge outlined at paras. 47-48, and they are as follows:

a) This was a completely pointless and unnecessary attack on Mr. Gottschalk and his friends;

b) It was fairly characterized as thuggish behaviour that quite simply did not need to occur in what was otherwise a peaceful and benign setting; and

c) The initial aggression was all on Mr. Lennard's side and nothing said or done by the Richmond group could have been reasonably interpreted as inviting the escalation of the situation and the subsequent assaults by Mr. Lennard and Mr. Phillips. [ 29 ] The aggravating factors specific to him were:

a) He ha[d] a serious related record, albeit as a youth, for which he was still on probation at the time of this offence; and

b) He instigated this serious violence through his own uncontrolled aggression, apparently fuelled by alcohol. [ 30 ] British Columbia authorities that bear some resemblance to the circumstances of the present case are the following. [ 31 ] In R. v. Ansari , 2009 BCCA 381 , the accused was convicted of manslaughter following a trial. Apparently in anticipation of a conflict with the deceased over an unpaid debt, the accused brought a knife to a meeting with the deceased, and in the course of the dispute proceeded to stab him multiple times, killing him.

The accused then moved the body, disposed of the murder weapon, and sent text messages designed to cover up his involvement in the killing. The accused was sentenced to five years’ incarceration. The sentence was upheld on appeal. [ 32 ] In R. v. Brisson , 2009 BCSC 1606 , the accused was convicted of manslaughter after trial. Mr. Brisson went to the room of the deceased, a Mr. Wagar, and his stepdaughter seeking money or drugs. He then assaulted the stepdaughter, causing her to fall and lose consciousness. In response to the assault on his stepdaughter, Mr. Wagar picked up a baseball bat, following which Mr.

Brisson stabbed the deceased 13 times in the chest, back, neck, and face, killing him. Mr. Brisson then fled. [ 33 ] The sentencing judge found that Mr. Brisson overreacted in an explosive and extremely violent manner. He had a history of anger management problems and involvement in fights. The Court held that while the jury had rejected self-defence, there were elements of self-defence which he considered on the sentencing. Mr. Brisson received a sentence of five years. [ 34 ] In R. v. Andrew , 2008 BCCA 141 , the accused was convicted of manslaughter following trial by jury.

After a day of drinking and smoking marihuana, the accused was punched in the face by one of his companions while riding in the back seat of a vehicle. The accused got out of the vehicle. When the victim then started to exit, Mr. Andrew pulled out a knife that was attached to his belt and stabbed the victim twice fatally in the chest. [ 35 ] The accused, who had a minor criminal record, was remorseful from an early stage, had a history of steady employment, and was compliant on judicial interim release. He was initially sentenced to a conditional sentence of two years less a day plus four months' “dead time”.

The Court of Appeal found that a conditional sentence was illegal and substituted an effective sentence of three years. [ 36 ] In R. v. Pop , cited earlier, the accused, his brother, and the deceased were drinking together. An argument between the accused's brother and the deceased ensued. The deceased told the brothers that he was going to go get a gun. He left and returned with two knives. Further argument took place, and the accused's brother stabbed the deceased a number of times, following which the accused obtained the knife and stabbed the deceased. The deceased suffered 34 stab wounds.

The accused told the undercover officer that he "finished him off". The trial judge found this fact pushed the offence towards the more serious end of the spectrum. The accused pled guilty to manslaughter. While he had no criminal record at the time of the offence, he was convicted of a number of offences prior to his sentencing, including two counts of possession of a weapon for purposes dangerous to the public good and carrying a concealed weapon. [ 37 ] The accused was, however, an aboriginal offender. He had had an abusive childhood and was in foster care for a period of time.

He was initially sentenced to five years and two months' imprisonment. The Court of Appeal, noting the absence of a prior criminal record, his youth, his remorse, and the abuse he suffered, held that the sentencing judge did not consider how the background of the accused contributed to his criminal conduct, specifically citing the brutal nature of his upbringing. The Court reduced the sentence to four years and two months.

[38] In R. v. Leask, 2002 CarswellMan 252, a decision of a Provincial Court judge, the accused pled guilty to manslaughter for akilling committed in the context of a consensual fight. The accused was at the home of the deceased and his girlfriend. An earlierargument between the deceased and his girlfriend resumed in front of the accused. The deceased hit his girlfriend. The accused told thedeceased he should not hit women. The girlfriend urged the accused to intervene on her behalf. The deceased hit the accused, who thenleft briefly, presumably to obtain a knife.

On his return, the two men began to fight and in the course of it, the accused produced a knifeand fatally stabbed the deceased in the neck. [39] In sentencing Mr. Leask to four and a half years' imprisonment, Conner J. stated at para. 28: In assessing the degree of culpability of Mr. Leask for this offence, I consider as mitigating circumstances the fact that Mr. Leask wasgoaded into fighting the deceased by Ms. Lacquette, that she appealed to [his] chivalrous side, the fact that the deceased challenged theaccused, and the fact that [the deceased] struck the first blow. [40] In R. v.

McGoran, 2004 BCSC 1737, the accused pled guilty to manslaughter after killing the deceased during a botchedrobbery. The deceased had approached the accused and his companion and asked for their assistance in locating a prostitute. Offended atthe request, they lured the deceased into a park with the intention of robbing him. The accused saw the deceased make a sudden motiontowards his companion and struck him on the head with a stick, killing him. The accused and his companion took money from thedeceased and left his body in the park.

The accused had no criminal record and a difficult upbringing, including being in foster care fromthe age of 11, where he exhibited aggressive behaviour with other children and persons in authority. He did not perform well in youthcustody and in recent years had been associating with the criminal element and doing drugs. [41] In sentencing Mr. McGoran to a sentence of two years less a day, an effective sentence of three years, two months, includingcredit for time served, Mr.

Justice Joyce stated at para. 32: There are a number of factors to be taken into account in mitigation of sentence which I think tend to place this case at the lower ratherthan the higher end of the scale. Mr. McGoran cooperated with the police after having made a confession. He accepted responsibilitiesfor his actions and has pleaded guilty at an early stage of the proceeding. He is a very young man with no . . . criminal record. [42] Finally, in R. v. Bracken, 2012 BCSC 1084, the accused pled guilty to manslaughter.

Following a drug binge, the accused andthe deceased, who lived together, argued about whether to continue to binge. The accused struck the deceased and choked her to death.He then slit her throat, wrapped her body in a duvet, and deposited it in a park in North Vancouver, following which he lied to her familyabout her whereabouts. The accused had a dated and relatively minor criminal record. The Court found that Mr. Bracken's treatment ofthe victim's body seriously aggravated his moral culpability.

He was sentenced to an effective sentence of four years' imprisonment. [43] I turn now to the issue of credit for pre-trial custody. As noted earlier, Mr. Feng spent an initial 128 days at Surrey Pretrialfollowing his arrest. He was then released on bail until his second degree murder conviction on June 23, 2011. He remained in custodyuntil February 10, 2012, or a further 233 days. On February 10, 2012, he was sentenced to life with a parole ineligibility period of 10years. He then spent 420 days, first at the Regional Assessment Centre, then Pacific Institution.

He has been on bail since April 11,2013. [44] The Truth in Sentencing Act, S.C. 2009, c. 29, which enacted significant changes to the regime governing credit forpre-sentence custody, came into force October 22, 2009, several months after the date of Mr. Feng's offence. By virtue of s. 5 of the Act,it applies only to those charged after it came into force. R. v. Clarke, 2014 SCC 28 at para. 11 is al an authority for that proposition. [45] It is common ground between the Crown and defence that Mr.

Feng should receive two-for-one credit for each day spent onremand in pre-sentence custody, that is, for the 128 days spent incarcerated from the time of arrest to the initial release on bail, and forthe time spent on remand for the 233 days between his conviction and sentencing. However, the Crown submits that for the 420 daysMr.

Feng spent from his first sentencing to bail pending appeal, where he was incarcerated in federal institutions and had access toenhanced programs available post-sentence in those institutions, he should receive a lesser credit of 1.5 for each day in custody. [46] Crown cites the decision of R. v. Orr, 2008 BCCA 76, where the Court of Appeal said the following at para. 20: It seems clear to me that over the past several years there has emerged a general consensus in appellate courts that a credit of two-for-onefor time served by an accused in pre-sentence custody will usually be appropriate.

A lesser credit, generally in a ratio amount of one anda half-to-one seems more appropriate where the offender has been held for the pre-sentence period in an institution where post-sentencetype programs are available. [47] The issue before the Court in Orr was whether a trial judge could refuse to grant any pre-trial credit where the offender is anhabitual offender and a danger to society when released. The Court in Orr, sitting with five judges, reconsidered an earlier decision of theCourt in R. v.

Hawkins, 2007 BCCA 487, where the Court of Appeal had upheld the decision of the trial judge not to grant any credit tothe offender on that basis. The Court in Orr held that while ultimately the sentence imposed in Hawkins was a fit one, the approach inrefusing to give credit was not one that should be followed in the future. [48] Crown argues that the Orr decision is inconsistent with the approach taken by the Court of Appeal in its decision in R. v.Gunning, 2008 BCCA 22, which was released one month prior to the Orr decision.

The defence relies on Gunning and says there is noinconsistency between that decision and Orr. In Gunning, the Court of Appeal considered virtually identical circumstances to that ofMr. Feng and determined that it was appropriate to award credit at the rate of two to one. [49] The accused in Gunning was initially convicted of murder. His conviction was overturned after serving 30 months of hissentence. He ultimately pled guilty to manslaughter. The Court said the following at paras. 8 through 11: . . .

The absence of rehabilitative programs is not the “entire rationale for increased credit” for pre-sentencing time served in custody. Thetrial judge overlooked the companion consideration – pre-sentencing custodial time does not normally count for purposes of paroleeligibility and statutory release. Justice Laskin explained the rationale in R. v. Rezaie (1996), (ON CA), 31 O.R. (3d)

713, 112 C.C.C. (3d) 97 (C.A.) at 104: Section 721(3) . . . of the Criminal Code provides: In determining the sentence to be imposed on a person convicted of an offence, a justice, provincial court judge or judge may take into account any time spent in custody by the person as a result of the offence. [Mr. Justice Laskin went on to say:] Although this

section is discretionary, not mandatory, in my view a sentencing judge should ordinarily give credit for pre-trial custody. At least a judge should not deny credit without good reason. To do so offends one's sense of fairness. Incarceration at any stage of the criminal process is a denial of an accused's liberty. Moreover, in two respects, pre-trial custody is even more onerous than post- sentencing custody. First, other than for a sentence of life imprisonment, legislative provisions for parole eligibility and statutory release do not take into account time spent in custody before trial (or before sentencing).

Second, local detention centres ordinarily do not provide educational, retraining or rehabilitation programs to an accused in custody waiting trial.

For these reasons, pre-trial custody is commonly referred to as "dead time", and trial judges, in deciding on an appropriate sentence, frequently give credit for double the time an accused has served. [Emphasis by Smith J.A.] [ 50 ] At para. 9, the Court in Gunning said the following: [9] Here, the 886 days served by the appellant on his life sentence for murder does not count for parole eligibility or statutory release and, by giving one-for-one credit against the eight-year sentence for manslaughter, the trial judge denied him this benefit.

The loss of this benefit works unfairly to the appellant in a way that becomes readily apparent when the effect on the manslaughter sentence of his time served under the life sentence is [considered]. The trial judge gave the appellant two and one-half years’ credit (30 months) against a fit sentence of eight years for manslaughter, and imposed a sentence of five and one-half years (66 months). The appellant will be eligible for parole after serving one-third, or 22 months, of that sentence . . .

However, given the 30 months he served on the life sentence for murder, he will have served a total of 52 months by his parole eligibility date. Thus, if he is released at the earliest opportunity under the current sentence of five and one-half years, he will have been in custody for 20 months longer than if he had been convicted of manslaughter and sentenced to eight years after his first trial. Looking at the sentence another way, parole eligibility after 52 months would translate to a sentence of 156 months or 13 years.

Upon recognizing this unfairness during the hearing of this appeal, Crown counsel conceded that the appellant should be placed in the same position as if he had been convicted of manslaughter and sentenced to eight years after his first trial and that the sentence must therefore be adjusted. [ 51 ] Using the same basis for calculation in the case of Mr.

Feng, taking into account the days he served for the murder conviction, which does not count for parole eligibility or statutory release, he has effectively served an almost seven-year sentence. [ 52 ] The panel in Orr makes no mention of Gunning , although the two decisions are virtually contemporaneous. In my view, that is because they address very different issues. Had the Court of Appeal in Orr intended to reverse itself one month after deciding Gunning , it surely would have said so. That is particularly so given that one of the justices, Justice Frankel, sat on both panels.

Nor do I perceive any inconsistency between Orr and Gunning , such that Orr would overrule Gunning by necessary implication. [ 53 ] On the basis of the decisions in this province with respect to a fit sentence for manslaughter in like circumstances where moral culpability is on the lower end of the spectrum and there are numerous mitigating factors, as I have outlined earlier, an effective sentence of four years and three months is, in my view, a fit sentence. [ 54 ] Accordingly, I accede to the position of the defence that the Court ought to impose a sentence of one day in custody for Mr. Feng. [ 55 ] Given Mr.

Feng's behaviour since his release from custody over two years ago, I am not inclined to impose a period of probation. [ 56 ] Mr. Feng, please stand. [ 57 ] I sentence you to one day in custody, taking into account the credit I have given you for time served, an effective sentence of four years and three months. [ 58 ] There will also be an order for the taking of a DNA sample order under s. 487.051(1) of the Criminal Code , and a firearms prohibition under s. 109(1) (

a) of the Criminal Code : • for life with respect to any prohibited firearm, restricted firearm, etc. (s. 109(2)(b)); • for 10 years after sentencing with respect to any other firearm, cross-bow, restricted weapon, etc. (s. 109(2)(a)(ii)) [ 59 ] Given the age of the offence, the victim fine surcharge can be waived and I think it is appropriate to do so in this case. The Honourable Madam Justice C.A. Wedge