R. v. Noble-Garrett Date:, 2015 BCPC 286

Citation: R. v. Noble-Garrett Date: 20150831 2015 BCPC 0286 File No: 81318-3C Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CURTIS EARL NOBLE-GARRETT REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. R. GARDNER Counsel for the Crown: R. Macgowan Counsel for the Defendant: B. Jessop Place of Hearing: Abbotsford , B.C. Dates of Hearing: May 13, 14, 15, June 26, July 9, 31, 2015 Date of Judgment: August 31, 2015

[ 1 ] THE COURT : Curtis Earl Noble-Garrett has been convicted of breaking and entering a dwelling house, committing an indictable offence while his face was masked, and aggravated assault of Spencer Muir. [ 2 ] These events took place on the 6th day of August of 2014 in Mission. In addition, the accused has pled guilty to a breach of recognizance. I have set out the facts of the case at length in my previous oral reasons for judgment.

I need not repeat them here, except very briefly on that date of August the 6th, 2014, Devon Shea, who was aged 33, had been living in a home in Mission with her boyfriend, the victim, Spencer Muir. This residence had previously been owned by her father who was now deceased. She knew Mr. Noble-Garrett as they attended the same elementary school. [ 3 ] On that evening, she was having a few drinks with Mr. Muir. At some point, Muir told her he had heard Noble-Garrett saying he had "hooked up with her." Ms. Shea was not happy to hear that, saying she had never had a sexual relationship with him.

She decided to send a Facebook message by her Smartphone. It read, "Why the fuck did you tell Spencer you did shit with me in the past? That's a complete lie and you know it." Then added an abbreviation which translated means, "laugh my fucking ass off." She also wrote, "Kind of creepy, dude. You never touched me and you know it." [ 4 ] The accused then responded by message saying, "Give me a break. Let's meet up and see who's lying, you fucking idiot," adding "All of us, right now." The argument, if I can call it that, continued by way of text message. As Mr.

Macgowan quite perceptibly pointed out in his opening, the motive for this crime is striking because of its triviality. [ 5 ] During the exchange of these messages, Ms. Shea had gone upstairs to plug in her phone in order to charge it. She heard a knock on the door and went downstairs. When she opened the door, she saw three masked men. The one in front of the group had what she described as an axe-like ice pick with a long wooden handle with a sharp thin metal blade that was curved. The other two men were not armed. [ 6 ] Knowing that Muir was in the kitchen, she yelled at him to run.

After she scurried to the kitchen she saw that Muir had already been struck as there was blood everywhere. She called 9-1-1. He was taken by ambulance to Royal Columbian Hospital where he was treated by the emergency team for his injuries. [ 7 ] The Crown is seeking a global sentence of five years on the substantive offences, as well as 30 days consecutive for the breach. The Crown has characterized the offences as being a serious unprovoked assault on an unsuspecting defenceless victim.

Although the Crown acknowledges that, in their view, the accused is not the person who struck the blows that caused the serious injuries to Mr. Muir, it is clear that the accused was the instigator and he has a high degree of culpability even though he did not inflict the injuries.

Accordingly, he should not receive any credit for his particular role in this incident. [ 8 ] Muir was struck several times in the head causing a fractured skull which resulted in brain fluid leaking from his cranium, an injury to his nasal cavity that was so extensively damaged that it had to be rebuilt, including the insertion of three titanium plates into his skull. He spent eight days in the hospital where he received extensive plastic surgery, leaving visible and permanent scarring to his face and head.

He lost time at work because of the severe headaches that he suffered from despite being prescribed pain medication. He also suffers occasional memory loss as a result of the trauma he endured. [ 9 ] Before referring to the case law which supports the Crown's position, Mr. Macgowan asked that Mr. Muir, the victim's father, have an opportunity to read his Victim Impact Statement to the court. It was a heartfelt statement by the victim's father; at times he had to pause to compose himself.

He is a former provincial corrections officer with over 20 years of service, who, in his words, has seen his share of senseless violence, but he was ill-prepared to learn that his son had almost been beaten to death in

an act of what he describes as unspeakable brutality. He goes on to say, "It was truly overwhelming for me and my entire family." He had been woken, along with his wife, from a sound sleep, and advised of what happened to his son. Initially they thought their son might die. When they arrived at the hospital, they were appalled by what they saw. Their son was so badly beaten about the head it made them sick. Understandably, they were devastated, and they wondered what kind of person could do such a thing to such a human being.

He has often thought about how a couple more blows to the head and his son might not have made it. [ 10 ] He describes the trauma the family went through in the ensuing weeks, and I will not quote at length because I cannot say it any better than he has. But after their son was released from the hospital, he stayed on their property and goes on to say that their lives have been forever changed, which is entirely understandable. "Things will never be the same", he says. We will never be the same. Sadly, I have urged my family to always be wary. After all, there were other perpetrators involved in this crime.

They are still out there. And once again, he is understandably concerned that they had not yet been brought to justice. [ 11 ] The Crown has referred the court to several higher court decisions in this province. I will not be reading citations into the record. I will file the Crown's Book of Authorities in due course. The Crown has cited R. v. Johnson , a 1998 decision of our Court of Appeal. In Johnson the accused was convicted of aggravated assault and assault with a weapon. The facts briefly stated are that, in 1993, the victim was assaulted in the parking lot of the Balmoral Hotel in Nanaimo.

The victim was sitting in a truck with a friend when Johnson, along with a second male, approached the vehicle, pulled the victim from the vehicle and then proceeded to beat him about the head and body with a baseball bat. Although there was a history of animosity between the parties, the victim was unarmed and was completely taken by surprise. The injuries suffered by the complainant in that case were serious. He had a severely fractured skull with a number of bone fragments. He was in intensive care for 15 days and was in either a partial or full coma for ten days.

When he finally regained consciousness, he could not talk and his right side was partially paralyzed. He had to learn to talk all over again, which took him more than six months, with the assistance of a speech therapist. He also suffered a lacerated kidney, a lost tooth, and his dental plate was fractured. He also suffered a cracked rib. He cannot obtain a driver's licence and he became unemployable in the areas in which he had previously worked.

[ 12 ] The trial judge in that case imposed a sentence of five years, calling the attack "brutal and cowardly." The trial judge stated, “I have taken into consideration the prospect of rehabilitation, which must be a factor when considering his age…”. The accused was 28 at the time of sentencing. ... but I also consider the other principles of deterrence to himself, the deterrence to others by sending a message to people who decide to take the law into their own hands and beat up others; and denunciation for such a brutal, unprovoked attack. The five-year sentence was upheld. [ 13 ] The Crown has also cited R. v.

Rasanen , a 1997 sentencing case before our Court of Appeal. The accused had been sentenced to six years in prison by the trial judge. He had committed a brutal assault. The victim was hit, kicked and left unconscious on the ground. He suffered brain damage, speech impairment and partial paralysis. He was in a coma for seven weeks. The attack was premeditated and he attempted to avoid detection after the attack. The accused argued on his appeal that the sentence was unduly severe given his youth and lack of prior record. The appeal was dismissed.

The victim was permanently debilitated as a result of the assault, and the impact on his family was catastrophic. In the Court of Appeal's words the sentence reflects the brutality of the assault. [ 14 ] The Crown also relies on R. v. Hurtado , a 2011 decision once again of our Court of Appeal, where the accused appealed a sentence which was effectively five years and two months. The offence occurred on February 10th, 2010, near Granville Street in downtown Vancouver during the Winter Olympic celebrations. The victim initially took exception to the vulgar language that Hurtado was yelling at two women.

Shortly thereafter the accused while carrying a box cutter knife came up behind the complainant, reached over his shoulder and slashed the victim's throat. Understandably, the victim fell to the pavement bleeding profusely. With the help of nearby pedestrians the police were able to quickly apprehend the accused, who was belligerent and defiant at the time of his arrest. [ 15 ] The trial judge describes the impact of the attack as follows: The complainant was taken to the hospital by ambulance, arriving shortly after midnight. He underwent surgery.

The cut to his throat stopped just short of hitting any major arteries or other vessels, although the muscles at the front of the complainant's neck were lacerated. Some 40 to 50 stitches were required after surgery. ... The complainant has been left with a thin, but very visible scar that runs from one side of his neck to the other ... For months after the stabbing, the complainant experienced intense headaches. [ 16 ] Furtado was 22 years old at the time of the offence. He moved here from Mexico with his family when he was six years old. In 2007 while on a trip to El Salvador his father was murdered.

The sentencing judge determined from the cases that the range of sentence for the kind of aggravated assault committed here is two to six years. The sentence was not reduced and in his oral reasons Mr. Justice Low stated that he was reluctant to agree that the range for this type of offence was two to six years.

He said: Where there is unrestrained violence such as occurred here, coupled with stalking and a surprise attack, I think the lower end is more than two years and the upper end is about eight years, with the possibility of sentencing above eight years in particularly egregious circumstances. [ 17 ] Crown also relies on the case of R. v. Forrester , a 2004 decision of Mr. Justice Barrow of the British Columbia Supreme Court. In Forrester , the accused and his friend Johnson were convicted by a jury of aggravated assault, as well as breaking and entering. Earlier Johnson got into an altercation with Mr.

Frye regarding an allegation of a stolen bicycle. Later that evening Johnson and Forrester armed themselves with baseball bats, put on balaclavas, and went to Frye's residence where they broke in and assaulted the occupants. They left the victims seriously injured and did not call for help. The Crown sought six to eight years imprisonment, while the defence sought a term that would allow the accused to serve their time in a provincial institution, that is, less than two years.

Both accused were sentenced to five years imprisonment for aggravated assault and two years for breaking and entering to be served concurrently. [ 18 ] Mr. Justice Barrow characterized the offences as serious and premeditated. The levels of violence displayed in the offences and the circumstances under which the offences had taken place required that rehabilitation take second place to protection of the public, denunciation and deterrence. He stated: The offences for which these accused have been convicted are serious. They involve the beating of defenceless men in their own home.

They were premediated having been preceded by some planning, however brief and crude. The injuries sustained by the victims were very serious. Both accused recognized the severity of the injuries that they had inflicted that night and yet did nothing to secure assistance for their victims. There was no thought of theft or robbery in this case. The intent (sic) of the accused was to do just what they did, beat their victims senseless. The fact that they believed the victims were drug dealers is of no consequence in this process. It is neither a justification nor an excuse.

On the other side of the ledger, I accept that both accused are capable of leading productive, law- abiding lives. I accept that they have some level of remorse for what they have done, albeit it is clear that in several respects they still consider that their conduct was justifiable (sic). [ 19 ] The Crown has also referred to a decision of Madam Justice Stromberg-Stein, at that time sitting in the British Columbia Supreme Court, in a case of R. v. P.A.A. This was a decision dated June 7th, 2005. And in that case, the accused was 20 years old at the time of the offence. He was now 24 at the time of sentence.

He had a youth record for attempted theft and an adult record for impaired driving and possession of a firearm. He was prohibited from possessing firearms for ten years and was bound by this prohibition at the time of these offences. He had been employed as a labourer, a roofer and a truck driver while having a chaotic early life. His family is supportive and he has a job offer when released. [ 20 ] In that case, Madam Justice Stromberg-Stein was sentencing somebody who had been involved in what has been commonly referred to as a grow rip.

The target was money from the proceeds of a recently-harvested marihuana crop from a grow operation in the basement of the residence. The victim was severely beaten as his assailants demanded the money and searched the residence. As the victim lay helpless as a parting gesture he was shot at three to four times with a Luger pistol with large calibre bullets. One bullet was fired straight through the floor, missing the victim. He was hit in his lower body, including in his pelvis, rectum and legs. He had

multiple surgeries with more scheduled, and he suffers from chronic pain. His son was severely beaten about the head sustaining multiple cuts that required multiple sutures and a broken hand which was surgically repaired. A gun was placed to one of the victim's head and a tenant was forced to the ground and a gun was held to his head. The safety was released and he was threatened with death. That person was robbed of ten dollars. [ 21 ] I should say in paragraph 18, Madam Justice Stromberg-Stein wrote that there are deemed aggravating circumstances relevant here.

Section 348.1 of the Criminal Code which deems a home invasion as an aggravating circumstance when the offenders knew or were reckless whether the home was occupied and used violence to a person.

She goes on to consider a number of cases and states in paragraph 22: While case authorities and ranges of sentence are helpful, each case must be decided with regard to its own particular facts and circumstances in relation to the individual offender, bearing in mind that s. 718.1 of the Code provides that a sentence must be proportionate to the gravity of the offence and the responsibility of the offender. [ 22 ] The defence has argued on behalf of Mr. Noble-Garrett that an appropriate global sentence would be three-and-a-half years. He points out that his client was only 21 at the time of the offence.

For the preceding two years he had lived with his grandparents. He has now completed his grade 12 and in January of 2013 he enrolled in a welding program at Kwantlen College where he completed his welding certification program. Prior to that, he was employed at a shake and shingle company for two years. He has now worked close to 400 hours as a welder. He needs to perform 1,000 hours to become fully certified. While in custody, he has not been disciplined for any infractions and he has taken advantage of several courses made available to him.

He describes his client as an intelligent young man who has goals and ambitions. He is now apparently focused on making positive changes in his life. [ 23 ] The accused has also been characterized by his counsel as extremely remorseful, as well as being ashamed of the embarrassment he has caused his family. It has been submitted that Mr. Noble-Garrett has the support of his family and friends who will assist him in his rehabilitation.

His mother has also written a letter to the court where she understandably speaks of her son's good qualities, while acknowledging that he has made "a bad decision". [ 24 ] Given the viciousness of this attack and the resulting injuries suffered by the victims, it is difficult for me to characterize this crime as "a bad decision." I have not lost sight of the fact that Mr. Muir was taken by ambulance with a police cruiser acting as an escort from Mission to New Westminster where he was treated by the emergency trauma team of the Royal Columbian Hospital.

I do not accept the argument that the Crown's admission that Noble-Garrett was not the one who struck the blows that this somehow reduces the moral blameworthiness and his criminal culpability. The plan to assault the victim was obviously initially proposed by Noble-Garrett who did not seem to have much difficulty in finding some willing confederates to assist him. The plan was obviously to break into the home of the victim and attack him with a weapon. All three people who agreed to this course of action are equally guilty of the subsequent injuries inflicted on the complainant.

I note that there is no evidence before me whatsoever that Mr. Noble-Garrett ever attempted to dissociate himself from the assault that occurred on the victim. [ 25 ] I have been referred to four cases by the defence which are of somewhat limited assistance. In each of the cases, the victim's injuries were less serious and all of the cases involved guilty pleas, and one was a joint submission where the Crown obviously signalled to the court that there may be some problems in proving their case. [ 26 ] How remorseful is the accused?

On that issue, I look at the text messages that were sent by Noble-Garrett to the victim. In the first message he says: You fucking rat. Put a no contact order on me. Don't fucking talk to me, especially when I didn't do fuck all. Get your goddamn facts straight, sending me to jail for something I never did. A second message states: It wasn't fucking me and you are a rat if you're providing them info to arrest me for three years. [ 27 ] The thinly-veiled threats contained in these messages are not lost on me. It is entirely inconsistent with remorse.

I note that the accused who is insisting on his innocence in these text messages chose not to give evidence in these proceedings. [ 28 ] The accused has only one prior offence on his record, a trafficking charge, for which he received one day in jail in addition to the six months' time served, which he received enhanced credit for. I note that in addition to his regular employment, he was selling drugs solely for profit. However, that plays no

part in my decision, as he has already been punished for that offence. But it does undermine any argument that he may have been of previous good character prior to being sentenced for this matter. [ 29 ] In imposing sentence, I consider the facts of this case, both the mitigating and aggravating factors, the provisions of s. 718 of the Criminal Code , the relevant case law, the submissions of counsel, as well as the individual circumstances of the accused.

I find that a fit and proper sentence for aggravated assault is five years imprisonment, less the 171 days he has already spent in custody, resulting in an additional custodial sentence of four years and 194 days. [ 30 ] On the breach, there will be 30 days consecutive; on the breaking and entering, four-and-a-half years concurrent; and on the committing an offence while his face was masked, will be one year concurrent. [ 31 ] In addition, I am imposing under s. 109(2) of the Criminal Code a mandatory life prohibition from the possession of any firearm, prohibited weapon, restricted weapon, crossbow, restricted firearm, prohibited weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life.

Should you have any such items in your possession, you must arrange to surrender them within 24 hours to the officer in charge of the Mission Detachment. [ 32 ] I am also, under s. 487.051 of the Criminal Code , ordering that you provide a sample of your DNA for inclusion into the national DNA databank.

[ 33 ] There will also be a no contact order. And, Mr. Macgowan, I neglected to ask you earlier, under what

section of the Code ? [ 34 ] MR. MACGOWAN: That's 743.21. [ 35 ] THE COURT: And that is for the entire period of his imprisonment? [ 36 ] MR. MACGOWAN: That's correct, yes. [ 37 ] THE COURT: All right. There will be a no contact order with Spencer Muir and Devon Shea during the time that he is imprisoned. [ 38 ] The victim fine surcharge is payable forthwith on all matters, in default one day concurrent. (REASONS FOR SENTENCE CONCLUDED)