R. v. Butz Date:, 2015 BCPC 75

Citation: R. v. Butz Date: 20150409 2015 BCPC 0075 File No: 81364-KC2 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WILLIAM ANTON BUTZ REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Crown: S. Thomson Counsel for the Defendant: G. K. Gill Q.C. Place of Hearing: Abbotsford , B.C. Dates of Hearing: March 9, 10, 11, 2015 Date of Judgment: April 9, 2015 Introduction

[ 1 ] The Accused William Anton Butz was charged with four counts of aggravated assault, all arising out of an incident which occurred on July 26, 2014 in Abbotsford. Initially the Accused elected to be tried by a court composed of a Supreme Court Judge and he elected to have a preliminary inquiry. The preliminary inquiry was commenced on March 9, 2015 and over the course of the next three days (March 9 to 11), a total of nine witnesses gave evidence for the Crown, including four persons who were named as victims of the assaults. In an unusual occurrence at a preliminary inquiry, the Accused also testified, as is his right under

section 541 of the Criminal Code . [ 2 ] At the conclusion of the evidence on the preliminary inquiry, but before committal on the charges was addressed, the Accused re-elected his mode of trial, with the written consent of the Crown, pursuant to section 561(1) (

a) of the Criminal Code . He re-elected to be tried in this court. Following his re-election, the four counts on the information were read to the Accused. He entered pleas of guilty to counts 1 and 4. On counts 2 and 3, the Accused pled not guilty to the counts as set out, but pled guilty to the lesser and included offences of assault causing bodily harm, contrary to

section 267 (

b) of the Criminal Code . The pleas to the lesser included offences were entered with the consent of the Crown, as required pursuant to section 606(4) of the Criminal Code. [ 3 ] Sentencing on the matter was adjourned in order that the victims of the offences could provide Victim Impact Statements pursuant to

section 722 of the Criminal Code and for Counsel to prepare for sentencing. Counsel advised that on the sentencing date, they would be putting forth a joint submission for the appropriate sentence. [ 4 ] The four offences that the Accused has plead guilty to, and for which he is now being sentenced, on all took place on July 26, 2014 in Abbotsford, BC. In counts 1 and 4, he has pled guilty to committing aggravated assault of Brooke Lynn Fish and of Brian Schweitzer. In counts 2 and 3, he has pled guilty to assault causing bodily harm to Jennifer Fish and Joseph Boynton.

Circumstances of the Offences [ 5 ] The offences which the Accused has now pled guilty to took place in a private residence located on Springhill Court in Abbotsford. On the offence date, the residence was the home of Elizabeth Fish and her late husband, their daughter Jennifer Fish, and Jennifer’s daughter Brooke Lynn Fish. The Accused and Brooke Lynn Fish had been in a boyfriend-girlfriend relationship for two years, but that relationship had ended sometime prior to the day when these offences took place.

Even after their break-up, the Accused and Brooke Lynn Fish were still friendly with one another and socialized together. [ 6 ] On the day of the offence, Brooke Lynn Fish was working as a tattoo artist out of her home. Joseph Boynton was apprenticing to become a tattoo artist and was at this residence working on some sketches for tattoos. Brian Schweitzer and a young woman named Chelsea Parsons were also at the home, each getting a tattoo from Brooke Lynn Fish. [ 7 ] The Accused arrived at this residence sometime in the afternoon or early evening.

He and Brooke Lynn Fish planned on going to a party together after she was finished her work as a tattoo artist. According to all of the witnesses present, the Accused appeared to be under the influence of some kind of illicit drugs when he arrived. Some of the civilian witnesses described him as looking as if he hadn’t slept for days, having glassy eyes, dilated pupils and showing other signs often associated with drug use.

The Accused himself testified that over the course of the previous four days he had slept very little, and had consumed a number of illegal drugs including crack cocaine, crystal methamphetamine and MDMA. He also testified that he had been drinking alcohol as well. Some of the civilian witnesses testified that he was drinking at the home. [ 8 ] When Brooke Lynn Fish finished her work, she decided not to attend the party with the Accused as planned because he was already very intoxicated. She and the Accused got into an argument.

Both give different reasons for the argument, but both agree that they argued and the Accused agrees that it angered him that Brooke Lynn Fish was not going to the party with him. [ 9 ] Earlier in the evening, the Accused had been in the bedroom of Brooke Lynn Fish where she was applying a tattoo to one of her customers. Inside the room there was a large knife that had been left in the home by a mutual friend of hers and the Accused’s. The knife is a large black knife, with handle and blade each being perhaps six inches in length. It is not any sort of kitchen knife.

It has a strap attached to its handle that allows the user to hold it better. The Accused took the knife, ostensibly for the purpose of giving it back to its owner. [ 10 ] After the Accused and Ms. Fish had their argument, she asked him to leave her home. He said he would do so and started packing his backpack. He began walking towards the door and Ms. Fish followed him because she had to use the bathroom and it was in the same direction as the Accused was going. Suddenly the Accused stopped, turned around, walked up to Ms. Fish and punched her in the face. Ms.

Fish testified that the Accused then took the knife from his back pocket and he attacked her with it. She received a number of very significant wounds in the attack. One large and deep cut she received runs from her chin, below her bottom lip, and continues across the left side of her face in a downward angle, continuing along her jawbone in a flattened U-shaped pattern, and continuing on her neck under the jawbone, before coming up and ending just below and to the right of her left ear.

She was also stabbed on the right side of her head about two or three inches above and to the right of her right ear. [ 11 ] Brooke Lynn Fish testified that the Accused then went in the direction of Mr. Boynton, who was sitting in the bedroom working on his sketchbook. Mr. Boynton testified that the Accused lunged towards him with the knife and cut him on the right hand, from the wrist to the thumb. At this point, Ms. Fish attempted to get into the bathroom and hide in it. The Accused went after her. She was not able to close the door. While in the bathroom, Ms.

Fish attempted to fend off the Accused by throwing things at him. He cut her at least two more times, once on the inside of her forearm just below the inside of the elbow joint, and once on the top of her head. [ 12 ] Joseph Boynton was able to run outside, where he tried to summon help. Brian Schweitzer courageously ran inside the house and tried to take the knife from the Accused. He punched the Accused and tried to make him drop the knife, but he was unsuccessful. In the course of this struggle, the Accused stabbed Mr.

Schweitzer twice, leaving a deep wound on his right shoulder and another cut on his left hand. He was also cut on the top of his head, but this wound was not as severe as the others he received. Fearing that the Accused was going to kill him, Mr. Schweitzer left the bathroom.

[ 13 ] Jennifer Fish was outside and could hear her daughter screaming. She ran inside the house and encountered the Accused. He attacked her with the knife, leaving a large cut running across her left eyebrow towards her left temple [ 14 ] Brooke Lynn Fish was able to get out of the bathroom and run to her room. While running in that direction, she saw her grandfather. He was 66 years of age and had a bad leg. She led him upstairs. Inside the kitchen, all four members of the Fish family tried to barricade the door to prevent the Accused from coming in, but they were unable to do so.

Inside the kitchen, the Accused continued to menace the family with the knife. Jennifer Fish recalls the Accused saying “I’m gonna kill the bitch”. Inside the kitchen, Brooke Lynn Fish struck the Accused over the head with a glass bowl. Her grandfather struck the Accused over the head with his heavy wooden walking stick. At this point the Accused fell to his knees and Elizabeth Fish was able to take the knife from him. [ 15 ] Members of the Abbotsford Police arrived after this. The Accused had left the kitchen and went downstairs.

When police confronted him downstairs, the Accused was belligerent and insisted on drinking his beer before being arrested. Police took him to the Abbotsford Hospital, where he continued to act abusively towards police. When a photograph was taken of his wounds, he responded by extending both of his middle fingers towards the officer taking the photograph. He spat at police officers and at one point wet himself and attempted to splash the officers with his own urine. [ 16 ] The Accused testified and in his evidence he admitted to a great amount of drug use in the days leading up to this incident.

There were two aspects of his evidence that were particularly striking. Firstly, he testified in remarkable detail about the circumstances leading up to and following the commission of these offences. However he said that he experienced a blackout at precisely the moments immediately prior to and immediately following his use of the knife in the commission of these offences. The blackout began, according to him, just as he was packing up his backpack to leave following his argument with Brooke Lynn Fish.

His next memory is of his arrest, though he testified that he has no memory of any of his abusive conduct towards the police officers. [ 17 ] The second striking aspect of his testimony is the lack of any expression of concern, regret or remorse for his actions during the period that he was apparently in a blackout. One would reasonable expect that a person with any semblance of a conscience who was experiencing a blackout and who, on coming out of the blackout, learns that he has brutally stabbed, wounded and disfigured persons who had extended kindness towards him, would feel shocked and filled with regret.

If this was how the Accused was actually feeling, he made no mention of it in his evidence. [ 18 ] The Accused made no apology to the victims of the offence until the day of sentencing, after the Crown had also pointed out the lack of any show of remorse. The Accused did state however that he had written out apology letters for all of his victims, but that that were inadvertently left in his cell at the pre-trial remand center where he has been held for the past eight and a half months since his arrest. Victim Impact Statements [ 19 ] Three of the victims who were stabbed provided written Victim Impact Statement.

A fourth statement was provided by Ms. Parsons who, though not the recipient of a knife wound, was understandably traumatized by having to witness this incident. These persons have chosen not to read their Victim Impact Statements into the record. [ 20 ] In her Victim Impact Statement, Brooke Lynn Fish states that getting closure of this incident has been very difficult for her.

She states that she wants to be able to talk with the Accused in the hope that it may give her some answers she is seeking and, in her words, “to help me finally heal some internal wounds.” Her mother Jennifer Fish speaks, in her Victim Impact Statement, of the trauma she experienced at seeing her elderly parents at risk as well as her child.

Sadly, Jennifer’s father passed away less than four months after this incident, and the loss of his wise counsel and guidance has made the impact of this incident even more difficult for this family. [ 21 ] Brian Schweitzer, who bravely intervened to try and protect Brooke Lynn Fish, was adversely impacted by the Accused’s actions both physically and financially due to the economic strain he experienced when recovering from his injuries. Chelsea Parsons states, in her Victim Impact Statement, that she continues to feel traumatized and mistrustful following this incident.

Circumstances of the Offender [ 22 ] The Accused is 35 years of age. He was born and raised in Fort McMurray, Alberta and attended high school in an Okanagan community. His parents separated when he was a child, and his father became his custodial parent. The Accused testified that his father was a severe alcoholic who was also a harsh disciplinarian. The Accused has a lengthy criminal record, beginning in 1998, mainly for property and drug offences as well as for breaching court orders.

He has two previous convictions for assault, one in 1999 (an assault on a peace officer) and one in 2002 (for common assault). [ 23 ] Prior to being sentenced, the Accused apologized to his victims, stating “this would have been easier if I had notes.” Most of his comments were an attempt to convince his victims that this was not typical behaviour on his part. He stated to them “it’s not me.” He did not address the subject of making amends to his victims for his actions. Principles of Sentencing [ 24 ]

Section 718 of the Criminal Code sets out a number of objectives which a sentencing judge should bear in mind when sentencing.

These objectives include: denouncing unlawful conduct, deterring this offender and other like-minded persons from committing offences; separating offenders from society where necessary, assisting in rehabilitating offenders, providing reparations for harm done to victims or to the community, promoting a sense of responsibility in the offender, and acknowledging the harm done to the victims and to the community. [ 25 ] In this case, for serious violent offences such as these, deterrence and denunciation are paramount considerations.

Violent offenders are foremost among those who most need to be separated from society, and serious violent offenders should receive sentences crafted to keep the community safe by taking the offender out of the community and into an environment where meaningful rehabilitation can occur.

[26] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The offences forwhich this Accused is being sentenced are very serious offences. They involved the potential for the loss of multiple lives.

TheAccused’s self-induced intoxication preceding the commission of these offences neither offers justification, nor excuse for the offences,and does not diminish the Accused’s responsibility for the offences. [27] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to theoffence or the offender. The mitigating factors in this case are not obvious. Although the Accused pled guilty, this is usually seen as amitigating factor where the plea renders it unnecessary for the victims of the offence to experience the trauma of testifying.

The victimsof this offence were not spared that experience. For some reason, the Accused felt it necessary for those persons who he had stabbed tobe forced to relive the experience in a public setting and to undergo cross-examination.

I do note however that his guilty plea has sparedthe witnesses the requirement of having to give their testimony a second time in Supreme Court, and the Accused is entitled to have thisviewed as a mitigating factor. [28] This is not a case where the Accused was provoked by the complainant, where he has taken any steps to address the root causeof the offence, or where he has made any strong, empathetic expression of remorse.

He is not a person without any prior record and hecertainly was not cooperative with or respectful to police. [29] The Accused has been in custody since his arrest on the offence date, a period of eight months and fourteen days, and he isentitled to be credited for the time that he has spent in custody. He is entitled to be credited for the time spent in custody, plus a period ofhalf of that time to equal the time he would have earned in remission time if he had been serving a sentence over the past eight months,rather than sitting on remand.

Joint Submission [30] Crown and defence counsel have put forth a joint submission with respect to their position on sentence. It is their position that asentence of four years (less time credited for the Accused’s pre-sentence custody) is the proper sentence in this case. A joint submissionis what takes place when the Crown and defence counsel both agree on what a fit sentence for an offender is, and together urge the courtto impose the sentence they are recommending. A sentencing judge is not bound to impose the joint submission.

However thesentencing judge must give careful consideration to the proposed sentence. [31] In addressing joint submissions, the court must strike a balance. On the one hand, deference should be shown to pleanegotiations had between experienced counsel, as a means of resolving criminal files in order to meet the demands of the volume of filesbefore the court and the stresses that trials place on victims of crime, witnesses and on stretched resources. On the other hand,acceptance of joint submissions should never become a rubber-stamping process.

A sentencing judge should never abdicate theresponsibility of insuring that the principles of sentencing are respected, in favour of expediency. A sentencing judge should neverimpose a sentence that his or her conscience suggests does not accord with the law, simply because the lawyers are going along with it. [32] In R. v. Nome [2002] B.C.C.A. 468, Chief Justice Finch of the BC Court of Appeal described the following statement (takenfrom the Ontario Court of Appeal decision of R. v.

Dorsey (1999), (ON CA), 123 O.A.C. 342) as being “a correctstatement of the law” regarding joint submissions: “The submission should be departed from only where the trial judge considers the joint submission to be contrary to the public interestand a submission which, if accepted, would bring the administration of justice into disrepute.” [33] In an earlier decision of the BC Court of Appeal, R. v.

Bezdan 2001 BCCA 215,Justice Prowse stated that “the administration ofcriminal justice requires cooperation between counsel and that the court should not be too quick to look behind a plea-bargain struckbetween competent counsel unless there is good reason to do so.” However, if, as was the case in Bezdan, the sentencing judge is of theview that, after giving consideration to the joint submission, the proposed sentence is not a fit one, the judge is not obliged to impose thatsentence. [34] A joint submission is given greater deference when an accused is giving something up in return for his guilty plea, becauseunder those circumstances, his or her admission of guilt can clearly be seen to be more genuine.

Examples of when this may occurinclude where the Crown has potential problems of proof, when there are problems with availability of witnesses, where there areproblematical issues such as the reasonableness of a search, or delay in bringing the matter to trial, where there is reluctance of witnessesto testify, or trauma that they might suffer from testifying, or where the accused has given something up in the plea negotiation, such as aviable defence. [35] I would note in this case that the Crown had no apparent problems in proving its case.

The case presented at the preliminaryhearing was strong enough to support a conviction. The witnesses were cooperative and available. The Accused does not appear to havegiven up any defence.

Section 33.1 of the Criminal Code makes it clear that his self-induced intoxication is not a defence to this charge.

I would note however that by entering the plea prior to trial in Supreme Court, the witnesses have been spared the requirement of havingto relive the horrible events of this incident yet again. [36] A proposed joint submission may be contrary to the public interest and will bring the administration of justice into disrepute ifit falls below the usual range of sentences for similar offenders, and where none of the other circumstances justifying acceptance of ajoint submission (such as giving up a defence or problems with the prosecution of the case) are present.

Accordingly I must considerwhether the sentence proposed by Counsel is within the range of sentences for this type of offence that is supported by decisions of theCourt of Appeal in this province. Sentencing Range for Aggravated Assault [37] Aggravated assault is defined in section 268(1) of the Criminal Code as being committed when the victim of an assault is

wounded, maimed, disfigured or if the person’s life is endangered. It is clear that the victims of the offences for which the Accused has pled guilty were victims of an aggravated assault. Persons convicted of the offence of aggravated assault face a penalty set out under subsection (2) of

section 268 of up to fourteen years of imprisonment. Although no minimum penalty is specified,

section 742.1 of the Code provides that a person convicted of this offence may not be given a conditional sentence for this offence. [ 38 ] The offence of assault causing bodily harm is set out in

section 267 (

b) of the Criminal Code . The term “bodily harm” is defined in

section 2 of the Code as meaning “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.” Here again, it is clear that the victims of the counts to which the Accused has pled guilty to this offence received bodily harm. Where the Crown elects to proceed with the charge as an indictable offence, as was done in this case, the maximum sentence is ten years in jail. Once again,

section 742.1 of the Code provides that a person convicted of this offence may not be given a conditional sentence for this offence. [ 39 ] Aggravated assault involving the use of a knife, in which the victim is stabbed, usually attracts the imposition of a penitentiary sentence. The following are examples of cases in which the Court of Appeal of this province has addressed what the appropriate level of sentence is for this offence: (

a) R. v. L.D.W. 2005 BCCA 404 : The accused, a 24 year old Aboriginal man, was convicted of two counts of aggravated assault and two counts of an offence under

section 267 (a) (assault with a weapon.) The accused went to the home of his ex-wife, under the influence of alcohol and cocaine. He stabbed his wife’s male friend in the abdomen. He then assaulted his ex-wife, first by striking her head with his knee and then by stabbing her with a second knife. At trial he was given a global sentence of five and a half years. This sentence was upheld on appeal. The Court of Appeal said that the offences were egregious and called for a denunciatory and deterrent sentence. The court also noted that the accused was far from being able to control his substance abuse problem and therefore remained a moderate to high risk to reoffend violently. (

b) R. v. Craig 2005 BCCA 484 : The accused stabbed his ex-wife with a knife from his fishing tackle box. The attack was without provocation and the victim was unsuspecting and defenceless. The victim was stabbed in the abdomen and also received cuts to her hands. The accused had been drinking excessively, and had a blood alcohol level of .21 at the time of the attack. At trial he was sentenced to one year in custody, but on appeal the sentence was increased to three years. The court said that the accused’s intoxication did not reduce his moral blameworthiness for the offence.

The court also said that to properly serve the objectives of denunciation and general deterrence, as well as promote the accused’s rehabilitation, a four year sentence would be justified, although the sentence was fixed at three years “having regard to the position the Crown took at sentencing.” (

c) R. v. B.G.P. 2006 BCCA 215 : The 29 year old accused was in the process of collecting a drug debt when he slashed the victim with a large knife, causing a potentially fatal abdominal wound. The Crown sought a sentence of from 6 to 10 years, but the sentencing judge imposed a conditional sentence order of 18 months, noting the accused’s subsequent good behaviour. On appeal, the sentence was increased to three years, but the court stated that a sentence of four years was more of a fit sentence. The court added that rehabilitation of the offender ought to be a secondary concern behind deterrence and denunciation. (

d) R. v. A.A.C. 2007 BCCA 236 : The accused was upset that her 7 year old child had been placed in foster care. She decided to take her own life and slashed the child with a knife before being subdued by others. The Court of Appeal upheld a sentence of four years for the aggravated assault of the child. The court said that the sentence was justified because of the “horrendous nature of the crime.” (

e) R. v. Larose 2013 BCCA 450 : The accused, while at a party celebrating his release from prison, stabbed two men, inflicting life- threatening wounds. At the time he was subject to a court order prohibiting him from possessing weapons.

While the court acknowledged that the range of sentence is generally between 16 months and six years for this type of offence, the court held that a 7 year sentence under these circumstances was not demonstrably unfit. [ 40 ] These cases suggest that an appropriate range of sentencing for aggravated assault in cases involving use of a knife is in the range of three to six years, before factoring in mitigating and aggravating circumstances.

They underscore the principle that the use of a knife in the commission of an aggravated assault is a reprehensible offence, one for which the principles of denunciation and deterrence are paramount. On the spectrum of aggravated assaults, the use of a knife often brings the offence closer to that of attempted murder because of the potential for loss of life. The fact that an accused commits such an offence while under the influence of alcohol or drugs is not a mitigating factor, and can in fact be an aggravating factor where there is no effort made by the offender to address his or her drug or alcohol problem.

While a violent offender has an untreated alcohol or drug addition, the offender continues to pose a significant risk of reoffending. That offender’s separation from society becomes necessary in order to protect the public and in order to attempt rehabilitation in a more controlled environment. Application of These Principles to This Case [ 41 ] Applying these principles to this Accused, for the offences he has pled guilty to, I am satisfied that the sentence proposed by counsel in their joint submission is one which should not be rejected or departed from.

It is within the range of sentences for these offences as set out by the Court of Appeal of this Province, and no grounds exist which justify a departure from it. It is a sentence which will separate the Accused from society in order to protect the public and to place him in a structured environment in which to address his substance abuse problem. [ 42 ] Accordingly, the Accused William Anton Butz is sentenced to a total sentence of four years in custody on each count, concurrent on each count.

From this amount of time, he is to be credited with the time he has spent in custody (approximately eight and a half months) multiplied by a factor of 1.5 in order to account for the earned remission time he would have received, for a total credit of thirteen months, as required under

section 719 of the Criminal Code . After application of this credit, the Accused will serve a further period of thirty-five months in custody to complete his sentence. [ 43 ] Pursuant to

section 109 of the Criminal Code , the Accused is prohibited from possessing any firearm, cross-bow, prohibited

weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, for the remainder of his lifetime. [ 44 ] Pursuant to

section 487.051, there will be an order in Form 5.03 of the Criminal Code directing that a sample of the Accused’s DNA is to be taken for inclusion into the National DNA Databank. That sample is to be taken forthwith by a peace officer or other person authorized in the Criminal Code to that sample and it is to be taken by one of the methods set out in the Code. [ 45 ] There will be an Order of Forfeiture pursuant to

section 490.1 of the Criminal Code directing that the items seized by the Abbotsford Police Department during their investigation of this matter shall forfeit to Her Majesty the Queen to be disposed of as permitted under the Criminal Code following the expiration of the appeal period in this matter. [ 46 ] The Accused is ordered to pay the Victim Fine Surcharge for each of these counts forthwith. In default of payment, he is to serve the default time prescribed by law concurrently with the sentence he is serving for these offences.

Dated at the City of Abbotsford, in the Province of British Columbia, this 9 th day of April, 2015. _______________________________________ (The Honourable Judge K. D. Skilnick)