R. v. S.C.R. Date:, 2012 BCPC 122

Citation: R. v. S.C.R. Date: 20120413 2012 BCPC 0122 File No: 84386-5KC Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SCR ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE DE COUTO Counsel for the Crown: S. Wagner Counsel for the Defendant: P. Angly Place of Hearing: Port Coquitlam , B.C. Date of Hearing: March 14 and April 4, 2012 Date of Judgment: April 13, 2012

[ 1 ] THE COURT : Following a trial over a number of days, I found the accused not guilty of aggravated assault of his wife, TP, on February 22nd of this year, but guilty of the included offence of assault causing her bodily harm and of uttering a threat to her to cause her death or bodily harm. [ 2 ] I also found him guilty of assaulting Constable Hilder while in the execution of his duty, and of wilfully attempting to obstruct, pervert or defeat the course of justice in a judicial proceeding.

All but the last of these occurred on April 3rd, 2010, while the last offence took place from the 1st day of September, 2010 to the 15th day of February, 2011. [ 3 ] While I do not propose to review the facts in any detail as they were recited at some length in my earlier reasons for judgment, a brief

summary of those facts is in order. [ 4 ] The accused and the victim met sometime in 2006 and after forming a relationship were married on February 3rd, 2008. They had two children, H, born on [DOB], and T, born on [DOB]. Their relationship was somewhat tumultuous and they had separated on a number of occasions prior to April 2010, but they had stayed in touch with each other. [ 5 ] They both recognized they had substance abuse issues which they attempted to address individually through treatment.

The children were removed from their mother by the Ministry of Children and Family Services and placed in the care of TP's grandmother due to TP's substance abuse issues and were under such care on April 3rd, 2010. [ 6 ] At that time, the accused and his wife were once again separated and TP had just moved into her own apartment on the second floor at [address], about a week or two earlier. [ 7 ] The accused was at the apartment on the morning of April 3rd, visiting his wife and two children. Also present was P, who was born on [DOB], TP's child from an earlier relationship.

Staying with them at the time was TP's sister, KP, who had just moved down from Kelowna. Over the course of the morning and into the early afternoon, things were relatively normal as everyone seemed to get along. [ 8 ] In the early afternoon, TP, her sister, as well as the three children, went to their grandparents' for an Easter dinner while the accused remained behind. [ 9 ] At some point, he left the apartment to go to a neighbourhood pub, Rhino's, where he consumed a number of rum and coke drinks and was "really drunk" by the time he left.

He returned to the apartment and waited for his wife and the others to return. [ 10 ] When they did return, the victim immediately realized that the accused was "drunk and high" and asked him to leave. He did, but returned a short while later and entered the residence on the second floor by climbing up to the balcony and entering through the patio door. [ 11 ] He held a hammer as he approached the complainant in what appeared to be a rage directed towards her. She, her sister, and the children retreated into H's bedroom.

The accused followed them and starting swinging the hammer in TP's direction but never struck her. He hit a wall, the closet door, and a toy box in H's room. [ 12 ] The accused then commenced to punch the victim repeatedly in the face and head area as he said in a calm voice, "I'm going to fucking kill you". He at one point dragged her around the living room by her hair as her sister yelled for him to stop.

KP described seeing the accused with clumps of hair in his hand. [ 13 ] At another point, the accused had the victim pinned on the ground as he struck her and choked her to the point where she was unable to breathe.

When she made this known to the accused, he released his grip on her throat. [ 14 ] Her sister called 9-1-1 and those moments of terror were captured in the screams for help, while the screaming and crying of the children were also heard in the background as the call was played in court. [ 15 ] It is clear that the children were present during this vicious assault on their mother, or for a good part of it. Their pleas for their dad to stop, the cries of the victim and her sister for him to stop, were all to no avail as he kept up the assault.

He continued to punch and kick the victim while wearing steel-toed boots and he swung her around by the hair again. [ 16 ] She managed to free herself and ran out of the apartment but was pursued by the accused. As she reached the stairs to go down to the ground floor she somehow fell down the stairs. At the bottom of the stairs, the accused kicked her in the face and put her head through the window.

He then grabbed her hair and dragged her outside where he proceeded to punch and kick her again. [ 17 ] Neighbours who heard her screams for help came to her assistance and she managed to free herself and run down a pathway to an adjacent apartment. Some of them saw the accused grab her hair as she made her escape while another described removing lots of hair from a brush as she attempted to brush the victim's hair later in her apartment, as it was matted with blood. [ 18 ] KP and the other witnesses all described the victim as injured, bloodied, and frightened.

They saw a lot of blood on her face and one of the neighbours testified the victim was bleeding profusely from her nose and had a lot of blood in her hair. [ 19 ] The accused was tackled to the ground as he attempted to pursue the victim and held until the police arrived. [ 20 ] One can only wonder how the prolonged beating would have ended had not the neighbours intervened when they did. [ 21 ] Constable Hilder of the Coquitlam RCMP Detachment was the first officer on scene and arrested the accused who was in a very agitated state at the time, seemed out of control, and wanted to continue to fight.

As the officer struggled with the accused in trying to place him in his police vehicle, he was kicked in the jaw. The accused was eventually placed in the police vehicle with the assistance

of another officer and driven to the Coquitlam Detachment where he was placed in cells. [22] SCR, who is 36 years old, has remained in custody since the day he was arrested. [23] TP was taken by ambulance to the hospital where she was examined and treated.

Her injuries consisted of bruising and someswelling around her eyes, a bit of swelling to the left side of her head; bruising behind her left and right ears and around her right shoulderand right elbow; an abrasion in the back with significant bruising; two bite marks to the outside of her right hand; an abrasion on the frontof her throat; superficial abrasions to the right knee and left foot. [24] With respect to the charge of wilfully attempting to obstruct, pervert or defeat the course of justice in a judicial proceeding,the accused sent two letters to the complainant while awaiting trial on these charges in which he attempted to persuade the victim torecant her statement to the police and lie to exonerate him.

He was not successful as TP told the police about the letters, turned themover to them, and testified in court about the manner and extent by which she was assaulted by the accused. [25] Notwithstanding these circumstances, TP testified that the two of them have continued to maintain contact with each other. [26] This is not the first time that the accused has been convicted of a spousal assault. [27] He has a criminal record that dates back to 1991 when he was still a youth. [28] In 2000, he was sentenced to a three-month conditional sentence order followed by probation for one year for assaulting aparamedic in Port Alberni and for assault with intent to resist arrest.

He was on probation at the time. [29] On February 21st, 2003, he pleaded guilty to possession of a weapon for a purpose dangerous to the public peace under then s.88(1) of the Criminal Code. According to the pre-sentence report on that file, he apparently wanted to end his life. He held a kitchenknife as police officers advanced towards him, hoping they would shoot him as his then common law partner, NW, packed up to leavehim. He reasoned that if he was going to be alone he did not want to live.

He was sentenced to a six-month conditional sentence order,followed by probation for 18 months. [30] In 2006, he was convicted of assaulting NW who had returned to live with him at the time. He received a conditionalsentence for six months, followed by probation for two years. On June 13th, 2006, that conditional sentence order was terminated. [31] On July 23rd, 2009, he was placed on a recognizance under s. 810 of the Criminal Code for one year as a result of an incidentthat involved the present victim, TP. [32] As part of her submissions, Crown counsel, Ms.

Wagner, filed and referred to copies of the pre-sentence reports that wereprepared for the offences mentioned above, as well as a copy of a psychological assessment dated January 9th, 2006 and authored by Dr.Whittemore, a clinical psychologist at the outpatient Forensic Psychiatric Services in Surrey. [33] These reports identify a long-standing issue that the accused has had with alcohol and substance abuse and which have causedsignificant problems in his life, notably in the way it adversely affects his personality and behaviour.

They disclose that whenintoxicated the accused easily becomes angry, particularly in relationship situations. The reports also disclose that the accused has beenwell aware of these issues, and has attempted to address them in the past through attendance at numerous treatment and counsellingprograms, but without much success. [34] In addition to the above, Ms. Wagner referred to the following as aggravating factors present in this case: 1. The vicious nature of the assault and its duration. 2. The assault involved an attack on his spouse. 3.

The assault was committed in the presence of children who were frightened and pleading for their father to stop. 4. The accused's criminal record which includes convictions for offences involving violence including a prior conviction for anassault on his previous common law wife, NW. 5. The accused's substance abuse dependency and anger issues in relationship situations and his failure to address them in anymeaningful and long-lasting way. [35] Based on the above considerations, Ms.

Wagner seeks a sentence of three to four years for the assault causing bodily harmand the uttering threats to his wife to kill her, a further six months consecutive for assaulting a peace officer, and a six to 12 monthconsecutive sentence for the offence of obstruction of justice. [36] Ms. Wagner relied on the following authorities in support of her position for the assault causing bodily harm: R. v. Julian,[1990] B.C.J. No. 2775 (C.A.); R. v. Portsmith , [1995] B.C.J. No. 2605 (C.A.); R. v. T.S., [2002] B.C.J. No. 2941 (Prov. Ct.); and R. v.Busch, 2009 ABCA 160 , [2009] A.J. No. 483 (C.A.). [37] Mr.

Angly, on behalf of his client, argued that a lesser sentence would be appropriate in all of the circumstances. Hedescribed the accused's early years as being difficult ones as he was left on his own at a very young age and found himself having towork at the young age of 15. [38] In the more recent past, he told the Court that SCR took his father's death in 2002 from colon cancer very hard and it wascompounded by his becoming aware, shortly thereafter, that his mother was diagnosed with lung cancer. She passed away the followingyear.

[ 39 ] Despite a serious record which includes one prior conviction for assault of his common law partner, Mr. Angly argued that the accused's underlying problem that caused these conflicts was the result of his substance abuse and his inability to effectively manage it.

He submitted that notwithstanding all his previous attempts through counselling and treatment programs, many of which were not completed, it was not too late to consider rehabilitation. [ 40 ] He stated his client has realized the importance of moving away from his former associates who were a negative influence on him and has arranged to move away from the Metro Vancouver area. His brother and sister live in Kelowna and they are prepared to pick him up when he is released and to take him to Kelowna where he has been invited to stay with his sister while he gets his life in order.

His brother, who is a sub-contractor in the construction industry, is prepared to employ him right away. [ 41 ] In addition to these factors, Mr. Angly also advised the Court that his client was placed in an "enhanced supervision protocol" or ESP ward between December 15th, 2011 and January 23rd, 2012 where there was enhanced supervision over him. He also advised his client has been in segregation since January 23rd, 2012. [ 42 ] Mr.

Angly does not take issue with the fact that the accused engaged in a vicious assault on his wife in the presence of children, and that it persisted over a period of time and continued after intervention by neighbours. [ 43 ] He argued that an appropriate range for sentencing on the assault causing bodily harm count was one between six months and two years based on the authorities he referred to, although he readily conceded that six months was too low for these circumstances. [ 44 ] The cases he relied on in advancing his argument are as follows: R. v. Pangon , 2005 NWTSC 57 ; R. v. Kirby , 2010 NWTTC 15 ; R. v.

Donnelly , 2010 BCSC 1786 ; and R. v. Schindler , 2003 BCCA 617 . [ 45 ] Mr. Angly argued against a consecutive sentence with respect to the offence of assaulting a peace officer asserting that while the accused's aggression was directed towards Constable Hilder during the course of his arrest, his highly agitated, aggressive and confrontational emotional state was a continuum of his frame of mind from the time he assaulted his wife earlier.

He sought a concurrent, rather than a consecutive sentence. [ 46 ] While he did not take issue with the Crown's argument for a consecutive sentence on the obstruct justice count, he contended that at the time the accused sent the letters to his wife asking her to recant her statement to the police and to provide a false account of what happened, the accused was desperate as he thought he was facing a charge of attempted murder on the basis of what he had been told by the police. [ 47 ] He submitted that the accused's plan was ill-conceived, unsophisticated, simplistic, readily traceable to him, and ultimately had no impact on the victim.

He urged the Court to consider the offence in context and to find that it was on the less serious end of the sliding scale as it relates to seriousness and to accordingly impose a sentence less than what the Crown sought. [ 48 ] I have read the cases referred to by both counsel as they related to the offence of assault causing bodily harm to TP. In my view, they are distinguishable on the facts and/or on the personal circumstances of the accused. They do provide guidance as to the range of sentence available for consideration. [ 49 ] In R. v.

Julian , supra the accused was sentenced to three years on a sixth conviction for assaulting his wife of which two were for assault causing bodily harm. He was also on probation for two assaults on his wife at the time of this offence. His wife was seriously injured as a result of the assault, sustaining massive bruising all over her head with considerable hematoma, her eyes were much bruised, and she had difficulty opening her eyelids as a result. Both jaws and cheekbones were swollen and she suffered multiple bruises on her chest, right hand, right knee, and right leg. She was hospitalized.

The accused did not have a criminal record and was otherwise a dependable and responsible person who assaulted his wife only when intoxicated. [ 50 ] On his sentence appeal, Wood J.A. (as he then was) concluded that the sentence was on the high end of the range but was not inappropriate in light of the severe assault with consequences close to, if not at, that shifting line which separated bodily harm from death. [ 51 ] With respect to R. v.

Portsmith, supra , where the assault consisted of one blow to the wife's head by the accused husband with a shovel, the victim suffered two gashes to her head which required stitches to close. This was the accused's first conviction for assault but the pre-sentence report indicated it was not the first incidence of domestic violence. His criminal record included four previous convictions for possession of a weapon for a purpose dangerous to the public peace.

He was sentenced to two years less a day which was upheld on appeal with the Court of Appeal, concluding that rehabilitation did not look promising and that specific deterrence was the overriding applicable principle in the circumstances. [ 52 ] R. v. T.S. , supra , is distinguishable on its facts and, in my opinion, is of little assistance to the case at bar. [ 53 ] In R. v. Busch , supra , after a night of drinking, the accused attacked his wife when she complained about his drinking and told him she could not continue to live with him unless his drinking stopped.

The accused pushed his wife against the wall as she left the house to go to work. He grabbed and punched her causing her nose to bleed. He pushed her to the concrete causing a broken ankle. He continued to punch her then dragged her by the hair into the kitchen where their children, aged three and two, were eating. He retrieved a knife from the kitchen and threatened her. He told the children to "say good bye to mommy". They were frightened and crying. The victim was able to calm the accused down and tried to escape. He threw her to the ground and continued to punch her.

He head-butted her; he put his hands around her neck and threatened to snap it. He ordered their three-year-old son to get some tape from the basement which he used to bind Mrs. Busch's hands, arms, and mouth. [ 54 ] He forced the family into the basement, threatening to throw Mrs. Busch down the stairs and there he kept his family confined for two hours during which time he made threatening gestures with a knife. He repeatedly stated that the entire family was going to die and that no one was leaving the house alive. The three-year-old son repeatedly asked the accused whether it was time to put the knife away.

Mrs. Busch eventually succeeded in calming him sufficiently that he told the children that they would not be killed.

[ 55 ] The accused had no prior record and the pre-sentence report indicated he was at high risk to re-offend and that report, as well as a psychiatric report, detailed numerous failed attempts by him at treatment for alcohol and substance abuse and concluded that if intoxicated it appeared "he again may be extremely violent". [ 56 ] He was sentenced to two years less a day and on appeal the Court of Appeal found that the sentencing judge erred by not giving sufficient weight to deterrence, denunciation, and protection of the public in imposing sentence and increased the sentence to one of five years.

The Court found that "none of the programs were successful in preventing the continued drug and alcohol abuse that led to the current offences". [ 57 ] In my view, of all the cases referred to, the facts in Busch , supra, bear the closest resemblance to the facts of the current offences. [ 58 ] As for the cases referred to by Mr. Angly, they are also clearly distinguishable on the facts. [ 59 ] R. v. Pangon , supra , was a case in which the accused was intoxicated at the time of committing the offence and had no memory of it.

The victim, with whom the accused had a relationship which ended approximately two months earlier, was asleep in her home with her four-year-old son. The accused unlawfully entered the residence through a window and accosted the victim, yelling and swearing at her. He pushed her onto a chair and confined her there. She eventually managed to escape with her son but was pursued by the accused who hauled her and her son to the ground.

She escaped to a nearby gas station from where she called the police. [ 60 ] The 31-year-old accused had a lengthy record and had been sentenced to incarceration on at least 14 previous occasions. He had a history of domestic violence and was on a conditional sentence order for uttering threats at the time. He was sentenced two years less a day following a guilty plea to a charge of break and enter and committing an assault. [ 61 ] In R. v.

Kirby , supra , the accused pleaded guilty to assault causing bodily harm to his then common law partner when an argument escalated into violence with the accused kicking, punching, and pushing the victim. He choked her and ripped off her necklace which caused a dark red mark on her neck. He punched her in the eye, pulled her hair, banged her head on the floor, kicked her in the rib cage and dragged her outside and threw her down a flight of stairs.

She suffered bruising and swelling on her face, both of her arms and legs, her shoulder and back, her neck, and had golf ball sized lumps on her head. [ 62 ] The accused had previously been convicted of assaulting the victim and had received a suspended sentence. He was sentenced to 12 months. [ 63 ] R. v. Donnelly , supra, involved a situation in which an argument between the accused and his spouse escalated into a physical confrontation. At one point, the wife bit her husband in the inner thigh whereupon the accused saw red and struck his wife in the face a number of times with his elbow.

As a result, his wife sustained a dislocated jaw, multiple bruising around both eyes, and lacerations on the inside of her mouth. [ 64 ] This was the 37-year-old accused's first offence and the Crown proceeded summarily. The accused was otherwise gainfully employed, was remorseful, and on his own initiative had taken anger management and other counselling programs. On appeal, his sentence of nine months was reduced to six months. [ 65 ] In R. v. Schindler , supra , there were no facts provided except for the accused's lengthy record including numerous convictions for assault.

A two-year sentence for assault causing bodily harm to his spouse was upheld on appeal. [ 66 ] In my view, the facts present in the case before this Court are far different and aggravated that those referred to in the cases just mentioned. [ 67 ] It seems to me that in determining an appropriate sentence in these circumstances, the accused's past history, including his criminal record, cannot be ignored. That history has been described in large

part in the pre-sentence reports and the psychological assessment referred to previously. [ 68 ] The pre-sentence report prepared in 2000 by Sandra Murray, a probation officer, upon SCR's conviction for assault and assault with intent to resist arrest described the accused's past history and his then current status in the following way. Ms. Murray wrote on p. 2 that the accused met his then common law wife, SK, during a phone call to one of his friends from jail, lived together with her following his release from jail in April 1994 and separated in December 1999.

According to SK, their relationship had its ups and downs due to the accused's history of alcohol and drug use and stated that "when he drinks and/or does drugs, he turns into a completely different person" describing "his behaviour while intoxicated as haywire". [ 69 ] Under the heading "Alcohol and Drug History", the report notes at p. 4: [SCR] has noted that virtually all of this conflict with the law has been alcohol and/or drug related and that both his mother and his common law wife have noted that substance abuse has been one of the significant problems in [SCR’s] life. [ 70 ] With respect to the circumstances relating to the offence he was sentenced on at the time, the pre-sentence report states at p. 5 under the heading "Present Offence": [SCR] reports the day of the offence he had consumed three beer, two shooters, and two Mike's Hard Lemonade.

He was going to the Salmon Festival with his brother. He states the last he remembers he was leaving the pub and walking toward the Salmon Festival. He states he has no memory of the events in the police report however believes that they must be correct. [SCR] states that he has a history of alcoholic blackouts and is aware from what he has been told by other people that his behaviour becomes inappropriate when he reaches this point of intoxication. Further on:

The present offences occurred while [SCR] was on probation supervision, the result of an incident where he had been drinking, was driving a vehicle, and hit his brother-in-law. [SCR] also has little recollection of this incident as he was impaired by alcohol and marihuana at the time. [ 71 ] An updated pre-sentence report dated January 22nd, 2003 was prepared by Deborah Hines, a probation officer, for his sentencing on conviction for possession of a weapon for a purpose dangerous to the public peace.

At the time of writing that updated report, the accused was living with NW whom he met while he was still living with SK. When he separated from SK, he moved in with NW. [ 72 ] In that report, SCR described his relationship with NW as "rocky" and stated that "he would try to use timeouts to manage his anger but says [NW] would not leave him alone" (see p. 1).

NW advised the writer of that report that in relation to the offence date, the accused had used alcohol and cocaine over the preceding two-and-a-half years with brief periods of sobriety and that "there is lots of anger" when he "comes home high" and "he is even angrier when under the influence of alcohol".

She confirmed at that time the accused had been attending meetings and trying to stay clean. [ 73 ] The probation officer noted on p. 3 of her report that the accused had "completed the Violence Prevention program in September 2000 and reports that he knows his triggers and how to use timeouts to manage his anger" and later noted under the heading "Alcohol and Drug Usage" that "The only substance abuse treatment the subject has attended was while participating in the electronic monitoring program in 1999.

He does not think he requires ongoing alcohol and drug treatment beyond the Narcotics Anonymous meetings he attends". [ 74 ] The third pre-sentence report which is authored by Lawrie Bay and prepared on January 31st, 2006 for his sentencing following his conviction for assaulting his then common law wife, NW, on June 11th, 2005, was accompanied by a psychological assessment dated January 9th, 2006 as mentioned above. [ 75 ] The accused's previous efforts at addressing his issues were described in this pre-sentence report on p. 4 under the heading "Behaviour and Emotional Status".

It stated: Corrections records indicate that the subject has had significant difficulties in his relationships with others close to him over the years as well as some problems with others in the community, in particular when under the influence of intoxicants. [ 76 ] In an entry in his file from December 2002, one of his supervising probation officers wrote: The writer senses that anger is boiling just beneath the surface and it would not take much to have it erupt. The subject has attended for various counselling over the years.

He completed the Corrections Branch Violence Prevention program in 2000 but did not finish it when again referred to the program in 2003. And later on: The writer believes that he [the accused] has a considerable way to go to address his anger and other relationship issues. Further: Although the subject has previously acknowledged that his substance abuse has played some

part in his relationship difficulties, he gave no other indication that he accepted responsibility for the consequences of his actions or made any comments about the impact that his misuse of alcohol or drugs could have had on others. [ 77 ] The report further notes under the heading "Substance Abuse" as follows: Although he did not mention it over the course of the interview for the purpose of this report Corrections records indicate that he has also had a problem with excessive use of alcohol in the past suffering a number of blackouts when younger.

He has previously admitted that his personality and behaviour changes when he has been drinking. The subject has attended a variety of substance abuse counselling programs in the past, completing some but failing to finish others. While on the electronic monitoring program in 1999 he completed the Collections Branch Substance Abuse Management program. He has attended 12-Step meetings at various times over the years. He went to the Maple Ridge Treatment Centre in early 2004.

He told the writer that he successfully completed the program, however, in April 2004 had admitted to his supervising probation officer at that time that he had been asked to leave because he had smoked some crack while there although he noted that they were prepared to take him back in the future because he had been honest with them about it. In August 2004 he made arrangements to go to the Inner Visions Recovery House however he failed to go, travelling to Manitoba instead at that time.

Most recently on July 20th, 2005 the subject entered the Substance Abuse residential treatment program at Wagner Hills Farm in Langley, British Columbia. It is a 12-month program. However, he left there by his own decision on August 2nd, 2005 and was subsequently discharged from that facility. In the opinion of this officer, although the subject has made some acknowledgements of his substance abuse, the writer is not confident that he fully understands and accepts the impact that it has had on his life and those around him.

The undersigned is also concerned that he has not reached the point where he is able and prepared to take full advantage of the counselling opportunities that may be presented to him in this regard. [ 78 ] With respect to his receptiveness to counselling and other programs in the past, the report notes under that heading:

The subject was initially put under community supervision as a youth in 1991. Over the ensuing years, he has been placed on a number of bail orders, probation orders, and a conditional sentence order. These orders have contained a variety of conditions, many centering on requirements that he take both outpatient and residential counselling to address substance misuse and anger management.

His response to the interventions of the Corrections Branch has been variable. [ 79 ] The psychological assessment provides further insight into the behavioural concerns relating to the accused and his future potential for rehabilitation. Dr.

Whittemore wrote on p. 5 information she obtained from NW at the time in the following way: [NW] described him [the accused] as very aggressive and unpredictable. [SCR] expressed hostility towards women making statements such as "What's the point of building all this" -- speaking of his company, he had started up his own business -- "so some bitch can take it all". [ 80 ] This is consistent with information provided by NW in which she indicated that he demonstrates hateful attitudes toward women.

She expressed the opinion that he believes he has the right to control her and has used violence as a way to get his message across. [ 81 ] Under the heading "Criminal History and Current Offences", Dr. Whittemore writes on p. 6 midway of the second full paragraph, the following: He indicated that he has three or four assault convictions on his record including one against his brother-in-law, [D], one against his father, and one against [NW].

He reported that he attempted to run over his brother-in-law six or seven years ago and justified his actions stating that this was the individual who gave him crack cocaine at the age of 12. [SCR] stated that he had been drinking at the time of this offence.

He further revealed that he assaulted his father five years ago but felt he deserved it after he observed his father assaulting his mother after a day and night of drinking. [ 82 ] Under "Substance Abuse" at p. 9, the first paragraph and following reads: He [the accused] described periods of drug binges and periods of abstinences from drugs throughout his life.

He said that the longest time he has abstained from drugs is six months and he reports several unsuccessful attempts to cut down or stop using drugs, particularly within the past three years stating that before this time he did not view himself as having a problem. [SCR] describes several problems resulting from his use of drugs and impacting his functioning across several life domains. This is consistent with his responses on the drug abuse screening test and consistent with collateral information. [NW] has described him as violent when he is using but also when he is not using.

Records reveal that he has displayed a lot of anger when under the influence of substances. [ 83 ] Under the heading "Mental and Physical Health History" on p. 10, the last complete paragraph reads: [SCR] stated that he recently sought help from a psychologist in Abbotsford. He indicated that he has been seeing Dr. Gafari [phonetic] weekly since August of 2005. He originally consented to a release of these records and they were requested. However, a message from Dr.

Gafari's office revealed that he has withdrawn his consent and records were not released. [SCR] stated that he would like to gain insight into why he is so easily destroyed and/or crushed in life. He said that he is able to build a great life for himself and then sometimes goes wrong and he self-destructs. He expressed the desire to get rid of all the anger he feels and to learn how to manage things, stating that "some things really get to me". He then indicated that he has attended anger management programs twice in the past and has learned his triggers and what he should do if he is getting angry.

Records confirm that he completed the Violence Prevention program in September 2000 and reported that he knows his triggers and knows how to manage his anger. Despite this treatment, [SCR] continues to demonstrate difficulty managing his anger and controlling the outward expressions of his anger. He indicated that he is dedicated to remaining with a psychologist to work on these issues. [ 84 ] Under the heading of "Behavioural Observations and Mental Status" on p. 11, the commencement of the last paragraph reads: [SCR] described himself as easily angered.

He reported times when he was angry that "feelings of rage take over". He revealed that he has lost control of his anger and has responded very impulsively in various situations with no thought. [SCR] does present with effective and behavioural impulsivity and [NW] has described him as unpredictable and said that his mood readily changes from loving and affectionate to angry and threatening. He appears easily angered with low frustration tolerance.

He demonstrates few effective problem solving skills. [ 85 ] Under "Testing Results" it states: Results of the Personality Assessment Inventory indicate that [SCR] attended appropriately to test items. However the clinical profile obtained may under represent the degree of problems he is experiencing and results should be read with that in mind. The PAI profile revealed significant elevations that cross several clinical scales. They revealed an individual with a history of substance abuse problems who is bitter, suspicious, and angry. This is consistent with interview observations.

His hostility, suspiciousness and mistrust likely impair his relationship with others. He described little ability to control the effect that drugs are having on him. At the bottom of p. 12, commencement of the last paragraph: His responses to test items also revealed a number of problematic personality traits. He presents as emotionally labile demonstrating rapid and extreme mood swings. He is likely to experience periods of poorly controlled anger and indeed his responses suggest that he is quick tempered and easily provoked by the actions of others. He described himself as impatient and easily irritated.

His responses on the PAI were consistent with the results of the State-Trait Anxiety Inventory in which he described feelings of intense anger which appears chronic in nature. He is likely to express his anger with little provocation. Results of the STAXI-2 reveal that anger may be expressed aggressively in some situations and he may attempt to express his feelings of anger in other situations. His emotional liability and

impulsivity combined with his suspiciousness of others and difficulties in relationships increase his risk for aggressive behaviour. His emotionality and hostility have probably led to impairments and volatility in his relationships and he may be preoccupied by fears of abandonment. He revealed a personality style that involves a degree of risk-taking and a tendency to be impulsive and his responses suggest a history of anti-social behaviour.

With respect to treatment, his responses suggest that he acknowledges experiencing problems in a number of areas of his life and recognizes the need for help in dealing with his problems. He reports a positive attitude towards personal change, however, the nature of some of his problems suggest that treatment would be challenging. [ 86 ] Under the heading "Risk Assessment and Risk Management" on p. 14 of the psychological assessment in the paragraph continuing from the page before it reads: He presents with a personality style marked by anger and effective and behavioural instability and impulsivity.

He has low frustration tolerance and poor coping and problem solving skills. [SCR] engages in extreme minimization of his aggressive behaviour towards his partner and he demonstrates attitudes that condone his use of violence. A consideration of the above factors suggests that [SCR] presents a high risk for future spousal violence and appears a significant risk to act out in an aggressive manner to those with whom he comes into conflict. [SCR] meets criteria for anti-social personality disorder and he reveals borderline personality traits.

With respect to him, he has described several unsuccessful attempts to stop using and has attended residential treatment on two occasions but failed to complete such treatment. [SCR] expressed the opinion that he is not in need of treatment feeling that he currently has his substance use under control. He demonstrates a lack of insight into the seriousness of his problems and his risk for relapse and would benefit from treatment to assist in controlling his use of drugs and managing his risk for relapse. [SCR] has demonstrated a history of violent behaviour.

He indicated that he has attended anger management in the past and knows what he should do when he becomes angry but it appears he has been unable to translate this information into appropriate action. [SCR’s] inability to control his aggressive behaviour and his attitudes towards violent behaviour presents a serious concern. He requires intensive treatment to assist in managing his emotions and controlling the outward expression of his anger. [SCR] demonstrates intense anger and impulsivity and feels that he has been unjustly treated.

These factors suggest that he is at risk for non- compliance with court orders and community supervision. [ 87 ] It is very apparent from what has been written and said about the accused, that he has been well aware of his alcohol and substance dependency for many years now, as well as of his potential for suffering blackouts after consuming alcohol or drugs or both as he has had a number of those experiences in the past. He has also been aware of the change in his personality when he drinks or takes drugs as he has himself provided such disclosure to the probation officers.

He has also been aware of his underlying anger issues and the potential for unpredictable violence and very aggressive behaviour. He has recognized the need for counselling and treatment. He has told the probation officers as noted above that he knows what triggers his anger and how to manage his anger. [ 88 ] It is also very clear that he has been provided with numerous opportunities time and again to address these issues through treatment and counselling programs and that while he may have completed a few of them, he has failed to carry through with the majority of them.

A list of those prepared by a probation officer was filed with the court. It showed a litany of treatment centres and programs the accused attended but did not complete. In addition, notwithstanding those he completed and learned the ways to manage his anger, the present offences clearly show that it has had little or no effect on his ability to control his anger or rage when it erupts. [ 89 ] It seems to me that the many failed attempts at counselling and treatment over the years reflects a lack of sincerity and long- term commitment to meaningfully address his behavioural issues and substance dependency.

As for those programs he successfully completed, it would appear that they have had no effect on him.

He has continued to rely on alcohol and drugs and as the circumstances of this offence show, he is still capable of a sudden explosion of rage and violence. [ 90 ] In my view, given the many lost opportunities, there remains as noted in his psychological assessment "a high risk for future spousal violence and appears a significant risk to act out in an aggressive manner to those with whom he comes into conflict". [ 91 ] While he has indicated a willingness to remove himself from his present environment, which led to his addiction to alcohol and drugs, and relocate to Kelowna, there has been nothing presented to this Court in the way of any comprehensive long-term treatment plan to address those issues in any meaningful way.

Without such treatment, there remains the real risk of continuing along the path of violent conflict, especially in a relationship situation. [ 92 ] In my opinion, little confidence can be placed in any long term prospects of rehabilitation given this history and lack of any specific intensive treatment regime. The comments of Dr. Whittemore made in her assessment of January 9th, 2006, almost four years before these offences, seem eerily prophetic. She wrote back then that the accused remained "a high risk for future spousal violence".

That has turned out to be the case. [ 93 ] In addition to these considerations, the courts have consistently emphasized concern over domestic violence and have repeatedly stated that such criminal conduct will not be tolerated. [ 94 ] In Portsmith , supra , Prowse J.A. stated in paras. 7 to 9: [7] … As earlier noted, this Court has commented many times on the need to protect women from the kind of violence perpetrated upon the victim here. In R. v. Julian , [1990] B.C.J. No. 2775 (10 December 1990), Vancouver CA012835 (B.C.C.A.), Mr.

Justice Wood, speaking for the Court, stated at p. 5 of his reasons: One would have to be both ill informed and insensitive to the realities of life not to recognize the fact that women have for too long been left vulnerable to and unprotected against this sort of domestic violence. Whatever may be the complicated psychological and or

sociological explanations which underlie this peculiar and devastating form of violent crime, the ultimate and, if I may say so, uncomplicated object of any court before whom such tragedies are brought, must be to protect the victims as best that can be done within the parameters of our statutory jurisdiction. [8] I am also satisfied that the sentencing judge was justified in emphasizing specific deterrence as a factor in sentencing in this case, given Mr.

Portsmith's apparent lack of remorse and lack of desire to deal with his problems. [9] … it is important to note that this type of crime affects not only the victim, but also society as a whole. This point is made by Mr. Justice Lambert, speaking for the Court, in R. v. Stanley , [1986] B.C.J. No. 695 (8 September 1986), Victoria V000338 (B.C.C.A.) at p. 3 of his reasons: I wish to say particularly in this case that society has a deep interest in this kind of conduct. It is not a private matter between the parties to the relationship nor a matter that goes away if there is forgiveness within the relationship.

This kind of conduct endangers and imperils society. In addition the guardians of the social interest, the people involved in social work and the police who are called out and into these situations, must have the protection of the law and the understanding that these offences will not be ignored by society or that forgiveness by one spouse will not put an end to the offence. Other people are at risk. Children are at risk and the neighbours are at risk.

The nature of the assaults can escalate to the point where they are completely unbearable.... [ 95 ] In the circumstances, I am satisfied that the principles of denunciation and general and specific deterrence far outweigh that of rehabilitation which in my view, given his past record, does not look very promising. [ 96 ] In considering the denunciatory and deterrent principles of sentencing, the aggravating factors as listed by the Crown are, in my opinion, highly relevant. [ 97 ] Not only was the attack on TP vicious, but prolonged and perpetrated in the presence of little children.

As noted above, it was very evident from listening to the 9-1-1 call that they were extremely frightened and unable to stop the accused from continuing with his attack on their mother despite desperate and repeated pleas for him to stop. As noted by Ms. Wagner, this was an assault on his spouse and not the first one at that. [ 98 ] I have already made reference to his prior criminal history which I also take into account. [ 99 ] A further aggravating factor in my view is that the prolonged attack was stopped only by the timely intervention of the neighbours.

One can only speculate how the situation might have ended had it not been for such an intervention.

As observed by Wood J.A. in Julian , supra , this was a severe assault "with consequences close to, if not at, that shifting line which separates bodily harm from death". [ 100 ] Based upon a careful consideration of all of the above circumstances, and bearing in mind the purpose and principles of sentencing as set out in ss. 718 and 718.2 of the Criminal Code which provides, inter alia , that an assault on a spouse is to be considered an aggravating factor, and having concluded that any prospect of rehabilitation is remote, and that denunciation and deterrence are the overriding principles in this case, I sentence you SCR as follows: • With respect to the assault causing bodily harm to TP, a sentence of four years of which two years will be credited for time served. • With respect to the uttering threats, a sentence of six months concurrent. • With respect to the assault of a peace officer, I agree with Mr.

Angly's position and sentence you to six months concurrent. • With respect to the obstruct justice conviction, I agree with Mr. Angly that in the totality of the scheme it is in the less serious range and accordingly sentence you to three months consecutive. [SUBMISSIONS BY CROWN COUNSEL] [ 101 ] THE COURT: I am going to make the DNA order.

I am going to prohibit you under s. 109 of the Criminal Code from possessing any firearm, imitation firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance or any authorizations or registrations held by you until dealt with for life. [ 102 ] MS. WAGNER: Crown will be entering a stay of proceedings with respect to the 6KC Information. [ORAL REASONS FOR SENTENCE CONCLUDED]