R. v. Pratt Date:, 2011 BCPC 382

Citation: R. v. Pratt Date: 20111213 2011 BCPC 0382 File No: 84496-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BAN ON DISCLOSURE s. 486.4(1) CCC REGINA v. MITCHELL PRATT ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE POTHECARY Counsel for the Crown: A. Blunt Counsel for the Accused: J.J. Allingham Place of Hearing: Port Coquitlam , B.C.

Date of Hearing: December 13, 2011 Date of Judgment: December 13, 2011 [ 1 ] THE COURT : Mitchell Pratt has pleaded guilty to a charge of sexual assault causing bodily harm arising from an incident on March 27, 2010 in Maple Ridge. [ 2 ] The incident was impulsive and protracted, taking place over more than a brief period of time. A young woman who was about 21 at the time, very similar in age to Mr. Pratt, was riding her bicycle home from work as is her usual practice. It was in the evening, it was dark, perhaps approaching midnight. [ 3 ] She was riding along on the sidewalk and saw Mr.

Pratt weaving on the sidewalk, by which I think she was meaning staggering to the degree that she was uncertain as to where he was going to be, and she did not want to confront him on the sidewalk. She slowed down so that there was not going to be an accident. However, when she approached him, he stopped her bike by putting his foot in front of the tire.

She tried to get past him but he held onto the bike and ended up walking along the highway for a short period with her. [ 4 ] They got to a point where he then pushed her and the bike, because she was holding onto the bike, into a ditch and I believe he also fell into the ditch. That was the beginning of the assault where he was hitting her repeatedly.

She had been wearing a helmet but it came off and in the course of hitting her, he threatened her that he would kill her and stab her, although she was not at all certain that he necessarily had anything in the nature of a weapon with him. [ 5 ] He continued making statements to her about hurting her and basically convinced her that if she stopped resisting him that he would stop hitting her and threatening her.

She said she would, so they left the ditch, leaving the bike behind in the ditch. [ 6 ] They walked along the road, crossed the street, and walked some distance to the vicinity of the local animal hospital. During this

time he still had hold of her, basically directing her to the route that he wanted her to be walking. [ 7 ] At one point, they encountered somebody else and the complainant called out for help to this person, saying that the fellow she was with was attacking her, but the other person did not respond and simply walked by. They carried on and he started to beat her again and told her that she must not ask for help. She tried to scream, hoping that this other person would be close enough to realize she really did need help, but Mr. Pratt told her that if she continued screaming, he was going to kill her.

So she quietened down and they walked further into the driveway in the bush area behind the animal hospital. [ 8 ] He was hitting her, punching her in the head area, and then they got to a

part in the little forest that is adjacent to the parking lot. He punched her very hard in the jaw while continuing to tell her he was going to kill her. That possibly knocked her out for a brief period. She asked him to stop and then basically said she would do anything he wanted just as long as he stopped. [ 9 ] He at that point then took her further into the wooded area towards the cemetery. It seemed as though he was afraid that there would be police nearby. He could hear voices and worried that they might be police officers, but ultimately satisfied himself that they were not.

He then pulled her down and sexually assaulted her. [ 10 ] The sexual assault included fellatio and digital penetration. He was unable to have sexual intercourse with her although he tried. This carried on for some time. Some of her clothes were removed, including her boots and her pants. She ultimately convinced him to leave the area, that maybe there would be a house or somewhere more comfortable they could go to. This was in no sense consent on her part. This was her way of trying to think to save herself.

For her that was the strength she had that she was able to exhibit, and, notwithstanding the awful assault, was nonetheless able to keep herself in survival mode. The victory for her is she survived. [ 11 ] They ended up going to his house which was nearby. He carried her for part of the distance because her boots had been left behind. They got to the house. The garage door was locked but they went to the front door and when they opened the door, his mother answered the door. According to the complainant, she said, "Oh, who's this?

Why aren't you wearing any shoes?" Then she turned to her son and said, "Well, she can't come in because the kids are here" and closed the door on the complainant, telling her she had to go home. [ 12 ] The complainant left; she figured out where she was; she went and got her bike; she rode home and told her father. Her father understandably was very upset; the police were called and they went to the hospital where the investigation then began. [ 13 ] She knew where the house was that she had been taken to and she was able to provide the police with sufficient information that they located and identified Mr.

Pratt. [ 14 ] The police in the course of their investigation ultimately found DNA from her on Mr. Pratt and they located her boots and coats (her coat and Mr. Pratt's coat) and inside Mr.

Pratt's coat was a wallet with his name and identification. [ 15 ] A number of injuries were noted including marks, scratches and lacerations on her hands and wrists, bruising and discomfort to her jaw and right ear, a raised bump on the back of her head, multiple lacerations and cuts on her lower chin, a cut on the inside of her lower lip that was swelling and a large hematoma, lacerations and bruises on her arms, legs and middle back. In the course of the sexual assault examination, there was also evidence of forcible interference. [ 16 ] Mr.

Pratt has no memory of the incident and as a result a preliminary inquiry was held at which the complainant testified. Although she was cross-examined at that preliminary inquiry, it was not as extensive and intrusive as that cross-examination often can be. Nonetheless she was required to re-live it and re-state the events from that night. [ 17 ] Ultimately Mr. Pratt, in consultation with new counsel, re-elected back to Provincial Court and pleaded guilty to the offence, as charged. [ 18 ] Mr. Pratt recalls only that he was drinking a great deal that day and that he also had taken some ecstasy.

He really has little else in the way of memory about the incident. [ 19 ] He has been in custody on this matter since the day after the incident occurred. [ 20 ] For sentencing a number of reports were prepared including a pre-sentence report, a psychological report, and some psychological testing reports. [ 21 ] The conclusion in the psychological report is that based on the information presently available, it is the opinion of the writer that Mr. Pratt presents a relatively moderate risk of committing future sexual violence without any further therapeutic or legal intervention.

Due to the nature of the index offence and his report of the circumstances of his past offences, it appears that Mr. Pratt's moderate risk of re-offending sexually is influenced in large part by his substance use and impulsivity. Mr. Pratt's risk thus reflects the apparent opportunistic and impulsive nature of his past offences while he has been intoxicated. [ 22 ] Mr. Pratt has an unfortunate youth and adult record. He is now a few weeks short of being 21 years old, and a review of his record suggests that he has been on probation for essentially all of his life, starting at the age of 15.

His early offences were primarily related to motor vehicles, break and enters, as well as failures to comply, which continued throughout most of his Youth Court matters. He, however, also had convictions for assault including four in 2007 as a youth, and another in 2009 as an adult. He was on probation from a conditional discharge for that assault, which was his first adult conviction, at the time of this offence. [ 23 ] The Crown in its submission has emphasized three principles of sentencing being denunciation, specific deterrence, and protection of the public. [ 24 ] Counsel on behalf of Mr.

Pratt, while recognizing those principles, has emphasized rehabilitation of the offender as well.

[ 25 ] The reality is that this is a young man. He is not quite 21. He was 19 at the time of the commission of this offence.

However, he is a young man with a very, very, very challenging record and with a record that demonstrates his inability to manage his own behaviour and to comply with court orders that have been made undoubtedly from a rehabilitative perspective over the five years before this incident. [ 26 ] Crown counsel essentially says that it has all caught up to him now, that the aggravating factors in this case are so severe that while rehabilitation can never be ruled out entirely, that is not of sufficient importance here to outweigh the need for real denunciation of the behaviour. [ 27 ] In terms of aggravating factors, the level of violence including the threats and the psychological violence occasioned by those ranks high. [ 28 ] Secondly, this was an attack on a stranger.

These were two people who did not know each other. The complainant was going about her life in a totally correct and proper way and she ended up being horribly victimized. There was real risk of transmission of sexually transmitted diseases. The record of Mr. Pratt is aggravating.

The impact on the complainant as set out in the victim impact statement has been very significant for her in terms of her own liberty and freedom and her own I think fear and reluctance to even deal with the matter through ongoing counselling (and I suppose I do want to make the comment that I very strongly hope that she will get the counselling; it will help enormously) but having gone through a complete nightmare of a situation, it is taking her longer to be ready to accept the counselling. [ 29 ] It is, of course, recognized that the guilty plea is mitigating and Mr.

Pratt has also taken some fairly substantial steps to move forward in a rehabilitative way on his own behalf. [ 30 ] Counsel on behalf of Mr. Pratt argues that more emphasis should be put on rehabilitation and supervision within the community than would be the case with a significant federal jail sentence. [ 31 ] While the Crown is seeking a sentence of five to six years, defence counsel is submitting that two years plus a three year probation order would meet all the principles of sentencing and would recognize as well the steps that Mr.

Pratt has taken towards rehabilitating himself. [ 32 ] I am satisfied that Mr. Pratt is genuinely remorseful and regrets his actions of that night.

He has expressed that in several ways and I believe that to be genuine. [ 33 ] He has been in custody for some 17 months and during that time when he has been in institutions where programs are available he has availed himself of the opportunity to take those programs including the Substance Abuse Management Course and the Violence Prevention Program. [ 34 ] He is of aboriginal background and particularly through his aunt, although somewhat also through his mother, he has some connection with his aboriginal roots and has involved himself in some of their traditional activities. [ 35 ] He completed Grade 12, getting very good marks.

A transcript from the Ministry of Education dated July 2011 was filed which states that based on the information provided by the school, the student has satisfied British Columbia adult graduation requirements with honours standing as of April 2010. [ 36 ] He has never engaged with subsequent abuse counselling and treatment, but now wishes to do so. He is enrolled in the Distance Education System at Thompson Rivers University and is taking management and business courses. [ 37 ] His counsel is quite correct that he is not a lost cause.

He is an intelligent young man who, if he can manage to deal with his demons, has the potential for a solid and successful future. His counsel points to the guilty plea in mitigation and also his remorse. [ 38 ] Sentencing is much more an art than referring to a table to say "Well, if you did this and you did that, then you get this". It never works out that easily and it never meets all the needs of every person around. There is also a weighing that must take place between the individuals involved and the community and society as a whole.

There is a point at which people get more chances and there is a point at which chances for these behaviours are used up and they have to be started again. [ 39 ] There is no question that on the night of this incident Mr. Pratt was significantly intoxicated. That is clear even from the initial observations of him by the complainant. That did not make him more manageable. If anything, that may well have made him less predictable and made him scarier.

He had no ability ultimately to recall the events but they unfolded in an increasingly violent way to where the complainant felt she had no alternative but to be submissive if she were to stay alive. Even in the opportunities where she was trying to get help from the other person on the path or perhaps Mr. Pratt's mother, they all turned their backs on her. [ 40 ] I have been provided with a number of cases that set out the principles that I have referred to in these reasons and the principles all play a

part in my decision on this matter. [ 41 ] Mr. Pratt has proven himself to be enterprising and to be focussed. I hope that that is sincere and I hope that is something that he carries on with. He has the ability, but he has some extremely serious underlying issues to address. Up until this event, he had had some five years of supervision to address those in the community and it got nowhere. The reports speak of his strong family unit, but that family unit was well aware of his challenges and problems and provided no assistance to him whatsoever in his overcoming them.

In fact, it seems possible that they made it worse. [ 42 ] In reviewing the circumstances, the cases and the reports and other materials filed, I am in agreement that a significant period of custody is appropriate in this case. [ 43 ] The Crown is asking for a sentence closer to six years than five and without the submissions that I heard from counsel for

Mr. Pratt I would have had no difficulty doing that. However, given that Mr. Pratt has taken some steps on his own, although it is not going to be in a big way, there will be some recognition of them. [ 44 ] The sentence with respect to this matter before taking account of time already served is five years. It would have been six otherwise. He has served approximately 17 months in custody. I think the exact time is one year and 219 days. So the sentence with respect to this will be three years and 146 days.

That is too long a sentence for me to add a probation order, so there will not be a probation order, but you will be released with parole and parole plans. [ 45 ] Mr. Pratt, what I hope very much for you is that you do move forward with your educational plans and the counselling. Now that you have become more willing to disclose other matters regarding yourself, that those also get addressed.

Then you will truly be in a position to move ahead with the life that is waiting for you. [ 46 ] The other orders that I am making are, pursuant to s. 487.051, I am ordering a sample of your DNA be taken for the purposes of the DNA Databank. [ SOIRA ORDER] [ 47 ] Pursuant to s. 109 of the Criminal Code , I am prohibiting you from having in your possession any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance or any related authorizations, registrations or certificates for a period of ten years commencing with the date of your release from custody. [ORAL REASONS FOR SENTENCE CONCLUDED]