R. v. J.P.B. Date:, 2012 BCPC 29

Citation: R. v. J.P.B. Date: 20120105 2012 BCPC 0029 File No: 86032-2C Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JPB ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE DOSSA Counsel for the Crown: L. Berman Counsel for the Accused: M. Fox Place of Hearing: Port Coquitlam , B.C.

Date of Hearing: January 5, 2012 Date of Judgment: January 5, 2012 [ 1 ] THE COURT : The accused, JPB, pleaded guilty to one count of assault causing bodily harm to Manan Espina (phonetic) arising from an incident on December 31st, 2010 at North Fraser Pre-trial Centre, contrary to s. 267(6) of the Criminal Code . [ 2 ] I have reviewed the pre-sentence report, the psychological assessment of Dr. LaTorre, the victim impact statement, photographs of the surveillance video and of the injuries to the victim, and the letter from the Programs Officer at Fraser Regional Correction Centre with respect to the accused.

I have also heard the submissions of counsel and reviewed the case law provided. [ 3 ] The incident occurred in the C-Pod at North Fraser Pre-trial Centre. The inmates were having breakfast. There was a Correctional guard present sitting behind the duty desk.

The victim Espina was new to corrections and had been admitted in December 2010. [ 4 ] There is no evidence that the accused and the victim had any issues prior to the incident and this was investigated by Corrections because it was alleged by the accused that this was one of many attacks planned on the victim. [ 5 ] Photographs from the surveillance video shows that the accused was near the microwave at 8:10 a.m. The substance used to throw on the victim was already in the microwave.

[ 6 ] The victim is seen having breakfast with other inmates and two minutes later the accused is seen taking the container from the microwave, walking past the victim, and throwing the liquid at the victim. The victim is seen covering his face. The accused is seen repeatedly punching the victim in the face and head. The victim is seen running and the accused follows and continues to throw punches.

The accused stops when the Correctional Officer yells at him to get off the victim. [ 7 ] The Correctional Officer then called (indiscernible) and other officers entered. [ 8 ] Three other inmates were treated for burns and one Correctional Officer slipped and fell on the liquid while running after the accused. The Unit was in lockdown until 7:15 p.m. [ 9 ] The victim was taken to Health Care and hot butter was smelled on him. The victim suffered second degree burns to his face, forehead, neck, lips, and left cheek, including blistering of the skin.

He suffered serious drainage issues around his left ear, his eyelids were swollen as a result of an infection. He had difficulty eating. [ 10 ] In his victim impact statement he said that he is more emotional and nervous, feels less confident and is depressed. [ 11 ] The accused has a criminal record with 17 property related offences, 14 breaches of and/or failures to comply, six driving while prohibited offences, two drug offences, possession of a weapon, bear spray, three offences of uttering threats, and four offences of flight from police or resisting arrest.

His record is as a youth from 2001 and then as an adult from 2005 to 2010. [ 12 ] The accused was sentenced on February 15th, 2011 to four-and-a-half months. He served three-and-a-half months and the sentence expired on March 15th, 2011. He was detained on this matter. [ 13 ] The accused spent most of 2010 in custody at KRCC and has been in and out of custody. Most of the time he was in segregation or on an enhanced supervision program because of issues with staff and breaches of the rules. He was transferred to North Fraser Pre- trial Centre on November 18th, 2010 because of bed load issues.

On December 2nd, 2010 he was asked whether he wanted to transfer to a different cell block and he refused. On November 8th, 2011 he was transferred to Surrey Pre-trial Centre. [ 14 ] His client log while at Corrections was filed in evidence. The accused is 25 years old; his childhood was difficult; he was abused by his father and stepfather; was in foster homes; and observed his mother being sexually assaulted. He has a grade 11 education and some employment experience in labour-type jobs. He has mental health issues including personality disorder and substance abuse disorder.

His response to Corrections has been poor and Dr. LaTorre is of the opinion that he minimizes his violence and that he presents a relatively high risk of future violence when acting out, even in jail. [ 15 ] Defence counsel pointed out that the accused's criminal record for violence is minimal. The accused completed a violence prevention program in July of 2011. [ 16 ] Defence counsel submits that the accused states the reason he committed the act was because he was pressured into doing so by other inmates.

He submits that although the evidence is insufficient to raise a defence of duress, the Court can take it into account as a mitigating factor. [ 17 ] Defence concedes that from the surveillance video the attack was unprovoked and that there was no risk that the victim was going to punch the accused. [ 18 ] Defence submits that there is no evidence of a prior relationship or altercation or a reason for the assault. He submits that the accused had a difficult time in prison. After the assault, he was in and out of segregation and assaulted by a guard at FRCC.

Charges are being considered against both the guard and the accused, but this is post-offence and not directly relevant. [ 19 ] Crown counsel referred to the case of R. v. Loo , [2008] B.C.J. No. 397 where the accused was sentenced to one year for his participation in an assault while in custody. The accused was a party to an offence and not the primary assailant. The victim sustained bruising. Mitigating factors were the age of the accused who was 26, aboriginal, and there was a delay of nine months between the event and the trial.

The majority of offences the accused had in his past record were theft offences, but he did have some convictions for assault. At para. 13, Pothecary P.C.J. stated that the Court cannot condone inmates who do not follow the rules and regulations of prison and act out aggressively. [ 20 ] In R. v. J.F.S. , 2005 BCPC 73 , the accused was sentenced to three years for an aggravated assault. He was 19 years old.

In that case, the accused attacked the victim, a prison official, after he entered his cell, hitting him in the head and knocking him backwards against a steel door rendering him unconscious for five minutes and the victim received a kick to the head. Motivation for the assault was the accused being asked to clean up some pencil marks off the wall. The accused had a record for assaults. [ 21 ] In R. v. Nelson , 2006 BCPC 102 , the accused was sentenced to three years for assaulting an inmate in a holding cell. The victim was beaten while he was intoxicated and vulnerable.

He was kicked in the head and body and head-butted. The beating lasted for seven minutes. The victim did not suffer any permanent injury, but his nose was virtually torn from his face and required plastic surgery. In para. 5 of the judgment it is noted that the location of the offence was an aggravating factor because it took place in full view of Corrections Officers who saw the incident on surveillance cameras and in the presence of a number of witnesses. This was an aggravating factor because of the need to generally deter others from committing acts of violence in jail were inmates are vulnerable.

The Court said that the accused was not deterred by Court orders (he was on probation), witnesses, and surveillance cameras and three years was a minimum sentence. [ 22 ] In R. v. R.T.B. , [2005] B.C.J. No. 2140 , the accused who was 20 years old was sentenced to five years for his participation in an assault while in custody. The assault was a group assault and the victim was left unconscious and required surgery. The accused in that case had a long record and was on probation at the time of the offence.

The mitigating factor was the guilty plea and there was no evidence that the victim would suffer long-lasting effects from the injuries. The primary principle on sentencing was deterrence. A co- accused in that case received four years.

[ 23 ] Defence counsel referred to the case of R. v. Allen , 2010 NWTSC 95 which he says is similar to the case at bar. In that case, the Court imposed a jail sentence of 18 months for an altercation where the accused struck an inmate in the face with a mug of hot coffee. The victim sustained second degree burns to the face and shoulder. The accused was a young aboriginal man and had no record for assaultive violent behaviour and was remorseful. There are more aggravating factors here in that the accused also repeatedly punched the victim. [ 24 ] The defence also referred to the case of R. v.

Domke , 2006 ABPC 252 . The accused was a guard at a remand centre and entered a guilty plea to four counts of possession for the purpose of trafficking. The accused was 24 years old. He had brought contraband into the jail and then was subject to extortion to bring other drugs into the jail or be ratted out. The Court considered duress as a mitigating factor in sentencing. [ 25 ] Another decision is R. v. Johnson , 2002 Ontario Superior Court of Justice where it is stated that duress circumstances in mitigation must be proven on a balance of probabilities.

The Court usually treats these kinds of cases with a healthy scepticism but in that case the Court found that the degree of mitigation was reduced in the circumstances of the case. [ 26 ] Crown counsel referred to the case of R. v. Anderson , 2005 BCSC 1681 where D. Smith J. (as she then was) dealt with offenders who participated in a prison riot. At para. 19, she stated that "… a claim of duress may not be considered as a mitigating factor when determining an appropriate sentence.

The difficulties of prison culture, as challenging as they may be at times, are insufficient to negate an offender's individual responsibility for his actions". [ 27 ] Defence counsel submits that in that case there was no explanation or any reference to case law. [ 28 ] In this case, even if I was to consider whether duress may be a mitigating factor, I find that there is no reliable evidence before me, and no affidavit or sworn evidence before me of duress.

The victim entered Corrections two to three weeks before the incident; the attack was unprovoked; the accused punched the victim for some 30 seconds after throwing the hot liquid at him. There is the accused's assertion of duress but an investigation did not find there was any basis for it. [ 29 ] Defence counsel also referred to the case of R. v.

Wage , (phonetic) Chilliwack Registry No. 581961-1, August 29th, a decision of Dickie P.C.J., for the Court to consider 1.5 to 1 credit pursuant to s. 719(3) where he held the accused be given one-and-a-half to one credit because of the lack of remission of parole that he would be entitled to if the one-to-one credit was applied. In that case, Dickie P.C.J. referred to the decision of R. v.

Johnson , 2011 Ontario Court of Justice that credit can be increased to 1.5 to 1 if the circumstances justify it. [ 30 ] Crown counsel submits that the delay in sentencing was occasioned by the accused since the case was adjourned a few times to obtain counsel.

She submits that the accused's failure to abide by the regulations resulted in him failing to earn remission while in custody. [ 31 ] I am satisfied that in this case the circumstances do not justify increased credit for time served and that the credit should be one- to-one. [ 32 ] In this case, there are a number of aggravating factors; the nature of the incident itself being captured by surveillance cameras showing this was an unprovoked attack, and I find that the accused was not assaulted by the victim.

The victim is seen seated with other inmates when the accused threw hot liquid at him after waiting at the microwave. The attack was brazen in front of guards and surveillance cameras and the accused punched the victim repeatedly after that. The attack was dangerous to both staff and inmates and has rendered the victim vulnerable. [ 33 ] As stated by Pothecary P.C.J. in R. v.

Loo , supra , at para. 13 the Court cannot condone inmates who do not follow rules and regulations of prisons and act out aggressively. [ 34 ] Specific and general deterrence and denunciation of the offence are paramount principles that must be considered together with the accused's rehabilitation and protection of staff and inmates. [ 35 ] The accused has entered a guilty plea which is a mitigating factor. He is young and has had a very difficult childhood.

He has mental health issues and does not have a record for violent offences although his compliance and attitude in jail has been poor. [ 36 ] Taking into account the aggravating and mitigating factors and the circumstances of this case, I am satisfied that an appropriate sentence is 18 months jail less the time served to be credited at one-to-one. [DISCUSSION BETWEEN COURT AND COUNSEL RE TIME SERVED] [ 37 ] THE COURT: So the sentence will be 18 months less credit of six months.

There will be an additional 12 months in jail therefore. [ 38 ] As this is a primary designated offence, there will be an order pursuant to s. 487.04 (

a) of the Criminal Code that the accused provide a suitable DNA sample while in custody. [ 39 ] There will be a mandatory weapons prohibition pursuant to s. 109 of the Criminal Code for a period of ten years. [ 40 ] The victim fine surcharge is waived since the accused is in custody. [ORAL REASONS FOR SENTENCE CONCLUDED]