R. v. Betker Date:, 2013 BCPC 291

Citation: R. v. Betker Date: 20130828 2013 BCPC 0291 File No: 86276-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRYCE CODY BETKER ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE JANZEN Counsel for the Crown: W. Wakabayashi Counsel for the Defendant: J. Thorhaug Place of Hearing: Port Coquitlam , B.C. Date of Hearing: August 14, 2013 Date of Judgment: August 28, 2013

[1] THE COURT: Bryce Cody Betker was convicted on May 24th, 2013 of aggravated assault, contrary to s. 268(2) of theCriminal Code. [2] The assault took place on February 27th, 2010 at a West Coast Express station in Maple Ridge, British Columbia. The assaultwas unprovoked and there was no clear motive for the attack. [3] It involved Mr. Betker stomping heavily on the victim's head after he lay motionless on the ground.

The stomp was describedas like jumping to start a dirt bike. [4] Unfortunately, the victim, a young man with a partner and two children, suffered very significant injuries, including a facialfracture, numerous cuts and lacerations, haemorrhaging in both eyes, damage to his optical nerve, and most seriously in terms ofongoing impact, a severe grade 3 concussion. [5] Before the injury the victim was working in a physically demanding job and pursuing a post-secondary degree in education ona part-time basis with the plan of becoming a teacher. [6] At the time of the sentencing hearing, or three and a-half years after the assault, he has not yet returned to work and iscollecting long-term disability benefits.

He has also been unable to resume his studies. He suffers from ongoing symptoms of post-concussion syndrome including severe headaches, light sensitivity, difficulties multi-tasking, confusion, extreme fatigue, decreasedstamina, inability to complete physically strenuous tasks, and general cognitive impairment.

The prognosis for a full recovery isguarded. [7] The victim filed a victim impact statement in which he described the many ways that his injuries had impacted his lifephysically, cognitively, and psychologically as he was diagnosed with post-traumatic stress disorder shortly after the assault andcontinues to be treated for PTSD, depression, and anxiety. [8] The injuries have negatively affected his confidence and self-esteem, the nature of his physical and mental activities, hisrelationships with family members and, potentially, the scope of his future employment prospects. [9] Sentencing objectives are set out in the Criminal Code at s. 718.

Other courts have held that relevant objectives in cases likethis case of aggravated assault that involves senseless violence are denunciation and specific and general deterrence. [10] Mr.

Betker is almost 24 years old, 20 at the time the offence was committed, and has no criminal record, and so rehabilitation isalso a very relevant sentencing consideration. [11] While the attack appears to be uncharacteristic of him in that he has no record, he admitted to the individual who prepared thepre-sentence report that between 2006 and 2010 he had numerous contacts with police for fighting and drinking in public. [12] Mr.

Betker has utilized this very serious charge as a catalyst for making significant changes to his life including moving out ofhis old neighbourhood and ending his contact with negative associates, maintaining steady, full-time employment, and drinking moreresponsibly. He has renewed his ties with his supportive family. He has had no contact with the police since the assault and has abidedby his bail terms. He expressed remorse through his legal counsel. [13] Sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The offence isvery grave. It involved

an act of senseless violence perpetrated on a helpless victim who suffered serious and long-lasting harm as aresult. The consequences suffered by the victim in this case are heart-breaking, but no sentence will right the wrong that he has sufferedor restore the victim to his former state of health and strength. [14] While Mr. Betker was responsible for those injuries, the attack was not planned but was an impulsive act in the heat of themoment. Mr. Betker had no insight and could offer no explanation for why he stomped on the head of the defenceless victim when hewas lying motionless on the ground.

The circumstances suggest that his only motive was to show off. Regrettably, his actions had tragicconsequences. [15] Sentences must also be similar to sentences imposed on similar offenders who have committed similar offences in similarcircumstances. [16] I was referred to a decision of the B.C. Court of Appeal in R. v. Craig, 2005 BCCA 484 that considered this principle in cases ofaggravated assault.

The Court wrote at para. 10: [10] It is not disputed, and it appears clear on the cases, that a sentence of two years' imprisonment for the commission of aggravatedassault (which is the sentence that was effectively imposed by the judge) is at the low end of the range of sentences imposed on similaroffenders in similar circumstances (R. v. Chana (1998), (BC CA), 115 B.C.A.C. 159, [1998] B.C.J. No. 2458 (C.A.)at para. 6). The range of sentence for similar offences was described as being between 16 months and six years in R. v.

Johnson (1998), (BC CA), 131 C.C.C. (3d) 274 (B.C.C.A.), two years less a day to six years in R. v. Biln, [1999] B.C.J. No. 1411,1999 BCCA 369, and, most recently, between 18 months and six years in R. v. Willier, [2005] B.C.J. No. 1746, 2005 BCCA 404. Indetermining an appropriate sentence within this broad range, an unprovoked attack with a weapon tends to result in the imposition of asentence at the higher end while a consensual fight that has escalated with resulting injury tends to result in a sentence at the lower end.See in particular: R. v. Willier, at para. 22, and R. v.

Johnson, at para. 10. [17] In this case, the Crown recommended a sentence of 15 to 18 months in jail, followed by a term of probation of two years.

[ 18 ] The defence argued that as a conditional sentence order was no longer available, a jail term between 90 days that could be served intermittently over a period of approximately a year, and a term of one year in jail, was appropriate. [ 19 ] In the Craig case quoted from above, the sentence imposed for a vicious premeditated assault with a knife on the common law wife of the accused resulted in a sentence of three years including his time spent in remand or two years less a day of additional time followed by a two year period of probation. [ 20 ] I was also referred to the case of R. v.

E.J.S. , 2005 BCSC 1353 in which the accused was sentenced to a jail term of two years for the lesser offence of assault causing bodily harm for a stomp to the head following a consensual fight that was started by the victim.

This case involved a fight in a prison setting and an accused with a significant criminal record. [ 21 ] While these cases provide guidelines that the Criminal Code requires me to respect, each case presents its own unique matrix of facts and each offender presents his own unique personal circumstances to which I must apply the sentencing principles. [ 22 ] In this case, I must in particular take the progress that this offender has made towards his rehabilitation into account. Mr.

Betker is a young man with no criminal record who has already taken significant and sustained steps to ensure that he will not commit an offence of this nature or any criminal offence again. [ 23 ] Stand up, Mr. Betker. [ 24 ] I have concluded that a fit and appropriate sentence is 15 months in jail to be followed by a term of two years' probation. These will be the terms of the probation order: 1. You will keep the peace and be of good behaviour. 2.

You will report to a probation officer at 2610 Mary Hill Road, Port Coquitlam, B.C. within 48 hours of your release and then report as and when directed by your probation officer. 3. You will provide your residential address to your probation officer and not change it without the prior written consent of your probation officer. 4. You shall have no contact, direct or indirect, with Michael Mandzuk. 5.

You shall attend for such counselling or programs as directed by your probation officer that may include anger management counselling or the ten-week violence prevention program component of Community Corrections Core Programming and you must complete such counselling or program to the satisfaction of your probation officer. 6. You shall not possess any weapons as defined by the Criminal Code including knives, except for the immediate preparation or consumption of food, or as required by your employment and then only at your place of employment. 7.

You must perform 30 hours of community service work, ideally involving serving those who live with a disability, as directed by your probation officer, and to be completed to the satisfaction of your probation officer. [ 25 ] I also impose a mandatory weapons prohibition under s. 109(2) of the Criminal Code and an order for DNA testing, pursuant to s. 487.051 of the Criminal Code . [ 26 ] MS. WAKABAYASHI: Your Honour, with respect to the no contact, I think at the end of my submissions I had included some other names. I am wondering if Your Honour was prepared to consider those other individuals as well.

They included the people that testified at the trial as well as the common law of the victim. Those would be Susan Plihal, Ashley Ostrom, Nikki Whitford and Ryan Whitford. [ 27 ] THE COURT: Yes, I am prepared to extend the no contact to include those other individuals. [ 28 ] MS. WAKABAYASHI: Thank you. [ 29 ] MR. THORHAUG: I guess one thing I could say with respect to the s. 109, the mandatory, he has no firearms and no licence so there's no problem there. I talked to him about that. [ 30 ] THE COURT: Good. [ 31 ] MR.

THORHAUG: I guess the only other procedural issue is may I ask the Court to waive the victim fine surcharge. He is going to be at Her Majesty's pleasure for a substantial period of time. [ 32 ] THE COURT: Yes, I will waive that. [ 33 ] MR. THORHAUG: Good. I think that's all. (ORAL REASONS FOR SENTENCE CONCLUDED)