R. v. HPH Date:, 2012 BCPC 261

Citation: R. v. HPH Date: 20120606 2012 BCPC 0261 File No: 86403-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BAN ON PUBLICATION Pursuant to s. 486.4(2) Criminal Code of Canada REGINA v. HPH ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE de COUTO Counsel for the Crown: W. Wakabayashi Counsel for the Defendant: S. Rauch Place of Hearing: Port Coquitlam , B.C.

Date of Hearing: June 6, 2012 Date of Judgment: June 6, 2012 [ 1 ] THE COURT : As was mentioned at the beginning of today's sentencing proceedings, after a multi-day trial -- and I must say also after viewing carefully over and over again one of the exhibits, that is, the video surveillance of the incident -- I found you guilty on Counts 1 through 4 as they have been specified by the Crown, and not guilty of the last count. [ 2 ] In

summary, as was outlined by the prosecutor, you and the complainant had known each other from, as you and he referred to it, your juvenile detention days, and had, in the past from time to time over the years when in custody, asked to be placed together because you were able to get along and did in fact get along. As a result the two of you were, because you had asked for it and been accommodated, placed together in segregation as we heard in the trial. That aspect too makes these circumstances somewhat bizarre, but in any event that is what occurred.

It culminated in these proceedings [ 3 ] It was during that period of time in the late hours of this particular day, and it was all caught on surveillance. There was never at any time, although there was some reference made to it but no clear indication that you attempted to cover the surveillance camera to evade being found out, although you knew that it was there. It was apparent, and you conceded, with respect to the sexual assault aspect of it, that you used the pencil and also placed a pen to the neck of the complainant. [ 4 ] This occurred over a period of time until the Corrections officer came in.

It ended as suddenly as it began, if I can put it that way, when the Corrections officer produced two cigarettes. Shortly thereafter you walked out with him to have a smoke, although your demand to him upon his initial attendance was somewhat more, but even those demands, if I recall correctly from the evidence, of pizza, Coke and a transfer out was not anything outrageous. It was simplistic, as was the plan and as was the way the whole event unfolded. It was not by any means, I would think, sophisticated.

There was the element of danger in the sense that you held the pen to the complainant's neck and, as was pointed out, the complainant suffered some puncture marks to his leg, but they were not of any great significance. [ 5 ] However, from the perspective of the Corrections officer and the others who attended, the threat was very real.

The consequences and the potential consequences were very real and it was within an institutional setting where, as the courts have time and time again said, order and good government is essential to the everyday operation of such an institution and disruption of any kind has to be looked at gravely and considered seriously.

This was one of those instances. [ 6 ] As was pointed out by the Crown, there were questions in terms of the conduct of the complainant that even I, in the course of the trial, raised in terms of his reaction or lack thereof, but it could have been because as he had testified, he had himself previously been a sexual abuse victim. Whatever the reason may be, it would be speculative at this point in time. [ 7 ] With respect to the incident itself, however unsophisticated, it was serious and must be considered and taken seriously.

In saying that, I think one cannot at the same time ignore your individual particulars, your background. As importantly, your past criminal conduct and the fact as you mentioned on the stand in the course of the trial and once again today that you have been involved in the past in hostage-taking incidents, one which was real, one which was staged must also be taken into account. In each case it would seem the outcome was with minimal benefit to yourself.

Here, it was just two cigarettes, a criminal charge, and a civil lawsuit. [ 8 ] The initiation of that lawsuit is a factor here in that even before there was an actual finding of the facts and of guilt on your part, the complainant had commenced a lawsuit against yourself and others in authority seeking damages for what he had gone through. [ 9 ] I bear all those various elements in mind as I balance them with respect to those particulars as they relate to you. [ 10 ] I will start with the report prepared by the elders in the unrelated matter for which you are currently serving time as it appears to be a fairly comprehensive review of your background including your upbringing and life.

It is very apparent from reading it that you had a very difficult period of time in your youth growing up; the circumstances were quite tragic; your home life was dysfunctional; the impact of all of this fell on you, and I start from the very beginning of this multi-page report where it states on p. 2 that you: (

a) had never been in a residential school although your father had that experience; and (

b) since age five you have been in some 52 different foster homes, 24 group homes and experienced a measure of independent living. As a result, you have never had the experience being in a stable home enjoying stability in your life; and (

c) compounding that sentence of unsettlement is the reference here that you were sexually, emotionally, physically, and mentally abused by various foster parents and staff throughout that period of time. [ 11 ] With the combination of these factors, one cannot help but wonder what kind of a significant adverse psychological traumatic impact it must have had on you as a young boy growing up knowing nothing but that kind of an environment. [ 12 ] It says here that in addition to all of that not only were your parents alcoholics, but they were violent towards each other, and that that has been part of your observations in your very, very young years. [ 13 ] The report goes into some detail about the experience you had in a foster home and I think it is worth repeating what it says about that experience, and I am referring to p. 2 of this report prepared by the Elders where it says that: The foster home was of the Christian faith and if [HPH] [meaning you] did not worship their style, he would be denied food.

He would get physically punished or locked in a room for a couple of days. If they left visible bruises on his body [meaning your body], he would be kept out of school until they healed.

[ 14 ] I cannot imagine that kind of family life that you had to endure. It clearly impacted and reflected on your later years in the kind of life you ended up in. You never were in a school for longer than a month. At the time you had graduated from Grade 7, although I am told today that through your own initiative you have gone through and attained Grade 10 equivalency which I think is reflective of what you can accomplish.

As If that were not enough, it says here and as referred to by your lawyer you were diagnosed with Attention Deficit Hyperactivity Disorder, had problems with focussing and concentration. [ 15 ] At the top of p. 3 of the elders' report it states that after quitting school you had negative experiences and as a result of which, combined with not taking the medication prescribed for ADHD, you started to abuse drugs that led you to drug dependency.

It also resulted I gather in you committing crimes because you did not know any other way as a means to support your drug habit and buy those things you needed. [ 16 ] Regrettably and unfortunately, it led you down the wrong path and that path has continued to where you are today as you yourself mentioned: a life in an institution of one kind or another since then. That is what it says in the report.

After being incarcerated in a juvenile detention facility, you shared that the next 15 years of your life (and it continues it would appear) was a revolving door of crime, of using drugs and incarceration and that you have not been out of jail for longer than a month in the last 15 years.

So that is what you know, that is what you are familiar with, and that is your comfort. [ 17 ] This was not mentioned by either counsel, but it is in this report too, and it is somewhat disturbing, where it says on p. 3 under "Gangs" that you shared that you were a Red Alert gang member and that you were 18 when you were recruited. [ 18 ] The report then goes on to say amongst other things under the heading "Emotional" on p. 4 that while you have a motivation to heal, to learn, you feel that you have been institutionalized and that you do not have the skills to live in the real world, and I think that too is a reality that has to be considered here.

But in combination with these other aspects that interplay into the assessment of how you should be sentenced - if I can put it that way -- is that you are an impulsive person and that you are impulsive more so when you are high on drugs or intoxicated. [ 19 ] Although it would appear that there is a sense of spirituality that you wish to pursue at this point in time as set out in the bottom portion of p.4.

It mentions your spiritual focus and what you would like to do and what you intend to accomplish, and that is carried through to what you mentioned today. [ 20 ] Here is another harsh reality that I think we have to look at and I am looking at p. 5 under the heading "Employment". [HPH] you shared that you have never been employed. Your means of support has always been from the Ministry of Social Services and crime.

So it seems to me that that is a reality that also has to be addressed here. [ 21 ] Under "Observations" in the middle of the first paragraph, it is true that you have witnessed a lot of violence in your life but you yourself have been involved in a lot of violence in your life as the initiator of that violence. The majority of your life has been either in a home of some kind or incarceration.

If that was not enough, there is the mental health issue that has been mentioned by counsel. [ 22 ] When one considers all of these factors, and I have not even touched upon your criminal record yet, while the facts and circumstances in this case are relatively straightforward, the assessment and determination of what is a fit sentence here is a very complex question due to the complexity in terms of your background, your particulars, your upbringing, your witness to violence, but at the same time your own actions and conduct as well. [ 23 ] That leads me to your criminal record and it is lengthy.

It includes a series, and I mean series, of breaches of probation, breaches of undertakings and various kinds of breaches of court orders, although most recently that would seem to be some period of time ago, 2001. I suppose the argument can also be made that is because you have been incarcerated most of the time anyway. [ 24 ] So, looking at all of those factors, the question is, what is the practical confidence that one can have in terms of rehabilitation and integration here in these circumstances?

It seems to me that it will require a lot of hard work and exercise of discipline for a long period of time on your part to achieve even a semblance of ability to carry on in a society outside an institution. That is where you would like to be and no doubt we would all like you to seek that and for you to accomplish that. But it seems to me that the reality is that this will require a lot of hard work on your part and a lot of time.

The question is what happens however during the interviewing period of time given your past history and as you said, your institutionalization for the past 15 years except for three months. I think that is a significant factor here. While rehabilitation should not be totally dismissed, it is a long stretch. [ 25 ] I also look at the other aspects of your past criminal record and they include what I would suggest is a significant number of convictions for crimes of violence. In fact, you are now serving time for one such offence. So that is another realty that has to be considered here.

You have convictions of using a weapon, an imitation firearm, assault with a weapon, robbery using a firearm, et cetera, et cetera, et cetera. Those were what you did when you were outside in those few short months over the life span that you have so far. That is the equation that I have to consider. [ 26 ] As I said, the facts of the case are relatively straightforward. The complexity is in figuring out what is a sentence that is appropriate here. [ 27 ] I have considered the circumstances of R. v.

S.L.N., 2010 BCSC 405 , that was referred to by the Crown and it is true, as your lawyer said, that there are significant distinctions to be made between that case and yours. [ 28 ] There seems to have been, in terms of S.L.N.'s background a lot more violence, as well as in terms of the particular circumstances of the offence that she was sentenced on, and the case that was referred to. Even that involved some degree of violence as it involved a slash. [ 29 ] In this case, there was a degree of violence against the person too, in that a Corrections officer who, when he was engaged in an

exchange with you at one point in time, heard a grunt from the complainant because you had inserted the pencil much further into his anal passage. I think that is an element for consideration here. Rather than leave well enough alone, you took that extra step. [ 30 ] Ultimately, at the end of the day in terms of the consequences, it was over two cigarettes, a lawsuit that you now have on your hands, and these criminal convictions.

But there is also the added fact by your own admission which I think I have to also consider and that is that you have, previously been involved in hostage taking incidents within an institution in the past. I do not think that can be ignored in terms of denunciation and also deterrence. There has to be some kind of message. [ 31 ] I told you at the very beginning that conduct like this taking place in an institution must be considered very, very seriously.

They are directly in conflict with what is required for an institution to operate and run smoothly in the best of times with the most difficult of individuals, and that is why people like you are where you are. There has to be control, there has to be order, there has to be good governance, and it has to be emphasized and it has to be supported by the courts.

There has to be a strong, clear message that if you engage in this kind of behaviour, however unsophisticated it may be, how ever short in time it may be, that it will be considered seriously and the consequences will be severe because that is the message that has to go out and it seems to me that you fit the bill here. [ 32 ] Having said all of that, having considered all of these various factors including the prospect of rehabilitation down the road and your willingness to go through it all, I also bear in mind because I have made reference to it and I am fully aware of the fact that you are an aboriginal but that has to be balanced and weighed as is provided for in the Code with the other realities that I have referred to. [ 33 ] Were it not for the fact that the incident was relatively unsophisticated, were it not for the fact that the degree of violence was not as severe as it could otherwise very easily have been, I think the sentence that would be appropriate here would be far, far greater than that which I intend to now impose. [ 34 ] I must disagree with your lawyer in terms of a concurrent sentence because what you did on this particular day was totally unrelated in time and in circumstance to the sentence you are presently serving.

It is has nothing to do with it. It is entirely separate and as a result it is appropriate to impose a consecutive sentence. [ 35 ] I agree with your lawyer that the sentence should not be two-and-a-half years or more. I am satisfied that it should be less, but significant enough to send out a message to you and to others that in these circumstances it would in fact be not just fit but just and in my view that is an additional two year sentence. I think it should be global; I do not have any problem with that at all.

Accordingly, my sentence is going to be two years consecutive to what you are currently serving. [ 36 ] Sir, you are to provide a DNA sample, as I gather you are required to, under the relevant provisions of the Criminal Code in the least invasive manner for purposes of the DNA databank. [ 37 ] The victim fine surcharge is waived. (ORAL REASONS FOR SENTENCE CONCLUDED)