R. v. R.S.B. Date:, 2011 BCPC 173

Citation: R. v. R.S.B. Date: 20110510 2011 BCPC 0173 File No: 9050-A2 , 9081-C2 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.S.B. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D.R. GARDNER Counsel for the Crown: R. MacGowan Counsel for the Accused: G. Dykstra Place of Hearing: Abbotsford, B.C. Date of Judgment: May 10, 2011 [ 1 ] THE COURT : I found the accused guilty of aggravated assault from February 19th of 2010, also a breach on that same date, the breach being that he was not permitted to possess any weapons at the time of the offence.

I laid out the facts in quite a bit of detail in my reasons for judgment back on January the 6th, but some of it bears repeating. [ 2 ] This is a case where Cst. Deschenes and Cst. Wagner of the Mission RCMP were commencing a dinner break at the Boston Pizza. They arrived at 12:40 a.m. When they arrived they saw that a fight was in progress and they described to the court a very chaotic scene. I want to take a moment to commend the police officers for the actions they took that night.

They displayed a great deal of courage and devotion to duty in wading in on a situation where they were badly outnumbered, but they did what they were trained to do, and they entered the restaurant to quell the disturbance. [ 3 ] As Cst. Deschenes said in his evidence, there were 20 to 30 people fighting. The primary altercation was occurring at the end of the bar. The main aggressor was the accused and he saw the accused punching the victim, R.C., who was covering his face with both arms.

The accused was throwing punches with his right hand and the officer could see that the accused was punching R.C. in the face while holding a bar glass, and he saw the glass shatter in R.C.’s face. He then saw R.S.B. continue to strike R.C. in the face with the glass after it had broken. One blow struck R.C. in the forehead above the left eyebrow; the next blow struck him on the left side of the cheek area. The officer was understandably concerned that R.C. may then be struck by a broken glass in the neck area with possibly fatal consequences.

He then observed the blood gushing from R.C.’s nose and pouring onto the floor. [ 4 ] Cst. Deschenes yelled, "Police. Stop." He drew his sidearm as he believed Mr. Clark was in jeopardy of receiving serious or fatal bodily harm. This is the first time that Cst. Deschenes had drawn his sidearm in his four-and-a-half-year career and he testified that he was very close to pulling the trigger. At this point, R.S.B. apparently saw the constable and stopped striking.C. He still had the glass in his hand.

The officer then took the accused to the floor, and as depicted in the video, while he was in the course of this lawful arrest, he was kicked twice in the back by one of R.S.B.’s associates who then turned and walked away at a brisk pace. [ 5 ] The injuries to R.C. have been accurately described as horrific. He now has a permanent scar on his left cheek; he has another scar on his forehead. Several staples were required to stop the bleeding on the top of his head; 30 to 40 stitches were initially required for his facial cuts. He is now permanently disfigured.

He also sustained serious damage to his teeth; his two front teeth were fractured and had to be extracted. He has since required a great deal of dental surgery, including a bone graft.

[ 6 ] As set out in his victim impact statement, R.C. clearly still suffers from the effects of this aggravated assault. He has undergone a great deal of pain since then and understandably discomfort and embarrassment over the injuries to his face, and as he points out, he is employed in a situation where he requires to have his wits about him at all times but he is, once again, understandably having a great deal of difficulty in sleeping which undermines his ability to completely focus while at work.

That is why I have characterized this as a serious violent offence. [ 7 ] The defence has pointed out the accused is now 18 years of age. He has completed his grade 12 education and is now gainfully employed. He has asked the court to consider a community-based sentence and his counsel has pointed to the conditions of the Youth Criminal Justice Act which emphasize rehabilitation and accountability and states that the Act assumes that counselling and understanding are more likely to rehabilitate the accused and has argued that the rehabilitation is the prime ingredient for protection of the public in the future.

He points out that his client realizes the errors of his ways and is well on his way to rehabilitation and is willing to pay restitution. [ 8 ] Against that I have his evidence at the trial and the subsequent comments he made to the psychologist that interviewed him, and the youth court worker, where he demonstrates a lack of insight as to what caused the injuries to R.C. He says that he did not hear the police warnings at first but stopped immediately after hearing the constable's commands.

He stated he did not intend to inflict harm to the extent caused and in the moment saw it as a mutual fight as he feels the victim was fighting back. He denies the glass being broken and feels the evidence at trial supports this, a position that I reject, and once again did not seem to demonstrate any insight as to how R.C. suffered this injury.

Also does not acknowledge that R.C. was vastly outnumbered by an out-of-control group. [ 9 ] The Crown has asked the court to consider a sentence under s. 42 of the Act to make a custody and supervision order of six months in custody and a second period of three months community supervision. The Crown points to the provisions of the Youth Criminal Justice Act and refers the court to the principles, particularly in s. 3, and upon reading the sentencing provisions of the Act and its goals, rehabilitation is not the only goal of the Youth Criminal Justice Act .

They also speak in s. 3(iii) of the concern to "ensure that a young person is subject to meaningful consequences for his or her offence", and to prevent crime by addressing the circumstances underlying a young person's offending behaviour, as well as to rehabilitate young persons who commit offences and reintegrate them into society, but also speaks of timely intervention that reinforces the link between the offending behaviour and its consequences; that is, to promote a sense of responsibility in the offender. That is stated in s. 38(2) (

e) where it says that "the sentence must be the least restrictive sentence that is capable of achieving the purpose set out" in the Act, "be the one that is most likely to rehabilitate the young person and reintegrate him or her into society and," I emphasize, "promote a sense of responsibility in the young person and acknowledgement of the harm done to the victims in the community." [ 10 ] The Crown points to what, in their view, is a lack of mitigating factors in this case.

The accused has some things going for him, his youth, no problems on bail, but he has not demonstrated, in the Crown's submission, and I accept that, a great deal of remorse in this situation. The Crown also points to his two previous convictions for assault, one which occurred when he was 14 where it was a two-on- one fight where he and another punched the victim. The accused was punching the victim while the other accused was kicking him. He received a discharge for that. He was only 14 at the time.

He was also convicted in February of 2008, assault at a school and received 18 months probation. [ 11 ] Crown has also submitted that the accused has not demonstrated an understanding of the seriousness of the offence he has committed and is still clinging to the notion that he reacted reasonably in the situation. [ 12 ] My colleague, the Honourable Judge Gulbransen, in the case of R. v. P.N. , a decision dated January 18th of 2008, dealt with a somewhat similar circumstance.

I will begin with quoting what he said in paragraph 62: The next comment I will make is my reaction to this case, as opposed to anything counsel has said to me. Denunciation and deterrence would necessarily be a primary element of any adult sentence imposed on a case. My reaction to this kind of horrible crime would be to impose a denunciatory sentence. But the Youth Criminal Justice Act does not incorporate these two concepts as part of sentencing of a youth.

I must remind myself that I am not entitled, for example, to rule that an adult sentence must be imposed because it is necessary to include a denunciatory and deterrent element in my sentence. That would either be a circular argument or a meaningless argument and I cannot do that. I am just reminding myself of that because, as I say, I have just talked about how serious this offence was. [ 13 ] He goes on to say in the following paragraph: I must make my decision within the criteria as set out in s. 72(1) of the Youth Criminal Justice Act .

In my assessment, the purpose and principles of s. 3 and s. 38 of the Youth Criminal Justice Act can be applied in this case to impose a sentence of sufficient length to hold these two young persons accountable for their offending behaviour. There must, in my view, be an additional custodial term to reflect their high degree of responsibility and to take into account the extent of the harm done to the victim. This is an essential part of a sentence that will have a meaningful consequence for them.

The balance of the sentence will pertain to the continued rehabilitation and reintegration of . . . into the community without having to impose an adult sentence. [ 14 ] I have taken into consideration the facts of this case, the accused's background, the relevant case law that I have been referred to, and the submissions of counsel, and I have concluded that an appropriate sentence would be a sentence of six months open custody to be followed by three months of community supervision to be followed by a period of probation of 12 months. Just to be clear on the record, I have imposed that sentence under s. 42(2).

Furthermore, the conditions on his community supervision portion of the sentence will be as recommended in the pre-disposition report. [ 15 ] You are to report within 72 hours of his release to the Mission Youth Probation Office at 7364 Horn Street, Mission, B.C. and thereafter as and when directed by your youth court worker.

You are to reside as directed by your youth court worker and you are not to change your place of residence without prior written approval of your youth court worker. [ 16 ] You are to attend, participate in and successfully complete any counselling as directed and to the satisfaction of your youth court worker, which is to include, but not limited to, the Violent Offender Treatment program through Youth Forensic Psychiatric Services.

[ 17 ] You are to obey a curfew by being inside your residence between the hours of 10:00 p.m. and 6:00 a.m. daily, except with the written permission of your youth court worker to be outside of your residence, in which case you are to carry a copy of such permission on your person. [ 18 ] You shall present yourself to the front door of your residence to any peace officer or your youth court worker for the purpose of determining your compliance with the curfew conditions of this order. [ 19 ] You shall not possess any weapon as that term is defined in s. 2 of the Criminal Code .

You shall not possess any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. [ 20 ] You shall have no contact, directly or indirectly, with the complainant, R.C. [ 21 ] You are also to make restitution. I will make a stand-alone order of compensation to R.C. for his financial loss for dental and/or medical expenses in the amount $1,157.87. [ 22 ] The terms of the probation will be the same as on the community-based portion of his sentence. [ 23 ] Anything further, counsel? [ 24 ] MR. MACGOWAN: Nothing further.

Thank you, Your Honour. [ 25 ] THE COURT: Oh, one other condition I need to -- did I cover the restorative justice conference? [ 26 ] MR. MACGOWAN: I don't believe so. [ 27 ] THE COURT: I will do that now. You shall attend, participate in and successfully complete the Restorative Youth Justice Conference Program under the direction of and to the satisfaction of your youth court worker and the Restorative Youth Justice Conference facilitator. [ 28 ] You shall not attend within a 100-metre radius of the residence, school or workplace of R.C. [ 29 ] I interrupted you, Crown.

Is there another condition the youth court worker was seeking? Mr. McGowan? [ 30 ] MR. MACGOWAN: If we could just have a moment, Your Honour? [ 31 ] THE COURT: Go ahead. I should add that that applies, of course, to the aggravated assault. As for the breach, I will impose 60 days probation, the same conditions. [ 32 ] MR. MACGOWAN: Your Honour, in terms -- sorry. [ 33 ] THE COURT: Go ahead. [ 34 ] MR.

MACGOWAN: I was just going to say, in terms, just in speaking with the youth worker, and he reminded me of this and it's something that I did avert to with the recommended conditions, there are obviously other individuals that were named during the trial. In particular, R.S. who was convicted of assault arising out of these same circumstances in adult court, and S.G. as well was a name that was mentioned; he was the individual on top of the bar, kicking at R.C. S.G. has been sentenced in other proceedings on another matter and given a no contact order with R.S.B., so I ask for no contact orders with respect to S.

G. and R.S. as well with respect to this matter. [ 35 ] THE COURT: Any submissions on that? [ 36 ] MR. DYKSTRA: No, Your Honour, that's fine. [ 37 ] THE COURT: All right. There will be a no contact order with those two individuals on both orders. And could you just supply the spelling to Madam Registrar. [ 38 ] MR. MACGOWAN: Oh, sure, it's -- [ 39 ] THE COURT: You can do that in writing, in a moment. [ 40 ] MR. MACGOWAN: Certainly.

And the only other thing with respect to the conditions, with respect to the curfew condition, Your Honour noted present self to door; I was wondering whether Your Honour would include, or to the telephone. [ 41 ] THE COURT: To the door or telephone, yes. [ 42 ] MR. MACGOWAN: And just for Madam Clerk's benefit, the compensation order, that would be under s. 42(2) (

e) of the Act. [ 43 ] And the only other orders would be the ancillary orders, Your Honour, the two-year weapons prohibition pursuant to s. 51, and the DNA order as well. [ 44 ] THE COURT: Oh, yes, I meant to cover that. Thank you. I am also going to order he provide a sample of his DNA. [ 45 ] Also, under s. 109 I am prohibiting him from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of two years from the date of his release from custody.

__________________________ D.R. Gardner Provincial Court Judge