R. v. Wernicke, 2023 BCPC 227

Citation: R. v. Wernicke 2023 BCPC 227 Date: 20231026 File No: 92735-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. BRADLEY WERNICKE ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G.J. BROWN Counsel for the Crown: B. Oros Counsel for the Defendant: D. Schultz Place of Hearing: Abbotsford , B.C. Date of Hearing: August 31, 2023 Date of Judgment: October 26, 2023

INTRODUCTION [ 1 ] On July 28, 2019, Bradley Wernicke struck Wayne Versfelt five to ten times on the head and back with some part of a machete at a homeless camp in Abbotsford. Mr. Versfelt sustained head trauma with an elongated skull fracture some 17 centimetres in length, multiple lacerations to the head, and an amputated ear that was later reattached. Mr. Versfelt still struggles to look at himself in the mirror. [ 2 ] I am sentencing Mr. Wernicke for committing aggravated assault of Wayne Versfelt, contrary to section 268(2) of the Criminal Code .

The matter proceeded by indictment. [ 3 ] The Crown is seeking a four-year jail sentence, whereas the defence submits two and one half years is appropriate. This was a vicious assault, but the sentencing is difficult because Mr. Wernicke has completely turned his life around since this shocking event. THE OFFENCE [ 4 ] Counsel agreed to certain facts for the purposes of sentencing. Around 10:00 pm on July 28, 2019, Emergency Health Services received a report that Mr.

Versfelt had been assaulted at a homeless camp across from the Mennonite Central Committee Centre in the 33900 block of Gladys Avenue in Abbotsford. [ 5 ] Paramedics arrived at the camp and treated Mr. Versfelt’s injuries. He had multiple lacerations to the left side of his head which exposed scalp and matter, a bisected left ear, and a two-inch stab wound to his left upper shoulder. Mr. Versfelt was transported to the Abbotsford Regional Hospital and was ultimately placed in the intensive care unit where he was sedated and put on life support.

His breathing tube was removed on July 30, 2019, and he was eventually discharged from the hospital sometime before August 6, 2019. [ 6 ] More specifically, Mr. Versfelt suffered a deep to the bone, elongated skull fracture 17 centimetres in length which was adjacent to a massive internal scalp bruise. There were multiple lacerations adjacent to the skull fracture, a deep left cheek laceration, and a laceration to his left upper shoulder blade. There was a significant laceration to his left ear which was partially amputated and reattached. Many staples and sutures were required to close wounds. [ 7 ] Mr.

Versfelt said that on July 28, 2019, he got into a verbal altercation with Mr. Wernicke over the day’s donations. Mr. Versfelt did rap Mr. Wernicke on the shins with a stick to get his attention, and Mr. Wernicke was upset. Mr. Wernicke pulled out bear spray, and Mr. Versfelt retrieved a shovel to protect his face. [ 8 ] Rebecca Bird, Mr. Wernicke’s girlfriend, told both men to stop and walk away. No physical altercation then occurred. [ 9 ] Later in the evening, Mr. Versfelt was sitting with a group in the corner of the homeless camp, and he heard someone say he better watch his back.

He next recalled being attacked from behind with no opportunity to fight back. He felt pain on his head and saw Mr. Wernicke standing over him with a machete. [ 10 ] A witness named Harvey Clause said the attack happened when it was dark. Mr. Wernicke approached Mr. Versfelt from behind and attacked him. The weapon was about one and a half feet long, and it appeared Mr. Wernicke was hitting Mr. Versfelt with the flat part of the weapon. [ 11 ] When Mr. Versfelt was first struck, Mr. Clause saw blood splatter. Mr. Wernicke struck Mr. Versfelt five to ten times on the head and back. After Mr.

Wernicke struck Mr.Versfelt several times, he left momentarily and came back to strike Mr. Versfelt a few more times. Someone said it was enough and pulled Mr. Wernicke off of Mr. Versfelt. [ 12 ] Mr. Wernicke left the scene with his girlfriend. Keith Fry later heard Mr. Wernicke say something like, “I think I did something bad” and “It’s bad, it’s bad.” At the time, Mr. Wernicke claimed self-defence. [ 13 ] Defence counsel points out that these facts need to be put in context. Mr. Wernicke’s actions were fuelled by crystal meth, causing him to have feelings of paranoia.

His girlfriend was very vulnerable, and Mr. Wernicke had been pushing her in a shopping cart due to her difficulty in walking. He thought he was protecting his girlfriend. This also was not a stranger attack. Nevertheless, Mr. Wernicke takes full responsibility for this unprovoked attack and nothing excuses his conduct. VICTIM IMPACT [ 14 ] In the Presentence Report, Mr. Versfelt said the assault had a very negative bearing on his life. He described the injuries he sustained as outlined above.

He can remember the moment when a police officer handed the paramedic his ear before they left for the hospital. [ 15 ] Due to the trauma he suffered, Mr. Versfelt wound up with a speech impediment and stutter. This stutter greatly affected his confidence, but after three to four months his speech recovered. [ 16 ] Mr. Versfelt struggles to look at himself in the mirror. His pseudonym at the hospital was “Frank” but he changed it to “ Frankenstein ” once he saw himself in the mirror with the staples and stitches. [ 17 ] In his Victim Impact Statement, Mr.

Versfelt stated that he had recurring nightmares and sweats, feeling like he was still fighting for his life. He had some 250 sutures and stitches and over 60 staples to his head and face. He suffered from very painful headaches for about half a year, and had balance issues. [ 18 ] In court, Mr.Versfelt said he is still reliving this case and it haunts him. He has ongoing anxiety and still does not like to see himself in the mirror.

THE OFFENDER [ 19 ] Defence counsel submits that Mr. Wernicke has completely turned his life around in recent months. [ 20 ] The Presentence Report from April of this year indicates that Mr. Wernicke is 39 years old and he had a normal upbringing. Mr. Wernicke has two older children, one who is now 21 and one who is 11. Mr. Wernicke’s sister took care of the oldest child, and Mr. Wernicke no longer has contact with his 11-year-old child as there was an incident with the mother resulting in a peace bond. Mr. Wernicke has a third child who was born in 2020, and Mr.

Wernicke’s mother took custody of that youngster. [ 21 ] In the Presentence Report, Mr. Wernicke’s sister, Scarlett Penner, expressed that Mr. Wernicke would distance himself from family when active in substance abuse, creating strain on the family. Due to his instability and homelessness in the past, he could not care for his children. [ 22 ] The Presentence Report indicates that Mr. Wernicke started experimenting with crystal methamphetamine at age 19 in 2003. By 2008, he was struggling with cocaine use and heavy drinking. He became homeless in 2013.

He had a period of sobriety in 2016 when he attended Trilogy House. He relapsed two years later after being prescribed pain medication for a shoulder injury and after associating with negative peers. The offence occurred in 2019 when he was deep into his addiction. [ 23 ] Mr. Wernicke has an extensive criminal history dating back to early 2002, including youth matters. He had two assault convictions in 2003 and uttering threats in 2015. [ 24 ] The Presentence Report states that: Bradley has maintained consistent housing with built in rehabilitative programs and supports since June 20, 2022.

Bradley first stayed at the Launching Pad (an addictions rehabilitation society) where… it was expressed that he displayed a desire to leave his old lifestyle behind. [ 25 ] Mr. Wernicke then moved to first and second stage housing with Back On Track Recovery. People are moved to second stage housing only if they have demonstrated that “they go above and beyond.” Mr. Wernicke got along well with others and had good participation and attendance in programming. [ 26 ] Mr. Wernicke’s sister said in the Presentence Report that things seem truly different in comparison to the last time her brother was sober.

He displays a reliability not previously seen. In her letter, she said he is a completely new person with sprinkles of the gentle brother she once knew. He has removed himself from the people of his past and is focussed on family and recovery. [ 27 ] Mr. Wernicke has had employment as a window installer and transitioned to a moving company. Although he previously struggled maintaining employment due to his addiction and criminal involvement, he completed a warehousing program in October of 2022. [ 28 ] Mr. Wernicke has been sober since May of 2022, over 17 months. He is on the Methadone Program.

Alvin Benigno from Launching Pad wrote that Mr. Wernicke “has shown himself willing to leave his old lifestyle behind” and he has “been very helpful in assisting us with chores around the facility.” Mr. Nair from Launching Pad stated that Mr. Wernicke demonstrated humility and willingness in his recovery process. Mr. Wernicke openly expressed remorse for the character he was in addiction, and he was described as kind, gentle, intelligent and hardworking. [ 29 ] Mr. Wernicke also is working with Dr. Bradford from an opiod agonist treatment clinic. [ 30 ] At page 7 of the Presentence Report, Mr.

Wernicke expressed remorse for the harm caused to the victim. He did not expect the damage to the victim to be as severe as it was. He expressed accountability for his actions. He was struggling with addiction, and was stressed with the care of his partner who was in a wheelchair and about to give birth to their son. He has attempted to atone for his actions through addressing his addiction. [ 31 ] Mr. Wernicke spoke in court and said he was very emotional when he heard of Mr. Versfelt’s injuries. He wanted to share insight without garnishing sympathy. His healing was based on a foundation of accountability.

At the time of the offence, he had sunk so low: digging into trash, using dirty needles and almost passing away due to overdoses. His actions on July 28, 2019 were inexcusable. He has since taken many steps to get and stay clean. It was a miracle that he was pulled out of misery, and he realizes the Court has a duty to uphold justice for everyone, no matter their station. SENTENCING PRINCIPLES [ 32 ] Under s. 718 of the Criminal Code , the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

Just sanctions imposed shall have objectives including denunciation, general and specific deterrence, separation of offenders from society where necessary, rehabilitation, reparations for harm done, and a promotion of a sense of responsibility in offenders, acknowledging the harm done to victims or the community. [ 33 ] Under s. 718.1, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 requires the court to take into account aggravating or mitigating factors. AGGRAVATING AND MITIGATING FACTORS [ 34 ] The following are mitigating factors in this case: 1. Mr. Wernicke pled guilty to this offence on January 25, 2023. This matter was first set for trial in May of 2022 but Mr. Wernicke failed to attend. Although not an early guilty plea, it has saved Mr. Versfelt from having to testify and the Crown from having to prove its

case. This is a big factor. 2. Mr. Wernicke is now doing very well despite earlier setbacks. Prior to June of 2022, Mr. Wernicke was missing court dates and not reporting due to homelessness and addiction. Since mid 2022, he made great strides when released on strict bail terms to The Launching Pad. 3. Since June16, 2022, he has been on strict bail terms including electronic monitoring, attendance at a recovery facility, and a curfew. 4. He has expressed great remorse for his actions. [ 35 ] The following are aggravating factors in this case: 1. Mr. Wernicke caused bodily harm using a machete as a weapon. 2. Mr.

Versfelt was unarmed and unsuspecting. 3. The incident was one of unrestrained violence, and Mr. Wernicke came back again to further attack his victim. He had to be pulled off of the victim. 4. The wounds and injuries to Mr. Versfelt were significant and life threatening. He still feels the effects to this day, and evidence that an offence had a significant impact on a victim is a statutorily aggravating factor under s. 718.2(a)(iii.1) of the Criminal Code . 5. Mr. Wernicke fled the scene, showing no regard for the welfare of Mr. Versfelt. 6. Mr.

Wernicke has an adult criminal record starting in 2002, and he was convicted of two assaults in 2003 for which he received jail time. His most recent offence was uttering threats in March of 2015, some time ago. SENTENCING RANGE [ 36 ] In R. v. Hurtado , 2012 BCCA 47 , the offender came up behind the victim with a box cutter and slashed the victim’s throat. Some 40 to 50 stitches were required, and the victim had a scar running from one side of his neck to the other. He also experienced intense headaches. The offender was 22 years old and had a record for violence.

Our Court of Appeal found that where there is unrestrained violence, coupled with stalking and a surprise attack, the low end of the range for aggravated assault is more than two years and the upper end is about eight years. Denunciation and deterrence are the most important factors. The appellate court gave deference to a five year, two month jail sentence less time served. [ 37 ] The Crown submits that four years is appropriate for Mr. Wernicke, given the progress he has made while on strict bail.

The present case is similar to Hurtado in that it was an attack from behind with a weapon, resulting in serious injury. It could be argued that the violence here was more prolonged as Mr. Wernicke came back a second time to deliver more blows. [ 38 ] The defence points out that the Hurtado case started out as an attempted murder charge, and the offender there was a drug dealer with a propensity for violence. Unlike Mr. Wernicke, Mr. Hurtado had not turned his life around. [ 39 ] In R. v.

Adamec , 2021 BCSC 1832 , the offender was convicted of aggravated assault after trial and given a five year, four month jail sentence. The offender, without warning, stabbed the victim in the chest in a residence. The knife penetrated 5.7 centimetres, slitting the brachiocephalic vein. The victim collapsed and struck his head. He suffered an inter-cranial bleed and a craniotomy was required. The offender was 26 years old, had substance misuse, and a record for violence.

The aggravating factors mirrored this case in that there was use of a weapon, the victim was unarmed and unsuspecting, and the injuries were life threatening. [ 40 ] The Crown in the present case seeks a lower sentence taking into account the guilty plea and rehabilitative steps taken by Mr. Wernicke. I also note that Mr. Adamec showed a lack of insight and no remorse for the victim. However, Mr.

Wernicke’s attack was more prolonged. [ 41 ] Defence counsel submits that Adamec differs from the present case in that the offender there showed no insight or genuine remorse, and there was much less in the way of mitigating factors. Mr. Adamec had a serious and related record. [ 42 ] In R. v. Nguyen , 2016 BCCA 408 , the offender attacked the victim in a nightclub after the victim acted inappropriately with his girlfriend. The offender struck the victim on the head from behind, knocking him to the floor. Many more punches to the head and kicks to the body were delivered.

The victim sustained a concussion, a fractured sinus, broken orbital bone and fractured vertebra. Lacerations to the head required 60 stitches. The offender was remorseful, had no record, and was unlikely to reoffend. Aggravating factors similar to the present case included an attack from behind without warning, the great force used, continued strikes after the offender was motionless, and the serious injuries. A jail sentence of two years less one day was upheld. [ 43 ] Unlike Mr. Wernicke, Mr. Nguyen had no record and used no weapon. Also, the victim instigated the assault by his conduct towards Mr.

Nguyen’s girlfriend, and there was no planning. Defence counsel indicates that the Nguyen case was unusual in that there was a suspect character reference letter, but when one considers this case and others, the sentencing range for aggravated assault certainly could start lower than two years jail. [ 44 ] In R. v. George , 2014 BCSC 1944 , Mr. George received a four-year jail sentence for an aggravated assault. Mr. George attacked a drug dealer with a meat cleaver, striking the victim seven times on his head. The offender had a record for violence, substance misuse, and was 35 years old.

This case is similar to the present case in that the attack was unprovoked, from behind, and involved a weapon. The victim suffered long lasting effects from his injuries. However, the offender there had a more serious criminal record than that of Mr. Wernicke. [ 45 ] In R. v. Whitman , 2006 BCSC 865 , the offender received a three-year jail sentence for stabbing a victim in the neck. The victim

had earlier called the offender a “goof,” a particularly insulting term in the downtown eastside. The injuries were life threatening. Mr. Whitman had a criminal record that included aggravated assault and assault causing bodily harm. [ 46 ] In R. v. Craig , 2005 BCCA 484 , the offender attacked his separated spouse with a fishing knife, stabbing her at least three times in the lower abdomen and inflicting cuts to her hands. Like the present case, the attack was unprovoked and the victim was unsuspecting. The injuries were severe, and the woman had impaired function in her hands.

The appellate court increased the sentence from one year to three years jail. SENTENCE [ 47 ] There was a small discrepancy in the calculation of time served, and I will accept defence counsel’s submission of 60 days actual time served, equating to 90 days or three months of enhanced credit. [ 48 ] This was a vicious assault, and when I consider the case law and sentencing principles discussed above, the Crown’s position of four years jail is not unreasonable. However, I am tempering the jail sentence to reflect the rehabilitative steps taken by Mr. Wernicke while recognizing the serious harm done to Mr.

Versfelt. [ 49 ] The jail sentence will be three years and three months, less three months time served, leaving a remaining jail sentence of three years. [ 50 ] The ancillary orders are: 1. Pursuant to s. 109 of the Criminal Code , you are prohibited from possessing: a. any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for life; and b. any prohibited firearm or restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. 2.

Pursuant to s. 487.051(1) of the Criminal Code , I authorize the taking of samples of bodily substances from you while you are in custody for entry in the DNA databank. 3. Pursuant to s. 743.21(1) of the Criminal Code , you must have no contact or communication with Wayne Versfelt, Harvey Clause, Charidee Friesen, Keith Fry, Shelly Harder, and Mary Stewart while you are in custody. 4. Pursuant to s. 491(1) (

b) of the Criminal Code , the weapon seized shall be forfeited to the Province. 5. Pursuant to s. 743.2 of the Criminal Code , these reasons and any other necessary reports will be forwarded to the Correctional Services of Canada. [ 51 ] I am exempting the Victim Fine Surcharge based on undue financial hardship. ______________________________ The Honourable Judge G.J. Brown Provincial Court of British Columbia