R. v. Eustache Date:, 2013 BCPC 248

Citation: R. v. Eustache Date: 20130619 2013 BCPC 0248 File No: 96033-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAYDEN MICHAEL ROBERT EUSTACHE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.C. DICKEY Counsel for the Crown: Ms. C. Elliott Counsel for the Accused: Mr. D. Campbell Place of Hearing: Kamloops , B.C. Date of Hearing: June 19, 2013 Date of Judgment: June 19, 2013

[ 1 ] THE COURT: Jayden Michael Robert Eustache appears before me having entered a guilty plea on the aggravated assault of Ivan Styles back on January 24th, 2013. He also entered a guilty plea to a second count, that of breach of a probation order by being in possession of a weapon which arises out of the same incident as the assault. [ 2 ] The circumstances as set out by the Crown is that the witness became aware of the victim knocking on her window at approximately 1:35 a.m. on the day in question. The victim, Mr.

Styles, was complaining at that time of having suffered some injuries and, as a result of that, he was taken to hospital. The police were then contacted by hospital staff and attended and spoke with Mr. Styles. Mr. Styles stated that he had been attacked by three young men. He was able to provide a location of where this occurred. [ 3 ] He had suffered some injuries including two stab wounds to his abdominal area. Those stab wounds were approximately two centimetres in width. He had suffered a traumatic hernia.

His liver was penetrated and was bleeding and he had several litres of blood throughout his abdomen. [ 4 ] The police attended to the area in which Mr. Styles says this matter occurred which was close to a Husky station on Columbia Street. They began their investigation and started to talk to a number of witnesses in the area. [ 5 ] The evidence came out that it was Mr. Styles and a Ms. Hunt who had a relationship. Mr. Styles is developmentally disabled. He has difficulty in processing language and difficulties in making good judgments with respect to other people. This led to a relationship he had with Ms.

Hunt. [ 6 ] It appears that Mr. Styles and Ms. Hunt met at the church of the Jehovah Witnesses. Ms. Hunt, unfortunately, fell from that church-going lifestyle and she goes to abuse drugs. She also began to use Mr. Styles for the purposes of obtaining money. On the night in question, Ms. Hunt had contacted Mr. Styles in an attempt to obtain money and they agreed to meet at the Husky gas station. [ 7 ] Ms. Hunt at this point in time was with a number of other individuals including her boyfriend. There were three other males. One of those males was Mr. Eustache.

There was some expression of concern within that group of the relationship between Mr. Styles and Ms. Hunt. My understanding of that concern is that Mr. Styles is significantly older than Ms. Hunt, that Mr. Styles at one point in time had proposed to Ms. Hunt to enter into an engagement and also attempted to provide her with a ring. [ 8 ] Ms. Hunt, her boyfriend, and Mr. Styles met and there was an exchange of money. Mr. Styles provided Ms. Hunt $100. They then walked away from Mr. Styles, at which point in time, the three other males then approached Mr. Styles and attacked him.

There had been prior discussion with respect to a code word which would be used for when the attack was to start. My understanding is that occurred. [ 9 ] There was also some discussion with respect to a robbery, by one of the witnesses, but there is no evidence of any robbery occurring in these circumstances. [ 10 ] The circumstances of the attack is that one of the individuals put Mr. Styles into a headlock and the other two males, one of which is Mr. Eustache, punched Mr. Styles on each side. [ 11 ] At one point, Mr. Eustache pulls out a knife and stabbed Mr. Styles twice.

The evidence of the defence, and it appears that the Crown certainly does not oppose this, is that, in fact, Mr. Styles appears to have been getting the better of the three males that had attacked him. Mr. Styles, from what I understand, is significantly larger than the three other individuals and was defending himself quite well in the situation [ 12 ] Following this attack and knifing, all of the males leave and it is at this point in time that Mr.

Styles then goes to the witness' apartment and knocks on her window. [ 13 ] The Crown says the aggravating circumstances is that there was planning and premeditation. The evidence is that Mr. Eustache got this knife that was used from a Mr. Tarpey, one of the other assailants, and that he obtained this as he was walking towards Mr. Styles. Further aggravating factors include that it was three against one, and that it was a gratuitous form of violence. [ 14 ] The circumstances of Mr. Styles is that he worked at a Denny's Restaurant as a dishwasher.

He was able to look after himself, but clearly was developmentally disabled and required guidance from his parents. [ 15 ] There was some evidence that Mr. Eustache was under the influence of drugs or alcohol on the night in question. [ 16 ] The Crown referred me to the criminal record of Mr. Eustache. There is only one conviction for violence and that was an assault causing bodily harm back on December 12th of 2011. He received a sentence of 12 days secured custody, six days community supervision, and a probationary period of 18 months.

He also appears to have received a further 12 days, although it is not clear whether that is consecutive or concurrent. It was at a time when Mr. Eustache was still a youth. [ 17 ] He has many convictions for failing to comply with court orders and, beyond that, he has simply two mischiefs for which, on the last conviction of December 17th of 2012, he received a sentence of one day. The sentence of 12 days appears to be the most time that Mr. Eustache has spent in custody until this point. [ 18 ] Crown relied on two different cases. The first is R. v. P.U.H. , [2012] B.C.J. No. 1288 .

This is a decision of Judge Hicks from this court. In that case, I note that the victim was stabbed 13 or 14 times receiving stab wounds to the neck, face, chest, shoulder, arm, and hand. Three of the wounds were to the torso just under the heart. [ 19 ] The Crown relied on this case for the principle that in cases of unprovoked, random, and gratuitous violence, that the fundamental concern of the court and the objectives of the court in sentencing are denunciation and general and specific deterrence

(para. 31). [ 20 ] The court also noted at paragraph 32 that rehabilitation is a relevant consideration in the case of a youthful offender. In the decision of P.U.H. , the accused was 22 years of age at the time of sentencing. [ 21 ] The court did note that they considered the most aggravating circumstance was that of the repeated stabbing. This was a situation in which the accused was also convicted of robbery and a second assault. [ 22 ] In this case, the accused or the offender was given credit for 18 months' presentence custody and an additional 18 months incarceration was imposed.

That was concurrent between the different offences. [ 23 ] The second case that the Crown relied upon was R. v. Suris , [2010] B.C.J. No. 2288 . The court reviewed a number of decisions and sets out as a general proposition that the range for aggravated assaults is between two and six years, and the range is usually determined by the seriousness of the offence (para. 14). [ 24 ] The Crown also provided me with a victim impact statement and argued that the effect clearly on Mr. Styles has been profound. As a result of this particular offence, he has moved away from the jurisdiction and also away from his parents.

I am advised that he still is frightened and does not trust other people. [ 25 ] Crown's position is that an appropriate sentence in the circumstances is one of three years and asks for ancillary orders for DNA and a s. 109 ban on weapons. [ 26 ] Counsel for Mr. Eustache on the issue of the circumstances advised that it was apparent that the victim in this matter had a very childlike appreciation of life, that he was a lonely and solitary individual who appears to have been drawn to this relationship with Ms. Hunt. [ 27 ] The position he put forward is that the three males who attacked Mr.

Styles are all quite slight in build while the victim is six- foot-seven-inches and quite strong. He says that Mr. Eustache pulled the knife out in the midst of the assault and stabbed the victim. This occurred only after the victim was striking Mr. Eustache and the others. He describes the knife being pulled out at a point when the fight was out of hand with respect to the three attackers. No one had realized that Mr. Styles would be so good at defending himself. [ 28 ] I am advised by Mr. Eustache's counsel that there was a significant amount of drinking before the assault.

He says that there was a couple of 26ers and three to four 40 ouncer's that were consumed by this group of five. He says that Mr. Eustache may suffer from FASD and that was apparent within the presentence report. [ 29 ] Mr. Campbell, on behalf of Mr. Eustache, puts forward that an appropriate sentence in this matter is between 18 months and two years with a lengthy period of probation. His argument is that this would keep Mr. Eustache out of a federal institution and would allow him to receive counselling and treatment once he enters back into the public. His argument is that some controls on Mr.

Eustache will be of assistance to him and residential programming may be of some assistance to him once he is released from custody. [ 30 ] Mr. Campbell provided me with two cases. The first is R. v. Ali , 2010 CarswellMan 49 . This was a case in which there was a conviction for aggravated assault for punching and kicking a 15-year-old victim. That victim suffered a broken jaw and the offender was sentenced to one-year imprisonment to be served conditionally concurrent with 60 days and a conditional sentence for uttering threats. [ 31 ] Mr.

Eustache is not seeking a conditional sentence order in the circumstances. One would not be available to him as the Crown has proceeded indictably and it is a serious personal injury offence. [ 32 ] The other case that the defence relies upon is R. v. Peters , 2010 CarswellOnt 152 . This was a case in which the offender broke a beer bottle over the complainant's head. In these circumstances, the sentencing judge imposed a suspended sentence and three years' probation. Crown had sought a custodial period of 12 to 18 months.

It was appealed and it was unsuccessful. [ 33 ] The circumstances of the two cases that the defence has provided to me certainly can be distinguished, but what they do provide is that the range which was talked about in R. v. Suris is one which is not written in stone. The appropriate sentence will always be dependent upon the circumstances of the offence and of the offender. [ 34 ] Mr. Eustache spoke to me at the end of the sentencing hearing. He advised me that he was attending and continues to attend Alcoholics Anonymous.

He advised me that, and there is some evidence of this within the presentence report, that he has written an apology letter to the victim in this matter and that was done very shortly after he was arrested on this matter. He advised me that he did realize the impact of what he had done. He has now been in custody for a total of 39 days. [ 35 ] I have read the presentence report and it sets out that Mr. Eustache has come from a somewhat difficult background. It does have a Gladue component within the presentence report and Mr.

Eustache appears to come from paternal grandparents who -- at least the grandmothers were both subjected to the residential school system. Both died from complications arising from long-term alcohol addiction. The belief of the mother is that the experiences of her mother at residential school severely impacted her parenting skills and this affected Mr. Eustache in his upbringing. [ 36 ] I have also reviewed the sentencing principles found in ss. 718 to 718.2. Clearly, the most significant factor according to the case law is denunciation and deterrence.

I am also very cognizant, however, that we are dealing with a very young man here. At the time of this offence, Mr. Eustache had just turned 19 and continues to be 19 at the time of his sentencing. [ 37 ] In looking at his record, it is clear that Mr. Eustache is a long ways away from a situation in which we simply put him in custody for the purposes of protecting the public. We are not in that type of situation. We are clearly within a situation, however, where the sentence needs to reflect the denunciation and deterrence both to Mr.

Eustache and also to others within our community that this type of activity and behaviour will not be condoned.

[ 38 ] Keeping all of that in mind, the fact that this is a very serious offence, I also have to and do place great weight on the fact that Mr. Eustache is not an individual who this court is prepared to put into a federal penitentiary at this point in time. To some extent, I would look at it as this court giving up to some extent on the rehabilitation aspect of Mr. Eustache. [ 39 ] Rehabilitation is too significant of a factor at this young man's age and I still have optimism, and I hope he does, that he can make some significant changes in his life.

The longer he spends in jail, the less likely it is that he will be successful with that rehabilitation. [ 40 ] I also find that it is in the community interest that Mr. Eustache, at the end of the controls placed on him by this court, be a productive member of society, one who provides a productive lifestyle to not only his community within Kamloops, but also to his First Nations community. [ 41 ] I do accept that this was a situation that was alcohol-fueled and that Mr.

Eustache is an individual who commits criminal offences when he is under the influence of alcohol. [ 42 ] I also conclude that the Gladue principles do apply and I refer specifically to s. 718.2(e). [ 43 ] I do find that he is remorseful. Clearly, he has made comments within his presentence report that minimized his actions, but at the same time, I also accept that he was prepared to provide an apology letter almost immediately following this incident to the victim. [ 44 ] In all of the circumstances, I find that the appropriate sentence is a jail sentence of 20 months.

He will be given credit for 39 days in custody, but it will be an additional sentence or a new sentence of 20 months at this point in time. [ 45 ] Madam Clerk, do we have our usual terms for probation? [ 46 ] THE CLERK: No, I am sorry. I do not have the [indiscernible]. [ 47 ] THE COURT: Just a second. [ 48 ] THE CLERK: [Indiscernible]. [ 49 ] THE COURT: Thank you. [ 50 ] I also will place Mr. Eustache on a two-year probationary order.

There will be the mandatory conditions. [ 51 ] You shall report in person to your probation officer here in Kamloops, B.C., within 72 hours from your release from custody, and you shall thereafter report as and when directed by your probation officer and in the manner directed by your probation officer. [ 52 ] Upon your first attendance at your probation officer, you shall advise your probation officer of your present residential address and not change that address without first receiving the written consent of your probation officer. [ 53 ] You shall obey a curfew by being inside of your residence, for the first year of your probation, between the hours of 10:00 p.m. to 6:00 a.m. each day, except as follows: with written consent of your probation officer, such consent is to be given only for compelling personal, family, or employment reasons; and when travelling directly to or returning directly from your place of employment or while in the course of such employment.

You shall provide your probation officer with the written proof of employment if requested to do so. [ 54 ] You shall present yourself at the door of your residence when any peace officer or probation officer attends there for the purposes of determining your compliance with the curfew condition of this order. [ 55 ] You shall have no contact or communication directly or indirectly with I believe it is -- it is Ivan Styles, right? [ 56 ] MS. ELLIOT: Yes. [ 57 ] MR. CAMPBELL: Yes. [ 58 ] THE COURT: With Ivan Styles. [ 59 ] What are the names of the other individuals involved? It is Ms. Hunt, I cannot remember Ms.

Hunt's first name? [ 60 ] MR. CAMPBELL: Justine. [ 61 ] MS. ELLIOT: Justine Hunt -- [ 62 ] THE COURT: Yes. [ 63 ] MS. ELLIOT: -- Kelsey Fraser which is K-e-l-s-e-y, Fraser -- [ 64 ] THE COURT: Yes. [ 65 ] MS. ELLIOT: -- Kevin Tarpey, T-a-r-p-e-y [indiscernible]. [ 66 ] THE COURT: Okay, there is -- yes, okay. So there will be no contact directly or indirectly with Justine Hunt --sorry, Kelsey Fraser? [ 67 ] MS. ELLIOT: Yes, it is Justine Hunt, Kelsey, K-e-l-s-e-y, Fraser --

[ 68 ] THE COURT: And Kevin Tarpey. [ 69 ] MS. ELLIOT: -- Kevin Tarpey and the one I missed was Allen Warden, W-a-r-d-e-n. [ 70 ] THE CLERK: And Allen? [ 71 ] MS.

ELLIOT: A, double L, e-n, and Warden. [ 72 ] THE COURT: You shall not attend at any known place of residence, schooling, or employment of Ivan Styles, Justine Hunt, Kelsey Fraser, Kevin Tarpey, or Allen Warden. [ 73 ] You shall not possess or consume any alcohol or any controlled substance within the meaning of the s. 2 of the Controlled Drugs and Substances Act except as prescribed for you by a physician. [ 74 ] You shall not enter any liquor store, beer and wine store, bar, pub, lounge, or other business premise from which minors are excluded by the terms of their liquor license. [ 75 ] You shall provide your probation officer with proof of your attendance at no fewer than two meetings of Alcoholics Anonymous each week. [ 76 ] You shall not possess any weapon as that term is defined in s. 2 of the Criminal Code of Canada. [ 77 ] You shall not possess any knife outside of your residence except for the purposes of preparing or eating food or for purposes directly and immediately related to your employment. [ 78 ] You shall attend, participate in, and successfully complete any assessment, counselling, or program directed by your probation officer.

Without limiting the general nature of this condition, such assessment, counselling, or program may relate to anger management, alcohol or drug abuse, and may include a full-time attendance program for alcohol or drug abuse. [ 79 ] There will be the two ancillary orders.

You are required to provide a sample of your blood for the purposes of providing a sample of your DNA pursuant to s. 487.051 of the Criminal Code of Canada. [ 80 ] You are also prohibited pursuant to s. 109 of the Criminal Code from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance for 10 years. [ 81 ] Ms. Elliot, anything further? [ 82 ] MS. ELLIOT: No, Your Honour, except to direct a stay of proceedings on Count 3. [ 83 ] THE COURT: Okay. Mr. Campbell? [ 84 ] MR.

CAMPBELL: Just in terms of Count 2, that sentence should be reflected. [ 85 ] THE COURT: Oh, yes. The sentence with respect to Count 2 will be one of 30 days and it will be concurrent and the probation order will attach also to Count 2. [ 86 ] MR. CAMPBELL: Thank you, My Lord -- Your Honour. [ 87 ] THE COURT: Mr. Eustache, you understand what has just happened?

Just stand up, please. [ 88 ] THE ACCUSED: Yes, I do. [ 89 ] THE COURT: Okay, so the sentence is -- it is a further 20 months, I am giving you credit for the time that you have already spent in custody and then, when you get out, you need to attend to your probation officer. It is for two years, some strict terms, but I am trusting you that what you have told me is what you want to do, change your life, stop using alcohol -- [ 90 ] THE ACCUSED: Yes, Your Honour. [ 91 ] THE COURT: -- and continuing to develop.

The one thing I put in there, I do not always do it, but I put in there was your attendance at AA. [ 92 ] THE ACCUSED: Oh. [ 93 ] THE COURT: You have done that in the past. You have told me it helps you.

I think it is really important. [ 94 ] THE ACCUSED: Well, I will just have my sponsor call my probation officer to confirm that. [ 95 ] THE COURT: Yes, you know what, and you -- certainly that is one of the ways that it can be done, but talk to your probation officer and there is different ways of doing it. [ 96 ] THE ACCUSED: Okay. [ 97 ] THE COURT: I know that there is concerns with AA with confidentiality, privacy of the individuals who attend -- [ 98 ] THE ACCUSED: Yes.

[ 99 ] THE COURT: -- but usually there is a way to do it. [ 100 ] THE ACCUSED: Okay. [ 101 ] THE COURT: Okay. [ 102 ] THE ACCUSED: Thanks. [ 103 ] THE COURT: So I think that is critical for you. [ 104 ] THE ACCUSED: Yes, Your Honour. [ 105 ] THE COURT: I know the help that can be provided by AA, it keeps you on track.

I went to an AA meeting about six months ago and it was amazing and there was -- the person who I attended for, it was his 26th anniversary and there was a number of individuals who got up and spoke and talked about how long that they had remained sober and it was, to a large extent, because of their attendance -- their regular attendances at AA meetings. They were there to support each other and I think that would really be of significant assistance to you. [ 106 ] So you have started. It sounds like you also are in agreement that they have helped you out to this point.

Just continue to do it because, you know, you are always going to be an alcoholic. [ 107 ] THE ACCUSED: Yes. [ 108 ] THE COURT: You are going to be an alcoholic until the day you die. So it is something that you cannot just let slip. You need to deal with it on a daily basis. [ 109 ] THE ACCUSED: Yes. [ 110 ] THE COURT: Okay? [ 111 ] THE ACCUSED: Yes, Your Honour. [ 112 ] THE COURT: Good luck. [ 113 ] THE ACCUSED: Thank you. [REASONS FOR SENTENCE CONCLUDED]