R. v. Compton Date:, 2015 BCPC 395

Citation: R. v. Compton Date: 20150206 2015 BCPC 0395 File Nos: 78817-1, 78957-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CAMERON ALEXANDER COMPTON ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: J.A. Gaudet Counsel for the Defendant: J.D.A. Watt Place of Hearing: Nanaimo , B.C. Date of Hearing: February 6, 2015 Date of Judgment: February 6, 2015

Introduction [ 1 ] THE COURT (Orally): Cameron Alexander Compton is before me on two separate indictments. The first is on Court File 78817-1. Count 1 of that indictment alleges that on or about 22 June 2014, that Mr. Compton (who I will refer to as the "Offender") did have in his possession property, a motorcycle, of another individual of a value in excess of $5,000, knowing that the property was obtained by commission in Canada of an offence punishable by indictment. That charge is contrary to s. 355 (

a) of the Criminal Code . [ 2 ] In addition, on Court File 78957-1 in which Crown has proceeded by way of indictment, the Offender has entered a plea of guilty on Count 3, which is an allegation that on 11 June 2014, at or near Nanaimo, he did, with intention to enable himself to commit an indictable offence, did attempt to choke, suffocate, or strangle a victim identified as C.H.; that is contrary to s. 246 (

a) of the Criminal Code . [ 3 ] Parenthetically, Count 1 on Information 78817 was a matter to which Mr. Compton also entered a plea of guilty. [ 4 ] Then on the 78957, Count 4 is an allegation that the Offender, on or about 11 June 2014, did commit assault causing bodily harm of the victim, C.H., contrary to s. 267 (

b) of the Criminal Code . [ 5 ] Count 5 of that file is an allegation that Mr. Compton did have in his possession a motor vehicle of another individual of a value not in excess of $5,000, knowing that the said motor vehicle was obtained by the commission in Canada of an offence punishable by indictment, again contrary to s. 355 (

b) of the Criminal Code . [ 6 ] Having entered guilty pleas on each of those offences, Mr. Compton is before me for the purposes of sentencing. It should be noted that the matter was originally set today for a preliminary inquiry. However, about approximately a week ago, defence informed Crown that the matter would be before this court for disposition. Therefor Crown was able to de-notify its witnesses for the preliminary inquiry with respect to the matters on File 78957-1.

Circumstances of the Offences [ 7 ] With respect to the possession of stolen property of the motorcycle on 22 June 2014, Crown has outlined the circumstances with respect to that offence. No issue is taken with respect to the circumstances. I find them to be the facts, and they are sufficient to support the plea as well as a finding of guilt with respect to that offence. [ 8 ] Essentially, the police were called to a motor vehicle accident - as it turned out, a motorcycle accident. The driver of the motorcycle, which had apparently crashed, was the Offender.

He was badly injured and, as I understand it, suffered a broken femur. Through the police investigations, they determined that the motorcycle had been recently stolen and had been apparently repainted. [ 9 ] The facts of the other offences again have been outlined by way of circumstances asserted by the Crown. There is some issue with respect to some of those circumstances. I will make note of those as I proceed. [ 10 ] What is not in dispute is that the victim, C.H., was driving on a rural road south of Nanaimo, British Columbia, on or about June 11, 2014, when she stopped her vehicle.

There is some issue taken as to the reason for that stopping, but nonetheless it is clear that she did stop her motor vehicle at approximately 1:30 a.m. [ 11 ] She was by herself. She heard another vehicle approach. There is an issue as to whether or not any discussion took place between the Offender and the victim, but nonetheless, at that point, the victim was choked by the Offender. What is admitted by the Offender is that he did choke the victim.

She was rendered unconscious as a result of the choking and that she did suffer medical injuries which were described by Crown. [ 12 ] The actual injuries that were sustained were described by Crown and, as I understand it, accepted by the Offender as follows: multiple scrapes and abrasion to knees and elbows; multiple markings on the victim's neck.

There was no facial fracture or injury to the jaw; however, there were observable facial marks. [ 13 ] The victim was able to fight off the Offender, and notwithstanding the fact that she had been rendered unconscious, by her account about three times during the attack, she was able to drive back to the residence from which she had recently departed in order to gain assistance and report the matter to the police. [ 14 ] An investigation ensued. A sketch was prepared which was circulated widely within the community.

Reports were received by the police identifying the Offender as the person who was pictured in the sketch. The police investigation continued such that the police were able to obtain what is described by Crown as “throwaway DNA” of the Offender and to make comparisons to DNA found on the clothing of the victim, which matched. As a result, this led to the arrest of the Offender. [ 15 ] As part of the circumstances of this case, Crown also provided the victim impact statement which was provided to the Court orally by Crown.

The victim was, at the time of this offence, a young person of approximately 17 years of age. Apparently she was active in sports and had played ice hockey. She describes in her victim impact statement the fact that she felt that she lost consciousness, as a result of the choking, three times during the incident. She indicated that she suffered significant injuries, as I have previously described.

She also indicated that as a result of sustaining those injuries, that she continues to have what she described as post- concussion-like symptoms; these presumably resulted from her head coming in contact with the roadway during the attack. More importantly, she indicated that she has had some life-changing events as a result of the attack. [ 16 ] She is now a first-year university student. She has difficulty dealing with focusing and with her memory. She indicated that she has problems both in concentration and focusing in terms of completing her studies. She has problems with her sleep.

She also has indicated that she feels uncomfortable about being out late by herself in the community and has other continuing emotional difficulties as

a result of this attack. [ 17 ] I think it is significant that the victim in this case was able to attempt to ward off the Offender by resisting and by utilizing her physical prowess to escape any further assaults upon her. She is not a large person by stature but apparently was able to put up what could be described as an admirable defence to the attack. [ 18 ] The circumstances which have been admitted to by the Offender in this case must also be referenced.

The important point which has been raised by the admissions of the Offender in this case is that the Offender says that there was no ulterior motive to the attack nor any ulterior purpose to the attack other than to attempt to steal the car of the victim.

In other words, the concerns that may have been expressed by the victim that she felt she was being dragged towards the Offender's car are specifically not admitted by the Offender nor is the feeling of the victim that there was an attempt on his part to place her into the trunk of the Offender's vehicle. [ 19 ] Accordingly, I am accepting for the purposes of these reasons the admissions that are being made by the Offender as to the injuries sustained and supported by the medical evidence: the choking and the fact that the victim was rendered unconscious.

Circumstances of the Offender [ 20 ] The Offender does have an admitted record. The record that is admitted references back to some custodial time that was served by the Offender preceding the charges that have been laid in this matter. That was in connection with the theft of a motor vehicle or possession of a stolen motor vehicle. The Offender did custodial time for that particular offence of a relatively short duration.

I understand it was his first involvement with the criminal courts; up to the time of having that matter dealt with, he had never apparently been before the courts on criminal charges. [ 21 ] The Offender was 20 years of age at the time of the offences presently before me. He is now 21. He has been held in custody for a significant period of time. He has been in jail for approximately four months, initially awaiting the preliminary inquiry with respect to the offences on court file 78957. He is connected to and has family in the Greater Nanaimo area. He has a limited work record.

I understand that he has worked previously for a major construction company. Apparently he has job opportunities to work with a family member out in Port Alberni on a fishing boat upon his release. [ 22 ] His relationship with his mother and with his grandmother is described as a good relationship and close. [ 23 ] He apparently has undergone a significant addiction to crystal methamphetamine. That has been the cause of his involvement in thefts of motor vehicles and possession of stolen property.

It is stated that he has engaged in this activity to support his addiction. [ 24 ] He is an individual who is in a solid relationship with his girlfriend and has been for a period of some two years. He intends on pursuing that relationship upon his release. [ 25 ] He has been held in segregation at Vancouver Island regional correctional facility for the significant portion of the time that he has been -- [ 26 ] MR. WATT: Sorry, Your Honour, I just rise. It's protective custody. [ 27 ] THE COURT: Oh, I'm sorry. Protective custody? [ 28 ] MR. WATT: Yes. [ 29 ] THE COURT: I apologize.

Protective custody for the period of time that he has been at the Vancouver Island Regional Correctional Centre. He found this has had a significant impact upon him. I am told that he has not taken any courses or counselling while he has been at the Vancouver Island Regional Correctional Centre.

His plan is to apply to get into the Guthrie House program at Nanaimo Correctional Centre and to obtain both treatment and counselling for his drug addiction and to assist him in taking rehabilitative steps to re-join society. [ 30 ] I do not have the benefit of a pre-sentence report that provides me with anything further about the Offender; the information that I have relied upon has been by way of submissions from defence counsel. Position of the Crown on Sentencing [ 31 ] The Crown is seeking a global sentence for all of the offences.

Crown indicates that with respect to the possession of the stolen motorcycle and the stolen motor vehicle, that something in the nature of a 90-day sentence being a step up from the 60 days for his previous convictions for similar type of offences would be -- [ 32 ] MR. WATT: I'm sorry, Your Honour. He only had 21 days for his previous -- [ 33 ] THE COURT: I'm sorry. Twenty-one days. [ 34 ] MR. WATT: Yeah. [ 35 ] THE COURT: I apologize. Twenty-one days on his first offence.

Crown says an appropriate step up would be 90 days for the possession of the stolen motorcycle and also would be seeking 90 days for possession of the stolen motor vehicle. Crown suggests that that would be an appropriate step up but it would be served concurrently with the custodial time on the other offences, namely, the choking offence and the assault causing bodily harm offence. [ 36 ] Crown says that the appropriate range for these other offences would be at the high end for provincial time, that is, something being two years less a day.

Crown further suggests that there be a two-year probation order following release from custody.

[37] In coming to this particular position, Crown points out that under the Criminal Code that a choking offence contrary to section246(a), if proceeded by way of indictment, makes the Offender liable to imprisonment for life.

Crown also points out that with respect toan offence under s. 267(b), (assault causing bodily harm) if Crown proceeds by indictment, an accused is liable to imprisonment for aterm not exceeding 10 years. [38] Crown says that in coming to their position, they are taking into account the seriousness of these particular offences, thecircumstances surrounding, and the harm caused both physically and emotionally to the victim. Crown stresses that their positionrecognizes the need for rehabilitation but in these circumstances, that there is a need to follow principles relating to both denunciationand deterrence.

Crown takes the position that during a suitable period of incarceration, the Offender will be in a position to seek out thetype of counselling and rehabilitative resources that will be made available to him to assist in his rehabilitation. [39] The Crown also seeks some additional orders relating to both DNA as well as to restrictions on firearms under s. 109. Certainother relief is also being sought. Position of the Offender on Sentencing [40] Defence submits to me that rehabilitative considerations are important in this case.

In that regard, defence says that I must takeinto account that I have before me a youthful individual with substantially no prior convictions and certainly no convictions for violence-related offences. Defence also points out to me that there has been demonstrable remorse expressed by the Offender through defencecounsel, in this case. Defence also indicates that the cause of many of the problems, including the offences that took place that arebefore me today, flow from the addiction from which the Offender was suffering.

The defence also says that this young man hassupport within the community and has the ability to re-join society as a productive member of society, citing the possibility of workthrough a family member out in Port Alberni on a fish boat. He is also able to re-join society and to further the stable domesticrelationship that he presently enjoys. [41] Accordingly, the position that is advanced to me on behalf of the Offender is that there should be a global sentence in the rangeof 12 months.

That would be dealt with by way of a sentence of 60 days on the stolen motorcycle and motor vehicle charges and then 10months on the charges relating to the choking and the assault causing bodily harm. Accordingly, defence is seeking a period ofincarceration reflective of something in this range, but of course with appropriate credit being given for pre-sentence time served. Cases relied upon by the Offender [42] Defence has referred me to three cases. They are as follows: R. v. Gill, 2006 BCCA 127 , [2006] B.C.J. No. 519(B.C.C.A.); R. v. Dulude, 2008 BCSC 510 , [2008] B.C.J. No. 722 (B.C.S.C.); and R. v.

Nakamura, 2012 BCSC 327 ,[2012] B.C.J. No. 437 (B.C.S.C.). [43] Gill is relied upon by defence for the proposition that in sentencing a young person, it is important to take into account that theirrehabilitation is an important consideration and that failure to do so may be a reversible error. At paragraph 16, the court says as follows: I think that it was an error in principle for the sentencing judge to conclude that deterrence and the protection of the public required a"maximum emphasis" on incarceration in this case. As the Supreme Court of Canada emphasized in R. v.

Proulx, [2000] 1 S.C.R. 1,incarceration generally fails to rehabilitate offenders and reintegrate them into society. For younger offenders generally, rehabilitationholds out the best long term prospect for protection of the public. For a young person, maximum sentences may undermine prospects ofrehabilitation. Despite the paucity of background information given to the sentencing judge, the prospects of rehabilitation could not beignored in view of his age and limited record.

The objectives of denunciation and specific and general deterrence did not require amaximum sentence of incarceration. [44] The Dulude decision is a thoughtful decision of Mr. Justice Romilly. It outlines the importance of considering a guilty plea as amitigating factor. In this case, it is argued by defence counsel that although it cannot be considered an early guilty plea, there has been aguilty plea tendered which has saved the victim the necessity of reliving the horrific experience by testifying.

It also saves the public thecost and expense of a preliminary inquiry and potentially a Supreme Court jury trial. [45] The R. v. Nakamura case is another thoughtful decision of Mr. Justice Romilly. In that case, there was a horrific attack on anindividual by two young offenders. At the end of the day, based on all of the evidence before the court, a suspended sentence withconditions of probation were imposed upon each of the two young offenders.

That case is not cited in support of such a sentence in thiscase but, rather, points to the individualized nature of sentencing and the necessity to take into account a considerable number of factorsin reaching a fit sentence. Purposes, Objective, and Principles of Sentencing [46]

Section 718 of the Criminal Code states as follows: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and

(

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 47 ]

Section 718.1 of the Criminal Code lays out the fundamental principle of sentencing: namely, that any sentence imposed must be "proportionate to the gravity of the offence and the degree of responsibility of the offender". [ 48 ]

Section 718.2 also sets out other sentencing principles. It reads as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (

v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. Aggravating Factors [ 49 ] As provided for under s. 718.2, it is necessary for me to consider the aggravating factors in this case.

I accept the aggravating factors that have been presented to me by Crown as follows: first, that this was a vicious assault on a defenceless victim who was in a very vulnerable position parked on the side of the road in a rural location; second, that the impact on the victim has been significant in nature, more from an emotional overlay as a result of the attack, and although she appears to have recovered from the physical injuries, she still has to deal with the emotional effects of the attack. [ 50 ] The third aggravating factor relied upon by Crown is the very nature of the offence.

Choking is a serious offence as outlined by the provisions of our Criminal Code , and it, in itself, is considered by Parliament to be the subject of significant sanctions. [ 51 ] The fourth aggravating factor is that the assault in this case was of a significantly violent nature. Mitigating Factors [ 52 ] I do accept as mitigating factors as follows: The offender before me has limited involvement before the courts and has no record for offences that can be described as violent in nature. Similarly, I accept that the limited record indicates that this offender is not what could be regarded as a prolific offender.

I accept the young age of this individual, and I accept his expression of remorse that has been placed before me by his counsel. I also accept that he has tendered a guilty plea which has saved the victim from having to testify and has saved, of course, court time and resources in dealing with these matters. Analysis [ 53 ] In this circumstance, it is my view that denunciation and deterrence are significant factors that must be taken into account. The position of rehabilitation is important. Rehabilitation can be both within a custodial setting as well as within the community.

The offender in this case has not availed himself of any programs while he has been incarcerated. I acknowledge that prisoners who are on remand may not have the opportunity to access a full array of programs. I have taken into account that it is the wish of the Offender to receive a recommendation that he attend at the Nanaimo Correctional facility in order to apply to get into the Guthrie House program. I am also taking into account that he may need continued supervision within the community and the ability to access resources.

I accept the submission received from his counsel that he welcomes the opportunity to receive these types of resources while serving any term of probation that I may impose. [ 54 ] However, the offences that have been committed in this case certainly warrant custodial time. The range that is being suggested by Crown in my view is a balance between the rehabilitative purposes of sentencing and the denunciation and deterrence purposes that this court must consider. In my view, the range being proposed by Crown of something less than two years of custodial time is appropriate.

In my view, the circumstances in this case warrant a 21-month global sentence. It would be allocated as 21 months less

credit of six months for pre-trial custody. The 21 months would be 21 months on each of Count 3, being the choking offence on file 78857, and on the assault causing bodily harm as set out in the amended Count 4. So those sentences will be served on a concurrent basis. [ 55 ] With respect to the possession of the stolen motor vehicle on Count 5, I would impose a 60-day custodial sentence to be served concurrently with the sentence on the two previous charges.

With respect to Count 1 (that is the possession of the stolen motorcycle), I would impose a 90-day sentence, again to be served concurrent with the theft of the motor vehicle and concurrent with the sentence on the choking and assault causing bodily harm. [ 56 ] Crown seeks, and I will grant, a prohibition order for weapons and firearms, et cetera, under s. 109 of the Criminal Code for a period of 10 years. [ 57 ] There will be a mandatory DNA order. I am going to pause for a moment. That is on both the choking as well as on the -- [ 58 ] MS. GAUDET: Yes. [ 59 ] THE COURT: All right.

The mandatory DNA order will attach to both Count 3, which is the choking charge, and also on the assault causing bodily harm charge. [ 60 ] I will make an order under s. 743.21 of the Criminal Code that while the Offender is serving his custodial time, he is to have no contact, directly or indirectly, with the named complainant. [ 61 ] I will pause for a moment. Is there anyone else to whom you would be seeking to have that order extended? [ 62 ] MS. GAUDET: No, I don't think it's necessary for anyone else. [ 63 ] THE COURT: Thank you. [ 64 ] There will be a probation order for a period of two years.

The terms will be as follows. First of all, the mandatory statutory terms: You shall keep the peace and be of good behaviour. You shall appear before the court when required to do so by the court. You shall notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 65 ] Within 72 hours after completion of your jail sentence, you shall report in person to the probation office at Nanaimo, British Columbia, at the address that will be provided to you.

After that, you shall report as directed. [ 66 ] When first reporting to the probation officer, you shall inform him or her of your residential address and telephone number.

You shall not change your address without first obtaining the written consent of the probation officer. [ 67 ] You shall remain in British Columbia unless you have first obtained the written consent of the probation officer to go elsewhere. [ 68 ] You shall have no contact or communication, directly or indirectly, with the complainant, C.H. [ 69 ] You shall not attend at or be within 100 metres of any place you know to be the residence, school, or workplace of the victim, C.H. [ 70 ] You shall not possess or consume any alcohol or any controlled substances defined in s. 2 of the Controlled Drugs and Substances Act except as prescribed for you by a physician. [ 71 ] You shall not enter any liquor store, beer and wine store, bar, pub, lounge, or other business premise where the prime commodity sold is liquor. [ 72 ] You shall not possess any pipes, syringes, or other drug paraphernalia. [ 73 ] You shall not possess any weapon as defined in s. 2 of the Criminal Code , and you shall not reside in a home where any other person keeps or stores any such weapon. [ 74 ] You shall not possess any knife outside your residence except for the purpose of preparing or eating food or for the purposes directly and immediately related to your employment. [ 75 ] You shall attend, participate in, and successfully complete any assessment, counselling, or program as directed by the probation office, which may include (

a) anger management, (

b) alcohol or drug abuse, (

c) forensic assessment, counselling, or treatment through the Forensic Psychiatric Centre or any other facility directed by your probation officer, and you shall comply with all rules and regulations of any such assessment, counselling, or program. [ 76 ] You shall not enter any motor vehicle, other than public transportation, unless the registered owner of the motor vehicle is also present in the vehicle. [ 77 ] I believe those are the conditions being sought by Crown. Any issue with respect to any of those conditions? [ 78 ] MR. WATT: No, no issue, Your Honour.

Just lastly, with respect to the victim fine surcharge, obviously at the time of these offences he wasn't working. He's been in custody. He's got a significant amount to serve. I'd ask that he be found in default and given one day.

[ 79 ] THE COURT: So I will make an immediate order for payment, following R. v. Bailey , and impose upon him default time for failure to pay, and that would be in accordance with the regulations - I believe it is one day for each victim fine surcharge - to be served concurrently with the other sentences that I have imposed. [ 80 ] MR. WATT: Yes, thank you. [ 81 ] THE COURT: I will make that order. Is there anything further with respect to this matter? [ 82 ] MS. GAUDET: No, I think that's everything. Thank you, Your Honour. [ 83 ] THE COURT: All right. [ 84 ] MR. WATT: Thank you, Your Honour. [ 85 ] THE COURT: Thank you. (REASONS CONCLUDED)