R. v. Engebretsen, 2015 BCSC 1752

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Engebretsen, 2015 BCSC 1752 Date: 20150708 Docket: X76617-4 Registry: New Westminster Regina v. William Arnold Engebretsen Before: The Honourable Mr. Justice Baird Oral Reasons for Sentence Counsel for the Crown: L. Herron A. Ormiston Counsel for the Accused: D. Turko Place and Date of Hearing: New Westminster, B.C. July 8, 2015 Place and Date of Sentence: New Westminster, B.C. July 8, 2015 INTRODUCTION [ 1 ] Mr. William Arnold Engebretsen has pleaded guilty to a charge that on the 25th day of November 2012, at Surrey, British Columbia, he committed manslaughter of Jeremy McLellan, contrary to s. 236 (

d) of the Criminal Code , R.S.C. 1985, c. C-46. On this sentencing hearing, the Crown seeks four to six years in the penitentiary, while the defence seeks a suspended sentence and probation. [ 2 ] This is a most unfortunate day especially for Ms. Rougeau, the common-law spouse of the accused and the mother of the deceased, whose victim impact statement was filed with me and which I have read very carefully. She has lost her son and best friend. A long-term marriage like relationship was destroyed. She has suffered a great deal. [ 3 ] Mr.

Engebretsen, as your lawyer has doubtless told you, the offence of manslaughter covers a very wide range of penalties. In very rare cases, there are non-custodial dispositions, but the maximum sentence is life imprisonment. The challenge that I have today is to locate you somewhere on that broad spectrum, and it has a lot to do with measuring the gravity of the offence and the degree of your responsibility for it. That is the overall objective of sentencing: to impose a sentence that reflects the gravity of the offence and the degree of your moral culpability in committing it.

It is all set out in s. 718.1 of our Criminal Code . [ 4 ] The Criminal Code also says that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions. The objectives that are most important in your case are denunciation and deterrence. I have to denounce your unlawful conduct. I have to deter you from future misconduct. I have to deter others from behaving in a like manner. I also have to promote in you a sense of responsibility for your offence, for its impact on its victims.

You have caused the unlawful death of Jeremy McLellan, and you have imposed a lifelong burden of sorrow and loss on his mother and family. You have also committed a major breach of the peace and to that extent you have offended against the entire community. [ 5 ] Your lawyer and the lawyer for the prosecution have referred to a number of precedent cases today. That is because of another principle of sentencing requiring that offenders who commit similar offences in similar circumstances should receive similar sentences.

In other words I have to bear in mind how other people have been punished for manslaughter in cases that bear some resemblance to your own. FACTS [ 6 ] The facts in this case are as straightforward as they are sad. It was Grey Cup Sunday, the 25th of November, 2012. I was told, Mr. Engebretsen, that you had spent most of the day drinking, and for that matter most of the previous day. I get the impression that you were in the habit of weekend binge drinking back then. You were able to hold down a job and keep things together but you partied hard at the weekend.

I am sure there are plenty of weekends in your past that you do not remember too well and I this is obviously one of them. [ 7 ] Jeremy McLellan was 33 at the time. He was the son of your common law spouse, Ms. Rougeau. You had known him since he was 10. That is how long you had been involved with Ms. Rougeau – two decades or more. Jeremy came by your place around 5:00 p.m. after work. He was sitting in the living area of your apartment watching television with Ms. Rougeau. I have been told that you came in from your bedroom, where you had been drinking and napping, and you told Ms.

Rougeau and Jeremy, who were watching something else on TV, that you wanted to watch the Grey Cup game. One or the other of them responded "If you ask nicely, maybe we'll do it," but

the channel remained unchanged. You went into the kitchen to prepare a frozen pizza. [8] I do not know what happened while you were in the kitchen. Ms. Turko is right: I have been given no insight into what wasgoing through your head, or what it was that motivated you to go into your bedroom and pick up this enormous knife which has beensubmitted into evidence as Exhibit 3. It is a nasty looking knife, too, that you told me you bought at a rummage sale, I have no idea why. [9] The mystery is compounded by all these letters that I have read from your family, friends and employers. They all think well ofyou.

They all say that you are a peace-loving man, that you are gentle, that you have no history of violence. So I cannot begin to imaginewhat happened that night, and you cannot help. You say you cannot remember what you did or why because you were so drunk. But thefact is that you armed yourself with that knife, you went back into the room where your common law and her son were watchingtelevision, you approached Jeremy McLellan and you stabbed him once in the heart. The wound you inflicted killed him. He died aboutan hour later. [10] I do not need to emphasize, Mr.

Engebretsen, that taking someone else's life is a very serious crime. You have committed amajor criminal offence. And when I talk about moral culpability, what I mean, Mr. Engebretsen, is that unlawful homicide can rangefrom deaths that are almost accidental, deaths that result, almost, from carelessness, right up to activity that is just a touch shy of murder.Your offence was no accident. It was closer to the murder end of the scale than the accidental end. [11] Having said that, one of the things that I have to consider carefully is the history of your relationship with Jeremy.

It wasacrimonious and disputatious. Sometimes Jeremy was violent towards you. I heard that he often showed up to stay at your place whenyou did not want him around. I was told that you and Ms. Rougeau were in conflict about Jeremy. You did not want him around becausehe was bad news, but your wife could not say no. I heard that the police had to go to your house a number of times, sometimes to sort outdisputes between you and Jeremy, but also in response to loud disputes with Betty about Jeremy. [12] I accept that this was a dysfunctional domestic scene for a couple of reasons. First of all, you and Ms.

Rougeau were both in thehabit of drinking way too much, and secondly, into your conjugal relationship, if I could put it that way, was constantly being interjectedthe nettlesome problem of Jeremy. You did not want him around but his mother did. This caused problems because you and Jeremy didnot get along at all, and you felt strongly that he did not treat you with the kind of respect that you deserved. [13] I am being asked to consider that you were a victim of this relationship and that somehow I should consider your case in someway to be analogous to battered spouse syndrome. I cannot go that far, Mr.

Engebretsen. What I think is that you had a contentious andmutually hostile relationship with Jeremy. It involved frequent verbal arguments, and I get the very strong impression that it devolvedinto violence from time to time, but that is the extent of it, as far as I can tell. [14] However else you might characterize it, what happened here was that you were extremely drunk. I mean, 292 milligrams ofalcohol in 100 millilitres of blood is colossal. Ms. Turko is probably right — a significant demographic of the population would havedied from such extreme alcoholic over-consumption.

And in that state of advanced drunkenness you decided that you had had enough ofJeremy, and you did something demonstrative and violent which I know to a perfect certainty you would never have done if sober. [15] That is the construction I put on all of this. If you had been sober, or at least much less inebriated, you would not have stabbedJeremy. If you had been sober, it would never have occurred to you to do any such thing. This is the pernicious thing about alcohol. Itcan lead to catastrophe when it is abused. It can lead an otherwise gentle, law-abiding person like you to commit unspeakable acts ofviolence.

I have to emphasize that what you did was appalling. There is no other way of looking at it. DISCUSSION [16] The kind of cases that I have been referred to where people get less than four years for manslaughter — because that is what theCourt of Appeal is doing in cases like R. v. Green, 2001 BCCA 672 , [2001] B.C.J. No. 2434 and R. v. Andrew, [2008] B.C.J.No. 602. — the Court of Appeal is laying down some clear ground rules that trial judges are to use so that people end up getting thesame sorts of sentences for the same sorts of crimes. You will understand, Mr.

Engebretsen, that we cannot have a system where basedpurely on the luck of the draw one person gets a lenient sentence, even a non-custodial sentence, while another person who commits asimilar offence gets five years or six years in prison. So the Court of Appeal tells me that, absent exceptional circumstances, people whocommit the offence of manslaughter must go to jail. More specifically, in Green at para, 10: [10] The maximum sentence for manslaughter is life imprisonment. It has been said that the range of sentence for this offence is froma suspended sentence to life imprisonment.

I think, however, that most cases fall within the period of four to 15 years. A sentence belowor above that range is imposed only in a case involving special circumstances. [17] That is a very clear message to me, and I am bound to follow it. Are there special circumstances in your case that should causeme to treat you in a manner different from that in which most other people are treated?

I have decided that although your relationshipwith Jeremy was unpleasant, fractious and unwholesome, it does not constitute the sort of special circumstance that the Court of Appealhad in mind when they said that I might go below the four-year lower end of the range referred to in Green. [18] I am going to talk a little bit about the Andrew case. It involved a young Aboriginal person, 23 years of age at the time of theoffence. He was with a group of individuals who had been drinking beer and smoking marihuana in a vehicle. Mr.

Andrew and thedeceased, a person named Ruf, were seated in the back seat with the driver and another person in front. An altercation occurred whenAndrew declined to smoke a marihuana cigarette offered by Ruf. Mr. Ruf punched Andrew and his glasses were knocked off. The driverstopped the vehicle. Andrew tried to get out of the vehicle but was held back by Ruf. Andrew pulled out a fishing knife that was attachedto his belt and stabbed Mr. Ruf twice in the chest and killed him.

Andrew was charged with second degree murder but was convicted ofmanslaughter. [19] The reason I am telling you those circumstances is because of the following observations by Court of Appeal dealing withsentencing on those facts at para. 19:

[19] … A sentence of less than three years would not have been a fit sentence. It is debatable whether the mitigating factors constituteunusual circumstances such that a sentence of less than four years can be considered appropriate …. [20] Now, the reason for emphasizing this, Mr. Engebretsen, is that even in cases involving a youthful aboriginal offender anddegree of provocation or self-defence, we see this four-year lower boundary. Yours is not a case involving truly exceptionalcircumstances. You had an unhappy and conflictual relationship with Jeremy and you killed him when you were very drunk.

There is notmuch more to be said about it. I am sorry to tell you that far from being exceptional, family dysfunction combined with alcohol abuseleading to violence is all too common. [21] Your lawyer made eloquent and elegant submissions on your behalf, as usual. With the greatest respect, however, I was referredto a number of authorities which are not comparable to the present case. There is no history in your case, for example, of mental illness,or any history of depression, such as Judge Nordheimer out in Ontario had before him in the case of R. v. Anguelov [2014] OJ 6323.

Thiswas not a near-accident, as in R. v. Austin 1986 CarswellBC 912 (BCCA). As I said earlier, your case cannot be said the be analogous, inany plausible way, to the cases cited involving battered spouses, or those involving offenders who have survived a pathology or patternof sustained violence or abuse that could be likened to battered spouse syndrome. [22] R. v. Poucette 1999 ABCA 305 , [1999] AJ 1226 (CA) involved a single blow stabbing where the Court of Appeal forAlberta said a three year term of imprisonment would have been appropriate.

I also note that this case, and a number of others to which Iwas referred, involved an aboriginal offender and the application of the remedial provision of

section 718.2(

e) of the Criminal Code asinterpreted by the Supreme Court of Canada in R. v. Gladue (SCC), [1999] SCJ 19 and R. v. Ipeelee 2012 SCC 13. Youare not an aboriginal offender, Mr. Engebretsen, so those cases are of limited assistance. [23] I looked for guidance to the judgment of Judge Macaulay in R. v. Huth [2014] BCJ 579 (SC), a case involving the single blowof a fist during a late night altercation in downtown Victoria.

This is how a lot of manslaughter cases come up, fights outside of bars, forexample, two drunk guys getting into it, one of them hauls off and slugs the other, and down he goes and cracks his head on thepavement and dies. That is a very common type of unlawful act manslaughter. But even in a case like Huth, the offender received themaximum reformatory sentence of two years less one day. That offence happened spontaneously on the street between strangers. Thevictim’s death, though foreseeable, was certainly not intended.

No weapon was used, and this makes the offence in Huth, to my mind, agreat deal less serious than the offence which you committed. And the accused in Huth was only 24 years old, an accomplished athlete,he had no criminal record, he had a history of meaningful employment, and was a person of many admirable qualities. And yet away hewent for a day short of two years. [24] I am here to tell you Mr.

Engebretsen, that as far as I am concerned anyway, what happened in Huth is a far different thing inquality and degree from what you did — getting grossly intoxicated, and responding to a minor slight by stabbing your spouse’s son witha knife. Stabbing someone is not like pushing or hitting someone. Stabbing someone with a knife is a very unusual and extremely violentthing to have done. It is far more serious in my view – well, in anyone's view – than punching somebody with the result, as in Huth, thathe falls over and hits his head.

In other words, Huth is closer to the sort of carelessness/accident end of the manslaughter range than yourcase, which is further along the road to near-murder. For this reason I have concluded that a two year sentence would not be fit for you. [25] On the other hand, you are 56 years old, and I accept that you are not a violent person by nature, that this crime was totally outof character for you. I accept and respect that you have sworn off alcohol since this offence. That is a difficult thing to do.

It takes gutsand discipline, and I have been told that there have been no relapses, which is a major achievement. You have a criminal record, but asfar as I am concerned, it is old news. I am sentencing you today basically as a first timer. Especially because you are a first time majoroffender the law requires me to exercise a degree of restraint when I am imposing sentence. [26] This is kind of a long speech Mr. Engebretsen, but this is an important occasion for you. It is my duty to tell you exactly howthings work so Ms.

Turko, if she cares to, can appeal me and the Court of Appeal can set me straight if I am wrong. To the members ofthe family, I know how painful this is but your brother, your friend, has committed a serious offence and I am afraid that I am going tohave to come down on him pretty heavily. I want you to know that this is the way it is for everybody. He is not being singled out. This isthe kind of sentence that people in these circumstances typically get.

He is going to be taken from you, but he is going to get outeventually, and when he does he is going to need you, so I hope you will continue backing him up. [27] Mr. Engebretsen, it should not come as any surprise to you that I am going to sentence you in accordance with the principlesarticulated in the Green and Andrew cases. I have concluded that Ms. Herron’s position is well-founded in law, but I am going to go tothe lower end of the range for you because you are basically a decent man who has never put a foot wrong before.

You have beendrinking too much for a long time, but you have been steadily employed and you have no history of violence. This recognises, as well,that the relationship you had with Jeremy was toxic. You tried to sort it out, you tried to send him packing, you tried to get Ms. Rougeauto agree that he could not stay anymore. You tried to sort it out and it did not work. It introduced conflict into your life over and overagain and finally you lost your temper when you were really drunk and you did something violent and terrible.

I take this dysfunctionaldynamic into account. [28] It is a significant mitigating factor that you have quit drinking. That shows encouraging insight, and indicates that you have gotthe message about the main issue here. It was not disputed that you have given up alcohol cold turkey and I have been told there has notbeen even a single relapse. I have already said that this is a huge achievement and the best guarantee that you will not reoffend. SENTENCE [29] Mr. Engebretsen, please stand up. [30] In my view, the just, fit, and proportionate sentence in your case is one of four years.

From that sentence I am going to deductthe amount of time that you have spent in custody of five months. I am crediting you with the five months that you spent in pre-trialcustody before you were granted bail in the early part of 2013. The net sentence, Mr. Engebretsen, will be one of three years and sevenmonths. Have a seat.

[ 31 ] I want the family to know that in the ordinary course, as I am sure that Mr. Engebretsen will be a model prisoner, he will be accorded all the statutory remission that a person like him is usually entitled to, and he will probably serve around two-thirds of that sentence. This is an incitement to you, Mr. Engebretsen to be that sort of model prisoner, so that you earn that sort of remission. Do your time and get out as soon as possible. [Ancillary orders spoken too.] [ 32 ] I am grateful to counsel for their presentations. “Baird J.”