



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Dhaliwal,









2010 BCCA 50




Date: 20100128

Docket:
CA037223

Between:

Regina

Respondent

And

Jasvir
Singh Dhaliwal

Appellant




Before:



The Honourable Madam Justice Newbury





The Honourable Madam Justice Saunders





The Honourable Madam Justice Bennett




On
appeal from: Provincial Court of British Columbia, May 22, 2009
(
R. v. Dhaliwal
, New Westminster Registry 70160

Oral Reasons for Judgment




Counsel for the Appellant:



P.
  McMurray





Counsel for the (Crown) Respondent:



U.
  Botz





Place and Date of Hearing:



Vancouver,
  British Columbia

January
  26, 2010





Place and Date of Judgment:



Vancouver,
  British Columbia

January
  28, 2010








[1]

NEWBURY J.A.
: On
July 30, 2008, Mr. Dhaliwal pleaded guilty to the attempted murder of his wife
Parmjit Deol. The attempted murder was the climax to years of abuse he had
inflicted on her since their marriage (an arranged one) in 1999 had made it
possible for him to immigrate to Canada from India. With one exception (on
which occasion police did not arrive until after Mr. Dhaliwal had fled) Ms.
Deol did not report the escalating violence to the police out of consideration
to her familys honour and their children.

[2]

On the evening of January 18, 2007, Mr. Dhaliwal
was angry with his wife and apparently jealous of her paying attention to the
children and to the fact a movie was being made across the street. According to
an agreed statement of facts put before the court below, Mr. Dhaliwal came up
behind her and began beating her, then got a knife and pushed her down, telling
her I will kill you today. I dont care. I am not afraid of the police. They
can deport me back. I might get jailed. I dont care if I dont get
citizenship and Im going to stab you so many times that no one would be able
to recognize you and I would bury you in the garage. Ms. Deol was cut twice,
though only superficially, and Mr. Dhaliwal sexually assaulted her. While he
was in the bathroom cleaning up, Ms. Deol phoned her mother and asked her to
come over right away, which she did. Mr. Dhaliwal locked himself in the master
bedroom after her arrival. Ms. Deols sister-in-law was also asked to come over
to try and speak with Mr. Dhaliwal but Mr. Dhaliwal was unresponsive.

[3]

The three women then decided to gather up the
children so that Ms. Deol and the children could sleep at the sister-in-laws
house. Mr. Dhaliwal then came out of the bedroom and told them they were not
taking the children and that he would kill Ms. Deol wherever she goes. He
returned to the kitchen, grabbed a knife and went after his wife, who ran
downstairs and over to her mothers house nearby. She locked the door but Mr.
Dhaliwal kicked through the glass in the door, saying he wanted to kill her. He
then stabbed her in the side and was screaming at her as the mother and
sister-in-law arrived.

[4]

Fortunately, there were police officers in the
neighbourhood that night, in connection with the making of the movie. They
heard the commotion and saw Mr. Dhaliwal trying to get into the house and
holding a knife. One of the police officers told him to step away from the door
and Mr. Dhaliwal dropped the knife onto the ground. Once his wife came out of
the front door, however, he lunged at her, and grabbed her around the throat
with both hands. Eventually the police forced him to the ground and handcuffed
him and other police arrived on the scene.

[5]

Ms. Deol was taken to the hospital by ambulance.
She was treated for a stab wound to the rear left side of her abdominal cavity
which had cut her lower left lung and diaphragm, and punctured her spleen. She
required emergency surgery to repair the cuts and stop the internal bleeding.
Her injuries were described as life- threatening.

[6]

Mr. Dhaliwal was sentenced on May 22, 2009, and
had been in custody since his arrest in January 2007, a total of 27 months. The
Crown took the position that the appropriate range was between six and eight
years, i.e., another two to three years after doubling the time in custody to five
years. Defence counsel said he did not generally quarrel with the range
proposed by the Crown or the calculation of credit at five years. In his
argument, defence counsel stressed that Mr. Dhaliwal had no criminal record,
had good prospects of returning to his job as a trucker, and had been trying to
address his alcohol abuse problem. A psychiatric report prepared by Dr.
Lohrasbe opined that if Mr. Dhaliwal abstains from alcohol, his risk for future
acts of violence is low. In more general terms, the defence argued that the
objectives of denunciation and deterrence could be satisfied by a sentence of
two years less a day, as opposed to three years. As well, he emphasized that
Mr. Dhaliwal did not have a history of violence outside the home and that he
had made efforts to rehabilitate himself during his time in custody.

[7]

Defence counsel submitted, however, that the
real question before the Court was that of additional punishment. He placed
before the sentencing judge a letter of opinion from an immigration lawyer
dealing with loss of appeal rights ... on the grounds of serious criminality
under s. 64(2) of the
Immigration and Refugee Protection Act
. The
bottom line of the opinion was that if a sentence does not 
refer
to
time served, then time served will not be taken into account for the purpose of
ss. 64(2). Defence counsel therefore suggested to the sentencing judge that in
order to try to preserve Mr. Dhaliwals right of appeal under the
Act
,
she refrain from mentioning the double credit for time served and simply impose
two years less a day in hopes such a sentence would pass muster with the
immigration authorities.

[8]

After taking time to consider the matter, Judge
Alexander gave her reasons for sentence. She set out the facts surrounding the
attempted murder, counsels position and the aggravating and mitigating
factors, and stated that she agreed with the range of sentence set out by the
Crown. She concluded that two years less a day did not meet the criteria in s.
718 of the
Code
. In her words:

[21]      I agree with the range of sentence
set out by the Crown, and the court must therefore balance the s. 718 factors.
At the end of the day, any sentence imposed must be a fit and proper sentence.
Two years less a day does not meet the criteria. I am alive to the potential
immigration consequences and, as I have said, as to the wishes of the family
that the defendant return to them.

[22] The defence concedes that this offence
is at the most serious end of the range of this type of offence, and submitted
that, but for the intervention of the police, the result could have been
tragically different.

[23) The sentence, as I have indicated, must
reflect the gravity of the offence and societys denunciation for domestic
violence, as well as general and specific deterrence. The sentence proposed by
the defence does not achieve those goals and would send the wrong message to
the community at large.

[24] I impose a
further sentence of three years in custody in addition to time served.

The sentencing judge also noted for the
record that she had given Mr. Dhaliwal credit for time served at five years
added to the additional three years, this resulted in an
effective
eight-year sentence.

[9]

On appeal, the basic argument of defence counsel
was that although he could not say that a sentence of three years was not fit,
a sentence two years less a day would also have been fit and would have
accomplished the goals of denunciation and deterrence just as effectively as
the sentence actually imposed. As well, he submitted that the sentencing judge
had erred in failing to consider what I will call the
Kanthasamy
line of
authorities (
R. v. Kanthasamy
2005, BCCA 517,
R. v. Q.A.N
. [2005]
B.C.J. No. 2700, and
R. v. Leila
, 2008 B.C.J. No. 30, all decisions of
this court). In each of these, the sentencing judge had been unaware of the
offenders possible loss of appeal rights for immigration purposes and the
Court of Appeal reduced a sentence of two years down to two years less a day in
order to avoid an unintended consequence of great significance. Obviously,
this case does not involve an immigration consequence that was unintended or
unforeseen by the sentencing judge.

[10]

As this court made clear in
R. v.
Martinez-Marte
, 2008 BCCA 136, the question before this Court whether the
sentence
was
that imposed is a fit one. In my view, it has not been
shown that it was not fit and no error has been shown in the sentencing judges
reasons. Defence counsel acknowledged that the offence here was a very serious
one. It was certainly open to the sentencing judge to conclude that the
circumstances warranted an effective sentence of eight years and I know of no
authority for the proposition that an appellate court should intervene and
change what is otherwise an appropriate sentence in order to avoid the
consequences of a statutory provision of which the sentencing judge was fully
aware.

[11]

In my view, leave should be given to appeal, but
the appeal should be dismissed.

[12]

SAUNDERS J.A.:
I
agree.

[13]

BENNETT J.A.:
I
agree.

[14]

NEWBURY J.A.
:
Leave is granted but the appeal is dismissed.

The Honourable Madam Justice Newbury


