



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. MacArthur,







2008 
          BCCA 47



Date: 20080128

Docket: CA034554

Between:

Regina

Respondent

And

Duncan 
    Bruce MacArthur

Appellant

RESTRICTION ON PUBLICATION:  AN ORDER HAS 
    BEEN MADE IN THIS CASE PURSUANT TO SECTION 486.4 OF THE
CRIMINAL CODE
THAT PROHIBITS ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANT OR WITNESSES 
    BEING PUBLISHED, BROADCAST OR TRANSMITTED.




Before:


The 
          Honourable Madam Justice Levine




The 
          Honourable Madam Justice Kirkpatrick




The 
          Honourable Mr. Justice Tysoe



Oral Reasons for Judgment




N.R. 
          Bauder


Counsel for the Appellant




A.R.B. 
          Clark


Counsel for the (Crown) Respondent




Place 
          and Date:


Vancouver, British Columbia




28 January 2008



[1]

TYSOE, J.A.
: Mr. MacArthur seeks leave to appeal and, if leave is 
    granted, appeals his sentence of four months incarceration and two years probation 
    in respect of three convictions related to dealings with his ex-wife, D.G.  
    He submits that the sentencing judge erred in not ordering a conditional sentence 
    and in his consideration of the principles of proportionality, uniformity 
    and totality.

[2]

Mr. MacArthur was charged with 
    12 counts covering a period of approximately 20 years, and he was found guilty 
    by the sentencing judge of the following three offences:

(a)        criminal negligence causing bodily 
    harm in 1985 when, in a state of anger, he deliberately accelerated his motorcycle 
    in such a way that he knew that there was a real risk of D.G. falling off 
    the back of the motorcycle and injuring herself;

(b)        assault causing bodily harm in 
    1988 when he punched D.G. and gave her a black eye; and

(c)        uttering a threat to cause death 
    or bodily harm in 2002 when, in response to D.G. saying that she would change 
    her phone number if he continued calling her residence, he said words to the 
    effect that if she did that, he would put her six feet under.

[3]

At the time of sentencing in June 2007 Mr. MacArthur was 45 years of 
    age and was working as a mechanic in Fort Nelson.  He did not have a criminal 
    record other than a minor indirect breach of his undertaking to abstain from 
    communicating with D.G.

[4]

A pre-sentence report had been ordered by the sentencing judge.  There 
    were problems in the scheduling of an interview of Mr. MacArthur by the probation 
    officer and when the interview was conducted, Mr. MacArthur provided minimal 
    information, refused to sign a consent to release information form, refused 
    to complete a basic questionnaire and, when the probation officer raised the 
    requirement of a technical suitability assessment report as ordered by the 
    sentencing judge, Mr. MacArthur refused a home visit and stated that there 
    would be no electronic monitoring.  When subsequently asked if he had reconsidered 
    his position, Mr. MacArthur responded that he was not interested in electronic 
    monitoring.

[5]

The pre-sentence report outlined a history of problems in Mr. MacArthurs 
    relationships, particularly relationships with women, including his mother 
    and two women with whom he had relationships after the end of his marriage 
    with D.G.  The report set out that Mr. MacArthur adamantly refused to attend 
    any form of counselling.

[6]

The sentencing judge found the absence of the mitigating factor of 
    remorse, and he found that Mr. MacArthur had demonstrated positive resistance 
    to rehabilitation.  He also found that Mr. MacArthur had not taken responsibility 
    for the acts giving rise to the convictions.

[7]

The sentencing judge gave extensive reasons in his consideration of 
    a conditional sentence order.  He was not satisfied that a conditional sentence 
    order would be consistent with the sentencing purpose of rehabilitation.  
    He took into account Mr. MacArthurs position with respect to electronic monitoring.  
    He concluded that the rehabilitation of Mr. MacArthur was more likely to be 
    carried out by a period of incarceration followed by a probation order and 
    that a conditional sentence order was not appropriate.

[8]

The sentencing judge then turned to the length of the sentence.  As 
    the offences were distinct, he concluded that the sentences should be consecutive.  
    He referred to the totality principle and stated that he would impose lesser 
    periods of custody than would have been the case if each offence was being 
    considered separately.  He imposed consecutive periods of imprisonment of 
    one month on the first two offences involving bodily harm and two months for 
    the offence of uttering a threat, for a total of four months imprisonment.

[9]

Counsel for Mr. MacArthur contends that the sentencing judge erred 
    in five respects in not imposing a conditional sentence.  First, he says that 
    the apparent inappropriateness of house arrest should not have rendered fatal 
    the imposition of a conditional sentence.  Second, he says that the unwillingness 
    of Mr. MacArthur to attend counselling should not have rendered fatal the 
    imposition of a conditional sentence.  Third, he says the sentencing judge 
    overemphasized and used as an aggravating factor the finding that Mr. MacArthur 
    was not remorseful and had not yet taken responsibility for his actions.  
    Fourth, he says the sentencing judge failed to consider imposition of other 
    measures that would fulfil sentencing principles as required by s. 718.2(e) 
    of the
Criminal Code
.  Fifth, he says that, given Mr. MacArthur 
    was a first offender, the sentencing judge failed to give effect to the primary 
    objective of individual deterrence and rehabilitation and failed to give the 
    minimum intervention necessary in the circumstances.

[10]

In my opinion, the sentencing judge did not err in any of these respects.  
    He did not rule out a conditional sentence solely on the basis of Mr. MacArthurs 
    disinterest in electronic monitoring or his unwillingness to attend counselling.  
    Rather, the sentencing judge took these facts into account, together with 
    all the other relevant facts, in concluding that the rehabilitation of Mr. 
    MacArthur was more likely to be carried out by a period of incarceration.

[11]

In the circumstances of this case, however, it is my view that it was 
    open to the sentencing judge to have declined to make a conditional sentence 
    order on the basis of Mr. MacArthurs refusal to co-operate in the completion 
    of the technical suitability report for electronic monitoring.  His refusal 
    meant that electronic monitoring was not an option for him.  The author of 
    the pre-sentence report said the following about electronic monitoring:

While the rehabilitative element of community supervision remains in question 
    for the Subject, the element of monitoring compliance, particularly of the 
    protective conditions for the victim and collaterals, is considered a priority 
    for their sense of security, and overall in the best interests of public safety.

Based on this evidence, it was open to the trial judge 
    to have concluded that the condition precedent contained in s. 742.1(b) of 
    the
Criminal Code
regarding the safety of the community had 
    not been satisfied.  If a judge is of the view that the only method by which 
    he or she can be satisfied that the safety of the community would not be endangered 
    is through the means of electronic monitoring and if the offender is not prepared 
    to participate in electronic monitoring, the condition precedent will not 
    have been met.

[12]

The sentencing judge did not err in my view with respect to his use 
    of the findings that Mr. MacArthur was not remorseful and had not taken responsibility 
    for his actions.  The sentencing judge referred to
R. v. Anderson
(1992), 74 C.C.C. (3d) 523 (B.C.C.A.);
R. v. Caulfield
, 1999 
    BCCA 190,
124 B.C.A.C. 287
; and
R. v. Zeek
, 2004 BCCA 42,
193 B.C.A.C. 104
, and correctly stated that lack of remorse is not an 
    aggravating factor.  He referred to the sentencing objective, contained in 
    s. 718(f) of the
Code
, of the promotion of a sense of responsibility.  
    It was open to him to conclude, as I believe he inferentially did, that this 
    objective would not have been promoted by a conditional sentence order in 
    the circumstances where the offender was refusing to attend counselling and 
    had expressed a disinterest in electronic monitoring.  In my opinion, the 
    sentencing judge did not overemphasize this objective or misuse it as an aggravating 
    factor.

[13]

The sentencing judge did not fail to consider sanctions other than 
    imprisonment.  He quoted s. 718.2(e) and stated that it was particularly relevant 
    in this case.  He then considered a conditional sentence and concluded that 
    it would not be consistent with the fundamental purposes and principles of 
    sentencing.

[14]

On the final point on the topic of a conditional sentence order, the 
    trial judge did not fail to give effect to the objectives of individual deterrence 
    and rehabilitation.  Indeed, the principle of rehabilitation was the primary 
    focus of the reasoning of the sentencing judge in concluding that a conditional 
    sentence order was not appropriate.  While a conditional sentence order can 
    have a deterrent effect, there will be circumstances where deterrence will 
    only be achieved by a custodial sentence.  I do not agree that the trial judge 
    failed to give effect to the objective of individual deterrence.  It was not 
    shown that Mr. MacArthur will be more likely to re-offend if he is sent to 
    jail.  In my view, it could reasonably have been inferred from the attitude 
    of Mr. MacArthur that a conditional sentence order would not have had a deterrent 
    effect on him in the circumstances of this case.

[15]

Counsel for Mr. MacArthur contends that the length of period of incarceration 
    given to him was unfit because the sentencing judge erred in considering the 
    principles of proportionality, uniformity and totality.  He also says that 
    the sentences for the three offences should have been made concurrent sentences.  
    I do not agree with these contentions.  The sentencing judge directed his 
    mind to proportionality and quoted s. 718.1 of the
Criminal Code
.
He specifically referred to the principle of totality set out in s. 718.2(c) 
    of the
Code
, and stated that he was imposing lesser periods 
    of custody than would have been the case if he had considered them separately.  
    In my view, it was appropriate to make the sentences consecutive because the 
    three convictions related to separate events committed at different times.

[16]

Counsel for the Crown has referred to the decisions in
R. v. 
    G.A.L.

(1992), 21 B.C.A.C. 81;

R. v. Gates
, 2002 
    BCCA 128,
163 C.C.C. (3d) 274;
R. v. Greene

(1993), 28 B.C.A.C. 35;
R. v. Nelson
, [1992] Y.J. No. 171 (QL) (Y.T.C.A.); and
R. v. Paterson

(1998), 103 B.C.A.C. 238,
demonstrating that the four-month sentence 
    given to Mr. MacArthur is within the range of sentences for these types of 
    offences.  I am not persuaded that the sentence is demonstrably unfit.

[17]

Counsel requests that Mr. MacArthurs sentence be varied so that he 
    can serve the remainder of his sentence on an intermittent basis.  Mr. MacArthur 
    is in the middle of his sentence and, in my opinion, the manner in which he 
    serves the remainder of his sentence should be left to the corrections and 
    parole officials in the circumstances of this case.

[18]

I would grant leave to appeal but would dismiss the appeal.

[19]

LEVINE, J.A.
: I agree.

[20]

KIRKPATRICK, J.A.
: I agree.

[21]

LEVINE, J.A.
: I order that leave to appeal is granted and the appeal 
    is dismissed.

The Honourable Mr. Justice Tysoe

CORRECTION
 8 February 2008

The 
    complainants name has been initialized wherever it appeared in full.


