



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Costello,









2021 BCCA 59




Date: 20210129

Docket: CA47105

Between:

Regina

Respondent

And

Shaun Earl Martin
Costello

Appellant

Restriction
on publication: A publication ban has been mandatorily imposed under s. 486.4
of the
Criminal Code
restricting the publication, broadcasting or
transmission in any way of evidence that could identify a complainant or
witness. This publication ban applies indefinitely unless otherwise ordered.




Before:



The Honourable Madam Justice DeWitt-Van Oosten

(In Chambers)




On appeal from: An
order of the Supreme Court of British Columbia, dated July 24, 2020
(sentence) (
R. v. Costello
, 2020 BCSC 1206, Kelowna Docket 92217‑2).

Oral Reasons for Judgment




The Appellant, appearing in person (via teleconference):



S.E.M. Costello

(appeared January 28,
  2021 only)





Counsel for the Respondent (via teleconference):



C. Lusk





Place and Date of Hearing:



Vancouver, British
  Columbia

January 28, 2021





Place and Date of Judgment:



Vancouver, British
  Columbia

January 29, 2021








Summary:

The appellant applied for
the appointment of legal counsel to assist with an application for leave to
appeal/appeal from sentence for aggravated assault. Held: Application
denied. The appellant has not met the test for an appointment of counsel under
s. 684(1) of the Criminal Code.

[1]

DEWITT-VAN OOSTEN J.A.
: Shaun Costello applies for the
appointment of legal counsel to represent him on an appeal from sentence for
aggravated assault. Section 684(1) of the
Criminal Code
,
R.S.C. 1985, c. C‑46 authorizes an appointment of counsel where
doing so is desirable in the interests of justice and the appellant does not
have sufficient means to obtain the assistance of a lawyer.

[2]

The Crown does not take issue with Mr. Costellos assertion that he
lacks sufficient means to retain counsel. The appellant is in custody and has
no income, no assets, and no family to provide financial support. Mr. Costello
applied for funding through the Legal Services Society (LSS), but was not
successful. The [in]sufficient means component of the test for an appointment
is clearly met.

[3]

The remaining question, then, is whether it is in the interests of
justice that Mr. Costello receive the assistance of a lawyer to advance
his appeal. Factors for consideration include: (1) the complexity of his
appeal; (2) the points to be argued; (3) Mr. Costellos competency
to present the appeal; (4) the need for counsel to find facts, research
law, or make argument; (5) the nature and extent of the penalty imposed;
and (6) the merits of the appeal. (See
R. v. Myles
, 2020
BCCA 143 (Chambers) at para. 37;
R. v. Silcoff
, 2012
BCCA 463 at paras. 1927.)

Background

[4]

Before addressing those factors, I will briefly set out the background
to the appeal.

[5]

On July 6, 2020, Mr. Costello pleaded guilty to aggravated
assault, contrary to s. 268(1) of the
Code
. An aggravated assault
is an assault that wounds, maims, disfigures or endangers the life of the
complainant. In pleading guilty to the offence, Mr. Costello acknowledged
his culpability on all essential elements.

[6]

Eighteen days after the guilty plea, on July 24, 2020, Mr. Costello
received a sentence in the British Columbia Supreme Court of 3.5 years in
prison for the offence, less 368 days credit for time spent in pre‑sentence
custody. This left Mr. Costello with an additional 909 days to serve
in prison (or, just shy of 2.5 years). Mr. Costello was represented
by a lawyer when he entered his guilty plea and at sentencing.

[7]

The oral reasons for sentence are indexed as
R. v. Costello
,
2020 BCSC 1206. An Agreed Statement of Facts was before the sentencing
judge. There is no need for me to set out the contents in detail. The published
reasons for sentence attach the statement as an appendix and it can be accessed
there.

[8]

I have reviewed the Agreed Statement of Facts. For purposes of these
reasons, it is sufficient to note that the aggravated assault consisted of
striking the victim on the right side of her face with enough force to cause a
three‑centimetre laceration to her right cheek, as well as undisplaced
fractures to the underlying facial bone. The assault occurred in the presence
of the victims three‑year‑old child. It formed part of a physical
altercation between Mr. Costello and the victim, in which the victim
repeatedly struck Mr. Costello. At sentencing, the Crown acknowledged that
the aggravated assault was a provoked assault and occurred in response to the
victims conduct. It was accepted that Mr. Costellos culpability for the
offence lay in the use of excessive (and therefore unreasonable) force. At the
time of the assault, Mr. Costello was on a probation order prohibiting him
from having contact with the victim. That order arose from a conviction for a
prior assault committed against the same victim, for which Mr. Costello
was sentenced to three months imprisonment and 18 months probation.

[9]

Before imposing sentence, the judge reviewed Mr. Costellos
familial, educational and work history. He acknowledged that Mr. Costello
has experienced mental health issues, including anxiety and depression. The
judge found that Mr. Costello has spent most of his adult life
incarcerated. While in prison, he has experienced hardship, including physical
and psychological trauma inflicted by others. The judge noted that when
programming has been made available to him, Mr. Costello has actively
been involved with and completed all programs.

[10]

The victim of the aggravated assault provided an impact statement for
use at sentencing, setting out the adverse psychological, emotional and
physical affects of the offence. She said this included a scar, continued pain
and other health challenges resulting from injury to her eye socket. In the
statement, the victim said she was considering surgery to address ongoing
issues associated with her injury.

[11]

The sentencing judge described Mr. Costellos criminal record as
extensive. It includes a prior conviction for aggravated assault of a
three-year-old child (for which he received a four‑year prison term,
upheld on appeal by this Court in
R. v. Costello
, 2003
BCCA 421); convictions for assault causing bodily harm; assault with a
weapon; multiple convictions for common assault; abandoning a child; uttering
threats; and dangerous driving. Some of the prior assaults were committed
against intimate partners. At sentencing, the judge was provided with a list of
Mr. Costellos convictions that involved harm perpetrated against intimate
partners and their children. That list is also attached as an appendix to the
published reasons for sentence.

[12]

Mr. Costello also has convictions for breaching bail and probation
orders intended to keep him out of contact with former partners. According to
the reasons for sentence, he has 17 prior convictions for non‑compliance
with a court order. Several of his convictions for violent offending were
committed while bound by a bail or probation order. As noted, at the time of
the offence at issue, Mr. Costello was bound by a court order prohibiting
him from contact with the victim.

[13]

Mr. Costello provided a letter to the sentencing judge expressing
remorse for his offence. He described himself as untreated for anxiety,
depression and post‑traumatic stress disorder. Among other things, the letter
spoke of an abusive home environment as a child and a sexual assault committed
against him while incarcerated.

[14]

The Crown sought a sentence of four years imprisonment (less credit for
time spent in pre‑sentence custody). The defence sought a sentence in the
range of 368 days to 18 months, or, at most, an effective two years
less one day of imprisonment, followed by probation. In making that submission,
Mr. Costellos counsel emphasized the circumstances surrounding the
assault; in particular, the victims physical aggression and a corresponding
reduction in the appellants moral blameworthiness. The defence also pointed
out that Mr. Costello pleaded guilty, avoiding the necessity of a trial,
and, while awaiting sentence, his custodial conditions were rendered more severe
by the COVID‑19 pandemic. Programs shut down; visits halted; and there
was limited movement, amounting to the functional equivalent of a general
lockdown. The defence suggested that because of the harshness of those
conditions, Mr. Costello should receive enhanced credit for his pre‑sentence
custody (an additional two months).

[15]

After reviewing numerous sentencing decisions for aggravated assault and
other violent offences, including ones involving violence inflicted against an
intimate partner, the judge imposed the equivalent of 3.5 years
imprisonment. In doing so, he emphasized a number of aggravating factors.
First, he saw the offence as one involving the abuse of an intimate partner.
Second, at the time Mr. Costello committed the offence, he was on
probation for an earlier assault on the same victim and under a no contact
order. Third, the judge accepted that the assault has had a lasting physical
and psychological impact on the victim and her child. Fourth, Mr. Costello
has an extensive prior record of violence towards previous intimate partners
and children of his intimate partners, and sentences of imprisonment do not
appear to have deterred him from offending.

[16]

In his reasons, the judge also identified a number of mitigating factors.
These included Mr. Costellos guilty plea and his difficult personal
circumstances, including a troubled childhood, cocaine addiction, and
challenges while incarcerated. The judge also took into account the fact that Mr. Costello
has taken counselling while in custody and the COVID‑19 crisis.

[17]

In light of a generally accepted range of sentence for aggravated
assault of 16 months to six years imprisonment and the principles of
denunciation, general and specific deterrence, the judge considered a 3.5‑year
sentence to be a fit sentence in the circumstances. In addition to the prison
term, he imposed a no‑contact order with the victim under s. 743.21
of the
Code
and a s. 109(1)(a.1) firearms prohibition order, and he
ordered a DNA sample pursuant to s. 487.051(1).

Positions on the Application

[18]

In his notice of appeal/application for leave to appeal (filed November 9,
2020), Mr. Costello alleges that the sentencing judge committed material
errors in principle. He also contends that the sentence is unduly harsh and
excessive. At the hearing of the s. 684(1) application, he identified
three primary errors.

[19]

First, he says the judge overemphasized the seriousness of the victims
injury based on a false claim by the victim that she requires surgery to repair
the injury. Mr. Costello says that is not true, the victim has fabricated
that claim, and the information available to both the Crown and the sentencing
judge made the fabrication clear. He says that information was ignored. Second,
the judge is said to have given insufficient weight to the fact that the
assault was committed in response to physically aggressive behaviour by the victim.
Instead, the judge approached the case as if Mr. Costello committed an
unprovoked assault. Third, Mr. Costello says the judge wrongly treated the
relationship between him and the victim as an intimate partner relationship. Mr. Costello
says there was no longer an intimate relationship between the two of them and
they were just friends. Finally, Mr. Costello says the sentence of
3.5 years imprisonment is clearly unreasonable (demonstrably unfit) in
light of the manner in which the assault unfolded and the fact that he did not
intend to injure the victim. He says he was responding to aggression, not
intending to cause harm.

[20]

In his submissions before me, Mr. Costello also contended that his
lawyers representation at sentencing was ineffective; he alleged corruption in
the prosecution process before and after the guilty plea; and he said he was
muscled into pleading guilty to aggravated assault. However, he acknowledges
that he has not filed an appeal from conviction asking to have his guilty plea
set aside on the ground that it was either involuntary or uninformed. He
furthermore understands that on the appeal from sentence, this Court has no
jurisdiction to go behind the plea.

[21]

Consistent with its usual practice, the Crown made no submissions on
whether an appointment of counsel is appropriate in this case. However, to
assist the Court in its determination, the Crown made submissions on the merits
of the appeala factor for consideration under s. 684(1). The Crown says
no material errors in principle are apparent from the face of the judges
reasons. The judge turned his mind to the mitigating factors put forward on Mr. Costellos
behalf. At the same time, he was alive to the many aggravating factors,
including the appellants demonstrated recidivism for violent offending. In
light of the aggravating factors, the Crown says the judge was entitled to
emphasize the sentencing principles of denunciation and deterrence (both
general and specific) and that the 3.5‑year prison term is well within
the generally accepted range of sentence for this type of an offence and this
type of offender.

[22]

The Crown reminds the Court that a deferential standard of review
applies to appeals from sentence. Before a division of this Court would
interfere with the prison term, Mr. Costello would have to show that the
judge committed a material error affecting the sentence (such that the sentence
would have been different but for the error) or that the sentence is
demonstrably unfit:
R. v. Friesen
, 2020 SCC 9 at paras. 2529;
R. v. Agin
,

2018 BCCA 133 at paras. 5657;
R. v. Lacasse
, 2015 SCC 64.

Discussion

[23]

Having reviewed the material on the s. 684 application, I am
satisfied that the application for leave to appeal/appeal from sentence does
not raise unusual or complex legal or factual issues. Instead, this appeal will
likely focus on the aggravating and mitigating factors identified by the
sentencing judge; whether those findings were reasonably open to him on the
record; and the relationship between those factors and the assessment of
quantum
,
as informed by the generally accepted range of sentence for aggravated assault.

[24]

I am also satisfied, based on his submissions, that Mr. Costello is
capable of pinpointing errors he says were made by the judge and explaining,
from his perspective, how those errors affected the sentence. He is also able
to explain why he says the sentence is too harsh in light of the circumstances
surrounding the offence and the victims participation in a physical
altercation. I appreciate that he does not have legal training, but Mr. Costello
describes himself as someone familiar with the criminal justice system; he
understands how the process works; and, importantly, he has the competency to
address matters relevant to the task of appellate review. He prepared a letter
for use at sentencing that was articulate, focused and relevant to the issues
before the judge. That same capacity manifested itself in his submissions
before me.

[25]

The generally accepted range for sentence of aggravated assault is well
established (
R. v. Gill
, 2014 BCCA 88 at para. 28),
and the judges reasons for sentence offer a fairly comprehensive review of the
relevant case law. This includes cases in which lesser sentences for aggravated
assault have been imposed. Submissions on range and the appropriateness of
where this case falls in that range can be made with reference to the
authorities captured in the judges reasons. In other words, there does not
appear to be a need for further research.

[26]

Mr. Costello received a sentence of 3.5 years imprisonment.
That is a substantial sentence and a factor that, depending on the
circumstances, can carry considerable weight in the s. 684(1) analysis.
However, in light of the inherent seriousness of the offence and his criminal
record, including prior convictions for violence, I see little merit in the
appeal given the deferential standard of review. This factor weighs against an
appointment of counsel. It is generally not in the interests of justice to
appoint counsel where an appeal has no merit:
Silcoff
at para. 26.

[27]

Specific to Mr. Costellos alleged errors, I see no indication from
the reasons for sentence that the judge treated the offence as more serious on
grounds that the injuries sustained by the victim necessitated surgical
intervention. The judge identified the lasting physical and psychological
impact on [the complainant] and her daughter as an aggravating feature of the
case. However, he did not single out surgery as one of the reasons for that or
make mention of the possibility of surgery in the analysis portion of his reasons.

[28]

In respect of the second alleged error, the Crown acknowledged at
sentencing that the assault arose during the course of a physical fight with
the victim and, as such, it was not unprovoked. Mr. Costellos lawyer told
the judge of injuries sustained by Mr. Costello in the altercation,
highlighting the mutuality of physical aggression. The judge was alive to this
submission, explicitly making mention of it in his reasons for sentence (at para. 38).
He described the force used by Mr. Costello as excessive and
unreasonable (at para. 79). By necessary implication, he acknowledged
that this was not an unprovoked assault. When discussing the range of sentence,
the judge noted that unprovoked attack[s] tend to fall at the higher end of
the 16‑month to six‑year range (at para. 71). He did not place
Mr. Costellos sentence at the higher end.

[29]

Finally, Crown counsel described this case to the sentencing judge as
one involving intimate partner violence. I have summarily reviewed the
transcript of the proceedings at sentencing. I do not see that this
characterization was contested by the defence. Moreover, it appears consistent
with the record before the sentencing judge. This includes the Agreed Statement
of Facts, which indicated that Mr. Costello and the victim were in an
intimate relationship when a first assault occurred in 2018. They then
reunited after his release from imprisonment one to two months before the
assault that forms the subject matter of the application for leave to appeal.
The aggravated assault occurred while vacationing together in Kelowna.

[30]

Although the merits of the appeal will be a matter for a division of
this Court to decide, based on my review of the material, I see no real
prospect of success in establishing that the sentence for aggravated assault
was affected by a material error in principle or clearly unreasonable. I note
that LSS denied Mr. Costello funding on grounds that the appeal carries no
prospect of success. Although certainly not determinative, that is a relevant
factor for consideration in deciding whether the application for leave to
appeal raises arguable grounds:
Silcoff
at para. 27. I appreciate
that in seeking an appointment of counsel, Mr. Costello does not bear an
onus of showing that his appeal
will
succeed; rather, only that the
grounds he seeks to put forward are arguable:
R. v. J.J.P.
,
2019 YKCA 16 at para. 11.

[31]

After consideration of the s. 684(1) factors, as a whole, I am not
persuaded that the interests of justice favour the appointment of counsel in
this matter.

Disposition

[32]

Mr. Costello filed his notice of appeal/application for leave to
appeal outside of the required timeline; as such, he requires an extension of
time under s. 678(2) of the
Code
and R. 16 of the
Criminal
Appeal Rules
. The Crown does not oppose an extension.

[33]

Accordingly, I grant an extension of time to November 20, 2020.
However, for the reasons provided, I dismiss the application for the
appointment of counsel under s. 684(1) of the
Criminal Code
.

The
Honourable Madam Justice DeWitt-Van Oosten


