



COURT OF APPEAL FOR BRITISH
COLUMBIA




Citation:



R. v. McCotter,









2014 BCCA 27




Date: 20140127

Docket: CA035120

Between:

Regina

Respondent

And

William James
McCotter

Appellant

Restriction on Publication: A publication ban has been imposed under
s. 486.5
of the
Criminal Code
restricting the publication, broadcasting or
transmission
in any way of evidence that could identify undercover officers.
This
publication ban applies indefinitely unless otherwise ordered.

Corrected
Judgment: The publication ban was corrected on February 17, 2014
to read that could identify undercover officers.




Before:



The Honourable Madam Justice Newbury

The Honourable Mr. Justice Hall

The Honourable Mr. Justice Groberman




On appeal from:  An
order of the Supreme Court of British Columbia, dated
June 22, 2006 (conviction) and May 16, 2007 (sentence)
(
R. v. McCotter
, 2007 BCSC 1646, New Westminster Docket X065536).




The Appellant appeared in person






Counsel for the Respondent:



E. Campbell





Place and Date of Hearing:



Vancouver, British
  Columbia

January 8, 2014





Place and Date of Judgment:



Vancouver, British
  Columbia

January
  8, 2014





Place and Date of Reasons:



Vancouver, British
  Columbia

January 27, 2014





Written Reasons by:





The Honourable Mr. Justice Hall





Concurred in by:





The Honourable Madam Justice Newbury

The Honourable Mr. Justice Groberman








Summary:

Sentence appeal to reduce
the parole eligibility period for two counts of second degree murder from 20
years to something nearer 15 years dismissed.  After some premeditation, the appellant
beat his ex-girlfriend and her partner to death.  Appellant had not desisted
from the violent attack even though urged to cease by other persons present at
the scene.  Twenty-year parole ineligibility order is consistent with similar
cases involving multiple homicides and the murder of a former partner.

Reasons
for Judgment of the Honourable Mr. Justice Hall:

[1]

On January 8, 2014, this Court dismissed the sentence appeal of the
appellant with reasons to be delivered later.  These are the reasons.

[2]

A jury convicted the appellant of two counts of second degree murder on
June 22, 2006.  The crimes occurred on December 2, 2001 near Langley,
B.C.  At trial, counsel for the appellant sought to advance a plea of not
criminally responsible by reason of a mental disorder, but the jury did not accept
this.  This Court dismissed an appeal from conviction on February 3,
2012.  The appellant suggested he may seek to appeal to the Supreme Court of
Canada but has not yet taken steps to do so.

[3]

The appellant murdered a former girlfriend and her new partner.  There
was some delay between conviction and that aspect of sentencing concerning
parole eligibility.  The delay was said to be occasioned by a change of counsel
and some injuries suffered by the appellant.  He had been sentenced to the
requisite statutory penalty of life imprisonment immediately after conviction. 
On May 16, 2007, an order was made by the sentencing judge,
McKinnon J., that the appropriate period of parole ineligibility ought to
be fixed at 20 years.  His reasons are indexed at 2007 BCSC 1646.

[4]

The crimes occurred within a few weeks after a probation order expired
that required the appellant to not have contact with his former girlfriend. 
There was evidence in the record that the thought processes of the appellant
were not entirely normal, but the sentencing judge at para. 10 of his
reasons,
supra
, stated that the evidence, in his view, was a long way
short of establishing a mental incapacity capable of excusing culpability. 
The judge also observed at para. 8 that the appellant had not approved of
his trial counsel advancing an incapacity defence but counsel attempted to
walk a very fine line between seeking a manslaughter conviction and having him
declared not criminally responsible.

[5]

Concerning the crimes themselves, I note the comments of the judge:

[14]      Although I have been on this court more than 20 years
and have seen much violence inflicted upon victims, I am hard pressed to
remember a more violent, vicious attack.

[15]      The victims were essentially defenceless from the
start.  Both had relatively high blood alcohol readings which, particularly in
the case of Mr. Heasman, rendered them quite helpless.

[16]      Mr. McCotter
proceeded to inflict a vicious beating upon both victims even after they were
down and out.  When bystanders tried to intervene, he grabbed a two-by-four;
threatened would-be rescuers, and then proceeded to pound the victims
mercilessly with it causing such trauma that both died as a result.

[6]

It would be fair to say that the crimes bore the hallmarks of the too
frequent obsessive conduct of those who cannot accept disengagement from an
intimate relationship.  The appellant had expressed an intention to teach a
lesson to his former partner.  He had also purchased steel-toed boots to
assist in the assault, which included kicking and beatings with a two-by-four.

[7]

At the time of that aspect of sentencing concerning parole eligibility,
it was common ground that, in this class of case, the period of parole
ineligibility would be at a minimum 15 years.  The judge expressed the
view that the case was close to one of first degree murder, conviction for which
results in the fixing of parole ineligibility at 25 years.  The judge also
found the appellant suffered psychological problems which, if not treated,
would result in his continuing to be very dangerous.  He had a history of not
cooperating with medical professionals in the past.  Given his history, the
prognosis for improvement could not be otherwise than bleak.

[8]

The appellant appeared to suggest that parole eligibility ought to have
been fixed at a lower level, referring to cases where an ineligibility period
of 15 to 17 years had been fixed.  He also made reference to the facts of
another case, which must be the case of
R. v. Machell
, 2003
BCCA 688, 190 B.C.A.C. 294.  There an individual had travelled from Alberta to
Summerland, B.C. where he shot to death his estranged wife and her mother. 
Although charged with first degree murder, a plea arrangement was worked out
whereby a plea was entered to two counts of second degree murder and a joint
submission of 20 years parole ineligibility.  That appellant sought
unsuccessfully to withdraw the pleas and then proceeded with conviction and sentence
appeals which this Court dismissed.

[9]

The gravamen of the appellants submission about the
Machell
case
seems to be that the facts there were more aggravated because of the allegedly
more premeditated actions of Mr. Machell, who had travelled from Alberta
to effect his nefarious purpose.

[10]

The appellant also made reference to
R. v. Bertrand
(1997),
91 B.C.A.C. 298, 148 W.A.C. 298, where this Court upheld an order fixing parole
ineligibility at 20 years.  The accused had stabbed to death his wife and
her parents while family law proceedings were ongoing.  The appellant seemed to
suggest in his submission about the relevance of this case that killing three
people should be considered more serious than killing two people.  I suppose
that may be an arguable proposition but fixing a period of parole eligibility
is always going to require consideration of the particular circumstances of the
case and the situation of the offender.  Any multiple homicide is a most
serious crime.

[11]

In her submissions, Crown counsel referred to certain principles about
parole ineligibility recently enunciated by this Court in
R. v. Bennight
,
2012 BCCA 461 at para. 18, 560 W.A.C. 250:

-     There are
two broad groupings of cases where parole ineligibility is extended beyond 10 years:
parole ineligibility periods from 12 to 15 years and parole ineligibility
periods from 15 to 20 years. The latter group of cases relates to cases at
the highest order of moral culpability or dangerousness: Cerra, at para. 26
(per Donald J.A.).

-     The
possibility of a parole ineligibility period greater than 20 years remains
in exceptional circumstances: Cerra, at para. 36 (per Ryan J.A.).

-     Orders extending the period of
parole ineligibility are highly discretionary and are part of the sentence
pursuant to s. 673 of the Criminal Code. Such orders are therefore
appealed pursuant to s. 687(1). An [appellate] court should only interfere
with a trial judges sentencing order if the court is convinced it is not fit
or it is clearly unreasonable: Shropshire, at paras. 47-48.

[12]

Crown counsel submitted the period fixed by McKinnon J. was not
unfit based on these considerations:

-     There were two victims;

-     The
offences arose from an intimate relationship;

-     There was
considerable planning and deliberation;

-     The
appellant stated his intention to punish Ms. Anderson over a month before
the murders;

-     The
appellant prepared for an assault by purchasing a jock strap and protector cup
and wearing those as well as steel-toed boots;

-     The
appellant lay in wait while Ms. Anderson and Mr. Heasman consumed
alcohol, making them more vulnerable to attack;

-     The
appellant viciously assaulted both victims, not stopping when they were
motionless on the ground;

-     Despite
being interrupted, the appellant returned to his motionless victims and
continued to assault them with a two-by-four piece of wood; and

-     The appellant stopped his attack
only when two or three bystanders intervened.

[13]

Crown counsel also referred to a passage from the
Bennight
case
at para. 27 where it was said that dangerousness by reason of an abnormal
mental condition of the offender was relevant in fixing a period of parole
ineligibility.

[14]

At the proceedings before McKinnon J., Crown counsel sought a
period of parole ineligibility of 18 to 20 years but closer to the 20
year range.  Counsel for the appellant submitted that a period in the range of
15 years would be appropriate.  The judge found 20 years to be the
appropriate period of parole ineligibility.  His reasons included considerations
of a measure of premeditation, the extreme violence of the offences, and the
circumstance that the appellant, by reason of his persistent psychological
difficulties, constituted a continuing threat to public safety.

[15]

The Supreme Court of Canada has made it clear that reasonable deference
should be afforded to decisions of trial judges about sentence:
R. v. Shropshire
,
[1995] 4 S.C.R. 227, 129 D.L.R. (4th) 657;
R. v. Nasogaluak
, 2010
SCC 6, [2010] 1 S.C.R. 206.

[16]

In the case of
R. v. Hoang
, 2002 BCCA 430, 167 C.C.C.
(3d) 218, a case referred to by Donald J.A. in
R. v. Cerra
,
2004 BCCA 594, 192 C.C.C. (3d) 78, Saunders J.A. noted that cases where
parole ineligibility periods in the order of 20 years were imposed
included multiple death cases.
Cerra
was a case of a single homicide,
inflicted by a protracted beating.  The cases of
Machell
,
Bertrand,
and
R. v. Kianipour
, 2003 BCCA 703, 181 C.C.C. (3d) 391, were
all cases of multiple homicides that resulted in orders of parole ineligibility
of 20 years.  These decisions were sustained by this Court.
Machell
involved the killing of two people, whereas the cases of
Bertrand
and
Kianipour
involved triple homicides.  The latter two cases were near identical fact
patterns in that a partner and parents-in-law were murdered in both instances.

[17]

In the recent case of
R. v. Purdy
, 2012 BCCA 272, 291
C.C.C. (3d) 309, a man who killed his estranged wife by inflicting several stab
wounds was ordered to be ineligible for parole for 19 years.  On appeal,
this decision was sustained.  In the course of her reasons, MacKenzie J.A.
noted it would be a proper consideration in fixing a period of parole
ineligibility to take into account prospects for rehabilitation.  I consider
that in the instant case, this appellant has demonstrated poor prospects for
rehabilitation.

[18]

In the present case, the sentence imposed concerning parole eligibility
is consistent with those imposed for multiple homicides in
Machell
,
Bertrand,
and
Kianipour
.  It is the same as that imposed in
Cerra
, a case
like the present of a vicious beating and exceeds by one year that imposed in
the case of
Purdy
.  The similarity between
Purdy
(as well as
Machell,
Bertrand
, and
Kianipour
) and the present case is the murder of a
former partner.  Having regard to those precedents, there can be no suggestion
that the sentence imposed here is not properly within the range of sentences
imposed in similar cases.  I consider the order of McKinnon J. was a fit
disposition.

[19]

Because of these considerations set forth above, it was appropriate to
dismiss this sentence appeal.

The Honourable Mr. Justice Hall

I agree:

The
Honourable Madam Justice Newbury

I agree:

The
Honourable Mr. Justice Groberman


