



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Skinner
,









2013 BCCA 27




Date: 20130114

Docket: CA040347

Between:

Regina

Appellant

And:

Joshua Augustine
Victor Skinner

Respondent




Before:



The Honourable Madam Justice Kirkpatrick





The Honourable Mr. Justice Frankel





The Honourable Mr. Justice Hinkson




On Appeal from: 
Provincial Court of British Columbia, October 2, 2012
(
R. v. Skinner
, Victoria Docket No. 153985-1)

Oral Reasons for Judgment




Counsel for the (Crown) Appellant:



J. Duncan, Q.C.





Counsel for the Respondent:



D. J. McKay





Place and Date of Hearing:



Victoria, British
  Columbia

January 14, 2013





Place and Date of Judgment:



Victoria, British
  Columbia

January 14, 2013








[1]

HINKSON J.A.:
On June 15, 2012, Mr. Skinner pleaded
guilty in the Provincial Court to one count of aggravated assault and on
September 14, 2012 he pleaded guilty to one count of assault. He was
sentenced on both offences on October 2, 2012 and given nine months in custody
for the aggravated assault, and 60 days concurrent for the assault.

[2]

The Crown appeals the sentence, contending that the sentence fails to
give adequate weight to the principle of general deterrence, is
disproportionate to the gravity of the offences and the degree of Mr. Skinners
responsibility, and/or is clearly unreasonable.

[3]

For the reasons that follow, I would dismiss the appeal.

Background

[4]

There was evidence before the sentencing judge, to which she referred, that
Mr. Skinner had advised others prior to February 20, 2011, that he
did not, as a rule, abuse alcohol or drink to the point of blackouts. The judge
found that on February 20, 2012, Mr. Skinner purchased two bottles of
wine, and took them to Holland Point Park, within the greater Beacon Hill Park,
in Victoria, drinking at least one of them before he encountered 79 year
old Mr. Prior, standing at the edge of an embankment along the beachside,
enjoying the view.

[5]

The judge accepted that by the time he encountered Mr. Prior,
Mr. Skinner was extremely intoxicated, and for reasons that remain
inexplicable, even with the assistance of psychiatric and pre-sentence reports,
he pushed Mr. Prior over the embankment, lost his own balance and tumbled
down the embankment behind Mr. Prior, ultimately falling on top of him.

[6]

Mr. Prior sustained serious injuries; a suspected concussion and a
fractured pelvis, and damaged his eyeglasses and the clothes that he was
wearing. He has described his life as ruined because he lost his faith in his
own capacity to take care of himself, and, despite counselling, has become
somewhat of a hermit.

[7]

These events were witnessed by Mr. Easton, who was walking along
the beach with his seven year old son. Mr. Easton tried to intercede to
protect Mr. Prior, but was himself assaulted by Mr. Skinner. Mr. Easton
moved down the beach, followed by Mr. Skinner, staggering and yelling
profanities. The police were summoned, and Mr. Skinner was arrested. Mr. Easton
has a history of concussions, and while he was being assaulted by Mr. Skinner,
Mr. Skinner was attempting to bash his head against a log. Mr. Easton
sustained a mild concussion as a result of the assault, and both he and his son
have sought and received counselling for the trauma caused by the assault.

[8]

At his sentencing, Mr. Skinner denied any memory of committing the
offences, and said his only memory was of waking up in a jail cell and then
proceeding off to visit friends.

[9]

The judge recounted the evidence before her as disclosing that Mr. Skinner
was a stable, supportive, conscientious citizen. Mr. Skinners mother
reported violence was not tolerated by his family who described him as a good
man, whose conduct on the day of the assaults, in their view, and in the view
of a co-worker was completely out of character for him.

[10]

The judge noted that Mr. Skinner had a good employment record, and
an employer who would be happy to continue his employment, despite the events
of February 20, 2012.

[11]

The sentencing judge instructed herself on the purposes and principles
of sentencing set out in s. 718 of the
Criminal Code
, and
identified the objectives of sentencing as denunciation, general deterrence,
specific deterrence, separation of the offender from society, rehabilitation,
the making of reparations, and the promotion of a degree of responsibility in
the offender. Next, she referred to fundamental principle of sentencing of
proportionality between the gravity of the offence and the degree of
responsibility of the offender.

[12]

The sentencing judge focused her sentence primarily on the objective of
denunciation, relating it to the principle of proportionality and the gravity
of Mr. Skinners offences, and the aggravating and mitigating factors
established on the evidence before her, including Mr. Skinners guilty
pleas. She also referred to general deterrence, but questioned its potential
effect on those who might commit acts similar to those committed by Mr. Skinner.
She concluded that Mr. Skinner was remorseful, and had written letters of
apology to Mr. Prior and Mr. Easton. She referred to Mr. Skinners
resolution to abstain from the use of alcohol in future. She found that he had
shown he was on the way to rehabilitating himself as evidenced by his
remorsefulness and willingness to accept responsibility for the consequences of
his conduct, leaving specific deterrence of no concern to her.

Discussion

[13]

The Crown accepts that sentencing involves the exercise of discretion by
the sentencing judge and that a court of appeal should only intervene to vary a
sentence imposed at trial if the sentence is demonstrably unfit:
R. v. M.
(C.A.)
, [1996] 1 S.C.R. 500, at p. 565, or if the sentencing judge
commits an error in principle by failing to give sufficient weight to a
relevant factor or over-emphasizing a relevant factor:
R. v. Nasogaluak
,
2010 SCC 6, [2010] 1 S.C.R. 206, at pp. 233-234.

[14]

The Crown concedes that the sentencing judge was alive to the facets of
Mr. Skinners behaviour that was properly the subject of general
deterrence - drinking to the point of blacking out, but contends she dispensed
with that factor on the basis that it would be an ineffective effort for
conduct of the nature for which she was sentencing Mr. Skinner.

[15]

I agree with counsel for Mr. Skinner that the sentencing judge did
not dismiss general deterrence as a principle of sentencing that she did not
have to follow, but rather, she concluded, as in my view she was entitled to
do, Mr. Skinners sentence would have a limited effect on offences of the
nature of those for which she sentenced Mr. Skinner. I would not accede to
the submission that the sentencing judge failed to give adequate weight to the
principle of general deterrence.

[16]

In terms of proportionality, the Crown properly contends that the
sentence imposed must be broadly commensurate with the gravity of the offence
committed, see
R. v. M. (C.A.)
,

at p. 529. The Crown
contends that that range, was set out in the decision of this Court in
R. v.
Biln
, 1999 BCCA 369, and more recently confirmed in
R. v. Grassick
,
2012 BCCA 432, and is two years less a day to six years imprisonment.

[17]

The Crown concedes that sentencing ranges are not determinative, but
contends that the sentence imposed for the offence of aggravated assault in
this case was below the range for such an offence.

[18]

As this Court clarified in
R. v. Bernier
, 2003 BCCA 134, the
range of sentence does not preclude a sentence below the lower end of the range
if such a sentence is warranted by the other principles of sentencing set out
in the
Criminal Code
.

[19]

The sentencing judge demonstrated that she was aware of the gravity of
Mr. Skinners offences, and the location where they occurred. She referred
specifically to that part of para. 9 in
R. v. Wallin
, 2003 BCSC
809, where Madam Justice Dillon wrote:

While I accept that the offence
was not pre-meditated or continuous ... It was a motiveless, unprovoked, savage
attack ... in a public park relied upon by all citizens of Vancouver as
expressive of the physical and spiritual virtue of the city.

[20]

The sentencing judge did not accede to Mr. Skinners submission
that he be given a 90 day intermittent sentence to permit him to maintain his
employment. Despite the gravity of Mr. Skinners offences, the sentencing
judge imposed a sentence that was less than the lower end of the range
described in
Biln
and
Grassick
. I am unable to say that in so
doing, she committed an error in principle by failing to give sufficient weight
to a relevant factor or by over emphasizing a relevant factor and would not
accede to the submission that she erred in imposing a sentence that is less
than lower end of the range established in
Biln
and
Grassick
.

[21]

Finally, the Crown contends that the sentence imposed was clearly
unreasonable, but in support of this submission simply reiterates its
submissions on the first two alleged errors. The reframing of the other
submissions does nothing to advance this submission, and I would not accede to
it.

[22]

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

[23]

KIRKPATRICK J.A.:
I agree.

[24]

FRANKEL J.A.:
I agree.

[25]

KIRKPATRICK J.A.:
The appeal is dismissed.

The Honourable Mr.
Justice Hinkson


