



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



R.
                v. Snelgrove,









2005 BCCA
            51




Date: 20050121




Docket: CA032274

Between:

Regina

Respondent



And

Christian
      Charles Snelgrove

Appellant













Before:



The Honourable
            Mr. Justice Hall





The Honourable
            Madam Justice Saunders





The Honourable
            Mr. Justice Lowry




Oral Reasons for Judgment




D.F.O. Henderson



Counsel for the Appellant





W.J.S. Bell



Counsel for the Respondent





Place and
            Date:



Vancouver, British Columbia





21 January 2005







[1]

HALL
        J.A.:
On 26 January 2004, the appellant was convicted
        of forcible confinement contrary to s. 279(2) of the
Criminal Code
and
        assault using a weapon contrary to s. 267(a) of the
Criminal Code
.  Both
        offences carry a maximum penalty of 10 years in prison.  The trial judge,
        observing that a fit sentence for confinement would be four years and
        for the assault two and a half years and taking into account pre-sentence
        custody thereby giving the appellant 18 months credit, sentenced the
        appellant to a sentence of two and a half years on the confinement count
        and one year concurrent on the assault count.  The appellant appeals
        to this Court arguing that the learned sentencing judge failed to give
        him appropriate credit for time served and as well argues that the sentence
        of two and a half years imposed on the confinement count is excessive
        and unfit.

[2]

The
      incident for which the appellant was sentenced arose out of a confrontation
      that occurred at the home of his common-law spouse around 3:30 a.m. on
      21 April 2003.  The appellant, who was high on cocaine at the time, broke
      into the house where the victim resided.  Hearing a noise, she came downstairs
      from her bedroom whereupon the appellant who was holding a stick swore
      at her and then ran upstairs to her bedroom carrying the stick.  The victim,
      fearing possible harm to their four month old daughter, followed him up
      to the bedroom.  What occurred in the bedroom was described by the trial
      judge in his reasons for sentence:

The Offender was then pacing back and forth at the foot of the bed, holding
      the stick over them and continuing to threaten her that she was an "evil
      bitch" and that he was going to "smash her head in" and
      so on.  Ms. McDonald testified that at the time she was terrified.  He
      wanted her to confess but she did not know what he wanted her to say.  She
      was too frightened to try and leave the bed.

[6]

During the ordeal in the bedroom, the Offender
      tore her engagement ring off her finger.  He also videotaped her and the
      child on the bed.  It was never clear exactly how long they were in the
      bedroom.  Ms. McDonald, whose evidence I accepted over that of the Offender,
      thought that it was about a half hour.  I was satisfied that it was for
      an appreciable period of time, ample time for the Offender to have committed
      the acts complained of.

[7]

In any event, the bedroom ordeal ended when
      she agreed to go with him to his parents' residence in North Vancouver
      so that he could question her in their presence.  She drove her car with
      the baby in her car seat and he followed her in his truck with his companion.  She
      was eventually able to phone the police on her cell phone and a high speed
      vehicle chase then ensued before the police were able to pull both cars
      over.

[3]

The
      appellant had a previous record going back to 1991 when he was initially
      convicted under the
Narcotic Control Act
and was put on probation
      for 12 months.  Soon after in March 1992, he was convicted of a serious
      incident of kidnapping, extortion and forcible confinement for which he
      received 13 years at trial subsequently reduced to 10 years by this Court.  He
      was paroled in 1995.  Although he has at times been able to work satisfactorily
      in jobs and has attained certain trade qualifications, it appears that
      he continues to suffer from problems of substance abuse including the use
      of heroin and cocaine.  He has a supportive family but they can only do
      so much and they recognize that unless he deals with his addiction, his
      problems will continue.  The appellant is presently 33 years of age.  The
      victim and the appellant had a relationship for about six years and lived
      together for about five years.  In late 2002, the victim requested that
      the appellant leave home because of his continuing abuse of drugs.  She
      apparently keeps contact with the appellant because of the fact that they
      have a child together but she has some doubts as to whether they can reconcile
      given his continuing problems with drugs.  Prior to the offence, the appellant
      had entered a residential treatment program at the Miracle Valley Centre
      in January of 2003 where he stayed until March 2003 when he was discharged
      for continuing to use drugs.

[4]

He
      was released on bail after this offence and was to return to a drug treatment
      program but was not accepted as he continued to show positive for drugs.  At
      that point, his surety withdrew and thereupon in June of 2003 the appellant
      surrendered into custody and remained in custody until he was sentenced.  It
      was asserted that as a result of his continuing pre-sentence custody, he
      ought to have been credited with something in the range of 20 to 21 months
      as opposed to 18 months, the amount of credit given to him on this account
      by the trial judge.  The appellant expresses a desire to turn his life
      around and asserts that he will try to deal in a positive way with his
      addiction problems but he has had considerable difficulty in the past in
      successfully doing so.

[5]

Counsel
      for the appellant asserts that the sentence imposed was imposed on a wrong
      principle when the judge referred to this as being a "home invasion" and
      further submits that the sentence is out of step with sentences imposed
      in similar cases for similar incidents.  The Crown respondent suggests
      the sentence ought not to be interfered with.  I note that at the sentencing
      hearing the Crown suggested the appellant should receive an additional
      four months to the time he had already served and counsel for the appellant
      submitted that he had already done sufficient time in custody and should
      receive no further custodial sentence.

[6]

The
      learned trial judge did not agree with either submission.  He found that
      this was an aggravated offence occurring with regard to a person who was
      in a matrimonial type relationship with the appellant, that it involved
      violence, that the appellant had a previous serious record for a similar
      offence and that he had had continuing problems with drugs which he had
      not successfully dealt with.  He noted that in this case the appellant
      had not only confined and assaulted his partner and done so in the presence
      of the young child, but that he did so in her own dwelling house.  He found
      that there were a number of serious aggravating circumstances which ought
      to be reflected in any sentence to be imposed.  He said this at a point
      near the conclusion of his reasons:

[57]       In these circumstances, I have carefully considered Mr. Henderson's
      submissions, although I have been unable to agree with what he considers
      to be the appropriate sentence.  I need not refer further to the aggravating
      circumstances.

[58]

I have also considered the circumstances
      which favour the Offender, including that he now may have some insight
      into the nature and extent of his conduct and is remorseful; that he has
      the support of his parents who will not accept his substance abuse or cover
      for him; the fact that his friend and former employer supports him and
      will have work for him in his trade when he is released from prison; his
      achievements when he was on parole earlier when he earned his carpentry
      apprenticeship; the fact that he has taken some steps in the North Fraser
      Pre-Trial Service Centre towards recovery; and that arrangements have been
      made for him to enter a recovery institution upon his release from prison.

[59]

In my opinion, without regard to the pre-sentencing
      custody, for the moment, a fit and proper sentence for forcible confinement
      in the case at Bar would be four years; and for the assault using a weapon,
      two and a half years concurrent.  Taking into account the period of pre-sentencing
      custody and giving the Offender 18 months credit, the sentence for confinement
      is two and a half years and the sentence for assault using a weapon is
      one year concurrent.

[60]

In my view, the sentence meets the sentencing
      principles contained in s.718, having particular regard to denunciation,
      the deterrence of the Offender and others, rehabilitation and the promotion
      of a sense of responsibility in the Offender and an acknowledgement of
      the harm done to Ms. McDonald and to his daughter.

[7]

The
      victim of the offence has filed an affidavit in these proceedings narrating
      that she takes the young child to visit the appellant in the institution
      where he is incarcerated every two to four weeks and she states that she
      is not afraid of the appellant since he has stopped using drugs and is
      not seeking a no contact order.  She avers that he is a hard worker and
      could be a good father provided he is drug free.  So she maintains some
      contact with him but she asserts in her affidavit that she is not interested
      at this time in renewing a personal relationship with him but would like
      the daughter to develop some relationship with the appellant who is the
      father of the infant.

[8]

It
      appears that when the learned trial judge sentenced the appellant, he did
      so in the hope and expectation that the appellant would be able to get
      a fairly high intensity drug treatment program in the institution.  We
      have been advised today by counsel that they have been advised it has not
      been possible to date to have that done and it is probably not going to
      be possible to have that done prior to the statutory release date which
      would be the summer of 2005.  It is possible that he may be put on a different
      lower intensity drug treatment program if he remains in the institution.

[9]

The
      learned sentencing judge, in my opinion, was correct to treat this as a
      serious matter and he was correct to take a serious view of it with particular
      regard to the background of the appellant who, as I have noted, was sentenced
      in the early 1990s to a very substantial term of imprisonment and not withstanding
      that, has relapsed back into behaviour that is criminal and he has relapsed
      back into the use of drugs for some years.  He is not what I would term
      a young offender being now 33 years of age and it seems that he is a person
      who himself must come to the realization that he is going to have to abstain
      from the use of drugs or else he will find himself again in trouble with
      the law.

[10]

The
      sentence imposed at the time it was imposed was one that had a valid purpose
      and recognized the aggravating circumstances relating to the offence and
      the offender.  But the hopes and expectations of the learned trial judge
      who sentenced the appellant have not been realized and apparently are not
      going to be fully realized having regard to the resources of the institution.

[11]

It
      seems to me that this appellant is an individual who requires some assistance
      to inspire him to do better.  For a substantial period of time while he
      was on the lengthy parole that he was on after being released on the offence
      for which he had been sentenced in 1992, he seems to have been able to
      do well in the sense that he got employment and was able to lead a more
      orderly life.  Then he began to use heroin and cocaine and that led to
      the present incident.  The use of cocaine, as is well known, often causes
      people to act in aggressive and irresponsible ways.  Of course heroin has
      its own perils because it tends to be a highly addictive substance.  This
      appellant has had addiction problems with two substances that have the
      capacity to cause him and those around him great difficulty which eventuated
      in the activities that led to his incarceration on the present offences.

[12]

Crown
      counsel has suggested that the sentence imposed was a fit one and that
      we ought not to interfere with it.

[13]

With
      perhaps some hesitation, I have been persuaded that in the rather unusual
      circumstances here where the course of treatment that the trial judge had
      in mind has proved to be an impossible achievement, it may be that another
      approach would be more efficacious in ensuring that this individual gets
      some treatment which according to his counsel he is firmly committed to
      doing and at the same time will provide a measure of control over him for
      a fairly lengthy period into the future.

[14]

So
      what I propose to do is to in part allow the appeal.   Iin place of the
      sentence of two and a half years imposed by the learned sentencing judge
      on the confinement count, I would substitute a sentence of 18 months and
      to that I would add a period of probation of 18 months which would take
      effect from the date of his release from custody.  I would direct that
      the probation order include specific terms that he abstain from the use
      of all narcotics, that he seek and maintain employment, that he should
      be under the direction of his probation officer, that he should keep his
      probation officer advised of his residence and his employment, and that
      he should under the direction of his probation officer seek treatment for
      his drug addiction problem.  He will be under the direction of the probation
      officer for a period of 18 months from the date of his release from his
      sentence of incarceration.  It seems to me that this is in accord with
      the disposition made by the learned sentencing judge who in my respectful
      view was correct in his general approach to this matter.  However, as I
      said, in light of the circumstance that his expectations with respect to
      the implementation of programs during the sentence have not been possible
      of achievement, it seems to me that the approach I have suggested may be
      an efficacious one in the particular circumstances of this case.  Therefore,
      I would alter the sentence in the way that I have set forth above.

[15]

SAUNDERS
        J.A.:
I agree.

[16]

LOWRY
        J.A.:
I agree.

[17]

HALL
        J.A.:
So, in the result, leave is granted, the
        appeal is allowed to the extent I have indicated, and the appellant will
        in due course enter into a probation order in the terms that we have
        ordered here today.

The Honourable Mr. Justice Hall


