



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Berry
,









2014 BCCA 7




Date: 20140109

Docket: CA040682

Between:

Regina

Respondent

And

Chad
Douglas Berry

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, referred to in this judgment by the initials l.b., c.d., a.t., and
c.l.d.
this
publication ban applies indefinitely unless otherwise ordered.




Before:



The Honourable Mr. Justice Chiasson

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Goepel




On appeal from:  An
order of the Supreme Court of British Columbia, dated
November 20, 2012 (
R. v. Berry
, Prince George Docket No. 31286-4).




Counsel for the Appellant:



D.M. Melville





Counsel for the Respondent:



S.J. Brown





Place and Date of Hearing:



Vancouver, British
  Columbia

November 26, 2013





Place and Date of Judgment:



Vancouver, British Columbia

January 9, 2014









Written Reasons by:





The Honourable Mr. Justice Willcock





Concurred in by:





The Honourable Mr. Justice Chiasson

The Honourable Mr. Justice Goepel






Summary:

The offender appealed an
effective sentence of 14 years imprisonment for the commission, on one day, of
multiple offences, including two aggravated assaults. He was sentenced to
imprisonment of 6 years for each assault, to be served consecutively. The
offender argued on appeal that those sentences should not be served
consecutively, and that the global sentence imposed in relation to what he
referred to as one criminal adventure was unduly long and offended the totality
principle.

Held: appeal allowed. The
sentencing judge did not err in imposing 6-year sentences for the assaults, or
in ordering that the sentences be served consecutively. However, in light of
his age, the short sentences imposed for prior offences, and the remaining
prospect of rehabilitation, the offenders global sentence was unduly long. The
sentence was disproportionate to sentences imposed in comparable cases.  The
global sentence will be reduced from 14 years to 10 years, less time served in
custody prior to sentencing.





Reasons
for Judgment of the Honourable Mr. Justice Willcock:

Background

Charges

[1]

This is an appeal from a sentence imposed by Mr. Justice Parrett on
November 20, 2012. The offender pleaded guilty to the commission of the
following offences on or about March 11, 2010 in Prince George, British
Columbia:

a)       aggravated assault of L.B.,
contrary to s. 268(2) of the
Criminal Code
;

b)       unlawful confinement of C.D.,
contrary to s. 279(2) of the
Criminal Code
;

c)       aggravated assault of C.D.,
contrary to s. 268(2) of the
Criminal Code
;

d)       uttering a threat to cause death
or bodily harm to L.B., contrary to s. 264.1(1)(a) of the
Criminal Code
;

e)       uttering a threat to cause death
or bodily harm to Mario Jorge Marques, contrary to s. 264.1(1)(a) of the
Criminal
Code
;

f)        breaking and entering the
residence of A.T. and committing an indictable offence therein, contrary to s. 348(1)(b)
of the
Criminal Code
;

g)       committing theft of a motor
vehicle, the property of Dale Girouard, with a value in excess of $5,000,
contrary to s. 334(a) of the
Criminal Code
;

h)       committing theft of a camper, the
property of Dave Kelley, with a value in excess of $5,000, contrary to s. 334(b)
of the
Criminal Code
; and

i)        committing
mischief in relation to property the value of which did not exceed $5,000, by
willfully damaging or destroying a motor vehicle, the property of Dale
Girouard, contrary to s. 430(4) of the
Criminal Code
.

Circumstances of the Offence

[2]

The first four offences, the aggravated assaults of L.B. and C.D., the
confinement of C.D., and the threatening of L.B. all occurred in a residence on
Oak Street in the City of Prince George on March 11, 2010. Following the
commission of those offences, the offender escaped and hid until the departure
of the police and then broke and entered another residence, the home of A.T.
Here, he uttered threats and stole the vehicle and property of the homeowner.

[3]

The particulars of the circumstances of the offences described at the
sentencing hearing were as follows.

[4]

In the early morning hours of March 11, 2010, the offender kicked
and banged on the door of a residence in Prince George occupied by L.B. and C.D.,
who were known to him. C.D. opened the door and the offender entered the
premises and went into the room occupied by L.B. who was asleep in bed. When
she refused to have sex with him he struck her, hit her in the head, broke her
cell phone, and smashed her computer. C.D. heard the noise and came into the
bedroom. The offender took her phone, put her in a headlock, punched her, and
pushed her onto the floor. He then put on gloves, threatened to murder the
women, and began to attack them. He punched and struck each of the women. He also
hit each of them multiple times with a sharp object, stabbing L.B. in the upper
right arm, the right cheek, the upper left arm, and the left temple. C.D. was
stabbed in the forearm, the left rear shoulder, and in the right upper breast. Both
women were left with bruises from blows that were inflicted upon them; both
were left with scars that remained visible at the time of sentencing, three
years after the assault. The assaults left both victims traumatized and L.B.
was left with a residual shoulder injury, in addition to her scars, and
continued to suffer emotional problems at the time of sentencing.

[5]

Eventually L.B. and C.D. were able to escape the offenders attack and
he fled the premises. After hiding from the police for some time, he entered a
basement suite about a mile away. Upon encountering the tenants there, C.L.D. and
Mario Jorge Marques, he claimed to have killed the victims of the first assault.
He took property from the residence and stole a vehicle. Before leaving, he had
threatened to take C.L.D. with him but he left her behind. The offender told
Mr. Marques that if he said anything to anybody he would come back into
town and kill him.

Circumstances of the Offender

Criminal Record

[6]

The offender was born on September 17, 1983 and was 26 at the time
of the offence and 29 on the date of his sentencing. He had fallen in with a
negative peer group in high school and rapidly developed a pattern of drug
abuse and addiction. Notwithstanding that, he has at times been a contributing
member to society. He has occasionally been employed as a pipefitter and in
construction and has completed a pre-apprenticeship program as a
millwright/machinist.

[7]

At the time of the offence, the offender had a criminal record; the
record included multiple convictions dating back to his youth.

[8]

In August 1999, he was convicted of an assault, committed as a youth,
and was sentenced to community service work.

[9]

In December 2003 and May 2004, he was convicted of three offences that had
occurred in June and July of 2003: possession of a controlled substance,
uttering threats to cause death or bodily harm, and driving while his licence
was prohibited or suspended. He was sentenced to a conditional discharge and a
fine.

[10]

In August 2005, he was again convicted of driving while prohibited; his
licence was suspended and he was fined again.

[11]

In May 2007, he was found guilty and sentenced for five offences that had
occurred in August 2005, February 2006, and August 2006. The offences were:
being unlawfully in a dwelling house, assault, carrying a weapon or prohibited
device, possession for the purpose of trafficking, and failure to appear
pursuant to a court order. In relation to all of these offences he was
sentenced to 124 days in custody, and four additional jail sentences ranging
from 30 to 90 days.

[12]

The Crown described the circumstances of the most significant of these offences,
that which occurred in August 2005. The offender, together with another man,
Jordan Corrigal, was said to have entered the residence of the victim of the
crime through an open door. Once in the residence, the offender and Mr. Corrigal
entered the bathroom while the victim was having a shower, and assaulted him. The
victim was knocked down and kicked in the head by the offender and Mr. Corrigal.
When a neighbour entered the apartment, they fought with him and fled, chased
by the neighbour. The victim suffered a bloody nose, bruising, and tread marks
to his face.

[13]

On July 4, 2007, the offender was found guilty and sentenced for five offences
committed between February 10, 2006 and June 4, 2006 including:
uttering threats on three occasions, the breach of an undertaking or
recognizance, and possession of stolen property with a value over $5,000. In
relation to these offences he was sentenced to six months in jail.

[14]

At the time of his sentencing, the offender also faced several charges
arising out of an assault said to have been committed in Port Coquitlam in
August 2009, at a time when he was in the Lower Mainland for addiction
treatment.

[15]

The longest sentence he received, after pre-sentence custody, before the
sentencing in this case, was six months.

Drug Addiction and Rehabilitation

[16]

The offender had informed his probation supervisor that he had a very
severe crystal methamphetamine addiction. The sentencing judge was advised that
he had made a number of unsuccessful attempts to address his addiction through
treatment programs.

[17]

The offender had attended a drug treatment facility for several months
in 2009, in the Lower Mainland. He returned to Prince George in November 2009,
for the funeral of a close friend. The offender is said to have received a phone
call threatening him in relation to drug debts. The offender says that anxiety
and the death of his friend led him to drink and to fall into very heavy use of
crystal methamphetamine. He was impaired at the time of the offences.

[18]

The offenders family was encouraging him to attend a treatment facility
before the March 11, 2010 crimes. Defence counsel advised the sentencing
judge that, had these offences not occurred, the offenders father had planned
to take him to a treatment facility on Monday, March 15, 2010.

Mental Illness

[19]

The offender had been counselled to seek mental health assistance prior
to the commission of the offences in question.

[20]

The offender had told his probation officer that he had homicidal dreams
and that he experienced pleasure when violence, he felt was deserved, was
inflicted upon others; following these admissions he was referred for a
forensic assessment in Prince George in July 2008. The resulting report was
before the sentencing judge. It recorded the offenders expressed desire to
engage mental health services to assist with his addiction issues. Dr. Unger,
the reports author, recommended that the offender seek counselling to address his
drug and alcohol addictions, and especially urged treatment to address a
borderline personality disorder. It was then thought such counselling could be
provided to the offender in Hazelton, British Columbia.

[21]

Crown counsel was not able to express an opinion, for the benefit of the
sentencing judge, with respect to whether any effective treatment might be
provided to a person with a borderline personality disorder.

Remorse and Appreciation of the Gravity of the Offence

[22]

The offender refused to submit to a psychiatric examination before
sentencing. He had made callous remarks both at the time of the offence and
subsequently, demonstrating the need for the mental health treatment described
by Dr. Unger.

[23]

His defence counsel notes, however, that he did not bring a weapon with
him to the scene of the crime and the criminal event appears not to have been
premeditated.

[24]

He is said, by his counsel, to have suffered remorse and to understand
the pain inflicted upon his victims.

[25]

Counsel advised the court that the offender did not have violent thoughts
or intentions when sober and not abusing drugs.

Family Support

[26]

The offender was reported to have the support of a loving family; his
family was present in court and willing to help him with his reintegration into
society. While they are supportive, his family refuse to live with him due to
the emotional toll of his behaviour. At a bail hearing in 2010, the offenders
father offered to serve as his surety and advised the court he had arranged for
him to attend a treatment center and would see to his attendance.

[27]

The offender had taken a substance abuse management program and a
violence prevention program while in remand. While those were considered by
counsel and the offender to be inadequate, they were said to be the best courses
available in remand. He had also been attending AA meetings.

[28]

The offender is the father of two children; the mother of his children
was supportive of rehabilitation and hoped to have the offender involved in the
childrens lives.

Sentence Imposed

[29]

The charged offences carry maximum penalties: aggravated assault,
14 years imprisonment; breaking and entry of a dwelling house and commission
of an indictable offence therein, life imprisonment; unlawful confinement, 10 years
imprisonment; uttering threats of death or bodily harm, 5 years
imprisonment; and theft and mischief, 2 years imprisonment.

[30]

The following sentences were imposed:

a)       In relation to the
aggravated assault charges, the offender was sentenced to two terms of
imprisonment of six years to be served consecutively;

b)       In relation to the charge
of uttering a threat to L.B., the offender was sentenced to a term of
imprisonment of one year to be served concurrently with the sentence for the
aggravated assault of L.B.;

c)       In relation to the unlawful
confinement of C.D., the offender was sentenced to a term of imprisonment of
one year to be served concurrently to the six-year aggravated assault sentence
in relation to the offence against C.D.;

d)       In relation to the charge
of uttering a threat to Mr. Marques, the offender was sentenced to a term
of imprisonment of one year to be served consecutively to the two, six-year
aggravated assault sentences;

e)       In relation to the charge
of breaking and entering and committing an indictable offence, the offender was
sentenced to a term of imprisonment for one year to be served consecutively to
the sentences for aggravated assault and the sentence for uttering threats to
Mr. Marques; and

f)        In
relation to the charges relating to the theft of the truck, the theft of the
camper, and mischief, the offender was sentenced to a term of imprisonment of
six months on each count, to be served concurrently to each other and also to
all other sentences.

[31]

The offender received one-for-one credit against the effective sentence
of 14 years for the two years, eight months, and eight days spent in custody
to the time of sentencing. The actual sentence imposed was 11 years, 3 months,
and 22 days in custody.

Grounds of Appeal

Consecutive Sentences

[32]

Counsel for the offender and Crown counsel did not disagree as to the
range of appropriate sentences for individual offences when the matter came on
for sentencing, but disagreed as to whether the sentences ought to be consecutive
or concurrent. The offender says the sentencing judge erred in principle in the
circumstances of this case by imposing consecutive sentences for offences that
ought properly to have been considered a single criminal episode. The sentences
imposed are said to have been at the high end of the appropriate range; to
impose such sentences consecutively results in a sentence that is
inappropriately long and that offends the totality principle.

[33]

The offender acknowledges the sentencing judge could appropriately
consider the fact there were multiple victims of his crimes, but says that where
the nexus between the crimes is such that they form part of a single criminal
adventure, particular attention should be paid to whether the cumulative
sentence is appropriate. The cases relied upon by the Crown and referred to by
the sentencing judge were said to involve multiple offences over several years.
The offender says the sentencing judge ought not to have relied on those cases
without close analysis of the period over which the offences were committed.
The offender says the sentences for the aggravated assaults ought to have been
imposed concurrently

Totality Principle

[34]

The offender argues the total sentence imposed is demonstrably unfit and
offends the totality principle.

[35]

The offender says he has not previously been sentenced to lengthy terms
of imprisonment. This crime was not part of a long history of criminal
activity. He says he travelled to Prince George to enter into therapy but had
to attend the funeral of a friend and thereafter fell into his habit of drug
abuse and, ultimately, crime.

[36]

Counsel for the offender says the sentencing judge fell into error by
overemphasizing denunciation and deterrence, apparently without addressing the
prospect of the offenders rehabilitation. The offender had not committed offences
in the three years prior to the offence in question, he was considering drug
rehabilitation; at the time of the offences he might not have been fully
committed to criminal life. His parents were encouraging him and he had some
prospect of gainful employment at the time he committed the offences. The
offender is still a young man and counsel says there was no reason for the
sentencing judge to discount any prospect of rehabilitation. The court in every
case should consider the prospect of rehabilitation.

Adverse Inference

[37]

Lastly, the offender says the sentencing judge erred in drawing an adverse
inference against the offender because of his failure to participate in psychological
and risk assessment reports before sentencing. The offender says a person may
wish to oppose such a report for many reasons, including the likelihood of
delay of sentencing, and further, simply opposing an application cannot be
considered to be an aggravating factor. Drawing an adverse inference would be
contrary to the principle that the Crown must prove all aggravating factors
beyond a reasonable doubt and contrary to the right to silence guaranteed by s. 7
of the
Charter.


Position of the Crown

Consecutive Sentences

[38]

The Crown says an appellate court should be slow to interfere with the
sentence imposed by a judge with firsthand knowledge of the offence and the offender.
There is no error in principle in this case. It is within the discretion of the
sentencing judge to treat assaults upon distinct victims as separate crimes and
to impose consecutive sentences. A concurrent sentence would not reflect the
offenders moral culpability in this case in relation to each of the assaults.

[39]

The Crown relies upon
R. v. Li,
2009 BCCA 340, as
authority for the proposition that distinct offences committed in overlapping
circumstances may still result in consecutive sentences; crimes committed in
these circumstances may have both separate and individual impacts. It was open
to the sentencing judge to see separate assaults as separate incidents in this
case. The offender must be sentenced in a way that addresses his moral culpability:
R. v. Maliki
, 2005 BCCA 495.

Totality Principle

[40]

The Crown says the offender does not provide the court with comparable
cases demonstrating that the global sentence imposed in this case was unfit.
That is so particularly in light of the following aggravating factors:

a)       the offence occurred in the
early hours of the morning;

b)       it involved entry into a
home and an assault upon a sleeping victim;

c)       the victim was threatened while
a family and children were upstairs in the house;

d)       upon being discovered,
rather than fleeing the scene, the offender threatened and assaulted the
intervening witness;

e)       each assault was very
violent;

f)        before the second assault
escalated the offender put on gloves to intimidate and terrorize the second victim;

g)       the offender broke and
entered the second home and, there, threatened to kill the occupants; and

h)       the
offender has previous convictions for being unlawfully in a dwelling house and
assault. He had also previously been convicted of uttering threats.

[41]

The Crown says the sentencing judge was aware of the offenders attempts
to rehabilitate himself but was concerned with respect to the extent of the
offenders violent conduct and the fact that his underlying condition could not
be assessed or explained. The risk assessment in this case justified a lengthy
sentence. There was no basis for attributing the offenders violence to a
condition amenable to treatment. Based on his prior history and the absence of
evidence called on his behalf, the sentencing judge could only conclude that
there was no good prospect of rehabilitation. The sentencing judge ought to
have been concerned about the forensic report tendered in evidence on
sentencing which referred to:

a)       the offenders homicidal
thoughts;

b)       concerns with respect to his
mental health;

c)       a long history of
antisocial behaviour; and

d)       the
offenders pride in his past acts of aggression.

[42]

All of this is said to support the conclusion that the offender is a
risk to the community. There is an absence of evidence to dispel the conclusion
that must be drawn from his material. The Crown says there should be no
objection to the length of the sentence in this case.

[43]

In support of the sentence imposed, the Crown refers to cases involving violent
home invasions resulting in 8 to 10 year sentences.

[44]

The Crown says the sentencing judge properly referred to the objectives
of sentencing described in the
Criminal Code
and that he cannot be said
to have given inappropriate weight to the principle of denunciation, or failed
to properly consider the principles that govern whether sentences should be
consecutive or concurrent in relation to the type of crime spree described in
the evidence.

Adverse Inference

[45]

The Crown says the sentencing judge expressly said he would not read
anything into the offenders refusal to agree to a risk assessment, but noted
that the refusal left concerns unresolved. The concern expressed by the sentencing
judge was whether the cause of the offence was alcohol and drug use or an underlying
condition. The Crown says it was appropriate in the circumstances for the
sentencing judge to seek further information and, when it was not provided, to
note that he could only rely upon statements to the probation officer, the
report from adult forensics recommending treatment, and the offenders conduct,
in assessing his risk. The Crown says the sentencing judge did not treat the
refusal to agree to a pre-sentence report or psychological assessment as an
aggravating factor on sentencing and simply noted that in the absence of such a
report inferences would have to be drawn from the evidence with respect to the
risk the offender would reoffend violently.

Discussion

Standard of Review

[46]

Because this Court is frequently called upon to consider the fitness of
sentences, the law in this area is well-settled and often restated. In
R. v. Potts
,
2011 BCCA 9, this Court addressed the standard of review both in relation to
the fitness of the sentence and whether sentences imposed should be served
consecutively or concurrently. The standard of review generally was described
as follows:

[17]

The standard of review on a sentencing
appeal is a deferential one. The sentencing judge enjoys considerable
discretion because of the individualized nature of the process:
R. v. L.M
.,

2008 SCC 31, [2008] 2 S.C.R. 163 at paras. 14, 17. [In] the absence
of an error in principle, failure to consider a relevant factor, or
overemphasis of the appropriate factors, a sentence should only be overturned
if the sentence is demonstrably unfit:
R. v. McDonnell,

[1997]
1 S.C.R. 948, 114 C.C.C. (3d) 436 at para. 17;
R. v. Li
,

2009 BCCA 85 at para. 23.

[47]

The principal issues in this case, proportionality, the totality
principle and the effect of consecutive sentences were recently revisited in
R. v. Radjenovic,
2013 BCCA 522, where Mr. Justice Hall for the Court held:

[10]      Extensive reference was made by counsel for the
appellant to the well-known case of
R. v. C.A.M
., [1996] 1
S.C.R. 500, 105 C.C.C. (3d) 327, which could be described as something of a
bible in the law relating to sentencing.  This was a case in which a
Provincial Court judge in this province had imposed a cumulative sentence of 25
years on a 55-year-old offender guilty of a particularly egregious series of
offences arising from a largely uncontested pattern of sexual, physical and
emotional abuse inflicted upon his children over a number of years (at para. 1). 
This Court, by a majority, reduced the sentences to a total of 18 years and 8
months ((1994), 28 C.R. (4th) 106, 40 B.C.A.C. 7).  The Supreme Court of Canada
restored the original sentence.

[11]      In citing this case, counsel referred particularly
to the importance of the principle of proportionality enunciated by the Supreme
Court of Canada.  In
C.A.M
., Lamer C.J.C. said this:

40   []
It is a
well-established tenet of our criminal law that the quantum of sentence imposed
should be broadly commensurate with the gravity of the offence committed and
the moral blameworthiness of the offender
. As Wilson J. expressed in her
concurring judgment in
Re B.C. Motor Vehicle Act
, [1985] 2 S.C.R. 486,
at p. 533:

It is basic to any theory of
punishment that the sentence imposed bears some relationship to the offence; it
must be a fit sentence proportionate to the seriousness of the offence.  Only
if this is so can the public be satisfied that the offender deserved the
punishment he received and feel a confidence in the fairness and rationality of
the system.



42  In the context of consecutive
sentences, this general principle of proportionality expresses itself through
the more particular form of the totality principle. The totality principle,
in short, requires a sentencing judge who orders an offender to serve
consecutive sentences for multiple offences to ensure that the cumulative
sentence rendered does not exceed the overall culpability of the offender. As
D. A. Thomas describes the principle in
Principles of Sentencing
(2nd
ed. 1979), at p. 56:

The effect of the totality
principle is to require a sentencer who has passed a series of sentences, each
properly calculated in relation to the offence for which it is imposed and each
properly made consecutive in accordance with the principles governing
consecutive sentences, to review the aggregate sentence and consider whether
the aggregate sentence is just and appropriate.

[Emphasis of Hall J.A.]

[12]      Proportionality was
said to express itself particularly through the totality principle, a
principle which requires a sentencing judge (or judges) who orders consecutive
sentences to ensure that the total sentence imposed does not exceed the
overall culpability of the offender

[48]

In relation to the question whether sentences should be concurrent or
consecutive, this Court in
R. v. Potts
held:

[88]      The test for imposing concurrent sentences is
whether the acts constituting the offence were part of a linked series of acts
within a single endeavour:
R. v. Li
, 2009 BCCA 85 at para. 42. 
It is important to repeat, however, that the decision of whether to impose
consecutive or concurrent sentences is a matter of discretion for the
sentencing judge: [
R. v.
]
McDonnell
, [[1997] 1 S.C.R. 948]
at para. 46:

[46]  ... the decision to order
concurrent or consecutive sentences should be treated with the same deference
owed by appellate courts to sentencing judges concerning the length of
sentences ordered. The rationale for deference with respect to the length of
sentence, clearly stated in both
Shropshire
[
R. v. Shropshire
,
[1995] 4 S.C.R. 227] and
M. (C.A.)
, applies equally to the decision
to order concurrent or consecutive sentences. In both setting duration and the
type of sentence, the sentencing judge exercises his or her discretion based on
his or her first-hand knowledge of the case; it is not for an appellate court
to intervene absent an error in principle, unless the sentencing judge ignored
factors or imposed a sentence which, considered in its entirety, is
demonstrably unfit. The Court of Appeal in the present case failed to raise a
legitimate reason to alter the order of concurrent sentences made by the
sentencing judge; the court simply disagreed with the result of the sentencing
judges exercise of discretion, which is insufficient to interfere.

[89]      Courts have considered
the following non-exhaustive list of factors in determining whether to impose
concurrent or consecutive sentences:  the nature and quality of the criminal
acts; the temporal and special dimensions of the offences; the nature of the
harm caused to the community or to victims; the manner in which the criminal
acts were perpetrated; and the offenders role in the crimes.

[49]

There is therefore considerable deference owed to sentencing judges both
in relation to the fixing of sentences and in relation to determining whether
the sentences should be served concurrently or consecutively. These decisions
should be left to the good sense of the sentencing judges. It is essential,
however, for this Court to play a supervisory role in ensuring that the
sentence is in keeping with the offenders record and future prospects.

Adverse Inference

[50]

Before addressing the imposition of concurrent sentences and the total
sentence imposed in this case, we must consider whether the sentencing judge
erred in drawing an adverse inference that might have had an impact upon sentencing.
The inference in question is said to be drawn in paras. 48 and 49 of the
reasons for judgment, where the sentencing judge held:

[48]      The aggravating
factors in the present case include:



3.      By
refusing to cooperate with a psychological assessment or a risk assessment, the
court is left with a very incomplete picture of the accuseds psychological
makeup. I am well aware that he has the right to maintain his right to silence.
The court, however, is entitled to draw the logical inference that a person who
would commit these offences is a danger to the community and each person in it,
and in particular any members of that community who cross his path or make his
acquaintance.

[49]      I specifically draw
that inference in the present case: firstly, from the overall material before
me; and secondly, from the absence of any complete psychological assessment
which could dispel those concerns.

[51]

In my view, the quoted passage demonstrates the very limited nature of
the inference drawn by the sentencing judge as a result of the offenders
failure to engage in a psychological risk assessment. The inference appears to
have been nothing more than recognition that the offender did not seek to
challenge whatever picture of his psychological makeup emerged from the
evidence before the court. Such conclusions can fairly be drawn without
imperiling the right of an accused not to call evidence:
R. v. Jolivet
, 2000 SCC 29 at paras. 26-28.

[52]

No inappropriate burden was being placed upon the offender. The Crown
was, properly, obliged to bear the onus of establishing the facts upon which it
relied seeking the sentence urged upon the sentencing judge. The sentencing
judge did have the 2008 report from the Forensic Psychiatric Services
Commission from which he could draw the conclusion that the offender posed a
danger to the community. That conclusion was properly drawn from evidence
adduced by the Crown. Similarly, the evidence of the offenders long history of
antisocial behaviour and addiction issues was also before the sentencing judge.
I would not accede to the offenders argument in relation to the inference.

Consecutive Sentences

[53]

This Court has held that consecutive sentences are appropriate not only
in relation to wholly unconnected incidents but also in circumstances where the
offences are committed against multiple victims in close proximity:
R. v. R.J.G
.,
2007 BCCA 631;
R. v. Abrosimo
, 2007 BCCA 406;
R. v. Maliki
,
2005 BCCA 495;
R. v. G.P.W
. (1998), 106 B.C.A.C. 239.

[54]

In my view, the sentencing judge in this case properly considered the
authorities. Having done so it was within his discretion to impose consecutive
sentences in relation to the aggravated assaults and the subsequent offences. I
would not interfere with his sentence in this regard.

Totality Principle

[55]

When consecutive
sentences are imposed, the final duty of the sentencing judge is
to make
sure that the totality of the consecutive sentences is not excessive. As this
Court stated in
R. v. Abrosimo
and again, recently, in
R. v. K.V.E.,
2013 BCCA 521, the most significant issue before this Court on sentencing
appeals is not whether sentences imposed should have been consecutive or
concurrent, but whether the
global
sentence is unreasonable or unfairly
reflects the moral culpability of the offender. That requires us to consider
whether the total sentence is in keeping with the offenders record and future
prospects. In the case at bar, the offender argues that the sentence of 12
years for the two assaults offends the totality principle.

[56]

Lamer C.J.C. noted in
R. v. C.A.M.
:

[T]he totality principle  requires
a sentencing judge who orders an offender to serve consecutive sentences for
multiple offences to ensure that the cumulative sentence rendered does not
exceed the overall culpability of the offender.

[57]

While consideration of that principle is often urged upon the court with
a view toward reducing the global sentence, the fitness analysis occasionally
results in imposition of a longer sentence on appeal, as in
R. v. K.V.E.
,
where Madam Justice Stromberg-Stein, for the Court, held that an appeal should
be allowed and a global sentence increased from 5 to 10 years
imprisonment. The Court in that case described the importance of
proportionality in the following terms:

[36]

A fundamental principle of sentencing
is proportionality; that is, a sentence must be proportionate to the gravity of
the offence and the degree of responsibility of the offender. This must be
balanced with the principle of parity, which requires a court to impose a
similar sentence for a similar offence committed by a similar offender in
similar circumstances.

[58]

In my view, the effective sentence of 14 years imposed in this case
was disproportionate to the gravity of the offence and the degree of responsibility
of the offender. It is unduly long in relation to sentences for similar offences
committed by similar offenders in similar circumstances; further, the sentence
gives little weight to the prospect of rehabilitation.

[59]

The parties have referred the Court to jurisprudence that establishes a
range of sentences for aggravated assault. In
R. v. Kim,
2010
BCCA 590, the range of sentences for unprovoked aggravated assault is said to
range from 16 months to six years. Notwithstanding that range, numerous cases were
provided to the Court, and referred to in
R. v. Kim
, where
sentences in excess of six years were imposed. Those included:
R. v. Payne,
2007 BCCA 541 (10 years);
R. v. Wallin,
2003 BCSC 809 (9 years);
R. v. Armstrong
, 2003 BCSC 1057 (8 years); and
R. v. Hiscock
,
2002 BCSC 1772 (8 years). A sentence of seven years in
R. v. Kim
was not demonstrably unfit.

[60]

In
R. v. Payne
, this Court considered an appeal from a
10-year sentence arising out of a violent and premeditated aggravated assault.
In doing so it reviewed numerous cases including, once again,
R. v. Armstrong
,
where a 31-year-old offender was sentenced to eight years for each of two
aggravated assaults, to be served concurrently.

[61]

In
R. v. Willier
, 2005 BCCA 404, the offender received
a total sentence of five and one-half years for the aggravated assault of his
ex-wife and some of her family members when he burst into her house and stabbed
two people. The facts in that case were described as follows:

[5]        The charges arose out
of an incident that occurred at the residence of the appellants ex-wife,
Christa Willier, in the early morning hours of 13 September 2003.  Ms. Willier,
Mr. Mathers, and Ms. Mackeen, who had been out for the evening, were
socializing in the living room of Ms. Williers apartment when, at
approximately 1:00 a.m., the appellant burst into the apartment uninvited
and unannounced.  He had forced his way past Mr. Wiebe, his ex-wifes
uncle, to gain entry to the building.  He was armed with a knife, which he
removed from his sock or his boot after he entered.  He was under the influence
of alcohol and cocaine.  Ms. Mackeen arose and attempted to greet him but
he threw her out of his way and against a wall.  He went directly to Mr. Mathers
and stabbed him in the abdomen.  Leaving the knife embedded to the hilt in Mr. Mathers
abdomen, he went after Ms. Willier.  He caught her in the kitchen, where
he repeatedly slammed her head against his knee and, with a second knife that
he apparently obtained from the kitchen; he cut her on the neck.  He returned
and found Mr. Mathers, who was attempting to escape, in the bedroom.  He
slashed Mr. Mathers across the face with the second knife, cutting him. 
Then, he left the apartment.  Still holding the knife as he was leaving the
building, he encountered Mr. Wiebe, who was engaged in telephoning for
help.  The appellant told Mr. Wiebe that he would kill him if he should
rat on him.

[62]

The offender in that case had a lengthy criminal record and the sentencing
judge noted that the offender was likely high on drugs or alcohol at the time
of the incident. The sentence took into account the offenders Aboriginal
background. The court referred to
R. v. Johnson
(1998), 131
C.C.C. (3d) 274 (B.C.C.A.), where it was said that the range of sentences for
similar offences was 16 months to 6 years, and
R. v. Biln
,
1999 BCCA 369, where this Court noted that the sentence range for similar
offences is imprisonment for two years less a day to six years, depending on
the degree of violence and provocation.

[63]

In my view, it is important to note that some of the cases at the high
end of the range, like
R. v. Armstrong
and
R. v. Willier
,

are cases where the offender has assaulted more than one person. In
R. v. Willier
,
there was an assault upon a primary victim and related assault upon a witness
in circumstances similar to the case at bar. Similarly, in
R. v. Armstrong
,
the offender assaulted the principal victim, a bail officer and then the second
person who tried to intervene. The global sentence in
R. v. Armstrong
was eight years, and in
R. v. Willier
, five and one-half
years. Comparatively, a global sentence of 14 years (12 years for the
assaults) in this case is unduly long.

[64]

I agree with the argument advanced by the offender in this case that an
unfit sentence resulted when the learned sentencing judge imposed two sentences
of imprisonment, each at the high end of the range, to be served consecutively.
In my opinion each of the consecutive sentences may be fit but the cumulative
sentence nevertheless exceeds the overall culpability of the offender.

[65]

Additionally, some evidence was led at sentencing of the offenders
attempts at rehabilitation and his familys encouragement of those efforts. Those
efforts included attendance at AA meetings in remand, attendance at various
treatment facilities in the past, and a plan for rehabilitation interrupted by
the crimes that placed him before the sentencing judge. In his reasons for
judgment, the sentencing judge discussed the offenders anxiety and substance
abuse and noted that the offender, with help from his supportive family, was
seeking help. In my respectful view, however, these factors do not appear to
have been adequately taken into account in considering whether the global
sentence was unduly harsh.

[66]

In my view, a fit global sentence in this case would be a term of
imprisonment of 10 years less time served in custody prior to sentencing;
this would result in an actual sentence of 7 years, 3 months, and 22 days
in custody. Where it is found that the total sentence offends the totality
principle, the reduction in the total sentence can be allocated proportionally
to each offence. I would allow the appeal, set aside the sentence and
substitute for the sentences imposed by the sentencing judge the following sentences
in relation to the specified charges:

a)       aggravated assault of L.B.
contrary to s. 268(2) of the
Criminal Code
: four years
imprisonment;

b)       uttering a threat to cause
death or bodily harm to L.B. contrary to s. 264.1(1)(a) of the
Criminal
Code
: one year imprisonment, concurrent to the sentence for the aggravated
assault of L.B.;

c)       aggravated assault of C.D.
contrary to s. 268(2) of the
Criminal Code
: four years
imprisonment, consecutive to the sentence for the aggravated assault of L.B.;

d)       unlawful confinement of
C.D. contrary to s. 279(2) of the
Criminal Code
: one year
imprisonment, concurrent to the sentence for the aggravated assault of C.D.;

e)       uttering a threat to cause
death or bodily harm to Mario Jorge Marques contrary to s. 264.1(1)(a) of
the
Criminal Code
: one year imprisonment, consecutive to both sentences
for aggravated assault;

f)        breaking and entering the
residence of A.T. and committing an indictable offence therein contrary to s. 348(1)(b)
of the
Criminal Code
: one year imprisonment, consecutive to the
sentences for aggravated assault and uttering a threat;

g)       theft
of a motor vehicle, the property of Dale Girouard, with a value in excess of $5,000,
contrary to s. 334(a) of the
Criminal Code
; theft of a camper, the
property of Dave Kelley, with a value in excess of $5,000 contrary to s. 334(b)
of the
Criminal Code
; and mischief in relation to property the value of
which did not exceed $5,000, by willfully damaging or destroying a motor
vehicle, the property of Dale Girouard, contrary to s. 430(4) of the
Criminal
Code
: imprisonment of six months on each count to be served concurrently to
each other and also to all other sentences.

The
Honourable Mr. Justice Willcock

I agree:

The
Honourable Mr. Justice Chiasson

I agree:

The Honourable Mr. Justice
Goepel


