



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Sesay,









2020 BCCA 41




Date: 20200124

Docket: CA46120

Between:

Regina

Respondent

And

Latto Simian Sesay

Appellant




Before:



The Honourable Madam Justice Saunders

The Honourable Mr. Justice Fitch

The Honourable Mr. Justice Butler




On appeal from:  An
order of the Supreme Court of British Columbia, dated
May 3, 2019 (sentence) (
R. v. Sesay
,
2019 BCSC 795, Victoria Docket 173593).

Oral Reasons for Judgment




Counsel for the Appellant:



R. Mansoori‑Dara





Counsel for the Respondent:



J.M. Gordon, Q.C.

J.A. Dyck





Place and Date of Hearing:



Vancouver, British Columbia

January 22, 2020





Place and Date of Judgment:



Vancouver, British Columbia

January 24, 2020








Summary:

The appellant seeks leave to
appeal and, if leave is granted, an order reducing his sentence for
aggravated assault. He was sentenced to six and one‑half years
imprisonment, less credit for pre‑sentence custody awarded at
a rate of 1.5, for an unprovoked sucker punch assault
that left the victim with a life‑altering brain injury. The
appellant submits that the sentencing judge erred
by: (1) imposing a demonstrably
unfit sentence; (2) failing to consider the appellants
personality disorder in assessing his moral blameworthiness; (3) treating
the appellants misleading statements to police following his arrest as an
aggravating circumstance; and (4) miscalculating his credit for
pre‑sentence custody. Held: Leave is granted and the appeal is
allowed, but only to the limited extent of reducing the sentence by
23 days to account for the judges mathematical error. The
sentence is not demonstrably unfit given the
appellants violent antecedents, the risk he poses to the public, and
the devastating harm caused to the victim. The sentencing judge did
not err by failing to treat the appellants personality disorder as a
mitigating circumstance. The sentencing judge did err in principle in
treating the appellants misleading statements to police, which sought to
deflect responsibility for the assault to the victim, as an
aggravating circumstance. However, this error cannot reasonably be
supposed to have had a material impact on the sentence.

FITCH J.A.
:

I.      Introduction

[1]

On March 31, 2018, the appellant,
Latto Simian Sesay, committed an unprovoked assault on
Brian Rowley by sucker punching him in the face when the
two men happened to encounter one another in an alley adjacent to a bar in
Victoria, British Columbia. Mr. Rowley crumpled from the powerful
force of the unexpected blow and struck his head on the ground. He sustained a
significant and life‑altering brain injury. Despite the fact that
the appellant acknowledged hearing the victims head hit the ground with what
he described as a sickening sound, he walked away from the scene
wagging his finger at Mr. Rowley in what I gather was some sort of
drunken taunt. The appellant made no effort to obtain
medical assistance for Mr. Rowley.

[2]

The appellant had been drinking heavily and ingesting cocaine
before committing the offence. When he was apprehended a short distance
from the scene, he resisted arrest and attempted to fight with
police officers. He was tasered twice and restrained in the course of the
ensuing scuffle. He told the arresting officers, If I am going to do
pen time, Im going to take one of you with me.

[3]

The appellant was charged with aggravated assault and obstructing a
peace officer in the execution of his duty, contrary
to ss. 268(2) and 129(a) of the
Criminal Code
,
R.S.C. 1985, c. C‑46 [
Code
].

[4]

The appellant pleaded guilty to the latter offence. He was
convicted of aggravated assault by a Supreme Court judge following a
four‑day trial. His defence of self‑defence was rejected.
Reasons for judgment are indexed as 2019 BCSC 76.

[5]

The appellant was sentenced to six and one‑half years imprisonment
for aggravated assault, less credit for pre‑sentence custody
awarded at a rate of 1.5 days for every day spent in pre‑sentence custody.
A concurrent sentence of six months imprisonment was imposed
for obstructing a peace officer. In addition, a number of
ancillary sentencing orders were made that are not contested on
appeal. Reasons for sentence are indexed as 2019 BCSC 795.

[6]

Against this background, the appellant seeks an order granting him leave
to appeal sentence and, if leave is granted, an order allowing his appeal and
reducing the sentence to five years imprisonment.

[7]

The appellant submits that the judge erred by: (1) imposing a
demonstrably unfit sentence; (2) failing to consider the appellants
personality disorder in assessing his moral blameworthiness; (3) treating
the appellants misleading statements to the police
following his arrest as an aggravating circumstance; and
(4) miscalculating the credit he should have been given for
time spent in pre‑sentence custody.

[8]

A few additional introductory remarks are necessary to put the
second ground of appeal in context. The appellant
does not dispute that he has a significant personality disorder
with antisocial and narcissistic traits. A psychiatric report
prepared for sentencing confirms this diagnosis. Further, the
appellant concedes that the sentencing judge was not asked to treat his
personality disorder as a mitigating circumstance that attenuated his
moral culpability. He acknowledges that this issue is raised for the first time
on appeal. He submits, nevertheless, that the sentencing judge had an
independent obligation to consider whether his personality disorder
contributed to the commission of these offences and served to diminish his
moral culpability. He argues that the judge erred in principle by failing
to make that inquiry on his own motion. To rectify the situation, he submits,
for the first time in oral argument, that the question of whether there exists
a link between his personality disorder and the offences should be remitted to
the sentencing judge for inquiry pursuant to
s. 683(1)(e) of the
Code
. The appellant relies on
R. v. Pahl
,
2016 BCCA 234, in support of this unusual submission.

[9]

The Crown concedes that the judge made a mathematical error in
calculating the time that should have been credited for pre‑sentence custody.
The appellant was credited 574 days. He should have been credited
597 days for time spent in pre‑sentence custody. The Crown
otherwise opposes the remedies the appellant seeks.

[10]

For the reasons that follow, I would
grant leave to appeal and allow the appeal, but only to the
limited extent of reducing the sentence by 23 days to take account of
the judges mathematical error.

II.     Circumstances of the Offence

[11]

The circumstances surrounding the lead offence were summarized by
the judge in his reasons for sentence:

[8]        At trial, Mr. Sesay testified that he walked
down the alley looking for his friends, who had agreed to meet up with him when
the bars closed at 2 a.m. He stepped into a puddle of liquid that he
though[t] was urine. He became frustrated and upset. When he saw Mr. Rowley
standing behind the dumpster, he decided to confront him, explaining in his
testimony it is what he does when he is upset. He also acknowledged that he has
a temper such that, he said, stuff builds up in me; it fills up like a jar and
I explode. Indeed, that is what occurred after he stepped in the puddle and
saw Mr. Rowley almost immediately thereafter.

[9]        Mr. Sesay walked up and stood in front of Mr. Rowley
to stop him, and said something to him. A brief verbal interaction, initiated
by Mr. Sesay, of approximately six seconds ensued. There was
nothing provocative or threatening about Mr. Rowleys movement of his arms
and hands. His appearance was passive throughout. Conversely, Mr. Sesay
took up what he called a bladed stance before striking Mr. Rowley, which
is something that he learned while in prison as a technique to fight. Mr. Sesay
also leaned into Mr. Rowley as he spoke to him. At one point, Mr. Sesay
placed his left arm and hand either on or in extreme close proximity to Mr. Rowleys
chest area and right shoulder as he leaned into Mr. Rowley, all the while
levelling insults at him.

[10]      Mr. Sesay knew that Mr. Rowley was not
responsible for the puddle that he had just stepped in.

[11]      Suddenly, and without warning, Mr. Sesay
punched Mr. Rowley directly in the face. Upon being struck, Mr. Rowley
immediately fell backwards to the ground and hit his head. Mr. Sesay
admitted in his evidence at trial that he knew Mr. Rowley was unconscious
as soon as he hit him. Even though Mr. Sesay watched Mr. Rowley fall
directly to the ground, heard him hit his head with a noise that he said he
will never forget, and claimed in his evidence to be alarmed at what he had
done, Mr. Sesay turned and walked quickly down the alley in the direction
he had previously come, and exited onto Courtney Street.

[12]      Just before leaving the alley, Mr. Sesay
turned back towards the direction where Mr. Rowley had fallen to the
ground, and raised his arm and wagged at least two of his fingers
as if to signal a final taunt or jeer. At no time did Mr. Sesay stop to
check on Mr. Rowley.

[13]      Prior to striking Mr. Rowley,
Mr. Sesay had been drinking alcohol with his girlfriend and other friends
since he finished work at approximately 4:30 p.m. on March 27. Over
the course of the evening, he consumed some 10 to 12 alcoholic drinks,
including three doubles, all containing vodka and the Red Bull caffeinated
energy drink. He also ingested cocaine.

[12]

Mr. Rowley was 28 years of age at the time of
sentencing. At the time of the assault, he was studying for a
masters degree in community development at the
University of Victoria. He was also working to pay for school and
volunteering with a community‑based association that provides support
to children with autism. As noted earlier, Mr. Rowley suffered a moderate
to severe brain injury as a consequence of the assault that will affect
him for the rest of his life. He was hospitalized for over one week after the
offence and continues to receive physical and cognitive therapy as an
outpatient at Victorias Royal Jubilee Hospital. He has no
current source of income and understandably struggles with both sadness and
fear that the appellant will come after him in the future.

[13]

As might be expected, Mr. Rowleys parents have also
experienced the impact of this offence. They relocated from
Ontario to Victoria to assist their son in his recovery. They did so
at the expense of their jobs and other family relationships, including
relationships with their grandchildren who live in Ontario. At the time of
sentencing, the victims mother had been forced to move back to Ontario to
secure work to meet the familys financial needs. As a consequence of this
decision, Mr. Rowleys parents are temporarily separated  an
unfortunate situation for which he feels responsible.

III.    Circumstances of the Offender

[14]

The appellant was 34 years of age at the time of
sentencing. He had an unfortunate upbringing that involved interventions
by the Childrens Aid Society and his placement in
various group homes.

[15]

The appellant was involved with setting fires to
a number of townhouses at a very young age. His first
encounter with the youth criminal justice system was when he was
13 years old.

[16]

The appellant has a horrendous criminal record. He has been
convicted of assault‑related offences on six occasions, most
recently in 2013. He has twice been convicted of
uttering threats. He has one conviction for robbery,
one conviction for sexual interference, and one conviction for
committing an indecent act. He has numerous convictions for failing to
comply with his probation order or recognizance. He has previously
served time in a federal penitentiary.

[17]

The appellants criminal history was summarized in greater detail
by the sentencing judge:

[28]

His
criminal record spans back in time to 1998, when he was 13 years old.
His record includes convictions for crimes (including assaults) involving
violence (which [the author of the pre‑sentence‑report] describes
as general, domestic, expressive, and instrumental violence), robbery, property‑related
offences, driving offences, sexual offences (one involving a friends child),
and failing to abide by court orders:

(a)

January 26, 1998,
assault;

(b)

June 6, 2000,
uttering threats, failing to comply with disposition and recognizance;

(c)

January 3, 2001,
theft under $5000 and failing to comply with disposition;

(d)

May 1, 2001,
escape from lawful custody;

(e)

August 3, 2001,
mischief under $5000 and failing to comply with disposition;

(f)

March 14, 2002,
assaulting a police officer;

(g)

March 26, 2003,
robbery;

(h)

September 7, 2004,
uttering threats;

(i)

March 20, 2007,
assault and public mischief;

(j)

February 4, 2010,
sexual interference, assault, theft under $5000, and failing to
comply with probation order and recognizance;

(k)

June 29, 2012,
failing to comply with prohibition regarding children;

(l)

October 11, 2012,
assault, mischief over $5000, and failing to comply with probation order;

(m)

May 10, 2013,
assaulting and obstruction of a police officer, indecent act;

(n)

September 18, 2013,
break and enter; failing to comply with probation order;

(o)

July 12, 2018,
driving while suspended;

(p)

August 9, 2018,
driving while prohibited;

(q)

October 10, 2018,
operating a motor vehicle to cause nuisance by noise; and

(r)

October 26, 2018,
theft under $5000.

[29]

The 2003 robbery
included threats of violence uttered by Mr. Sesay as he robbed a woman of
her purse while he was armed with a 12 inch knife. He told the victim
to give him her purse or he would stab her.

[30]

The 2004 uttering
threat offence involved Mr. Sesay, as one of a group of individuals making
harassing phone calls from jail to a woman. He threatened to kill her, telling
her that she would be cut up and raped.

[31]

The 2013 assaulting
and obstructing a police officer offence involved Mr. Sesay engaged in
physical violence, including kicking. He bit one officer and sent one for
medical treatment. It took five police officers to subdue him and get
him into the police van. He continued to misbehave while in custody and told
police officers that he would not come out of his cell without a fight. He took
a light from its fixture and held it up to use it as a weapon. While
handcuffed, he announced that he would injure as many officers as possible, and
when they least expected it, hed attack. He spat at one corrections officer.

[32]

While Mr. Sesay points to a five‑year period
without convictions between 2013 and 2018, some of that time was
spent in custody following his sentence on September 18, 2013 of 531 days
for breaking and entering.

[18]

Prior to his incarceration for the offences before us, the
appellant had not participated in any form of
drug or alcohol treatment. He had also declined to participate
in violence prevention programs made available to him in the past.

[19]

Despite his criminal record, the appellant told the author of the
pre‑sentence report that he believes he has good problem‑solving skills
and good coping skills. He said that he is not aggressive and
began working on developing more pro‑social skills during a period
of incarceration five years earlier. Notwithstanding his lengthy
history of non‑compliance with court orders, the appellant reported
having no concerns about his ability to follow any conditions deemed appropriate
by the court.

[20]

The appellant was found by the probation officer to be an
unreliable historian. For example, he denied having any children when he
was interviewed by the probation officer charged with preparing the pre‑sentence report
but told Dr. Miller, who prepared a pre‑sentence psychiatric report,
that he has two young boys with whom he is not in touch. In reports
prepared by the Correctional Service of Canada (CSC), the
appellant was noted to be a skilled manipulator for whom dishonesty seems
to come easily.

[21]

Dr. Miller diagnosed the appellant with an
alcohol and substance abuse disorder. He also thought it
probable that the appellant had a significant personality disorder with
antisocial and narcissistic tendencies. There was no evidence that the
appellant suffered from a severe mental illness such as
schizophrenia, bipolar disorder or other psychotic illnesses. There
was no evidence that his thinking process was impaired by mental illness
at the time of the assault, although it likely was by the
voluntary ingestion of alcohol and drugs.

[22]

In terms of risk assessment, Dr. Miller opined that the
appellant presented a moderate to high risk of
further violent offending. He also expressed the view that if the
appellant were to reoffend, it was likely he would commit similar offences
causing serious bodily harm.

[23]

Dr. Millers report is consistent with a
psychological assessment undertaken on behalf of the
CSC in 2014. In that report, the appellant was assessed as having
markers associated with psychopathy and being in the
high moderate range for both general and violent recidivism.

[24]

Notably, the appellant has performed well since being incarcerated.
In 2018, the appellant was placed in the Right Living Unit,
which holds reform‑minded offenders to strict account. Letters
submitted on his behalf by individuals working with him in the institution give
rise to guarded optimism that the appellant may finally be taking steps
towards rehabilitation.

IV.   The Positions of Counsel on Sentencing

[25]

The Crown sought a sentence of imprisonment of
six to eight years for aggravated assault and a concurrent
six‑month sentence for the obstruction offence. Neither the
Crown nor the sentencing judge made specific mention of the totality
principle.

[26]

The appellant sought a sentence of
two years less one day (after taking into account the time
he served in pre‑sentence custody) to be followed by a three‑year
probation order.

V.    Reasons for Sentence

[27]

The judge reviewed what he considered to be the
aggravating and mitigating features of the case. He gave the
appellants expressions of remorse limited weight, finding the appellant
to be disingenuous in relating to Dr. Miller the self‑serving
statement that he did not appreciate that he could hurt Mr. Rowley as much
as he did. The judge also viewed with caution the extent to which the appellant
claimed to have made rehabilitative strides while incarcerated.

[28]

The judge found the appellants moral culpability to be high and
concluded that the sentencing principles of protection of the public,
general deterrence and denunciation required emphasis.

VI.   Analysis of Grounds of Appeal

[29]

Appeals from sentence attract a deferential
standard of review. Appellate intervention will only be justified if
the sentencing judge committed an error in principle that had an impact on
the sentence or imposed a sentence that is demonstrably unfit:
R. v. Lacasse
,
2015 SCC 64 at para. 11;
R. v. Agin
,
2018 BCCA 133 at paras. 5657.

[30]

The appellants first ground of appeal is that the sentence is
demonstrably unfit. He submits that the general sentencing range for
aggravated assault is between 16 months and
six years imprisonment and says that nothing about this case
justified a departure from that range. I do not agree.

[31]

I begin by noting that aggravated assault is a serious offence
punishable by a maximum period of imprisonment of 14 years.

[32]

While sentencing ranges provide useful guidelines that serve
to minimize disparity in sentencing practices, they do not displace an
individualized approach to sentencing. That a sentence exceeds the
generally applicable range does not mean that it is the product of an error in
principle or that it is demonstrably unfit:
Lacasse
at
paras. 5761.

[33]

This Court has upheld sentences in the range of
six to eight years for assaults causing life‑altering injuries
to the victim. As noted in
R. v. Payne
,
2007 BCCA 541 at para. 44, sentences in the range of
six to eight years for serious aggravated assaults are not
uncommon: see also
R. v. Heiney
,
2018 BCCA 313 at para. 58;
R. v. Larose
,
2013 BCCA 450 at paras. 1722;
R. v. Woodward
,
2011 BCCA 251 at para. 30;
R. v. Tschritter
,
2006 BCCA 202 at para. 14;
R. v. Biln
,
1999 BCCA 369 at para. 24; and
R. v. Rasanen
(1997),
92 B.C.A.C. 74 at paras. 5, 9.

[34]

I recognize that no two cases are exactly alike and that
factual distinctions can be drawn between these cases and the
one at bar. As Justice Saunders noted in
Larose
at
para. 17, the circumstances in which the offence of
aggravated assault may be committed are variable and difficult to organize
into categories. I also recognize that the injury in this case,
as in
Woodward
, was caused by a single punch, not by a
prolonged beating or the use of a weapon.

[35]

Nevertheless, I am of the view that the sentence imposed in this case is
not a marked departure from sentences imposed in comparable cases.
Moreover, the sentence is justified by the appellants
violent antecedents, the risk he poses to the public, and the
devastating harm he caused to Mr. Rowley. The callous disregard the
appellant demonstrated by leaving Mr. Rowley unattended and in an
unconscious state is a particularly disturbing feature of this case. The
judge properly treated this as a factor aggravating the appellants moral
culpability. In my view, the sentence has not been shown to be demonstrably unfit.

[36]

I turn next to consider the appellants submission that the judge
erred in principle by failing to consider whether his personality disorder
should operate in mitigation of penalty. I would not give effect to this
ground of appeal.

[37]

The appellant has not been diagnosed with a
major mental disorder affecting his cognitive capacity. Rather,
he displays traits typically associated with an antisocial or
narcissistic personality disorder  traits that make him a
moderate to high risk to reoffend violently. The appellants
entrenched antisocial attitudes are reflected in his criminal record.
It is not surprising that the attitudes and behaviours rooted in his
personality disorder were not regarded by the judge as mitigating. Indeed,
I know of no case in which the antisocial personality traits of an
offender who has a lengthy record for violent behaviour has been treated as a
mitigating circumstance.

[38]

Further, it is not surprising that the
appellants substance abuse disorder was not treated as a mitigating factor
where the appellant, despite his criminal history, has not availed himself
of any form of drug or alcohol treatment in the past.

[39]

I see no merit in the appellants submission that the judge
committed a material error in principle by failing to consider whether
there was a link between the appellants personality disorder and his
assaultive behaviour, or in his related contention that the matter should
be remitted to the sentencing court for inquiry into that issue pursuant to
s. 683(1)(e) of the
Code
. In my view, the only
reasonable inference to be drawn from the psychiatric report is that
such a link exists. But even assuming that such an inference is unavailable on
the record, demonstration of the existence of a link between the appellants personality disorder
and the offences he committed would not assist him on this appeal. It would
simply confirm that he presents a continuing risk to public safety.

[40]

There is, however, merit in the appellants
third ground of appeal that the judge erred in principle by
treating misleading statements he made to the police following his
arrest  statements that sought to deflect responsibility for
the assault to Mr. Rowley  as an aggravating circumstance.

[41]

To put this issue in context, the remarks appear to me to have
been motivated by a meritless submission made by the appellants
trial counsel (not counsel on this appeal) that the appellant demonstrated
remorse from day one. The judge asked how this could be so in
circumstances where the appellant sought from the outset to cast blame on
Mr. Rowley. While I do not question the legitimacy of the
judges inquiry, as a general rule the fact that an offender made
disingenuous statements to the police after his arrest is not properly
characterized as an aggravating circumstance. The judge was entitled, in
my view, to entirely discount the submission that the appellants post‑offence conduct
displayed immediate remorse. He was also entitled to consider the
appellants post‑offence conduct in assessing the appellants rehabilitative prospects.
The difficulty in this case is that the judge appears to have used the
appellants attempt to shift responsibility to Mr. Rowley as a
circumstance that aggravated the offence:
R. v. Kreutziger
,

2005 BCCA 231 at para. 12
.

[42]

In addressing the aggravating features of this case, the judge said
this:

[72]      Another [aggravating factor] is Mr. Sesays
untruthful account to the police, following his arrest, of the events in order
to paint Mr. Rowley in a negative light and thereby decrease his own
culpability.



[107]    To summarize, the circumstances of Mr. Sesays
assault on Mr. Rowley involved an unprovoked and direct forceful assault,
borne out of Mr. Sesays uncontrolled anger, on an unsuspecting victim who
had no opportunity to defend himself, in order to mete out punishment for an
act Mr. Sesay knew Mr. Rowley did not commit. Mr. Sesay
immediately left the scene after watching Mr. Rowley fall to the ground
and strike his head, knowing that he had struck him with such force that he was
immediately rendered unconscious. As he left, he turned and wagged at least two
of his fingers back where Mr. Rowley lay on the ground in defiance. After
learning how to fight in prison, Mr. Sesay was well aware of the force he
could use when striking blows with his fist.
In dealing with the police
after his arrest, Mr. Sesay knowingly provided an inaccurate account of
events in order to cast culpability on his victim and thereby minimize his own.
The degree of Mr. Sesays moral culpability is high.

[Emphasis added.]

[43]

In my view, the judge erred in principle in his approach to this issue.
The issue is whether this error in principle had an impact on the sentence:
Lacasse
at para. 44. In my view, it did not. In light of the number and kind of
aggravating circumstances present in this case, the appellants post‑offence attempt
to shift responsibility for what occurred to Mr. Rowley cannot reasonably
be supposed to have played any material role in the imposition of the
sentence. I would not intervene on this basis.

[44]

As noted earlier, the trial judge made a mathematical error in
calculating the number of days the appellant should be credited for
time served in pre‑sentence custody. To rectify this error, I would
reduce the sentence imposed on the appellant by 23 days.

VII.  Conclusion

[45]

In the result, I would grant leave to appeal and allow
the appeal to the limited extent of reducing the sentence by 23 days.

[46]

SAUNDERS J.A.
: I agree.

[47]

BUTLER J.A.
: I agree.

[48]

SAUNDERS J.A.
: Leave to appeal is granted. The
appeal is allowed to the extent of substituting for the sentence imposed a
sentence of six and one‑half years less 597 days
to account correctly for pre‑sentence custody, that is a reduction
of 23 days.

The Honourable Mr. Justice Fitch


