



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Harding,









2012 BCCA 52




Date: 20120127

Docket: CA034706

Between:

Regina

Respondent

And

Mark Anthony
Harding

Appellant




Before:



The Honourable Mr. Justice
  Lowry





The Honourable Madam Justice Neilson





The Honourable Mr. Justice Groberman




On appeal from: Supreme
Court of British Columbia, July 26, 2006
(
R. v. Harding et al
, 2006 BCSC 1309, Powell River Registry No. 13359-4)

Oral Reasons for Judgment




Counsel for the Appellant:



M.G. Scott





Counsel for the (Crown) Respondent:



A. Budlovsky, Q.C.





Place and Date of Hearing:



Vancouver, British
  Columbia

January 27, 2012





Place and Date of Judgment:



Vancouver, British
  Columbia

January 27, 2012








[1]

LOWRY J.A.
: The appellant was convicted of second degree murder
before Mr. Justice Barrow: 2006 BCSC 1309. He has been sentenced to life in
prison and, for reasons indexed as 2006 BCSC 1971, will not be eligible for
parole for 12 years. He seeks leave and if granted appeals his ineligibility
for parole contending that to be fit it should be 10 years.

[2]

James Moss was beaten to death by the appellant late at night in his
rundown home in a somewhat remote location. He was 52 years of age, living on a
disability pension, and was not in good health. He was alone. The appellant,
who was in his early twenties, and another young man, Richard Peers, went there
to get some marihuana, which Moss was selling to supplement his income. A
confrontation developed between Moss and the appellant which became physical. Moss
struck the appellant with the butt end of a shotgun on his head perhaps twice. The
appellant then overpowered Moss. He proceeded to beat Mosss head and virtually
every part of his body severely and ultimately left him to die. Moss was not
found for several days. When he was, his face was unrecognizable.

[3]

The appellant and Peers were tried together. The appellant was convicted
of murder with his defence of self-defence being rejected. Peers was convicted
of manslaughter.

[4]

At the sentence hearing, with respect to the appellant the Crown
contended for a period of ineligibility at what was said to be the upper end of
the range: 12 to 15 years. The defence conceded there were some features of the
offence that would warrant an increase in the parole ineligibility period but
said any increase should be minimal: 11 or 12 years.

[5]

After reviewing the circumstances and considering the authority to which
he was referred, the judge concluded as follows:

[44]      I am satisfied, based
on the criteria set out in s. 745 and the authorities noted, that it is
appropriate to increase the period of parole ineligibility. In particular, Mr.
Harding's criminal record; the circumstances of the killing, that is, a
prolonged and vicious beating; and the fact that it occurred in Mr. Mosss own
home are matters which warrant this conclusion. I am not persuaded, however,
that a period of parole ineligibility at the upper end of the range identified
by the Crown is appropriate. I reach that conclusion based on the distinctions
between the cases to which counsel have referred and the circumstances of this
case. I conclude that a period of parole ineligibility of 12 years is
appropriate, and that is the period I impose.

[6]

Thus, the judge identified three aspects of Mosss murder that warranted
increasing the period of ineligibility, although he did not accept it ought to
be increased to the extent the Crown sought. The first was the appellants
criminal record, the second was the way he had killed Moss, and the third was
the fact Moss had been killed in the privacy of his own home. The appellants
criminal record is extensive. The judge summarized it as follows:

[20]      Mr. Harding has a
criminal record which, while lengthy, contains no convictions for violence. As
a youth, he was convicted of break and enter in November 1998; possession of
stolen property and drugs in May of 2003; and possession of stolen property in
August of 2000. For all of these offences, he received periods of probation. In
May of 2003, while still a youth, he was convicted of break and enter. He was
sentenced to four months of open custody to be followed by two years probation.
As an adult, he was convicted of break and enter in January 2002 and sentenced
to 30 days in jail. In April of that year, he was convicted of break and enter,
possession of stolen property, and failing to stop for a police officer. He was
given a 12-month conditional sentence. Finally, in December of 2003, he was
convicted of dangerous driving causing death. The deceased in that matter was a
passenger in a stolen vehicle that Mr. Harding was operating and was a good
friend of Mr. Harding's. For that offence, Mr. Harding was sentenced to a year
in jail. He was released from jail in August 2004. From then until his arrest
on the offence before the court, he supported himself largely through selling
cocaine and other drugs.

[7]

The question now is whether the sentence imposed with the increased
period of parole ineligibility is demonstrably unfit:
R. v. Shropshire
,
[1995] 4 S.C.R. 227 at 46.

[8]

The appellant contends the judge erred in principle because he based his
determination of the ineligibility period on three factual errors, although
none of them are reflected in the three aspects of the murder the judge
identified as warranting the 12 year period. The errors are said to have led
the judge to take a more aggravated view of the appellants culpability than
was warranted and the deference to be accorded to the judges view of what he
considered to be a fit sentence is not what it otherwise would have been:
R.
v. Johnson
(1996), 112 C.C.C. (3d) 225, paras. 36  37).

[9]

The appellant first says he was sentenced on the basis he went to Mosss
house to rob him, using overwhelming violence if necessary when he should
have been sentenced as someone who went there to buy marihuana with no
intention to commit robbery. This appears to be so, although the judge did not
say anything about using overwhelming violence. The point is the judge
concluded the appellant and Peers planned to rob Moss, employing violence if
necessary, but on their conviction appeals this Court found there was no
evidence to support the judges finding of any plan to rob Moss:
R. v. Peers
,

2009 BCCA 74, and
R. v. Harding
, 2011 BCCA 282. Peerss conviction
for manslaughter was for that reason set aside. The appellant says he should
have been sentenced on the basis he and Peers had gone to Mosss home to buy marihuana,
not to rob Moss.

[10]

The appellant next says he was sentenced on the basis he attacked Moss
who, in resisting him, obtained a shotgun. With respect to Moss having struck
the appellant with the butt end of the gun, the judge said he was satisfied
that occurred at sometime during the altercation but it was not clear when or
under what circumstances. He said he was not prepared to assume those blows or
that blow had started the altercation. He said I am satisfied that [the
blows] were delivered by Mr. Moss in an unsuccessful effort to defend himself.
The appellant says this is at odds with what the judge said in convicting him
when the judge stated he was satisfied Moss struck the appellant with the
shotgun and that may have been the event which precipitated the altercation
that followed. Later he said I have not overlooked the fact that Harding was
assaulted by Moss. The appellant says he should have been sentenced on the
basis that he was attacked by a shotgun-wielding Moss such that he was to a
point entitled to defend himself.

[11]

Finally the appellant says he was sentenced as someone who denied
responsibility for his actions maintaining he had never intended to kill Moss,
although in open court he had apologized to the victims family and the judge
accepted his apology as genuine. What the appellant maintained was taken from a
pre-sentence report that recorded the appellant as saying he never intended to
kill anybody and might be guilty of manslaughter at worst; he tried to knock
Moss out; he wanted to get away; he did not go to Mosss home intending what
happened. He says he should have been sentenced as someone who had taken
responsibility for having caused Mosss death.

[12]

I consider that, in view of this Courts conclusions, the judges
statement to the effect the appellant and Peers had formed the intention to go
to Mosss home and employ violence as necessary to rob him had no place in the
reasons for the sentence imposed on the appellant which the judge gave. It is,
however, significant that the appellant and Peers were sentenced together and,
while planning to employ violence to rob Moss was essential to Peerss
conviction for manslaughter, the judge did not suggest it was in any way the
basis of the appellants conviction for murder.

[13]

While there may be some inconsistency in what the judge said with
respect to the appellant being struck with the shotgun initiating the
altercation, I do not consider the judge can be said to have sentenced the
appellant on the basis that he attacked Moss, at least not before Moss had
struck the appellant with the butt of the shotgun. It is not clear what it was
that prompted Moss to retrieve the shotgun and strike the appellant as he did,
but it cannot be said that he committed an unprovoked attack on the appellant. He
was after all faced with two uninvited young men who had come to his rural home
where he was alone late at night looking for marihuana.

[14]

Further, I see little in the contention the judge was wrong in the view
he took of the appellant accepting the culpability of his actions. The
appellant was convicted of either meaning to kill Moss or meaning to cause him
harm that he knew would likely cause his death and was reckless as to whether
death ensued (
Criminal Code
s. 229). The judge did not find it necessary
to say which. The appellants culpability is essentially the same in any event:
R. v. Nygaard,
[1989] 2 S.C.R. 1074 at para. 58. The judge properly took
the view that on what was recorded in the pre-sentence report the appellant did
not accept the full measure of what he had done in murdering Moss despite the
apology he expressed.

[15]

The judge undertook a comprehensive review of the authorities. Allowing
for his error in finding the appellant and Peers had planned to rob Moss using
such force as necessary, I do not consider that, on the authorities he reviewed,
his increasing the period of parole eligibility to 12 years can be said to
render the appellants sentence for murdering Moss as he did demonstrably unfit.
The judge quoted the following from
R. v. Cerra,
2004 BCCA 594 at para.
17:

I have discerned a pattern from
decisions of this Court suggesting, in broad terms, the following: parole
eligibility greater than 10 years is justified when there is some particularly
aggravating feature; for a penalty of greater than 15 years, egregious
circumstances of a higher order of moral culpability are present.

[16]

The judge identified three factors which he regarded as particularly
aggravating features quite apart from any plan to rob Moss. Perhaps the most
significant was the way the appellant killed Moss. He suffered a prolonged
vicious beating and was then left to die. The judge imposed a sentence that was
not inconsistent with what the defence appeared to accept could be warranted.

[17]

I would grant leave but dismiss the appeal.

[18]

NEILSON J.A.
: I agree.

[19]

GROBERMAN J.A.
: I agree.

[20]

LOWRY J.A.
: The appeal is dismissed.

The
Honourable Mr. Justice Lowry


