R. v. Knight, 2014 BCPC 147 (CanLII)
Citation: R. v. Knight Date: 20140619
2014 BCPC 0147 File No: 60078-1
Registry: North Vancouver
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
BRANDON WILLIAM NIGHT
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE MERRICK
Counsel for the Crown: A. Lee
Counsel for the Defendant: E. Warren
Place of Hearing: North Vancouver, B.C., B.C.
Date of Hearing: May 1, 2014
Date of Judgment: June 19, 2014
[1] THE COURT: Brandon William Night has pled guilty to assault cause bodily harm contrary to s. 267(b) of the Criminal Code. On August 17th, 2013, Mr. Night boarded a transit bus being driven by Mr. Lapthorne without paying the fare. At the conclusion of the route, Mr. Night did not leave the bus and Mr. Lapthorne had to ask Mr. Night to get off the bus. When Mr. Lapthorne was about to start his next route, Mr. Night attempted to get back on the bus. Mr. Lapthorne did not allow Mr. Night on the bus and offered him a transfer so he could take another bus. Mr. Night attempted to get on the bus a few more times, but Mr. Lapthorne would not allow him on the bus.
[2] Finally, Mr. Night said he was going to take the bus. He pushed his way on the bus. Once on the bus, Mr. Night struck Mr. Lapthorne several times in the head with a closed fist. Mr. Lapthorne was eventually able to push Mr. Night off the bus. Once off the bus, Mr. Night was laughing and smiling to himself. At all times during this incident, Mr. Night was drunk.
[3] As a result of the assault, Mr. Lapthorne missed two and a half months of work.
General Sentencing Principles
[4] Sentencing is an individualized process in which the court must take into account not only the circumstances of the offence, but also the specific circumstances of the offender. Although the court must consider all principles of sentencing set out in the Criminal Code, certain principles will receive more emphasis than others depending on the nature of the offence committed. Crown counsel submits that a period of incarceration of four to six months is appropriate. Defence counsel submits that a suspended sentence is appropriate.
Mitigating Factors
1. Mr. Night entered a guilty plea.
2. Mr. Night has no prior record.
3. Mr. Night is a youthful offender, 19 at the time of the offence.
4. Mr. Night is described as coming from a disadvantaged background.
5. Mr. Night has an alcohol addiction.
6. Mr. Night recently started counselling.
7. Mr. Night has complied with his bail conditions and there have been no allegations of further offences.
8. Mr. Night has written an apology to Mr. Lapthorne.
Aggravating Factors
1. Mr. Lapthorne was engaged in an activity that increases the risk of confrontation and assaultive behaviour. This was an unacceptable violation of his integrity and the security of his person.
2. There were repeated blows to the head with a closed fist.
3. Mr. Night did not pay his fare, nor would he accept a transfer.
4. After the assault, Mr. Night was laughing and smiling to himself.
5. When arrested, Mr. Night blamed Mr. Lapthorne for what occurred.
6. As a result of the assault, Mr. Lapthorne missed two and a half months of work.
Is a Suspended Sentence Appropriate?
[5] Mr. Night is a young man with no prior record. He has been described as having a disadvantaged background. He is sorry for what occurred. He has enrolled in counselling. I must consider all available sanctions other than imprisonment that are reasonable.
[6] That said, this was a significant assault. Mr. Lapthorne was struck a number of times in the head while he was at or near the area of the bus a driver normally occupies. He suffered whiplash-type injuries, disabling lower back pain and extensive bruising that resulted in him missing two and a half months of work. It is my judgment that the severity of the assault upon someone in a vulnerable position such as Mr. Lapthorne necessitates a jail sentence. I decline to suspend the passing of sentence.
Is a Conditional Sentence Appropriate?
1. The sentence of imprisonment will be less than two years.
2. Based on Mr. Night's compliance with his release conditions, the fact there have been no further charges, his remorse, and the fact he has enrolled in counselling, I am satisfied that serving the sentence in the community would not endanger the safety of the community.
3. The real issue at the sentencing is whether in Mr. Night's case a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in s. 718.2 of the Criminal Code.
[7] This was a severe attack on someone in a vulnerable situation. That said, Mr. Night is a young man with no prior record. He is remorseful and has provided an apology letter. He has enrolled in counselling. Denunciation and deterrence are the paramount sentencing principles given the severity of this assault on someone in a vulnerable position, and accordingly a jail sentence is appropriate even for someone with no prior record.
[8] However, in Mr. Night's case rehabilitation plays a significant role. It is my judgment that the sentencing considerations for aboriginal offenders along with Mr. Night's attendance at counselling, his young age and remorse sway the balance. A conditional sentence is appropriate in Mr. Night's case. Accordingly, there will be a conditional sentence for a period of 180 days with the following statutory conditions.
[9] Precedent 300, sir, you shall keep the peace and be of good behaviour.
[10] You shall appear before the court when required to do so by the court.
[11] No later than 4:00 p.m. today, you shall report in person to a conditional sentence supervisor at the probation office at 100 - 233 West 1st Street, North Vancouver, B.C., and you shall thereafter report as and when directed by the supervisor and in the manner directed by the supervisor.
[12] You shall remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the supervisor. You shall notify the court or the supervisor in advance of any change of name or address and promptly the notify the court or the supervisor of any change of employment or occupation.
[13] Precedent 302, when you first report to the supervisor, you shall inform him or her of your present residential address and phone number, and you shall not change your address or phone number at any time without first obtaining the written consent of the supervisor.
[14] Precedent 303, for the first 90 days of the conditional sentence order you shall obey a curfew by being inside of your residence between the hours of 10:00 p.m. and 6:00 a.m. each day except as follows:
(a) with the written consent of the supervisor, such consent to be given only for compelling personal, family, or employment reasons; and
(b) in the event of a medical emergency then only when traveling directly to or returning directly from a hospital emergency ward.
[15] Precedent 309, you shall present yourself at the door to your residence when any peace officer or supervisor attends there for the purpose of determining your compliance with the curfew condition of this order.
[16] Precedent 307, you shall have no contact or communication directly or indirectly with Gordon Lapthorne.
[17] I am further ordering as well that you are not to board or be on any transit bus operated by Mr. Lapthorne.
[18] Precedent 315, you shall not possess or consume any alcohol or any controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act except as prescribed for you by a physician.
[19] Precedent 327, you shall attend, participate in, and successfully complete any assessment, counselling, or program as directed by the supervisor. Without limiting the general nature of this condition, such assessment, counselling, or program may relate to alcohol or drug abuse, psychiatric and psychological health including attendance at the Psychiatric Forensic Out-Patient Clinic, and you shall comply with all rules and regulations of any such assessment, counselling or program.
[20] Precedent 332, you shall apologize to Gordon Lapthorne in the manner directed by the supervisor to the satisfaction of the supervisor no later than July 31, 2014.
[21] Precedent 333, under the direction and supervision of the supervisor, you shall successfully complete 35 hours of community service work which shall be completed within the first 120 days of this order.
[22] The conditional sentence order is then to be followed by a period of probation for one year. The statutory conditions apply, precedent 200. And then precedent 201A, within 72 hours after completion of your conditional sentence you shall report in person to the probation officer at 100 - 233 West 1st Street, North Vancouver, B.C., or the office at which you have been reporting to under the conditional sentence order, and after that you shall report as and when directed by the probation officer.
[23] Precedent 202, when you first report to the probation officer, you shall inform him or her of your present residential address and phone number and you shall not change your address or phone number at any time without first obtaining the written consent probation officer.
[24] Precedent 227, you shall attend, participate in, and successfully complete any assessment, counselling, or program as directed by the probation officer. Without limiting the general nature of this condition, such assessment, counselling, or program may relate to alcohol or drug abuse, psychiatric and psychological health, including attendance at the Psychiatric Forensic Outpatient Clinic, and you shall comply with all rules and regulations of any such assessment, counselling or program.
[25] Anything further from you?
[26] MR. WARREN: With respect to the curfew, Your Honour, I am going to ask, "Or a medical emergency of his mother" because he lives with his mother.
[27] THE COURT: Yes, or with his mother --
[28] MR. WARREN: If the medical emergency concerns --
[29] THE COURT: -- or --
[30] MR. WARREN: -- his mother, she has to go --
[31] THE COURT: Yes, in the event of a medical -- in the event of your medical emergency or the medical emergency of your mother.
[32] MR. WARREN: And with regards to the victim fine surcharge?
[33] THE COURT: He is not --
[34] MR. WARREN: It is prior to the amendments so I am asking under the circumstances that it be waived.
[35] THE COURT: Yes, based on Mr. Night's limited financial circumstances, I find to impose the victim fine surcharge would create an undue hardship and I waive the imposition of the victim fine surcharge.
[36] MR. WARREN: And I think it is a DNA secondary.
[37] THE COURT: Yes.
[38] MR. WARREN: So Your Honour has to make that decision as well.
[39] THE COURT: Yes. Madam Clerk, this applies to the conditional sentence order. It is a secondary designated DNA offence,
[40] Precedent 350B, pursuant to s. 487.051(3)(b), I make an order in Form 5.04 authorizing the taking of the number of samples of bodily substances by any peace officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration from Brandon William Night.
[41] Madam Clerk, I need you to refresh me on when he attends.
[DISCUSSION RE DNA PROVISION REPORTING]
[42] Then precedent 350C, pursuant to s. 487.051(4), I further make an order in Form 5.041 that Brandon William Night attend on June 24th before 3:00 p.m. at the RCMP detachment, the address will be inserted, North Vancouver and submit to the taking of the samples.
[43] MR. WARREN: Thank you, Your Honour.
[44] THE CLERK: And, Your Honour, I missed the time -- the period of the probation order.
[45] MR. WARREN: One year.
[46] THE COURT: One year.
[REASONS FOR SENTENCE CONCLUDED]