IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           In the early morning of April 2, 2014, Andre Richard broke into the home where his estranged wife and children were sleeping.  Carrying a rubber headed mallet and a drywall saw, he began hitting his wife, with both.  He struck his 13-year-old stepdaughter in the head when she intervened.  Next, he went downstairs, poured accelerant on the floor and set the house on fire.  His wife and children barely escaped before the house was destroyed.

[2]           The accused has pleaded guilty to: 1) Breaking and entering a dwelling house, with intent to commit an indictable offence; 2) Two counts of aggravated assault; 3) Intentionally causing damage to a property by fire, knowing that the property was occupied.

[3]           The Crown submits that a fit sentence, consisting of a series of consecutive prison terms, would be 10 years.  Mr. Richard concedes that he must be sentenced to a significant jail term, but submits that a fit sentence would be in the range of 5 to 6 years, of concurrent prison terms.  The parties agree that the accused must be given credit for the time he has served in custody at a rate of one and a half days for each day that he has served.

[4]           A court which sentences an offender who has been convicted of multiple offences may order that the sentences be served consecutively.  See, s. 718.3(4)(c)(iii) of the Criminal Code.  However, the court may instead order that the sentences be served concurrently, particularly where the offences were committed as part of a single event or as part of a pattern of similar offences committed over a short period of time.

[5]           The decision whether to order concurrent or consecutive sentences is within the discretion of the judge, but must be made within the framework created by the “totality principle” and by the fundamental principle of sentencing that any sentence must be: “…proportionate to the gravity of the offence and the degree of responsibility of the offender.” – s. 718.1 of the Criminal Code.  The totality principle is articulated in s. 718.2 (d) of the Code, which states: “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.”

[6]           As a general rule, the courts have held that sentences should be made concurrent where the acts constituting the offences were part of a: “…linked series of acts within a single endeavour.” R v. G.P.W. (1998), 106 B.C.A.C. 209 at paragraph 35.  But, consecutive sentences may be imposed even in cases involving what appears to be a single endeavour.  For example, consecutive sentences have been upheld where there were multiple victims in the same transaction.  See fit R v. Berry 2014 BCCA 7 and the cases cited therein at paragraph 7.

[7]           In sentencing an offender for multiple offences a judge must first determine what a fit sentence is for each of the offences.  Then the judge must determine whether they should be served concurrently or consecutively.  If the decision is that the sentences should be served consecutively, the judge must examine the totality of those sentences and adjust them if the total sentence would otherwise be unduly long or harsh.

[8]           There are two other important sentencing concepts relevant to this case – retribution and denunciation.  Retribution does not mean vengeance.  As Lamer CJ explained in R. v. M.(C.A.) (1996), 1996 CanLII 230 (SCC), 1 SCR 500 at paragraph 80:

[9]           At paragraph 81 of that decision, Lamer CJ described the concept of denunciation as follows:

[10]        The accused and Sonia Calla, were married in 2007.  They had a son born in the same year.  Ms. Calla had a daughter from a previous relationship.  At the time this incident occurred, his stepdaughter was 13 and his son was seven.

[11]        The family lived at a home in Langley.  Ms. Calla was employed as a psychiatric nurse, while Mr. Richard worked as a labourer for an auto parts company.  The relationship between them was marred by episodes of violence.  On several occasions, the Ministry of Children and Family Development had opened a file on the family because of concerns they had for the safety of the children.  

[12]        However, to outside observers this was a typical family.  Both parents worked; Mr. Richard volunteered at their school; he was an avid supporter of his son’s hockey team.  He hoped one day to coach his son.  The family was also fully involved in their church. 

[13]        However, in February 2014, the accused’s life began to unravel.  Mr. Richard was charged with assaulting his son.  He was released on bail terms which prohibited him from contacting the members of his family or from going to their home.  He found a place to live with a man with whom he worked.

[14]        Mr. Richard was in emotional turmoil over this turn of events.  On March 28, 2014, the accused and his colleague went to the family home, pursuant to the terms of his bail, which allowed him to go there on one occasion to pick up personal belongings.  None of his family was there.  He retrieved a box of belongings from the garage, but left behind two letters addressed to his wife and his children.

[15]        The letters are dated March 11, 2014.  In them, Mr. Richard purports to take “full responsibility” for putting the family in this situation.  He goes on to apologize for his conduct towards them, and promises that, in the future, he will change.  In particular, he promises never to be violent towards them; to always be calm and respectful towards them; never to cause them to fear him, and, he writes: “I promise to be a loving and caring husband and father.”

[16]        Although leaving the letters for his family violated the “no contact” terms of his bail, they were conciliatory in nature and contained no threats or ultimatums.

[17]        Other persons who had contact with Mr. Richard noticed that he was very upset by this forced separation from his family.  He spoke to his mother-in-law on March 24, 2014.  She was so concerned that she asked the police to check on his psychological or emotional condition.  On March 30, 2014, the man with whom he was living overhead the accused “mumbling” or talking to himself.  He reported that he heard the accused say that maybe he (Mr. Richard) should burn his house down (that is, the accused’s own house).

[18]        On April 1, 2014, Mr. Richard was served at work, on behalf of his wife’s lawyer, with a divorce petition and accompanying documents.  Mr. Richard was quite upset.  He sought out some acquaintances from his church and from his children’s school to discuss his predicament.  Other than talking to him they were unable to provide any assistance.

[19]        The accused eventually went home to his new residence.  He left there at about 8:30 p.m.  He never returned.  Shortly before 1 a.m., on April 2, 2015 he arrived at the family residence on Wakefield Drive in Langley.  His wife and children were asleep in their bedrooms on the upper floor of the house.

[20]        There is no doubt that the accused had come prepared to break into the house and to set in on fire.  He was wearing goggles and carrying a rubber headed mallet in one hand and a jagged edged dry walling saw in the other.  He broke a pane of the sliding glass door which led to the living room and went inside.

[21]        The accused went upstairs to Ms. Calla’s bedroom.  She had been awakened by the sound of the glass breaking.  There was a confrontation between the two of them, both raising their voices.  The accused’s 13-year old stepdaughter, who had also been awakened by the sound off breaking glass, heard the screaming and yelling.  She ran across the hall to her mother’s bedroom.  She saw Ms. Calla and the accused facing each other at the foot of the bed.  She saw the accused strike her mother first with his fist, then with the mallet, and then with the saw.

[22]        She tried to intervene by telling the accused to stop and by pushing him.  The accused struck her across the breast area with the saw and punched her in the shoulder.  She persisted in trying to protect her mother.  The accused then hit her on the head with the mallet.  She fell to the floor and in her words: “almost blacked out.”

[23]        The accused continued his assault on his wife, striking her several times with the mallet and the saw.  She fell to the floor and curled up in a ball.  He continued to strike her.  She called out to her daughter to call 9-1-1 and to press the panic button on their home alarm.  She pressed the alarm button and the alarm company dispatched the police at 1:11 a.m.

[24]        Mr. Richard abruptly stopped his attack on his wife and went downstairs.  He poured accelerant (that is, some sort of flammable liquid) on the floor of the living room and set it ablaze.  He left.  The living room was soon engulfed in flames.  Meanwhile, although seriously injured, Ms. Calla kept her wits about her.  She told her daughter to get her 7-year old brother from his room.  The three of them then went downstairs, made their way around the flames in the living room, left through the front door, and went to a neighbour’s house to seek help.

[25]        When the neighbours opened the door, they encountered a terrible sight.  Both Ms. Calla and her daughter were covered in blood.  In the background, they could see that the victims’ house was on fire.  Things got worse.  By the time that the ambulance arrived, Ms. Calla started having seizures and was initially unresponsive to the questions asked by the paramedics.

[26]        The three victims were taken to the hospital where Ms. Calla and her daughter were given treatment Ms. Calla suffered a punctured lung; lacerations to her neck, ear, forehead, arms and left hand.  Some of these cuts required sutures, resulting in some permanent scarring.  She was in hospital for two days.  Her daughter was treated for lacerations to her chest and head that required sutures.  She also has some permanent scars.  The seven-year old boy was not injured.

[27]        The family home was essentially destroyed by the fire.  It is uninhabitable.  All of the family’s belongings were destroyed.  Ms. Calla is still obliged to make mortgage payments and not surprisingly, is facing a difficult and complex task in making an insurance claim on a house destroyed by the criminal act of her husband.

[28]        The accused was arrested on the morning of April 3, 2014 near Invermere.  He had driven to Calgary, bought some clothing, some over the counter cold medication, some dryer vent tubing and duct tape.  The accused intended to use the tubing and duct tape to try to kill himself.  He had consumed all of the medication by the time he reached Invermere.  A motorist saw that he was driving erratically and phoned the police to report a possible impaired driver.  The motorist managed to get the accused to pull his vehicle off the road and surrender his keys.  While they were waiting for the police to arrive the accused began to slash his arms with an Exact-o-knife.

[29]        After arresting the accused the police searched his vehicle, finding a barbecue lighter in addition to the tubing, duct tape and empty medication containers.  He has remained in custody since his arrest.

[30]        Mr. Richard is 45 years old.  He has no criminal record.  He declined to be interviewed either for the pre-sentence report or for psychological report.  The probation officer was able to complete the PSR by interviewing the accused’s brother and sister and his wife and stepdaughter.  His counsel provided further information about the accused’s circumstances in submissions.  Mr. Richard’s decision not to participate in a psychological examination is not significant in this sentencing.  He was not legally obliged to participate.  In any event, there is no suggestion that he suffers from any mental illness.

[31]        Mr. Richard grew up in Ontario.  His brother and sister report that they were sexually abused by their step-grandfather.  They do not know if the accused suffered similar abuse, but it seems likely.  His siblings have essentially no relationship with the accused.  They recall him as having a bad temper and having difficulty controlling it.

[32]        The accused is a high school graduate and has been gainfully employed throughout his life.  While living with Ms. Calla and the children, he and they attended church regularly.

[33]        Ms. Calla and the accused met in 2005 and subsequently married.  She had a daughter from another relationship.  Their son was born in 2007.  She and her daughter report that the accused abused them both physically and emotionally throughout the time they were together.  The Ministry of Children and Family Development opened five files on the family over the years.  On one occasion the children were temporarily removed from the parents.  The accused and Ms. Calla took some counselling to address the problems identified by the Ministry.  

[34]        The accused committed three of the most serious offences in the Criminal Code.  Both the breaking and entering and arson charges carry a maximum prison sentence of life.  The maximum penalty for aggravated assault is 14 years in prison.  The range of sentence for each of these offences is rather broad.  It may not be accurate to state that there is a particular range of sentence applicable to the offences committed in this case.  The combination of such serious offences is unique.  The serious nature of these offences and the aggravating circumstances surrounding them require that I impose relatively long prison sentences.

[35]         Merely by going to the property the accused violated a term of his bail.  When he broke into the house, he knew that his wife and the 2 children were sleeping inside.  In committing the aggravated assaults on his wife and stepdaughter, he abused both his spouse and a child under the age of 18.  When he set the house afire he knew that Ms. Calla and the children were still inside.  Even worse, he then drove away, knowing that Ms. Calla, the only adult in the house, had been badly injured, thus seriously jeopardizing the ability of his family to escape the blaze.  To describe such behaviour as callous is an understatement.

[36]        Not only do Ms. Calla and her daughter have physical scars, they have emotional scars as well.  For example, one can only imagine the shock to the children as they watched their mother, covered in blood, go into seizures as they waited for the ambulance to arrive.  In her victim impact statement, Ms. Calla said that she is continually vigilant at night, worrying for the safety of her family.  Almost every night, she is once again struck with dread as the time approaches 12:56 a.m., which was when the accused broke into her home.

[37]        As well, the family has been financially devastated.  Ms. Calla is not yet able to return to work.  She has to survive on disability payments.  She described herself as making mortgage payments on “a house that no longer exists.”  She no doubt wonders whether the insurer will honour her claim, given that it was her husband who set the fire.

[38]        There was an element of planning in these offences.  The accused brought implements with him, which would not only assist him in breaking in, but which he could also use to attack his wife, or at least to overcome resistance.  He had gone to the house, intending to set it on fire.

[39]        The inescapable inference to be drawn from the circumstances of this event is that the accused committed these crimes out of rage.  Once he had been served with the divorce documents, he knew that his marriage was truly over.  It is obvious that he blamed his wife for deciding to divorce him.  He did not act under a sudden and uncontrollable impulse, but rather in a cool and calculated rage aimed directly at his wife.

[40]        Mr. Richard’s guilty plea is an important mitigating factor.  The case against the accused was overwhelming and a conviction was certain.  But, if he wanted to continue to get some revenge or to further traumatize his family, the accused could have done so by forcing them to testify at a trial.  This shows that the accused does recognize the extent of the harm that he has done and does not desire to do any more.  As well, he has not tried to minimize his involvement and concedes that the court must impose a fairly long prison sentence.

[41]        This attitude suggests that while in prison, he may be able to address the no doubt complex reasons for him committing these offences.  That is, there is at least some hope of rehabilitation.

[42]        The most important sentencing goals and principles in this case are protection of the public, separation of the offender from the public, denunciation and deterrence.  As I have said above, there is still some hope of rehabilitation, but that can only be a secondary consideration.

[43]        Ms. Calla and her children must be protected from the accused.  That can only be done by incarcerating him.  It may be that over time, the accused will be able to demonstrate that he no longer represents a danger to them or to any other partner with whom he may form a relationship.  Clearly, the accused has much work to do before he arrives at that point.

[44]        The court must denounce the horrific nature of these crimes which were aimed at a spouse and children, persons whom the law recognizes as being vulnerable.  Domestic violence is a scourge on our society and the court must through its sentence, do what it can to express society’s revulsion for it.  The sentence must also denounce the fact that the accused endangered the lives of not only his family, but of the neighbours, who could have been harmed if the fire spread.

[45]        The court must also consider a deterrent sentence, in the sense that insofar as any sentence deters others, to send the message to others that vicious attacks on spouses and children will be treated harshly.  It must also send the message to the accused that his conduct must be punished with a significant prison sentence.

[46]        Nonetheless, as I have stated above, a judge must exercise some restraint in imposing sentence, particularly in circumstances where the case calls out for a lengthy term of imprisonment.  I must heed the words of Chief Justice Lamer in R. v. M. (C.A.), supra, and strive to impose a just punishment and avoid an excessively harsh one.

[47]        It is somewhat difficult to separate the moral culpability of the accused for each separate offence.  It is clear, however, that his moral culpability increases with the commission of each successive crime, culminating in the horrific act of setting the home on fire with three people still in it.  He had already terrified his wife by breaking into the home and confronting her in the bedroom and then viciously attacking her and her daughter.  In setting the fire, he intended to destroy the home and knew that by doing so the he was further endangering their lives and safety.  The longest sentence, therefore, in this series of crimes should be imposed for the arson count.

[48]        I find that fit prison sentences for each of the offences are as follows: on Count 4 (break and enter with intent to commit an indictable offence) – four years; on Counts 5 and 8 (aggravated assault) – six years; on Count 11 (intentionally causing damage to property by fire) – 10 years.

[49]        I have considered whether any of the sentences should be made consecutive to the others.  In my view, all of these crimes were committed as part of a single endeavour, and that therefore the sentences must be concurrent.  The whole transaction took about 15 minutes.  All of the offences occurred in the same place over that brief time frame.

[50]      These are the sentences I would have imposed.  However, the accused must be given credit for the time he has served awaiting sentence.  He is entitled to receive 1.5 days credit for each day served.  He has been in custody since April 3, 2014.  This means that he must be given credit for having served slightly over 18 months in prison.  The sentences I impose are therefore, on Count 4 – 2 years 5½ months; on Counts 5 and 8 – 4 years 5½ months; on Count 11 - 8 years 5½ months.  All are concurrent to each other.

[51]        I order pursuant to s. 109 of the Criminal Code that the accused be prohibited for life from possessing any of the weapons, ammunition and explosives named therein.  I order pursuant to s. 487.051 of the Code that DNA samples may be taken from the offender on all four counts.  (These are primary designated offences.)  Pursuant to s. 743.21(1) of the Criminal Code, I prohibit the offender from communicating directly or indirectly with Sonia Calla, his stepdaughter, and his son during the custodial period of his sentence.  (The two children will of course be named in the order, but there is no need to provide their names in these reasons.).

[52]        I must order that the offender pay victim fine surcharges.  This may seem anomalous because he will be in prison for so long, but the law has been amended to bar me from making any exceptions.  I therefore order that the offender pay victim fine surcharges of $200 on each count for a total of $800.  He will be given two months to pay.

[53]        Pursuant to s. 743.2 of the Criminal Code, I order that these Reasons for Sentence; the Pre-sentence Report and Victim Impact Statements be forwarded to the Correctional Service of Canada.

[54]        This corrigendum to my Reasons For Sentence issued on April 14, 2015, is to correct and clarify paragraphs [48] and [50] as follows:

[55]        [48]      I find that fit prison sentences for each of the offences are as follows: on Count 4 (break and enter with intent to commit an indictable offence) – four years; on Counts 5 and 8 (aggravated assault) – six years; on Count 11 (intentionally causing damage to property by fire) – 10 years.

[56]        [50]      These are the sentences I would have imposed.  However, the accused must be given credit for the time he has served awaiting sentence.  He is entitled to receive 1.5 days credit for each day served.  He has been in custody since April 3, 2014.  This means that he must be given credit for having served slightly over 18 months in prison.  The sentences I impose are therefore, on Count 4 – 2 years 5½ months; on Counts 5 and 8 – 4 years 5½ months; on Count 11 - 8 years 5½ months.  All are concurrent to each other.