IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           These are the reasons for sentence in this case where Mr. Sukhvir Singh Badhesa has pled guilty to killing his mother, Darshan Badhesa, by beating her to death with his hands and feet.  He has also pled guilty to assaulting his wife, Piratpal Badhesa, and causing her bodily harm by whipping her with a USB computer cable.  Both of these offences took place on March 20, 2016 in the family residence.  Mr. Badhesa, his wife, his mother and daughters all lived together in this home.

[2]           I will paraphrase some of the details in the Agreed Statement of Facts.

[3]           The 39-year-old accused was living with his 35-year-old wife, 61-year-old mother, his 7-year-old daughter, and 1-year-old daughter.

[4]           The accused and his wife were married for two years prior to coming to Canada from India in 2006.  His mother came to Canada to live with the family a little over a year before she was killed by her son.

[5]           For up to four days before the offences, the accused had been drinking excessive quantities of alcohol.  He had consumed vodka, scotch and beer.  At the time of the offence he was highly intoxicated by alcohol.  It also appears that he was smoking opium during this time period.

[6]           There does not appear to be a history of physical violence in the home.  However, the accused was sometimes angry with his wife and called her names such as ‘dirty wife’ and ‘bitch’.  The accused was also angry at his mother.  He believed his mother had something to do with arranging his brother’s marriage into a bad family.

[7]           Something made him angry that day, and the accused’s wife tried to calm him down.  His temper flared and he punched a hole in a wall and broke some drinking glasses.  But his anger did not stop there.

[8]           His wife and two children removed themselves from the situation by going to another floor of the residence.  Eventually, the children went to bed.

[9]           It was then that the accused went upstairs and began whipping and hitting his wife all over her body with a USB computer cable.  He also hit her with a shoe, punched her in the head and threatened to kill her.  Supposedly his actions were because he thought ‘she was dirty and had ruined his name’.  At some point in time his daughters woke up and witnessed the whipping.  One daughter described the whipping to the police as ‘putting the wire all over my mom’s body’.  Photographs of the injuries suffered are gruesome, disturbing, and show what no doubt will be lifelong physical scars.

[10]        The accused’s own mother stood between him and his wife and tried to intervene by asking her son to ‘go lie down in his bed’.  The accused pushed his mother aside and told her to move out of the way and to sit down.  Instead, she removed herself from the room and went to her bedroom.

[11]        The accused followed his mother to her bedroom and assaulted her using his fists and feet.  He kicked his mother multiple times in the head, upper body and torso area.  She died as a result of the blunt force injuries to her head.  Paragraph 16 of the Agreed Statement of Facts detail her actual injuries found post mortem.

[12]        The accused’s daughter saw him with two knives, and while there were two knives found in his mother’s bedroom, there is no indication that he used the knives.  But it does appear that at some point he was armed with two knives, a shoe, and the USB cable.

[13]        There are pictures of the accused’s mother.  They are also horrific and disturbing.  She suffered a terrible beating at the hands of her son.  After the accused’s wife and daughter both saw his mother lying on the floor and believed that she was dead, the two young girls managed to escape to the neighbour’s place.

[14]        The accused then returned to his wife and began hitting her again until she eventually was also able to flee to the neighbour’s place.

[15]        The accused banged on the neighbour’s door and yelled threats.  Since the door was locked, the accused then tried to break in through a window.

[16]        The police arrived at the residence about 10 minutes after a 911 call.  Upon arrival, they observed the accused yelling and banging on a door.  Only after being told he was under arrest did the accused eventually drop the USB cable that he was carrying.  He was not compliant to commands and had to be tasered.

[17]        The Crown seeks a combined sentence of 13 years’ imprisonment.  They submit that the appropriate sentence for the manslaughter charge is 12 years’ imprisonment and one year imprisonment for the assault causing bodily harm charge.  They submit that the offences are distinct and separate and thus should be served consecutive to each other.

[18]        The defence position was less specific.  Generally, it is submitted that it is open for the court to consider a sentence in the four-year range, deduct the time served, which is significant, and get a sentence in the provincial range of two years less a day.

[19]        Both Crown and defence refer me to a number of aggravating and mitigating factors that they rely on to support their position.  I will discuss some of these later in these reasons.  However, I believe it is important to understand both the Crown and defence position regarding mental illness.

[20]        It is important to note that Dr. Lamba provided the court with information with respect to the accused’s state of mental health.

[21]        The Crown argues that the accused’s moral blameworthiness is high and submits that the act of killing his mother is close to the ‘near murder’ side of moral culpability.  They acknowledge that he may have some degree of mental illness.  However, they do not agree that this factor justifies the imposition of a sentence in the range being sought by defence.  They further submit that one of the main reasons this crime was committed was because the accused was so severely intoxicated.

[22]        The defence argues that the accused suffers from a mental illness and submits that I must consider this factor.  They submit that a proper consideration of mental illness will significantly lower the moral culpability of their client.  They agree that intoxication probably played a role in the commission of this offence, but contend that without the mental illness, this crime may not have happened.

[23]        The facts are agreed upon.

[24]        The Honourable Judge Sutherland in the decision R. v. P.S., 2017 BCPC 173, has perfectly condensed some of the principles of sentencing that I must consider.  In that case, the accused was dealing with different offences but these principles are relevant to Mr. Badhesa’s case.  At paragraphs 23 through to 35 Judge Sutherland writes:

[25]        I also wish to rely on Judge Sutherland’s words from R. v. Maan, 2016 BCPC 428, wherein at paragraphs 29 and 31 he makes general comments with respect to the process of sentencing.  In that case, the accused had killed someone while driving dangerously.  Once more, the facts of the case are not useful for our purposes, but I find great wisdom in Judge Sutherland’s sensitivity to the issues I must be consider when a life is lost.

[26]        While the crimes the accused had pled guilty to in this case are not by any means ‘an accident’ as in the Maan case, certainly in the taking of his mother’s life many people’s lives have been tragically changed because of this offence.  This includes the accused himself, as well as his wife and two daughters.

[27]        I emphasize that sentencing is a highly individualized process that involves a balancing of many considerations.  The circumstances of the offence are only a starting point.  Understanding the circumstances of the offender is equally important.  I must also consider all the aggravating and mitigating factors that will assist me in reaching a just, fair and fit sentence.

[28]        There are rarely ever two cases exactly the same.  Certainly, there are almost never two individuals with the exact same personal circumstances.  However, both Crown and defence have submitted a number of authorities for the courts consideration.

[29]        I have reviewed all the authorities, but do not believe they all need to be addressed in these reasons.  However, I will address some of them.

[30]        In R. v. Green, 2001 BCCA 672 (CanLII), [2001] B.C.J. No. 2434 (C.A.), the 33 year old accused, with no record, stabbed his friend 37 times.  The accused was high on drugs at the time of the offence – to the point that the trial judge accepted psychiatric evidence that he was in a drug-induced psychotic state at the time of the killing.  Even though he had no memory of the incident, he was remorseful.  The court upheld a seven-year sentence and found:

[31]        R. v. Hicks, 1995 CanLII 705 (BC CA), [1995] B.C.J. No. 545 (C.A.) is a case where the accused was found guilty of two counts of manslaughter.  While in a cocaine-induced psychotic state he stabbed two victims to death.  He received ten years’ imprisonment.

[32]        In R. v. Lindsay, [1997] O.J. No. 5317, the 46-year-old accused smothered his mother with a pillow.  He was remorseful and had pled guilty.  He received a 10-year sentence of imprisonment.  The court commented that the killing of a parent by a child is a rare occurrence.  In imposing sentence, the court must express society’s outrage at this type of offence.

[33]        R. v. McCormick, 2017 BCSC 145 (CanLII), [2017] B.C.J. No. 139 is a case where the accused pled guilty to beating his 64-year-old mother to death while in a self-induced crystal methamphetamine psychosis.  The attack was prolonged and severe.  He had a related record.  He received a 12-year sentence of imprisonment.

[34]        R. v. Kaiser, [2001] B.C.J., No. 1798 (C.A.) is a case where an accused with a very related record for domestic violence received a sentence of four years’ imprisonment.  In R. v. Goodings, [1991] B.C.J. No. 2126 (C.A.), the accused was sentenced to 20 months, plus three consecutive years for his repeated violence against women.  In R. v. Julian, [1990] B.C.J. No. 2775, the British Columbia Court of Appeal upheld a three-year sentence for an assault causing bodily harm charge.  That was a trial matter and the accused had five prior convictions for assaulting his wife.

[35]        R. v. Bell, [1992] A.J. No. 495 is an Alberta Court of Appeal authority where the high court adjusted a sentence from two and a half years imprisonment to two years less a day, for an assault causing bodily harm offence.  The court described the assault as lengthy, brutal, and degrading, and that it occurred in the presence of the children.  The accused was intoxicated and the wife indicated she forgave the accused and wanted to reunite the family.  Justice Stratton pointed out that the psychological effects on the victim and children cannot be fully measured.

[36]        R. v. Orozlo-Ovinones, [2004] B.C.J. No. 906 (C.A.) is a Vancouver decision that was upheld by the British Columbia Court of Appeal where the accused received a
14-month jail sentence for whipping a woman with a belt.

[37]        R. v. Engebretsen, 2015 BCSC 1752 is a case where the Crown sought a four to six-year sentence for an accused who pled guilty to manslaughter.  Defence sought a suspended sentence and probation.  In that case, the accused had spent most of the day drinking alcohol.  While extremely drunk he “armed himself with a knife and stabbed his step son in the heart.”  The court, at paragraph 10, found that “unlawful homicide can range from deaths that are almost accidental…right up to just a touch shy of murder.”  Justice Baird concluded that the accused stabbing his step son was closer to the murder end of the spectrum.  Quoting the Green case, which I have mentioned under the Crown’s authorities section at para. 10:

[38]        The accused was sentenced to four years.  The court took into account he was 56 years old, that the crime was out of character, and that the accused quit drinking alcohol.

[39]        R. v. Ispanovic, 2008 BCCA 270 is a case where the trial court essentially gave the accused a sentence amounting to eight years for shooting and killing the victim.  The accused was extremely intoxicated.  At para. 16, the court referred to Chief Justice McEachern, in R. v. Gillies (1998), 1998 CanLII 6387 (BC CA), 107 BCAC 157, the range for manslaughter was described as being between 8 to 10 years or more, explaining that the upper range usually involved torture, long records of violent offences, violence against a spouse, woman or child.

[40]        It was emphasized that a timely guilty plea was a factor that should be given significant weight.  At paragraph 20 the court relies on R. v. Randhawa, 2007 BCCA 598, for the proposition that “the early guilty plea spared the family and friends from the uncertainty of a trial, and his early assumption of responsibility” saved the expense of further proceedings, as well as indicated that the accused accepted responsibility for his crime, a step towards rehabilitation.  No criminal record was also relevant to the assessment of future risk, and the fact that the accused was 71 also played a role.  The court lowered the sentence to one of six years, minus time served.

[41]        In R. v. Johnson, 2017 BCSC 1240, the accused stabbed a stranger with a knife.  The court at paragraph 85 found that the accused’s degree of responsibility or lower level of moral blameworthiness reduced by his alcohol consumption, amongst other things.  He received a four-year sentence.

[42]        R. v. McCulloch, 2016 BCSC 2069 is a case where the accused stabbed the victim with a knife.  The accused was an addict and received a sentence of six years.

[43]        At paragraph 37, the court sets out factors in R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, where the court helps a sentencing judge focus on some general considerations in attempting to come to an appropriate sentence.  I may consider the choice of weapon used, if any; the degree of force used; the extent of the victims injuries; the degree of brutality; the existence of any additional gratuitous violence; the degree of deliberation involved; the extent to which the act reflected forethought of action or planning; the complexity of the act; what, if anything, provoked the act; the time taken to effect the act; and the element of chance involved in the resulting death.

[44]        In my view, mental illness is too often misunderstood.  Depression, if caught early and properly treated, can be a manageable condition.  Almost daily in these courts, I hear counsel refer to their client as ‘self-medicating’ with alcohol or
non-prescription drugs.  To me, this suggests that there is something medicinal about drinking alcohol to excess.  In fact, common sense demands that we recognize that those suffering from depression should stay away from alcohol.  After all, alcohol is a depressant.  It is my experience that many, if not most, crimes of violence in our court system have been committed while a person was under the influence of alcohol.

[45]        Whether you or a family member suffer from any mental health issues, it is clear that we must work together and communicate as a family and a community.  We must actively take steps to do anything we can to support professional, medical and mental health interventions.  Failing to provide for those that suffer from mental illness will certainly lead to more unimaginable tragedies.

[46]        The report details that in June 2015, the accused’s brother died.  At paragraph 13, Dr. Lamba writes:

[47]        Essentially he told Dr. Lamba that he vaguely remembered being arrested.  He did not have any clear recollection of any of his actions.

[48]        The report details his history of psychiatric illness.  In 2007, he was on a psychotropic medication and he reported a family history of psychiatric problems.  In short, Dr. Lamba concludes that Mr. Badhesa’s symptoms indicate an underlying serious mental disorder.

[49]        At page 11 of his report he writes:

[50]        Dr. Lamba put his risk to re-offending at “Low”, commenting that depression associated with increased alcohol consumption may create a higher risk of violence, suggesting that the victims would be those immediately close to him.

[51]        Mr. Badhesa asserts that he “wants to serve his sentence, put this incident behind him and return to his family as his wife is struggling financially and children are missing him.”

[52]        Under the heading “Attitude and Understanding Regarding Offence”, the accused states due to the offence and him being absent from the family home, his wife is having a difficult time, especially financially.  He states “we were living good family life before.”  With regards to how his children have been impacted by the offence, Sukhvir states “if (they have) good life in future, then they will forget.”  He states upon his release from custody, he will ensure his children have a good life, so that is all they remember.  Sukhvir states “what’s happened is happened.”  He indicates he needs to move on and focus on having a good life in the future for his family.

[53]      One issue in this case is how does the court deal with the concept of mental illness in the sentencing process?  There are two decisions that I wish to acknowledge as helpful when attempting to answer this question.

[54]        R. v. McConnell is a decision of Mr. Justice Romilly that I have found very useful in considering mental illness.  It is a 2014 decision from Prince George.  In that case, the charge was an assault causing bodily harm and assault with a weapon.  The details aside, Justice Romilly at paragraphs 8 through to 16 remind me again that every sentencing decision must reflect the applicable sentencing precedents and principles and that sentencing is a highly individualized process.  The sentence must be fit, similar to sentences imposed on similar offenders for similar offences, and generally within the usual range set out by our Superior courts.

[55]        Most relevant to our case is Justice Romilly’s analysis of mental illness as a mitigating factor.  At paragraph 20 he writes:

[56]        Justice Romilly also recognizes the consequences of the offence at paragraphs 23 to 25:

[57]        Justice Romilly found that the accused in McConnell was suffering from a type of mental illness at the time of the offence and treated this illness as a mitigating factor, concluding that it affected his moral blameworthiness.

[58]        The second case that I found extremely helpful is R. v. Whitlock 2017 BCSC 1998, which is a decision of the Honourable Madam Justice DeWitt-Van Oosten.  The accused was found guilty of second degree murder in the beating death of his mother.  The victim was killed at her residence.  She received blunt force injuries to her face and head, amongst other injuries.  The accused’s brothers found her in the back yard, where she had been dragged down an outside stairwell and left on a cement patio.  Justice DeWitt-Van Oosten described the attack as a brutal assault.  As might be said in our case, the Whitlock case was described as “any family’s worst nightmare.”

[59]        The accused had a documented history of mental illness and was assessed as suffering from paranoid schizophrenia and substance misuse, specifically alcohol and marijuana use.  In short, a well-known forensic psychiatrist concluded that the accused “has likely suffered from symptoms of genuine psychotic illness for years prior to the death of his mother.”  It is obvious that the accused had delusional thoughts for quite some time before he killed his mother.  He had a limited but disturbing and related record.  While in custody he was prescribed antipsychotic medication.

[60]        At paragraph 47, while referring to murder in that case, but equally applicable to our facts here, the court comments that “All homicide that is not justifiable is profoundly antisocial…the unlawful taking of a life is always an attack on the community and its values, regardless of the circumstances.”  The court then determined that the nature and extent of the injuries, the use of weapons, the fact that the victim was in a vulnerable position and unable to defend herself were all aggravating.  As well, leaving her on the patio to be found by others was aggravating.  Further, specifically with reference to s. 718.2(iii), the court found perpetrating an offence against his mother involved a significant breach of trust.

[61]        In Whitlock, the accused failed to acknowledge the existence of a mental illness.  Of course, in the case of Mr. Badhesa, he knows that he has some degree of mental illness and is willing to seek some assistance from professionals.

[62]        In Whitlock the defence argued that the existence of the mental illness should be treated as a mitigating circumstance in that its existence mitigates the accused’s moral blameworthiness.  This is the same argument that defence counsel makes on behalf of Mr. Badhesa.

[63]        The Crown’s position in Whitlock is found at paragraphs 61 through to 64.  I repeat them here, as they are extremely similar to the Crowns position in this case:

[64]        The court in Whitlock then made a finding that she was satisfied that at the very least, Mr. Whitlock’s mental condition “fuelled his behaviour” on the night of the offence.  Starting at paragraph 81, she summarized the courts position:

[65]        The court determined that parole ineligibility period was to be for 12 years.  I acknowledge that in imposing a sentence, I am not making a finding regarding parole.  I also acknowledge that Mr. Whitlock was found guilty of murder, after a trial versus Mr. Badhesa who has pled guilty to manslaughter.

[66]        Once more, with respect to Mr. Badhesa, according to Dr. Lamba, there were likely two factors that contributed to the crimes committed by Mr. Badhesa, and they were his state of depression and his state of intoxication.  This conclusion must be tempered with Dr. Lamba’s oral testimony where he made it clear that he could not say with any degree of certainty what Mr. Badhesa’s mental state was at the time of the offence.  But it is clear that he had a history of depression.  Since the time of the killing of his mother, the accused has received treatment for his mental health while in custody and appears to be mentally stable.  Of course he is sad and remorseful.  But he is mentally sound and fit.

[67]        I find that there is likely a connection between his mental state and the crime.  I believe Mr. Badhesa must be given the benefit of a doubt as to whether his state of mental health played a role in the killing of his mother.  Therefore, I find that his mental illness both at the time of the offence and since the offence is a mitigating factor.  However, I conclude that this factor does not significantly lessen his moral blameworthiness.

[68]        Another significant factor is his remorse.  It is obvious that he is extremely saddened by the tragedy that he is solely responsible for.

[69]        His guilty plea has saved the expense of a trial and the further trauma to his wife who would have probably had to testify.  His children, while very young, would no doubt have been negatively impacted by a trial as well.

[70]      In considering his wife’s victim impact information, I appreciate that she takes the position that she is willing to wait for the accused to serve his sentence.  I understand she wants the marriage to continue.  She envisions a future when she and her husband can take the remains of his mother back to India to the holy river.  I do not consider her ability to forgive as particularly mitigating.  However, the fact that the accused has supportive family in the community might be considered a mitigating factor.  There are letters of support from other community members showing that he generally has a good reputation in the community.

[71]        Mr. Badhesa’s crimes were brutal.  He drank to excess over the course of days, smoked opium, and deprived himself of nutrition and sleep for a prolonged time period.  His personal antecedents are somewhat unique, in that he has a criminal record for being in possession of drugs for the purpose of trafficking.  What his limited record shows is that he received a three-month intermittent jail sentence and 18 months’ probation for a drug offence.  In total, for approximately two years, he had an opportunity to benefit from the deterrent effect of a jail sentence and a rehabilitative order of probation.

[72]        With respect to the assault causing bodily harm, he picked up a USB cable and whipped his wife continuously with it.  This USB cable was his weapon of choice.  With respect to her injuries, she is physically, mentally, and spiritually scarred for life.  This act was done in front of his children, which I find is extremely aggravating.  This act was done in front of his own mother.  It is statutorily aggravating that he abused his spouse.

[73]        Domestic violence is a profound problem and the sentence must denounce such offences in clear terms and attempt to deter its recurrence.  Both the accused and all other men need to know that the courts treat domestic violence seriously.

[74]        He killed his mother.  She was a new immigrant to Canada and lived with him.  He was the sole financial provider to the household and thus, in my view, in a position of trust and authority.  Much like the Whitlock case, his mother was the victim of a significant and sustained assault in her own home, using weapons and considerable force.  She was then callously left in her room, only to be discovered by his eldest daughter.  Once more, I find the fact that his children were exposed to this violence extremely aggravating.  Again, as in Whitlock, this offence was committed by someone she loved and trusted.  Through his actions, he has unquestionably devastated the family unit.  I apply Justice Van-Oosten’s conclusion from the Whitlock case that the sentencing principles of denunciation and general deterrence are paramount.

[75]        The facts of this case are serious.  I also find that the accused’s moral blameworthiness is high.  Clearly, to me the principles of denunciation, general and specific deterrence are paramount.  I accept the range for manslaughter and assault causing bodily harm is extremely broad, as I have examined above.  I appreciate that the two offences for which the accused is being sentenced happened during the same time frame.  However, I find that the crime committed on his mother and his wife are distinct from each other.  I am mindful of the provisions of the Criminal Code that guide the decision as to whether sentences should be consecutive or concurrent.  In this case, I find the sentences should be consecutive.

[76]        In balancing the competing sentencing values, considering the totality of the circumstances of this offence and this offender, while I believe the Crown’s position of twelve years for the crime of killing his mother and one year for whipping his wife to the point of causing her significant bodily harm is reasonable, I believe it should be adjusted to 11-and-a-half years, taking into account his state of mental health and the principle of restraint.

[77]        In considering the principle of restraint and the sentence in its totality, I have put my mind to whether serving such a lengthy sentence would be unduly harsh on the accused due to any mental illness that he might suffer.  Based on the evidence I have heard, I do not believe that the sentence would be unduly harsh.

[78]        Mr. Badhesa, you are sentenced to ten years’ imprisonment for the crime of manslaughter.  Specifically, for the killing of your mother Darshan Badhesa.

[79]        Further, you are sentenced to eighteen months’ imprisonment for the crime of committing an assault on your wife, Piratpal Badhesa, and in committing this assault, causing her bodily harm.  I appreciate the Crown has only sought twelve months for this crime, and have acknowledged that I find that position to be reasonable, but in my view, I believe an 18-month sentence is more appropriate for the crime of whipping your wife in the manner described, even in the situation where you have pled guilty to the offence, versus after a trial.

[80]        These sentences are to be served consecutive to each other.  Thus, you are sentenced to 11-and-one-half years’ imprisonment.

[81]        Mr. Badhesa will be credited with his pre-sentence custody on an enhanced basis.

[82]        There will be a DNA order requiring the accused to provide the authorities with a sample of his DNA.  There will also be a lifetime firearms prohibition.