IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. Barahona was convicted of the following offences; two counts of aggravated assault, two counts of assault with a weapon, and two counts of assault.  This Court is tasked with imposing a sentence that is fit and appropriate.

[2]           Below are the salient facts related to the offences.  A more detailed description of the offences is set out in the trial decision which is cited at R. v. Barahona, 2017 BCPC 316.

[3]           On November 28, 2015, Mr. Barahona was at a bar with associates and from the bar he and a group of others went to an after-hours party at a nearby apartment.

[4]           Shortly after arriving at the party, Mr. Barahona entered a bedroom.  Ms. Guimond, who was at the party, entered the same room and Mr. Barahona told her to, “Get the fuck out.”  He then pushed her in the upper chest with his forearm.  The force caused Ms. Guimond to take a step back.  The trial evidence satisfies me that this assault was at the low end of the spectrum.

[5]           Shortly after the incident involving Ms. Guimond, Mr. Topsy approached Mr. Barahona and asked why he had pushed Ms. Guimond.  The two men exchanged words and while they were facing each other, Mr. Barahona suddenly and without warning, punched Mr. Topsy in the jaw.  At the time of this assault Mr. Topsy’s hands were down at his side.

[6]           Given that the punch was sudden, without provocation and focused on a vulnerable part of Mr. Topsy’s body, I find that the assault was of some significance.

[7]           After the above assaults, Mr. Barahona became involved in two consensual fights with Mr. Bowman.  During the second fight, Mr. Barahona gained the advantage, thus, incapacitating Mr. Bowman to such degree that he was incapable of fighting and essentially helpless.  During the trial, Mr. Furber described Mr. Bowman as having noodle legs, bleeding and being “more or less” unconscious.  Upon seeing Mr. Bowman’s condition, Mr. Furber stepped between Mr. Barahona and Mr. Bowman.  Mr. Furber stood in this position facing Mr. Barahona who stepped backward, produced a knife and stepped forward stabbing Mr. Furber in his left thigh.

[8]           After being stabbed, Mr. Furber fell to the ground and he watched Mr. Barahona pin Mr. Bowman against a window and then stab him.  In total, Mr. Bowman received five separate stab wounds.

[9]           As for injuries, Mr. Furber suffered a five-to-six centimetre-long laceration to his thigh that was five-to-ten centimetres deep.  The wound almost severed Mr. Furber’s vastus lateralis muscle and travelled to his femur bone.  Surgery was performed wherein sutures and staples were used to close the wound.

[10]        Mr. Bowman suffered the following injuries: four deep puncture wounds to his left thigh and a puncture wound to the upper portion of his abdomen.  One of the thigh wounds severed an artery and when Mr. Bowman arrived at the hospital he had lost approximately one litre of blood and he was in danger of dying.

[11]        Surgery was performed and as a result Mr. Bowman suffered a pulmonary saddle embolism.  Thereafter, Mr. Bowman suffered an infection to his thigh which required further treatment.  Mr. Bowman was released from hospital on December 9, 2015.

[12]        Mr. Barahona is First Nations and he is 26 years old.  He was raised in Vancouver, his parents separated when he was young.  Mr. Barahona lived with his mother, but he spent time with his father who abused alcohol and drugs and was prone to violence.

[13]        Mr. Barahona’s father passed away when Mr. Barahona was five years old.  Mr. Barahona’s mother re-married and a result he has two step-sisters.  Mr. Barahona’s mother’s partner assumed a parental role over Mr. Barahona and on occasion would resort to corporal punishment.

[14]        According to Mr. Barahona, he had a difficult childhood.  He was exposed to domestic violence, his mother and step-father frequently had parties in the family home and up until Mr. Barahona was ten years old, his step-father trafficked in drugs.

[15]        According to the pre-sentence report, Mr. Barahona had learning disabilities related to speech, reading and behaviour.  These challenges contributed to Mr. Barahona being targeted by other children.  He responded to this mistreatment by fighting.

[16]        As a teenager, Mr. Barahona became involved with a gang wherein violence and theft were common-place.  At 16 years old he tried to remove himself from his gang associations and he moved to Winnipeg.  He returned to Vancouver within a year.

[17]        Mr. Barahona spent a period of time during his late teens and early twenties on the downtown eastside where his peer group was involved in the drug trade.  Mr.  Barahona was frequently involved in violent confrontations; he estimates the number to be in the hundreds.  One such confrontation apparently resulted in Mr. Barahona suffering a brain injury.  Mr. Barahona acknowledged to Ms. Wevers, the writer of his pre-sentence report, that he felt compelled to react with physical aggression and violence whenever he perceived being disrespected.

[18]        As a teenager, Mr. Barahona drank and smoked marihuana and he started using cocaine at age 20.  Thereafter, Mr. Barahona mixed cocaine, alcohol and marihuana.  Problems which Mr. Barahona associated with his drug use resulted in him obtaining and using Xanax and Percocet.  On the night of the offences Mr. Barahona was under the influence of alcohol and drugs.

[19]        Mr. Barahona obtained sobriety while remanded in custody between October 31, 2016 and February 24, 2017.  While in custody Mr. Barahona had a few meetings with a drug and alcohol counsellor and on his release he attended at the Native Courtworker and Counselling Association of British Columbia; however, after a few visits he stopped attending because of his busy schedule.

[20]        Mr. Barahona lives with his mother.  She does not allow drugs or alcohol in the home.  Mr. Barahona’s current social activities involve going out with friends, attending the gym, going to casinos and spending time with his girlfriend.  

[21]        As for employment, Mr. Barahona does not have any formal training; rather, he acquired construction skills through experience.  Throughout his teens and in his early twenties, Mr. Barahona had difficulty maintaining employment.  Mr. Barahona attributes this difficulty to seeking higher paying jobs and to his frequent conflicts with those working around him.

[22]        In 2016, Mr. Barahona started his own demolition company.  It is through this company that Mr. Barahona has matured in that he has had to organize licensing, permitting and conduct the supervision of temporary laborers.

[23]        As for future plans, Mr. Barahona would like to continue operating his business with the objective of eventually moving to Alberta where he would like to start a family.

[24]        Mr. Barahona has the following criminal convictions:

[25]        Of significance is, Mr. Barahona has a history of violence; coupled with, he was on probation when he committed the offences before the Court.  This probation order contained conditions requiring Mr. Barahona to keep the peace and be of good behavior and to abstain from processing any weapons.  Mr. Barahona clearly breached these conditions when he committed the offences in issue.

[26]        As for the convictions occurring after November 28, 2015, (the date of the offences before the Court), I refer to them only for the purpose of appreciating what benefits may have flowed from previous interventions.

[27]        With respect to Mr. Barahona’s heritage, Mr. Barahona’s mother, Ms. Dutchyn, is Ukrainian, Hungarian, French, and Metis.  In this regard, her mother was born to French and Metis parents.  Ms. Dutchyn’s grandparents and her parents were part of the community that was displaced by the Winnipeg First Nations people and the “white” society.  This resulted in the families frequently moving and therefore, they failed to establish roots and they continually searched for a place to “belong”.  Throughout her journey Ms. Dutchyn was rejected by First Nations communities and she experienced discrimination while seeking services and trying to get support as a single mother.

[28]        Mr. Barahona’s father was from El Salvador, as such, Mr. Barahona has a mixed racial appearance.  This appearance contributed to other kids bullying him.  Sadly, Mr. Barahona is ashamed of his Metis cultural background.  He has no interest in learning about Metis customs and he does not intend to apply for a status card.

[29]        The historical mistreatment of Metis persons has impacted Mr. Barahona.  In the pre-sentence report Ms. Wevers observed at page 11:

[30]        In his Victim Impact Statement, Mr. Bowman describes the impact of being stabbed as, “… the most emotionally devastating incident in my life.”  He went on to comment that the events placed strain on his family, that he missed three months of work, and that when he returned to work it took him three weeks to reach full capacity.  Mr. Bowman still suffers from chronic pain and does not socialize like he did prior to being assaulted.  Specifically, he does not go out as frequently and he avoids large groups and gatherings.

[31]        In Mr. Furber’s Victim Impact Statement, he describes the intense pain that he felt and how his injury impacted his mobility.  He points out that he could not play his sport of choice and that he has a large scar.  With respect to his work, Mr. Furber explained that the injury impacted his ability to look for work and when he did start looking for work he had to narrow his focus to those occupations that were not labour intensive.

[32]        Ms. Guimond did not file a Victim Impact Statement, nevertheless, she did speak with Ms. Wevers and she reported that she was emotionally traumatized by the events.  After the incident Ms. Guimond resigned from her job, sought support from her mother, and used yoga to help her recover from the anxiety and sleep difficulties that she experienced as a result of the offences.

[33]        As for Mr. Topsy, he told Ms. Wevers that he suffered psychological effects for approximately one year and that he has now put the matter behind him.  As for physical injury, Mr. Topsy’s jaw was sore for a few days.

[34]        The Crown submits that a fit and appropriate sentence, after considering Mr. Barahona’s First Nations status, is a global sentence of four and a half to five years jail.  The Crown argues such a sentence would address denunciation and deterrence and it would reflect the gravity of the offences and Mr. Barahona’s degree of responsibility.  The Crown also points out that, but for Mr. Barahona’s First Nations status, she would have advocated for a sentence in the range of five to six years.  Finally, the Crown underscores, the seriousness of the offence in that Mr. Barahona inflicted multiple stab wounds on defenceless individuals.

[35]        Counsel for Mr. Barahona argues that, a fit and appropriate sentence would be a provincial sentence of less than two years with probation for three years.  Counsel recommends that the probation order contain conditions related to a curfew, counselling and abstaining from intoxicants.  In support, Counsel points to the circumstances of the offences, Mr. Barahona’s rehabilitative progress, his First Nations status and the support that he has in the community.

[36]        Section 718 outlines the various sentencing objectives that are available and that the purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society.  In the instant case I find that; denunciation, deterrence, and rehabilitation are the primary sentencing objectives.

[37]        As for the objective of denunciation, it is through the sentence imposed that this Court will communicate society’s condemnation of Mr. Barahona’s conduct: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 SCR 500, at paragraph 81.

[38]        The objective of deterrence is founded on the premise that through the sentence imposed those who are inclined to commit similar offences to that of Mr. Barahona will be discouraged: R. v. B.W.P, [2006] 1 SCR 94. 

[39]        With respect to rehabilitation, Mr. Barahona is relatively young, he has the support of his mother, he has demonstrated insight and from my review of the pre-sentence report it appears that he wants to make positive changes in his life.  As such, I am of the view that rehabilitation is a viable sentencing objective which will serve to protect the community.  

[40]        Section 718.1 of the Criminal Code, establishes that proportionality is a fundamental principle of sentencing.  Proportionality within the sentencing context is discussed in R. v. Ipeelee, 2012 SCC 13, where at paragraph 37, LeBel J., commented:

[41]        More recently in, R. v. Lacasse, 2015 SCC 64, where, Wagner J., stated at paragraph 12:

[42]        In this regard, the offences in the instant case consume the continuum of seriousness.  The assault on Ms. Guimond was minor without injury, the assault on Mr. Topsy was elevated in that there was a risk of injury and he was in pain for a few days.  The assaults on Mr. Bowman and Mr. Furber were serious and life threatening.  

[43]        As for Mr. Barahona’s degree of responsibility, I observe the systemic mistreatment that his family and in turn he has suffered serves to reduce his moral culpability: Ipeelee, at para. 73.

[44]        Although, I have considered all of the sentencing principles, below I will discuss those that are most salient to the sentence to be imposed.

[45]        I find the following to be aggravating:

[46]        I find the following to be mitigating:

[47]        Counsel has referred the Court to the following authorities: R. v. Paquette, 2012 BCSC 1497; R. v. Billing, 2017 BCSC 1107; R. v. Hansen, 2014 BCSC 625; R. v. Bigsorrelhorse, 2012 ABCA 327; R. v. D.B.M., 2002 YKTC 81; R. v. Dennis, 2014 BCSC 692; R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688; R. v. Ipeelee, 2012 SCC 13; R. v. Lambert, 2010 NBBR 101 (CanLII), 2010 NBQB 101; R. v. Larose, 2013 BCCA 450; R. v. L.D.W., 2005 BCCA 404.

[48]        In considering the authorities, this Court is mindful that sentencing is an individualized exercise this concept is reflective of the unique circumstances of each offender.

[49]        With respect to the offence of aggravated assault, the range of sentence is imprisonment for a period of between 16 months and six years: R. v. Nguyen, 2016 BCCA 408, at para. 47. 

[50]        Of note is the application of the range is variable to the context of the assault.   In R. v. Johnson, [1998] B.C.J. No. 2924(C.A.), Madam Justice Prowse observed at para. 10:

[51]        In considering the range for aggravated assault, I am mindful that ranges are guidelines and there may be circumstances justifying the imposition of a sentence that is above or below the range.

[52]        The purpose of section 718.2 (e) is to reduce the overrepresentation of incarcerated Aboriginal people through the use of restorative sentencing.  The law is clear that the sentencing of an Aboriginal offender requires a judge to consider the systemic and background factors that may have contributed to bringing an offender before the court.  The court must then consider the appropriate sentencing procedures and sanctions that maybe appropriate given the offender’s heritage. 

[53]        Recently, Madam Justice DeWitt-Van Oosten, in R. v. Billing, 2017 BCSC 1107, commented on the application of section 718.2 (e), and at paras. 46 - 53 she stated:

[54]        Finally, when considering section 718.2 (e), I am mindful that the sentencing of an Aboriginal offender does not require a sentencing judge to reduce the sentence imposed: R. v. Wells, [2000] 1 S.C.R.  I also acknowledge the general proposition that the more violent the offence the less difference there will be in the sentences of Aboriginal and non-Aboriginal offenders.

[55]        In the circumstances, I have considered Mr. Barahona’s restrictive bail conditions, specifically he has been on a curfew for over a year and I have also considered his pre-sentence custody which is calculated to be 98 actual days; however, with credit calculated at 1.5 days for each day he, therefore, has 147 days or approximately four months pre-sentence custodial time.  Finally, I acknowledge the seriousness of the offences and Mr. Barahona’s degree of responsibility.

[56]        With the above in mind, I sentence Mr. Barahona to a global custodial sentence of two years less one day followed by probation for three years.  Although I have considered Mr. Barahona’s pre-sentence custody, it will not be deducted from the sentence imposed.  My view is the [total] custodial portion of the sentence will be primarily focused on denunciation and deterrence with some rehabilitative aspects.  In contrast, the probation order will be primarily focused on rehabilitation with a restorative justice component while also achieving some degree of denunciation and deterrence. 

[57]        In my view, to impose the sentence sought by the Crown would have prevented me from placing Mr. Barahona on probation, thus, missing the opportunity to impose a strong rehabilitative sentence with a restorative justice component.  Accordingly, I have attempted to impose a blended sentence that is fit and appropriate in all of the circumstances with the overall purpose being a peaceful and safe society.

[58]        Pursuant to the above section, I order in Form 5.03 that a sample of Mr. Barahona’s DNA be taken.

[59]        Pursuant to the above section, I order that Mr. Barahona pay restitution to Mr. Bowman in the amount of $400.  Such restitution is to be paid to the clerk of the court for the benefit of Mr. Bowman.  The amount is to replace the jacket that Mr. Bowman was wearing when he was stabbed by Mr. Barahona.

[60]        Pursuant to s. 109, Mr. Barahona is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for 10 years.

[61]        Pursuant to the above section, while serving your custodial sentence you are prohibited from communicating directly or indirectly with:  John Bowman, Mitchell Furber, Jatin Topsy and Jeannell Guimond.

[62]        The probation order will be for a term of three years with the following conditions: