IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Jin Ming Han is before me for sentencing having pleaded guilty to the following offences:

[2]         On the arson charge, the Crown seeks an effective sentence of three years and one month, while Mr. Han seeks a sentence of time served, reflecting two years and one month credit for pre-sentence custody.

[3]         The Crown and Mr. Han agree that a sentence of 14 to 30 days’ jail on the threatening charge concurrent to the sentence on the arson charge is appropriate.

[4]         The Crown also seeks a three-year probation order and ancillary DNA and weapons prohibition orders.

[5]         In May 2020, Mr. Han’s marriage to Dong Liu began to fall apart, and in February 2022, Mr. Han moved out of the family home in Coquitlam while Ms. Liu and the couple’s adult daughter stayed there.

[6]         On March 6, 2022, Mr. Han and his daughter met at a McDonald’s. During their meeting, she started to record their conversation because she became concerned about comments he was making about Ms. Liu. Mr. Han told her that Ms. Liu had been using him for money and that he had been suffering financially and emotionally because of her. Mr. Han admitted to having thoughts of harming himself and Ms. Liu, and told his daughter that if he did not receive $1 million from the sale of the family home he would kill Ms. Liu. He also admitted that he had been drinking alcohol regularly and had been thinking about coming to the family home to kill Ms. Liu. He also found it embarrassing to tell friends and family about his marital breakdown.

[7]         Mr. Han’s daughter called the police the same day. Neither she nor the police knew where Mr. Han was living, and he refused to tell the police or attend at the Coquitlam RCMP detachment when they called him. On March 15, 2022, Mr. Han sent messages to Ms. Liu calling her a liar and threatening to have someone find her. On March 20, 2022, he sent her more messages, this time threatening to come to the family home and kick in the door. After an Information charging Mr. Han with uttering threats was sworn on March 22, 2022, the police contacted him again and he attended at the Coquitlam RCMP detachment voluntarily, where he was arrested and released on an undertaking.

[8]         Several months passed. Then, on October 7, 2022, the date of Mr. Han’s next scheduled court appearance on the threatening charge, he showed up at the family home early in the morning. His daughter and Ms. Liu were sleeping on the second floor. The sound of shattering glass woke his daughter, who got out of bed and saw Mr. Han coming up the stairs to the second floor holding a 25-litre jerry can of gas. She alerted Ms. Liu, who locked her bedroom door. Mr. Han had gained access to the house by breaking a glass pane in the front door with a claw hammer.

[9]         He began pouring gas at the top of the stairs and in front of Ms. Liu’s bedroom. His daughter tried to grab the jerry can from him but he resisted. In the struggle, both of them were soaked in gas. She managed to push him, causing him to fall down the stairs. Undeterred, Mr. Han came upstairs again and tried to start a fire in front of Ms. Liu’s bedroom with a lighter. Mr. Han’s daughter gained control of the lighter and retreated to her bedroom, barricading herself in the room with furniture and locking the door. While in her room, she called 911.

[10]      Mr. Han threatened to light a fire if Ms. Liu did not unlock her bedroom door. Unbeknownst to him and his daughter, Ms. Liu had jumped out of the window from her bedroom on the second floor and fallen to the ground in the back yard, breaking her back. She managed to crawl into some bushes and hide until help arrived. She would later be taken to hospital for surgery.

[11]      While locked inside her room, Mr. Han’s daughter saw black smoke coming into her room. She opened her window, punched out the screen and climbed onto the roof to escape the fire. She saw her father get into his vehicle and drive away. She went back into the house to assist her mother, but there was no response when she banged on her door. She also tried unsuccessfully to put out the fire. Police arrived, gained control of the fire, and brought her to safety.

[12]      Mr. Han returned to a suite that he was renting. He did not call 911 for the fire department to attend at the family home or to attend to him, although he had suffered significant burns that required several weeks of treatment in an intensive care burn unit and multiple surgeries. Police were led to him a day or two later by a friend they had contacted for assistance locating him.

[13]      I have had the benefit of two court ordered reports on Mr. Han: a pre-sentence report by Shirley Chow, a probation officer, and a psychological/psychiatric risk assessment dated August 25, 2023 by Dr. Saini, a psychiatrist (the “Risk Assessment”).

[14]      Mr. Han was born in China and is 59 years old. His parents, now in their 90s, and his four siblings live in China. He graduated from high school and attended university for two years in China. Significantly, he participated in the Tiananmen Square protests in 1989 and spent 19 months in jail because of his involvement. After he was released, he fled to Hong Kong in 1991 as a political refugee. In 1993, he and Ms. Liu came to Canada, and in 1996 he became a Canadian citizen.

[15]       Mr. Han and Ms. Liu were married in 1993 and have two adult children, a 31-year-old son and a 28-year-old daughter. When he first came to Canada, Mr. Han worked in restaurants and did menial work. Eventually, he found his way into construction and learned several trades, not acquiring journeyman status in any but knowledge and skills that enabled him to become a successful contractor specializing in home renovations. As a contractor, he was able to support his family and be the primary source of income.

[16]      In May 2020, Mr. Han’s marriage began to falter for a variety of reasons, the most significant being financial. He suffered a $60,000 loss on a construction project and had to borrow money to cover the loss. This coincided with COVID-19 lockdowns, which decimated his income. He grew increasingly withdrawn and depressed, and tension in his marriage increased. In February 2022, after a year of barely speaking to Ms. Liu, he moved out of the family home and he and Ms. Liu agreed to divorce. He experienced suicidal ideation, did not let Ms. Liu or his daughter know where he was living, and did not seek treatment for his mental health.

[17]      Mr. Han essentially abandoned all of his possessions and claims to family assets further to an informal agreement that he and Ms. Liu reached without the involvement of lawyers. He was later aggrieved by this agreement and angry that Ms. Liu had disposed of tools that he had left in the garage of the family home.

[18]      Mr. Han presented several letters of support from friends who have known him for many years. The letters paint a picture of a kind and helpful friend who is generous with his time and skills. One of the letters was from a former employee who was confined to a wheelchair after a serious accident. Mr. Han took it upon himself to make the person’s residence wheelchair accessible and spent weeks doing renovations without charging for his time.

[19]      Other friends attest to Mr. Han’s generosity with his construction and home maintenance skills as well, noting that Mr. Han has assisted elderly neighbours and others with emergency home repairs on many occasions free of charge. Two of the letter writers are from Mr. Han’s church, which he has been involved with for more than 20 years. These individuals confirm that Mr. Han has the support of his church community, who are aware of his legal problems and are standing by to assist with accommodation and employment after he is released.

[20]      In custody, Mr. Han has been assigned work in laundry facilities. Despite language barriers limiting his ability to communicate with other inmates and participate in the limited programming available, he is doing well. He also continues to recover from his injuries, which I accept is more challenging in a custodial environment.

[21]      Remarkably, Mr. Han receives visits not only from friends and members of his church but also his daughter, who continues to support him despite the horrendous experience she endured because of his actions. Perhaps that speaks to his redeeming qualities more than anything else.

[22]      The Risk Assessment states that Mr. Han does not present with “any signs of symptoms suggestive of a major mental disorder such as Major Depressive Order.” It also states that based on Mr. Han’s account, his difficulties between 2020 and 2022 would be “best explained by a diagnosis of Adjustment Disorder with Depressed Mood, as defined in the Diagnostic and Statistical Manual – Volume 5 (DSM-5),” and that the symptoms of that disorder have fully resolved in the period since his arrest and do not warrant any psychiatric treatment.

[23]      The Risk Assessment does not offer a typical “low”, “medium” or “high” assessment of his risk of violent re-offending. Dr. Saini used a structured professional judgment tool (HCR-20 Version 3) to assess Mr. Han’s risk for “violent recidivism” and discussed three “items”: historical, clinical and (other) risk.

[24]      The historical item relates to his threat in March 2022 to kill his wife and his forcible entry into his wife’s residence in October 2022 with intent to set a fire. The latter was committed while he was on an undertaking prohibiting him from attending at his wife’s residence. The clinical item relates to comments he made suggesting there was a measure of justification for his actions, as his wife had disposed of some of his possessions after he had honourably left both family properties to her. The risk item is the uncertainty about his future living situation and how he will be able to support himself. Though he appears to have the support of his daughter and is relying on offers that have been made since his incarceration by friends, Dr. Saini identifies as significant stressors problems that he may have finding accommodation and supporting himself.

[25]      Dr. Saini’s opinion on Mr. Han’s risk based on these factors is:

[26]      This is of some concern because there is uncertainty surrounding Mr. Han’s living situation and his ability to support himself. Dr. Saini’s opinion supports an extended period of supervision for Mr. Han after his release to assist in managing his risk factors.

[27]      An area of concern that I share with Dr. Saini is Mr. Han’s level of insight. Although I accept Mr. Han’s expression of remorse as sincere – certainly he regrets the consequences of his actions and the impact on his ex-wife and daughter – he makes some statements that are impossible to reconcile with what he did. Counsel for Mr. Han suggests that his statements describe his feelings and state of mind at the time of the offence. I am not convinced.

[28]      For example, the Risk Assessment notes that when Mr. Han was asked to clarify whether he intended to hurt his wife when he went to the family home, he replied:

[29]      Not only did Mr. Han not put out the fire, he left the scene and did not call for help, leaving his ex-wife and daughter to fend for themselves. Those are hardly the actions of someone who did not intend to hurt anyone or who was not reckless as to someone else’s safety.

[30]      Mr. Han’s offences have had a profound physical, emotional and financial impact on Ms. Liu. She broke her back when she jumped out of her bedroom window to escape Mr. Han and required surgery. To this day, she experiences pain and fatigue due to her injury, and has difficulty doing chores such as sweeping. It is difficult for her to lift even five pounds. After the injury, she missed several weeks of work and lost $5,000 in income. She also incurred around $30,000 in renovation costs to repair the damage caused by the fire.

[31]      The psychological fall out has been long lasting. She feels safe from Mr. Han only because he is in jail. At the same time, she is forthright about being conflicted, acknowledging that she cares about him as her former partner of 30 years and recognizes that he was hurt by the fire too. I find her victim impact statement honest and compelling.

[32]      There are a number of aggravating factors in this case. First, the offences were committed against Mr. Han’s former intimate partner, Ms. Liu, and his daughter, a statutory aggravating factor under s. 718.2(a)(ii). Second, the impact on Ms. Liu was significant – a life threatening incident that resulted in a broken back requiring surgery, a fire damaged house, and long lasting psychological wounds – a statutory aggravating factor under s. 718.2(iii.1). Third, the offence was committed while Mr. Han was on bail and in violation of a term prohibiting his attendance at the family home. Fourth, there was an element of planning to the offence. Mr. Han brought a claw hammer to break into the residence and a jerry can full of gas to light it on fire. It was not a crime committed when passions were inflamed. Mr. Han and his wife had been separated for months and the incident on October 7, 2022 was not precipitated by an emotional interaction. Fifth, and in my view most aggravating, Mr. Han had multiple opportunities to reconsider his intended actions. He was initially confronted verbally and then physically by his daughter. Neither made him pause to reconsider – not even falling down the stairs after a struggle over the gas can with his daughter or the fact that his daughter was doused in gasoline and at risk of being set alight herself. Sixth, he set the fire in front of the bedroom doors of his daughter and Ms. Liu believing that both of them were in their rooms. At a minimum, he was reckless by potentially depriving them of an avenue of escape through the house. Seventh, Mr. Han’s motive was revenge. He wanted to punish Ms. Liu for disposing of his tools and refusing to speak to him.

[33]       The mitigating factors are Mr. Han’s plea, acceptance of responsibility, expression of remorse, lack of criminal record, and mental illness. Dr. Saini found that based on Mr. Han’s account, his difficulties between 2020 and 2022 are best explained by a diagnosis of Adjustment Disorder with Depressed Mood, a DSM-5 diagnosis. For the purposes of Dr. Saini’s diagnosis, I find that Mr. Han’s account is reliable, as it describes events in his life and behaviour that are corroborated by his daughter and others.

[34]      However, Mr. Han’s acceptance of responsibility is diminished by statements he made to Dr. Saini during the preparation of the Risk Assessment. In formulating Mr. Han’s risk for violent recidivism, Dr. Saini expressed the following concern as a “clinical item”:

[35]      I would add to that the statements by Mr. Han about his intentions in going to the family home on October 7, 2022 as quoted above. These statements are troubling because he made them when Dr. Saini says he was no longer exhibiting signs of major mental illness.

[36]      As to mental illness, Dr. Saini’s opinion does not establish a direct causal link between Mr. Han’s mental illness and his offending but supports a finding that mental illness contributed to the commission of his offences. In R. v. Forner, 2020 BCCA 103 at para 29 [Forner], the Court of Appeal reiterated that a “direct causal link” is not necessary to establish mental illness as a mitigating factor and cited R. v. Badhesa, 2019 BCCA 70 [Badhesa]:

[37]      The organizing and fundamental principle in every sentencing is proportionality: a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. Section 718.1 of the Criminal Code codifies this principle and the Supreme Court of Canada reiterates it in R. v. Friesen, 2020 SCC 9 [Friesen] at para 30 and R. v. Parranto, 2021 SCC 46 at para 10 [Parranto]. Further, sentencing is one of the “most delicate stages of the criminal justice process” and an “individualized process”: R. v. Lacasse, 2015 SCC 64 at para 1 [Lacasse] and Parranto at para 38.

[38]      Each offence is “committed in unique circumstances by an offender with a unique profile” (Lacasse at para 58 as cited in Parranto at para 12), and “[c]ourts cannot arrive at a proportionate sentence based solely on first principles, but rather must ‘calibrate the demands of proportionality by reference to the sentences imposed in other cases’” (Parranto at para 11). The principle of parity goes hand in hand with proportionality, parity being the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances as codified in s. 718.2(b).

[39]      In a case like this, denunciation and deterrence are the primary sentencing principles: R. v. Ferguson, 2017 BCSC 2056 at para 26. However, even where denunciation and deterrence are primary, they do not operate to the exclusion of other sentencing principles such as restraint and rehabilitation: Friesen at para 104.

[40]      The principle of restraint is described in R. v. Bosco,  2016 BCCA 55at para 35:

[41]      Rehabilitation is also an important factor in this case as Mr. Han is 59 years old and does not have a criminal record. His prospects of rehabilitation are good in view of his remorse, pro-social history, and manageable risk.

[42]      Crown counsel referred to the following cases:

[43]      Defence counsel referred to Badhesa and Forner on mental illness as a mitigating factor in sentencing.

[44]      Relying on the cases cited – Allard at para 7, Berg at para 38, Bevacqua at para 49, and Vance at para 28 – I find that the sentencing range is three to five years. Sentences outside the range include 10 years in Richard, two and one-half years in Ferguson, and 18-months in a case cited by Berg.

[45]       In Allard, a sentence of four years after conviction was upheld by the Court of Appeal for an offender who set fire to his former friend’s house in the early hours of the morning while she and her two children slept. The fire caused substantial damage and the death of several household pets. The offender expressed no remorse and the trial judge was not convinced the offender no longer posed a threat.

[46]      In Berg, the offender, like Mr. Han, was angry that his ex-girlfriend would not speak to him and was convicted of arson and uttering threats. He was sentenced to three and one-half years in jail for setting fire to her residence in the middle of the night.

[47]      In Bevacqua, a four and one-half year sentence was imposed after trial on an offender with a history of physically abusing his wife and a conviction for spousal assault. In the midst of a matrimonial dispute, he set fire to his house knowing his wife and children were asleep inside. The judge found that his prospects of rehabilitation were not good.

[48]      In Clifford, a veterinarian with no criminal record received a three-year sentence after trial. He destroyed several trees and burned down a garage on a rural property with no fire service available due to the remoteness of the location. The arson was carefully planned and the motive was revenge. The property was owned by the maternal grandfather of his young child, and the offender believed the maternal grandfather was instrumental in depriving him of access to his child. No remorse was shown.

[49]      In Ferguson, two offenders received sentences of three years and two and one-half years, respectively, after guilty pleas for setting a house on fire out of revenge. The offenders believed one of the occupants had set a fire somewhere else. A woman and two children were asleep in the house at the time. The two and one-half year sentence for one of the offenders was imposed after a joint submission, with the judge noting the sentence would likely have been three years otherwise. Both offenders had unrelated records.

[50]      In Leer, the offender was a mentally ill, 18 year old woman without a criminal record. She received a sentence of three years for setting a fire that destroyed her parents’ townhouse and two others. Mental illness was recognized as a factor in her offending and her risk of re-offending was high. She set the fire because she did not want to live in her parents’ townhouse.

[51]      In Vance, the offender received a five-year jail sentence after a guilty plea. He set fire to his ex-wife’s residence while she, their daughter and five others were in the house. Like Mr. Han, the offender was also convicted of threatening his wife and his motivation included revenge for her refusal to take his calls. He was diagnosed with borderline personality disorder, alcohol use disorder (severe) and adjustment disorder in addition to being on the autism spectrum.

[52]      I am satisfied that Mr. Han does not need to be separated from society to protect the community. With the support of his friends and church group and ongoing supervision by probation officers, Mr. Han’s psychosocial stressors can be managed. I am also satisfied that a further jail sentence is not needed to specifically deter him from re-offending, and I attach significant weight to his plea, lack of criminal record, remorse, partial acceptance of responsibility, the contribution of mental illness to his offending, and the injuries he suffered as a collateral consequence of his actions.

[53]      All of these factors militate in favour of a lower sentence. However, the gravity of Mr. Han’s offence and his moral culpability are high. But for blind luck, Mr. Han’s daughter might have perished in the fire or suffered life-altering burns all over her body. But for blind luck, Ms. Liu’s injuries might have been considerably worse. Mr. Han is fortunate that the consequences of his actions were not worse. In R. v. B.K.J.L., 2018 BCSC 379, the offender committed a similar act that resulted in the death of his wife due to third degree burns over 99 percent of her body. The offender pleaded guilty to manslaughter and received an 18-year sentence after being charged with second-degree murder.

[54]      Each of the factors identified by the Court of Appeal in R. v. C.K., 2023 BCCA 468 at para 71 in assessing an offender’s personal responsibility are engaged to a significant degree in Mr. Han’s case:

[55]      Were it not for the cumulative impact of the mitigating factors and Mr. Han’s personal circumstances, I would have sentenced him to four years’ jail. In the circumstances, I find that an effective sentence of three years is fit and proportional and achieves the necessary balance between the competing principles of sentencing in a case where denunciation and deterrence are the primary principles.

[56]      After crediting Mr. Han with two years and 30 days for pre-sentence custody on the arson charge (Count 2 - Information No. 108438-2KC), I sentence him to an additional 11 months’ jail.

[57]      In addition, I sentence Mr. Han to 14 days’ jail on the threatening charge (Count 1 - Information No. 107495-1K) to be served concurrently to the arson sentence.

[58]      Mr. Han will also be subject to a probation order for 30 months on substantially the terms proposed by the Crown.

[59]      Finally, I order Mr. Han to provide a DNA sample and I impose the firearms prohibition under s. 109 of the Criminal Code sought by the Crown.

[60]      The victim fine surcharge is waived.