R. v. Chen

2017 BCSC 1863 R. v. Chen IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Chen, 2017 BCSC 1863 Date: 20171019 Docket: 78618-2 Registry: New Westminster Regina v. Guang Ying Chen Before: The Honourable Madam Justice DeWitt-Van Oosten Oral Reasons for Sentence Counsel for the Crown: Michael A. Fortino Counsel for the Accused, Guang Ying Chen: J. Douglas Jevning Place and Dates of Trial: New Westminster, B.C. July 31, 2017; August 1-4, 2017 Place and Date of Sentencing Hearing: New Westminster, B.C. October 10, 2017 Place and Date of Sentencing: New Westminster, B.C. October 19, 2017 I. OVERVIEW [1] Following a trial by judge alone in New Westminster, Guang Ying Chen was found guilty of one count of aggravated assault against Chun Long Xu contrary to s. 268(2) of the Criminal Code, R.S.C. 1985, c. C-46. [2] The offence occurred on May 24, 2015. The conviction was entered on August 8, 2017. The matter was then adjourned to await sentencing. In preparation for sentencing, neither party recommended that a pre-sentence report be prepared under s. 721(1) of the Criminal Code. [3] Submissions on sentence were heard on October 10, 2017. [4] The Crown sought a sentence of three years' imprisonment. Counsel for Ms. Chen sought a suspended sentence, with lengthy probation. If the Court did not see fit to impose a community-based disposition, the defence submitted as an alternative that any term of incarceration should not exceed 90 days, thereby allowing Ms. Chen to serve the custodial portion of her sentence intermittently pursuant to s. 732(1) of the Criminal Code. [5] A conditional sentence is not available for the offence of aggravated assault, as it carries a maximum punishment of 14 years' imprisonment: s. 742.1(c). [6] These are my Reasons for Sentence. II. FACTS of the OFFENCE [7] The facts surrounding the assault are set out in the published judgment of R. v. Chen, 2017 BCSC 1421. I will not repeat them here. These Reasons for Sentence should be read in conjunction with the previously reported judgment. [8] For present purposes, it is sufficient to indicate that following a five-day trial, I was satisfied beyond a reasonable doubt that during an altercation in their family home, Guang Ying Chen intentionally inflicted multiple cuts to the lower legs of her (now) former husband with a knife. One of the cuts to the right leg of Chun Long Xu went down to the bone. There was considerable blood loss and he required surgery to repair damaged tendons. [9] Ms. Chen's application of force carried an objectively foreseeable risk of bodily harm. The force resulted in significant wounds to Mr. Xu and endangered his life. Several Admissions of Fact were made at trial. These included an admission that when police and emergency personnel arrived at the White Rock residence in which the assault occurred, Chun Long Xu had lost a significant amount of blood. He was in shock and transported to the Peace Arch Hospital by ambulance for emergency medical treatment. Mr. Xu continues to experience adverse physical symptoms arising from the damage inflicted with the knife. III. OFFENDER'S ANTECEDENTS [10] Guang Ying Chen is 52 years of age. [11] She was married to the complainant for 30 years. In the spring 2017, after this offence, the marriage was dissolved through annulment. Ms. Chen and Chun Long Xu now live separate from each other. They have two children. William Xu is an adult, married, and has two children of his own. The youngest child, Kyle Xu, is 12 years of age. Ms. Chen and Mr. Xu co-parent Kyle. He lives in Canada so that he can attend school here. Both Ms. Chen and Chun Long Xu have permanent resident status in Canada. They are both residing in the Lower Mainland, with Kyle alternating parenting time between them. I am told there are no Canadian family law orders in place. Instead, this is an arrangement the parties have agreed to. [12] Ms. Chen has an elderly mother and siblings residing in China. Her mother suffers from Alzheimer's disease. Her father passed away in spring 2015. His death has had a significant emotional impact on Ms. Chen, particularly in light of the fact that despite her best efforts, she was not able to return to China from Canada in time to speak with him before he passed. [13] Ms. Chen is a cancer survivor. She underwent treatment and surgery for cervical cancer in 2010 and 2012. As a result of this experience, she has lasting concerns about her health. [14] Working together, Guang Ying Chen and Chun Long Xu built a manufacturing company in China that has considerable value (Nanton Tianlong Animal By-products Co. Ltd.). At trial, it was suggested that the company is worth over $100 million and employs as many as 260 people. The company manufactures sausage casings and sells them internationally. Tianlong also produces and sells heparin sodium. Ms. Chen has, and continues to play, a significant role in the company. [15] I am satisfied, on the evidence at trial and sentencing, that Ms. Chen has been actively involved in the company's operations from its start-up; she has made a significant contribution to its continued growth and success; and, she has a long-standing, established relationship with the company's employees, suppliers and customers. This is true both in China and elsewhere. Based on the material put before me, it is readily apparent that the company carries great significance not only to Ms. Chen and Mr. Xu, but to its employees, the community in which it is based and local government in China. At present, William Xu is working at the company and learning how to assume a leadership role. Ms. Chen mentors him in this regard. [16] Counsel for Ms. Chen filed two books of "Character Letters" at sentencing. These books contain 62 letters from persons who are familiar with Ms. Chen, as well as her background. Some of the writers are also familiar with Chun Long Xu. I have read these materials. One of the letters is signed by approximately 200 employees from the company built by Ms. Chen and Chun Long Xu. They collectively express the view that without Ms. Chen's "supervision", product quality control and sales volume may decline at the company and this, in turn, will translate into financial risks borne by the employees, through possible job loss or otherwise. [17] I will not go through the letters individually, or summarize their content. Instead, I consider it more helpful to identify what counsel for Ms. Chen appropriately characterized as "themes" that run through the letters. These include: · as noted, Guang Ying Chen is seen by the employees of the family company, it suppliers, customers, competitors, local business people in China and public officials, as an integral, if not indispensable, part of the company's success; · she is also reputed as a person with a strong work ethic, who is unpretentious, trustworthy, good to employees, generous with her assistance, and someone who goes out of her way to show kindness to people in need, whether this consists of persons who are looking for work; helping out employees with medical costs or other special needs; or, providing funding for educational purposes; · Ms. Chen is recognized as a contributor to her community, someone who has assisted local government and other entities in moving initiatives forward or in advancing positive change. She is reputed as someone who brings economic and social benefit to her community; · she is viewed by many as a devoted and loving mother to her mother, sons and grandchildren; · many of the letter writers express surprise at the circumstances surrounding the commission of the aggravated assault. This is not behaviour they would have expected from Ms. Chen. They find it shocking. In other words, they see it as "out of character" for her; and · the letters speak of remorse that has been expressed by Ms. Chen for her actions to others, as well as positive changes she has made since the offence, including an improved understanding of, and appreciation for, the importance of "mutual respect, forbearance and forgiveness". [18] While living in Canada, Ms. Chen has become a member of a local church, which she attends with her youngest son. Recently, both Ms. Chen and her son were baptized in the church. IV. VICTIM IMPACT [19] Chun Long Xu did not prepare a Victim Impact Statement for this case pursuant to s. 722(1). I understand from Crown Counsel that he was made aware of his entitlement to do so. [20] Mr. Xu did prepare a letter for the Court that was filed and marked as an exhibit on sentencing. It reads: After coming along such a difficult journey through this case, in order to face up to our future, and for the sake of our next generation, I personally feel sympathetic for Ms. Guangying Chen and am willing to forgive her from my heart. I wish our past difference and the hurt would not continue into the future. [21] Mr. Xu told Crown Counsel that he is not opposed to having contact with Ms. Chen as they co-parent their youngest son; as such, he does not seek any form of restriction on her ability to communicate with him, or to be in his presence. I take this to mean he has no concerns about his future safety as it relates to his former wife. V. AGGRAVATING and MITIGATING CIRCUMSTANCES A. Aggravating Circumstances [22] Objectively, aggravated assault is a grave offence. This reality is reflected in the maximum punishment set by Parliament; that is, 14 years' imprisonment: R. v. St-Cloud, 2015 SCC 27 at para. 60. The offence does not carry a mandatory minimum sentence. [23] A weapon was used by Ms. Chen, which is an aggravating feature and increases the overall seriousness of the offence she has committed. Moreover, the knife was used at a time when Chun Long Xu was engaged in a physical struggle on a bed with his son. One of his legs was trapped beneath the body of his son. His capacity to defend himself was restricted. All he could do was kick at Ms. Chen with one of his legs, from a supine position. He was unable to remove himself from the situation. This rendered him vulnerable. [24] The injuries sustained by Chun Long Xu were significant. As per the Admissions of Fact, they included: · a 7-centimetre laceration above the right lateral malleolus (ankle bone). The laceration was deep and cut into the subcutaneous tissues down to the bone; · a large deep laceration across the front of the ankle of the right leg. Tendon damage occurred such that Chun Long Xu was unable to move his toes or dorsiflex his ankle (pull the ankle upwards); · a 3-centimetre deep laceration at the top of the lower left leg; and · a 3-centimetre laceration on the lower left leg. [25] As noted, Mr. Xu required surgery to repair damage done to his tendons. More than two years after the incident, he continues to suffer from nerve damage, including limited movement in his right ankle and pain and discomfort. [26] The assault was perpetrated against a spouse, making this an incident of spousal violence. Section 718.2(a)(ii) of the Criminal Code stipulates that the abuse of one's spouse is deemed an aggravating circumstance for the purpose of sentencing. It is well-established that crimes of violence committed within the context of a spousal relationship require a denunciatory sentence. Physical abuse perpetrated against one's spouse is not a "private matter"; rather, it is conduct that "endangers and imperils society" as a whole: R. v. Stanley, [1986] B.C.J. No. 695 at para. 8 (C.A.). [27] The assault was committed in the family home, in the presence of the parties' adult son. The complainant testified that when William Xu realized his mother had used a knife against his father, he seemed "shocked" by what he saw. As Chun Long Xu lost strength due to the blood loss, his son was saying, "Dad, hang on, hang in there", presumably out of recognition of the dire circumstances. Mr. Xu asked for his youngest son to be brought to him, believing that he may not survive. Notwithstanding William Xu's age at the time, I draw the common sense inference that this incident, in his presence, is likely to have a lasting impact on him. [28] The second child was also in the home, albeit sleeping upstairs. Some of the letters contained in the booklets filed on behalf of Ms. Chen speak to the significant impact this incident has had on Kyle. One of the letters is from William Xu. He describes the offence as having "turned the family upside down". The choice made by Ms. Chen in May 2015 has had far-reaching and significant repercussions affecting Chun Long Xu, both sons, extended family members, friends, business associates, and Ms. Chen herself. [29] At trial, I found as a fact that this offence was committed out of anger. I was satisfied, on the evidence as a whole, that Ms. Chen's anger at her husband had not dissipated when she headed to the downstairs of her home with a knife and involved herself in the physical struggle between the complainant and William Xu in the bedroom. [30] The Crown argued that Ms. Chen intended to use the knife against her husband after she left the upstairs kitchen and began moving down the stairs, and that this is an aggravated factor because it reflects a degree of planning on the offender's part, or, at the very least, belies any suggestion that the aggression displayed in the bedroom was impulsive. I do not agree with this characterization of the evidence. [31] Heading down the stairs with a knife, within the context of an already tension-filled atmosphere, undeniably carried a foreseeable risk of the potential for serious harm, particularly in light of Ms. Chen's acknowledged emotional state toward her husband, and the fact that she was, at that very moment, intentionally using the knife to give effect to her anger by cutting up clothing and shoes. In her own words, she had "fire in her heart". However, I cannot find on the evidence that she planned, intended or contemplated using the knife against her husband before heading down the stairs, or while doing so. [32] At best, the evidence establishes that once she got to the bottom of the stairs, entered the bedroom and engaged in the fray between her husband and son, she made a decision to use the knife against Mr. Xu. In this sense, I see the offence against Mr. Xu more appropriately described as opportunistic, rather than planned. There is no suggestion that prior to becoming aware of the argument between her former husband and William Xu downstairs, she searched for her husband in the house with knife in hand. [33] I do agree with Crown Counsel that there is no evidence showing that Chun Long Xu provoked the assault upon him, or that he in any way displayed or used aggression against Ms. Chen on the date of the offence. To the contrary, the evidence at trial established that after Ms. Chen returned from China and entered the home on Victoria Avenue, Mr. Xu did everything he could to avoid her, deducing from the expression on her face that she was angry. At the time he sustained the injuries to his legs he was unable to take effective steps to protect himself. B. Mitigating Circumstances [34] There are a number of mitigating circumstances in this case. [35] First, the evidence establishes that as soon as Guang Ying Chen realized the extent of the injuries inflicted, she directed her son William to call 9-1-1 and seek assistance. Ms. Chen then tried to stop the bleeding and administered first aid to Mr. Xu. She removed his shoes and wrapped a towel around his right ankle. When police arrived, they observed Ms. Chen providing this assistance. The steps she was taking appeared adequate and police chose not to intervene before ambulance personnel arrived to take over. [36] In my view, these facts are of material significance at sentencing. Notwithstanding the considerable harm she caused, from which the potential for serious jeopardy on her part must have been readily apparent, Ms. Chen directed her son to contact the authorities and bring them in. The end result is that police and ambulance personnel arrived and were able to effect emergency intervention for Mr. Xu. But for this intervention, the harm suffered could have been considerably worse. [37] I also accept that when this offence was committed, Guang Ying Chen was experiencing a tremendous amount of stress in her life. The previous year or so involved significant transition to a life in Canada; she had business obligations to attend to; her father had recently died; she was distraught over her belief that her husband was having an extra-marital affair; and, she had flown from China the day of the offence. When she attempted to engage in conversation with her husband to address the situation, in the days and hours preceding the offence, the dialogue was unsuccessful. He refused to engage. [38] In her testimony at trial, Ms. Chen said that by the time the incident occurred in the downstairs bedroom of the Victoria Avenue home, she was upset, angry, had not eaten for days, and was feeling overwhelmed by the circumstances. She believed her husband had brought her youngest child into the midst of his affair and that he engaged in this conduct within the sanctity of the family home. Moreover, from her perspective, he did so knowing full well that this is something she had no tolerance for. According to the evidence, Mr. Xu had many extra-marital affairs during the marriage and he was well aware of the adverse impact of this behaviour on his wife. It had caused friction between them on previous occasions. [39] Although I did not find Ms. Chen's explanation on how the offence unfolded to be credible, I accept that on the day of the assault she was likely physically and emotionally drained. I accept that an acute level of anger, frustration and hopelessness consumed her and drove her conduct. She lost control. This does not excuse or justify her conduct; however, it does provide context for the assessment of moral blameworthiness. [40] I also accept, based on the evidence called at trial, and in light of the material put before me on sentencing, that what happened on the late evening of May 23, 2015, and early morning hours of the next day, was not only out of character for Ms. Chen, but reactive. Feeling overwhelmed, humiliated, angry and dismissed, she lashed out, not appreciating the serious nature of the injuries she inflicted. I accept that on a different day, without the constellation of pressures she was experiencing in May 2015, Ms. Chen would not have chosen to conduct herself in this manner. [41] Guang Ying Chen has expressed remorse for the injuries sustained by her former husband. She did so in her evidence at trial and again at sentencing. Post-trial, she put two letters before me (which Crown Counsel did not take issue with). The letters read, in part: Dated September 8, 2017 I, CHEN Guang Ying, am full of endless remorse for the crime that I committed in the night of May 23, 2015. I am deeply apologetic for the serious injuries and mental harm that I inflicted on Mr. XU Chun Long as a result of the state of impulsiveness and agitation that I was in. I am grieved and distressed for the irreparable psychological trauma that I have caused to my 11 year old son. I have broken up an otherwise intact family I feel that I have let them down and I only have myself to blame. I sincerely and conscientiously want to repent and mend my ways. I will use my actions to make amends to all those have been hurt by me. This is an excruciatingly painful lesson for me and I believe it is a test that comes from the Lord. Dated October 9, 2017 I would like to take this opportunity to give thanks to your Honourable Judge and everyone involved in this court for taking me through the journey which revealed myself and changed my heart in the last two years. I have to admit that I had been stubborn in my marriage and during the onset of this case. I was reigned by rage and anguish at the time of the tragedy and reluctant to repent myself afterward. I now realize there was always a way out there to resolve the problem peacefully. I admit it was my wrong doing which has done tremendous harm to Mr. Xu as well as my family. I apologize to Mr. Xu for the hurt brought against him physically and mentally and wish for his foregiveness [sic]. [42] I am satisfied that the remorse expressed by Ms. Chen is sincere. The fact that I found parts of her testimony not credible at trial does not mean that I must now be inherently suspicious about her expressions of remorse. She also expressed remorse at trial and it is apparent, from the letters filed on her behalf, that friends, family and business associates have personally witnessed the anguish she goes through in trying to fathom the choice she made. She has expressed remorse to them, including taking responsibility for the offence since the finding of guilt, and they perceived her demeanour as genuine during these times. [43] Ms. Chen has no criminal record. As noted, she provides care to an ailing parent in China, as well as her youngest son in Canada. It is clear from the letters filed at sentencing that she has a history of good character, including community service and providing assistance to persons in need. She is respected by her employees and she has the ongoing respect and support of family, friends, and business and community associates. [44] These letters also suggest that Ms. Chen's involvement in a local church since the offence has assisted her a great deal in reflecting on the conduct that gave rise to her conviction for aggravated assault, and in taking responsibility for it. There is nothing before me to indicate that she presents a risk to re-offend. To the contrary, I am satisfied that the fact of a charge and conviction, coupled with the trial process, has already had a deterrent effect on her. I am told that she spent approximately a week to 10 days in custody after her arrest and before her release on bail. Her counsel has advised that this too had a lasting effect on her. [45] Ms. Chen has been on bail for this offence for over two years. During this period, she has not re-offended. Moreover, she returned to China more than once during her bail, with the Court's permission, and came back to Canada as required. She has made no attempt to avoid prosecution for the offence. [46] Guang Ying Chen has permanent residency status in Canada. Under s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, a permanent resident who is convicted of an offence that in punishable by a maximum term of imprisonment of at least 10 years, or convicted of any offence and sentenced to six months' imprisonment, or greater, is "inadmissible to Canada on grounds of serious criminality": R. v. Sanghera, 2016 BCCA 251 at para. 18. Counsel have advised that because of Ms. Chen's conviction for aggravated assault, she can expect to receive a deportation order from Canadian officials. They further advise that there is a statutory right of appeal from this form of order; however, if the Court imposes a custodial sentence of six months or more, this right of appeal will not be available to Ms. Chen. In R. v. Pham, 2013 SCC 15 at para. 14, it was held that collateral immigration consequences are a relevant factor for consideration at sentencing. VI. SENTENCING RANGE [47] Counsel have referred me to numerous sentencing authorities. Some of these authorities are specific to the offence of aggravated assault; others were filed for the purpose of highlighting certain principles applicable to sentencing. [48] I will not summarize each of the cases provided to me. However, I have reviewed them. These include: R. v. Craig, 2005 BCCA 484; R. v. MacDonald, 2012 BCCA 155; R. v. Gill, 2014 BCCA 88; R. v. Sanghera; R. v. Slizak, 2017 BCCA 279; R. v. De Aquino, 2017 BCCA 266; R. v. Nguyen, 2017 BCSC 1669; R. v. Owens, [1986] B.C.J. No. 401 (C.A.); R. v. Austin, [1986] B.C.J. No. 144 (C.A.); R. v. Voong, 2015 BCCA 285; R. v. McGill, 2016 ONCJ 138; R. v. Hansen, 2014 BCSC 625; R. v. Hockley, 2013 BCSC 113; R. v. Jones, 2014 BCSC 131; and R. v. McConnell, 2014 BCSC 1743. [49] In R. v. Nguyen, 2016 BCCA 408 at para. 47, the Court of Appeal endorsed the range of sentence for aggravated assault as between 16 months and six years. Sentences at the lower end of this range tend to be imposed where the physical altercation began as a consensual fight, escalated and then resulted in significant injury. Sentences at the higher end of the range typically involve attacks with the use of a weapon, where there was no provocation and the victim had no opportunity to defend themselves: R. v. Nugyen at para. 47, citing R. v. Johnson (1998), 131 C.C.C (3d) 274 at para. 10 (B.C.C.A.). [50] Counsel for both sides have acknowledged that a sentencing range is not binding on the Court; instead, it functions as a guideline. As noted by Southin J.A. in R. v. Bernier, 2003 BCCA 134 at para. 42: A "range" does not preclude on grounds of deterrence or denunciation or the gravity of the particular offence a sentence different from that "range". Nor does a "range" preclude a lesser sentence if some special circumstances warrant such a course. [51] Again, at paras. 66 and 74 of R. v. Bernier, per Hollinrake J.A.: Thus, the question of whether a sentence falls within an "acceptable range" is clearly a factor for the trial court to consider in imposing sentence, and for an appellate court to consider on reviewing the fitness of the sentence. It is, however, only one of many factors which the courts must take into account. because sentencing is an inherently subjective and individual process, ranges suggested by this Court are simply that -- suggestions. They are guidelines, not rules. They are not, nor could they be, mandatory minimum and maximum sentences which demand compliance by trial judges. [52] More recently, in R. v. Smith, 2017 BCCA 112, per Newbury J.A. at para. 35: I certainly agree that ranges are "merely guidelines", not "straightjackets" It is trite law that ranges are not hard and fast categories and do not preclude lesser or greater sentences if the circumstances or applicable principles in a particular case warrant Each case must be assessed on its own facts and as [R. v. Lacasse, 2015 SCC 64] reminds us, the "fundamental principle of proportionality" must be the primary focus [53] Indeed, although the sentencing range for aggravated assault is stated as 16 months to six years, there are cases in which a sentence of considerably less than 16 months has been imposed. R. v. Hansen provides a good example. [54] Following trial, Ms. Hansen, an Indigenous woman, was found guilty of aggravated assault, assault with a weapon and uttering a threat. The charges arose out of a confrontation between the offender and complainant in the downtown eastside of Vancouver. Ms. Hansen was a low-level drug dealer. The complainant purchased drugs from her and owed Ms. Hansen money. The offender demanded payment; when the money was not forthcoming, a confrontation ensued. Ms. Hansen picked up an empty wine bottle and struck the complainant on the head, breaking the bottle. She then struck her again, more than once, with the fractured bottle. The complainant suffered contusions and lacerations to her head and arms as a result of the incident: R. v. Hansen at paras. 2-3. This included a laceration to her right temporal artery, which bled profusely. But for the immediate intervention of a police officer, the complainant would likely have suffered grave medical difficulty: R. v. Hansen at para. 13. The attack carried long-standing impact for her emotionally, financially and health-wise. [55] Notwithstanding the gravity of the offences, as well as other aggravating features, Ms. Hansen was sentenced to 90 days' intermittent imprisonment, followed by 36 months of probation. Among other things, she did not have a significant criminal record, she was drinking heavily at the time of the incident, she was the third generation of women in her family to suffer from the background and systemic factors addressed in R. v. Gladue, [1999] 1 S.C.R. 688, and by the time of sentencing, she had been off drugs and alcohol for more than two years, taking positive steps toward her own rehabilitation: R. v. Hansen at para. 21. [56] The fact that a particular offence attracts an established range of sentence is not dispositive, including for the offence of aggravated assault. Rather, as noted in both R. v. Bernier and R. v. Smith, sentencing is an inherently individualized exercise and, because of this, the unique features of a particular case appropriately inform the determination of a fit punishment. Unique features may justify a departure from the range, even a departure that is significant. VII. APPLICATION OF SENTENCING PRINCIPLES [57] The fundamental purpose of sentencing is to protect society and contribute to respect for the law and maintenance of a just, peaceful and safe society: Criminal Code, s. 718. [58] Other objectives include: (i) denouncing unlawful conduct and its resultant harm; (ii) deterrence, both general and specific; (iii) separating offenders from society where necessary to protect the public; (iv) assisting in rehabilitation; (v) providing reparation for harms done; and (vi) promoting responsibility in offenders and acknowledging the impact of their conduct: Criminal Code, s. 718(a)-(f). [59] No single sentencing objective trumps the others, and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight given the particulars of the case: R. v. Nasogaluak, 2010 SCC 6 at para. 43. [60] Sections 718.1 and 718.2 of the Criminal Code set out a number of sentencing principles that guide judges in crafting a just sanction that will give meaningful effect to one or more of the sentencing objectives: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [61] The most fundamental of these principles is proportionality: R. v. Lacasse, 2015 SCC 64. Proportionality is the sine qua non (or essential condition) of a just sanction: R. v. Ipeelee, 2012 SCC 13 at paras. 36-37. Any sentence I impose on Guang Ying Chen must be proportionate to the gravity of the offence she has committed, and her degree of responsibility as an offender. [62] In deciding what constitutes a fit sentence, a court must pay attention to the established range of sentence and be mindful of the importance of parity; however, if a marked departure from the range is necessary to achieve proportionality, the principle of parity assumes a secondary role. As noted in R. v. Lacasse at paras. 53-54: [53] Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate [54] The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account. Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences is secondary to the fundamental principle of proportionality [Emphasis added.] [63] Achieving a proportionate sentence is a case-specific endeavor, requiring a multi-factored analysis that is focused on, and tailored to, the individual circumstances of the offence and the offender: R. v. Nur, 2015 SCC 15 at para. 43. All relevant factors must be considered, including the circumstances of the offence, the circumstances of the offender and the needs of the community in which the offence occurred: R. v. Nasogaluak at para. 44. [64] In the circumstances of this case, I agree with Crown Counsel that the sentencing objectives of denunciation and deterrence carry considerable weight. Ms. Chen lacerated her former husband's legs with a knife out of anger and she caused significant damage. Spousal violence constitutes a serious breach of trust and this form of conduct against one's spouse adversely impacts not only the persons directly involved, but society at large. The imposition of sentence can, and should, send a strong deterrent message. [65] However, I do not agree with the Crown that a three-year penitentiary sentence is necessary to achieve these objectives in the circumstances of this particular case. The sentence I impose must also promote Ms. Chen in her rehabilitation, particularly as a first time offender who has shown genuine remorse and, according to the material before me, is making progress in accepting responsibility and learning from her conduct. [66] Although Ms. Chen used a weapon and the injuries sustained by Chun Long Xu were serious, I consider this case to be qualitatively different from the "vicious attack" that was before the Court of Appeal in R. v. Craig. There, a three-year sentence was imposed for a knife attack on a former partner that was unprovoked, "intended to maim and disfigure the victim" and appeared to have been planned. The offender's moral blameworthiness was significant in R. v. Craig, particularly given the forethought and deliberate nature of the assault: R. v. Craig at paras. 2, 13-14. [67] I also consider this case to be qualitatively different than R. v. MacDonald, another decision relied upon by the Crown in support of its position. In that case, a five-and-one-half year sentence was imposed for multiple offences against the appellant's estranged wife and her new partner. The offences "involved a deliberate course of persistent conduct by Mr. McDonald to terrorize and punish his wife of six years, and her new partner, for [his wife's] infidelity": R. v. MacDonald at para. 8. This included uttering threats to kill the victims, stalking his estranged wife's home, breaking into her apartment and "viciously" attacking both victims with a baseball bat while they were sleeping: R. v. MacDonald at para. 8. [68] R. v. Gill, a third spousal violence case cited by the Crown, also has distinguishing features. There, the appellant received a sentence of two years less one day's imprisonment for aggravated assault against his fiancée. Without warning, or provocation, Mr. Gill stabbed the victim numerous times. The injuries necessitated three surgeries; the victim missed several months of work as a result; and, she was left with scars and chronic pain: R. v. Gill at paras. 1-2. Psychological evidence that was tendered at sentencing showed the appellant was suffering from a major depressive disorder at the time of the offence, and had become delusional with respect to the victim's involvement with other men: R. v. Gill at paras. 11-12. The sentencing judge found that Mr. Gill showed no insight into what happened, and, "that the potential for serious violence still existed": R. v. Gill at para. 19. A "Risk Assessment" prepared for sentencing stated that "Mr. Gill presents as a relatively moderate risk to engage in future intimate partner violence": R. v. Gill at para. 38. [69] In the case before me, I am faced with a 52-year-old woman with no prior criminal record. The Crown does not allege previous violence on her part. There is no suggestion that she presents a continuing risk to re-offend. Up to this point, Ms. Chen has lived a highly productive lifestyle, including making significant contributions to the well-being of others. She is integral to the ongoing stability of a large business that employs over 200 people. These individuals are dependent on the business for their livelihood. [70] Ms. Chen has ongoing family responsibilities, including an ailing parent and a young son, both of whom require her continued presence in their lives. All indications are that Kyle's emotional well-being, in particular, will be adversely impacted if a lengthy period of incarceration is imposed on his mother. A sentence of six months' custody, or more, will likely result in Ms. Chen being removed from Canada, with no ability to seek reprieve, and unable to physically participate in Kyle's life while he is educated here. Many of the letters filed at sentencing speak to the importance of keeping Ms. Chen in a nurturing and supportive role with her son. The closeness of her relationship with Kyle, and the strength of their bond, has not gone unnoticed by persons who have witnessed the interaction between them first-hand. [71] I appreciate that Ms. Chen has siblings and she is not the only care-provider for her mother. I also appreciate that she is not a single parent and Mr. Xu co-parents their youngest son. As such, removing her from society for a period of incarceration will not mean that Kyle is left without a parent. Nonetheless, I do consider Kyle's accessibility to his mother, and her continued involvement in his daily life where necessary, to be a factor of considerable import. [72] According to the material before me, Ms. Chen is becoming increasingly more aware of the wrongfulness of the conduct she exhibited in May 2015, she expresses genuine remorse, and she has committed, through church involvement and otherwise, to continue learning from the experience with a view to better controlling and channelling her frustration if and when it arises. [73] Most importantly, without in any way dismissing the gravamen of the offence, this is a case in which I found the use of violence to be opportunistic, driven by overwhelming emotion and fatigue, and, immediately upon recognizing what she had done, Ms. Chen administered first aid to Chun Long Xu and directed her son to call out for assistance. In my view, this is a significant mitigating factor and it reduces Ms. Chen's moral blameworthiness. As recently noted by the Supreme Court in R. v. Oland, 2017 SCC 17 at para. 68, diminished moral blameworthiness "attenuates" the seriousness of the crime. [74] In considering the whole of the factors in this case, both aggravating and mitigating, I am satisfied that a sentence akin to the one imposed in R. v. Hansen best achieves the principle of proportionality. It is a sentence that combines imprisonment with a community-based disposition, with terms and conditions that have both a rehabilitative and deterrent effect. [75] I recognize that imposing a three-month period of incarceration is significantly less than what the Crown seeks in this case, and substantially below the low end of the range for aggravated assault (16 months). I am also aware that very recently, the Court of Appeal set aside a 90-day sentence that was imposed for aggravated assault and substituted an 18-month term of imprisonment on grounds that the sentencing judge "failed properly to give effect to the gravity of [the] offence": R. v. Slizak at para. 20. [76] However, the circumstances in R. v. Slizak involved a sucker punch that left the victim unconscious. The offender "then took the time to take steps towards [the victim], raise his foot to hip level and stamp on his head. He walked away, leaving [the victim] lying in a pool of blood". Harris J.A., writing for the Court, described this latter part of the offence as a "cold and calculated act. It was vicious" and a "serious aggravating feature": R. v. Slizak at para. 20. Mr. Slizak's moral culpability was obviously at the high end and this weighed heavily in the analysis, notwithstanding the fact that he was a first time offender of "good character support in the community and excellent prospects": R. v. Slizak at para. 22. [77] In this case, I find that the mitigating circumstances set out at paras. 35-46 of these Reasons for Sentence cumulatively amount to "exceptional circumstances" that justify taking Ms. Chen's situation out of the established range of sentence for aggravated assault, and, consistent with the guidance provided by R. v. Voong, they are circumstances that "engage principles of sentencing to a degree sufficient to overcome the application of the main principles of deterrence and denunciation by way of a [lengthy] prison sentence": R. v. Voong at para. 45. In R. v. Voong, "exceptional circumstances" were recognized to include "a combination" of "no criminal record, significant and objectively identifiable steps towards rehabilitation [for the offender], gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught": R. v. Voong at para. 59. These factors are present in the case at bar. [78] Finally, I note that in s. 718.2(d) of the Criminal Code, Parliament has stated that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances". In R. v. Voong, the Court of Appeal recognized that probation orders, with terms and conditions attached, can have a deterrent effect: R. v. Voong at para. 61. VIII. DISPOSITION [79] Guang Ying Chen, please stand for the imposition of sentence. [80] On the count of aggravated assault, I sentence you to three months (or 90 days) of imprisonment, followed by three years (or 36 months) of probation. [81] Pursuant to s. 732(1) of the Criminal Code, I order that the custodial portion of this sentence be served intermittently. Pursuant to s. 732(2) of the Criminal Code, when you are not in confinement while your intermittent sentence is being served, you must comply with the following terms of probation: 1. By 2:00 p.m. on Friday, October 20, 2017, you are to report in person to the office of South Surrey Community Corrections at 100-13545 64th Avenue, Surrey, British Columbia, V3X 1Y2, and thereafter, you shall report as required; 2. You shall serve the first day of your intermittent sentence starting Friday, October 20, 2017, and this sentence will be served intermittently on successive three-day weekends commencing this same date. You are to report at the institution in which you are to be confined at 7:00 p.m. on Friday and you will remain confined and serve your sentence until Sunday at 5:00 p.m. These three-day weekends will continue until the aggregate total of the sentence of imprisonment equals 90 days; 3. You are to present yourself on time for serving your intermittent sentence, and in a sober condition; 4. You are to remain within the province of British Columbia unless you are removed from the province by operation of law, or you obtain written permission to be outside of the province from your Probation Officer or permission from this Court; 5. By the close of business on October 19, 2017, you are to surrender your Canadian passport to the Court Registry for the Supreme Court of British Columbia, New Westminster, and this passport shall be retained by the Court Registry until completion of your sentence for aggravated assault, in its entirety, unless you have received permission to be outside of the province of British Columbia in accordance with the terms of this order; and, 6. You must keep the peace and be of good behaviour. [82] Upon completion of your intermittent sentence, you will be subject to 36 months of probation pursuant to an order made under s. 731(1)(b) of the Criminal Code. [83] The statutory terms of this probation order consist of: 1. You must keep the peace and be of good behaviour; 2. You must appear before this Court when required to do so by the Court; and, 3. You must notify your Probation Officer in advance of any change of your name or residential address, and promptly notify your Probation Officer of any change in your employment or occupation (s. 732.1). [84] In light of the letter filed by Chun Long Xu at the sentencing hearing, and his indication to Crown Counsel that he is not concerned about future contact with Ms. Chen, I decline to make an order that this offender abstain from communicating directly, or indirectly, with the complainant or from attending at his residence or place of employment pursuant to s. 732.1(a.1). There is no evidence that Ms. Chen presents an ongoing risk to her former husband. [85] The optional terms of the 36-month probation order consist of: 4. Within 72 hours of serving your last three-day weekend under the intermittent sentence, you are to report in person to the office of South Surrey Community Corrections at 100-13545 64th Avenue, Surrey, British Columbia, V3X 1Y2, and thereafter, you shall report as required. 5. You are to remain within the province of British Columbia unless you are removed from the province by operation of law, or you obtain written permission to be outside of the province from your Probation Officer or permission from this Court. 6. Consistent with the terms of the probation order that accompanies your intermittent sentence, your Canadian passport shall be retained by the Court Registry for the Supreme Court of British Columbia, New Westminster until completion of your sentence for aggravated assault, in its entirety, unless you have received permission to be outside of the province of British Columbia in accordance with the terms of this order; 7. You are to attend for, and participate in, any programming and/or counselling, including anger-management programming, as may be directed by your Probation Officer and you are to complete such programming and/or counselling to the satisfaction of your Probation Officer; and, 8. Under the direction of, and to the satisfaction of your Probation Officer, you are to complete 100 hours of community work service. This work service is to be completed by no later than the end of May 31, 2019. [86] There are a number of ancillary orders that I must also make. They are: a) Pursuant to s. 109(1) of the Criminal Code, you are prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for 10 years after release from your term of imprisonment, served intermittently. b) Pursuant to this same section, you are prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life, running from the date of this order. c) Aggravated assault is a primary designated offence within the meaning of s. 487.04 of the Criminal Code. As such, pursuant to s. 487.05(1), I make an order authorizing the taking of a sample of bodily substance from you, for the purpose of forensic DNA analysis and inclusion in the national DNA databank. d) Finally, pursuant to s. 737(1) of the Criminal Code, I order that you pay a victim surcharge in the amount of $200 for this indictable offence. [87] This completes my Reasons for Sentence. Post-Script: [88] After delivery of these Oral Reasons for Sentence, counsel were asked for submissions on the proposed terms of the probation orders. As a result of their submissions, the following amendments were made: · the address for the South Surrey Community Corrections office in both probation orders was amended to 102-14245-56th Avenue, Surrey, British Columbia, V3X 3A2; · Guang Ying Chen is to surrender her Canadian passport under the order made pursuant to s. 732(2) of the Criminal Code, to the Court Registry for the Supreme Court of British Columbia, New Westminster, by the close of business on October 23, 2017; · for the purpose of the DNA sample obtained under the authority of s. 487.04 of the Criminal Code, Ms. Chen is to report to the White Rock detachment of the Royal Canadian Mounted Police by the end of October 31, 2017. The address of the White Rock detachment is 15299 Pacific Avenue; · the victim fine surcharge that is payable pursuant to s. 737(1) of the Criminal Code must be paid by the close of business on October 23, 2017; and, · Ms. Chen is to be immediately taken into custody by the Sheriffs for the purpose of processing her for release on the probation order that accompanies her intermittent sentence of 90 days. "DeWitt-Van Oosten J."