R. v. Kaspers

2018 BCSC 1558 R. v. Kaspers IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Kaspers, 2018 BCSC 1558 Date: 20180514 Docket: 37240-2 Registry: Port Alberni Regina v. Steven David Kaspers Before: The Honourable Madam Justice Dillon Oral Reasons for Sentencing Counsel for the Crown: G. Baines Counsel for the Accused: A.P. Hertzberg Place and Date of Hearing: Port Alberni, B.C. May 14, 2018 Place and Date of Judgment: Port Alberni, B.C. May 14, 2018 [1] THE COURT: Steven David Kaspers has pled guilty to one count of aggravated assault of Claudio Fernando Cartagena following a preliminary inquiry. [2] The offence occurred on November 1, 2016, at about 7:30 in a McDonald's restaurant in Port Alberni. Mr. Cartagena was having his coffee and reading his newspaper quietly in the restaurant when he was attacked, unprovoked, by Mr. Kaspers. I had an opportunity to view the video surveillance which is in evidence from the McDonald's restaurant. Mr. Cartagena appeared to be reading his newspaper, not interacting with the accused, who appeared very fidgety and fussing, and then attacked Mr. Cartagena from the back, stabbing him on the left side of his neck, and two other wounds were to the left posterior chest of the victim so that there were one stab wound on the neck and two on the left posterior chest. [3] According to witnesses at the scene, and pursuant to the admissions of fact that have been entered into evidence, there was some sort of a conversation, brief, where Mr. Kaspers said to the victim, "Don't stare at me", and then, "What is your problem?" "Why are you staring at me?" The victim continued to read his newspaper and ignored Mr. Kaspers, and then Mr. Kaspers took out a knife and stabbed the victim, as described. [4] The victim was taken to hospital in Port Alberni and then eventually airlifted to Victoria General Hospital for more intense treatment there. The wound to the neck was superficial and was stapled together temporarily, but the chest wounds were five and three centimetres long, respectively. The victim suffered a collapsed lung because of the stabbing. A chest tube was required to be inserted into the lung and the victim was eventually discharged after about five days in hospital. [5] The facts of the offence indicate that there was limited engagement before the attack. [6] Mr. Kaspers is 27 years old. He has had a difficult childhood characterized by alcohol abuse and physical abuse by both his parents and others. He was eventually placed into care. He has had no family connection for quite some time, including with a daughter that he has had along the way. There were no family members speaking on his behalf today, or anyone else. [7] He started using illicit drugs at age 12, and by age 17 was using crystal methamphetamine daily. He was on methamphetamine at the time of the offence and continues to use this drug to this day. In questioning by the Court, Mr. Kaspers honestly replied that he had obtained and used illicit methamphetamine three days ago in prison, but he says that the drug makes him sick. [8] Mr. Kaspers has some aboriginal ancestry, but he has no connection to his ancestry and has expressed no desire to make such a connection. He has an extensive criminal record, including a youth record starting in 2006. [9] Aggravating factors here include his criminal record, the fact that he was carrying a weapon at the time of the offence, and the ongoing substance abuse issues that have been subject to much commentary and efforts to treat during the course of his various incarcerations, and most recently in 2016, before efforts were made following this offence, to treat him effectively. [10] His adult criminal record includes: two offences for theft under $5,000; possession of break‑in instruments; four counts of mischief; one of obstruction of a police officer; three counts of possession of a weapon; assault with intent to resist arrest; robbery; two counts of assault with a weapon; failure to comply with a recognizance; assault; six offences for failure to comply with probation orders; carrying a concealed weapon; and, possession of a controlled substance. [11] These offences, when combined with amphetamine-type substance abuse disorder and antisocial personality disorder, create a situation where Mr. Kaspers is at a high risk and an urgent category under risk assessment and therefore presents as a significant risk for violence in the community. [12] A report from the BC Mental Health & Substance Use Services of April 13, 2018, from the registered psychologist who also dealt with Mr. Kaspers in 2016, concluded with respect to risk assessment: In the previous assessment, it was my opinion that Mr. Kaspers should be identified as a high or urgent case priority. My opinion has not changed as a result of the current assessment. Mr. Kaspers' risk factors include substance use, antisocial violent attitudes, lack of motivation or intention to accept treatment, poor response to treatment, instability, poor emotion regulation, especially anger, poor coping abilities, lack of insight, lack of personal support and association with negative influence -- that is other substance users -- and non-compliance with psychotropic medication. My previous recommendations continue to be valid, particularly in regards to the importance of Mr. Kaspers' maintaining his abstinence from substances. Given his experiences with group treatment in VIRCC, it is like unlikely that Mr. Kaspers' anger management issues can be addressed in a group setting; thus individual treatment is recommended. Unfortunately, Mr. Kaspers' motivation for treatment continues to be poor, and he is unwilling to commit to further treatments once he is released into the community. [13] There has been some development, it would appear in the last month, in that Mr. Kaspers has agreed to undertake psychological and other testing as recommended by treating counsellors and psychologists, including urinalysis, and has agreed to conditions set out in the presentence report which would require him to participate in intake, assessment, counselling or treatment as might be recommended and take medications, etc., as required, conditions that he has consented to and which I will go through later. [14] The goal here, with respect, is the proper clinical diagnosis of Mr. Kaspers because, as indicated by both the 2016 and 2018 reports, Mr. Kaspers' unwillingness to cooperate with the psychologist and the counsellors in terms of answering questionnaires and performing other tests that might be required have stymied them or made them unable to come up with a proper diagnosis so they can appropriately diagnose and treat and help Mr. Kaspers to overcome his significant difficulties. [15] In addition, though, to agreeing to participate in treatment and appropriate testing now, it is noticed that Mr. Kaspers has undertaken certain certificate courses since he has been in custody since November 3, 2016. The courses that he has taken are in evidence before me and the fact that he has taken the courses and done quite well bodes well for the future. He has also worked in the kitchen in the prison and has some savings as a result, which also bodes well, and indicates some level of rehabilitative effort on his part. [16] There has also been an expression of remorse and a degree of empathy for the victim. In a statement read by his lawyer to the Court today, Mr. Kaspers has said, "My actions on November 1, 2016 have totally changed my life, physically and mentally. I think about it all the time. I am so glad that I did not take a life." He says, "While he has been in jail, he has been staying on his medication because he does not want to go through that day and moment again." He does not want to hurt someone over mental and addiction issues so he plans to stay on his antipsychotic medication and stay away from crystal meth. "From here on nothing will be the same for me, but a lot more for the victim. I am honestly sorry." He then continues to express regret and empathy for the victim, expressing, "One day I hope you will feel safe again. I would like to tell you and your family that I am sorry for my actions and I hope maybe one day you might forgive me, but if not, I understand. I'm sorry." [17] He says that, "I have been staying away from jail politics, and staying away from drugs." Well, clearly, that is not true. I appreciate that you have been honest to the Court today in terms of your taking the drugs. I think that is a very important step for you. But you have to realize that what you are saying in your statement to the Court, you are fooling yourself. It is not really true, because you keep going back to the old pattern of behaviour that was the cause of all this in the first place. [18] So it is important that Mr. Kaspers maintain a regimen of counselling and treatment so that he does not continue to delude himself about his own worth. As a result of the statement to the Court, he obviously lacks insight into his own problems and I acknowledge that one of his problems is not that he is dishonest. I accept the apology and the statement of remorse as genuine. [19] With respect to the victim, Mr. Cartagena was hospitalized for five days after airlifted, and was bedridden after that for two months. He has permanent back and neck pain and shortness of breath. He is afraid to leave the house and suffers, obviously, post-traumatic stress symptoms, wondering why him, and indeed an offense of this nature, unprovoked, with a stranger, is very worrying for our community and the public, and makes us all feel at risk. [20] I have reviewed the cases that were provided by Crown and with the agreement of defence, including: R. v. C.A.H., 2012 BCCA 47; R. v. Larose, 2013 BCCA 450; and R. v. Durocher, 2015 BCSC 958. [21] The range of sentence for this type of offence and the approach was described in Larose at paras. 17-18 as follows: [17] In R. v. Craig, referred to by Mr. Redekopp, this Court described the range of sentence for like cases of aggravated assault, as being between 16 months and 6 years' incarceration. While that description is helpful in narrowing the range that may be considered, it is to be remembered that the circumstances of aggravated assault are variable and difficult to organize into categories. As shown in the cases referred to, the range may be broader, depending on the circumstances of the offence. [18] In R. v. Kim, Chief Justice Finch addressed this feature of sentencing in cases of aggravated assault: [39] In R. v. Craig at para. 10, this Court described the range of sentence for similar cases of aggravated assault as being between 16 months and 6 years. However, as pointed out in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at para. 44, and R. v. Bernier, 2003 BCCA 134, ranges of sentence are suggestions or guidelines. They are not rules. The sentencing of every accused is of necessity an individualized exercise, which must have due regard for the principles of sentencing in s. 718 of the Code, as well as the particular circumstances of the offences and the offender. [40] While a range of sentence is sometimes suggested as a guide, it should not be treated inflexibly. Crown counsel referred us to a number of cases where sentences for aggravated assault exceeded 6 years. [22] Having regard to the principles of sentencing in s. 718 of the Criminal Code, I note that denunciation and specific deterrence are prominent here, given the nature of the offence and the background of the accused. [23] There has been a joint submission on sentence. Counsel for the Crown and for the defence have recommended four years incarceration, followed by three years probation. The accused has spent 559 days in custody, which, when given credit at 1.5, is a total credit of 838 days. Therefore, the sentence would be 622 further days in custody, plus three years' probation with conditions. [24] I agree to the terms of sentence, as described. [25] There will also be in order for the accused to submit a sample of his DNA pursuant to s. 487.051, and there will be a lifetime ban on the possession of a firearm under s. 109 of the Criminal Code, there having been a previous ban on November 5, 2010. [26] The terms of probation are taken from the presentence report recommendations, and include: 1. Mr. Kaspers, you must keep the peace and be of good behaviour. 2. You must appear in court when required to do so. 3. You must report in person to a probation officer, and thereafter as directed. When first reporting to your probation officer, you must inform him or her of your residential address and phone number, and you must not change your residence or phone number without written permission from your probation officer. 4. You must not possess or consume alcohol, drugs or any other intoxicating substance, except in accordance with a medical prescription. 5. You must not possess drug paraphernalia, included but not limited to pipes, rolling papers and syringes, except for a naloxone kit. [27] You have consented, and you must do the following: 1. At the direction of your probation officer, report to the Forensic Psychiatric Services or elsewhere for intake, assessment, counselling and treatment. 2. You must attend all scheduled appointments with your doctor, psychiatrist, psychologist and counsellor. 3. You must take all medications prescribed to you. 4. You must submit to such testing or questionnaire, including urinalysis, as may be requested by your doctor, psychiatrist, psychologist or counsellor. 5. You must give your doctor, psychiatrist, psychologist or counsellor a copy of this order and you must provide your probation officer with the names, addresses and phone numbers of your doctor, psychologist, psychiatrist and counsellor. 6. You must tell your doctor, psychiatrist, psychologist and counsellor that if you do not follow any terms of this order, they are to inform your probation officer, and if you decide not to follow these directions, you must immediately report to your probation officer when his or her office is open and tell your probation officer immediately. 7. You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the probation officer. Without limiting the general nature of this condition, the intakes, assessment, counselling or programs may relate to alcohol and drug abuse. 8. You must not possess, either personally or through another person, any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance, anything that resembles a weapon or firearm, any weapon is defined in s. 2 of the Criminal Code or any related authorizations, licences or registration certificate. In addition, you must not reside in any residence in which any other person keeps or stores any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance. 9. You must not possess any knife except for the immediate preparation or eating of food or for purposes related to your employment. 10. You must have no contact or communication, directly or indirectly, with Claudio Cartagena. You must not go to the residence, school or workplace of Cartagena; and, in addition 11. You must not come within 25 kilometres of the City of Port Alberni. [28] You may be seated, sir. [29] Anything further, Mr. Baines? [30] MR. BAINES: No, thank you. [31] MR. HERTZBERG: My Lady, I am going to give Madam Registrar a note about the spelling of naloxone. [32] THE COURT: Thank you. [33] MR. HERTZBERG: And that is all, My Lady. [34] There is one other issue, and that is the victim fine surcharge. I will make no submissions on that, My Lady. [35] THE COURT: How much is the victim fine surcharge? [36] MR. HERTZBERG: By indictment, $300? [37] THE CLERK: Two hundred dollars by indictment. [38] THE COURT: Well, he has some savings. [39] MR. HERTZBERG: Yes, My Lady. [40] THE COURT: Let us use them. [41] MR. HERTZBERG: Thank you, My Lady. [42] THE COURT: The victim surcharge is imposed. [43] MR. BAINES: Stay of proceedings on Count 1, please, My Lady. [44] THE COURT: Yes. So ordered. [45] MR. BAINES: And just so the Community Corrections Office can have them, I would ask that the forensic assessments be ordered released so the probation officer can have a copy. [46] MR. HERTZBERG: Yes, My Lady. [47] THE COURT: Yes. Thank you. "Dillon J." The Honourable Madam Justice Dillon