R. v. Vignjevic

2016 BCSC 475 R. v. Vignjevic IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Vignjevic, 2016 BCSC 475 Date: 20160212 Docket: 32542-2 Registry: Williams Lake Regina v. Nikola Brian Vignjevic Restriction on publication: A publication ban has been imposed under section 486.5(1) of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or a witness. This publication ban applies indefinitely unless otherwise ordered. This Ruling complies with the publication ban. Before: The Honourable Mr. Justice Abrioux Oral Reasons for Sentence Counsel for the Crown: J. Dufour Appearing on his own behalf: N.B. Vignjevic Place and Date of Hearing: Williams Lake, B.C. February 12, 2016 Place and Date of Judgment: Williams Lake, B.C. February 12, 2016 Table of Contents I: INTRODUCTION. 3 II: CIRCUMSTANCES OF THE OFFENCE. 3 III: CIRCUMSTANCES OF THE OFFENDER. 4 IV: IMPACT ON THE VICTIM.. 6 V: APPLICABLE PRINCIPLES. 7 VI: POSITION OF THE PARTIES. 8 VII: DISCUSSION. 9 A: Aggravating and Mitigating Circumstances. 9 B: Disposition. 10 I: INTRODUCTION [1] The following constitute my reasons for sentence. I intend to issue these reasons in writing in due course. Accordingly, I will summarize the key portions at this time and will refer in summary form to certain legal authorities. I reserve the right to make grammatical or editorial changes but the substance of the reasons shall not change. [2] On September 9, 2015, following an eight day trial, I convicted Mr. Vignjevic on all counts set out in the indictment: Count 1: From the 28th day of February 2013 to the 2nd day of March 2013, inclusive, at or near Williams Lake, in the Province of British Columbia, did commit assault of another person, [C.P.], contrary to Section 266 of the Criminal Code. Count 2: . . . on or about the 3rd day of March 2013, at or near Williams Lake, in the Province of British Columbia, did commit aggravated assault of [C.P.], contrary to Section 268(2) of the Criminal Code. Count 3 :. . . on or about the 3rd day of March 2013, at or near Williams Lake, in the Province of British Columbia, without lawful authority, confined [C.P.], contrary to Section 279(2) of the Criminal Code. Count 4: . . . on or about the 3rd day of March 2013, at or near Williams Lake, in the Province of British Columbia, did knowingly utter a threat to [C.P.], to cause death or bodily harm to [C.P.], contrary to Section 264.1(1) of the Criminal Code. II: CIRCUMSTANCES OF THE OFFENCE [3] In early March 2013, Mr. Vignjevic and his then partner, C.P., were ending their relationship. They had been sharing a cabin in the Williams Lake area for approximately four months. [4] Mr. Vignjevic assaulted Ms. P. on March 2, 2013 during a domestic dispute, causing injuries to her nose and face. Count 1 relates to that event. [5] The next day, counts 2, 3 and 4 occurred. Mr. Vignjevic handcuffed Ms. P. to a chair when she would not provide him with the password to her cell phone. Holding a butcher's knife, he made threats which included cutting off her hands if she did not provide the information he wanted. He struck, dragged, and choked her while she was attached to the chair. He also struck her with a metal object on various parts of her body, in particular, her lower torso. [6] Ms. P. suffered a broken femur, damage to her lateral patellar tendon and bruising over the majority of her body. She was unable to work for a year while she was in recovery. She now has permanent screws in her leg. III: CIRCUMSTANCES OF THE OFFENDER [7] What follows is largely taken from my reasons for judgment following the trial and the pre-sentence report. [8] Mr. Vignjevic was 35 years old at the time of the offences. He is now 38 years old. He was born on November 25, 1977, in Toronto, Ontario. He completed high school in that province and then spent several years between Ontario, California, and the interior of British Columbia where his mother and some of his siblings live. He obtained certification as an automotive mechanic in California and then as a welder in Alberta, having taken some courses in Williams Lake. In 1997/98, he commenced a relationship with a woman named J., whom he married in 2003, and to whom I shall refer as "Ms. Vignjevic". They separated for the final time in 2011, although he resided in her Williams Lake apartment in 2012 to be near his children. They have three children from that relationship who are now 13, 11, and 9 years old. [9] According to the pre-sentence report, Mr. Vignjevic describes his upbringing as normal and denies suffering any abuse. Mr. Vignjevic recalls his father abusing his mother, S.M. Ms. M. confirmed to the author of the pre-sentence report that Mr. Vignjevic's father was abusive towards her. When he started abusing the children, she left the relationship. Mr. Vignjevic was approximately three years old when his parents separated. [10] Ms. M. and Mr. Vignjevic's step father live in Williams Lake. He has a close relationship with his mother. He also has two brothers and one sister he is close with. His father passed away recently. [11] Mr. Vignjevic worked as a welder in the oil patch and on an oil rig for many years, returning on a regular basis to Williams Lake where his wife and family live. By the spring of 2011 and thereafter, Mr. and Ms. Vignjevic appear to have become embroiled in a high-conflict family situation involving Ms. Vignjevic's allegations of Mr. Vignjevic's violence. The couple was involved in proceedings relating to his access to the children. He also pled guilty to criminal offences including criminal harassment. [12] Mr. Vignjevic describes the relationship with Ms. Vignjevic as abusive on both sides. He left the relationship in January of 2012. Ms. Vignjevic was the victim of the offences forming part of Mr. Vignjevic's criminal record. [13] When Mr. Vignjevic's behaviour escalated in 2012, the Ministry of Children and Family Development became concerned for the safety of Ms. Vignjevic and the children. Social workers requested he complete rehabilitative services in the community to gain further access to the children. At these meetings, Mr. Vignjevic's behaviour was volatile. He made threats and intimidating gestures. [14] Mr. Vignjevic resides with Ms. M. currently and has been for the past two years. Ms. M. says she is prepared to let him live with her and has no fear of him. He stated he has not secured his own housing out of fear of losing his belongings if incarcerated on the current convictions. [15] Mr. Vignjevic acknowledges his past, approximately 20-year involvement in the drug trade. He sold drugs and used physical force to collect drug debts. While admitting to selling, he denied using any substances out of fear of his employers. He reported he has not been involved in this lifestyle since the birth of his eldest daughter. [16] Mr. Vignjevic completed a grade 12 education. He is not currently employed and is not collecting any social assistance. He is financially supported by Ms. M. and past investments. [17] Mr. Vignjevic says that he has no mental health diagnosis and is not currently taking any medications for the same. He has struggled with depression and anxiety. [18] Upon assessing Mr. Vignjevic in July 2013, psychiatrist, Dr. Morgan, noted Mr. Vignjevic's patterns of behaviour were consistent with antisocial personality disorder, instrumental violence, and having a negative attitude when under stress. [19] In January 2014, Mr. Vignjevic was assessed by a registered psychiatric nurse. This assessment noted Mr. Vignjevic was frustrated and angry with his legal situation and family separation, and that he struggled to control his emotions. At that time he was on medication for depression. [20] In my reasons for judgment, I also referred to Mr. Vignjevic's account of his past drug and alcohol consumption. [21] According to Ms. M., she has not observed her son using drugs or consuming alcohol during the past year he has been living in her home. She says no drugs or alcohol are in her home. IV: IMPACT ON THE VICTIM [22] Ms. P. has completed a victim impact statement. In it, she speaks of the considerable loss in her sense of safety and security and the toll the offences have taken on her life. [23] She feels very much alone. Her scars, arthritis and flash backs are a constant reminder of what she endured. She still has occasional flashbacks of the attacks. Her sleep is very periodic and to this day she describes herself as being plagued by violent nightmares and nighttime pains. [24] She also believes that she has damaged her relationship with her family as a result of her depression which she attributes to these incidents. [25] She is petrified to be alone. She considers herself to be a shadow of what she once was. [26] These two incidents, particularly the latter event, have significantly impacted Ms. P.'s life. [27] Ms. P.'s victim impact statement appears to blame the offender entirely for the changes in her life. However, I note that notwithstanding Ms. P.'s significant educational and employment accomplishments, her life had taken a dramatic downturn prior to these incidents. In fact she had been discharged from a substance abuse program shortly before the offences took place. She had also not been working as a veterinarian assistant for some time. V: APPLICABLE PRINCIPLES [28] In R. v. Evanson, 2009 BCCA 425 at paras. 18-19, Bennett J.A. summarized the applicable principles this way: Mr. Justice LeBel in L.M. set out the process of arriving at a fit sentence as follows at para. 17: To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personal characteristics of the offender, the judge must weigh the normative procedures set out by Parliament in the Criminal Code: - the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgment of and reparations for the harm they have done (s. 718 Cr. C.) (see Appendix); - the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1 Cr. C.); and - the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and that available sanctions other than imprisonment should be considered (s. 718.2 Cr .C.). Thus, a sentencing judge needs to consider all the factors in arriving at a fit sentence as opposed to taking a piecemeal approach. The exception is applying the credit for pre-trial custody after a fit sentence has been determined. [29] These principles and purposes of sentencing also include the totality principle. [30] The accused's rehabilitation is also a factor to be taken into account in performing the balancing act which is required in arriving at a fit sentence. To what extent this is required will depend on the particular circumstances of each offender. [31] Denunciation and deterrence are the predominant objectives in sentencing where there is "violence arising out of an existing or failed domestic or romantic relationship." See R. v. Olienburger, 1994 ABCA 72 at paras. 23-36; R. v. Rahaman, 2008 ONCA 1 at para. 46 and R. v. Sayazie, 2010 SKCA 14 at para. 7. VI: POSITION OF THE PARTIES [32] The Crown seeks a global sentence of 54 to 60 months imprisonment and any mandatory ancillary orders that must be imposed upon conviction for offences under ss. 279(2) and 268 of the Code. [33] Specifically, the Crown asks that the accused be sentenced as follows: (a) for count 1, six months imprisonment, consecutive to counts 2, 3 and 4; (b) for count 2, 48-54 months imprisonment, concurrent to counts 3 and 4, a mandatory s. 109(2) firearms prohibition, and a mandatory DNA order pursuant to s. 487; (c) for count 3, 36 months imprisonment, concurrent to counts 2 and 4, a mandatory s. 109(2) firearms prohibition, and a mandatory DNA order pursuant to s. 487; and (d) for count 4, three months imprisonment, concurrent to counts 2 and 3. [34] Crown submits that Mr. Vignjevic's past violent behavior with a former intimate partner, his lack of insight or remorse about his actions in this case, and the anger and hostility he continues to demonstrate toward others suggests that he is at a high risk to re-offend. [35] Crown also argues that unless Mr. Vignjevic is motivated to change and does so dramatically, the deterrent effect of the sentence imposed will likely be directly proportional to the time he remains incarcerated. [36] Mr. Vignjevic, who was self-represented at this hearing as he was at the trial, (although counsel had been appointed to cross examine the complainant) chose not to make any substantive submissions or statement to the court. VII: DISCUSSION A: Aggravating and Mitigating Circumstances [37] The aggravating circumstances in this case include: (a) the offender's criminal record which is composed of: · assaults in 2006 and 2012 resulting in fines; · uttering threats in 2013 resulting in a sentence of 14 days imprisonment; · failing to appear and breach of probation also in 2013 resulting in sentences of seven and 14 days respectively; · criminal harassment in March 2014 resulting in a conditional sentence of four months and one year probation; · two separate breaches of undertaking in 2014, one in March, the other in November. On the first he received a conditional sentence of 30 days, on the second a custodial sentence of 18 days. (b) certain of these offences related to a spouse or former spouse (c) Ms. P. was the offender's common law partner at the time of the offenses, although the relationship was apparently coming to an end or had just ended. [38] The Crown submits there are no mitigating circumstances which are identified in the pre-sentence report or otherwise. As I have noted, Mr. Vignjevic chose not to make any substantive submissions at the sentencing hearing. No materials such as letters of reference or support were presented on his behalf. In conducting my own analysis of this factor, I am unable to identify any mitigating circumstances. B: Disposition [39] I was referred to several authorities by the Crown. These were contained with counsel's written summary of argument provided on December 3, 2015. At that time the sentencing hearing was scheduled to proceed on December 14, 2015. Mr. Vignjevic, however, was involved in a motor vehicle accident earlier that day and so the hearing was adjourned. [40] The Crown attempted to provide Mr. Vignjevic with the argument and authorities relied on, but he did not attend to obtain what Crown had prepared. [41] The court was also provided with a copy of the Crown materials on sentencing in December 2015. Since Mr. Vignjevic was self represented, I made my own inquiries regarding the Crown's authorities. I am satisfied that the authorities to which I shall refer are representative of an appropriate range for the offences or combination of offences for which Mr. Vignjevic has been found guilty. To the extent some cases indicated a potential for a lower range, they were in the context of Aboriginal offenders for whom the courts considered Gladue sentencing principles. [42] In R v. Johnson (1998), 116 B.C.A.C. 279 (B.C. C.A.), the British Columbia Court of Appeal found that sentences for aggravated assault range considerably from 16 months to six years imprisonment. At para. 10, the court notes that situations in which a "fight" type altercation escalates and results in the victim's injuries tend to attract sentences at the lower end of the range. Conversely, unprovoked attacks, attacks with weapons, and situations where the victims had no opportunity to defend themselves attract sentences at the higher end of the range. [43] In that case, the accused pulled the victim from inside a vehicle and beat him with a baseball bat about the head and body. The victim suffered serious injuries including a fractured skull and partial paralysis and other bone and internal injuries. Following a trial, the accused was sentenced to a five-year term of imprisonment for aggravated assault. He was 28 years old and had a solid work record up to the time of the assault. He had two dated and unrelated convictions, but they were not taken into account. He did not express remorse but the court felt he was a good candidate for rehabilitation nonetheless. The Court of Appeal upheld the five-year sentence. [44] The Court of Appeal in R. v. Craig, 2005 BCCA 484 held the appropriate sentence for aggravated assault following the offender's six months spent in remand custody was two years less a day in prison for a total of three years in prison. The offender was in his early 50s. The court emphasized the principles of denunciation and general deterrence due to the violent nature of the attack. The attack on the offender's wife was motivated by his years-long brooding over the alleged harm she had inflicted on him from infidelity. He stabbed her three times with a fishing knife with the admitted intention to maim and disfigure her. He was intoxicated at the time, although the court held the attack was pre-meditated. [45] In R. v. Campbell, 2014 BCCA 235, the sentence for the Aboriginal offender for unlawful confinement was initially four years. The sentencing judge took the Gladue factors into account. The confinement was for approximately half an hour. The age of the offender is not mentioned, although he had a long criminal record which included drug and robbery convictions. At the time of the offence, he was intoxicated with alcohol and cocaine. The complainant was not his spouse, nor was he acquainted with her. He tied the victim's arms together in a car as he punched and tried to choke her. The court considered the attack to be spontaneous, short lived and drug induced. The court also considered that the offender plead guilty, expressed remorse and wrote an apology to the victim. These factors offset the sentencing judge's emphasis on denunciation and deterrence. The Court of Appeal reduced the sentencing judge's sentence from four to three years. [46] The Alberta Court of Appeal in R. v Ollenberger, 1994 ABCA 72, imposed a sentence of four years imprisonment for aggravated assault. The offender was 30 at the time of the offence against his wife. He had no record. He accused her of having an affair and stabbed her in the stomach. He continued to cut at her hands and arms as she covered her head, and he cut off her fingers in the process. He turned himself into the RCMP and gave a confession. General deterrence and denunciation were the key sentencing principles. Aggravating factors were the violence of the assault and the breach of trust between husband and wife, and that he left the scene before making sure she had help. His remorse, lack of planning, and surrender to police were mitigating factors. [47] In R. v. Pitkeathly (1994), 29 C.R. (4th) 182 (Ont. C.A.), the court found an eight year sentence to be within the acceptable range of sentence for intimate partner violence where the victim sustained severe and lasting injuries. The offender had no prior criminal record and a reasonably good work record. [48] The sentence in R. v. Busch, 2009 ABCA 160, for aggravated assault and unlawful confinement was three years less one day imprisonment. The offender was intoxicated at the time of the attack and threatened the complainant with a knife in front of their two young children. He bound her hands, arms and mouth and put her in the basement for two hours with the children, threatening her with the knife the entire time. She was unable to drive for several months due to her injuries. The offender was 35 with no prior record although he obtained a not criminally responsible verdict relating to a previous assault and confinement of his wife. A psychiatrist's report indicated he was at high risk to offend. The court found the principles of deterrence, denunciation and protection of the public were paramount to rehabilitation. [49] In R. v. Sayazie, 2010 SKCA 14, the Saskatchewan Court of Appeal held that the range for aggravated assault in spousal assault cases is two to four years where the offender is of previous good character with no criminal record. The court replaced an 18 month term of imprisonment the sentencing judge had given the offender. The offender had hit and dragged his spouse outside in -39 degree Celsius weather causing permanent injury and a miscarriage of a three year term pregnancy. The offender did not have a criminal record. [50] While these cases were of assistance to me, determining a fit sentence is by its very nature an individualized process despite being done within the context of the applicable principles. [51] The key sentencing principles in circumstances such as this are denunciation and deterrence. [52] These offences, particularly those of March 3, 2013, were very serious in nature in that: · Ms. P.'s confinement involved the use of handcuffs, a vicious physical attack including a metal bar, a serious physical injury to her leg which required surgery and installment of surgical nails. The injuries also included bruising to the inside of Ms. P.'s thighs that arose from blows Mr. Vignjevic dealt her while stating something to the effect that if she could not please him, then she would not please other men; · Mr. Vignjevic grabbed a butcher's axe or hatchet and began waving it in front of Ms. P.'s face and tapping it close to her wrists. He threatened to cut off her wrists if she did not give him the password. [53] The domestic relationship between Mr. Vignjevic and Ms. P. is also an important consideration, as is his criminal record involving offences against his former spouse. [54] The impact on Ms. P. was also significant. [55] While I have considered the offender's rehabilitation, it can only be a secondary factor. This is so, in part, because Mr. Vignjevic has shown no indications of remorse or insight as to what occurred. He maintains that he did not commit the offences. Also, I note that in his evidence at the trial, he stated he believed he was the one being abused in the relationship and attributed this knowledge to a relationship violence course he completed shortly before the offences occurred. [56] I have concluded that the global range of sentence sought by the Crown is entirely appropriate in this case. It is also in keeping with the authorities to which I have referred and the different circumstances which arise in these cases. [57] This also reflects the totality principle. [58] Mr. Vignjevic please stand. [59] I sentence you to a global term of imprisonment of 54 months which is comprised of the following: (a) Count 1: three months imprisonment which will be consecutive to counts 2, 3 and 4; (b) Count 2: 51 months imprisonment to be served concurrently to counts 3 and 4; (c) Count 3: 30 months imprisonment to be served concurrently to counts 2 and 4; (d) Count 4: three months imprisonment to be served concurrently to counts 2 and 3. [60] You may be seated. [61] There will also be the following ancillary orders: · a lifetime ban from the possession of any firearms, ammunition and explosive substances or any of the items set out in section 109 of the Criminal Code; · this being a primary designated offence, an order that you provide a sample suitable for registration with the DNA data bank at a time and date through the facility; · a victim surcharge of $200 as provided by section 737 (2)(b) of the Criminal Code. I order that the fine be paid forthwith. Since I have been advised that the offender has no means to pay this fine, I impose a sentence in default of one day in custody to be served concurrently to the above sentences. "Abrioux J."