R. v. Hughes

2024 BCSC 1103 R. v. Hughes IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Hughes, 2024 BCSC 1103 Date: 20240605 Docket: 183845 Registry: Victoria Between: Rex And Douglas Wayne Hughes Before: The Honourable Justice Chan Oral Reasons for Judgment Counsel for the Crown: P.A. Weir (May 13, 2024) R.C. Fowler (June 05, 2024) Counsel for the Accused, Douglas Wayne Hughes: M. Swartz Place and Date of Trial/Hearing: Victoria, B.C. May 13, 2024 Place and Date of Judgment: Victoria, B.C. June 5, 2024 Table of Contents Introduction.. 3 Circumstances of the Offences. 3 Circumstances of the Accused.. 4 Criminal Record.. 5 Pre-Trial Custody. 6 Impact on Victim.. 6 Legal Principles. 6 Aggravating and Mitigating Circumstances. 7 Position of the Crown.. 8 Position of the Defence. 9 Analysis and Sentence. 9 [1] This is an oral ruling. If a transcript is ordered, I reserve the right to make minor corrections for grammar, style and citations; however, the substance will not change. Introduction [2] Douglas Wayne Hughes is before the court for sentencing today. He was convicted after trial in October 2023 of four counts in relation to an incident inside a room at the Tally Ho in April 2022. Circumstances of the Offences [3] Mr. Hughes is convicted of extortion, unlawful confinement, assault causing bodily harm and assault with a weapon, in relation to events on April 2 to 3, 2022. During the late evening and into the early morning hours, Oliver Nicholson was beat up, taped to a chair, torched and set on fire inside a suite at a supportive housing facility in Victoria called the Tally Ho. Mr. Nicholson at the time owed a drug debt. Mr. Hughes was one of the six individuals inside the suite at the time these events occurred. After trial, I found Mr. Hughes guilty of the four offences. I repeat here the paragraphs from my reasons setting out my findings: 2023 BCSC 2160: [39] After the door was closed, Mr. Hughes, Ms. Berryman, Dante and Mr. McLaughlin started yelling accusations at Mr. Nicholson. The subject of the accusations was the money that was owed. The punching, kicking, duct-taping, branding and setting the shoulder on fire followed. [40] The unlawful confinement occurred after the door to the suite was closed and specifically when Mr. Nicholson was duct-taped to the chair. It was clear at that point Mr. Nicholson was not able to leave. Mr. Hughes participated in applying the duct‑tape. I accept Mr. Nicholson's evidence that the four people in the group were all working together, taking part in taping him to the chair. [41] The assault causing bodily harm occurred during the punching and kicking when Mr. Nicholson was standing by the closet area. I accept the evidence of Mr. Nicholson that while Dante threw the first punch, Mr. Hughes and Mr. McLaughlin also joined in the punching. Mr. Nicholson described the punches and kicks as coming from multiple people. [42] The assault with a weapon occurred during the branding and the setting on fire of Mr. Nicholson's shoulder. A weapon includes anything used to cause injury. The hot coin applied to Mr. Nicholson's chest was a weapon, as well as the lighter fluid rubbed on to the shoulders and then set aflame. While it was Dante who perpetrated these acts, I find Mr. Hughes was a party to the assault as his actions kept Mr. Nicholson in the room. The series of offences - the assaults, unlawful confinement and the extortion - was a joint enterprise between the four individuals. Alternatively, Mr. Hughes assisted and encouraged Dante to carry out these offences. Mr. Hughes' actions that night made it difficult for Mr. Nicholson to leave, so Dante can inflict the injuries with the coin and the lighter fluid. Circumstances of the Accused [4] Mr. Hughes is currently 43 years old. The Court has the assistance of a Gladue Report which was prepared in January 2024. Mr. Hughes identifies as a member of the Metis/Cree Nation. His mother was adopted as a child and lost connection with the family's indigenous roots. His father is non-indigenous, and resides in Victoria. His father was in attendance during the sentencing hearing to offer his support. [5] Mr. Hughes reports that his parents and two biological siblings all have addiction issues. When he was one year old, his parents separated. He spent his childhood moving back and forth between his parents' homes, which were located in the Yukon and Edmonton. As a result, Mr. Hughes did not have a stable home and his education suffered. He dropped out of school in grade seven. He was diagnosed at age eight with attention deficit hyperactivity disorder, but his mother did not want him to take medication. [6] During his teenage years, Mr. Hughes was in and out of group homes and juvenile detention centres. He also spent time in mental health facilities. Mr. Hughes admits his behaviour was out of control during this period of time. He was treated poorly by a social worker living with his family and also by his mother's many different boyfriends who came in and out of his life. He reports that he was sexually assaulted by one of these men. He called the police to report the incident, but no charges were laid. [7] At age 14, Mr. Hughes was run over by a drunk driver and suffered severe head injuries, a dislocated shoulder and injuries to his neck and back. He reports he was constantly in pain after that point and was always angry. He reports he had difficulty taking showers for two years due to so much pain in his head. [8] Mr. Hughes turned to drugs. He was using heroin and methamphetamine on a daily basis. He did have a stretch of healthy living when he was in a common law relationship with his girlfriend. The couple had a daughter, and he reports he was happy working to support his family. However, after about five years he fell back into drugs, alcohol and crime. When Mr. Hughes was 28 years old, his then girlfriend left him and took their daughter with her. She has advised he is welcome to reconnect with his daughter when he can maintain sobriety. [9] Mr. Hughes has been basically homeless for the last 15 years. He has lived in tents, benches, in entry ways of buildings and wherever he can find a spot. He has been in and out of jails. He is known on the streets as a talented tattoo artist and he hopes to work in this area. [10] His father has been clean and sober for 35 years. His mother and siblings are working on sobriety, and attend a recovery addiction support program. His father has indicated Mr. Hughes can live with him when released from jail, and he will take Mr. Hughes to attend recovery programs. [11] Mr. Hughes since being in jail from the date of these offences has completed programs on living without violence, the culinary arts and achieved a food-safe certification. He has applied for subsidized housing. Criminal Record [12] Mr. Hughes has a significant criminal history. He has approximately 42 adult convictions, starting from 2000. He has approximately six convictions for violence type offences, such as assaults, assault with a weapon, uttering threats and possession of a weapon. He has two convictions for drug trafficking. The bulk of his convictions are for theft, failures to comply with court orders and simple possession of drugs. [13] He was serving a conditional sentence order when he was arrested for these offences in April 2022. He was also on bail for a charge of drug trafficking, impaired driving and breach of a release order in April 2022. Pre-Trial Custody [14] Mr. Hughes has been in custody for these offences since April 3, 2022. He has also been sentenced for a few offences while in custody, resulting in some of his pre‑trial custody being credited to those offences. While the parties agree that the time spent serving sentences on other offences ought not to count as pre-trial custody for these offences, the parties differ slightly in their calculations. As I understand it, the difference in the calculations is based on the Crown only counting the actual days Mr. Hughes would have served after accounting for remission, while the defence counts the whole length of sentence that was imposed. In my view, the defence approach is preferred. The Crown cited no authority to support their method of calculation. [15] From April 3, 2022 to today, Mr. Hughes has spent 795 days in custody. With enhanced credit at 1.5, that amounts to 1192.5 days. From this should be deducted his other sentences, which total 595 days. He has 597.5 days remaining of credit for pre-trial custody. I will round this up to 598 days of credit. Impact on Victim [16] Unfortunately, Mr. Nicholson has since passed away as a victim of a homicide so the Court does not have the assistance of any victim impact statement. During the trial, Mr. Nicholson testified to the lasting impact, both physically and psychologically, of the incident. Legal Principles [17] Section 718 of the Criminal Code, R.S.C. 1985, C. c-46 [Code] provides that the fundamental purpose of sentencing is "to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society, by imposing just sanctions", with reference to six objectives. [18] These objectives are denunciation of unlawful conduct; deterring the offender and other persons from committing offences; separating offenders from society where necessary; assisting in rehabilitating offenders; providing reparations for harm done to victims or to the community; and promoting a sense of responsibility in offenders and acknowledging the harm done to victims or to the community. [19] I am also mindful of the other sentencing principles to be considered, including proportionality, parity, totality, and the need for restraint in the use of imprisonment: s. 718.1 to s. 718.2 of the Code. [20] Further, in sentencing indigenous offenders the court must consider all of the surrounding circumstances and display sensitivity and understanding to the difficulties aboriginal people have faced with both the criminal justice system and society at large: R. v. Mero, 2021 BCCA 399 at para. 111. The court must consider s. 718.2(e) and the Gladue principles. In R. v. Kehoe, 2023 BCCA 2, the Court set out the approach to sentencing indigenous offenders: [40] Accordingly, Gladue and Ipeelee transformed the approach to sentencing Indigenous offenders. As with all offenders, a judge sentencing an Indigenous offender must take a holistic approach to imposing a fit sentence that is proportionate to the seriousness of the offence and the moral blameworthiness of the offender: Ipeelee at para. 37. However, since the circumstances of Indigenous offenders are "significantly different" from those of non-Indigenous offenders, the judge must pay particular attention to two factors: 1. The unique systemic or background factors that may have played a part in bringing the particular Indigenous offender before the courts; and 2. The types of sentencing procedures and sanctions that may be appropriate for the offender in the circumstances given their particular Indigenous heritage or connection. [21] The Court noted in Kehoe that it is not necessary to establish a direct causal link between systemic and background factors and the offence at issue. Further, there is no automatic heritage-based discount: Kehoe, at para. 43. Aggravating and Mitigating Circumstances [22] The Crown submits the aggravating factors are the nature of the assault and unlawful confinement, including dragging the victim while he was bound, degrading him by removing his clothes, and the fact that multiple people were involved in the kicks and hits. The Crown points to the cruel nature of the torture, including the branding and setting the victim on fire. The Crown submits the victim was a vulnerable person suffering from serious addictions and asks the court to consider the prolonged exploitation of the victim. Further, this assault occurred in a supportive living facility that the victim called his home and where he ought to have felt safe. These offences occurred while Mr. Hughes was serving a conditional sentence order and while he was on bail for other offences. The Crown submits that deterrence, denunciation and protection of the public must be paramount. [23] In terms of mitigating circumstances, Mr. Hughes asks the court to consider his own tragic upbringing. He is as well a vulnerable person, struggling with homelessness and addictions for most of his adult life. He argues his role in the incident was less serious than the others in the group. [24] Mr. Hughes addressed the court at the last appearance. He told the Court that he is very remorseful and that this incident occurred during a period of time when he was heavily using drugs and was struggling with homelessness. He expressed deep regret at what happened to Mr. Nicholson. The Court accepts his statement of remorse and has taken it into consideration. Position of the Crown [25] The Crown submits an appropriate sentence is four years concurrent on each count, less time served. [26] The co-accused have now all been sentenced. Mr. Townsend, who was referred to as Dante during the incident, pleaded guilty to unlawful confinement and assault causing bodily harm. He was 18 years old at the time of this incident. He had no adult convictions at the time, though he had a significant youth criminal history. Mr. Townsend was the ringleader of the group. He received a sentence of four years on each count based on a joint submission. [27] Ms. Berryman pleaded guilty to one count unlawful confinement. She received a sentence of 23 months in custody with 12 months probation based on a joint submission. [28] Mr. Formosa pleaded guilty to one count of assault causing bodily harm. He had the most minor role in the incident. The evidence was he entered the room later, and re-taped the victim's mouth when directed by Mr. Townsend. He had a significant but dated criminal record. He received a sentence of 12 months to be followed by 12 months of probation, based on a joint submission. [29] Mr. McLaughlin pleaded guilty to unlawful confinement and assault causing bodily harm. He was 49 years old with no criminal record. He showed remorse and had prepared an apology letter to the victim. He received a sentence of three years jail followed by 12 months of probation. [30] The Crown argues Mr. Hughes is most similar to Mr. McLaughlin in terms of their roles in the offences and their level of moral blameworthiness. They both acted as muscle for Mr. Townsend, to ensure the victim would not escape. [31] The Crown relied on two sentencing decisions. R. v. Smith, 2019 BCSC 236 involved an unlawful confinement and assault in the context of a home invasion where the accused was sentenced to 10 years. The other decision, R. v. Gamble, 2020 SKQB 16, involved unlawful confinement in the context of a kidnapping, where a sentence of 7.5 years was imposed. Position of the Defence [32] Mr. Hughes' position is an appropriate sentence is concurrent sentences of two years for extortion, three years for the unlawful confinement and 18 months for the assault with a weapon and assault causing bodily harm, less time served. [33] The defence relied on a number of sentencing decisions for unlawful confinement and assault causing bodily harm, where the sentences imposed ranged from 15 months to 4.5 years. Analysis and Sentence [34] Mr. Hughes is to be sentenced for the following offences: · Count 1: Extortion contrary to s. 346(1.1)(b) of the Criminal Code; · Count 2: unlawful confinement contrary to s. 279(2) of the Criminal Code; · Count 3: assault causing bodily harm contrary to s. 267(b) of the Criminal Code; and · Count 4: assault with a weapon, contrary to s.267(a) of the Criminal Code. [35] The prime sentencing objectives in this case are denunciation, deterrence and protection of the public, due to serious and violent nature of the assaults. The victim was lured to the suite, beat up, taped to a chair, branded with a hot coin and his shoulder set on fire. This conduct must be denounced. A strong message must be sent that individuals must not resort to violence and assaults to settle their differences. What happened to the victim here is tragic. [36] Another important factor to be considered is Mr. Hughes' indigenous heritage. His background makes him in some sense as vulnerable as Mr. Nicholson. Mr. Hughes has suffered from being raised in a home where substance abuse was pervasive. He was neglected as a child, sexually abused, and did not have a stable home life. He has been essentially homeless for the last 15 years. [37] I have considered the submissions of the parties and the cases referred to by counsel. While cases provide some guidance, sentencing is an individualized process. In my view, the cases involving kidnapping, robbery and home invasion are not proper comparators, as those offences involve additional elements not found in this case. The cases cited by counsel which are the most similar are R. v. Chen, 2018 BCPC 121; R. v. Roefaro 2011 BCPC 278; R. v. Bogzaran, 2009 BCPC 40; and R. v. Lee, 2022 ONCJ 325. Only R. v. Lee involved an element of setting the victim on fire. The accused received a sentence of four years in R. v. Lee. [38] In my view, the most relevant sentences that ought to be considered are those received by the co-accused. Mr. Townsend was the mastermind. He lured the victim to the room. He planned these assaults in advance, bringing with him the specially made pliers to heat up the coin. He was the one directing the others what to do in that room. It was clear on the evidence that Mr. Townsend was the one in charge of all the events that transpired in that room. He is young with no adult criminal record. He pleaded guilty and received a sentence of four years. [39] Mr. McLaughlin received a sentence of three years. His role was similar to Mr. Hughes' role. He had no criminal record, pleaded guilty and was sentenced to three years. [40] I find an appropriate sentence for Mr. Hughes is between three to four years. His level of culpability is somewhere between Mr. McLaughlin and Mr. Townsend. While his role in the offence is similar to Mr. McLaughlin's role, Mr. Hughes has an extensive criminal record. [41] I have considered the principles and objectives of sentencing, the mitigating and aggravating factors, Mr. Hughes' personal circumstances including his criminal record, the harm caused to the victim, the case law involving similar offenders and similar offences and Mr. Hughes' indigenous heritage. [42] I find a sentence of 3.5 years in these circumstances is sufficiently long to meet the objectives of denunciation, deterrence and protection of the public, but not so unduly long as to hinder any prospects of rehabilitation. It is within the range for these offences. In particular, I take into account Mr. Hughes' role in these offences. He was not the directing mind, he was following orders and he did not directly partake in the branding or the setting on fire of the victim. [43] Mr. Hughes, will you stand, please? [44] Mr. Hughes, on each count, I sentence you to 3.5 years less time served of 598 days, for a net sentence of 679 days, all sentences to run concurrently. [45] Please be seated. [46] There will be a probation order for 12 months with the following terms: 1. Keep the peace and be of good behaviour; 2. Appear before the Court when required to do so by the court; 3. Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; 4. You must have no contact or communication directly or indirectly with Christine Berryman, Ty McLaughlin, Alexander Formosa, or Alemayehu Townsend; and 5. You must not go to 3020 Douglas Street, Victoria, the Tally Ho. 6. You must report in person to a probation officer at 836 Courtney Street, Victoria, within two business days after your release from custody unless you have obtained, before your release from custody written permission from the probation officer to report elsewhere or within a different time frame. After that, you must report as directed by your probation officer; 7. When first reporting to your probation officer, you must provide them with the address where you live and your phone number; you must not change your address or phone number without notifying your probation officer in writing in advance of any change; 8. You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer. This may include counselling or programming for alcohol or drug addiction; 9. You must not possess, directly or indirectly, any weapon as defined by the Criminal Code; 10. You must not possess any knives, or axes, or any other sharp bladed instrument, used, designed to be used, or intended to be used to cut things. The exceptions are as follows: you can possess a knife when preparing and eating food; and you can possess these items inside the place where you live and regularly sleep. [47] There will be a DNA order pursuant to s. 487.051 on counts 3 and 4, and a firearm prohibition order pursuant to s. 109(1)(a) on all counts. "Chan J."