R. v. Vukaj

2013 BCSC 79 R. v. Vukaj IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Vukaj, 2013 BCSC 79 Date: 20130118 Docket: 25458 Registry: Vancouver Regina v. Ramiz Vukaj Corrected Judgment: The text of the judgment was corrected at paragraph 23 on January 22, 2013, and paragraphs 115 and 140 on January 31, 2012. Before: The Honourable Madam Justice S. Griffin NOTICE: There is a Ban on Publication pursuant to s. 486.5(1) of the Criminal Code as follows: the current name of the complainant (and her initials), who is the victim referred to in Counts 1, 2, 4, and 7 of the charges against the accused, shall not be published in any document or broadcast or disclosed in any way; and, any information which would name the witness who will go by the initials A.E. shall not be published in any document or broadcast or disclosed in any way Oral Reasons for Sentence Counsel for the Crown: Jocelyn Coupal Shannon L. Smith Counsel for the Accused: Lisa J. Helps E. McCormick, A/S Place and Date of Hearing: Vancouver, B.C. December 13, 2012 Place and Date of Sentence: Vancouver, B.C. January 18, 2013 Introduction [1] In the early morning hours of April 19, 2010, Ramiz Vukaj found where his separated wife E.C. was living with their three children in hiding from him. He attacked her at her home, brutally striking her in the head with a metal stick three times, opening up her skull. He fled from the scene where she laid unconscious in a pool of her blood, the children in their nearby bedroom. Driving his car wildly, he careened through a highway intersection into another car. He then fled that scene, abandoned his car on the side of the road and ran away from police and fire officials before he was caught. Earlier, on February 25, 2010, he had threatened his separated wife at a court proceeding dealing with their matrimonial breakdown. [2] After trial Mr. Vukaj has been found guilty of several counts, the most serious of which is the attempted murder of the complainant, E.C. [3] More specifically, he has been found guilty of the following counts: Count 1 At or near Vancouver, in the Province of British Columbia, on or about the 19th day of April, 2010, he did attempt to commit the murder of [the complainant], contrary to section 239(1)(b) of the Criminal Code. Count 3 At or near Vancouver, in the Province of British Columbia, on or about the 19th day of April, 2010, he did break and enter a dwelling house, situate at [house number] East 59th Avenue, and did commit aggravated assault, an indictable offence, therein, contrary to section 348(1)(d) of the Criminal Code. Count 5 At or near Richmond, in the Province of British Columbia, on or about the 19th day of April 2010, he did operate a motor vehicle, in a manner that was dangerous to the public having regard to all the circumstances including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably be expected to be at that place, contrary to section 249(1)(a) of the Criminal Code. Count 6 At or near Richmond, in the Province of British Columbia, on or about the 19th day of April 2010, having the care, charge or control of a vehicle that was involved in an accident with another vehicle, he did with intent to escape civil or criminal liability, fail to stop his vehicle and give his name and address and offer assistance, contrary to section 252(1)(b) of the Criminal Code. Count 7 At or near New Westminster, in the Province of British Columbia, on or about the 25th day of February, 2010, he did knowingly utter or convey a threat to [the complainant], to cause death or bodily harm to [the complainant], contrary to section 264.1(1) of the Criminal Code. [4] After considering the parties' sentencing submissions and the evidence and relevant legal principles, I find appropriate the following custodial sentences: Count 1: 14 years Count 3: 5 years, concurrent with Count 1 Count 5: 1 year 6 months Count 6: 10 months Count 7: 1 year [5] The above sentences total 17 years 4 months. Based on the totality principle, I order that the sentences for Counts 5 and 6 be served concurrently with each other; and order Count 7 to be served concurrently with Count 1. [6] I therefore order that Mr. Vukaj be sentenced to a total of 15 years and six months, less time served which I calculate as two years and nine months. This leaves a remaining global sentence of 12 years and nine months. [7] I will deal with parole eligibility and ancillary orders at the end of my reasons for sentence. [8] My reasons for sentence are as follows. Circumstances of the Offences [9] In summary, Mr. Vukaj and his wife, E.C. separated in April 2009, after a marriage which was marked by Mr. Vukaj's physical assaults of her. The complainant sought refuge in a series of transition shelters and secret homes. After Mr. Vukaj pleaded guilty in Provincial Court to assaulting and threatening her, he received a conditional discharge and terms of probation in February 2010. [10] The couple's three young children resided with E.C. but she was eventually willing to have her children have supervised access with Mr. Vukaj. [11] On February 25, 2010, Mr. Vukaj and his separated wife were each attending a Judicial Case Conference in the Supreme Court of British Columbia addressing matrimonial issues between them including the terms of Mr. Vukaj's supervised access to the children ("JCC"). Each were represented by counsel. Unobserved by others present except for E.C., Mr. Vukaj looked at her and made a threatening gesture of a cutting or slashing motion at his neck, and mumbled to her the threatening words "I'm going to kill you". [12] E.C. believed she had been threatened by Mr. Vukaj and was upset by the threat. However, she did not seek any official police or court response to deal with the threat at that time. [13] The children's supervised visits with their father, Mr. Vukaj, then commenced. [14] At some point, and this Court does not know how or when, Mr. Vukaj learned of where the complainant was living with the three children. This was despite her efforts to keep their residence confidential from him, due to her fears of him. [15] In the early morning hours of April 19, 2010, when E.C. opened her suite door, Mr. Vukaj appeared there, holding a metal stick. He forced his way in and attacked her with the metal stick. He used both of his hands to wield the stick against her head. The complainant struggled to defend herself with her hands, and to escape him, running into an adjacent bathroom but Mr. Vukaj followed her and continued the attack. E.C. sustained at least three blows to the head, leaving her with three open skull injuries and blood coming out of her head. She lost consciousness, but then woke up and made her way to a phone to call 911 for help. [16] The medical evidence regarding E.C.'s injuries was described in the trial reasons of this case, 2012 BCSC 1396 at paras. 239 - 245 [Trial Reasons]. E.C. sustained potentially lethal blows of great force, so forceful and severe that her skull was fractured. She had several lacerations to her head, a closed head injury, traumatic subarachnoid hemorrhage, a tear of the dura beneath the skull fracture, muscular sprain of the neck, and psychological injuries. [17] A second before E.C.'s call to 911, there was another call to 911, from the victim of a car accident involving Mr. Vukaj. Mr. Vukaj had driven his car at high speed through a red light at a highway intersection, over a traffic divider, and into another car which had just proceeded legally through the intersection. Both cars sustained significant damage. The driver of the other car called 911 and reported Mr. Vukaj's license plate. [18] Mr. Vukaj continued driving his now damaged car. His car had lost a tire and made indentations on the road as he drove away. Further down the road he drove across the highway (against the direction of oncoming traffic) and abandoned his car in a ditch. When officials arrived at his car, Mr. Vukaj then fled on foot across a field, until he hid in a bush. He was subsequently arrested. Some officers on the scene of his arrest noted that Mr. Vukaj appeared intoxicated. Circumstances of the Offender [19] Two pre-sentence reports were prepared on Mr. Vukaj, one dated November 30, 2012, prepared by a probation officer ("PSR"); and another dated December 4, 2012, prepared by a psychologist with the Forensic Psychiatric Services Commission ("Psychologist Report"). [20] As well, Mr. Vukaj filed letters of support, letters from past employers; and proof of programs that Mr. Vukaj has taken since he was incarcerated. It is likely that if Mr. Vukaj is released from prison that he will have the continued support of his brother, Ilir Vukaj and will be able to find work. [21] According to Mr. Vukaj's own reporting and the PSR and Psychologist Report, he had a fine childhood in Albania, growing up in a close family without any violence in the home. There is nothing in these reports that would provide any explanation of the violent character he has shown towards his wife. [22] He was born in October 1966 in Albania and is now 46. He and his brother Ilir Vukaj left Albania, first moving to Yugoslavia and then moving to Canada in February 1993. He is of average intellect. Mr. Vukaj has regularly found employment as a labourer in Canada: first in commercial painting, and then a variety of jobs in paving. Leaving aside his behaviour towards his wife, he has no other known criminal behaviour towards others, outside of the driving offences for which he has now been convicted. [23] Mr. Vukaj and the complainant were introduced in Albania as part of an arranged marriage. He denies knowing that her age was as young as it was, but she was born in 1985. She was 13 when they were married and 15 when he brought her to Canada from Albania in 2000, when he was then age 32. [24] E.C.'s evidence at trial as to the nature of their relationship was essentially unchallenged: she was repeatedly assaulted by him beginning on the first day he brought her to Canada. This pattern of assault continued even after she became pregnant, and after she gave birth to their three children. It even occurred in front of the children. [25] After E.C. left Mr. Vukaj in April 2009, he was charged with committing assault against her during the period of January 1, 2009 to April 21, 2009. He was also charged with uttering a threat to her, to cause death or bodily harm, during the same period. He pleaded guilty to these two charges in Provincial Court on January 13, 2010, and then his counsel spoke to sentence on February 17, 2010. It was clear from the sentencing proceeding that the assault charge was in relation not only to a single attack on E.C. in April 2009, when he hit her several times with a rolling pin, but also to a prior pattern of assault as well. He also pleaded guilty to the threatening charge, which related to his threats on more than one occasion that if E.C. left him he would kill her. [26] Mr. Vukaj's admission of guilt to the two counts before the Provincial Court ultimately led to him receiving a conditional discharge for those offences. Based on s. 730(3) of the Criminal Code, R.S.C. 1985, c. C-46 [Code] he shall therefore be deemed not to have been convicted of these offences. [27] There is only limited relevance to the evidence of the conditionally discharged offences and the evidence that Mr. Vukaj did have a history of repeatedly assaulting and threatening his wife. While I accept the complainant's evidence of this history, this evidence is not to suggest that he should now be sentenced for his prior assaults and threats: he cannot be. The current sentence must be only in relation to the offences for which I have convicted him after trial. However, this history provides insight into Mr. Vukaj's character which assists the court in considering sentencing objectives such as the prospects of rehabilitation and the need for specific deterrence. [28] The conditional discharge was accompanied by a 15 month probation order, which included terms that Mr. Vukaj: have no contact with E.C.; not attend at her residence; and abstain from alcohol. The current offences were committed in violation of these court ordered terms. As noted by the author of the PSR at p. 5: The subject demonstrated during this past period of supervision that his attitude toward following such conditions is poor and that such supervision provided insufficient controls to prevent future offending. [29] That Mr. Vukaj appears to have little regard for the courts or court orders is further demonstrated by the fact that the threatening offence, Count 7, occurred in a courtroom. [30] Mr. Vukaj did not admit to the authors of the PSR or Psychologist Report that he has had any problem with anger, drinking, or repeated domestic violence. He denied any substance abuse problems. He portrayed himself as a social drinker only, who is in full control of his actions when under the influence of alcohol. He denied assaulting his wife on any prior occasions other than one time in April 2009, and suggested that the charges in Provincial Court were in relation to one assault only. His description of this single incident to these report authors appears to blame his conduct on the complainant for aggravating him. In the Trial Reasons at paras. 248 and 292, I noted that Mr. Vukaj in his evidence attempted to link the victim to his strange alibi, suggesting that one of his purported Mexican kidnappers mentioned her name. This appeared to be his attempt to create the inference that it was the victim who was behind the terrible things that happened, not him. [31] Mr. Vukaj has not indicated that he has gained any psychological insight from his incarceration or programs, and told the author of the PSR that he participated "for something to do". He told the author of the Psychologist Report that he attended programs available to him such as anger management and Alcoholics Anonymous, "not because I thought I needed it" but because they were an opportunity "to learn more and open more windows". It therefore appears he is only going through the motions with any rehabilitation programs and does not take them seriously because he does not think he needs to improve himself. He described himself to the author of the Psychologist's Report as "friendly, loving, active, obedient and a 'family person'... [with] no problems or personality flaws". [32] The author of the Psychologist Report stated this in his conclusions (at pp. 6‑7): On the issue of prognosis, Mr. Vukaj is likely at high risk for serious criminality, specifically spousal violence. His risk is indicated by the presence of a host of risk factors associated with spousal violence recidivism including a past history of spousal violence, serious violence, escalation in the seriousness of spouse assault, threats of death, substance abuse problems, extreme denial of spousal assault, relationship instability, prior supervision failure and failure to abide by no-contact conditions, and particularly substance use problems. That Mr. Vukaj has previously been criminally sanctioned for his past spousal assaults and participated in treatment/intervention, only to go on to commit the present attempted murder of his ex-wife is also of great concern with regard to his risk. His level of denial and openness around his thinking and motivations is also a concern as it pertains to his ability to be managed in the community. In order to be successfully managed, he needs to have an open and unguarded relationship with either his case manager and/or treatment provider so that assistance or intervention can be adjusted according to his needs and his risk level. Without an open relationship, it will be extremely difficult to determine if he is at risk or when his risk might be increasing (or decreasing). With regard to nature of his risk, Mr. Vukaj is at risk for a host of spousal assault behaviours ranging from mild aggression to potentially fatal violence. [Emphasis added.] [33] Mr. Vukaj is a person who has been able to maintain employment and who has some community supports in place. Mr. Vukaj has no insight, no remorse, and no desire to admit or address the violence he has shown towards his former wife. He is at high risk for spousal violence, including potentially fatal violence. Impact of the Offences [34] The main victim of this offender's conduct was E.C. [35] I have mentioned already some of E.C.'s physical injuries. But there were also psychological injuries which will be more long lasting. [36] A victim impact statement was provided by E.C. She says that the experience has left her forever changed. The person she was died that night. She has fear of other people hurting her, now that she knows what a person can be capable of. She is scared at night and in dark places and is always looking over her shoulder. She has trouble sleeping. She feels that her physical injuries have left her weaker and vulnerable. She feels like she is handicapped, like a glass that has been broken and put back together. She gets dizzy and lightheaded, and at other times her head feels heavy. She had to lose her apartment, leave her school program, and has been in financial dire straits since the offences as well. [37] Other victims of the offences include the parties' children. While the complainant said in her victim impact statement that she believes they witnessed something of what went on that night, this is an after-the-fact reconstruction. There was no evidence that they came out of their bedroom while the assault was happening and before E.C. was taken to the hospital and so I can give no weight to her belief. [38] Nevertheless, the children are victims in that their primary caregiver was almost taken away from them, their mother. They also have had to move schools and leave behind friends. They have had very unstable lives and cannot but have been affected by the trauma to their mother, and by fear and hiding from their father. They have to wrestle with the almost impossible dilemma that someone who purports to love them, their father, seriously hurt and tried to permanently destroy their other loved parent, their mother. [39] Women who are in domestic relationships where they are victims of threats and assaults, are also indirectly impacted by offences of the nature here. The facts of this kind of offence add to the fears of such vulnerable women that they too will be unsafe and will risk death if they leave abusive relationships. Legal Parameters and Positions of the Parties [40] The Code establishes the maximum sentence which can be imposed on an offender for crimes that were committed in this case. [41] For Count 1, attempted murder, the maximum punishment pursuant to s. 239(1)(b) of the Code is life. The Crown submits that a life sentence should be imposed here. The defence argues that the sentence should be somewhere in the range of seven to twelve years. [42] The maximum sentence for Count 3, break and enter a dwelling house and committing aggravated assault, pursuant to s. 348(1)(d) of the Code is life. The Crown seeks a sentence in the range of five to seven years. The defence says that the proper range is between nine months and five years, or, if the aggravating circumstance is considered as set out in s. 348.1 of the Code, namely, that it is in relation to a dwelling house, then the range is four to nine years. [43] For Count 5, dangerous operation of a motor vehicle contrary to s. 249(1)(a) of the Code, the maximum punishment is five years. The Crown submits that an appropriate sentence is in the range of 18-24 months plus a one to two year discretionary driving prohibition. The defence appears to agree that the sentence could fall within this range. [44] With respect to Count 6, failure to stop at the scene of an accident contrary to s. 252(1)(b) of the Code, the maximum sentence permitted by the Code is five years. The Crown submits that an appropriate sentence here would be in the range of 12-18 months. The defence submits that an appropriate sentence is in the range of three to12 months. Again a driving prohibition is discretionary. [45] Count 7 deals with the offender's threat on February 25, 2010, contrary to s. 264.1(1) of the Code. The maximum sentence provided by the Code is five years. The Crown submits that a sentence of 12 months is appropriate here. The defence submits that the range in the cases is between a conditional discharge and up to two years. General Principles on Sentencing [46] Parliament has enacted laws which govern sentencing, set out in Part XXIII of the Code. [47] As set out in s. 718 of the Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions. The just sanctions are to have one or more of the following objectives: denunciation, deterrence of the offender and deterrence of others, protection of the public by separating offenders from society where necessary, rehabilitation, reparation, and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [48] An important sentencing principle is proportionality: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, as set out in s. 718.1 of the Code. Many other principles of sentencing flow from the proportionality principle. [49] For example, the Code provides at s. 718.2(c) that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. This is known as the "totality principle". As held by the Supreme Court of Canada in R. v. M.(C.A.), [1996] 1 S.C.R. 500 at para. 42 [C.A.M.]: The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. [50] Section 718.3(4) allows the court to impose consecutive sentences for separate offences. When sentencing for more than one offence, the court must decide whether the sentences are to be served concurrently or consecutively. [51] As well, the court must also take into account that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, as required by s. 718.2 of the Code. [52] As provided in s. 718.2(a)(ii) and (iii) of the Code, Parliament has deemed as aggravating circumstances the fact that the offender abused the offender's spouse or common-law partner, and, or, abused a position of trust or authority in relation to the victim. [53] Furthermore, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances: s. 718.2(b). This means that a sentencing judge will often refer to numerous other cases where sentences had been imposed for like crimes, and try to compare or contrast the aggravating or mitigating circumstances. At times, for ease of convenience, the review of such cases may suggest a "range" of sentences that can be imposed. In this context, a range is not a mandatory minimum or maximum, but simply a short form method of summarizing other cases where sentences were imposed, which may be useful to refer to in an effort to comply with the statutory requirement of imposing a similar sentence for a similar crime. [54] Evidence rules are somewhat relaxed on a sentencing hearing on relevant facts not in dispute. However if there is a dispute about any aggravating fact relied upon by the prosecutor, s. 724(3) of the Code requires that the Crown must prove it beyond a reasonable doubt. Here the parties for the most part did not contest each other's submissions as to the relevant facts, subject to the defence qualification that Mr. Vukaj maintains his innocence with respect to the offences and so the facts considered relevant in the defence submissions are those based on my findings in my Trial Reasons. [55] Due to the objections of the defence, I did not admit into evidence logs prepared by corrections officials regarding the offender's time spent in custody while on remand. Further, I give no weight to statements attributed to Ilir Vukaj in the PSR which reflect poorly on Ilir Vukaj's appreciation of the seriousness of the spousal abuse by the offender, given that the defence contested the fact of these statements. Likewise, as noted already, I have given no weight to statements that suggest that the children might have directly witnessed the attempted murder. [56] As for evidence of conduct by the offender that may constitute other offences which are not the crimes for which the offender is presently being sentenced, the law carefully limits the use of such evidence. The Supreme Court of Canada also commented on the principles of sentencing in R. v. Angelillo, 2006 SCC 55 [Angelillo]. There, the issue had to do with the admissibility on appeal of new evidence obtained after the trial and sentencing, of other offences committed by the accused. While the fresh evidence was not admitted, Charron J. of the Court acknowledged that "in principle, evidence of facts tending to establish the commission of another offence of which the offender has not been convicted can in certain cases be admitted to enable the court to determine a just and appropriate sentence" (at para. 5). She went on to state: a) "...[T]he objectives of sentencing cannot be fully achieved unless the information needed to assess the circumstances, character and reputation of the accused is before the court. The court must therefore consider facts extrinsic to the offence, and the proof of those facts often requires the admission of additional evidence" (at para. 22). b) Evidence of prior convictions can be admitted at sentencing. However, the evidence cannot be used to punish the offender again. However, the individualized process of sentencing allows the court to impose a more severe sentence on a repeat offender (at para. 24); c) If the requirements of s. 725 are met, that section provides for circumstances where other offences may be considered (at para. 26). I will come back to s 725(1)(c) shortly. d) Even if the requirements of s. 725 are not met, the court may consider evidence of other offences but for a limited purpose only, as follows (at para. 27): Third, if none of the paragraphs of s. 725(1) are applicable, the evidence in the instant case may be the type of extrinsic evidence that was in issue in Edwards. As Rosenberg J.A. recognized, there may be situations in which evidence that relates to one of the sentencing objectives or principles set out in the Criminal Code shows that the offender has committed another offence but never been charged with or convicted of it. Such facts may nevertheless be relevant and must not automatically be excluded in every case. As is often the case, the admissibility of the evidence will depend on the purpose for which its admission is sought. For example, let us assume that -- as happens too often, unfortunately -- a man is convicted of assaulting his spouse. The fact that he abused his spouse in committing the offence is an aggravating circumstance under s. 718.2(a)(ii). Section 718 requires the court to determine the appropriate sentence that will, among other things, denounce unlawful conduct, deter the offender from re-offending, separate the offender from society where necessary, and promote a sense of responsibility in the offender and acknowledgment of the harm he or she has done. It is therefore important for the court to obtain all relevant information. This is why several provisions of the Criminal Code authorize the admission of evidence at the sentencing hearing. [Emphasis in original.] [57] I will now touch on some of the mitigating and aggravating factors to be considered here. Analysis Mitigating and Aggravating Factors [58] There are very few mitigating circumstances in this case. The offender did not plead guilty and has not expressed any remorse (the latter of which is related to his protestations of innocence, a position which he is entitled to take). He has no belief that he needs to do anything to improve himself so as to avoid similar criminal conduct in the future. While he states that he feels "bad" for the injuries suffered by the complainant, I do not believe this statement as it is inconsistent with his lack of remorse and he has not indicated he has any real concerns about the complainant's well-being. [59] The absence of these factors which might mitigate in favour of a reduced sentence, does not, of course, justify an increased sentence. [60] It does weigh in Mr. Vukaj's favour that he has some letters of support. Two couples have written letters stating that he has been helpful to them on their immigration to Canada from Albania. There are also letters from prior co-workers and employers speaking to the fact that he is a hard-working and reliable employee. A couple of these are dated in December 2009 and appear to have been prepared in relation to his sentencing in Provincial Court. [61] Also, in his favour but only modestly, one can consider the fact that he has not refused to take programs in the correctional system. I say this is a modest consideration because he has not endorsed the idea that he needs to take the programs either. The programs he has taken are: Violence Prevention Program; ESS Employability Skills, ESS Communication Module, and ESS Housing Module; Substance Abuse Management Program Sessions; Basics Painting certificate, Remedial Painting & Restoration Company; ESS Nutrition and Health; and ESS Healthy Relationships Unit 1. [62] It also can be considered that Mr. Vukaj has the support of his family and so will not be without any assistance in reintegrating into the community. [63] In relation to the driving offences, it can be considered to be a mitigating factor that the offender does not have prior driving offences, although it could also be described as the lack of an aggravating factor. The circumstances do suggest that Mr. Vukaj is not at high risk for re-offending on the driving offences. [64] There are a number of aggravating factors in relation to the offences which I have taken into account. [65] The fact that the victim of Counts 1, 3 and 7 was the wife of the offender is an aggravating circumstance which, as noted, Parliament has specifically emphasized in the Code. This emphasis is intended to send a strong message to would be offenders that spousal abuse is criminal behaviour which our society expressly denounces and our legal system will punish. [66] I also consider as an aggravating factor, to be taken into account in sentencing, the particular vulnerability of the complainant. Mr. Vukaj stood in a special position of trust with her: after an arranged marriage when she was still very young, he brought her to Canada from another culture and with a first language that was not English, without independent means of support, without community supports, and she became the mother of and primarily responsible for raising their three children. She was still young and dependent at the time of the attack. He seriously abused this special position of trust. Abuse of a position of trust is a factor that the court must take into account pursuant to s. 718.2(a)(iii) of the Code. [67] The Alberta Court of Appeal in R. v. Brown (1992), 73 C.C.C. (3d) 242 (Alta. C.A.) ["Brown (Alta. CA)"] held at 249-250: When a man assaults his wife or other female partner, his violence toward her can be accurately characterized as a breach of the position of trust which he occupies. It is an aggravating factor. Men who assault their wives are abusing the power and control which they so often have over the women with whom they live. The vulnerability of many such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape. Such women's financial state is frequently one of economic dependence upon the man. Their emotional or psychological state militates against their leaving the relationship because the abuse they suffer causes them to lose their self-esteem and to develop a sense of powerlessness and inability to control events. [68] The comments in Brown (Alta. CA) apply even more so here, given the complainant's exceptionally vulnerable position as a young immigrant without community or family supports and as mother of young children at the time of the offences. [69] It is relevant, as well, to consider the uncontradicted evidence that Mr. Vukaj was a serial spousal abuser, who had been charged with and pleaded guilty to prior acts of abuse and threats to kill his wife, the complainant E.C., for which he had received a conditional discharge. As I have already alluded, Mr. Vukaj has been through the criminal justice system with respect to these prior charges, and he cannot now be punished for them, as is made clear by a number of cases including the Supreme Court of Canada in Angelillo at para. 24. However, as I have noted, in Angelillo at para. 17, the Supreme Court of Canada approved the distinction made by Rosenberg J.A. of the the Ontario Court of Appeal in R. v. Edwards (2001), 155 C.C.C. (3d) 473 at paras. 62-63 (Ont. C.A.) [Edwards], namely, that while such evidence is not admissible to punish the offender again, it may be admissible as evidence of the offender's character, a relevant consideration in sentencing. [70] I also note that I consider the fact that Mr. Vukaj had previously assaulted and threatened his wife to have been proven beyond a reasonable doubt. The evidence of the complainant E.C. in this regard was largely uncontradicted at trial. She was credible and I accept her evidence and no other evidence has raised a reasonable doubt about it. I have taken this prior history into account when considering Mr. Vukaj's character and attitude, the danger he may present, and the likelihood of his re-offending. [71] Other aggravating facts are that Mr. Vukaj used a weapon in his attack, and that the attack occurred in E.C.'s home, where three children were present. [72] The Crown also urges the court to infer that the attack was premeditated. The Crown says that this inference is available based on the facts of the prior threat to kill E.C. and from the fact that Mr. Vukaj had to go to some effort to find where E.C. lived. However, the defence argues that premeditation for the attempted murder is not made out. The defence argues that the threat to kill was made at an earlier time; and that there is no evidence as to what was in the offender's mind when he first went to E.C.'s home on the morning of the attack. I agree with the defence's argument in this regard. [73] In relation to the driving offences, Mr. Vukaj drove wildly and without regard to others on the road, all so as to flee detection from the serious crimes he had just committed. It has to be taken into account that Mr. Vukaj's dangerous driving was not of the kind that merely created a danger which did not come to fruition. The danger actually materialized. The fact that Mr. Vukaj caused a serious accident with another car and its two occupants, and then left the scene without care as to their condition which could have been quite urgent given the severity of the crash, did not bother to use his cell phone to call for assistance for the crash victims, and that he then continued driving down the road and drove across oncoming lanes, all has to be considered. [74] Furthermore, I take into account that Mr. Vukaj breached terms of his probation order by contacting E.C. and going to her residence and by drinking alcohol. Facts of Other Offences Coinciding With These Convictions [75] The Crown relies on s. 725(1)(c) of the Code which gives the sentencing court discretion to take into account conduct that is part of the circumstances of the offences before the court, where that conduct could form the basis of a separate charge. [76] Section 725(1)(c) provides: 725. (1) In determining the sentence, a court ... (c) may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge. [77] The court is mandated to write on the indictment the facts of these other offences, so that the accused is protected from further prosecution on them, pursuant to s. 725(2)(b) which provides: (2) The court shall, on the information or indictment, note ... (b) any facts considered in determining the sentence under paragraph (1)(c), and no further proceedings may be taken with respect to any offence described in those charges or disclosed by those facts unless the conviction for the offence of which the offender has been found guilty is set aside or quashed on appeal. [78] The Crown relies on the analysis of Rosenberg J.A. in Edwards at para. 35: Section 725(1)(c) ... recognizes the common-sense proposition that conduct does not always fit neatly into the offences as described in the Criminal Code. It encourages the prosecution to lay only those charges that most nearly describe the conduct. The offender is protected from double jeopardy because no further proceedings may be taken with respect to any offence disclosed by those facts unless the conviction for the predicate offence is set aside. Unlike the para. (1)(b.1) procedure, the offender's consent or admission of liability is not required to invoke this procedure. However, the occasions on which this procedure may be invoked are carefully circumscribed by the requirement that the facts form part of the circumstances of the predicate offence. To take a simple example, in sentencing an offender for dangerous driving causing death, the court may take into account as an aggravating factor that at the time of the offence the offender's blood-alcohol level exceeded .08. [79] Under s. 724 of the Code, where there is a dispute about any aggravating fact that is relevant to the determination of a sentence, the prosecutor must establish the fact by proof beyond a reasonable doubt. The Crown submits that they rely on facts found in the Trial Reasons, as having been already proven beyond a reasonable doubt. [80] The application of s. 725(1)(c) is discretionary, and not only requires that the facts of the uncharged offence be part of the circumstances of the offences for which the offender was charged and convicted, it also requires that consideration of the uncharged offences not be unfair to the accused or the Crown. [81] The Supreme Court of Canada in R. v. Larche, 2006 SCC 56 [Larche] described the degree of connection in this way: a) "Parliament has made plain the need to establish a nexus or "connexity" between the uncharged criminal conduct and the offence for which the offender has been convicted" (at para. 48). There are two ways this aspect of connection may be established: i. " first[,] would be connexity either in time or place, or both. This flows from the ideal animating s. 725(1)(c): In principle, a single transaction should be subject to a single determination of guilt and a single sentence that takes into account all of the circumstances" (at para. 51); ii. second, "... in addition to encompassing the facts of a single transaction, s. 725(1)(c) also applies ... to the broader category of related facts that inform the court about the "circumstances" of the offence more generally.... [And,] [r]ecourse to s. 725(1)(c) may nevertheless be had where the facts in question bear so close a connection to the offence charged that they form part of the circumstances surrounding its commission. In determining whether they satisfy this requirement of connexity, the court should give appropriate weight to their proximity in time and to their probative worth as evidence of [a] system or of an unbroken pattern of criminal conduct"(at paras. 54-55). [82] The Supreme Court of Canada in Larche also made it clear that, in exercising its discretion under s. 725(1)(c), the court must not be unfair to the Crown or the accused. Since that case focused more on an argument by the Crown that it would be unfair to it to consider other charges in sentencing, there was not a great deal said about unfairness to the accused. Nevertheless, the Court was very mindful that application of s. 725(1)(c) must not be unfair to the accused, as indicated by the following comments: a) "... judges can be relied on, in the exercise of their discretion under s. 725(1)(c), to decline to consider uncharged offences if this would result in unfairness to the accused" (at para. 46); and, b) "[c]are must also be taken, in applying s. 725 over the accused's objection, to ensure that the sentencing hearing is not transformed into a 'trial within a trial'. This is relevant to a court's exercise of discretion, once the threshold requirements of s. 725(1)(c) have been met, especially given the need for the accused to anticipate the extent of their jeopardy and the right to jury trial for certain offences. But the need to avoid a series of 'spin-off' trials at the sentencing stage is, at best, of marginal value in determining whether an uncharged offence forms part of the circumstances of the offence for which the accused must be sentenced" (at para. 49). [83] The Crown argues that the court should exercise its discretion under s. 725(1)(c) and (2) and find that Mr. Vukaj did commit other offences which formed part of the circumstances as follows: (1) criminal harassment of E.C. pursuant to s. 264 of the Code on February 25, 2010 at the JCC. (2) criminal harassment of E.C. pursuant to s. 264 of the Code on April 19, 2010 when he watched and beset her home prior to attempting to murder her. (3) dangerous operation of a motor vehicle causing bodily harm to Garry Lee pursuant to s. 249(3) of the Code on April 19, 2010. (4) impaired driving causing bodily harm pursuant to s. 255(2) of the Code on April 19, 2010. [84] As a first point, I observe that some of these additional offences involve double the maximum punishment which Mr. Vukaj would be subject to under the offences for which he was charged. Even if I do consider these additional offences, it seems obvious to me that I am not to impose a sentence greater than the maximum applicable for the actual offences for which he was charged and convicted. Rather, at most I may only consider the additional facts of these other offences as aggravating factors in determining the appropriate sentence on the charges for which he was actually convicted. [85] For example, under Count 5, Mr. Vukaj was charged and convicted of dangerous driving contrary to s. 249(1)(a), which carries with it a maximum penalty of five years. The Crown now argues that the court should take into account that his conduct also caused bodily harm, contrary to s. 249(3). The latter offence carries with it a maximum penalty of 14 years imprisonment. This clearly indicating that Parliament considers the fact of causing injury to be an aggravating factor. [86] As another example, the Crown suggests that the threat on February 25, 2010, also amounts to criminal harassment, contrary to s. 264 of the Code. The offence of criminal harassment contrary to s. 264 of the Code, carries a maximum punishment of 10 years. This illustrates that Parliament considers criminal harassment a more serious offence than the offence of threatening to cause death or bodily harm contrary to s. 264.1(1) of the Code for which the maximum punishment is five years. The additional elements of criminal harassment, which go beyond a mere threat, may therefore be considered aggravating circumstances. [87] As a second point, it must be emphasized that the burden of proof for an element of an offence is that the Crown must prove that element beyond a reasonable doubt. It is not enough for the Crown to simply point to findings of fact in the Trial Reasons where those findings were not directed to an element of an offence. Findings of fact may have been made in a different context. A perfect example in this regard is the evidence at trial of intoxication. [88] Dealing with the fourth related offence raised by the Crown, impaired driving, in the Trial Reasons I had to consider whether or not the evidence of intoxication raised a reasonable doubt as to Mr. Vukaj having the specific intent to kill his wife. The element of the offence of attempted murder that the Crown had to prove beyond a reasonable doubt was the specific intent to kill. It did not have to prove beyond a reasonable doubt that Mr. Vukaj was or was not intoxicated. In my Trial Reasons I accepted in the analysis of this issue that the evidence raised a real possibility that Mr. Vukaj may have been "heavily intoxicated" as described by Cst. Dy (Trial Reasons at paras. 355, 359). I had to consider this in considering whether or not the Crown had proven specific intent to kill beyond a reasonable doubt. This is a very different perspective, however, than determining whether or not I am satisfied beyond a reasonable doubt that Mr. Vukaj was so intoxicated as to be an impaired driver. [89] Had the offence of impaired driving been one of the offences for which Mr. Vukaj was charged, the defence argues that the defence's approach at trial may have differed. The defence at trial highlighted some evidence of intoxication from the officers on the scene of Mr. Vukaj's arrest, without going so far as to attempt to prove or disprove intoxication through Mr. Vukaj. The Crown did not seek to prove intoxication at trial. This point is made to highlight the unfairness to Mr. Vukaj if the court was to accede to the Crown suggestion that he should be considered as an impaired driver. [90] Mr. Vukaj's own evidence at trial and in his statements to the authors of the PSR and Psychological Report denied that he was impaired. I am alive to the possibility that his appearance of intoxication after arrest as noted by Cst. Dy (and some others) may have been due to other factors. No blood sample or breathalyser tests were introduced at trial. The smell of alcohol may have been due to the one drink he admitted to having. The bloodshot eyes may have been from crying or due to another reason. The slurred speech may have been a misinterpretation, as he does not speak English fluently. This speech pattern and his unsteadiness could relate to the broader circumstances: he had just committed the violent attack, been in a car accident, and run through a field and may have been out of breath and reacting to very high adrenaline given what had happened and his panic in realizing that he had been caught. When all of the evidence is considered, I have a reasonable doubt that he was intoxicated on April 19, 2010, so as to impair his judgment or his driving. [91] For these reasons, I do not consider it proven beyond a reasonable doubt that Mr. Vukaj was an impaired driver at the time of the driving offences. [92] As for the other driving offence that the Crown argues should be considered, dangerous driving causing bodily harm, at trial the victim of the accident caused by Mr. Vukaj's dangerous driving, Mr. Lee, testified in direct in a very summary way as to having suffered soreness to his back and neck, for which he had to attend physiotherapy and chiropractic treatment. Mr. Lee was not cross-examined on this aspect of his evidence by the defence. At the time it may not have been seen as relevant. [93] I consider it unfair to conclude that it is proven beyond a reasonable doubt that Mr. Lee was injured as a result of Mr. Vukaj's dangerous driving within the meaning of the offence of dangerous driving causing bodily harm. Had the defence known that the Crown was going to ask for this more serious offence to be taken into account during sentencing, the defence may have approached the evidence of Mr. Lee differently. [94] I turn now to the Crown's argument regarding criminal harassment. [95] The Crown asks the court to conclude that because Mr. Vukaj found the complainant's house, he was "besetting" or "watching" it, and that this amounts to criminal harassment. [96] There was not sufficient evidence at trial for me to conclude beyond a reasonable doubt that Mr. Vukaj was "besetting" or "watching" the dwelling house contrary to s. 264(2)(c). I have already mentioned that I consider it to be an aggravating factor that the offender breached conditions of probation in going to the complainant's residence and contacting her. [97] As for the threat on February 25, 2010, the Crown also says that the offence of criminal harassment contrary to s. 264 of the Code has also been made out. It has been held that a single threat can constitute criminal harassment, as in R. v. Baker, [2000] B.C.J. No. 2497 (S.C.) and R. v. Kosikar (1999), 138 C.C.C. (3d) 217 (Ont. C.A.). I do recognize that the threat at the JCC caused E.C. to fear for her safety. However, to be criminal harassment the act must be such as to cause fear and worry in the victim of an ongoing or chronic or bedevilling nature. Again, I am concerned that had this more serious charge been known to the defence at the time that the complainant gave her evidence, the defence may have approached the evidence regarding the JCC differently, and so it would be unfair to consider this more serious charge now. I am therefore am not able to conclude that the threat at the JCC constituted criminal harassment. Similar Sentences for Similar Crimes [98] The Crown and defence have provided several authorities to assist the court in determining a sentence that reflects the sentencing principals required by the Code and case law. Count 1: Attempted Murder [99] Starting with the attempted murder offence, it is clear that in the circumstances here the sentencing goal of rehabilitation is secondary to the other goals of specific and general deterrence, denunciation, retribution and protection of the community in general and protection of E.C. specifically. [100] The couple had been separated for a year, Mr. Vukaj had previously been arrested for assaults and threats on his ex-wife, he had been through the courts and claimed remorse and was under court-ordered restrictions, his ex-wife was attempting to keep her location hidden, and still Mr. Vukaj was determined to find her and when he did so, he tried to kill her on April 19, 2010. The attack was extremely brutal, as Mr. Vukaj tried to bash her head in with a metal bar, and E.C. was lucky to have survived it. [101] A strong message of denunciation of Mr. Vukaj's conduct needs to be made in this case. This is also important for general deterrence, as the message needs to be clear: the criminal justice system in Canada takes very seriously the abuse of women and no husband has license to harm his wife. [102] While the prospects of Mr. Vukaj's rehabilitation seem slim given his attitude, the possibility of rehabilitation, in time, still must be considered. [103] The Crown says that a sentence of life imprisonment is warranted in the circumstances here. [104] The Crown points to a number of cases where life sentences were imposed, which I will briefly review: a) In R. v. Nippard (1993), 83 C.C.C. (3d) 410 (Nfld. C.A.), there was a more sustained and violent attack (33 stab wounds), as well as another victim who was stabbed and a third victim who was threatened with death; and a prior Criminal Record including threats of death, pointing a firearm and non-compliance. The Court of Appeal recognized that the maximum sentence of life "would only be called for in rare circumstances". However, a mitigating factor in that case, not present here, was that the offender pleaded guilty. b) In R. v. Lieug (Y.K) (1995), 82 O.A.C. 317, the trial judge described the facts of the attack as constituting "stark horror". The attack was more violent and sustained than in the present case, and involved use of a hammer, knife, and a bottle containing sulphuric acid which the offender poured on the victim. The physical injuries to the victim in that case were more long-lasting: the victim's life had changed so that she was now incapacitated. Another person was threatened with a knife when he had tried to intervene. These are all factors that would be aggravating. Also, in that case the offender had a prior conviction of watching and besetting the victim, and at the time of the attack, was under the terms of a probation order that he not make any contact with her. Like the present case, the offender had committed a prior serious assault on the victim, had no remorse, and seemed to think he was the victim. c) In R. v. Mesgun (1997), 121 C.C.C. (3d) 439 (Ont. C.A.), a life sentence was imposed. Again the circumstances of the attack were exceedingly gruesome, and more violent and sustained than in the present case. The victim's physical injuries were also more lasting than in the present case: she was left permanently disfigured. [105] Some of the older cases have attempted to summarize the circumstances when the maximum sentence of life has appropriately been imposed as involving either circumstances of the offence that are particularly brutal and cruel, often described as involving "stark horror", or circumstances of the offender that indicated extreme dangerousness, with a history of past violent offences and a likelihood of continued dangerous offending, as addressed in R. v. Brown, 2001 NFCA 8 at para. 29 [Brown (Nfld CA)]. [106] The Crown correctly submits that more recently the Supreme Court of Canada has clarified the approach to the imposition of the maximum sentence. The maximum sentence is not reserved for the worst offender and worst circumstances, as noted by the Supreme Court of Canada in R. v. L.M., 2008 SCC 31 at paras. 18‑23 [L.M.]. The Supreme Court of Canada held in R. v. Cheddesingh, 2004 SCC 16, that the inquiry into whether the maximum sentence should be imposed must proceed on a case by case basis. The Court stated at para. 1: ... terms such as "stark horror", "worst offence" and "worst offender" add nothing to the analysis and should be avoided. All relevant factors under the Criminal Code, R.S.C. 1985, c. C-46, must be considered. A maximum penalty of any kind will by its very nature be imposed only rarely (see A. Manson, The Law of Sentencing (2001), at p. 106) and is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness. [107] The Supreme Court of Canada has also made it clear that maximum sentences are not reserved for the merely theoretical and judges in imposing sentences are not to do so by comparison with hypothetical scenarios of worse circumstances: R. v. L.M. at paras. 20, 22. However, maximum sentences are by their nature rare because of the principle of proportionality. [108] It remains the law that a sentencing judge must consider the facts of other cases involving sentencing for the same offence. I do not find the cases relied on by the Crown where life sentences were imposed as sufficiently close to the conduct and all of the circumstances here. However, I agree with the Crown that there are elements of the offence and offender here that are similar to those cases where a very lengthy sentence was imposed, including the brutal nature of the attack and the injuries caused to the victim, and the fact that the offender had a pattern of violent conduct towards the victim and likely remains very dangerous to her. The Crown in particular emphasizes the future dangerousness of Mr. Vukaj, a factor which I agree distinguishes this case from some of the cases where lesser sentences were imposed. [109] The defence relies on R. v. Cuthbert, 2007 BCCA 585 [Cuthbert], in which Chief Justice Finch of our Court of Appeal noted at para. 54 that a sentence of seven to 12 years would not have been unfit in a case of an offender's attempted murder of his former spouse. In that case the sentencing judge considered that the fit sentence was 12 years, less time served, and the Court of Appeal upheld the sentence as fit. A circumstance of that case that might be considered more aggravating than the present includes the fact that the offender also fired a gun into another person, the ex-spouse's new partner. However, less aggravating than the present case was the fact that the ex-spouse was not in fact injured by the attempted murder. Also in Cuthbert, the offender was said to have not had any criminal history and to have led a positive life until the offences in question. The facts that Mr. Vukaj has a history of violence against his ex-spouse, approached her in direct violation of his probation terms, and a psychologist considers him at high risk to re-offend, are all factors more aggravating than in Cuthbert. [110] The Crown points out that in R. v. Bryan, 2008 NSCA 119 [Bryan], the Nova Scotia Court of Appeal distinguished Cuthbert, noting that in that case the attempted murder victim was not herself injured, and further, that the Court in Cuthbert was not establishing a range for all attempted murder cases, but simply finding that a sentence in that range would not have been unfit on the facts before it. In Bryan, the Nova Scotia Court of Appeal upheld as fit a sentence of 15 years for attempted murder. The circumstances of the attack in that case had more severe physical consequences than the present case, in that the pregnant victim in Bryan was repeatedly stabbed in the abdomen, causing the loss of her unborn child, and the victim was also left with severe long term injuries. However, there were mitigating circumstances there in that there was no prior criminal record and an early guilty plea. [111] In Bryan the Court aptly commented at para. 59: Persons who live together in a domestic context deserve the community's protection from violence and abuse in their homes. Similarly, individuals who leave such romantic relationships should be free to get on with their lives without fear of violence, abuse or subjection at the hands of jealous ex-lovers. The law must do its best to provide such protection. Accordingly, sentences imposed in cases involving domestic violence must reflect the seriousness of the offence, the community's unequivocal denunciation of such conduct, and lead to a sufficiently lengthy period of imprisonment as will provide a specific deterrent to the offender and a general deterrent to other persons who may be similarly disposed. [112] The defence also refers to the following cases of attempted murder by a spouse, of which I note the following facts: a) In R. v. L.S.U., [1999] B.C.J. No. 2618 (S.C.), the victim, a recently immigrated bride in an arranged marriage, was considered extremely vulnerable, as here. The effective sentence for the attempted murder was just over 10 years (before taking into account time served). However, the offender's actions were described at para. 47 as an "isolated incident, seemingly out of character" and there was no evidence regarding the accused's likelihood to re-offend, contrary to the more aggravating factors here. b) In R. v. Shannon, [1991] B.C.J. No. 2905 (C.A.), the attempted murderer was remorseful at the time of trial. The facts of the appeal decision seem to indicate that there had been a 10 year separation with no prior history of spousal violence. The Court of Appeal found the seven year sentence to be fit. Distinguishing facts here are Mr. Vukaj's prior history of violence, his lack of remorse, and the high risk that he will re-offend, and the vulnerability of the complainant. c) In R. v. McLeod, 2002 BCCA 334, the offender was sentenced to an effective sentence of 10 years (accounting for pre-trial custody) for attempted murder and break and enter a dwelling house. The circumstances included a brutal attack and the fact it traumatized the resident of the home who witnessed it, an elderly woman. The Court took into account as a mitigating factor the fact that the accused was only 20 years old at the time of these first offences. The Court of Appeal found that the sentence imposed was fit. Distinguishing facts here again are the fact that Mr. Vukaj has a prior history of violence and is at high risk to re-offend. d) In R. v. Fitzmaurice, 2001 BCCA 655, the offender pleaded guilty to attempted murder of his female roommate. The Court noted that a range of seven to 10 years was in keeping with the cases and found that the trial judge's effective sentence of eight and one-half years, or five years after time served, was fit. Not only do the mitigating facts of a guilty plea and the offender's remorse distinguish that case from the present, it also was not a domestic abuse situation. The facts suggest it was an out of character action spurred on by the offender's alcoholism, as opposed to part of a pattern of abuse and threats. However, like here, there was psychological evidence indicating a risk of re-offending. e) In R. v. Jiany-Yaghooby, [1998] B.C.J. No. 2389(C.A.), the offender was found guilty of the attempted murder of his wife, in what the trial judge found must have been intended to be a murder-suicide. The offender deliberately set a fire which seriously harmed his daughter, causing her severe brain damage and likely to leave her in a persistent vegetative state. He had an absence of remorse. However the offender also suffered severe burn injuries as a result of his actions. His sentence of 10 years for the attempted murder and concurrent sentences for his other offences was found not to be unfit. A distinguishing factor is that in that case the accused was 65 years of age and there was no suggestion that he would be at high risk to re-offend. Here, the offender's younger age and attitude make him a higher risk to re-offend. Also, there was no reference in the appellate reasons to a prior history of spousal assaults and threats, unlike the history that exists here. [113] The Crown also refers to the decision of Brown (Nfld CA) in which the Newfoundland Court of Appeal reduced a life sentence to 14 years, taking into account five months spent on remand. As well, the Crown has referred to the case of Roy c. R., 2010 QCCA 16 [Roy], in which the Quebec Court of Appeal reduced the sentence of life imprisonment to an effective 15 year sentence for the offender's attempted murder of his spouse. The circumstances of the attacks in Brown and in Roy could perhaps be described as more brutal than in the present case. But in Roy, the Court took into account several mitigating factors not present here, namely, the fact that the offender pleaded guilty, was sincerely remorseful, took responsibility for his actions, had begun psychological counseling and was at low risk to re-offend. And in Brown, the Court noted that there was no evidence of a prior history of violent conduct or of future dangerousness, contrary to the evidence here. [114] The Crown also referred to the case of R. v. Tasew, 2011 ABCA 241, where the Alberta Court of Appeal reduced a life sentence to a global sentence of 18 years (15 years for attempted murder, time served for breach of conditions, one year consecutive for assault, time served for breach of conditions, and two years consecutive for attempt to obstruct justice) less two years time served. In that case the offender attacked his pregnant common law spouse. The trial judge was found to have erred in concluding that while a life sentence was appropriate, if it was not, a lesser alternative sentence would have been a fit sentence. The Court of Appeal noted that the life sentence may well have been fit, but in accord with principles of restraint the sentencing judge should have imposed the least onerous sentence. [115] Considering the brutal nature of the attack and the dangerousness of the offender, and all of the mitigating and aggravating circumstances, and comparing and contrasting these facts to other cases where sentences were imposed on other offenders in like but not identical circumstances, and considering the broad goals of sentencing including the prospect of rehabilitation, I conclude that an appropriate sentence for the attempted murder by Mr. Vukaj is a sentence of 14 years. This does not take into account time served pending trial which I will address shortly. Count 3: Break and Enter and Aggravated Assault [116] There is a wide disparity in sentencing for break and enter and aggravated assault given the wide spectrum of facts where these offences have occurred. [117] The use of violence against the occupant of a dwelling house in a conviction for a break and enter is deemed to be an aggravating factor under section 348.1 of the Code. This recognizes the sanctity of the home and the violation of the community's sense of security when a person's residence is broken into and a person is attacked in her own home, as commented upon in R. v. MacDonald, 2012 BCCA 155 at para. 49 [MacDonald]. [118] The Crown submits that in cases where the offender commits a residential break and enter of a spouse or former spouse's home, and seriously assaults the victim, a sentence in the range of five to seven years is appropriate. The defence submits that the cases show a range of four to nine years. [119] The following cases were submitted by the parties for guidance: a) R. v. Bernier, 2003 BCCA 134, involved a home invasion for purposes of stealing marijuana, where the occupant was struck with a gun but did not receive permanent injuries. The offender was not the principal offender and was 21 years old with a neglected childhood. On appeal, the Court also learned that he was an aboriginal offender. His sentence of 14 years was reduced to six years on appeal. b) MacDonald involved an offender who broke into the home of his ex-spouse and her partner and attacked them both with a baseball bat. He pleaded guilty to 12 counts including threats, aggravated assault, break and enter and breach of court order. The offender had engaged in a series of escalating conduct against his ex-spouse over a two month period, including prior assaults and the Court of Appeal found that the trial judge's sentence of five and one-half years for the aggravated assault and break and enter was fit (less 10 months for time served). The Court of Appeal noted that while it was a factor to consider the injuries caused by the conduct, more relevant were the circumstances of the assault itself, including any planning or weapon. c) In Evans, the accused pleaded guilty to a count of breaking and entering and committing aggravated assault on his ex-girlfriend in her apartment. The assault with a knife took place in front of a child. The offender had previously been convicted of assaulting the same victim and was serving a sentence for threats of violence at the time. The sentence of five years was considered fit. d) In R. v. Schwarz (P.V.) (2000), 137 O.A.C. 5, the Ontario Court of Appeal increased the sentence from 12 months and nine months pre-trial credit to three and one-half years plus nine months credit for time served - an effective sentence of four years and three months for break and enter and aggravated assault. The offender had broken into the home of his estranged spouse and children and assaulted his spouse with a knife. He was a first time offender. [120] Considering the mitigating and aggravating factors I have already reviewed, I consider that a sentence of five years is appropriate for the break and enter and aggravated assault. Count 5: Dangerous Operation of Motor Vehicle [121] As I have noted, the Crown seeks a sentence in relation to the dangerous operation of the motor vehicle in the range of 18-24 months plus a one to two year driving prohibition. The defence seems to agree that an appropriate sentence is in this range. [122] The case of R. v. McCrea, 2008 BCCA 227, has somewhat similar facts in that it involved an offender who drove dangerously to evade police after committing a robbery, and caused a car crash. The offender had a lengthy criminal record and was on probation at the time. For the dangerous driving offence he was sentenced to two years. [123] I have already referred to the mitigating and aggravating circumstances in relation to the driving offences. I consider an appropriate sentence for this offence to be 18 months. [124] As well, the court has discretion to impose a driving prohibition for up to three years plus any other sentence imposed pursuant to s. 259(2)(c) of the Code. I consider a two year driving prohibition to be appropriate here on top of the period for this dangerous driving sentence, consistent with the goals of denunciation and general deterrence. Count 6: Failure to Stop at the Scene of an Accident [125] The circumstances regarding the failure to stop at the scene of the accident are egregious as the victims of the accident were left in a badly damaged car and there was a good chance that they could have needed urgent medical attention, yet in order to evade police, Mr. Vukaj did not try to assist them or even use his cell phone to call 911. [126] In R. v. Gill, 2010 BCCA 388 [Gill], the Court of Appeal reviewed a number of decisions in relation to dangerous driving causing bodily harm and failing to stop and offer assistance. In that case the offender was sentenced to 12 months plus 18 months consecutively for the two offences, plus a two year driving prohibition for the dangerous driving. The offender had no prior criminal record but had shown extreme selfishness at the scene of the accident where he saw the accident victims badly injured and bleeding but did nothing to get assistance for them. [127] After reviewing a number of authorities, the Court of Appeal in Gill suggested that most cases for leaving the scene of an accident show a range of sentences of from three to 12 months, with the exception of one case where the sentence was 18 months. The Court concluded that the sentence was not demonstrably unfit. [128] I conclude here that a sentence of 10 months is appropriate in all the circumstances of this case and no additional driving prohibition is necessary. Count 7: Uttering Threats to Cause Death or Bodily Harm [129] Count 7 is the offence of uttering threats to cause death or bodily harm on February 25, 2010. This offence occurred in a public courtroom and in a proceeding dealing with the parties' marriage breakdown and their children and as such the circumstances are especially outrageous and deserving of a high degree of denunciation. [130] Considering all of the circumstances of the offence and the offender, I consider a 12 month sentence to be appropriate. Concurrent, Consecutive and Totality of Sentences [131] The Crown's position is that if a life sentence is imposed for the attempted murder charge, then all other sentences would have to be concurrent with the life sentence. This is a matter of simple logic. Our courts recognize the logic that a man cannot serve a sentence after he dies. In this way, the courts of this Province are different than some American jurisdictions which impose multiple life sentences on a single person, as noted in R. v. Camphaug (1986), 28 C.C.C. (3d) 125 (B.C.C.A.). However, the Crown's position is that if less than a life sentence is imposed for the attempted murder conviction, then the other sentences should be served consecutively. [132] The defence submits that all of the sentences should be concurrent. In the alternative, the defence submits that if Counts 5 and 6 are considered by the court to be a different transaction (the driving offences), then the sentences on those Counts should be concurrent, and that the sentences for Counts 1, 3, and 7 should be concurrent to each other. [133] In the case of R. v. Li, 2009 BCCA 85 [Li], our Court of Appeal summarized the two-stage approach to sentencing an offender convicted of multiple offences at para. 28: The first stage is to determine the appropriate sentence for each offence, and decide whether the individual sentences should be made consecutive or concurrent. If consecutive sentences are imposed, then the second stage is to determine whether the sentences, in the aggregate, offend the totality principle. If the sentence, as a whole, is unduly harsh or disproportionate, then the length of the individual sentences should be adjusted in order to arrive at an appropriate global sentence. [134] As explained in Li at para. 42, in determining whether a sentence should be consecutive or concurrent, the court must consider: "whether the acts constituting the offence were part of a linked series of acts within a single endeavour", citing R. v. G.P.W. (1998), 106 B.C.A.C. 239 at para. 35. If so linked, then the sentences should be concurrent. [135] Here, I have no difficulty in determining that all of the offences were separate, consecutive offences, other than Count 3, the break and enter and aggravated assault, which I find was part of the single endeavour covered by the attempted murder charge, Count 1. [136] Count 7, the threat on February 25, 2010, happened at a different place and time than the attack on April 19, 2010. It was sufficiently in advance of the attack to be a separate event and while it might have been evidence of a continuing motive, it was not a new motive but something that had been expressed before and was not part of a single endeavour with the attempted murder. [137] The driving offences were after the offender completed his attack on the complainant, and involved other victims and potential victims. That Count 5, dangerous driving and Count 6, failing to remain at the scene, are offences consecutive to each other is confirmed by the analysis of the Court of Appeal in Gill. [138] That brings me to the totality of the sentence, and the question of whether or not the combined consecutive sentences would be unduly harsh or disproportionate considering the culpability of the accused. [139] The combined consecutive sentences would be as follows: Count 1: 14 years Count 3: 5 years, concurrent with Count 1 Count 5: 1 year 6 months Count 6: 10 months Count 7: 1 year Total sentence: 17 years 4 months [140] After considering the series of sentences above, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, the court must then consider whether the aggregate sentence is "just and appropriate": C.A.M. at para. 42. [141] I conclude that the totality of these consecutive sentences may be harsh in all the circumstances. I conclude that a just sentence would be to order that the sentences for Counts 5 and 6 to be served concurrently with each other; and to order that Count 7 to be served concurrently with Count 1. The total sentence is thus reduced to 15 years and six months, not yet taking into account time served. Time served [142] Both parties agree that Mr. Vukaj must be given credit for time served up to the date of sentence, of one day credit for each day already served. He has been in custody since April 19, 2010, which I calculate as two years and nine months. [143] I reduce the global sentence by two years and nine months representing the time served. This reduces the sentence from a global sentence of 15 years and six months to a global sentence of 12 years and nine months. Delay of Parole Eligibility [144] The Crown seeks a sentence which includes delayed parole eligibility for Count 1, the attempted murder offence. [145] Section 743.6 of the Code provides that for certain designated offences set out in Schedule I of the Corrections and Conditional Release Act, S.C. 1992, c. 20 [CCRA], which include here the offences of attempted murder, aggravated assault, and uttering threats to cause death, the court may order an accused to serve one half of his sentence or 10 years, whichever is less, before he is released on full parole. The court must be satisfied that the expression of society's denunciation of the offence or the objectives of specific or general deterrence so requires delayed parole eligibility, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender. Section 743.6(2) makes it clear that the paramount principles to guide the court in this determination are denunciation and specific or general deterrence, with rehabilitation of the offender being subordinate to those principles. [146] The leading case in respect of the factors that guide a trial judge in deciding whether to extend the period of parole eligibility is R. v. Zinck, 2003 SCC 6 [Zinck]. That case makes it clear at paras. 29-31, that the trial judge is only to consider this issue after first determining what would be an appropriate length of sentence, considering all relevant sentencing factors and apart from any period of parole eligibility. It is only after the appropriate length of sentence has been determined that the judge may then turn her mind to the second stage of deciding whether to delay eligibility for parole. At this second stage the judge must once again apply all the sentencing factors, but should, in accordance with s. 743.6(2), give priority to the factors of general and specific deterrence and of denunciation. [147] In Zinck, the Court noted that orders delaying the start of parole eligibility are out of the ordinary and that the prosecution has the burden of demonstrating that this additional punishment is required. As noted at para. 31 of Zinck: The judge must satisfy himself or herself that the order is needed to reflect the objectives of sentencing, with awareness of the special weight ascribed by Parliament to the social imperatives of denunciation and deterrence. Nevertheless, at the end of this intellectual process, the sentencing decision must remain alive to the nature and position of delayed parole in criminal law as a special, additional form of punishment. Hence it should not be ordered without necessity, in a routine way. [148] The Crown submits that the facts of this case bear some similarities to the circumstances in R. v. Grewall, 2001 BCSC 45, where a delayed parole order was made. In that case the accused, who had no prior criminal record, was made subject to a delayed parole order after being convicted of first degree murder and conspiracy to commit the murder of his wife. The court found these were acts of unusual violence and brutality and the offender had no remorse, and that it was clear from the evidence that the accused would not be deterred or rehabilitated within the normal period of parole ineligibility. [149] The defence refers to a number of decisions that pre-dated Zinck and which for the most part did not involve facts similar to the present case. One case referred to by the Crown pre-dated Zinck but was similar to this one in that it involved an attempted murder of a former girlfriend, namely R. v. Cormier (D.) (1999), 209 N.B.R. (2d) 289, a decision of the New Brunswick Court of Appeal. There the court upheld a sentence of nine years for the attempted murder, and two years concurrent for the offence of break and enter, and delayed parole eligibility fixed at one-half of the sentence. The delayed parole eligibility was based on the need to denounce and deter attacks in the context of a domestic relationship. [150] Here, weighing again all of the circumstances of the offence and the offender, I find that these circumstances are such that they require extra emphasis on deterrence and denunciation that will not be satisfied simply by the length of the sentence that I have imposed for Count 1, attempted murder, and do require an order of delayed parole eligibility. Specific deterrence beyond the ordinary is needed here, given this offender's lack of remorse and insight, the fact that he has deliberately breached probation orders meant to protect his ex-wife and had sought her out even though she was in hiding, and even after they had been separated for approximately one year when one would have expected emotions to have waned, and even though the couple's three young children were living with her. Given this offender's high risk of spousal violence, I find that this offender will need more than the ordinary time in custody to be able to sufficiently reflect on his actions to gain from the possibility of rehabilitation and be deterred from pursuing a similar course upon release. [151] I therefore order that for the offence of attempted murder, the accused must serve one-half his sentence before he is released on full parole. [152] I have considered the delay in the period of parole eligibility for Count 1 in considering the totality of the sentence, and conclude that it combined with the rest of the sentence is not unduly harsh. Ancillary Orders [153] There are a number of ancillary orders which are sought, some of which are mandatory and some of which are permissive. Having considered the circumstances of the offences and the offender and the goals of sentencing, and the mandatory nature of some of these orders, I consider that the following ancillary orders are appropriate: 1. An order that Mr. Vukaj provide a sample of his DNA on the following basis: a. Section 487.04 of the Code classifies attempted murder and break and enter a dwelling house and committing aggravated assault as primary designated offences; uttering threats, dangerous operation of a motor vehicle, and failure to stop at the scene of an accident are classified as secondary designated offences. b. For the attempt murder offence, a DNA order is mandatory; for the break and enter offence it is presumptive, and for the other offences it is discretionary. Given the circumstances here, I consider such an order appropriate in regards to all the counts. As such, I make an order pursuant to ss. 487.051(1), 487.051(2), and 487.051(3) of the Code that Mr. Vukaj provide a sample of his DNA on all Counts. c. In making this order, I have considered s. 487.051(2) and determined that a DNA order would not have a grossly disproportionate impact on Mr. Vukaj's privacy and security of the person. d. I have further been mindful of s. 487.051(3): I have considered the circumstances of the offender, the nature of the offences, the circumstances surrounding their commission and the impact that such an order would have on Mr. Vukaj's privacy and security of the person. e. On balance, I have decided that such an order is in the best interests of the administration of justice in the circumstances of this case. 2. Based on s. 109(1)(a) of the Code and Counts 1, 3, and 7, I make a weapons prohibition order pursuant to ss. 109(2)(a) and (b) of the Code. Mr. Vukaj is prohibited from possessing any firearms other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, or explosive substance for a period of 10 years, and from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. 3. Pursuant to s. 743.21 of the Code I make an order prohibiting Mr. Vukaj from communicating directly or indirectly with any of the following persons during the custodial portion of his sentence: a. E.C., b. Alyssa Jones, c. Amber Currie, d. the witness who will be identified as A.E. in the published version of these reasons; e. Nicol-Eby-Batiz, f. Luis Batiz, g. Kenan Kilic, h. Carvan Cheng, except through legal counsel as required, and i. Garry Lee, except through legal counsel as required. 4. There will be no victim fine surcharge. [154] I have already mentioned that I consider a driving prohibition of two years plus any other sentence imposed pursuant to s. 259(2)(c) of the Code to be appropriate with respect to count 5, dangerous driving. "S.A. Griffin, J." The Honourable Madam Justice Susan A. Griffin