R. v. Cody

2009 BCCA 123 R. v. Cody

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Cody, 2009 BCCA 123 Date: 20090318 Docket: CA036258 Between: Regina Respondent And Elroy John Cody Appellant Before: The Honourable Mr. Justice Hall The Honourable Mr. Justice Mackenzie The Honourable Mr. Justice Bauman Oral Reasons for Judgment Appellant appearing In Person/In Custody, via Video Conf. W. J. S. Bell Counsel for the Respondent Place and Date: Vancouver, British Columbia 18 March 2009 [1] HALL J.A.: We have before us a sentence appeal from a sentence of 18 months plus two years' probation imposed upon the appellant in June of 2008. The accused served some of his sentence in the Prince George area and is currently incarcerated in Kamloops. He has appeared before us this morning by video conference. [2] The background of the matter is, the accused appellant, who is now aged about 41, was in a relationship with a lady by the name of Denise McSherry. It seems to me that perhaps both she and Mr. Cody had been drinking and there is some difficulty in ascertaining the precise mechanism by which the serious injuries that underlie the present charges occurred to Ms. McSherry. What is known is that the appellant struck her. The number of blows is not able to be ascertained with certitude perhaps because of the factor of alcohol being involved in the matter. [3] The regrettable circumstance in this tragic case is that Ms.

McSherry suffered very serious injuries which have dramatically altered her lifestyle. The sister of the victim, a Ms. Wilshire, has told the judge in a victim impact statement dated December 8, 2006 as follows: I understand that Denise gave a "Victim's Impact" statement; however, I am not custom to the details. I do know that since Denise was severely beaten by Elroy Cody and she is no longer mentally capable of expressing herself clearly, I would like an opportunity to address the Court on her behalf. I am unaware of what Crown Council [counsel] is recommending for the sentencing of Elroy Cody. I understand that for some reason it is not my privilege to have knowledge of this; however, I do know that the beating and assault that Elroy Cody inflicted on Denise was inhumane. Elroy Cody used the cast, which was on his hand and arm, as a weapon to commit this horrible act of violence. It may as well have been a hammer. The beating Denise endured left her with a SEVERE frontal lobe brain injury, bleeding in the brain, as well as fractured orbital sockets around the eyes, which left her almost sightless for several months. This beating was the end of any normalcy in her life. [4] It is apparent from the material that was before the learned sentencing judge, that Ms. McSherry is no longer able to look after herself independently and she requires caregivers to carry on her life. She

has lost her sense of smell and she obviously is no longer able to carry on in any normal sense. That is perhaps the most significant factor in this tragic case, the very serious injuries that have occurred to this victim. [5] In favour of the appellant is the circumstance that he did acknowledge to the police about 14 months after the incident, which occurred in June of 2005 that he was responsible for striking Ms. McSherry with the tragic and unintended consequences that occurred to her. The other thing that I think can be said in favour of Mr. Cody, is that he apparently was able to avoid alcohol for some period of time after his conviction in 2003 for assault causing bodily harm, and was working prior to the time that he spoke to the police in August of 2006 taking responsibility for the assault upon Ms. McSherry. [6] His record is a lengthy one. Although it goes back to 1985, and it includes drinking and driving, theft and assault convictions, he has not received a sentence of this length prior to this time as he pointed out to us in his comments this morning. [7] Mr. Cody says he believed through his lawyer that he was going to get probably 12 months by way of a sentence and the judge in fact imposed a sentence of 18 months. The maximum sentence for this offence is ten years. I note that in the victim impact statement of Ms. Wilshire, she expressed a sentiment that the

maximum penalty should be imposed upon Mr. Cody. Such a sentence would obviously be beyond the usual range, but I can understand the sentiments that would inspire Ms. Wilshire to express the views that she did concerning Mr. Cody. Regrettably, nothing the courts can do can bring back the full health of Ms. McSherry and I am sure that this tragic incident will also weigh on Mr. Cody for all his life, because I do not think for one moment that he ever intended this sad result to have occurred. However, it is one of the regrettable incidents that can happen when people are drinking and lose control. [8] The learned judge gave a lengthy and considered judgment which we have had before us and have read. He took account of Mr. Cody's Aboriginal status. He did give some consideration to the type of sentence he should impose, conditional or otherwise. He referred to the positive and negative factors that were present in the case including Mr. Cody taking responsibility for this regrettable incident. However, when all is said and done, it seems to me that the Court cannot lose sight of the tragic circumstance that the injuries to this victim are catastrophic, and will affect her for the rest of her natural life. [9] Mr. Cody points out to us that this sentence is longer than any he has previously received. One answer to that is this incident is in the very upper category of serious

assaults and it merited a sentence that recognized that circumstance. [10] The Crown has pointed to a number of cases in which sentences in this range have been imposed for assaults causing bodily harm, some are of the same serious dimension as this, but each case has to be decided on its own facts. [11] Having regard to the circumstances of this case, and as I say, I lay special emphasis upon the serious results that flowed from this assault and the fact that the appellant does have a previous record for assault of behaviour in domestic relationships, among others, I think that the learned trial judge has not been shown to have erred in any way in principle or in the sentence that he imposed. I think he was bound to recognize by way of the sentence he imposed that this was a serious incident and that it had to be brought home to the appellant and others that this sort of matter will be dealt with fairly severely by the courts. [12] I acknowledge that the appellant seems to have some prospects for staying out of difficulty in future, including an employment record, and apparently, he has support from a religious group that it is hoped will assist him, to during his term of probation avoid further difficulty and hopefully avoid further difficulty for the rest of his life. This serious sentence that has been imposed upon him I would hope might point out to him that this sort of

conduct is conduct that should be avoided by him in his future life. [13] We have heard Mr. Cody's submissions and the submissions of the Crown, and in my judgment, this is not a sentence that we would be justified in altering. [14] Accordingly, I would grant leave to Mr. Cody to appeal his sentence, but I would otherwise dismiss the appeal from sentence and sustain the judgment of the learned sentencing judge. [15] MACKENZIE J.A.: I agree. [16] BAUMAN J.A.: I agree. [17] HALL J.A.: Thank you Mr. Cody. The sentence appeal is dismissed and we thank you and hope that you will have better luck in your future life and avoid further difficulty. "The Honourable Mr. Justice Hall"