R. v. Nicholls

2013 BCSC 1145 R. v. Nicholls

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Nicholls, 2013 BCSC 1145 Date: 20130625 Docket: 34543-2 Registry: Prince George Regina v. Johnathon Riely Nicholls Before: The Honourable Mr. Justice Savage Oral Reasons for Sentencing Counsel for the Crown: S.K. Keyes Counsel for the Accused: J.M. Duncan Place and Date of Sentencing: Prince George, B.C. June 25, 2013 Table of Contents I. Introduction. 3 II. Circumstances of Offence. 3 III. Circumstances of the Offender. 4 IV. Impact on the victim and the community. 6 V. Legal Parameters. 6 VI. Positions of the Crown and Defence. 6 A. Crown. 6 B. Defence. 8 VII. Mitigating and Aggravating Factors. 9 VIII. Principles of Sentencing.. 9 IX. Reasons. 11 X. Order. 13 I. Introduction [1] On November 12, 2012, following trial I convicted Johnathon Riely Nicholls of two offences arising out of an assault on Brandon Rommann which occurred on April 23, 2011, in Prince George: aggravated assault, contrary to s. 268(2) of the Criminal Code, and assault with a weapon, to wit: a knife, contrary to s. 267(a) of the Criminal Code. My reasons for that conviction are indexed at R. v. Nicholls, 2012 BCSC 1982. [2] The sentencing materials include a Pre-sentence Report by Probation Officer Koopmans dated March 8, 2013, a BC Mental Health & Addiction Services report by Dr. Morgan dated January 18, 2013, submissions and authorities cited by

the Crown and Defence. Mr. Nicholls has made a late admission of guilt. II. Circumstances of Offence [3] The circumstances of the offence are that Mr. Nicholls attended at an acquaintance, Mr. Rommann's apartment on April 23, 2011 in Prince George. Mr. Nicholls and Mr. Rommann smoked marijuana together for some time. They were acquaintances who had a common interest in reptiles. Mr. Rommann regularly supplied Mr. Nicholls with marijuana for purchase. [4] Mr. Nicholls apparently wanted to purchase some marijuana from Mr. Rommann. He had left his wallet at MacDonald's. Mr. Rommann offered to drive him to MacDonald's. Mr. Rommann acknowledged that he may have teased Mr. Nicholls. As they got up Mr. Nicholls attacked Mr. Rommann with a three inch knife. [5] While underneath and struggling with Mr. Nicholls, Mr. Rommann spoke to Mr. Nicholls asking what was going on and what was this for. Mr. Nicholls hesitated, then got up and ceased the attack. Mr. Nicholls became emotionally distressed. Mr. Rommann was injured. He suffered a number of knife wounds. He also had scrape marks on his neck. [6] Mr. Rommann ran to the apartment manager's suite. Mr. Nicholls followed him asking that he not call the police. The evidence does not suggest to me that this was a continuation of the attack. Mr. Rommann said he was not going to say anything and then Mr. Nicholls ran away. [7] The wounds did

not endanger Mr. Rommann's life, although he attended at emergency shortly thereafter. Mr. Rommann had at least two penetrating stab wounds. One, on his bicep, he thought was inflicted accidentally while falling during the struggle. He identified his assailant and Mr. Nicholls was arrested shortly thereafter. [8] Mr. Nicholls denied the assault took place at trial. Following a finding of guilt, Mr. Nicholls admitted to his guilt prior to sentencing. In light of the late admission of guilt, there is little insight the professionals could offer, but on balance the assault appears to have been precipitated because Mr. Rommann made fun of Mr. Nicholls for having lost his wallet. The attack occurred while the acquaintances were smoking marijuana. Mr. Nicholls at that time had been a very long term daily marijuana smoker, something he now eschews. III. Circumstances of the Offender [9] Mr. Nicholls was born October 5, 1989 and was 21 when these offences occurred. Mr. Nicholls is of Aboriginal ancestry. His mother is of Carrier ancestry. She has had a drinking problem since about 1998 and lost her job as a social worker at that time. [10] When Mr. Nicholls was six or seven, his mother relocated with him to Minnesota in the United States. He appears not to have had any meaningful relationship with his natural father from the age of nine. He has a sister but has no meaningful

relationship presently with her. [11] While in the United States, he was bullied for being overweight, Canadian and native, and reports to being assaulted on a regular basis. He took a course in anger management after assaulting another student and being suspended for three weeks. At age 13 he reported trying to hang himself with a chain, but has not had suicidal tendencies since then. [12] Mr. Nicholls returned to British Columbia and attended St. James Secondary School. He graduated from grade 12. During grade 12, he undertook a social work program called "strengthening families". Since high-school graduation, he has had at least two meaningful relationships with women. He co-parented a child with a former partner, although he has not seen this child for the last 18 months. [13] Probation Officer Koopmans reports that growing up with an alcoholic mother, in broken relationships, and moving from place to place and school to school, has hindered a sense of community in Mr. Nicholls. [14] Mr. Nicholls had a variety of short terms jobs during and after his schooling. He taught and sold native crafts as a youth. He worked at various labouring jobs. He presently holds down three jobs at Fort. St. James. He resides in a trailer he owns in Fort. St. James. He is in another relationship and his current partner attended court. [15] Mr. Nicholls is a long-term cannabis user. He

commenced using this drug at age eight. From grade nine onwards, his use of cannabis was on a daily basis. He has experimented with other drugs. He has used alcohol to excess. At the time leading up to these offences, he was using cannabis on a daily basis. [16] The consulting psychiatrist, Dr. Morgan, opines that this appears to have been an extremely impulsive act. Given that Mr. Nicholls reports being taunted badly and bullied as a child, he opined that this contributed in some way to his committing these offences. Factors in the offence are impulsivity, substance abuse and stress, which are matters amenable to treatment. Mr. Nicholls currently lives in Fort St. James where he reports for bail sign-in at the Nak'azdli Alternate Justice Centre (the "NAJC"). He has successfully negotiated the bail conditions now in place since his arrest. The NAJC creates and provides programs that give Aboriginal offenders opportunities to learn and practice skills and methods integral to their traditional lifestyle. These programs are restorative and preventative. Restorative in the sense of creating opportunities for individuals to answer questions about their identity and purpose. Preventative in that healthier, happier, better rooted and grounded people are less likely to offend or reoffend. [17] Mr. Nicholls has been described as pleasant and responsive by the probation officer and

psychiatrist. He has developed a good relationship with his bail supervisor in Ft. St. James. IV. Impact on the victim and the community [18] Mr. Rommann was stabbed and taken by his apartment manager to the emergency ward at the local hospital. His wounds were sutured. He was obviously traumatized, but his hospitalization was short and he has recovered from his injuries. The injuries were not life threatening. He testified at trial to the surprise aspect of the attack, but also how he was able to speak to his assailant who called off the attack. Mr. Rommann has not filed a victim impact statement. V. Legal Parameters [19] Mr. Nicholls has been convicted of aggravated assault, contrary to s. 268(2) of the Criminal Code, and assault with a weapon, to wit: a knife, contrary to s. 267(a) of the Criminal Code. These are extremely serious offences, as witnessed by the maximum penalties prescribed by parliament: aggravated assault is punishable by imprisonment of up to 14 years, and assault with a weapon is punishable by imprisonment of up to 10 years. Recognizing that there can be a very wide range of culpability, however, neither offence has been prescribed a minimum penalty by Parliament. VI. Positions of the Crown and Defence A. Crown [20] The Crown says the range for this offence and offender should be 18 months to two years' incarceration, and that offences of this kind

typically net 18 months to 4 years. The Crown referenced a variety of cases where the penalty imposed varied from a conditional sentence to 4 years imprisonment. As a result of changes to the Criminal Code a conditional sentence is no longer available for this offence. The cases referenced include: (1) R. v. Foster, 2008 BCSC 1369, a recent decision of Justice Ehrcke of this court, where the learned judge imposed a conditional sentence of 2 years less a day on each count, concurrent, with strict conditions; (2) R. v. Gorman, a decision of the Alberta Court of Appeal, where a conditional sentence was overturned and an 18 month sentence imposed, followed by one years' probation, a DNA Order, 20 year weapons prohibition, and victims surcharge; (3) R. v. Anderson, 2008 BCPC 4, a neck stabbing which attracted a 42 month sentence (3.5 years) for a 54 year old offender with a significant past criminal record for violence, who committed the offence while on a probation order; (4) R. v. Sultan, 2007 BCSC 849, where a 52 year old refugee, in a restaurant, repeatedly stabbed the victim on his face, and head, and the attack only stopped after the intervention of a third party who broke a chair over the back of the offender, netting a 1 year jail sentence with two years of probation; (5) R. v. B.G.P. 2006 BCCA 215, where the Court of Appeal replaced an 18 month conditional sentence, plus 3

years' probation, with three years' incarceration for a knife slashing which exposed the organs of the victim, perpetrated by a 29 year old offender seeking to enforce a drug debt, who had 24 young offender convictions and 6 adult convictions, including robbery and assault convictions; (6) R. v. Whitman, 2006 BCSC 865, where the offender received 3 years, for an offender with a lengthy criminal record involving violent and harmful acts, who demonstrated "consistent recidivism"; (7) R. v. Bazinet, 2005 ABCA 388, where the Court of Appeal substituted an 18 month sentence for an 18 month conditional sentence for a knife assault which inflicted a gruesome potentially life threatening injury on an offender described as having "relative youth" and the lack of a record; (8) R. v. Street, [1996] B.C.J. No. 1245, where the 39 year old offender attacked his victim for a second time, this time using a broken beer glass as a weapon, and had a record for violence including uttering death threats, and assault with a weapon on the same victim 8 years before, the Court of Appeal upheld a sentence of 4 years imprisonment; (9) R. v. Ashby, [1988] B.C.J. No. 1995, where a 38 year old offender's 3 year sentence for aggravated assault was upheld, where he had at least 7 prior convictions; (10) R. v. Toby, [1992] B.C.J. No. 1126, where the offender received a two year sentence with a lengthy

probation order. Although young the offender had 6 or 7 previous convictions, some for violence, and the two offences for which she was sentenced involved extreme behaviour. B. Defence [21] The defence argues for a suspended sentence. It says that a lengthy probation order would suffice, recognizing that the offender called off the attack, the offender had been using drugs at the time of the offence, is of native ancestry and has an unblemished record before this offence. [22] The defence does not quarrel with the usual range of sentences suggested by the Crown, but says that the offenders' native ancestry, his upbringing, his youth and his unblemished prior record should be seen as "special circumstances" that warrant a court departing from the normal range of sentences for this type of offence: see, Romilly, J. in R. v. Nakamura, 2012 BCSC 327 at paras. 25-28. [23] I note that Romilly, J., sentenced Nakamura and a co-accused to a suspended sentence on one count of aggravated assault contrary to section 268(2), and one count of assault with intent to steal contrary to section 344(1)(b). VII. Mitigating and Aggravating Factors [24] In this case the parties are not in disagreement on the mitigating and aggravating factors. [25] Factors which mitigate are (1) the offender's youth, (2) the offender's lack of a prior criminal record, (3) the offender's aboriginal ancestry, (4) the

fact that the offender called off the attack of his own volition, (5) the offender has been on bail without incident for more than two years, (6) the offender's successful attempts at gainful employment and rehabilitation. [26] Factors which aggravate are (1) the unprovoked nature of the offences, (2) the offender maintained his innocence until sentencing, (3) the offender was carrying a knife, (4) the assault took place in the victim's home, (5) the potentially serious consequences of the offence. VIII. Principles of Sentencing [27] The fundamental purposes of sentencing are laid out in s. 718 of the Criminal Code. Those purposes are: to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separate the offender from society; to assist in rehabilitating the offender; to provide reparations for harm done to victims or the community; and to promote a sense of responsibility in the offender. [28] In my opinion, denunciation, deterrence, rehabilitation, promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community are all factors in this case. Denunciation, deterrence, and rehabilitation are of particular importance. [29] Denunciation is a factor because this type of violent, deliberate crime, which involved the use of a weapon, requires denunciation and censure. The offender and others

like him must be deterred from future similar acts and must be made aware that there are serious consequences for such crimes. [30] Rehabilitation is also important in this case. The offender is young and has a real chance to turn his life around. It is important that any sentence reflect the need to rehabilitate this offender, both for his own sake and for the sake of society. [31] Other principles are also at play in sentencing. Pursuant to section 718.1 a sentence must also be proportionate to the gravity of the offence and the degree of responsibility of the offender. [32] Pursuant to section 718.2 (b), a sentence should be similar to similar sentences imposed on similar offenders for similar offences committed in similar circumstances. [33] The fundamental purpose of sentencing is 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. [34] In reviewing these factors, I am mindful of the admonition of the Supreme Court of Canada in R. v. C.A.M. (1996), 105 C.C.C. (3d) 327, [1996] 1 S.C.R. 500, at para. 82, that the relative weight and importance of these factors will vary depending on the nature of the crime and the circumstances of the offender. [35] The overarching duty of the sentencing judge is to draw on all legitimate principles of sentencing to determine what

is just and appropriate and reflects the gravity of the offence committed and the moral blameworthiness of the offender. [36] There are authorities that suggest that the more serious the offence is, the less important the Gladue factors are. Recent decisions in the Supreme Court of Canada make it clear that the Gladue factors apply regardless of the seriousness of an offence. See the decision of the SCC in R. v. Ipeelee, 2012 SCC 13. [37] Thus I am bound to apply section 718.2(e), recognizing that while systemic and background factors of aboriginal person do not operate as an excuse or justification for criminal conduct, they do provide necessary context to enable the court to determine an appropriate sentence. [38] Moreover, the court emphasizes that it is unnecessary to establish a direct causal link between the circumstances of the offender and the offending, as these circumstances involve intertwined and interdependent factors where it is often simply not possible to draw direct correlations; see para. 83, Ipeelee, approving the observations of the Ontario Court of Appeal in R. v. Collins, 2011 ONCA 182 at paras. 32-33. A "much more modest requirement than [a] causal link" is prescribed. [39] A court should not merely pay lip service to the provision, but should give it substance. Madam Justice Bennett, in R. v. Ladue, 2011 BCCA 101, said: [59] In my view, what is critical,

fifteen years after the proclamation of Bill C-41, is the fact that the overrepresentation of Aboriginal people in prison is increasing. The decision in Napesis emphasizes the importance of sentencing judges taking the time to apply the principles as they relate to Aboriginal offenders. [60] The Ontario Court of Appeal recently addressed the importance of the application of restraint and restorative justice principles found in s. 718.2(e). In R. v. Jacko, 2010 ONCA 453, 256 C.C.C. (3d) 113, the trial judge acknowledged and considered the circumstances of the Aboriginal offenders; however, in the Court's view, he erred by failing to give sufficient weight to the appellants' Aboriginal heritage. Of significance, Mr. Justice Watt, for the Court, said at para. 87: In cases such as these, we must do more than simply acknowledge restorative justice sentencing objectives and note approvingly the rehabilitative efforts of those convicted. They must have some tangible impact on the length, nature and venue of the sentence imposed. [40] The Court is directed by Parliament that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances, and that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal

offenders. IX. Reasons [41] On reviewing the cases submitted by the Crown, in my view, none of those cases parallels the conditions of this offence and the circumstances of this offender. Many of the Crown cases involve much more experienced offenders with in many cases very significant criminal records. Those observations apply to Anderson, B.G.P., Whitman, Street, and Ashby. In Toby, the offender was young but had multiple prior convictions including convictions for violence. In Sultan it was a much older offender where only interventions by third parties halted the vicious attack. [42] In Gorman the victim suffered a collapsed lung and almost died, and there was an element of vigilantism to the offence. The age of the offender is not mentioned and there was a prior, though unrelated, record. [43] In my view the cases which come closest to these circumstances, are those in Foster, where a 2 year conditional sentence was imposed, and Nakamura, where a suspended sentence was imposed on two accused with 2 years' probation. Of course no cases are identical. In Nakamura the offenders were 18 not 21. They pled guilty during trial, not after. The offenders in Nakamura were not aboriginal. In Foster the offender received a conditional sentence of 2 years, something no longer available here. At the time of the offence Foster was 3 years older than the accused at the time of these

offences. [44] Some of the other decisions cited have too little factual content to be of great assistance in determining the appropriate sentence here. In this case as the hearing judge I am well aware of the circumstances of the offence. Mr. Nicholls clearly desisted in the attack of his own volition, and was upset after the event. The injuries although serious were not life threatening. [45] I am impressed by Mr. Nicholls behaviour following the offence. He has not reoffended nor had difficulty with bail conditions. He has abstained from drug use for some time, which, I consider a factor in the context of this offence. He otherwise has an unblemished record. I am impressed with the programs available through the Nak'azdli Alternate Justice Centre, and I think that Mr. Nicholls has a real opportunity, now located in Fort St. James of turning his life around in a positive way, so rehabilitation is an important factor here. [46] In my view the principles of sentencing set out in the Criminal Code in this case are best served by suspending the sentencing of the offender and imposing strict probation conditions for a period of 30 months. To successfully complete this period of probation will mean that the offender has been of good behaviour for a period of almost 5 years after the offence. X. Order [47] Mr. Nicholls please stand. I am suspending the passing of sentence today on

the following conditions, namely, for a period of thirty months: (1) That you keep the peace and be of good behaviour; (2) That you shall appear before the court as and when required to do so by the court; (3) That within 24 hours you shall report in person to the Probation Office located a 101-250 George street, Prince George, B.C., and after that you shall report as and when directed by the Probation Office; (4) That you shall notify the court or the Probation officer in advance of any change of name, address, and promptly notify the Probation officer of any change of employment or occupation; (5) That you shall have no contact or communication, directly or indirectly with Brandon Rodney Rommann; (6) That you shall not attend at, or be within 25 metres of any place which you know to be the residence, school or workplace of Brandon Rodney Rommann; (7) You shall not possess or consume any controlled substance within the meaning of section 2 of the Controlled Drugs and Substances Act; (8) You shall not possess any weapon as defined in section 2 of the Criminal Code; (9) You shall not possess any knife outside of your residence except for the immediate preparation or eating of food, or for purposes directly and immediately related to your employment; (10) You shall attend, participate in and successfully complete any assessment, counselling or program as directed by your

Probation Officer. Without limiting the generality of this requirement, such assessment, counselling or program may include and relate to anger management, alcohol or drug abuse, psychiatric or psychological health, a full-time attendance program for alcohol or drug abuse and/or such full time program as may be directed by the Probation Officer, and you shall comply with all rules and regulations of such assessment; and such programs may include programs at the Nak'azdl Alternate Justice Centre. [48] In addition to the above, I make the following ancillary orders: (11) Pursuant to section 109 of the Criminal Code you are subject to a weapons prohibitions for a period of 10 years; (12) You shall provide a DNA sample pursuant to section 487.051(2) of the Criminal Code; (13) Pursuant to section 737(1) I waive the victim surcharge. Mr. Nicholls, you are getting a second chance. Don't waste it. If you breach the probation conditions you shall be back in this court for further sentencing. Don't prove me wrong. _______ The Honourable Mr. Justice Savage