R. v. Parsons

2010 BCCA 377 R. v. Parsons

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Parsons, 2010 BCCA 377 Date: 20100809 Docket: CA036532 Between: Regina Respondent And Warren Wayde Parsons Appellant Restriction on publication: Ban on disclosure of identity of victim pursuant to s. 486.3 of the C.C.C. Before: The Honourable Mr. Justice Hall The Honourable Mr. Justice Tysoe The Honourable Madam Justice D. Smith On appeal from: Supreme Court of British Columbia, September 29, 2009 (R. v. Parsons, New Westminster Registry X067392-2) Oral Reasons for Judgment Counsel for the Appellant: L.J. Helps Counsel for the Respondent: F. Tischler Place and Date of Hearing: Vancouver, British Columbia August 9, 2010 Place and Date of Judgment: Vancouver, British Columbia August 9, 2010 [1] HALL J.A.: This is a sentence appeal from a sentence of five years imposed upon the appellant who was convicted of breaking and entering a dwelling house with intent to commit an indictable offence therein pursuant to s. 348.1(a) of the Criminal Code, sexual assault pursuant to s. 271 of the Code, and knowingly uttering a threat to injure an animal pursuant to s. 264.1(1)(c) of the Code. The five year sentence was imposed on the breaking and entering offence. [2] The Criminal Code provides that everyone who breaks and enters a place with an intent to commit an indictable offence therein, or breaks and enters the place and commits an

indictable offence therein, is liable to imprisonment for life if the offence is committed in relation to a dwelling house. Section 348.1 of the Code provides that if a person is convicted of an offence of this sort, the court imposing the sentence on the person shall consider it an aggravating circumstance of the fact that the dwelling house is occupied at the time of the commission of the offence and that the person in committing the offence used violence or threats of violence to a person on the property. Those circumstances obtained in the present case. [3] The circumstances, shortly put, are that the appellant, who was aged about 42 at the time of sentence, in 2003 went to the house of the victim when he knew that the male occupant would be at work and not in the house, broke down a barricaded door and sexually assaulted the victim. During the assault the accused apparently threatened to kill the victim's cat in order to force her to comply with his wishes. The appellant and the victim had been in a relationship prior to this incident, and the victim was living with another man at the time that this happened. [4] The appellant had a number of health issues including the ongoing effects of a kidney transplant some years ago and was on disability at the time of the offence, and had been on disability for quite some time. He was 40 years of age at the time sentence was

imposed in September 2008, and is now 42. He resided with his mother and step-father and he enjoyed the support of his family. [5] He was convicted after a trial before Mr. Justice Brine. Effectively, he claimed that the incident of assault had not occurred and that he was in the house merely to collect a debt. He was not believed. [6] The circumstances of the offence are aggravated in the extreme because it was apparent that because of certain communications between the appellant and the victim, that the victim feared that the appellant would come into the house and do her harm, so she and her partner had taken steps to barricade the entrances to the house. The appellant, however, managed to evade the barricading and was able to work his way into the house at a time when he expected the victim to be there and when he expected the male occupant to be absent. Although the victim attempted to hide from the appellant, he successfully ferreted her out and then committed a sexual assault upon her. It had a dramatic effect on her. Fortunately for her, a communication was made to police headquarters, and a police officer arrived and the appellant was arrested at the scene. [7] There was some delay before the trial. During that delay, the appellant was on bail and apparently observed his bail conditions. It did not appear that there was any likelihood of a repetition of the offence at

the time when the appellant was convicted and sentenced. [8] The learned judge, who was sentencing the appellant after the lengthy trial in which he had a full appreciation of the facts. He referred to a number of cases, including R. v. Dahlman, 2007 BCSC 1912, a case that was referred to by counsel this morning. The learned judge in the course of sentencing set out the facts, briefly, of the case, and he referred in his judgment to the aggravating and mitigating circumstances: [108] In the case before me I consider that the aggravating factors present include: · The nature of the offences themselves which involved breaking into the victim's home and sexually assaulting her. This victim, as is any citizen of Canada, is entitled to be able to rely on the sanctity and safety of her home. Section 348.1 mandates that this is to be considered a significant aggravating factor. · Mr. Parsons was aware that the home was occupied. Indeed, that was the reason for his being there at that time. · He used threats and acts of violence towards the victim. These included violently grabbing the victim's hair such that it fell out, threatening to kill her pet cat, threatening to beat her up if she did not cooperate, slapping her on the side of the face and threatening to bite off her clitoris. · The attack was premeditated in that Mr. Parsons knew that the victim would be alone and likely asleep

at that hour of the morning. In other words, he used his particular knowledge of the victim to his own advantage. · The assault was one that was particularly demeaning and humiliating and was based on a position of overwhelming power over the victim. Neither did he stop his attack when she asked him to do so. He did not stop until he had been sufficiently sexually gratified. · Mr. Parsons' criminal history is of only limited interest as it was somewhat dated. His only criminal record was for assault in the 1980's. · Mitigating factors include the following: · Mr. Parsons has been largely compliant with the terms of his bail. He has not breached any term requiring no contact with the victim or her boyfriend. · He has been unable to travel to Surrey and thus has not been able to enjoy watching his children participate in activities in that community. · His medical history is significant. He had a kidney transplant at the age of 27 and as a consequence is required to take a cocktail of medications for tissue rejection and infections. He has issues with his heart and has apparently been advised that a cardiologist that he requires heart surgery which he may be able to have as early as October 2008. I was not advised as to the specific nature of the procedure nor the convalescence needed nor the impact that incarceration might have on that procedure. There was no information

provided by the doctor. I was told that Mr. Parsons also has gout, a bad back, and is susceptible to infections due to his suppressed immune system. [109] Mitigating factors include the following: · Mr. Parsons has been largely compliant with the terms of his bail. He has not breached any term requiring no contact with the victim or her boyfriend. · He has been unable to travel to Surrey and thus has not been able to enjoy watching his children participate in activities in that community. · His medical history is significant. He had a kidney transplant at the age of 27 and as a consequence is required to take a cocktail of medications for tissue rejection and infections. He has issues with his heart and has apparently been advised that a cardiologist that he requires heart surgery which he may be able to have as early as October 2008. I was not advised as to the specific nature of the procedure nor the convalescence needed nor the impact that incarceration might have on that procedure. There was no information provided by the doctor. I was told that Mr. Parsons also has gout, a bad back, and is susceptible to infections due to his suppressed immune system. [9] The judge then went to say in para. 110: This is not a case where Mr. Parsons' behaviour can be attributed to alcohol or drug addiction or consumption or, indeed, to any other factor than his own sexual gratification. It

did, of course, involve a victim uniquely known to him. This is a bit of a two-way street. His knowledge of the victim is what prompted the attack in the first place. However, it makes it less likely that other potential victims will be traumatized by Mr. Parsons in the future. [10] The victim was known to the appellant and they had been in a previous relationship and that again is an aggravating factor that the court is entitled take into account when sentencing for this sort of conduct. [11] I might briefly refer to one case that is a little similar in some ways: R. v. Perreault, 2005 BCCA 226. A significant distinguishing feature between the present and the case of Perreault is that the situation in Perreault involved a relatively young offender who apparently was in a state of almost partial insanity by reason of the ingestion of drugs or alcohol, when the offence occurred. This Court reduced the sentence of five years in that case slightly to a sentence of four years: [20] I have concluded, taking account of those circumstances and the very bizarre circumstances apparent in the condition of the appellant at the time of the incident, that the sentence imposed was on the high side. I would allow this appeal and substitute for the sentence of five years imprisonment a sentence of four years imprisonment. It must be recognized that this was a serious offence and it had

unfortunate consequences for the innocent victim. Giving regard to the need to denounce and deter this sort of conduct which is harmful to the fabric of society, but nonetheless recognizing that it seems to be a unique aberration in the life of this accused appellant caused by circumstances never likely to be repeated, it seems to me that a sentence of four years would be a fit disposition and I would so order. [12] As can be seen from that paragraph, the case was one of a very unusual nature and it was by reason of the unusual circumstances that this Court was moved to make some alteration of the sentence. The facts of the present case are very distinguishable from that case. [13] The Counsel for the appellant made some reference to the question of range. Of course, range is helpful but it is never absolutely determinative as was pointed out by Madam Justice Southin and Madam Justice Prowse in R. v. Bernier (2003), 177 C.C.C. (3d) (B.C.C.A.). Here I would refer to para. 103 of the reasons for judgment wherein the learned judge quoted from the comments of Madam Justice Southin in that case, and I would also like to refer to para. 104 of the judgment where the learned judge commented on the principles enunciated by Madam Justice Prowse in that case. [103] Madam Justice Southin described the proper use of the term "range" at ¶40 to 42 as follows: [40] As to the term "range", in

sentencing cases its proper use, in my opinion, is only as a short way of describing what the court has done in previous appeals in which the offence and the offender were similar to those in the case at bar. The reason is this: no division of this Court has the power to bind other divisions on future sentence appeals. [41] While the past is prelude to the present, the past cannot always govern the present, nor can what we say now determine the future. [42] A "range" does not preclude on grounds of deterrence or denunciation or the gravity of the particular offence a sentence different from that "range". Nor does a "range" preclude a lesser sentence if some special circumstances warrant such a course. When considering any particular case similar to R. v. D.A.W. or to R. v. N.P.D. or to this case, trial judges and this court will have in mind those sentences as part of the "range". The "range" is not conclusive. [104] Madam Justice Prowse stated that it is wrong to over-emphasize the importance of a "range of sentence" for a particular offence. Range of sentence is but one factor of many that the sentencing court is to consider when determining the appropriate sentence in each case. The court must give appropriate weight to each of the sentencing principles as well as to the specific circumstances of the offence and the offender. Indeed, she included this cautionary note for

sentencing courts in cases that involve home invasion type offences at ¶82: Because the combination of crimes charged in these cases will vary to some extent, it is difficult to determine a relevant range of sentence. For this reason, the Court should exercise more caution than usual in attempting to suggest general ranges of sentence for home invasions. [14] The fact of the matter here is that this case is about as bad a case of circumstances as one can conceive. You have an individual, who was very large and powerful, breaking into a house that had been barred against his entry, and assaulting his former partner. It, as I said, is a case in which the circumstances are extremely aggravated, and the learned trial judge was right to take cognizance of that. He, as I said, referred to the circumstances of the offender and the fact that alcohol was not involved and that the appellant had assaulted a person who was known to him and who had been in an earlier relationship with him. The judge said at para. 107: In my view, the principles of denunciation and general deterrence are of paramount consideration in this case. I am satisfied, on the basis of what I have been told, that specific deterrence is not a major concern, certainly insofar as the victim is concerned. In any event, I was not advised by the Crown of any particular concern that they might have had with respect to

specific deterrence. [15] I entirely agree that given the circumstances of this offence, that the principles of denunciation and general deterrence were a paramount consideration. This is a case that demonstrates a set of facts that had to be dealt with severely by a sentencing court so that any person who was minded to act in the same way as this appellant would be on notice that the court would deal very severely with this sort of factual situation. [16] The sentencing is an individual matter, as pointed out by the Supreme Court of Canada, in R. v. Gardiner, [1982] 2 S.C.R. 368, which was cited to us by counsel, and I am satisfied that the learned judge had in mind all of the appropriate principles in this case. It certainly could not be said that this sentence was beyond the range for the offence that this appellant was sentenced for. As I say, the circumstances were aggravated in the extreme. We have had cited to us the Gardiner case but I do not think the Gardiner case is particularly applicable on the facts of this case because the issue in Gardiner was so different. [17] I am satisfied that there has been no error demonstrated in the approach of the learned sentencing judge in this case and, accordingly, I would grant leave to appeal from sentence but I would dismiss the appeal from sentence. [18] TYSOE J.A.: I agree. [19] D. SMITH J.A.: I agree. [20] HALL J.A.: The appeal from sentence is dismissed. "The Honourable Mr. Justice Hall"