Citation:

R. v. Hiscock

Date: 20021202

 

2002 BCCA 647

Docket:

CA030003

CA030016

 

COURT OF APPEAL FOR BRITISH COLUMBIA

 

CA030003

BETWEEN:

 

REGINA

 

RESPONDENT

 

AND:

 

HARRY JACK HISCOCK

 

APPELLANT

 

 

- AND -

 

CA030016

BETWEEN:

 

REGINA

 

 

RESPONDENT

 

 

AND:

 

ELDRIEGSON DELALCAZAR

 

 

APPELLANT

 

 

 

 

Before:

The Honourable Mr. Justice Esson

 

The Honourable Madam Justice Newbury

 

The Honourable Madam Justice Huddart

 

 

M.F. Allen

Counsel for the Appellant

Harry Jack Hiscock

 

L.D. Marshall

Counsel for the Appellant

Eldriegson Delalcazar

 

M.J. DeWitt-Van Oosten

Counsel for the Respondent

Place and Date of Hearing:

Victoria, British Columbia

October 24, 2002

Place and Date of Judgment:

Vancouver, British Columbia

December 2, 2002

Written Reasons by:

The Honourable Madam Justice Newbury

 

Concurring Reasons by:

The Honourable Mr. Justice Esson (Page 16, para. 20)

 

Concurred in by:

The Honourable Madam Justice Huddart


Reasons for Judgment of the Honourable Madam Justice Newbury:

 

 

[1]         On July 11 of this year, Mr. Hiscock, then aged 20 years, and Mr. Delalcazar, then aged 19 years, were sentenced to six months in custody and a probationary term of 18 months for charges arising out of an incident that took place in Esquimalt on the night of October 12, 2001.  Mr. Delalcazar pleaded guilty to uttering a threat, contrary to s. 264.1(1)(a) of the Criminal Code, while Mr. Hiscock had pleaded guilty to mischief to property valued at over $5,000 contrary to s. 430(3)(a) of the Code.  The pleas were entered after the trial had commenced, but prior to its completion.  At the time of sentencing, Mr. Delalcazar had spent seven months in custody awaiting trial and Mr. Hiscock had spent approximately eight and a half months.

[2]         On the evening of October 12, 2001 Mr. and Mrs. Kunz, together with a friend, Mr. Havelaar, attended a house-warming party at the home of a friend, Mr. Trudell.  Evidently, Mr. Trudell lives on the Gorge waterway and there is a dock adjacent to his property.  Mr. Trudell testified that during the evening he heard what sounded like young persons' voices from the area of another dock nearby, casting obscenities in his direction.  Had the trial continued to its end, there would have been contradictory evidence as to whether the group of people at Mr. Trudell's house responded in kind to the group on the other dock, but for obvious reasons that conflict was not resolved by the sentencing judge.

[3]         Later in the evening, between 11:30 and midnight, when Mr. and Mrs. Kunz and Mr. Havelaar were leaving, a large group of young people came up behind them.  What Mr. Havelaar described as the young people's "pointless banter" quickly became a "ferocious" onslaught of abuse and threats.  The sentencing judge described the incident as follows:

An intense verbal assault and taunting of all three, but especially Emma Kunz, quickly accelerated into what clearly was a very hostile, violent set of circumstances.  Fortunately for all concerned, no physical damage was occasioned on anybody at that particular point in time.

 

     Mr. Havelaar testified that a person he identified as Mr. Delalcazar appeared to him to be the leader of this group of young people, and that he was very aggressive towards him and the Kunzes.  He testified that based on his observations once Mr. Delalcazar made a move others soon followed, and he reached the conclusion, based on his observations, that Mr. Delalcazar, quote, "Seemed to be sort of leading it."  He testified that another person, who it is clear was Mr. Hiscock, seemed to be his right-hand man or his second in command.

 

     Mr. Havelaar testified that he heard Mr. Delalcazar ferociously say to Emma Kunz that he would slap her, quote, "Like the whore she is."  He testified that both of these young men took aggressive stances, that obscenities such as "you fucking whore" were directed at Ms. Kunz, repeated more than once, in addition to the fact that Mr. Delalcazar was going to slap her. . . .

     Mr. Havelaar testified that as the Kunzes pickup pulled away from the curb several people were kicking at it.  He testified that he and the Kunzes did not return profanities towards this young group and that Mr. Kunz did not say he would fight if he had to.

 

     Mr. Kunz testified and reiterated that he and Mr. Havelaar and his wife said nothing and did nothing to provoke this group.  He testified that his observations of Mr. Delalcazar was that he, "quote, "posed" and screamed towards he and his wife.  That is Mr. Kunz and his wife.  He reiterated that Mr. Delalcazar said, "I'll slap your face, bitch," and continued to swear at her.  He testified that he saw his wife look at Mr. Delalcazar and Mr. Delalcazar, with significant intensity, yelling back at her, "What the fuck are you looking at, bitch?"

 

     Mrs. Kunz confirmed that particular evidence.  She heard Mr. Delalcazar swearing at her, said to her that he would smack her face in and that it was repeated, quote, "over and over".  She testified that, Mr. Delalcazar was right behind me" and that he was shaking his fists at her.  She reiterated that they never said one word to this group of young people.  She described them as a mob, and in these circumstances I cannot disagree with that characterization.

 

     It would appear, having regard to the totality of the circumstances, that the Crown has clearly proven that this mob of young people were led by Mr. Delalcazar and Mr. Hiscock, and that they set upon these people when they knew the numbers were overwhelmingly in their favour.

 

     With respect to the issue of provocation, I accept the sworn testimony of Mr. and Mrs. Kunz and Mr. Havelaar, that they said nothing to provoke this group.  Even if there was mutual swearing at the dock some time earlier, I note from Mr. Havelaar's testimony, that it was a considerable period of time since that interchange or exchange, to when Mr. Havelaar and the Kunzes were leaving the premises at roughly eleven thirty-nine.

     I note Mr. Marshall's submission, that Mr. Patterson's statement, who was a prospective Crown witness, contradicts this conclusion.  He did not testify and for the purposes of sentencing I give little weight to that particular statement of Mr. Patterson where it is inconsistent with the sworn testimony of the Kunzes and Mr. Havelaar.  And I also give little weight to that particular statement by Mr. Patterson, whether or not the Crown relies on it with respect to the issue of what may or may not have taken place at the time, as well as defence relying on it with respect to whether or not there was any provocation on the part of the victims.

 

     In these circumstances it is obvious that the Kunzes were clearly and understandably terrified from the violent, verbal assault and the damage to the car that occurred on the night in question.  Both impressed me as not being overly fragile persons, yet the terror and violence wrought upon them by the accused, clearly and understandably had a devastating effect on them.  [paras. 13-23]

 

 

[4]         The sentencing judge found several aggravating features in the conduct of the two accused.  Although he declined the Crown's application to hear evidence relating to whether the incident had been carried out "for the benefit of, directed by, or in association with a criminal organization", there was evidence that some of the young people had been wearing blue bandanas, and the appellants' probation orders prohibited them from doing so.  Certainly, a group dynamic was operating.  The sentencing judge noted the incident had been "completely unprovoked, vis à vis these victims", who had done nothing to attack the group's attention.  Even though Mr. and Mrs. Kunz and Mr. Havelaar were not actually assaulted, the sentencing judge agreed with the Crown that a "significant degree of violence" had been present.  The extremely degrading comments directed to Mrs. Kunz and the resulting trauma occasioned to her and her companions were seen as the most aggravating features: Mrs. Kunz's victim impact statement speaks to the considerable emotional distress that she suffered as a result of the violent comments and threats she received, and as to her continuing state of fearfulness in Canada, where she is a new resident.

[5]         The sentencing judge concluded that Mr. Delalcazar and Mr. Hiscock had been the leaders of the "mob".  He noted the incident had taken place at a time when there were "serious concerns in the Esquimalt area about the reported violent altercations involving groups of young people."  In his words:

The issue is that this court must send an appropriate message that this gratuitous violence will not be tolerated, and which upon conviction, will result in appropriate dispositions depending, of course, on the circumstances of the offence and the offender.

 

     I agree wholeheartedly with the Crown counsel that citizens of this, and every other community, must be allowed to go about their daily business without fear of unprovoked attacks.  [paras. 35-6]

 

 

[6]         Mr. Delalcazar had a youth record consisting of two assaults in 1997 and 1999 respectively, failure to comply with an undertaking, obstructing a peace officer, and an assault; and since becoming an adult, had been convicted for breaching a conditional supervision order and an assault.  Mr. Hiscock as a youth had been convicted of a theft and a breach under the Young Offenders Act and had one theft under $5,000 on his adult record.  At the same time, the sentencing judge was told, and we were told, that both appellants have supportive families with whom they live, and that both are gainfully employed.  The parents in each case are hard-working people who have large families.

[7]         In his submissions below, Crown counsel sought a period of incarceration for both accused "at the top end of the provincial scale, or the beginning of the federal", subject to the recognition of the 'dead time' served by each of them.  Thus the Crown was seeking a sentence of six to seven months' "new" time, if I may phrase it that way, of incarceration for each accused, followed by lengthy probation periods.

[8]         In his submission, Mr. Marshall on behalf of Mr. Delalcazar reviewed the calculation of his client's dead time, which was complicated somewhat by the fact that Mr. Delalcazar had pled guilty to another assault for which he was sentenced to 30 days.  Noting that the longest term Mr. Delalcazar had served previously was 67 days (for breach of a conditional sentence), Mr. Marshall suggested an appropriate sentence would be between four and six months.  He submitted:

And that's significantly higher than I would suggest would be appropriate if it was just your run-of-the-mill, garden-variety uttering threat that we often have to deal with.  So in my respectful submission, the appropriate sentence, without calculation of dead time, would have been -- had he pled guilty months ago, in the four-to-six month range.  [Emphasis added.]

 

 

[9]         It would appear that the sentencing judge in the case at bar may have misunderstood Mr. Marshall's submission.  At para. 52 of his reasons, he said this:

     Unlike Mr.Marshall, who quite properly on Mr. Delalcazar's behalf, in my opinion, submitted that having regard to Delalcazar's dead time a period of incarceration of four to six months is appropriate. . . .

 

 

In fact, as appears from the submission quoted above, Mr. Marshall submitted that without the calculation of dead time, the appropriate sentence would have been between four and six months.  Since Mr. Delalcazar had already served more than that, Mr. Marshall was seeking his immediate release.

[10]    Mr. Brooks on behalf of Mr. Hiscock referred the sentencing judge to two cases — R. v. Loewen (1992) 75 C.C.C. (3d) 184 (B.C.C.A.), where a first-time offender, aged 18, had become involved in the "Penticton riot" and succeeded in having his sentence reduced from 10 months to six months by this court; and R. v. Jackson [2002] B.C.J. No. 1030 (Prov. Ct.), in which Sinclair, P.C.J. sentenced a man with a lengthy criminal record to six months' imprisonment for an assault with a weapon.  Mr. Brooks submitted: 

     I say to Your Honour that, in my respectful submission, this case cannot be any more serious than the Jackson case.  It simply doesn't make sense and would leave the public scratching their heads to know how a person with an -- who assaults somebody with a beer bottle is to be treated more leniently than an individual who kicks a motor vehicle.  And in my respectful submission, the range is much less than what my friend has said.

 

     Bearing in mind the limited record here, bearing in mind his youth, bearing in mind the incredible amount of time that he has spent awaiting this proceeding, I ask you to consider that he has served far more time than is appropriate.  I would ask Your Honour to perhaps be explicit about that, as to what you feel is the appropriate term that he would have received, had he not been in custody and walked in off the street, and to consider that he has done far more time than is necessary in that regard.

 

 

[11]    The sentencing judge concluded that the Crown's submission was an appropriate one — i.e., that a "total" sentence in each case of two years or two years less a day was appropriate.  Giving credit for time served, and "notwithstanding the difference in the actual offences to which they have pled guilty to", the Court therefore imposed terms of imprisonment of six months in each case.

[12]    In this court, counsel submitted that "total" sentences of two years represented too big a step up from the previous sentences imposed in Mr. Delalcazar's case (concerning which the sentencing judge misunderstood counsel's submission) and that in both instances, the sentences were outside the appropriate range.

[13]    In my view, the "step" principle is only one factor to be considered in cases involving offenders with criminal records.  It should not overshadow a significant escalation in the degree of seriousness between a prior offence and a new offence.  If the new offence is considerably more serious, then the other principles of sentencing may lead to a significant escalation in sentence.  Moreover, although the sentencing judge may have misunderstood Mr. Marshall's submission regarding the appropriate sentence in Mr. Delalcazar's case, that does not by itself give rise to reversible error.  The question is whether the sentence in each case was fit.

[14]    The offence of uttering of threats has generally attracted light sentences in this province.  In R. v. Salelar [1995] B.C.J. No. 210 (B.C.C.A.), for example, a 22-year-old accused successfully appealed a sentence of nine months, six months and one month concurrent, respectively, on convictions for uttering a threat to cause death, assault and mischief.  The Court cited the judgment of Mr. Justice Hinds in R. v. Nelson [1992] Y.J. 171 (Y.T.C.A.), where he reviewed various sentences in cases of threatening death or serious bodily harm, including R. v. Laviolette [1990] B.C.J. No. 2172 (B.C.C.A.), R. v. Sager [1991] B.C.J. No. 489 (B.C.C.A.), R. v. Bergeron [1991] B.C.J. No. 950 (B.C.C.A.), and R. v. Ram [1991] B.C.J. No. 3865 (B.C.C.A.).  Among these, the longest sentence was that of nine months' imprisonment imposed (and 18 months' probation) in Ram.  It was upheld on appeal by the defendant.  Considering all of these in Salelar, this court reduced a sentence of nine months' imprisonment for uttering a threat, to time served, which amounted to approximately six months.  Donald J.A. for the Court noted that the offender in that case was a 22-year-old illegal immigrant into Canada whose parents had been killed when he was young and who had been left to fend more or less for himself.  He had come to Canada by stowing away on a ship in Liberia and had been refused refugee status here, as a result of which he was not allowed to work.  He had other personal circumstances that were clearly different from those of the appellants in the case at bar.

[15]    Ms. DeWitt-Van Oosten for the Crown submitted that the various aggravating factors referred to by the sentencing judge in his Reasons make this case "very unique" (by which I think she means "unusual") and that the mere fact that one cannot find a case in which a sentence of 22 or 23 months was imposed for uttering a threat does not mean it would be wrong to do so where the circumstances are so aggravated.  She notes the comments of this court in R. v. Miloszewski [2001] B.C.J. No. 2765, a sentence appeal on a manslaughter conviction.  Both appellants in that case were members of a racist group or gang who beat up and killed a man of East Indian origin, apparently because of his race.  The Court referred to the principle that when a person acts in concert with other members of a group or gang to victimize a single victim, that person must accept the consequences flowing from the group's action.  Mr. Justice Lambert also noted that:

. . . the fact that it is a group or gang-like crime colours the crime and makes it inappropriate to draw fine distinctions between one member of a gang carrying out a co-ordinated activity in pursuit of the aims of the gang from another member of the gang engaged at the same time in roughly the same activity carrying out the aims of the gang.  [para. 19]

 

 

 

[16]    The principles and purposes of sentencing are of course now referred to in s. 718 of the Code.  In my view, the sentencing judge was right to emphasize denunciation and deterrence, both general and specific, in this case.  With respect to general deterrence, its effect in many instances is uncertain, since the public does not learn about the vast majority of sentences that are imposed by the courts every day.  In this instance, however, where the accused are members of a group, however loosely organized, their colleagues are likely to hear of the sentences meted out to them and, one hopes, to govern themselves accordingly.  As far as specific deterrence is concerned, it appears that relatively light sentences have not had the desired effect on Mr. Delalcazar or Mr. Hiscock, and a stronger warning may now be called for. 

[17]    With respect to denunciation, I believe the sentencing judge was right to take into account the perceptions of the local community, which has clearly been victimized by young criminals in the last few years.  The circumstances of the offences in question were serious even though the charges themselves are not particularly so.

[18]    Finally, we have been reminded by the Supreme Court of Canada on many occasions that the scope of appellate review in the area of sentencing is very restricted and that sentences imposed by the trial courts must be deferred to unless they are "demonstrably unfit": see R. v. M.(C.A.), [1996] 1 S.C.R. 500, at para. 90.  Given the circumstances of these offenders and these offences, and notwithstanding the thorough submissions of appellants' counsel, I am unable to say that these sentences are demonstrably unfit.

[19]    I would dismiss the appeals.

 

 

 

 

“The Honourable Madam Justice Newbury"

 


Reasons for Judgment of the Honourable Mr. Justice Esson:

 

[20]    I agree with Madam Justice Newbury that these appeals should be dismissed and I agree with her reasons for that conclusion.  I wish, however, to add some comments of my own.

[21]    In paragraph 9 of her reasons, my colleague refers to the possibility that the sentencing judge may have misunderstood Mr. Marshall's submission as to what would be a fit sentence.  If there was a real possibility that a misunderstanding of that kind led the judge to impose a heavier sentence than he otherwise would, that could lead to the conclusion that the sentence was unfit.

[22]    However, assuming there was such a misunderstanding in this case, I cannot find that it affected the reasoning of the judge in any material way.  He was fully aware from the submissions of Mr. Brooks on behalf of Hiscock of the argument that "time served" exceeded any fit sentence.  Having considered the authorities cited to him in support of that contention, he firmly rejected it.

[23]    His primary ground for rejecting that submission was that the circumstances here called for a substantially more severe sentence than the "range" indicated by the cases cited to him.  In reaching that conclusion, he gave great weight to the "group" or "gang-like" aspect of the offences and to the prevalence of such activities in the specific area of Victoria/Esquimalt in which these offences took place.

[24]    The Crown referred us to two related decisions in Youth Court which were not referred to by the sentencing judge but the circumstances of which, I have no doubt, were known to him, at least in a general way.  R. v. C.D.R., (30 May 2002) Victoria Registry 2259C, 2263C (B.C. Prov. Ct., Youth Ct.) is a decision of the Honourable Judge Quantz delivered some six weeks before the decision on appeal.  C.D.R., 15 years of age, was part of the group led by these appellants in the harassment of Mr. and Mrs. Kunz.  Like Hiscock, he pleaded guilty to committing mischief by damaging the truck of Mr. Kunz.  He also pleaded guilty to a much more serious offence, that of endangering the life of one Nicholas Johnson, through an aggravated assault.

[25]    The circumstances of the second offence, which took place only eight days after the first, were horrifying.  Mr. Johnson, innocently walking down the street, was set upon by a group of young people, who the judge found to be members of a gang which took offence at the fact Mr. Johnson was wearing red clothing.  A member of the group knocked him unconscious with a blow to the head.  At that point, C.D.R. kicked him at least two times, at least once in the head.  At the time of sentencing, Mr. Johnson remained in a vegetative state requiring constant care.  Judge Quantz found that the group which had attacked him, including C.D.R., included many of the same individuals involved in the incident of October 12.  Judge Quantz was satisfied that C.D.R. was a very recent associate of the gang and was considerably younger and less sophisticated than many of its members.  He observed that C.D.R. had no history of criminal activity, was "basically a kid of good character and a good upbringing" and that his case clearly demonstrated "how these groups can influence otherwise law-abiding kids and emphasizes the need for bringing their activities to an end." 

[26]    The significance of R. v. C.D.R. in relation to assessing an appropriate sentence for these two appellants, who were adults and who led the October 12 attack, is obvious.  It is also of interest that Judge Quantz, having sentenced C.D.R. to two years closed custody on the aggravated assault charge, sentenced him on the mischief charge to one year closed custody consecutive to the two year sentence.

[27]    The second case is R. v. C.A.P., (9 April 2002) Victoria Registry, 2259-C, 2263-C (B.C. Prov. Ct., Youth Div.), a decision of the Honourable Judge Harvey.  C.A.P. pleaded guilty to participating in the attack on Mr. Johnson and in the October 12 incident.  In each case, he was sentenced to two years closed custody to be served concurrently.  Appeals were brought against those sentences but have been abandoned.

[28]    There are, of course, distinctions between the sentencing regime in Youth Court and that in adult court, including the power of review in Youth Court.  Nevertheless, the Youth Court decisions are relevant here, both for the additional light they throw on the circumstances and the relative severity of the sentences imposed.  In both respects, those decisions support the conclusion that the sentences imposed in this case are fit.

 

[29]    I would dismiss the appeals.

 

 

 

“The Honourable Mr. Justice Esson”

 

 

 

I AGREE:

 

 

 

“The Honourable Madam Justice Huddart”

 

 

 

  

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