COURT OF APPEAL FOR BRITISH COLUMBIA
Citation: | R. v. Townsend, |
|
Date: 20150501
Docket: CA042136
Between:
Regina
Respondent
And
Jason Dennis Townsend
Appellant
The Honourable Madam Justice Newbury The Honourable Madam Justice Saunders The Honourable Mr. Justice Savage |
On appeal from: an order of the Provincial Court of British Columbia dated
July 31, 2014 (R. v. Townsend, Prince George docket no. 39500-2-C)
Oral Reasons for Judgment
Counsel for the Appellant: | A.W. Alteen |
Counsel for the Respondent: | M.K. Brown |
Place and Date of Hearing: | Vancouver, British Columbia April 29, 2015 |
Place and Date of Judgment: | Vancouver, British Columbia May 1, 2015 |
Summary:
In a sentence for three counts of assault causing bodily harm, the judge pronounced a consecutive sentence of 22.5 months on the most serious offence. Appeal allowed only to the extent of properly reflecting sentences after credit for time in custody. Discussion of “consecutive v. concurrent” and totality principle.
[1] NEWBURY J.A.: Mr. Townsend pleaded guilty to three counts of assault causing bodily harm. The assaults took place in the early morning hours of December 6, 2013 outside a nightclub in Prince George. The evidence consisted largely of videotapes taken by two cameras at different angles outside the bar.
[2] The incident began when the appellant came out of the club and immediately approached one of the victims, Ms. Litzen-Parson, who pushed him away from her. He stepped back and Ms. Litzen-Parson attempted to strike him in the face twice. Evidently one of her attempts succeeded and part of one of Mr. Townsend's teeth was broken off. He then approached her again and admits that he knocked a cigarette out of her mouth.
[3] At this point, the second victim, Mr. Rafiq, who had been standing nearby gestured as if to tell Mr. Townsend to leave. Mr. Townsend responded by punching him in the head and knocking him to the ground. Mr. Townsend then kicked Mr. Rafiq in the head although, as the sentencing judge noted, it is not clear from the video whether he connected with Mr. Rafiq’s head directly or whether the blow was blocked by Mr. Rafiq's hands.
[4] Ms. Litzen-Parson then approached Mr. Townsend and tried to strike him. Another bystander, Mr. Riley, stepped in to try and separate Mr. Townsend from Ms. Litzen-Parson. The sentencing judge continues the narrative:
[10] Ms. Litzen-Parson approached Mr. Townsend and tried to strike him. Mr. Riley stepped in and can be seen in the video trying to keep Ms. Litzen-Parson and Mr. Townsend away from each other. He is unsuccessful, and Mr. Townsend punches Ms. Litzen-Parson in the head with the result that she falls to the ground; and Mr. Townsend kicks Mr. Rafiq, who is still on the ground, in the midsection. Mr. Riley attempts to use his arm to keep Mr. Townsend from doing this, but without success.
[11] After the kick to Mr. Rafiq on the ground, Mr. Riley makes a further attempt to subdue Mr. Townsend by attempting to grab his arms from the back. Mr. Townsend responds by punching Mr. Riley in the head, dropping him to the ground.
[12] When Mr. Riley goes to the ground, Mr. Townsend goes with him, landing on top of Mr. Riley.
[13] Mr. Townsend is quickly able to get to his feet. Mr. Riley lies motionless and apparently unconscious on the street in front of a running car. Mr. Townsend forcefully and brutally stomps on Mr. Riley's head. He then turns and leaves the scene, leaving Mr. Riley unmoving on the ground.
[14] Mr. Townsend was highly intoxicated at the time of these events. Ms. Litzen-Parson was also intoxicated.
[6] At the time of sentencing, Mr. Townsend was 37 years old. He had served 235 days in custody and thus, calculating credit at 1:1.5 days, he was entitled to credit for 353 days – effectively a year.
[7] Mr. Townsend is of aboriginal heritage and had suffered some hardship in his life, including losing his mother at age 16, losing his sister and losing a number of close friends. He has a grade 12 education, a Class 1 driver’s certificate and a certification in carpentry and had a good work history.
[8] He also has a significant criminal record that includes other assaults (one of them aggravated assault), some drug offences, one theft, and one break and enter.
[9] The Crown sought a global sentence of between three and five years and asked that the sentence for each offence be served consecutively. The defence sought a sentence of between 12 and 18 months and sought concurrent sentences in respect of all three offences.
[10] The sentencing judge considered sections 718 to 718.2 of the Criminal Code, R.S.C. 1985, c. C-46, and observed that given Mr. Townsend’s current criminal history and the nature of the violence, the most significant objectives in this case were denunciation, general and specific deterrence, and “promoting a sense of responsibility and acknowledgement of the harm done to the community”. She noted that appellant's moral culpability was high, but that in accordance with cases such as R v. Gladue [1999] 1 S.C.R. 688, the systemic and background factors affecting aboriginal people and the impact on Mr. Townsend of his aboriginal heritage, were also relevant.
[11] At para. 33, the sentencing judge listed the aggravating factors – Mr. Townsend's criminal record; his training in mixed martial arts and boxing, which made his blows particularly effective; the fact he made “multiple attacks on three individuals, all strangers”; the fact he had continued kicking Mr. Rafiq while the latter was lying helpless on the ground; the fact the assault on Mr. Riley was unprovoked; and again the forceful ‘stomping’ on Mr. Riley's head while he was lying on the ground. The mitigating factors were that Mr. Townsend had entered a guilty plea, his good employment history and prospects for work in the future, the support he had from his community and family; his remorsefulness and willingness to compensate the victims for their losses, and the fact the offences were not pre-planned.
[12] The judge noted that many of the authorities counsel had cited to her involved young offenders or offenders with no or minimal criminal records. The remaining cases indicated a range of between nine months and two years for an assault causing bodily harm to a single victim.
[13] The Court found the case of R. v. E.J.A., 2005 BCSC 1353, to be most helpful. In that instance, the accused (age 35) had responded to a knife attack by the victim by striking the victim, causing him to fall to the ground, and then stomping on his head and kicking him in the face. The assault had serious consequences, including led to significant swelling and bruising to the victim’s face. The offender had a more significant record than Mr. Townsend but the number of convictions for violence was comparable to that of Mr. Townsend. E.J.A. received a sentence of two years, the Court noting how serious it is for “one man to stomp and kick another in the head when that other man is on the ground, clearly incapacitated, helpless and defenceless.” (Para. 39.)
[14] The trial judge in the case at bar then turned to the question of whether the sentences should be consecutive or concurrent. She noted that the test enunciated by this court in R v. G.P.W. (1998) 106 B.C.A.C. 239, was “whether the acts constituting the offence were part of a linked series of acts within a single endeavour”. (Para. 35). She stated that although the assaults on the three victims all took place in the same location and within a short period of time, that did not automatically lead to the conclusion that they constituted a “single endeavour”.
[15] She then found that the assault on Mr. Riley had been a distinct and separate offence from the other two assaults. In her analysis:
[42] … Mr. Riley, although nearby at the time of the initial altercation with Ms. Litzen-Parson and the initial assault on Mr. Rafiq, was not involved in those interactions. His first involvement came when he stepped in in an attempt to prevent Mr. Townsend from continuing his assault on Mr. Rafiq, who v/as on the ground, and to try to keep Mr. Townsend and Ms. Litzen-Parson away from one another. Even at this point, he was not involved in the altercation but was simply attempting, through his physical presence, to keep the peace.
[43] Mr. Townsend then escalated the situation by not only continuing his assaults against Mr. Rafiq and Ms. Litzen- Parson but then punching Mr. Riley in the head and knocking him to the ground.
[44] If the assault had stopped there, I might have been convinced that, at least in Mr. Townsend's mind, this was all part of the initial altercation, but it did not stop there. Mr. Townsend, who had fallen to the ground with Mr. Riley, got to his feet and viciously and gratuitously stomped on the head of Mr. Riley, who was lying unconscious in the street. In no way can this latter act be considered as part of a single endeavour with the assaults on Mr. Rafiq and Ms. Litzen- Parson. A consecutive sentence is warranted.
[16] On the other hand, she found that the assaults on Mr. Rafiq and Ms. Litzen- Parson did constitute a single endeavour such that the sentences for the two assaults should be concurrent to one another.
[17] In the result, she found that the appropriate sentences would have been:
Count 1 (assault on Mr. Rafiq) - 18 months, concurrent to Count 2
Count 2 (assault on Ms. Litzen-Parson) - six months
Count 3 (the assault on Mr. Riley) - 30 months, consecutive to the sentences on Counts 1 and 2.
These, she noted, would have resulted in a total sentence of 48 months. However, in consideration of the totality principle and in recognition of Mr. Townsend's aboriginal status and the need to balance denunciation and deterrence with rehabilitation, and taking into account the 353 days of credit to which Mr. Townsend was entitled, the sentencing judge imposed a global sentence of two years “new time”.
[18] As the Crown notes, we may infer that the “total punishment” or “effective sentence” was 36 months, less the one year credit for time served. Allocating the 36 months among the three sentences proportionately, the sentences before credit were effectively:
Count 1 - 13.5 months
Count 2-4.5 months (concurrent with Count 1)
Count 3 - 22.5 months (consecutive to Counts 1 and 2)
[20] I will deal first with the question of ‘consecutive versus concurrent’ sentences, since in my view this is the most important issue in this appeal. I begin by noting and endorsing the observation of Madam Justice Smith in R v. Li, 2009 BCCA 85, at para. 28:
Thus, there is a two-stage approach to sentencing an offender convicted of multiple offences. 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. See R. v. P.P.H., 2003 BCCA 591.
[21] Mr. Alteen submitted on behalf of the appellant that since all three assaults took place in the space of a few minutes and in the same location, they were “part of a linked series of acts within a single endeavor” within the meaning of G.P.W. He pointed out cases such as R. v. Arbuthnot, 2009 MBCA 106, where courts have treated robbery sprees as “sufficiently interconnected to form a criminal transaction” (para. 24), and suggests similar reasoning should apply here.
[22] For its part, the Crown emphasized that the degree of deference owed by an appellate court to the decision of a sentencing judge on a ‘consecutive versus concurrent’ question is comparable to the degree of deference owed to the length of sentence itself: see R v. McDonnell [1997] 1 S.C.R. 948 at para. 46. As well, counsel noted, the trial judge in this case had seen videotapes of all of the offences and was well placed to determine whether they should be regarded as constituting a “single endeavor”. I agree with the Crown on these points and note that there was a basis for distinguishing between the Counts 1 and 2 on one hand and Count 3 on the other. The assault on Mr. Riley took place when the other two victims had been knocked to the ground. Mr. Riley played a different role than the other two victims in that he grabbed Mr. Townsend from the back in an effort to stop the fighting and in particular, to stop Mr. Townsend from kicking Mr. Rafiq.
[23] In the circumstances, I am not persuaded the sentencing judge erred in law in deciding to make the sentence on Count 3 consecutive to the other counts. I also note the comments of Madam Justice Kirkpatrick for the majority of this Court in R. v. Maliki, 2005 BCCA 495. She observed that to treat the appellant’s criminal conduct in that case as a single event “would indeed allow him to commit crimes that would be, in the trial judge’s words, “cheaper by the dozen’”. (Para. 24.) Given the viciousness of the head-stomping carried out by Mr. Townsend on Mr. Riley, Kirkpatrick J.A.’s comment also resonates in this case.
[24] Mr. Alteen also argued that the sentence pronounced on Count 3 (which he at first treated as a sentence of 30 months rather than 22.5 months) was near the high end of the range for assaults of a similar kind. He submitted that in R v. E.J.A., 2005 BCSC 1353, cited by the sentencing judge, the circumstances were substantially more egregious than the circumstances of Mr. Townsend’s assault on Mr. Riley. In E.J.A., the assault was committed by a prison inmate on a prison official and the victim was “stomped” on the head to the point that his face became unrecognizable.
[25] Mr. Alteen referred us as well to R. v. Matonivich, 2007 BCCA 472, in which it was said that:
… it appears that a sentence of two years imprisonment for assault causing bodily harm is at the high end the range. Such sentences typically involve aggravating factors involving the use of a weapon, or are committed in the spousal context, or are committed by offenders with more serious records of violent assault. [At para. 16.]
In that case, the Court allowed an appeal from a sentence of two years’ imprisonment and substituted a sentence of 18 months. There is no doubt that the assault in that case was more egregious than this one: the victim was a frail man who suffered a “very, very serious beating” at the hands of an offender who had a very long criminal record and who had been on probation when the assault occurred. Unfortunately, the trial judge had proceeded on the basis that the victim’s hospitalization was an aggravating circumstance, when in fact there was no evidence that his hospitalization was the result of the assault. It appears that the sentence was reduced in order to reflect this error.
[26] The Crown referred us to cases in which the two-year ceiling, if such it be, was exceeded. In R v. Daykin, [1991] B.C.J. No. 423 (C.A.), a sentence of three years’ imprisonment was pronounced on an offender who had felt threatened by the victim coming towards him and knocked him to the ground. He then either kicked the victim in the head or stomped on his head. Writing in 1991, the Court dismissed the appeal as without merit. Other cases were referred to where sentences high as five years were imposed for vicious assaults similar to that suffered by Mr. Riley.
[27] Having considered all authorities cited by counsel, I am not persuaded that the effective sentence of 22.5 months imposed on Count 3 was outside the appropriate range.
[28] Finally, the appellant invokes the principle of totality, which must be considered at the second stage of sentencing described by Smith J.A. in Li, supra. The task here is to look at the sentence as a whole and ask whether it is unduly harsh or disproportionate and if so, arrive at an appropriate global sentence: see R. v. Barrick, 2012 BCCA 83, at para. 17.
[29] The defence contends that the sentencing judge “conflated’ the principle of totality with other factors referred to by the sentencing judge – the need to balance denunciation and deterrence, Mr. Townsend’s aboriginal status, and the amount of time already served. It is true the sentencing judge here did not proceed in the usual way, in that she reached a total sentence of 48 months after considering “the aggravating and mitigating factors, the submissions of the Crown and defence, the cases provided, and the applicable legal principles”. (See para. 47.) Normally, these principles would include the Gladue factor, if I may call it that, and the balancing of the sentencing objectives of denunciation, deterrence, and rehabilitation. Then, at the second stage, the usual practice would be to consider whether the sentences in the aggregate offend the totality principle. Instead, the sentencing judge stood back and referred in particular to Mr. Townsend's Aboriginal status and, denunciation, deterrence and rehabilitation, as well as the time spent by Mr. Townsend in custody pre-trial, to reach a global sentence of two years “new time”.
[30] The appeal, of course, is not from the sentencing judge’s reasons but from the sentence she pronounced. In my view, she did step back, referred to totality, considered that the 48 months was inappropriate, and made a significant adjustment. We are in a position to do the same, and viewing the sentence of 36 months total (prior to credit for the year served), I believe the principle of totality was adequately reflected in the final adjusted sentence.
[31] In the result, I would grant the appellant an extension of time for the filing of his notice of appeal, grant leave to appeal, and allow the appeal to the extent necessary to properly reflect that the effective sentences were as follows:
Count 1 - 13.5 months
Count 2 - 4.5 months (concurrent with Count 1)
Count 3 - 22.5 months (consecutive to Count 1)
less credit for the one year served. The one year is to be deducted from the 22.5 months on Count 3, so that the “net” sentence on Count 3 will be 10.5 months, consecutive to Counts 1 and 2.
[32] I would also direct that a new warrant of committal be prepared which will properly reflect the foregoing and properly describe the offences, so that the errors pointed out by Ms. Brown will be corrected.
[33] I thank both counsel for their able arguments in this appeal.
[34] SAUNDERS J.A.: I agree
[35] SAVAGE J.A.: I agree.
[36] NEWBURY J.A.: The appeal is allowed to the extent indicated.
“The Honourable Madam Justice Newbury”
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