IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20081103

Docket: X072030-2

Registry: New Westminster

Regina

v.

Jaininder Singh Dusanjh

Before: The Honourable Madam Justice Arnold-Bailey

Oral Reasons for Sentence

[1]             THE COURT: Mr. Dusanjh is before the Court this afternoon for sentencing in relation to Count 4 on the Indictment laid in court file 72030-2.  Count 4 is a charge that on or about the 3rd of April, 2008, at or near Surrey, in the Province of British Columbia, he did in committing an assault upon Jenny Dusanjh, use a weapon, to wit: a sword contrary to s. 267(a) of the Criminal Code.

[2]             Mr. Dusanjh entered a plea of guilty to that count on September 18, 2008 before Rice J. of this court and jurisdiction to sentence was transferred to me to sentence him today.

[3]             The circumstances of the offence have been outlined by Mr. Kinash for the Crown.  The Crown has pointed out that the manner of assault is as set out in s. 265(1)(b) of the Criminal Code and the definition reads:

265. (1) A person commits an assault when …

(b)        he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose;…

[4]             A preliminary inquiry was held in this matter and then defence counsel received instructions to enter a plea of guilty to Count 4, the assault with a weapon.

[5]             The following are the circumstances of the offence.  On April 3, 2008, the accused had been away from his home for several days.  He returned home.  His daughter, Jenny, who was the victim of the offence and who was 13 years old then and is 13 years old now, having just started grade 9, came home from school.  She took a shower, perhaps delayed somewhat in the washroom, aggravating her father, the accused.  She then went to spend some time on the computer.

[6]             Her mother and father had a discussion that became an argument about some minor renovations that the mother had hired a plumber to do.  The accused took issue with this as he was without steady employment at this time and apparently was involved in substance abuse.  He relied to some extent on his wife for money.

[7]             His wife, mother of the victim, went to join her daughter to watch a program on “Youtube,” as opposed to cooking dinner.  This caused the accused to become more irritated and he took to calling his wife insulting names.  Jenny took offence to the name calling and she engaged in an argument with her father.  The accused then asked Jenny to go and get his sword, which he had bought two weeks earlier.  Apparently, this was a sword that he had for protection from drug dealers.  It had originally been hung on a wall in the basement until Mrs. Dusanjh had taken it and hidden it.  In any event, Jenny and her mother got it and gave it to him at which point he ran at Jenny with the sword and swung it at her.  He swung it in her direction in a downward motion and it took a significant wooden chip out of the railing of the staircase in the family home, near to where she was standing.

[8]             The Crown put before the court a collection of photographs, as an exhibit, that show the sword as a very long, curved, ceremonial type of sword that was described by Jenny as being very sharp.  That seems to be borne out by the fact that when the accused swung it at the solid wooden railing that is shown in the fourth picture, the result was a sizable chip taken from the railing, which is more clear when one looks at the fifth picture, and indeed the sixth, which shows chips of wood form the railing on the floor.  That was what occurred when the accused swung the sword at Jenny on the first occasion.  She backed up.  Her mother was apparently still in the kitchen.

[9]             Her father swung the sword again in her general direction and hit the thermostat on the wall, which is also visible in a photograph.  The police found it on the floor and put it back in place on the wall and took a picture of it.  The picture shows that a big chip out of the lower right hand side of the thermostat casing is missing.  The final picture in the exhibit shows Jenny and her mother standing in the hallway and the height of Jenny's head and upper body being at approximately the same level as the thermostat that the accused swung the sword at, when he swung for it a second time.

[10]         The mother, according to the facts referred to by the Crown, came and pulled Jenny away and put her in her bedroom.  The accused sat with the sword in the living room and Jenny called 9-1-1.  Police attended and an officer saw the accused place the sword behind the couch.

[11]         Ultimately, the accused was handcuffed and advised of his s. 10(a) and (b) Charter rights and the police caution.  The officer who dealt with him did not notice an odour of alcohol on the accused's breath or consider him to be intoxicated, but observed him to be very agitated and somewhat belligerent.  Mr. Dusanjh was taken away by the police and photographs I have referred to were taken.

[12]         The position of the Crown in this case is that given the serious nature of the offence and the background as it relates to Mr. Dusanjh, most particularly his criminal record, a fit sentence is a total sentence of 30 months imprisonment.  The Court is asked to consider the seven months of time served to date, and to give the accused double credit for time served for a total of 14 months credit, and thus impose a further jail sentence in the range of 16 months.

[13]         The submission on behalf of the defence is that a sentence that reflects time served, in other words, equivalent to 14 months or a short further term of imprisonment is a fit sentence in all the circumstances.

[14]         The personal circumstances of Mr. Dusanjh have been outlined to the Court by his counsel and they are also set out in the Pre-Sentence Report.  I have read and considered the Pre-Sentence Report carefully.  I note that Mr. Dusanjh is presently 44 years of age.

[15]         The report speaks of previous incidents of domestic violence by Mr. Dusanjh in the home, and in fact that is to a large extent reflected in his criminal record.  In relation to the criminal record as set out at p. 3 of the Pre-Sentence Report, it was pointed out that it is actually not correct, and that the most recent convictions are the two counts of assault registered July 29, 2005 and that the sentence of one day and 18 months probation reflects three weeks time served and therefore is equivalent to a six week sentence.  The victim of those assaults was his wife.

[16]         Prior to that, Mr. Dusanjh has convictions for breach of probation, March 5, 2002; an assault, March 8, 2001; possession of a narcotic January 29, 1991; and an assault conviction May 1, 1986, for which he received a fine of $200 and nine months probation.

[17]         The pre-sentence report makes reference to his home circumstances at p. 2:

In 1991 he married Sukhjiven and lived in his parents' home until 2005 when he and Sukhjiven purchased their own home.  Their relationship has been volatile with two previous incidents of spousal assault in 2001 and 2004, [In fact there are three previous incidents of assault in 2001 and 2005] the latter resulting in a one year separation.  They have three children, Sonya, 16, Jenny 13, and Jessica, 11, who currently reside their mother.  Since the offence before the Court, the Subject has been in custody and has had no contact with his wife and daughters.  Mrs. Dusangh [sic] indicates that, due to the Subject's abusive behaviour over the past fifteen years, she is not considering reconciliation with him in the future and has begun divorce proceedings.  She requests that no contact conditions for her and her daughters continue after the sentencing.

[18]         The pre-sentence report also makes reference to Mr. Dusanjh’s past involvement with community supervision.  It states at p. 3:

He breached the Probation Order in 2001 by failing to report as directed but successfully completed the 18 month period of probation from 2005, attending the Substance Abuse Management Program and a Spousal Assault Program during that period.

[19]         The report continues as follows:

At the present time the Subject expresses willingness to comply with any conditions the Court will impose for the current offence, including substance abuse treatment and counselling.

[20]         The report concludes as follows:

The Subject acknowledges having had substance abuse problems since his mid-twenties but he has not sought out treatment or counselling in the past.  He attended counselling and Alcoholics Anonymous while in custody on remand he appears motivated to seek treatment at this time.

In the past, the Subject's response to supervision in the community has been varied, breaching one Probation Order and successfully completing another.

[21]         In my view, the criminal record in this case as it relates to the prior convictions of assault and breach of probation is a very aggravating feature of this sentencing.

[22]         The point has been made by Mr. Kinash, and it is well-founded in my view, that as the man before the court is 44 years old, he has had the benefit of living for a number of years and it cannot be said that he is young, immature and inexperienced.  He has had problems with continuing acts of violence in his family, having been before the courts convicted of same on a number of past occasions.  It is against this backdrop that his commission of this particular serious offence must be seen.

[23]         The Crown has directed the Court to several authorities that may be relevant and one is a decision of Romilly J. in R. v. Whitman, [2006] B.C.J. No. 1258.  It is factually different but deals with a number of aspects of sentencing relevant to the present offence.  He also directed me to a decision from the Alberta Provincial Court R. v. R.D., [1999] A.J. No. 215, relating to an assault with a weapon, to wit: a knife, against a spouse and also a guilty plea for an assault against a four-year-old son.

[24]         Mr. Kinash said that in his research it is difficult to find decided cases where there have been offences of assault with a weapon perpetrated against the offender's children.

[25]         Counsel for the accused, Mr. Sicotte, has also provided the court with a number of authorities and those authorities are: R. v. Bjurstrom (1993), 135 N.B.R. (2d) 161; R. v. Mohammed, [2001] O.J. No. 5653; R. v. Chan, [2002] B.C.J. No. 604; R. v. McLetchie, [1999] O.J. No. 3086; R. v. King (1996), 107 C.C.C. (3d) 542, a decision of the Appeal Division of the Prince Edward Island Supreme Court.

[26]         For completeness, the cites of the cases referred to by the Crown:  the decision of Romilly J. in Whitman, and the decision of R.D..

[27]         Before turning to the relevant purpose and principles of sentencing within the context of this particular case, I wish to address the submissions made on behalf of Mr. Dusanjh directed at his conduct, his guilty plea, the courses that he has taken, and the positive letters of reference that have been marked as Exhibit 3.

[28]         In this case, I do accept that the guilty plea is mitigating.  It is clear that after the preliminary inquiry the accused moved quickly to enter a plea of guilty to Count 4 on the Indictment, and he is entitled to have the Court take that into account.

[29]         I also note that while in jail he has taken several courses aimed at addressing some of his problems, a violence prevention program, and the “Breaking Barriers” program.  He has provided letters commending his work ethic.

[30]         As well, Mr. Dusanjh has, through his counsel, attempted to explain his conduct somewhat by saying that he was trying simply to scare his daughter and that there had been a history in this family of verbal, and I would add psychological abuse, such that dissention and argument, harsh words, swearing, and name calling were not uncommon in his home.  It was in the context that the accused lost control and when Jenny spoke back to him and he took an escalating step by going after her with his sword, apparently just to try to scare her and reassert his position of dominance and control within the family.

[31]         In my respectful view what has to be said about that explanation is that it is highly unlikely that he was so in control that he was not taking an incredible risk as he swung that large, sharp sword. which quite frankly would be a rather terrifying weapon for anyone to have swung at them.  Therefore, I reject the submission that he was in control when he swung the sword, and that he was just trying to scare his daughter.

[32]         It was also pointed out to the court that if Mr. Dusanjh really wanted to do his daughter harm he could have followed her around the staircase and really delivered a blow to her with the sword.  That did not happen for whatever reason, but in my view this accused has a history of violence within the home and an acute substance abuse problem.  Whether he was intoxicated at that moment or not, I find that he was not in control.  These are not actions of someone in control.  In that regard, the court was referred to the decision of R. v. Johnson which is quoted at ¶31 of Whitman:

[31]      In R. v. Johnson (1996), 112 C.C.C. (3d) 225 (B.C.C.A.) Ryan J.A. commented on this quoted passage from C.A.M. at para. 33:

It is clear from this passage that a determination of moral culpability, for purposes of sentencing, includes an examination of the intentional risks taken by the offender, the harm he or she has caused, and the degree of deviation from acceptable standards of behaviour the conduct represents.

[33]         Bearing that passage in mind and turning to s. 718 of the Criminal Code, I am of the view that in this case there is a pressing need to denounce this kind of unlawful conduct.  At a minimum, it represents a very significant, intentional risk of harm by this accused in a situation that was likely to be terrifying to the victim.  It was conduct resorted to by a man who felt his authority within the home was being challenged, and so he simply escalated the level of threatened violence.

[34]         In terms of deterring this offender and other persons from committing offences, in my view it is obvious that there is a very real need to deter anyone in any type of situation from similar conduct, but most particularly, there is a pressing need to deter any family member involved in a domestic argument either with a child or with a spouse or both, from engaging in this kind of conduct.

[35]         In terms of separating offenders from society, I note that Mr. Dusanjh has already been in prison for seven months.  I take that into account in sentencing him, but in my respectful view a further term of incarceration is necessary in this case.

[36]         In terms of rehabilitation, I note that Mr. Dusanjh is 44 years old.  He has been doing well in prison.  He has expressed remorse for his conduct in court.  He appreciates he has lost his family, but I note there were many warning signs along the way, based on his prior conduct as reflected in his criminal record.  So in terms of his rehabilitation, will he rehabilitate himself now and not engage in this kind of behaviour in the future?  I cannot say.

[37]         As for reparation for harm done, there has been very real harm done to this family and also to the community.  These kinds of offences have repercussions beyond their immediate consequences.  Seven months after the fact Jenny is expressing to Crown counsel real fear in relation to her father.  When one looks at the circumstances of the offence and the nature of the weapon involved and considers what actually occurred, one can understand why.

[38]         Similarly, in my view, to promote a sense of responsibility in offenders and acknowledgement for harm done, in this case requires a sentence of further incarceration.

[39]         In terms of the proportionality principle set out in s. 718.1 of the Criminal Code, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.  In my view, this is a very grave offence and this offender was responsible for his conduct.  He had the benefit of prior courses and supervision in the community, prior probation, and he clearly knew that his conduct was wrong.  He still embarked on this course of conduct, which was very risky and dangerous, to further his authority within the home.

[40]         Several other sentencing principles are relevant.  First, it is aggravating that the victim of this offence is his own 13-year-old daughter; and therefore it is aggravating that he abused a person under the age of 18 years.  Secondly, it is obvious that he was in a position of trust and authority over her as her father and the offence happened in her own home, a place where she might at a minimum reasonably expect to be physically safe.

[41]         I am also mindful that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances.  A lengthy term of imprisonment is a harsh sentence and I appreciate that.  I am also mindful of the fact 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.  In this case in my respectful view there are no other reasonable alternatives.

[42]         Therefore, having considered the circumstances of the offence, the circumstances of the offender, the range of sentences that have been put before the court in the cases that are somewhat similar, and taking into account the purpose and principles of sentencing as I have referred to them, as well the mitigating and aggravating factors as I have identified them, I am of the view that a fit sentence in this case is a further period of incarceration of 16 months in jail.

[43]         I also follow that sentence with a probation order for a period of two years, with several terms in addition to the statutory terms.  The first is that the accused is to have no contact directly or indirectly with Sukhjiven Dusanjh, Sonja Dusanjh, Jessica Dusanjh, or Jenny Dusanjh.  Sir, that term is in force unless and until there is an application to the court to change it, which depending on the circumstances may be appropriate, but for now, no contact directly or indirectly for a period of two years, except you are permitted to have indirect contact with your wife, Sukhjiven Dusanjh, through legal counsel.

[44]         It is also a term of the probation order that Mr. Dusanjh is not permitted to possess any weapons as defined by the Criminal Code, including any knives, except while preparing or consuming food or while pursuing employment.

[45]         As well, there is a ten-year firearms prohibition pursuant to s. 109 of the Criminal Code and pursuant to s. 109(1)(a) Mr. Dusanjh is hereby prohibited from possessing any of the following for a ten-year period after his release from imprisonment in relation to the sentence just imposed.  I prohibit him from possessing any firearm, other than any prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition or explosive substance for a period of ten years that begins upon his release from imprisonment, and from possessing any prohibited firearms, restricted firearms, prohibited weapons, prohibited devices, and prohibited ammunition for life.

[46]         I make an order pursuant to s. 419.1(1)(a) of the Criminal Code forfeiting the sword.

[47]         I decline to impose a victim fine surcharge in relation to this matter.

[48]         In terms of s. 487.05, as an offence contrary to s. 267 of the Criminal Code, assault with a weapon is a primary designated offence, I order a sample of Mr. Dusanjh’s DNA to be taken while he is in custody in a manner that accords with the law.

[49]         In terms of the probation order, sir, I am obliged to tell you that if you are convicted of breach of probation, that means if you are found beyond a reasonable doubt to have failed to comply with any of the probationary terms, that you may be charged and convicted of breach of probation which is a criminal offence.

[50]         I believe that that is everything.  Have I forgotten anything, Mr. Kinash?

[51]         MR. KINASH: No, thank you, My Lady.

[52]         THE COURT: Thank you.  Counts 1, 2 and 3 are --

[53]         MR. KINASH: I direct a stay of proceedings on those.

[54]         THE COURT: Thank you.

“Arnold-Bailey J.”