COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Samuelson,

2015 BCCA 29

Date:  20150126

Docket: CA041956

Between:

Regina

Respondent

And

Anthony Leonard
Donald Samuelson

Appellant

Before:

The Honourable Madam Justice Kirkpatrick

The Honourable Madam Justice Garson

The Honourable Madam Justice MacKenzie

On appeal from:  An
order of the Provincial Court of British Columbia, dated December 12, 2013 (
R.
v. Samuelson
, Penticton Registry File Number 41107).

Counsel for the Appellant:

M.F. Welsh

Counsel for the Respondent:

M.A. Street

Place and Date of Hearing:

Vancouver, British
  Columbia

January 8, 2015

Place and Date of Judgment:

Vancouver, British
  Columbia

January 26, 2015

Written Reasons by:

The Honourable Madam Justice Kirkpatrick

Concurred in by:

The Honourable Madam Justice Garson

The Honourable Madam Justice MacKenzie

Summary:

Application for leave to
appeal and an appeal from a sentence of two years less a day followed by three
years probation for an aggravated assault. Following a provocative and
aggressive exchange, the offender attacked the victim with a makeshift weapon,
which was a rock placed in a sock and swung like a sling. The sentencing judge
found that the assault was severe and premeditated. Held: Appeal dismissed. The
sentence was not demonstrably unfit and the sentencing judge did not commit an
error in principle, fail to consider a relevant factor, or overemphasize a
relevant factor.

Reasons for Judgment of the Honourable
Madam Justice Kirkpatrick:

[1]

At close of submissions on this appeal, we dismissed the appeal with
reasons to follow. These are those reasons.

[2]

Anthony Leonard Donald Samuelson seeks leave to appeal, and if leave is
granted, appeals from the sentences imposed on May 6, 2014 of two years less a
day followed by three years probation following his conviction for aggravated
assault, contrary to s. 268(2) of the
Criminal Code
, R.S.C., 1985
c. C-46 and assault with a weapon (a rock contained in a sock), contrary
to s. 267(a) of the
Code
.

[3]

Mr. Samuelson does not appeal the ancillary orders prohibiting him
from possessing firearms and weapons, and requiring him to provide a DNA
sample. He also does not contest the sentences imposed on matters to which he
pleaded guilty: mischief to property owned by the RCMP (telephones) and three
breaches of his recognizance, all of which were committed while he was on bail
on these charges.

[4]

Mr. Samuelson submits the sentences imposed offend the principles
of proportionality, parity, and restraint. He asks this Court to vary the
sentence and impose a three year suspended sentence with probation or,
alternatively, a reduction of the jail term imposed in the trial court. A
conditional sentence order is not an available sanction by operation of
s. 741(e)(i) of the
Code
.

CIRCUMSTANCES OF THE
OFFENCE

[5]

On the evening of September 7, 2012, Michael Ricciardi and five friends
were walking to a local pub in Penticton, B.C. after drinking at a residence.
Each member of Mr. Ricciardis group, with the exception of Dave Jevons,
had consumed five to six beers and considered themselves to be intoxicated.

[6]

As the group neared the local art gallery on route to the pub, they
heard Mr. Samuelson yelling aggressively. Although they could not
understand what he was saying, the group interpreted Mr. Samuelsons words
as of a fighting, provocative nature. One member of Mr. Ricciardis
group heard Mr. Samuelson call them pussies and faggots and another heard
him say Lets fucking go.

[7]

Mr. Ricciardis group exchanged unpleasantries with Mr. Samuelson
as they continued toward the pub. No one in the group expressed any intention
to fight with Mr. Samuelson.

[8]

Mr. Samuelson was described as appearing as though he wanted to
fight
−
he was
standing in a fighting stance with his hands in the low-ready position and
bouncing on his feet like a boxer.

[9]

The judge described the assault as follows:

[12]      Mr. Ricciardi and the accused stood face to
face. Mr. Ricciardi stepped towards the accused. He did not make any
threatening motions. At most, he shrugged his shoulders up and opened his palms
face up when he asked the accused what his problem was. The two did exchange unpleasantries.
At one point, Mr. Ricciardi suggested that Mr. Samuelson ought to
return to Alberta where he came from. The tone coming from both men was
aggressive in nature.

[13]      Mr. Ricciardi testified that the accused then
turned, walked away, and picked up a weapon, charged, and then struck him with
it. Again, I preferred the evidence of the others that Mr. Samuelson had the
weapon in his hands the whole time and did not back away to pick it up.

[14]      It is important to note that not only had Mr. Ricciardi
been drinking, but he had also sustained a severe blow to his head within
seconds of the observations he testified about.

[15]      After the blow, the accused turned and ran. Members
of Mr. Ricciardis group gave chase. Mr. Jevons said that Mr. Samuelson
was laughing as he ran. Mr. Samuelson was calling out for assistance from
others in the area.

[16]      Eventually the group
was able to tackle him. There was a
brief struggle on the
ground and Mr. Samuelson then apologized. Others began to approach, and
the members of Ricciardis group felt it too unsafe and left.

[10]

The weapon referred to by the judge was a rock placed in a sock and swung
like a sling. Mr. Ricciardi sustained a serious head wound that resulted
in a permanent, visible scar. He missed a week of work due to his injuries.

[11]

At the time of sentencing, Mr. Ricciardi continued to suffer from
concussion symptoms, as well as anxiety, paranoia and anger. He takes
prescription medication for his anxiety. He rarely leaves his house, which has
affected his family and social relationships.

CIRCUMSTANCES OF THE
OFFENDER

[12]

The judge had the benefit of a pre-sentence report with a psychological
component. Mr. Samuelson reported having an unstable childhood where he
moved between the homes of his separated parents. His father was verbally,
emotionally, and physically abusive toward him. His mother was drug-addicted
and neglectful. She died from a drug overdose before the sentencing hearing.

[13]

Mr. Samuelson described himself as rebellious and poorly behaved in
school. He was expelled from school in Grade 8 because of his disruptive
behaviour in the classroom and from an alternative school in Grade 10. He had a
sporadic employment history. He had no income at the time of sentencing.

[14]

It appears that the source of Mr. Samuelsons difficulties can be
traced to an early history of excessive consumption of alcohol beginning when
he was 13 or 14 years old. He also used marihuana. Prior to the offence, Mr. Samuelson
was consuming alcohol and marihuana daily. He consumed ecstasy and cocaine
bi-weekly.

[15]

At the time of the pre-sentence report, Mr. Samuelson claimed to be
abstaining from all substances. He also claimed to have completed an intake at
an addiction resource centre and that he had an appointment with a counsellor,
neither of which was confirmed by the centre.

[16]

Mr. Samuelson was seen by a psychiatrist, Dr. Agbodo in
February 2012. Dr. Agbodo diagnosed him as having an impulse control
disorder and prescribed carbamazepine. Mr. Samuelson failed to attend a
follow-up visit although he says he continues to take the medication and that
he finds the medication beneficial.

[17]

In a similar vein, Mr. Samuelson failed to follow instructions from
his general practitioner to attend for blood work with drug screening and for
specialist appointments, ultimately prompting the termination of his treatment.

[18]

The psychiatric report of Dr. Meldrum was filed at the sentencing
hearing. Dr. Meldrum considered that Mr. Samuelson had some insight
into his difficulties but did however seem somewhat naïve with respect to his
ability to maintain abstinence over the longer term without formalized
treatment.

[19]

Mr. Samuelsons risk factors were described by Dr. Meldrum in
part as follows:

There are factors in Mr. Samuelsons
history that will increase his risk of violence compared to an individual
without such a history. This includes Mr. Samuelsons current convictions
for violent offences. This was an act of serious violence which increases the
risk of future violence. Additionally Mr. Samuelson was 18 years old at
the time of his arrest and his young age statistically increases his risk.
Other historical risk factors that are pertinent to predicting an increased risk
of violence is Mr. Samuelsons history of substance misuse, early
developmental trauma and maladjustment and a possible mental illness, which
could be bipolar disorder, attention deficit disorder or an impulse control
disorder. Mr. Samuelson also has a history of early maladjustment and has
a history of a breach charge both of which statistically increase his risk
compared to an individual without these factors.

REASONS FOR SENTENCE

[20]

The judge reviewed the foregoing background in his comprehensive reasons
for sentence. He concluded that the assault was serious and pre-meditated:

[19]      Mr. Samuelson
removed one of his socks and placed a rock in it to act much like a slingshot.
The nature of the weapon would have required some thinking and forethought on
his part. It is not the same as simply picking up a stick or a rock. I am also
satisfied that it was his intention to use it with the element of surprise when
the group was near him. It was not a mere reaction on his part to what he says
he perceived to be a threatening situation. The fact that he ran away laughing
supports my belief. The evidence does not support the notion that the blow
occurred in the course of a consensual fight or that Mr. Samuelson could
have been mistaken in his belief that Mr. Ricciardi was a willing
participant.

[21]

The judge reviewed the aggravating circumstances which he identified as:

(a)

the nature and permanence of Mr. Ricciardis injuries;

(b)

the fact that Mr. Samuelson purposely lured Mr. Ricciardi to
the location and went to the effort to fashion a weapon from a rock and a sock;

(c)

the absence of provocation;

(d)

the nature of the weapon which the judge found could have only one
purpose
−
to cause
death or serious bodily harm;

(e)

the lack of insight into the crime as evidenced by his belief that he
was acting in self-defence; and

(f)

Mr. Samuelsons post-offence attitude exhibited by non-compliance
while on bail which demonstrate challenges for the system in effecting future
rehabilitation and diminishes the prospects that he would be able to comply
with a community-based sentence.

[22]

The mitigating circumstances were found by the judge to include Mr. Samuelsons
very difficult upbringing; his relative youth
−
he was 18 at the time of the offence and 20 years old at the time of
sentencing; and the absence of a criminal record.

[23]

The judge had particular regard to the objective circumstances of the
assault. He referred to this Courts decisions in
R. v. Craig
, 2005 BCCA
484 and
R. v. Johnson
(1998), 131 C.C.C. (3d) 274 (B.C.C.A.).

[24]

In
Craig
, the Court described the range of sentence for the
commission of aggravated assault as follows:

[10]      It is not disputed, and
it appears clear on the cases, that a sentence of two years imprisonment for
the commission of aggravated assault (which is the sentence that was
effectively imposed by the judge) is at the low end of the range of sentences
imposed on similar offenders in similar circumstances (
R. v. Chana
(1998), 115 B.C.A.C. 159, [1998] B.C.J. No. 2458 (Q.L.) (C.A.) at para. 6).
The range of sentence for similar offences was described as being between 16
months and six years in
R. v. Johnson
(1998), 131 C.C.C. (3d) 274
(B.C.C.A.), two years less a day to six years in
R. v. Biln
, 1999 BCCA
369, and, most recently, between 18 months and six years in
R. v. Willier
,
2005 BCCA 404. In determining an appropriate sentence within this broad range,
an unprovoked attack with a weapon tends to result in the imposition of a
sentence at the higher end while a consensual fight that has escalated with
resulting injury tends to result in a sentence at the lower end. See in
particular:
R. v. Willier
, at para. 22, and
R. v. Johnson
,
at para. 10.

[25]

At the outset, it is important to emphasize that
sentencing is an individualized process, as the Supreme Court of Canada
recently explained in
R. v. Pham
, 2013 SCC 15 at para. 8.
The
potential of a person to rehabilitate is an important factor to consider in
crafting such an individualized sentence. Assessing the potential of a particular
offender to rehabilitate is a fact that is within the purview of the sentencing
judge:
R. v. C.A.M.
, [1996] 1.
S.C.R. 500 at para. 82. Even if the manner and the type of the offence is
similar, and even where some background circumstances of the offender (e.g.,
age or criminal record) are partly analogous, the underlying potential of the
offender to be rehabilitated may indicate the need for a more (or less) severe
sentence.

[26]

At sentencing, the Crown sought a sentence of three to four years
imprisonment. The defence advocated a suspended sentence, relying on
R. v.
Nakamura
, 2012 BCSC 327;
R. v. Nicholls
, 2013 BCSC 1145; and
R.
v. Powell
(1994), 134 N.S.R. (2d) 236 (N.S.C.A.), all of which imposed
suspended sentences. The judge conceded that the defendants cases were somewhat
difficult to distinguish.

[27]

With respect, those cases were clearly distinguishable.
Nakamura
concerned
two youthful offenders who had shown sincere remorse for their actions and who
had positive pre-sentence reports. Mr. Samuelson, while also a youthful
offender, and who accepted responsibility for the conviction for assault with a
weapon, was unable to accept the aggravated nature of the assault. He committed
three breaches of his bail and committed another offence while awaiting trial.

[28]

Nicholls
concerned an Aboriginal offender who was 21 years old at
the time of the offence. The sentencing judge was impressed by Nicholls
behaviour following the offence, including complete compliance with bail
conditions. Mr. Samuelson has demonstrated obvious difficulty complying
with bail conditions, which calls into question the extent of his potential
rehabilitation if he were to receive a suspended sentence.

[29]

In
Powell,
the Nova Scotia Court of
Appeal upheld a suspended sentence for a conviction for aggravated assault. On
appeal, the Crown conceded that the injuries sustained by the victim were more
akin to one causing bodily harm than aggravated assault. The sentencing judge,
with due regard to the offenders circumstances and the nature of his offence,
concluded that incarceration would not have been the most appropriate
sentencing given his underlying potential for rehabilitation. As the Court of
Appeal explains, it was within the sentencing judges discretion to conclude
that the suspended sentence was the best hope for [his] reformation and
rehabilitation which might bring a positive change in his life.

[30]

Ultimately, the judge in the case at bar was moved to impose a custodial
sentence. He reasoned:

[48]       However, a suspended sentence is primarily a
rehabilitative tool. Where the offence is serious, such as this, and
denunciation and deterrence are the primary objectives, the fact that
conditional sentences are no longer an option ought to point the court in the
direction of a custodial sentence and not probation.

[49]
Our Court of Appeal has commented
previously that when Parliament closed the door on conditional sentences for
certain offences like aggravated assault, it did not open the door to reducing
sentences below the usual range to avoid Parliaments clear intention.

[50]      In my opinion, despite your age
and the challenges you have faced over the years, the objectives, purposes, and
principles of sentencing cannot be adequately satisfied with the imposition of
a probation order.

[51]      I appreciate that you have had a
very difficult upbringing and you have not had much guidance with respect to
formulating a proper moral compass. The crime that you have committed is indeed
a horrible crime and warrants a period of incarceration.

[52]      I thought very carefully about
sending you to the penitentiary and acceding to the lower end of the range
submitted by Crown counsel. However, given your age and other challenges, I am
concerned that you will come out worse than you are now. Keeping your sentence
in the provincial range will also allow me and permit me to place you on
probation for three years. If I were to impose a federal sentence, I would not
have that option. It gives me the peace of mind that I can place you on
restrictions not to consume alcohol or drugs, and that you will have to follow
through with treatment and counselling when you are ultimately released from
jail.

[53]      Having
considered all of the factors, I have concluded that a fair and fit sentence to
pass upon you is, with respect to 41107, Count Number 1, two years less one
day, and I am placing you on probation for a period of three years following
that sentence.

ON APPEAL

[31]

Mr. Samuelson contends the sentences imposed are proportionally
excessive, contrary to s. 718.1; offend the principles of parity,
contrary to s. 718.2(b), and restraint, contrary to s. 718.2(d); and
did not adequately consider other available sanctions, contrary to s. 718.2(e).

PROPORTIONALITY

[32]

In my opinion, Mr. Samuelsons argument that the judge failed to
have adequate regard to the gravity of the offence and the degree of
responsibility of the offender has no merit. It is abundantly clear from the
judges thorough examination of the circumstances of the offence and Mr. Samuelsons
individual circumstances that the judge more than adequately fulfilled his
obligation under s. 718.1 to fashion a sentence that balanced the
statutory factors.

[33]

Mr. Samuelson emphasizes his personal circumstances
−
his youthfulness, his
troubled childhood, potential mental illness, addiction issues, suicide
attempts, and absence of a criminal record. However, it is clear the judge had
specific regard to all of these circumstances.

[34]

In addition to the cases relied upon at the sentencing hearing to which
I have above referred, Mr. Samuelson also placed some emphasis on the
decision of this Court in
R. v. Koop
, 2008 BCCA 140, in which this Court
substituted a sentence of two years less a day following guilty pleas to two
counts of robbery with a conditional sentence order of two years less a day.

[35]

It is important to note that in
Koop
the Crown conceded that the
sentencing judge failed to give sufficient weight to the factor of
rehabilitation (at para. 13). That concession essentially invited intervention
by this Court which found the first time youthful offenders to have taken
positive steps toward rehabilitation. Unfortunately, the same cannot be said of
Mr. Samuelson.

[36]

In my opinion, in considering the totality of Mr. Samuelsons
circumstances, including his potential for rehabilitation, the sentencing judge
impliedly distinguished the cases cited by the appellant, notwithstanding his
apparent concession that they were
somewhat
difficult to distinguish (emphasis
added). Given that the cases are clearly distinguishable, the sentencing judge
did not err in principle by declining to impose a suspended sentence.

[37]

In this case, as he was obliged to do, the judge balanced Mr. Samuelsons
circumstances with the gravity of the offence which, by any measure, was
extremely serious.

PARITY

[38]

Accepting that ranges of sentence are merely guidelines (see e.g.,
R.
v. Nasogaluak
, 2010 SCC 6 at para. 44), it cannot be fairly said that
this sentence, which falls at the lower end of the range, is unfit. It was a
serious assault with a potentially lethal weapon in circumstances in which Mr. Samuelson
lured his victim, evidently in order to inflict harm.

[39]

Furthermore, at the hearing of the appeal, counsel for Mr. Samuelson
conceded that the sentences imposed were not a marked and substantial departure
from sentences imposed on similarly situated offenders for similar offences.
That concession signals that the sentences cannot be said to be unfit.

RESTRAINT

[40]

The judge specifically considered alternatives to jail for Mr. Samuelson
(at para. 47). The alternative proposed was a suspended sentence which, as
the judge correctly noted, is primarily a rehabilitative tool.

[41]

The judge rejected the Crowns contended three to four year sentence,
and crafted a sentence that would permit Mr. Samuelson to be placed on
probation for three years in recognition of his fundamental need for
supervision and treatment.

[42]

The need for continued supervision and treatment was amply demonstrated
by Mr. Samuelsons misconduct while on bail and the psychiatric evidence
before the court. There was simply insufficient evidence before the court that
could offer any comfort that a suspended sentence, with the strict conditions
that would necessarily have had to be put in place, would be successful.

SUMMARY

[43]

In my opinion, Mr. Samuelson has failed to demonstrate that the
judge committed an error in principle, or failed to consider a relevant factor,
or overemphasized a relevant factor. The sentences were not demonstrably unfit.

[44]

I would grant leave to appeal but dismiss the appeal.

The
Honourable Madam Justice Kirkpatrick

I AGREE:

The Honourable Madam Justice
Garson

I AGREE:

The Honourable Madam Justice
MacKenzie