ALBERTA COURT OF APPEAL INCREASES SENTENCE, CALLS ATTACK "ABHORRENT"

The Alberta Court of Appeal has reversed a conditional discharge granted to an attacker who participated in the beating of a relative to attempt to force her to marry someone selected by her family. The Court imposed a 90 day jail sentence instead and entered a conviction, calling the attack "abhorrent". The Court rejected  the arguments of the respondent, who relied on the recent Supreme Court of Canada decision in Pham to avoid the danger of deportation. The Court's strong language sends a strong message to those who commit family violence under the guise of "cultural norms" or "customs" and warns that they will not get a sympathetic treatment from the courts.

R. v. Bandesha

Between
Her Majesty the Queen, Appellant, and
Balsher Singh Bandesha, Respondent

[2013] A.J. No. 800

2013 ABCA 255

Docket: 1301-0052-A

Registry: Calgary

 Alberta Court of Appeal
Calgary, Alberta

J.E.L. Côté, P.A. Rowbotham and J.D.B. McDonald JJ.A.

Heard: July 2, 2013.
Oral judgment: July 2, 2013.
Filed: August 6, 2013.

(26 paras.)

Appeal From:

Appeal from the Sentence by The Honourable Madam Justice M.C. Erb Dated the 8th day of February, 2013 (Docket: 100268804Q1).

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Memorandum of Judgment
 Delivered from the Bench

The judgment of the Court was delivered by

1     J.E.L. CôTÉ J.A. (orally):-- The Crown appeals from a conditional discharge given for assault causing bodily harm. The respondent was one member of a four-person group who attacked, pushed, kicked and beat a family member, also pulling out a large clump of her hair by the roots. She was kicked in the stomach when lying on the floor. She was an adult. The group did this to coerce her to marry someone whom she did not want to marry, and not to marry someone whom she did wish to marry. The attack occurred in the victim's own home, where the ringleader also lived, and where the respondent was visiting. She left her home and stayed in a women's shelter for about three weeks.

2     The respondent is 35 years old (32 at the time) and owns and operates his own long-distance truck. He has no record. The victim is his first cousin. The instigator of this crime (the victim's uncle and the father of the respondent), saw himself as the head of the family, with dictatorial powers over the victim. He also controlled her finances and employment. The three cousins of the victim had no hesitation in joining their father in this vicious group attack.

3     One factor which the sentencing reasons mentioned in imposing only a discharge was to avoid any danger of deportation, and to avoid any difficulty in crossing the American border. The respondent had been a permanent resident of Canada for 10 years, but was not a citizen. Mere conviction of this crime could lead to deportation, so evidently the idea was to avoid any conviction or record, so that the Canadian and American governments would not know about this crime. Counsel for the respondent speculates that this immigration factor may not have been critical, as one co-accused who got a similar discharge was a Canadian citizen. But the sentencing judge did not draw such a distinction.

4     The respondent was sentenced a month before the Supreme Court of Canada's governing reasons in R. v. Pham, 2013 SCC 15, and the reasons for sentencing here do not adequately reflect the rules which that Pham case later laid down.

5     The Pham reasons emphasize the critical nature of proportionality (which I will discuss shortly) and the basic purposes of sentencing (paras 7, 10). That simply elaborates on the "fundamental principle" of sentencing, in s 718.1 of the Criminal Code.

6     Some personal circumstances of the offender, such as possible deportation, can be taken into account, though they are neither mitigation nor aggravation: R. v. Pham. But such circumstances do not overrule proportionality, and every sentence must fit the crime and the offender. Immigration consequences cannot make the sentence disproportionate to the gravity of the offence or the degree of the offender's responsibility (Pham, para 14). The will of Parliament as to deportation must not be circumvented by inappropriate and artificial sentences, still less by a separate sentencing régime (Pham, paras 15, 16).

7     One cannot even leave the total sentence intact and rearrange its interior divisions below what would individually be fit sentences, to prevent deportation (Pham, para 17). But a small adjustment of sentence, such as changing two years to two years less a day, is permissible to avoid deportation, though it is not compulsory (paras 15, 16, 18, 19, 21, 23).

8     A conditional discharge means that no conviction is entered and no criminal record is created. It differs in kind from all other sentences. The difference between discharge and a conviction is significant, and the difference between that and a conviction with a short jail sentence is even greater.

9     Therefore, if some jail would otherwise be a fit proportionate sentence here, we cannot see how immigration consequences could lead to any kind of discharge. That is not consistent with the Pham decision. The cases cited, including the Pham decision, involve trimming a few days (or weeks) off a fit sentence, for immigration reasons. We have not seen any precedent for adopting a completely different type of sentence for immigration purposes.

10     Therefore, immigration or deportation consequences cannot have much, if any, proper weight here. So the real question is whether the conditional discharge was a fit sentence apart from that.

11     Proportionality is vital to sentencing: Pham at para 7; R. v. Arcand, 2010 ABCA 363, 499 AR 1 (paras 45-65). Assault causing bodily harm is a serious crime. The maximum sentence is 10 years as this was prosecuted by indictment.

12     There was nothing technical or minor about this assault, nor about the respondent's role. He took full part in the physical attacks, and was a big strong man in the prime of life. The assault was his father's idea, but the respondent took part willingly. The father imposed no duress or coercion on him. The duress and coercion were on the victim. The sentencing reasons' statement that the respondent was his father's "pawn" is ambiguous. He was not the instigator, but he knew what he was doing, and why he was doing it, and readily and willingly did it. Each member of the group knew he or she was advancing the group objectives and encouraging the other members, and so is liable for the consequences: R. v. EBC, 2005 ABCA 61, 363 AR 111 (para 9). Cf R. v. Hennessey and Cheeseman, 2010 ABCA 274, 490 AR 35, lv den (2011) 426 NR 400 (SCC).

13     In some cultures, women are not free to choose or reject a prospective spouse. That sort of coercion is abhorrent to Canadian society, and physical beatings to enforce such coercion are doubly abhorrent. When a competing set of cultural values lead to such illegal physical coercion in Canada, denunciation is necessary. The Code codifies sentencing, and begins with that: to maintain a just peaceful and safe society by denouncing unlawful conduct (s 718(a)). It is impossible to denounce by preventing any criminal conviction or record from existing or being recorded.

14     The decision in R. v. MacFarlane (1976) 55 AR 222 (CA) may also bar this sentence, but we need not base our decision on that.

15     The sentencing reasons made errors in principle. They did not properly apply the principles in Pham, and failed to consider denunciation. Proportionality got little or no weight, and the sentence is unfit. Therefore, we must sentence afresh.

16     Given what we have said above, it is impossible to sustain a conditional discharge here.

17     Random brief violence, spurred by a hot temper or intoxication, or some insult or frustration, is bad enough. But violence of some length committed to extort something is worse. And violence of some length deliberately employed to obtain sustained dominance and power over someone else is still worse. It becomes far worse yet where the object is something as personal and lasting as a coerced marriage. The maximum sentence for extortion is life imprisonment.

18     Assaults range a great deal in seriousness, because of a number of varying factors. So proportionality dictates that their sentences vary.

19     One important aspect of that seriousness is how many people take part. Most assaults are by a single person. However, where they are by a group, the assault is more serious. For example, a series of concerted individual assaults: R. v. Liron and MacIntyre (1992) 135 AR 166 (CA). The present case was worse, as it was a concerted simultaneous assault by four people. So that calls for a higher sentence. (On group cooperation in a crime cf R. v. Hennessey, supra.)

20     The rationale for all this is explained well in Ashworth, Sentencing and Criminal Justice 163-64 (5th ed 2010). A victim ordinarily has no chance of escaping or vanquishing four attackers. The potential result is very serious, and the whole thing must be terrifying for the victim.

21     This was not only assault causing bodily harm; it was a serious form of that crime. That must have a large impact upon proportionality.

22     The respondent submits that though his father was sent to jail, his brother and sister got the same conditional discharge that he did. He says that there should not be a disparity among the sentences of co-accuseds, and so the respondent's sentence should not be increased.

23     But the Crown appealed the brother's and sister's sentences. But it did not serve them in time. (One was in India.) A Crown application to extend time to serve was dismissed. That is the reason those appeals cannot proceed as well.

24     The object of this sentence appeal is not to review or punish the Crown's procedure on a different appeal. There is no reason to confirm an unfit sentence which is too low in order to punish the Crown.

25     The respondent's counsel relies on a few reported cases and suggests that the number (length of sentence) imposed there be carried over to the present case. Only one of the cases cited is by the Court of Appeal: R. v. Anderson (1976) 1 AR 348. But the offender there was only 16, and the act was impulsive. This is an old brief sentencing memorandum. The Court of Queen's Bench decisions thus cited are even less helpful here, often involving different crimes, sometimes a different sentence, and sometimes very unusual facts.

26     For all of those reasons, we have concluded that the sentence given to the respondent was unfit in principle, and not within an acceptable range. We give leave to appeal, allow the appeal, and quash the conditional discharge. The uncle (respondent's father) was given 90 days of actual imprisonment, and so we feel unable here to go higher. But the respondent had six days' pre-trial custody. We deduct that and impose a sentence of 84 days imprisonment, to run from today. It will be served continuously. We have taken into account, when computing that, the fact that the respondent and others paid some money to a charity as part of the conditional discharge. There is therefore no reason for anyone to ask to have it repaid.

(Counsel then asked to have the respondent serve the sentence intermittently, but the Court denied the request and ordered that the sentence be served continuously.)

J.E.L. CôTÉ J.A.