Lady Justice in B.C. Supreme Court in New Westminister. (Photo: Tom Zytaruk)

Lady Justice in B.C. Supreme Court in New Westminister. (Photo: Tom Zytaruk)

Court upholds conditional discharge for ‘violent degrading acts’ in Surrey domestic violence case

Victim was choked, spat on, head-butted, burned with a cigarette, pushed against a wall and hit

A B.C. Supreme Court judge has upheld what the Crown argued at appeal is a “demonstrably unfit” sentence a Surrey judge imposed in a domestic violence case.

Joshua Bailey Delgren, 25, pleaded guilty to assault and was sentenced by a Surrey provincial court judge to a conditional discharge with two years probation. The judge had also declined the Crown’s request to have Delgren provide a DNA sample, despite his lawyer not opposing such an order.

The Crown argued in B.C. Supreme Court in New Westminster that the sentence should be replaced with a three-month conditional sentence order, or house arrest, followed by one year probation.

Justice John Harvey presided.

Harvey heard Delgren had been in a “very difficult and conflictual” relationship with a 22-year-old woman and over four days hit her, choked her, pushed her against a wall, burned her leg with a cigarette, spat on her, head-butted her, threw a mug of water at her and “struck her or placed his hand in her vaginal area.” She had been fully clothed at the time, Harvey noted.

The court heard Delgren straddled the victim in bed, choked her for roughly 30 seconds and head-butted her.

“The victim eventually managed to text her sister words to the effect of ‘get me out of here,’” Harvey noted. “As a result, this matter was reported to police and the charge was laid.”

Harvey noted Delgren “expressed remorse for his actions,” had no criminal record at the time of sentencing “and had been a law-abiding member of the community for the whole of his 25 years.

“He had no history of similar conflicts in previous relationships and had good supports within the community,” Harvey noted in his reasons for judgment. “One of the reasons underlying his actions over the course of the dates set out in the information were his ongoing struggles with drugs and alcohol. He also had some mental health issues, specifically anxiety.”

The Crown argued that the sentence is “demonstrably unfit in the circumstances,” and that the sentencing judge failed to consider if a conditional discharge was contrary to the public interest.

“The sentencing judge found, and the offender conceded, they were violent degrading acts,” Harvey observed.

READ ALSO: Sentenced reduced for Surrey killer with mental illness

READ ALSO: Judge orders Surrey family to pay for autistic son’s government care

Harvey noted that aggravating factors before the sentencing judge “were the significant acts of violence which occurred in an intimate relationship couple with their intensity and frequency over the course of four days.”

The mitigating factors, he noted, were that Delgren had been “compliant with his bail conditions for over a year, was of Aboriginal heritage, and was willing to accept probationary terms aimed at his rehabilitation and redirection.”

The sentencing judge told Delgren a conditional discharge “would mean that you would not have a criminal record” and she added that it was in her view “that it is clearly in your best interest to receive a conditional discharge, you are young, you want to go forward, you want to be involved and have opportunities.”

The Crown argued that the sentencing judge’s reasons revealed “a total absence of analysis” why the discharge was not contrary to the public interest, while the defence argued she “properly considered whether or not the sentence imposed was contrary to the public interest.”

Harvey said he agreed with the Crown “that there was an absence of analysis as to whether a discharge was not contrary to the public interest” and that “her remarks are conclusory rather that informative as to the rationale sustaining her conclusion.”

“Did the error result in a sentence which was unfit in the circumstances?” the higher court judge asked rhetorically. “I conclude, after performing my own analysis of the circumstances of the offence, the circumstances of the offender, and the sentencing positions advanced below that it was not.”

Harvey explained that a conditional discharge was an available option because there is no minimum punishment for assault.

“While accepting that generally a discharge is not a fit sentence in matters of domestic violence in all those offences at the low end of the violence spectrum, which this is not, exceptions exist. Sentencing is not science and a fit sentence is one tailored to meet all sentencing objectives.”

He noted that under Section 730 of the Criminal Code absolute and conditional discharges are provided for unless the code prescribes a minimum sentence, or a maximum sentence of 14 years or more.

“In this case, there is no minimum sentence. Further, given that the Crown proceeded summarily, the maximum sentence is 18 months.”

Harvey concluded that the terms of probation “serve the needs of general and specific deterrence and denunciation as required by the authorities. I would accordingly dismiss the appeal.”



tom.zytaruk@surreynowleader.com

Like us on Facebook Follow us on Instagram and follow Tom on Twitter

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Fraser Health held a COVID-19 vaccine clinic at Gurdwara Dukh Nivaran Sahib in Surrey, which would be in what the BCCDC refers to as the Panorama community, on Friday, May 7, 2021. Roughly 400 people pre-registered to get their vaccine the week before. (Photo: Lauren Collins
Surrey communities recording more COVID-19 cases also seeing lower vaccination rates

Those same communities were highlighted in the SPEAK survey, which highlighted disparities in the city

Twenty-nine staff members at Sunrise Poultry Processors Ltd. in Newton have tested positive for the virus, according to an information bulletin from Fraser Health Saturday (May 8). The health authority issued a 10-day closure order, effective May 7. (Image: Google Maps)
29 staff test positive for COVID-19 at Surrey poultry processing plant

Meantime, outbreak over at Surrey Memorial Hospital

The College of Massage Therapists of B.C. says Van (William) Dinh, a registered massage therapist in Surrey and Langley, has had his licence suspended while an inquiry committee panel investigates allegations of sexual misconduct. (Unsplash photo)
Surrey massage therapist suspended amid sexual misconduct investigation

CMTBC received complaint Van (William) Dinh allegedly exposed ‘sensitive areas of the patient’s body’

Hundreds gathered for a candlelight vigil Friday evening (May 7) to remember 29-year-old corrections officer Bikramdeep Randhawa, who was killed in last weekend’s brazen daylight shooting outside North Delta’s Scottsdale Centre mall. (James Smith photo)
Hundreds gather to remember victim of North Delta shooting

Corrections officer Bikramdeep Randhawa, 29, was killed in what police say was a targeted incident

TEASER PHOTO ONLY
Surrey woman a face of World Ovarian Cancer Day campaign in London, New York

‘It’s so important we find better treatments,’ Catherine Eiswerth says

(The Canadian Press)
Trudeau won’t say whether Canada supports patent waiver for COVID-19 vaccines

‘Canada is at the table to help find a solution’

Edmonton Oilers’ Connor McDavid (97) celebrates his 100th point this season with Leon Draisaitl (29) against the Vancouver Canucks during second period NHL action in Edmonton on Saturday, May 8, 2021.THE CANADIAN PRESS/Jason Franson
Edmonton superstar McDavid hits 100-point mark as Oilers edge Canucks 4-3

NHL scoring leader needs just 53 games to reach century mark

A map showing where the most number of cases were recorded from April 23 to 29. This map, revealing a breakdown of infections by neighborhood, was pulled from a data package leaked to the Vancouver Sun last week (and independently verified).
36 Abbotsford schools flagged for COVID-19 exposures in the last 2 weeks, shattering record

Clearbrook Elementary recorded an ‘exposure’ on all 11 school days

Canada’s chief public health officer is reminding Canadians even those who are fully vaccinated are not immune from transmitting the COVID-19. THE CANADIAN PRESS/Adrian Wyld
Canada’s top doctor warns full vaccination does not equal full protection from COVID-19

Post-inoculation, Theresa Tam says the risk of asymptomatic infection and transmission is far lower but not obsolete

The dash cam footage, taken May 7 at 8:18 a.m. belonged to the driver of a southbound vehicle that recently travelled out of the tunnel. (Reddit/Screen grab)
VIDEO: Dash cam captures dramatic rollover crash on Highway 99

Only one person sustained injuries from the collision, says B.C. Ambulance Services

Chevy stranded on a ledge above a rocky canyon at Mimi Falls near Logan Lake, April 28, 2021. (Photo credit: Margot Wikjord)
Police officer and fire chief team up in risky rescue of stranded dog near Logan Lake

Chevy, a rescue dog, needed rescuing again after getting stuck on a ledge above rocky canyon

Police were on the scene of a fatal shooting in Abbotsford. (Black Press Media files)
B.C. government to give more than $8 million for programs to curb gang violence

221 not-for-profit projects led by local governments and school districts among others will receive a one-time grant

Vancouver Giants earned a 6-2 victory over the visiting Kelowna Rockets Friday night, May 7, in Kamloops (Allen Douglas/special to Langley Advance Times)
VIDEO: Vancouver Giants down Kelowna Rockets 6-2

Two short-handed goals for Langley-based team

Most Read