IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	R. v. Dhillon,
	2018 BCSC 807

Date: 20180501

Docket: X079437

Registry: New Westminster

Regina

v.

Simranpreet Singh Dhillon
Gurjinder Singh Sodha

Restriction on Publication: A publication ban has been mandatorily imposed under section 486.4 of the Criminal Code of Canada restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or witness. This publication ban applies indefinitely unless otherwise ordered. These reasons for sentence comply with the publication ban.

Before: The Honourable Mr. Justice A. Saunders

Oral Reasons for Sentence
(re: Accused Simranpreet Dhillon)

Counsel for the Crown:	K.H. Johnston C. Baerg
Counsel for the Accused Dhillon:	H. Patey J. Allingham
For the Accused Sodha:	No Appearance
Place and Date of Hearing:	New Westminster, B.C. April 30, 2018
Place and Date of Judgment:	New Westminster, B.C. May 1, 2018

[1] THE COURT: These oral reasons I am about to give are the product of my deliberations late yesterday afternoon and evening following the sentencing hearing. It may be that when these reasons are transcribed some minor editing, including reordering of some of the passages, proves to be necessary in order to clarify my meaning, and I am reserving my right to make such minor editorial changes if need be.

[2] Mr. Dhillon is before me for sentencing, having pleaded guilty on March 26, 2018, to one count of sexual assault under s. 271(a) of the Criminal Code and one count of aggravated assault under s. 268(1). The charges to which the guilty pleas were entered are reflected in Counts 1 and 6 of the indictment dated March 10, 2016, filed March 14, as amended by consent.

[3] I will note at the outset that the guilty pleas were entered midway through the second of two voir dire hearings before trial to rule on the admissibility of evidence. This second voir dire was on the admissibility of a statement made by Mr. Dhillon to the police following his arrest. The first voir dire had dealt with the admissibility of intercepted communications. I had not yet pronounced decisions on either of those voir dires at the time Mr. Dhillon entered his guilty pleas. The matter had been set for a three-week-long trial to commence on April 16 of this year.

[4] The pleas relate to events that occurred on August 12, 2012, and October 18, 2012, respectively, each involving a different victim, T.D. and L.B. L.B. attended at yesterday's sentencing hearing and read to the court her victim impact statement. Also attending with her were her parents who read their own joint victim impact statement to me, as well.

[5] A joint submission on sentence is before me. There is no question that a lengthy term of incarceration is called for in the circumstances. Counsel submit that the appropriate sentence would be two years on Count 1 and four years on Count 6, to be served consecutively, but that the totality principle set out in s. 718.2(c) of the Criminal Code requires the global sentence to be reduced to five years. It is suggested that this is best achieved by reducing the effective sentence on Count 6 to one of three years.

[6] I will in these reasons discuss the circumstances of the offences, the law that generally governs sentencing, and the facts with respect to each of the considerations the court is to concern itself with under the Criminal Code.

[7] Before I do that, I will deal with certain ancillary orders sought by the Crown which I am granting. Mr. Dhillon, you need not stand for this portion of the pronouncement of sentence, but I ask that you listen carefully.

[8] First, the Code provides for offenders being required to provide samples of bodily substances for forensic DNA analysis. As these are what are termed primary designated offences, I am making an order in the form of Criminal Code Form 5.03, pursuant to s.487.051, authorizing the taking of a number of samples of bodily substances reasonably required for the purpose of forensic DNA analysis.

[9] Second, pursuant to s. 490.012 of the Code, I am making an order in Form 52 requiring Mr. Dhillon to comply with the Sex Offender Information Registration Act for a period of 20 years.

[10] Third, pursuant to s. 109(2), Mr. Dhillon will be subject to a ten-year weapons prohibition.

[11] Fourth, I am ordering under s. 743.21 that Mr. Dhillon is prohibited from communicating directly or indirectly with T.D. and L.B. during the custodial period of his sentence.

[12] Fifth, and as the final ancillary order, I order under s. 743.2 that, in addition to the reasons on sentencing, copies of the victim impact statements of L.B. and of her parents, Mr. and Mrs. B., marked as Exhibits 2 and 3 on sentencing, and colour copies of the photographs at Tab 2 of Exhibit 1, be provided to Corrections Services.

[13] I turn now to the circumstances of the offences.

[14] The offences are described in detail in the admissions of fact contained at Tab 1 of Exhibit 1 on sentencing:

Admissions of Fact

[T.D.]

1. In the early morning hours of August 13, 2012 [T.D.] was working as a sex trade worker in the area of King George Boulevard and 91 Avenue in Surrey, British Columbia. She was approached by two men in a gold coloured Chevrolet Cavalier bearing licence plate number 053SXE. The registered owner of that vehicle was Sukhraj Chahal. Mr. Chahal was the driver of the vehicle and the passenger was Simranpreet Dhillon.

2. The two men asked [T.D.] how much she charged for oral sex. She told them forty dollars. They then negotiated with [T.D.] and agreed upon a price of sixty dollars if she performed oral sex on both men. [T.D.] agreed to this and got into the rear seat of the vehicle.

3. They drove to an isolated area on Colebrook Road and stopped the vehicle under an overpass. Mr. Chahal got out of the passenger seat and told [T.D.] he was going to wait outside. Mr. Dhillon got into the back seat with [T.D.] and gave her twenty dollars. He told her that Mr. Chahal would give her the rest.

4. [T.D.] put a condom on Mr. Dhillon and began to perform oral sex on him. While she did this, Mr. Chahal opened the trunk of the vehicle and retrieved an item described by [T.D.] as a sword. Mr. Dhillon opened the rear door and spoke in Punjabi to Mr. Chahal.

5. When [T.D.] saw the sword she tried to get out of the vehicle. Mr. Dhillon grabbed her by the hair and pulled her back into the vehicle. Mr. Dhillon then told her words to the effect that nobody would be able to hear her scream. He told her that she was going to have sex with both men and then they would take her back.

6. [T.D.] had given birth five days before this date on August 8, 2012. She told this to Mr. Dhillon. Mr. Dhillon made her take off her underwear and lay down on the back seat.

7. Mr. Dhillon began having vaginal intercourse with [T.D.]. When he tried to change positions he observed blood on his penis. Upon noticing this he became angry and made [T.D.] clean up the blood. He then turned her over and resumed having sex with her.

8. [T.D.] observed a vehicle approaching and tried to get out of the car. Mr. Dhillon again grabbed her to prevent her from leaving. He told her not to try something like that again.

9. When Mr. Dhillon was finished, he took the condom off and threw it out of the window. He left the vehicle and had a brief conversation with Mr. Chahal. Mr. Chahal then got into the rear seat. [T.D.] put a condom on Mr. Chahal and began to perform oral sex on him. Mr. Chahal then also had vaginal sex with [T.D.]. When he was done, he asked for the money that Mr. Dhillon had given her. [T.D.] gave him the twenty dollars.

10. Mr. Chahal got out of the vehicle. Mr. Dhillon then told her they would not leave her there and would drive her back. However, he told her he would drop her off where he decided. Mr. Dhillon told [T.D.] that when they dropped her off she was not to make any noise or a scene. They all got back into the vehicle and [T.D.] was driven to an area near 124 Street in Surrey.

[L.B.]

11. On October 18, 2012 at approximately 4:45 a.m., [L.B.] was working as a sex trade worker in the area of City Parkway and 105 Avenue in Surrey, British Columbia. She was approached by two men in a blue four door small sedan. The driver of the vehicle was Simranpreet Dhillon and the passenger was Gurjinder Sodha.

12. Dhillon and Sodha negotiated sex for $50 dollars each with [L.B.]. The price being agreed to, [L.B.] entered the rear seat of their vehicle and was driven to an area near Mud Bay Park off of Colebrook Road in Surrey, approximately one kilometre from the location of the sex assault against [T.D.].

13. The vehicle parked at the side of the road by a sign. Mr. Sodha entered the back seat of the vehicle and gave [L.B.] twenty collars. Mr. Sodha and [L.B.] took off their clothes and proceeded to have sex. Mr. Dhillon remained in the front seat. Due to the physical location and the weight of Mr. Sodha on top of her, [L.B.] eventually told Mr. Sodha to stop.

14. Mr. Sodha stopped and got out of the back seat. He took the condom he was wearing and threw it on the ground nearby. He then got back into the passenger seat of the vehicle.

15. [L.B.] asked the two men about the rest of the money they had promised her. The two men had a discussion in Punjabi and then Mr. Sodha handed her a bag of loose change had had obtained from the glove compartment.

16. Mr. Dhillon then got out of the driver's seat and entered into the backseat with [L.B.]. [L.B.] told Mr. Dhillon that she would not have sex with him, that they didn't have money, and asked him to let her go. She asked him where they were. Mr. Dhillon said words to the effect that they were in a remote location and no one would hear her screaming.

17. [L.B.] tried to open the door nearest to her but was unable to open it at first. Mr. Dhillon told her "You're going to do this or else" and then reached to the space between the driver's door and the driver's seat and pulled out an object resembling a golf club.

18. There was a brief struggle in the back seat between [L.B.] and Mr. Dhillon, after which [L.B.] was able to get the door open and got outside. She was attempting to take her clothes which had been on the floor in the back seat.

19. Mr. Sodha held onto her coat and purse and would not let her have them. Mr. Sodha remained seated in the passenger seat of the vehicle.

20. By that time Mr. Dhillon had gotten out of the vehicle as well and now had reached the same side of the vehicle as [L.B.]. He began to pull on her arm while she continued to try and get her clothing from Mr. Sodha. Mr. Sodha continued to hold onto [L.B.]'s clothing.

21. In the struggle with the two men, [L.B.] fell to the ground. [L.B.] and Mr. Dhillon moved towards the rear of the vehicle. Mr. Dhillon was yelling and [L.B.] was pleading with Mr. Dhillon.

22. Mr. Dhillon swung the golf club and struck her in the jaw, causing serious injury.

23. [L.B.] was able to run to a nearby ditch to hide herself. She was able to see the vehicle drive away. She then ran to a nearby house to get help.

24. [L.B.]'s clothing was later recovered near a mailbox of a residence some distance away. [L.B.] was taken to Surrey Memorial Hospital to be treated for her injuries.

[15] I note that Mr. Dhillon’s accomplice on the offences involving [T.D.], Mr. Chahal, has been dealt with separately.

[16] Crown counsel, Mr. Johnston, elaborated further on the admitted facts.

[17] The location of the assaults near Mud Bay is remote, isolated, and only sparsely populated. This is an aggravating factor.

[18] With respect to the injury to L.B.'s jaw, she suffered compound fractures and the loss of several teeth. The photographs in evidence also show very serious and extensive abrasions to the back of her left thigh. L.B. was hospitalized for two weeks. She had surgery on her jaw in hospital and has since then had to endure several follow-up surgical procedures. She suffered through a long period of her eating being impaired and the pain from her jaw injury has persisted. She also suffered posttraumatic stress disorder.

[19] Mr. Patey on Mr. Dhillon's behalf acknowledged the accuracy of these further details given by the Crown.

[20] L.B., in her impact statement, gave us a more complete picture of her injuries. She is in constant pain from the dentures and the scarring of her face. Her appearance has been altered. She suffers migraine headaches and memory loss, including a couple of what she describes as complete blackouts lasting for months at a time. She is now unable to have normal relations with men due to the intrusive memories of this assault. She now finds herself fearful and suspicious of men.

[21] L.B.'s mother, Mrs. B., reading her parents' joint impact statement, spoke of L.B. having seemingly lost her grip on reality for months at a time. She spoke eloquently of the impact of these crimes on her daughter and her family. It is clear that Mr. Dhillon's savage attack on L.B. has severely traumatized her, with effects that will be lifelong. She will have to live with the consequences of his brutal actions every day for the rest of her life.

[22] The first task of a trial judge sentencing an offender in the face of a joint submission is to determine if the submission falls within the range of sentences that would be given without a joint submission having been made. The Criminal Code provides in respect of the sex assault against T.D. for a sentence in the range of a minimum of one and a maximum of 10 years, and in respect of the aggravated assault against L.B. a maximum term of 14 years' imprisonment.

[23] Judges, however, are not free to pronounce any sentence within those maximum or minimum and maximum ranges. Instead, we are obligated to impose a sentence that reflects the principles and purposes of sentencing criminal offenders as set out in the Criminal Code.

[24] The Code provides in s. 718 that the fundamental purpose of sentencing is to contribute to respect of the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that meet one or more of several stated objectives. These objectives include the denunciation of unlawful conduct, the specific deterrence of the offender, and the general deterrence of other persons from committing offences, the separation of offenders from society where necessary, the rehabilitation of offenders, the making of reparations to the victim and to society, and the promotion of a sense of responsibility and acknowledgment of the harm done to victims and to the community. The emphasis with these violent crimes we are dealing with in the present case must be on the goals of denunciation and deterrence.

[25] Section 718.1 of the Code sets out the further fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Further principles described by the Code are set out in s. 718.2. Those that are potentially relevant to the present case include: the recognition of aggravating and mitigating factors; the need to impose a sentence similar to those imposed upon similar offenders for similar offences in similar circumstances; and the need, when consecutive sentences are imposed, to avoid a combined sentence that is unduly long or harsh, which is the totality principle that I referred to earlier.

[26] Moving from the circumstances of these offences and the Code provisions to the offender, Mr. Dhillon, Mr. Patey has provided the court with some background information as to Mr. Dhillon's circumstances, both before these offences and afterwards. The Crown is in agreement that I may treat Mr. Patey's outline as established fact.

[27] Mr. Dhillon was 19 years old at the time of these offences. He is now 24. Mr. Dhillon was born in India and came to Canada in 2005. While here, in his teenage years, he had been enrolled in high school. Apparently as a teenager he was well thought of by his friends and his family. However, in his senior years, he became enmeshed with a peer group who were antisocial. In his desire to fit in, he adopted their negative antisocial behaviour. He did not complete high school. He went to India for a time in 2011 to 2012, and took training as a men's hairdresser. When he returned, it seems he fell in with the same crowd. Their behaviour included, as Mr. Patey put it, inappropriate behaviour with sex trade workers. He began drinking, excessively and frequently. His life, as Mr. Patey put it, became directionless and everything “came off the rails”.

[28] Sometime following his attack on L.B., Mr. Dhillon gradually came to realize that his behaviour was wrong. This – counsel stresses, and I accept – was not as a result of the police investigations into these and other similar attacks on sex workers in which Mr. Dhillon was eventually identified by police as a person of interest. In fact, nearly a year and a half elapsed between the attack on T.D. and the police obtaining their authorization to intercept Mr. Dhillon's communications. During this period, Mr. Dhillon was unaware that he was under suspicion. Yet he had changed his lifestyle considerably, concentrating on his family, his employment, and spiritual activities.

[29] The defence stresses that it does not put forward these facts as to the involvement of alcohol or the negative influences of Mr. Dhillon's peer group as excuses or as mitigating factors. To the contrary, it is submitted that Mr. Dhillon takes full responsibility for his actions, that he is extremely remorseful and that he is burdened with shame and guilt to the extent that he has twice attempted suicide since his arrest, most recently in the week leading up to the second voir dire. Rather, these facts are offered as evidence that Mr. Dhillon is capable of being rehabilitated and that his crimes may properly be considered as aberrations from his fundamental character.

[30] On Mr. Dhillon's behalf, a total of 15 letters of support have been submitted written by his immediate family, other relatives, and friends. There is also a letter from his psychiatrist attesting to his treatment since 2016 for an adjustment disorder with mixed anxiety and depressed mood. The psychiatrist reports Mr. Dhillon as having expressed feelings of guilt.

[31] I do want to speak for a few moments about these letters of support written by family and friends. These letters share some common themes: that Mr. Dhillon, when he was younger, was always a good kid; that he was young, naïve, immature, and easily influenced; and that his conduct was a matter of isolated incidents reflecting bad choices, completely out of character. Similarly, I had the impression during submissions by Mr. Dhillon's counsel that it was almost as if I was being asked to accept that Mr. Dhillon's offences were just part and parcel of poor lifestyle choices. I do not say this as a criticism, only as a concern as to whether those who have been here in support of Mr. Dhillon and those who continue to support him and who will be key to his rehabilitation, really appreciate what has gone on here.

[32] These letters of support, I think without exception, refer to Mr. Dhillon's offences in the most neutral terms; they are called “mistakes” or “incidents”, not what they were – crimes – and in the case of the attack on L.B., a brutal, horrific crime.

[33] We are often presented in criminal cases with such letters of support written by friends and family to assist an offender in the sentencing hearing. The problem with such evidence is that there is such a profound contrast between the rosy portrayals in the letters, and the horrific nature of the crimes, that one is led to wonder: How well do these people really know the offender? And therefore, how much weight should their letters be given? There seems to be a dissonance or disconnect between the good boy these letters portray and the utter depravity of Mr. Dhillon's actions. These crimes appear on the surface to have been the conduct of someone without a conscience, and without any empathy for one's fellow human beings. It is hard to comprehend how an individual could go from being capable of such offences to becoming a decent, upstanding member of society.

[34] We are blessed with the good fortune to live in one of the safest, most law-abiding countries in the world, and in a society that strives to attain harmony and to affirm the dignity of all peoples. That actions like this go on in our cities under the cover of the dark of night is profoundly shocking to the average citizen. It is only fit and right that Mr. Dhillon's conduct be denounced with a lengthy term of imprisonment, as has been recommended to the court in the joint submission.

[35] I do, however, accept that redemption and transformative change are possible, and I accept that Mr. Dhillon's expression of guilt and remorse, his need for psychiatric care and his suicide attempts, do all serve as compelling evidence that he does have a conscience and that he is capable of rehabilitation. This is also suggested by his young age at the time of the offences. His capacity for rehabilitation is a significant mitigating factor in his sentencing.

[36] So too is the fact of Mr. Dhillon having entered a guilty plea, which spared the complainants the burden of testifying, although I appreciate L.B. is of a different view, and I will come to that in a moment, and the guilty pleas spared the justice system the burden of a three-week trial with numerous police officers having to attend. The guilty plea in itself also serves as an indicator of Mr. Dhillon's acceptance of responsibility.

[37] I acknowledge fully in this case that L.B. does not see her not having to testify as an advantage or benefit to her. She described in her impact statement with great composure and dignity how she reacted when she was told she would not have to testify. In a word, she was furious. She felt that through Mr. Dhillon being allowed to plead to and be sentenced on only one of the six counts he was charged with, she was deprived of the opportunity to tell the truth about what was done to her. She says she feels powerless and victimized all over again by the decisions the Crown has made. I do want to say to L.B. that her concerns have been heard, and I want to assure her that, even though the plea arrangement proposed by counsel will result in only one conviction in respect of the assault against your person, the full circumstances of this crime as reflected in the agreed facts are being taken into account by me as aggravating circumstances in judging the fitness of the joint submission, regardless of the precise number of charges or counts involved.

[38] So these factors I have discussed – Mr. Dhillon's remorsefulness, his apparent ability to be rehabilitated as evidenced by his youth and his post-offence conduct, and his guilty plea – are the primary mitigating factors in sentencing.

[39] There are also aggravating factors, including having taken the victims to an isolated location where they were particularly vulnerable, and the severity of [L.B.’s] injuries. I referred earlier to the utter depravity of Mr. Dhillon's conduct. I did not use those words to pass moral judgment generally on sex workers or their clients. I used those words to denote that Mr. Dhillon and his companions preyed on these vulnerable women: negotiating sex for a fee, then taking them to an isolated location, extorting further acts from them with violence or threats of violence, and refusing to pay even the meager fees that had been negotiated.

[40] This conduct must be denounced. The predatory nature of this behaviour is a strongly aggravating factor.

[41] The cases provided to me by counsel greatly assist in confirming the appropriate range of prison sentences in cases of this nature. R. v. G.M., 2015 BCCA 165, clearly states that the range for sexual assault involving intercourse is two to six years. I find that Mr. Dhillon's relative youth and his prospects for rehabilitation, together with his acceptance of responsibility, would push his sentence for sex assault alone towards the low end of that range. In respect of the aggravated assault on L.B., I agree with counsel that the decision most directly on point is R. v. D.R., 2004 BCSC 336. That case involved two crimes, a violent sexual assault on a sex trade worker, which the offender denied had taken place through trial and up to sentencing, and an aggravated assault endangering life and causing bodily harm to another sex trade worker, which event the offender minimized. He was sentenced to five years in total; two for the former offence, and three for the latter.

[42] Other cases submitted by counsel that I have considered are: R. v. Gain, 2005 BCSC 413; R. v. Reddemann, 2017 BCSC 1731; R. v. Sharma, 2015 BCSC 735; R. v. Reis, 2011 BCSC 319; R. v. Latreille, 2009 BCSC 1892; and R. v. Nakamura, 2012 BCSC 327. These cases all have their points of similarity and dissimilarity to the circumstances before me. Cumulatively they establish that the proposed sentence is within the appropriate range.

[43] Lastly, I come to the most important consequence of this being a situation of a joint sentence submission following a guilty plea. The law is clear that in the face of a joint submission, I am to consider the appropriateness of the sentence in light of the factors prescribed by the Criminal Code, but in doing so, I must give great deference to the submission that has emerged from discussions and negotiations between counsel.

[44] Counsel referred in their submissions yesterday to the decision of the Supreme Court of Canada in the case called R. v. Anthony-Cook, 2016 SCC 43. As a result of the decision in Anthony-Cook, the role of a trial judge hearing a joint submission following a guilty plea has been conclusively defined and limited. The Supreme Court of Canada has told us that a joint submission following a guilty plea is only to be departed from where the proposed sentence would bring the administration of justice into disrepute, or would otherwise be contrary to the public interest. That is a relatively low threshold for acceptance. The only circumstances, the Supreme Court has made clear, where a joint submission could be rejected by the sentencing judge are ordinarily those where acceptance of the sentence would be viewed by reasonable, knowledgeable persons in the community as manifesting some complete breakdown in the justice system.

[45] That is certainly not the case here.

[46] This low threshold for acceptance, the Supreme Court of Canada tells us, is both necessary in order to promote guilty pleas, but is also appropriate because it is counsel who are in the best position to understand what sentence best reflects the interests of both the public and the accused. They know the strengths and weaknesses of their positions and are therefore uniquely able to arrive at resolutions, in the words of the court “that are fair and consistent with the public interest”.

[47] The guilty pleas of Mr. Dhillon were proposed and accepted at a point in this criminal proceeding when the admissibility of much of the Crown's evidence had not been established and may have been in doubt, and where the strength of other evidence was still to be tested. The plea arrangement therefore has the enormous benefit to all of certainty and finality. There is therefore every reason to believe that the proposed arrangement arrived at by counsel properly serves the interests of society as a whole.

[48] To that, I will only add finally that even before I began to hear counsel's submissions, and even before I was aware that this would be a joint submission, I was approaching this hearing with at least a tentative view of my own, that the fit sentence on the two counts would be six years, served consecutively, but reduced to five years on account of the totality principle, and that is precisely the submission that has been made.

[49] I judge this proposal therefore as being entirely fit and appropriate, and I accept the joint submission.

[50] Mr. Dhillon, sir, would you please stand.

[51] I sentence you in respect of Count 1 to a term of imprisonment of two years, and on Count 6 to a further term to be served consecutively of three years imprisonment, a total of five years. You may be seated.

[52] I thank counsel for their efficient conduct of the voir dire hearings, for their efforts in arriving at the joint submission, and for their very helpful submissions as to sentencing.

[53] Yes, Mr. Johnston.

[54] MR. JOHNSTON:  Thank you, My Lord. And Crown can now direct a stay of proceedings on the remaining counts of the indictment.

[55] THE COURT:  Yes. That is Counts 2 through 5, to be clear…

[56] MR. JOHNSTON:  And to be clear on that...

[57] MR. PATEY:  Seven through 11 --

[58] THE COURT:  Yes, and seven through 11 involving L.B. Yes, thank you.

[59] MR. PATEY:  Thank you, My Lord. And it dawned on me just a moment ago, I think we all neglected to address you on the surcharge.

[60] THE COURT:  Yes.

[61] MS. PATEY:  Now I am trying to remember what the state of affairs with that was in 2012. I think they were still waivable then. It would ordinarily be waived where there was a lengthy period of incarceration imposed.

[62] MR. JOHNSTON:  I do not have any submissions with respect to that.

[63] THE COURT:  Yes, I agree, and in the circumstances there is a suitable punishment imposed by the length of the sentence, and given the sentencing paradigm prevailing at the time of these offences there will be a waiver of the victim surcharge.

“A Saunders J.”