IN THE PROVINCIAL = COURT OF=20 BRITISH COLUMBIA

=20

REGINA

TODD = SWEET

ORAL REASONS=20 FOR SENTENCE

OF=20 THE

HONOURABLE JUDGE H.F.=20 WEITZEL

Counsel for the = Crown:

S.=20 Lowe

Counsel for the = Defendant:

R.=20 Harris

Place of Hearing:

Vancouver, B.C.

Date of Hearing:

July = 13,=20 2007

Date of=20 Judgment:

July 13, = 2007

[1] =20 THE COURT: These are oral reasons for judgment in the sentencing = of Todd=20 Sweet for the offence of assault causing bodily harm of Anthony John = Wesley=20 White on June the 19th of 2005 in New Westminster, B.C. Mr. Sweet = has pled=20 guilty to the subject charge. At the time of the offence, Todd = Sweet was=20 an on-duty police constable with the New Westminster Police = Department. =20 Anthony White was a person who had just been arrested following a = lengthy motor=20 vehicle police pursuit throughout the streets of New = Westminster.

[2] =20 The sentencing issue, in my view, is a relatively narrow one. That = is, is=20 a conditional discharge as sought by the accused an appropriate = sentence? =20 The Crown opposes a discharge and seeks a fine of $500. As is = clear from=20 the wording of s. 730(3) of the Criminal = Code, if this court directs = that the=20 accused be discharged, then he will be deemed not to have been convicted = of this=20 offence and thus not have a formal criminal record.

[3] =20 The appropriate sentence must take into account the circumstances of the = offence=20 and of the particular offender. I thus turn to the circumstances = of the=20 offence. At approximately 3:30 in the morning of June the 19th of = 2005,=20 Todd Sweet was on duty patrolling a residential neighbourhood in New = Westminster=20 where there had recently been some home invasions. He was alone in = his=20 police car. He saw a motor vehicle which raised his suspicions and = he=20 began to follow it. This motor vehicle accelerated away from the = police=20 car and the chase began.

[4] =20 As it turned out, Anthony White was the driver and sole occupant of the = fleeing=20 motor vehicle and the vehicle was later found to have been stolen. = The=20 chase was a protracted one with high rates of speed through residential=20 neighbourhoods. On several occasions, White drove through stop = signs and=20 went through an intersection against a red traffic control light. = As the=20 accused was pursuing White, he had his siren on and was broadcasting the = pursuit=20 over the police radio so that other police cars could assist in = apprehending the=20 fleeing vehicle.

[5] =20 At one point, there was a near collision between Anthony White=92s = vehicle and=20 another police car. At another point, White swerved to avoid a = spike belt=20 which had been placed across the road in front of him. He even = swerved=20 into oncoming traffic on one occasion. Eventually, a number of = other=20 police cars got involved in the pursuit, all with sirens activated and = flashing=20 emergency lights on. In my view, it was a very tense and highly=20 emotionally charged situation for all involved including Todd = Sweet.

[6] =20 The driving part of the incident ended when Anthony White lost control = of his=20 motor vehicle and drove it off the road into a park where it sustained=20 significant damage, amongst other things, causing the airbags to = activate or=20 deploy. The accused and numerous other police constables got to = the=20 damaged car almost immediately. Several of them went to the = passenger side=20 which was locked. One of the officers broke the passenger-side = window and=20 in so doing badly cut his hand.

[7] =20 Todd Sweet went to the driver=92s side where he discovered that the = window was=20 open. He yelled at White to get out, but White was not = responsive. =20 The sirens were still going, police were yelling, one constable was=20 bleeding. It was a chaotic situation. The accused was = concerned that=20 White may have a weapon in the car so he pulled out his own service = revolver to=20 protect himself. He was then able to reach in and with the = assistance of=20 another police officer pull Anthony White out of the vehicle, place him=20 face-down on the ground, and handcuff him with his hands behind his=20 back.

[8] =20 The accused then stood up and as he was about to step past White so as = to go and=20 help the other injured police officer, he kicked Anthony White in the = head with=20 what he admits was substantial force. Several of the other police = officers=20 on scene saw this. An ambulance arrived and took Mr. White to the = hospital=20 where he received treatment for a number of head injuries. He = remained at=20 the hospital for a relatively short period of time when he discharged = himself=20 against the advice of the attending emergency physician.

[9] =20 It is unclear which of the injuries predated this accident, which were = caused by=20 this accident, and which were caused by Constable Sweet=92s kick. = The guilty=20 plea is made and accepted by the Crown on the basis that the kick = exacerbated=20 the laceration over one of Mr. White=92s eyes. Various police = reports were=20 prepared by different attending police constables, including the = accused, but=20 none of them made mention of the accused kicking Anthony White in the=20 head. Charges of dangerous driving, amongst others, were = recommended=20 against White by the police.

[10] =20 As oft-time occurs in cases of this nature, there was at least one = diligent and=20 professional police officer who did tell an attending staff sergeant = that this=20 officer had seen the accused kick White in the head. But in the = end,=20 nothing was done about it supposedly because certain senior police = officers who=20 would normally deal with issues of this nature were taking overlapping = annual=20 leave.

[11] =20 Obviously, someone felt frustrated by this inaction because in early = July 2005,=20 an anonymous letter was sent to the Police Complaints Commission = describing the=20 kicking incident and the apparent lack of action by the New Westminster = Police=20 Department. This letter resulted in an investigation being ordered = which=20 was assigned to the Abbotsford Police Department. Regretfully, = that=20 investigation took far, far too long to come to a conclusion. It = began in=20 August of 2005 and a charge was not laid until February the 6th of = 2007. =20 This is the charge which is now before the court.

[12] =20 I cannot conclude that this inordinate and regrettable delay was = attributable to=20 the accused. He has never denied the kick to Anthony White. = On the=20 day after the kicking incident itself, he apologized to the other police = members=20 who had been at the scene for his behaviour, and told them to cooperate = in any=20 forthcoming investigation.

[13] =20 Ultimately, when such an investigation was forthcoming, he cooperated = with the=20 Complaints investigation apparently in the manner envisioned by the = police=20 investigation by giving a statement through the office of his = counsel. In=20 that statement, he admitted to kicking Anthony White and expressing his=20 remorse. This letter was written in February 2006 and a copy of it = is at=20 tab 2 in the defence sentencing materials which will be filed in these=20 proceedings.

[14] =20 When the charge was finally laid in February of 2007, indeed, he = indicated his=20 intention to plead guilty very early on and has now done so. I am = not=20 blaming Todd Sweet, but members of the police community must surely = understand=20 that cases of this nature must be given high public priority and indeed = must=20 proceed much quicker than the investigation in this case did.

[15] =20 As a result of the assault, in spite of White having discharged having = himself=20 against the advice of the attending physicians, victim impact material = has been=20 filed before the court and it has been marked as an exhibit, and Mr. = White=20 states that he had ongoing trauma from this incident, a scarring, some = ongoing=20 physical injury, and I am mindful of that.

[16] =20 I now turn to the circumstances of the offender. Todd Sweet is 39 = years of=20 age. He is married and is the father of three children. He = has no=20 criminal record. I comment that in the public press there has been = mention=20 of an incident that occurred three weeks after the incident at bar = wherein Sweet=20 was involved in a shooting. That has been mentioned almost daily = in the=20 press whenever today=92s proceedings are reported. It must be = clear that=20 there were no charges, I am told, arising from that incident, and that = incident=20 is not something that this court can take into consideration or apply in = the=20 sentencing as it relates to this June 19th, 2005, kicking = incident.

[17] =20 Sweet has been a regular member of the New Westminster Police Department = since=20 1990. He has served in various departments including being a dog = master=20 and a member of the Emergency Response Team. For several years, he = has=20 been president of the New Westminster Police Association. A number = of=20 senior police officers from New Westminster, the RCMP, and the Vancouver = Police=20 Department have written letters of support on behalf of Sweet, attesting = to his=20 dedication to police work and their assessment that the kicking incident = of June=20 the 19th, 2005, was out of character for him. Those letters are = included=20 at tab 5 of the sentencing materials. Again, that binder will be = filed in=20 these proceedings.

[18] =20 Sweet also has a history of volunteer service to the community. He = has=20 served as a volunteer firefighter, a search and rescue member, and a = firearms=20 instructor. He and his family regularly attend church services at = the=20 Salvation Army, and he is a member of the Church Community Services = Council=20 which in part attempts to develop programs for street youth to try to=20 reintegrate them into general society. Letters confirming this = involvement=20 and community commitment are also included at tab 5 of the sentencing=20 materials. It is fair to say that all the letters speak highly of = Sweet=20 and express the opinion that the behaviour underlying the offence at bar = is out=20 of character.

[19] =20 A few weeks after the date of the offence, Sweet was transferred from = his patrol=20 policing duties to a desk duty. In February 2007 with the laying = of this=20 charge, he was suspended from active police duty. I accept that = the result=20 of the reassignment and the suspension have resulted in financial loss = to him=20 and his family. He has also resigned from his position with the = Emergency=20 Response Team and has lost his position as a firearms trainer at the = Justice=20 Institute. I am advised that, separate from these criminal = proceedings, he=20 will also likely be the subject of discipline proceedings under the=20 Police=20 Act = which will=20 likely have a financial impact on him. I thus conclude that there = have=20 already been professional and financial adverse consequences to = him.

[20] =20 The accused has taken significant steps, self-initiated, towards his=20 rehabilitation. By February 2006, he had completed an anger = management=20 treatment program at his own expense. Up to the present time, he = continues=20 to participate in a program of psychological treatment and therapy with = Dr.=20 Randy Mackoff, a well-qualified and respected psychologist. A = report from=20 Dr. Mackoff is filed at tab 6 of the sentencing materials and he opines = that=20 Todd Sweet is unlikely to engage in similar inappropriate and assaultive = behaviour in the future. From that I conclude that Sweet is at a = low risk=20 to reoffend.

[21] =20 There are a number of aggravating factors in this case. Todd Sweet = is a=20 senior police officer who has taught aspects of policing to junior = police=20 officers, yet he allowed himself to lose control and strike out in a = criminal=20 manner instead of responding in a professional and measured manner as he = has=20 been or should have been taught to do. It was argued that police = are not=20 robots and are subject to the same emotional feelings and responses as = other=20 members of society.

[22] =20 I agree they are not robots, but they are holders of a public trust that = they=20 will serve the public and investigate and sometimes protect against = criminality=20 rather than becoming criminals themselves. That is why the police = receive=20 at the public expense such training as to develop self-control in highly = emotionally charged situations. When the police breach that public = trust,=20 it is an aggravating factor.

[23] =20 The facts of this assault are also an aggravating factor. Anthony = White=20 was defenceless when he was kicked by the accused. White was lying = face-down on the ground with his hands cuffed behind his back. He = was in a=20 position whereby he presented no danger to the accused=92s safety or any = other=20 officer=92s safety, and was similarly in a position where he was unable = to defend=20 himself. For Todd Sweet to kick him was a cowardly act suggesting = perhaps=20 an act of unlawful street justice.

[24] =20 The fact that Anthony White received an injury is also an aggravating = factor,=20 but a lesser one in this case because of the minor and transitory nature = of the=20 injury. While White received medical attention for facial and = bodily=20 injuries, it is fairly conceded by the Crown that only the exacerbation = of a=20 laceration above White=92s eye can be attributed to the kick from = Sweet. I=20 take this to mean that Sweet [sic] had a pre-existing laceration over = his eye=20 likely caused by an earlier incident or by the accident itself which was = then=20 made worse by the kick of the accused.

[25] =20 I have considered the Crown argument that the post-offence conduct of = the=20 accused not telling the emergency health attendants about kicking White = in the=20 head is an aggravating factor, but I reject it in this case. Other = officers and emergency health staff were dealing with White for head = injuries=20 obviously resulting from his head striking or being struck by a hard=20 object. It seems that whether the injury was caused by the head = hitting a=20 windshield or by a boot hitting the head, would not likely affect the = nature of=20 the medical treatment administered. Also in this case, unlike the=20 Vancouver so-called Stanley Park Six case which is legally cited as=20 R. v. = Cronmiller=20 et al, there is=20 no evidence of a conscious attempt to hide or misstate evidence of the=20 crime.

[26] =20 In mitigation, I consider the following factors: the early guilty = plea,=20 the absence of a criminal record, the good record of public service, the = obvious=20 expression of what I find to be genuine remorse, the filing of a letter = of=20 apology to White, the cooperation with the police investigators, the=20 self-initiated program of rehabilitation, the negative consequences on = his=20 employment, and the fact that the accused has made a voluntary payment = of $500=20 already to the Last Door Recovery Centre in New Westminster.

[27] =20 The defence argues that extensive media coverage of this case and the = resultant=20 shame and embarrassment that has been caused to Sweet and his family = should be=20 considered to be a mitigating factor. The law is clear that the = notoriety=20 caused by widespread media coverage can in certain circumstances be a = mitigating=20 factor, but in a case such as this where the offender is a police = officer and=20 the person assaulted a member of the public, the public should know and = must=20 rely upon the media for that knowledge.

[28] =20 In many other situations where the offender is a member of the public, = it is my=20 view that the police often hold press conferences to announce the = charges and=20 the identity of the offender. The police court that = publicity. When=20 one of their own is charged, they must expect that same media scrutiny = and=20 exposure and all that flows from it. Constable Sweet should expect = public=20 notoriety when he kicks a man lying in handcuffs on the ground in the=20 head. Any shame attached comes from the commission of the crime = and not=20 the fact that the crime has been found out. Accordingly, in this = case, I=20 do not consider this to be a mitigating factor.

[29] =20 The defence submits that a conditional discharge is the appropriate=20 sentence. As indicated earlier, the Crown argues that a discharge = is not=20 appropriate and that the recording of a conviction and the imposing of a = fine is=20 indeed appropriate. Section 730 of the Criminal = Code sets out the prerequisite = conditions for the granting of a discharge. The offence of assault = causing=20 bodily harm which is proceeded with summarily as in this case is one for = which a=20 discharge may be granted. There can be no question that the = granting of a=20 discharge would be in the best interests of the accused. The = harder issue=20 is determining whether the granting of a discharge would or would not be = contrary to the public interest.

[30] =20 The crime, and indeed it is a crime, is a serious one. The = injuries could=20 have been far worse. I am sure that all police officers have seen = cases=20 where death or brain injury has resulted from a kick to the head. = The=20 accused, Sweet, was angry and frustrated when he kicked White. = White had=20 led Sweet and other officers on a dangerous chase through New = Westminster, but=20 with respect, this is just the type of situation for which Sweet, a = senior=20 police officer, had been trained to deal with.

[31] =20 The public places a great deal of trust in police officers. Police = officers are allowed to do things which other citizens cannot do. = They are=20 allowed to carry weapons. They can enter private property and even = in some=20 circumstances break the law which other citizens cannot do. The = public=20 pays them and provides them with appropriate training. Not all = citizens=20 are suited to be police officers. Those with low levels of = tolerance or=20 high levels of frustration are hopefully weeded out early on.

[32] =20 Unlike the image of police officers portrayed on television or in movies = where=20 there is the sense that the end of catching criminals justifies any = means=20 necessary and that violence begets violence, the Canadian public expects = a=20 special manner of measured behaviour and response from these = specially-trained=20 members who are thus placed in a special position of trust. If = that trust=20 is breached in a criminal way, then the consequences will be and should = be more=20 severe than for an ordinary citizen who commits the same crime, because = of the=20 special position of trust that the officer held at the time and because = of that=20 officer=92s knowledge of the consequences which would flow from its=20 perpetration.

[33] =20 Accordingly, the sentence today must denounce the criminal conduct and = act as a=20 deterrence not only to Todd Sweet but also to other police = officers. In my=20 view, in this case, the laying of the charge with the attendant = publicity should=20 clearly show society=92s denunciation of the criminal conduct committed = by those=20 who society pays to protect them. With respect to specific = deterrence to=20 the accused, Sweet, I am satisfied that he is and has been remorseful = for his=20 conduct. He has recognized his need for professional assistance = and has=20 undertaken treatment such that the prognosis is strong he is unlikely to = reoffend.

[34] =20 The more difficult component is the general deterrence to other police=20 officers. I accept without hesitation that the vast majority of = police=20 officers do their job in an exemplary fashion, but for a few, such as = Constable=20 Sweet was on June the 19th of 2005 when he became frustrated with a = citizen or=20 with a situation or perhaps even at the whole criminal justice system = and who=20 lashed out in an unlawful manner, they must know that they will be = vigorously=20 prosecuted and, if convicted, sternly punished. This court cannot = send a=20 message to other police officers that the conduct at bar was not=20 serious.

[35] =20 Weighing all of this in the balance, I have concluded that the granting = of a=20 discharge would still not be contrary to the public interest provided=20 appropriate conditions are attached.

[36] =20 It is suggested that Constable Sweet could go back into the police = community to=20 give talks or lectures to other police officers. I have given = weighty=20 consideration to this, but in my view, he and the police community at = large=20 would be better served if he was required to reconnect with the public = community=20 at large, and especially those members of the public who he will likely = have to=20 encounter if he continues with his police duties. Any counselling = he=20 should do with other assaulters, not simply with other police = officers. He=20 should serve the general community and not slide back into what appears = to be a=20 life ensconced in a police community, his work, his leisure activities, = his=20 Justice Institute involvement, his shooting range involvement. It = is=20 important that police officers have a life outside of a police=20 community.

[37] =20 I thereby grant a conditional discharge, but with the following=20 conditions. Until December the 31st of 2007, you will be bound by = a=20 probation order with the following terms. You will keep the peace = and be=20 of good behaviour. You will appear before the court when required = to do so=20 by the court or by your probation officer. You will report to a = probation=20 officer at 275 East Cordova Street in Vancouver on or before 4:00 p.m., = July the=20 17th of 2007, and thereafter when and where required to do so by your = probation=20 officer. You will take anger management counselling in a group = setting at=20 a time and location designated by your probation officer.

[38] =20 You will complete 100 hours of community work service on or before = December the=20 14th of 2007. At least 30 hours of that service are to be = performed in a=20 food bank setting in the Downtown Eastside of Vancouver, or such other = similar=20 location as designated by your probation officer. Another 30 hours = are to=20 be served in a homeless shelter setting. All of these locations = are to be=20 selected for you by your probation officer. If your probation = officer is=20 unable to find appropriate locations at which these terms can be served, = then=20 the file is to be brought before this court for consideration of other=20 appropriate recommendations. The final 40 hours will involve = lecturing=20 peace officers about methods for controlling ones aggression and anxiety = as well=20 as the consequences for failing to do so. You will provide written = confirmation of compliance with this 40-hour period upon its=20 completion.

[39] =20 Now, a copy of that probation order will be prepared by a justice of the = peace=20 and you will be given a copy so you know what the terms are. If = you fail=20 to complete those terms, upon application by the Crown, you can be = brought back=20 and consideration given to appropriate consequences flowing = therefrom. =20

[40] =20 There will be a victim fine surcharge in this case of $100. There = will be=20 a further term in this probation order and this is you will have no = contact=20 directly or indirectly with Anthony John Wesley White, and you will not = attend=20 at any place of residence or place of employment of which you become = aware for=20 Anthony John Wesley White.

[41] =20 Now, the Crown seeks that you be required to produce a sample for DNA=20 analysis. This application is made pursuant to s. 487.51(1)(a)=20 [sic]. An offence of assault causing bodily harm is a primarily = designated=20 offence. There is a presumption that in such a case the order = would be=20 made. Subsection (2), though, of that same provision provides that = a:=20

...=20 court is not required to make [such] an order ... if it is satisfied = that [if]=20 were the order made, the impact on [your] ... privacy and security of = the person=20 would be grossly disproportionate to the public interest in the = protection of=20 society and the proper administration of justice, to be achieved through = the=20 early detection, arrest and conviction of offenders.

[42] =20 Given your age, the absence of a criminal record, your otherwise good = standing=20 in the community, the medical evidence that you are at low risk to = reoffend, in=20 my view, the impact on you indeed would be grossly disproportionate to = those=20 other factors, and accordingly, I decline to make the DNA order=20 sought.

[43] =20 Now, if counsel can just assist me. I believe I have covered the = issues=20 that were argued. Is there anything else that I failed to = address? =20 Oh, I guess time to pay on the fine.

[44] =20 MR. HARRIS: On the victim fine surcharge, that will be attended to = this=20 morning, Your Honour.

[45] =20 THE COURT: Thank you.

[46] =20 MR. HARRIS: One issue, Your Honour, is the final 40 hours of the = community=20 work service, you said in your reasons that written confirmation must be = provided. There was no indication as to whom --

[47] =20 THE COURT: To the probation officer.

(REASONS FOR SENTENCE=20 CONCLUDED)