Subject: R. v. Sweet - Reasons for Sentence
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Date: Wed, 5 Mar 2008 16:07:16 -0800

Citation:

R. v. Sweet

Date:

20070713

2007 BCPC 0240

File No:

185071-1

Registry:

Vancouver

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

REGINA

v.

TODD SWEET

ORAL REASONS FOR SENTENCE

OF THE

HONOURABLE JUDGE H.F. WEITZEL

Counsel for the Crown:

S. Lowe

Counsel for the Defendant:

R. Harris

Place of Hearing:

Vancouver, B.C.

Date of Hearing:

July 13, 2007

Date of Judgment:

July 13, 2007

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[23]       The facts of this assault are also an aggravating factor.  Anthony White 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 position whereby he presented no danger to the accused’s safety or any other officer’s safety, and was similarly in a position where he was unable to defend himself.  For Todd Sweet to kick him was a cowardly act suggesting perhaps an act of unlawful street justice.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[45]       THE COURT:  Thank you.

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

[47]       THE COURT:  To the probation officer.

(REASONS FOR SENTENCE CONCLUDED)