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| John L. Hill |
An hour later, police arrested Cruz Thomas Joseph, then 33, for attacking two male strangers, Matthew Richert and William Johnson, with a machete. Joseph walked away with Johnson’s property. Joseph was initially charged with two counts of assault with a weapon, two counts of assault causing bodily harm, robbery, and possession of a dangerous weapon in connection with the attacks.
The victims were a 52-year-old man who was struck in the head and a 26-year-old man who was hit in the face. This was the culmination of Joseph’s acting out. A review of his distant and immediate past showed a continuation of past wrongdoing.
Joseph was also charged with possessing a weapon for a dangerous purpose and uttering threats concerning a separate incident in Vancouver on Oct. 16, 2020. That incident involved Joseph’s pointing a small black imitation handgun at a driver, Shane Gordon. who honked a car horn as Joseph jaywalked across the street. On Dec. 24, outside a Canadian tire store, Joseph struck Curtis Williams with a machete and punched him five or six times.
In 2022, he entered the guilty pleas before Vancouver Provincial Court by video. Joseph pleaded guilty to assault with a weapon against one man and to charges of assault causing bodily harm. Joseph pleaded not guilty
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The sentence consisted of 18 months for the offences against Gordon, 18 months consecutive for his attack on Williams, two years consecutive for assault causing bodily harm on Johnson and three-and-one-half years concurrent for robbing him. A five-and-a-half-year sentence was imposed for the crimes against Rickert and Johnson. That portion of the penalty was reduced to four years, giving credit for pretrial custody.
Joseph appealed the sentence, claiming the sentencing judge erred by failing to credit harsh prison conditions during COVID-19 lockdowns and declining to impose concurrent sentences for the Dec. 24 and 31 offences, which were similar and part of a drug-fuelled crime spree. The Appeal Court was also asked to decide if it was proper to consider Joseph’s criminal record in imposing consecutive sentences (R. v. Joseph, [2024] B.C.J. No. 2173).
Like many inmates, Joseph experienced a traumatic childhood marked by violence, sexual abuse and a largely absent father. He took to using fentanyl, cocaine and crystal meth and had limited success with long-term sobriety. His criminal record was lengthy, including charges for robbery, assaults and weapons offences. Psychiatric evidence suggested he might have experienced a series of substance-induced psychotic episodes. In the past, he became a federal penitentiary recidivist with significant issues of non-compliance with probation and parole conditions. He subsisted on a disability income. Of the 855 days in pretrial custody, he spent several periods not exceeding 35 days in COVID-19-related medical isolation.
The sentencing judge noted R. v. De La Cruz, 2023 ONSC 314, which would allow a discount beyond the 1.5-to-1 credit for pre-trial custody when harsh prison conditions arise. However, it is not the law in British Columbia that enhanced credit be given because of the pandemic (R. v. Costello, 2020 BCSC 1206; R. v. Greer, 2020 BCSC 1131; R. v. Pelly, 2023 BCPC 7; and R. v Szucs, 2021 BCSC 1441). Moreover, the judge was unable to determine with accuracy the exact amount of time Joseph was in medical isolation.
The defence had argued that the Dec. 24 and Dec. 31 offences were part of a crime spree, and Joseph should be sentenced concurrently for his misdeeds on these dates. The trial judge correctly determined that concurrent sentences would not adequately address the seriousness of his offences, his related criminal record, and his difficulties complying with community supervision. The test for consecutive or concurrent sentences is determined if the offences were part of a linked series of acts within a single endeavour (R. v. Li, 2009 BCCA 85, R. v. Lee, 2018 BCCA 428 and R. v. Potts, 2011 BCCA 9). The trial judge’s discretion must be upheld.
Sentencing judges are afforded considerable deference on appeal. Their decisions will be overturned only if there is an error in principle or the sentence is demonstrably unfit (R. v. Parranto, 2021 SCC 46 and R. v. Mann, 2018 BCCA 265).
Accordingly, the British Columbia Court of Appeal dismissed the appeal from sentence.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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