A man serving three years in prison after leaping out of some bushes next to his mom’s home and stabbing another man three times with a knife says he received an unfit sentence because a Surrey provincial court judge didn’t properly consider his schizophrenia as a mitigating factor.
But Justice Christopher Grauer, of the Court of Appeal for British Columbia, upheld the sentence and dismissed Jason Kenneth Andrew McGee’s appeal with Justices Harvey Groberman and Joyce Dewitt-Van Oosten concurring.
McGee, 28, pleaded guilty to aggravated assault and was sentenced in March. By that time, he had already been in jail 225 days and after getting time-and-a-half credit for that, his net sentence worked out to 757 more days in prison.
He told the appeal court his sentence should be more like 15 to 20 months plus probation.
The court heard that just before midnight, on Aug. 7, 2019 McGee jumped from the bushes, stabbed the victim and took off before police arrived, but he was arrested the following day. The Crown told the court the wounds were in the victim’s back but McGee, who represented himself in court, claimed they were under his shoulder and arm. While serious, the wounds were not considered to be life-threatening.
At the time of the stabbing McGee was on bail and violated two conditions by going to his mother’s home and possessing a weapon. The court heard he had eight prior convictions – one for assault in 2016, one for arson in 2017 and the other six for breaching court orders.
Grauer noted in his Dec. 17 reasons for judgment that a psychiatrist assessed McGee less than a month before he was sentenced and indicated he continued to suffer psychotic episodes “but had improved considerably after two months of treatment and medication at the Forensic Psychiatric Hospital, and could now engage in meaningful conversations. He was found fit, although the author reported that he lacked insight into his mental illness, denied symptoms, and exhibited poor judgment.”
The Surrey sentencing judge noted McGee doesn’t believe his attack compromised public safety, “thinking it was a private act at a residence, and that McGee also maintained his victim could have defended himself if he tried.
“That is the degree of his lack of insight into his conduct,” the judge said.
Grauer noted that had the Surrey judge sentenced McGee to a prison term at the “high end of the range,” it then “would certainly be arguable that the judge had erred in principle by failing to give proper consideration to the effect of mental illness on the offender’s moral culpability.
“But that is not what occurred,” Grauer added, noting the provincial court judge did take McGee’s mental health into account.
“Indeed, apart from the guilty plea, it was the only factor he discussed as justifying the reduction in sentence from something towards the high end of the range at six years, to three years,” Grauer noted. “The other factors present in this case, including the circumstances of the offence, the appellant’s record, and the fact that in approaching his mother’s residence and possessing a weapon, he violated his bail conditions, all supported a significantly longer sentence.”