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Fountainhead basher’s sentence excessive: lawyer

Don't equate Woodward to bullying mob, Whysall tells judges

The appeal court judges weren't buying Whysall's arguments. Shawn Woodward (left) "perceived Mr Dowrey to be gay and that upset him. That's why he went out of his way to punch him," Justice David Frankel said. Credit: Shimon Karmel photo

A panel of BC Appeal Court judges challenged the lawyer of a convicted gaybasher on April 13 when he attempted to argue that his client’s sentence is excessive.

Shawn Woodward was sentenced to six years in jail last November for going out of his way to punch Ritchie Dowrey in the head in 2009, leaving him with “catastrophic” brain injuries.

“I see no other possible explanation for Mr Woodward’s behaviour than virulent homophobia,” provincial court judge Jocelyn Palmer ruled in passing sentence.

The punch knocked Dowrey backwards, where he struck his head on a tile floor with a thud that reverberated throughout
the Fountainhead Pub. Woodward then stepped over the body and walked away. Apprehended outside, multiple witnesses heard him repeatedly say, “He’s a faggot. He deserved it. The faggot touched me. He deserved it.”

Woodward’s lawyer, Joel Whysall, told the appeal court that two to three years would be a more just sentence, given his client’s lack of a criminal record. He also said his client’s statements outside the pub did not reflect a hate bias. Woodward was motivated not by homophobia but by Dowrey’s attempt to grab his crotch, Whysall said.

Like Judge Palmer, the appeal court judges weren’t buying it.

“Your problem is that defence was raised at trial and it wasn’t believed,” Justice David Frankel told Whysall. “The grabbing of the crotch never occurred. He’s trying to justify his actions by concocting a story.”

The trial judge already ruled there was “no air of reality” to the crotch-grabbing claim, agreed Justice Anne Rowles.

“He perceived Mr Dowrey to be gay and that upset him,” Frankel said. “That’s why he went out of his way to punch him.”

“The man was unconscious before he hit the floor,” Rowles added. “There was no doubt about the intent, as the judge found.”

Whysall maintained his client’s intent should not be equated with “bullying mob-like behaviour.”

“It’s not like a case where someone is walking down the street holding hands and then some kind of thuggish, mobbish behaviour… set upon him.”

Whysall asked the appeal court for guidance on how to apply the hate crime provision at sentencing. There should be “a scale of how aggravated that factor is,” he suggested, adding his client’s behaviour would not fall at the high end of that scale.

“But we have to deal with the facts,” Frankel replied. “One can only infer this was a thought-out and deliberate act by your client.”

“Counsel, I really am having difficulty seeing the distinction that you’re trying to draw here,” Rowles said.

“But it’s different from these situations where people are singling out others for attack,” Whysall maintained. “It’s more of a ‘I’m okay with it [gayness]…’”

“But don’t come into my space,” Frankel finished.

Remember, this was a significant assault with significant injuries, Rowles said. “In sentencing, consequences are taken into account.”

Whysall then attempted to argue that his client’s punch was too severely punished. Crown lawyer Fred Tischler disagreed. He told the judges the punch was a “devastating blow.”

“This was not a normal punch. This was a punch intended to be punishing,” Tischler said. “This is, in my submission, equal to or tantamount to using a weapon.”

Tischler described Dowrey as “a completely innocent victim who was attacked in a very deliberate and calculated way. [Woodward] went out of his way to inflict this punishment for what he saw as an unwelcome interaction.”

Woodward’s sentence cannot be described as excessive, the Crown concluded.

The judges reserved their decision. It’s not yet known when they’ll rule.

Meanwhile, Dowrey recently moved to a new care facility in Burnaby that his brother says he prefers to the one out in Langley.

“He was really looking forward to moving,” his brother Allan told Xtra outside the courtroom. “His long-term memory is better; his short-term memory is fragmented. He seems to be harping on things like playing golf.”