R v Darby, 2016 ABQB 352

Court of Queen’s Bench of Alberta Citation: R v Darby, 2016 ABQB 352 Date: 20160629 Docket: 140017708Q1; 140112699Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Dustin Duke Darby Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W.A. Tilleman _______________________________________________________ Introduction [ 1 ] Mr.

Darby pleaded guilty to conspiracy to commit murder under Indictment 140017708Q1: THAT THEY ON OR ABOUT THE 9 TH DAY OF AUGUST, 2008, AT OR NEAR THE CITY OF CALGARY, IN THE PROVINCE OF ALBERTA, DID CONSPIRE WITH EACH OTHER AND WITH [H.E., G.H.] AND WITH OTHER PERSONS KNOWN AND UNKNOWN TO MURDER KEVIN NEAL BONTOGON OR TO CAUSE KEVIN NEAL BONTOGON TO BE MURDERED CONTRARY TO SECTION 465(1)(

A) OF THE CRIMINAL CODE OF CANADA. [ 2 ] Mr. Darby also pleaded guilty to being an accessory after the fact to murder under Indictment 140112699Q1: THAT HE ON OR ABOUT THE 1 ST AND 2 ND DAYS OF JANUARY, 2009, AT OR NEAR THE CITY OF CALGARY, IN THE PROVINCE OF ALBERTA, KNOWING THAT NATHAN LAWRENCE ZUCCHERATO, G.H. AND REAL CHRISTIAN HONORIO DID COMMIT THE MURDER DID RECEIVE, COMFORT OR ASSIST THEM FOR THE PURPOSE OF ENABLING

THEM TO ESCAPE CONTRARY TO

SECTION 240 OF THE CRIMINAL CODE OF CANADA. Admissions [ 3 ] The Crown alleges and Mr. Darby admits the following facts, paraphrased from the Agreed Statement of Facts, for the purpose of supporting his guilty pleas and determining his sentence. [ 4 ] The “FOB” (the “Fresh Off the Boat” AKA “Forever our Brother”) was a street gang operating in Calgary, Alberta between 2002 and 2009.

A death and a shooting in 2002 precipitated a complete split in the group and ultimately led to a gang war between the faction known as the FOB and the faction known as the FK (the “FOB Killers”). [ 5 ] Between December 2002 and January 2009 there were approximately 24 retaliatory murders involving members and associates of the FOB and FK. H.E., G.H., Nathan Zuccherato, and Dustin Darby were all members of the FOB in 2008 and 2009.

Real Honorio was a member of the “403 Soldiers” gang, which by the fall of 2008 had become allied to the FOB. [ 6 ] In August 2008, Darby conspired with H.E., G.H., Zuccherato and two other FOB members to kill Kevin Bontogon, a member of the FK. [ 7 ] In January 2009, Darby was an accessory after the fact to the murders of Sanjeev Mann, Aaron Bendle, and Kenneth Su’a.

August 9, 2008 – The conspiracy to murder Kevin Bontogon [ 8 ] Sometime on August 9, 2008, Darby and H.E. were together in Darby’s vehicle when Darby received a text message indicating that Bontogon might be at a tattoo parlor called Esoterik Body Art later that day. [ 9 ] After receiving this information, H.E., G.H. and two other members of the FOB met at the Chinese Cultural Centre; Darby joined this meeting while it was in progress.

Everyone present believed that one of Bontogon’s associates had made arrangements to get a tattoo at Esoterik. [ 10 ] Zuccherato, who was not yet known to H.E. and G.H., passed information to Darby that he had received from an employee of Esoterik. The employee recognized a different individual, Kevin Anaya, when he came to book his appointment for later that day. The same employee gave Zuccherato a copy of Anaya’s driver’s licence. [ 11 ] At the meeting with H.E., G.H., and Darby, the two unnamed members of the FOB asked G.H. to locate and kill Bontogon.

It was agreed at the meeting that H.E. would ride with G.H. and assist in killing Bontogon. Darby’s task was to go to the tattoo parlor to facilitate communication between Zuccherato, in one vehicle, and H.E. and G.H., in another. [ 12 ] Everyone present at the meeting, including Darby, understood that the plan was to locate and kill Bontogon, with H.E. and G.H. as the shooters. The plan was to follow Bontogon’s associate on the assumption he would lead them to Bontogon. [ 13 ] Darby, H.E. and G.H. proceeded to Esoterik.

Darby drove alone in his pickup truck, while H.E. and G.H. drove in G.H.’s Acura sedan. [ 14 ] When H.E. and G.H. arrived at Esoterik, they spotted the vehicle Zuccherato was in with some of his associates. They thought he might be an FK member. Darby reassured H.E. and G.H., via text message, that Zuccherato was on their side. [ 15 ] At some point, Darby obtained the copy of Anaya’s drivers licence from Zuccherato and showed it to H.E. and G.H. so that they could identify Anaya. [ 16 ] Around 5:30PM, Anaya exited Esoterik while Darby, H.E., G.H., and Zuccherato were waiting.

Anaya entered his vehicle and began driving to a house located at 1067 Marcombe Drive NE. His vehicle left the parking lot and travelled east on Marlborough Drive NE. Darby followed Anaya’s vehicle from a distance. G.H. and H.E. also followed in G.H.’s vehicle. [ 17 ] After first travelling eastbound, Anaya did a U-turn at 52 nd Street and began travelling west on Marlborough Drive NE. Darby followed Anaya’s vehicle until he turned onto Marcombe Drive NE. Darby turned onto Marcombe Crescent NE and then into an alley. He heard shots while driving in the alley.

He then left the Marlborough area. [ 18 ] G.H. and H.E., by contrast, continued to follow Anaya’s vehicle. Anaya parked his car near 1067 Marcombe Drive NE. He began to walk up the laneway to the house. G.H., who was driving the Acura sedan, stopped near 1067 Marcombe Drive NE. He and H.E. exited the vehicle and H.E. fired a few rounds from a 9mm handgun he had been given to carry out the murder. His shots hit Anaya and caused him to fall to the ground on the laneway in front of the house. [ 19 ] H.E. then walked up to Anaya and fired, from point blank range, several more shots into Anaya’s body and face.

G.H. stood nearby as H.E. did so. Anaya died as a result of multiple gunshot wounds. [ 20 ] After the shooting, Darby, H.E. and G.H. left the scene and met at a residence. Darby gathered H.E.’s gun and clothing. He placed the clothing in a bag while H.E. washed himself. The two then left the residence in Darby’s vehicle and headed east out of the city. They weighed down H.E.’s bag of clothing and threw it in a stream and buried the gun used to kill Anaya in a farmer’s field. Neither the clothing nor the handgun has ever been recovered.

January 1, 2009 – Accessory after the fact to the murders of Sanjeev Mann, Aaron

Bendle, and Kenneth Su’a [ 21 ] In December 2008, members of the FOB developed a plan to target Sanjeev Mann, a prominent member of the FK. G.H. was told that “MM” had encountered someone who worked for Mann and could be used to locate him. G.H. was instructed to kill Mann with MM’s assistance. [ 22 ] Later that the month, G.H. spoke to “MM” about the task and then to Zuccherato. He also raised the subject in a meeting with Zuccherato and two members of the 403 Soldiers, Honorio and “B”. Over time, they developed a plan.

MM would arrange a meeting with Bendle (a different person than “B”), the person who could lead them to Mann. MM, G.H., Zuccherato, and Honorio would then kidnap Bendle and force him to lead them to their target. [ 23 ] They put the plan into effect on December 31, 2008. G.H., Zuccherato, Honorio, B and MM kidnapped Bendle and used his cell phone to contact Mann. Mann refused to meet that evening. The group had not expected this development and made hurried arrangements to keep Bendle overnight.

After they settled in, G.H. and Zuccherato decided that Bendle would have to be killed after he led them to Mann, since he had seen them and could be a witness. They agreed that Zuccherato would kill Bendle, while G.H. would kill Mann. [ 24 ] Honorio volunteered to be a shooter, since he wanted to prove himself to the FOB. Zuccherato and G.H. gave him a handgun, a .357 revolver. They did not assign Honorio a specific role. [ 25 ] That same day, Darby received a text message from G.H. telling him to rent a car for the next day.

On January 1, 2009, Darby rented a silver Mazda from the Avis car rental location at the Calgary Airport. He rented the vehicle in his own name. [ 26 ] When G.H. met Darby to collect the rented Mazda, he told Darby what had already happened, including that Bendle had been kidnapped and about the plan to kill Mann. Darby expressed concern about the plan, said it was risky, and advised G.H. to be careful. Darby also advised G.H. that he did not want to take

part in the kidnapping and shooting. [ 27 ] Later that day, Mann agreed to meet Bendle at the Bolsa Restaurant. Bendle was forced to drive there in his own vehicle. He had been told he wouldn’t be harmed if he cooperated. [ 28 ] Honorio was in Bendle’s vehicle. G.H. and Zuccherato travelled to the restaurant in the Mazda rented by Darby. Once at the restaurant, Honorio left the Bendle vehicle and got into the Mazda. Bendle was told to enter the restaurant in a calm manner. [ 29 ] Zuccherato began shooting after he entered the restaurant. He shot and killed Bendle as planned.

G.H. spotted Mann, shot him several times, and killed him. G.H. and Zuccherato then ran from the restaurant. As they did so, Honorio shot and killed Su’a, a customer at the restaurant who was shot and killed as he tried to flee from the shooting inside. He has received a life sentence with parole ineligibility set at 16 years. See R v Honorio , 2016 ABQB 351 [ 30 ] After the shooting, G.H. drove Zuccherato and Honorio back to a house. The shooters took off their clothing and placed it in a garbage bag. The firearms were wiped and placed in another bag.

Another person came to the house and drove G.H., Zuccherato and B to a location outside Calgary where B, at the others’ direction, disposed of the firearms and some cell phones. A firearm matching the .357 description and some cell phones were found in the location described by G.H. and B. [ 31 ] G.H., Zuccherato and Honorio attended C’s residence. They decided to purchase new clothing. Before they left, G.H. asked MM to start a fire and burn the clothing contained in the bag and to destroy the cell phones that had been used.

After the new clothing was purchased, G.H., Zuccherato, and Honorio returned to C’s residence and eventually went their separate ways. [ 32 ] On January 2, 2009, G.H. and Darby cleaned the rental vehicle in an effort to remove all trace evidence. Darby was aware that the car had been used in the murders. He returned it to the Avis Calgary Airport location at 5:20PM. Expert Evidence of Dr. Marc Nesca [ 33 ] Dr. Nesca, an expert in forensic psychology, was asked to prepare a pre-sentence report that included an assessment of Mr. Darby’s risk and rehabilitation potential.

He testified for the defence and in favour of Mr. Darby’s rehabilitation after he reviewed the Agreed Statement of Facts, transcripts, handwritten notes, intercepts, and other matters. He also interviewed Darby on two different dates for a total of 5½ hours and combined the information he gleaned with the results of psychological tests (which consisted of valid objective psychological assessments with checks and balances to weed out any test manipulation). [ 34 ] By way of

summary, he concluded that Darby

i) has a clean bill of psychological health; ii) is stable, not callous; iii) deals well with stress, is pragmatic, and has good anger and aggression control, and iv) is not aggressive and in some cases, less aggressive than the average individual in the community. In short, Darby does not have psychopathic traits and his future prospects look good. [ 35 ] Dr. Nesca analyzed Darby’s risk for general and specific recidivism; he looked at personality, cognitive, and anti-social peers factors. Further, he looked at community supports and indicia of substance abuse.

His conclusion, based on various risk factors and weeding out any subjective influences, put Darby at a low risk to offend in a violent manner. [ 36 ] Further, by way of advice to Corrections Canada, he suggested that Darby should be moved to minimum security as soon as possible, not only because maximum security is a cauldron of criminal activity and a breeding ground for further crime, but because Darby does not belong there. He explained that maximum security is the “linchpin variable” in predicting Darby’s future behavior, which Dr.

Nesca found will hinge very heavily on exposure to criminal influences . [ 37 ] In short, subject to his future influences, Darby should be considered a low risk for future criminal behavior. He presents with

remorse and with very good rehabilitation potential taking into account his background and maturity. [ 38 ] The Crown questioned Dr. Nesca thoroughly about the lack of certain information that could have been in his report. Dr. Nesca acknowledged that he did not document all information, such as a toxicology test that might have contradicted Darby’s word on the issue (in that case, on the question of whether he uses drugs). Dr.

Nesca did not find this to be important, since by Darby’s own account, he has been a professional drug dealer since he was 18. [ 39 ] The Crown also questioned him regarding Darby’s association with gangs and its impact on his potential rehabilitation. Previously, Darby has said that he was in a war and that he either kills or gets killed. Dr. Nesca explained that Darby was a soldier in a war and not making excuses, and that Mr. Darby felt (and still does) that his own life is in danger. Dr.

Nesca stated this was an unconscious experience, but it alters one’s perception to avoid damage to oneself, akin to a sniper who comes home from war and appears okay until he starts to deconstruct his underlying rationalization resulting in PTSD. [ 40 ] Dr. Nesca said that Darby’s role in the gang was as its treasurer. He still had a relationship with gang members, but that he has little choice at present because of his current jail placement. Dr.

Nesca said that jail can rehabilitate people and Corrections Canada is effective in doing so, at least in some settings, but that avoiding ongoing gang contact will be critical to Darby’s rehabilitation. [ 41 ] If Darby removes himself from his negative influences, Dr. Nesca is confident he will be okay. If he does not, then the converse will be true. It all comes down to what Darby does in the future. If he goes back to his old ways, then his prospects for rehabilitation will go out the window. But presently, rehabilitation looks very promising.

Victim Impact Statements [ 42 ] At the sentencing hearing, the Crown sought to introduce victim impact statements from the relatives of the three deceased men: Mann, Bendle and Su’a.

The Crown argued that while Darby was not involved in the killings directly, as an accessory after the fact to their murders, the relatives of the three murder victims were the victims of his offence. [ 43 ] Defence counsel pointed to s 722(1) of the Code , which requires the court to consider any statement of a victim describing the harm they had suffered as the result of “the commission of the offence and the impact of the offence on the victim” [emphasis added].

The Defence argued that the relatives of the murder victims are not the victims of Darby’s crime, or at least, that there is insufficient proximity or nexus between Darby’s actions in cleaning and returning the rental vehicle and their victimization resulting from the death of their family members. They also cautioned that the statements had the potential to be quite prejudicial. [ 44 ] I decided to admit the statements. The role of victims in the criminal justice system was clarified in the Victims Bill of Rights Act , SC 2015, c 13 (“VRBA”).

The VRBA created substantive rights for victims of crime in Canada and amended the Criminal Code .

Parliament clearly intended to give a wide voice for victims when passing the amendments to the Criminal Code contained in the VRBA . [ 45 ] Under the Code , a victim for the purposes of admitting a victim impact statement is “a person who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of an offence against any other person .” [ 46 ] If the families of the deceased are not the victims of this offence, then it begs the question “who are the victims?” Accessory after the fact to murder is not a victimless crime.

Darby’s actions in cleaning up the car to remove trace evidence were an attempt at concealment of any such evidence. Any assistance to the murderers impacts the police’s ability to investigate and detect the persons responsible for them. This creates a direct relationship between Darby’s actions and the victimization of these families, who were even more directly affected by the deaths of a loved family member. [ 47 ] Defence counsel’s

interpretation of the victim impact provisions is far too restrictive. If there is a lack of nexus between the offender’s act and the impact on the victim, it becomes a question of the weight to be given to the victim’s statement, not a question of its admissibility. [ 48 ] I reviewed the victim impact statements with care and consideration; however, taking Defence counsel’s concerns into account, I must give them limited weight in the circumstances since Darby’s involvement in the murders themselves was as an accessory, by cleaning up the rental vehicle to remove any trace evidence. He was not directly involved in the killings. Principles of Sentencing [ 49 ]

Section 718 sets out the fundamental purpose of sentencing: to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.

The sanctions have one or more of the following objectives: • to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; • to deter the offender and other persons from committing offences; • to separate offenders from society, where necessary; • to assist in rehabilitating offenders; • to provide reparations for harm done to victims or to the community; and, • to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

[50] A proper sentence fits both the offender and the offence; it should vary according to the circumstances of the offence and thecircumstances of the offender. In R v CAM, (SCC), [1996] 1 SCR 500, the Supreme Court of Canada stated at para 82: …In the final analysis, the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determinea “just and appropriate” sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender.[Emphasis added.] [51]

Section 718.1 states that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender.” The principle of proportionality is central to the sentencing process; it has a long history as a guiding principle in sentencing:R v Nasogaluak, 2010 SCC 6 at para 41. Proportionality is inherently linked to the moral blameworthiness of the offender.

Lebel J statedat para 42 of Nasogaluak: …the degree of censure required to express society’s condemnation of the offence is always limited by the principle that an offender’ssentence must be equivalent to his or her moral culpability, and not greater than it.

The two perspectives on proportionality thus convergein a sentence that both speaks out against the offence and punishes the offender no more than is necessary. [52] Courts have emphasized the principles of denunciation and deterrence when dealing with offences of conspiracy to commitmurder: R v Lee, 2013 BCSC 1259 at para 27; R v Nipitella, [2007] OJ no 417 (Sup Ct) at para 37; and, R v Van Buskirk, 2007 BCSC1925 at para 18.

Deterrence is a primary consideration in accessory after the fact to murder cases as well, to dissuade others fromengaging in similar conduct that frustrates the administration of justice: R v Tutin, 2004 NWTSC 20 at para 27 and R v Wisdom, [1992]OJ no 3110 (Gen Div) at para 30. [53]

Section 718.2 requires the court to consider a number of aggravating and mitigating factors, as well as to consider thesentences imposed on similar offenders for similar offences. Common aggravating and mitigating factors include planning anddeliberation; association with a criminal organization; weapons; vulnerability of the victim; post-offence conduct; previous good character of the accused; potential for rehabilitation; age of the offender; remorse; and, guilty plea: Clayton C Ruby et al, Sentencing, 7th ed, looseleaf, (Markham, Ont: LexisNexis Canada, 2008), ch 5. [54] Further,

section 718.2(

c) of the Criminal Code instructs courts to ensure the combined sentence in the case of consecutivesentences is not unduly long or harsh. According to the totality principle, a sentencing judge must ensure that the combined sentence isnot out of proportion to the “overall culpability of the offender”: CAM at para 42. The Supreme Court quoted from Mr. Ruby’sSentencing at para 42 of CAM: The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate"just and appropriate".

A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above thenormal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushingsentence" not in keeping with his record and prospects. [55] The Newfoundland Court of Appeal in R v Rowe, 2008 NLCA 3 at para 48 stated that the court should first determine theappropriate sentence for each offence, then determine the total of these sentences and adjust as necessary so that the final sentence doesnot offend the totality principle. [56] Section 465(1) of the Criminal Code provides that someone convicted of conspiracy to commit murder is liable to a maximumsentence of life imprisonment.

Similarly, under

section 240 the punishment for being an accessory after the fact to murder also has amaximum penalty of life imprisonment. [57] Finally, section 719(3) provides that in determining the sentence to be imposed, the court may take into account any timespent in custody as a result of the offence, but the court shall limit any such credit to a maximum of one day for each day spent incustody. Section 719(3.1) provides, however, notwithstanding 719(3), that if the circumstances justify it, the maximum is one and onehalf days for each day spent in custody.

Section 719 is permissive and gives rise to the commonly used “dead time” credit. [58] In R v Summers, 2014 SCC 26 the Supreme Court of Canada concluded that the principles underlying enhanced credit had notchanged, even though the credit is now limited to 1.5 days per day served in pre-trial custody. Issues [59] This case raises the following issues: 1. Was Darby part of a criminal organization, as that term is defined in the Criminal Code? 2. What is a just and appropriate sentence for the offence of conspiracy to commit murder on the facts of this case? 3.

What is a just and appropriate sentence for the offence of accessory after the fact to murder on the facts of this case? 4. Should Darby be given any credit for the time he has spent in custody at the Remand Centre? Criminal organization [60] I shall first address the question of whether Darby’s membership in the FOB amounts to membership in a “criminalorganization” for the purposes of sections 718.2 and 467.1 of the Criminal Code. The Crown argues that this fact has been establishedand that it is a mandatory aggravating factor.

The Defence admits that Darby was a member of a gang, but states that the Crown has not

proven that the FOB gang is a criminal organization. [ 61 ]

Section 467.1(1) provides the definition of criminal organization. For membership in a criminal organization to be an explicit aggravating factor under

section 718.2(a)(iv), the Crown must establish beyond a reasonable doubt that (

i) Darby was part of a group, however organized, (ii) that had as one of its main purposes or main activities the commission of one or more serious offences (an offence for which the maximum punishment is 5 years in prison or more), (iii) that if committed would likely result in the direct or indirect receipt of a material benefit, and (iv) that the offences to which he had pleaded guilty were committed in association with this criminal organization. [ 62 ] I find counsel’s argument on this point to be a distinction without a difference.

Defence counsel’s submission that the Crown has not proven that the FOB is a “criminal organization” as defined in the Code is persuasive. Although it seems counterintuitive to suggest that a gang is not a criminal organization, the Crown has not established beyond a reasonable doubt that the commission of serious offences by the criminal organization would likely result in the direct or indirect receipt of a material benefit to its members, in this case, Darby. [ 63 ] Yet little turns on the distinction.

The FOB’s status as a criminal organization under the definition in the Code has little impact on Darby’s sentence because

section 718.2 instructs the court to consider a number of aggravating or mitigating circumstances relating to the offender and the offence.

While proof that Darby committed the offence in association with a criminal organization automatically would be an aggravating factor, there are numerous cases that I believe correctly find gang membership to be an aggravating factor in sentencing, regardless of whether the gang satisfies each element of the definition of criminal organization. [ 64 ] The case law recognizes gangs and gang violence as a threat to orderly society and considers membership in such groups as an aggravating factor, including some of the cases discussed in more detail below: Lee , supra ; R v Smith , 2011 NSSC 413 ; and, R v Belisle- Taylor , 2011 NSSC 149 . [ 65 ] In

summary, the Agreed Statement of Facts indicates that Darby was a member of a street gang, known as the FOB, which began earning money by selling drugs, via “dial a doping” and other means. The FOB was involved in a series of retaliatory murders over a seven year period, between December 2002 and January 2009. Darby’s involvement in such a group is an aggravating factor in his sentencing, regardless of whether the group meets the listed definition of criminal organization.

Sentencing submissions [ 66 ] The Crown seeks a global sentence of 15 years imprisonment: 10 years for the offence of conspiracy to commit murder, followed by 5 years for the offence of accessory after the fact to murder. The Crown argues these sentences should be served consecutively, after Darby finishes serving his current sentence.

The Crown also seeks a lifetime firearms prohibition, as well as a mandatory DNA sample. [ 67 ] The Defence submits that Darby should receive a total sentence of 8 to 10 years: 6-7 years for conspiracy and 2 to 3 years for his role as accessory. [ 68 ] The Defence suggests that it is open to the court to decide whether the sentences should be served concurrently, rather than consecutively. The Defence notes that general deterrence is an overriding principle, but that proportionality is also important and a principle informed by restraint.

In other words, the court should impose no more punishment than is necessary. [ 69 ] The Defence further argues that the Crown has given no weight to Darby’s significant rehabilitation potential and submits that it is clear he intends to re-establish himself as a productive member of society. Since his incarceration, he has sought to distance himself from negative associates. He has also found a new passion for the welding trade and has worked extensively towards his goal of earning his journeyman’s ticket in welding.

The Defence also suggests the Crown has given no weight to his guilty plea and has not taken the totality principle into account. Conspiracy Crown position [ 70 ] The Crown argues Darby was significantly involved in the conspiracy to murder Bontogon. He obtained information from Zuccherato in the first place and also obtained a copy of the Anaya’s driver’s license and gave it to the shooters, G.H. and H.E. He attended a planning meeting, even though he was not present for the whole meeting. [ 71 ] Darby had a specific role, namely, as lookout and to assist with communication between the other conspirators.

There was planning and deliberation in this offence. Darby knew that the plan was to kill Bontogon. Essentially, the Crown states that without conspiring to kill Bontogon, Anaya would not have been killed. [ 72 ] Darby then followed Anaya’s vehicle, along with the other conspirators. Although he was not present at the site of death, he was close enough to hear the shots. He then assisted the other conspirators by gathering and disposing of H.E.’s clothing and burying the handgun used in the commission of the offence.

This forever concealed the items from the shooting. [ 73 ] The Crown submits that it is particularly aggravating that this offence occurred in the context of gang warfare. Darby had an almost decade long history of gang involvement. He was not a small player; rather, he was a member of the FOB and its treasurer. [ 74 ] In addition to the aggravating factors of the gang connection, planning and deliberation, and the concealing of evidence, the murder involved the use of a firearm in a public place. Also, Darby was on release for firearms related charges at the time.

[ 75 ] The main mitigating factors are Darby’s guilty plea before trial and that the fact that he has expressed remorse. Defence position [ 76 ] The Defence submits that sentence ranges for conspiracy to commit murder vary widely based on the circumstances of each case. Courts have imposed sentences as low as three to four years imprisonment and as lengthy as the maximum life imprisonment. In general, the sentence will be higher when the offence is committed for financial gain and when the offence involves a high degree of planning and deliberation.

The sentences also reflect the extent of the offender’s involvement. [ 77 ] The Defence argues Darby had a minor role in a short lived, ill-conceived plan to kill Bontogon if he showed up at the tattoo parlor. The agreement to kill Bontogon was created by the time Darby showed up at the planning meeting. Darby was a lookout, who passed along information. He was not central to the formulation of the plan and the conspiracy could have been carried out without him. He followed Anaya, but Anaya was not the target. Darby had no idea that the others would kill him.

Defence counsel argues that Darby should not be held responsible for H.E.’s and G.H.’s spur-of-the-moment decision to shoot Anaya. Darby was not even present at the shooting. [ 78 ] The Defence further submits that Darby is not a typical offender. Dr. Nesca’s evidence is that he has no psychopathic traits and is less violent than the average person in society. Dr. Nesca was positive about Darby’s rehabilitation prospects, provided he is able to separate himself from the influence of gang members. Darby has significant family and community support, which also bode well for his rehabilitation.

While it is true that Darby is currently being held in the gang unit, this is a circumstance beyond his control. Due to the nature of these charges, it is where he was placed while at the Remand Centre; the only alternative would have been segregation. [ 79 ] The Defence argues that there are significant mitigating factors including Darby’s guilty plea, and his remorse and rehabilitative potential. The Defence submits the guilty plea alone should result in a sentence reduction in the range of 30%.

If the trial had proceeded, substantial court time would have been required to address challenges relating to abuse of process, unlawful search and seizure, challenges to wiretap evidence, severance, and expert evidence issues. Also, it would have been necessary to transport protected witnesses to testify for the prosecution.

Case law [ 80 ] The Crown relies on four cases: R v Radjenovic , 2011 BCSC 1225 , affirmed 2013 BCCA 522 ; Lee , supra ; R v Smith , supra ; and, Belisle-Taylor , supra . [ 81 ] In Radjenovic , Justice Kerr imposed sentences for guilty pleas to three counts of counselling another to commit the murder of three individuals, over a seven month period. Although the murders did not occur, the plan was to use high-powered firearms in public places and a few attempts were made.

The offender, like Darby, was on release for firearms related offences at the time. [ 82 ] In passing sentence, the judge noted our universal abhorrence for this type of offence. She commented that strong denunciatory sentences are required for offences designed to interfere with and extinguish life, particularly those offences involving cold calculation and considerable planning and deliberation.

She also noted the negative impact of firearms offences on the community at large. [ 83 ] Given the various aggravating and mitigating circumstances, including the extensive planning and deliberation and the anticipated financial benefit, but also the offender’s relative youth, lack of prior record, and guilty plea, the judge imposed a sentence of 7, 6 and 9 years respectively for each count. [ 84 ] The Defence distinguished Radjenovic on the grounds that it involves counselling with respect to three separate targets. Darby was not involved in counselling, and furthermore, there was only one target.

Also, unlike the facts in Radjenovic , there was no business plan to kill someone for money. The Defence argues the only similarity between Darby and Radjenovic is their age. [ 85 ] In Lee , Justice Dillon considered a conspiracy offence in the context of gang warfare. Five accused pleaded guilty to conspiracy to murder three members of a rival gang. The judge described the UN gang’s movements as a “manhunt” and one conspirator referred to it as a “war”: Lee at para 15-16 . Rewards from $5,000 to $40,000 would be paid for their murders.

During this war, the gang mistakenly killed a man who happened to be driving the target’s car. [ 86 ] Justice Dillon imposed sentences of 11, 12, 14, 12 and 13 years on the five separate offenders. The sentence was based on a joint submission and recognized the aggravating factors of killing for financial gain, the high degree of planning and deliberation, and the killing of an innocent man. The conspirators had photos of the targets, had scouted locations associated with their rivals, and had made multiple attempts over the course of the year.

Dillon J commented that when the crime involves a contracted killing in a gang environment, “the primary focus in sentencing is denunciation and deterrence of others from similar conduct, particularly gang related crime.” [ 87 ] The Crown argues that Darby’s involvement is similar to Lee’s case. Lee was an associate of the gang, but not a directing mind; in fact, he was the least involved in the group. He was privy to the plans and scouted targets with the gang leaders on two occasions, but he was not present at certain key events.

He was 33 years old at the time of sentencing, had a prior record for drug offences, and his guilty plea was a mitigating factor. He was sentenced to 11 years imprisonment. [ 88 ] The Crown concedes that some of the aggravating factors in Lee do not exist in Darby’s case. In particular, the conspiracy in the case at bar was short-lived and ill-conceived and involved minimal advance planning and deliberation. It certainly was not the sophisticated operation at work in Lee .

Also, there was no monetary reward for Darby’s role as lookout. [ 89 ] In Belisle-Taylor , the offender’s role in the conspiracy involved driving the principal, dropping him off at the scene, and conspiring as to the manner of committing the murder. He also had the job of assisting the principal in his getaway by using another car

as a decoy. He knew of the danger the plan posed to the public, including the fact that the shooting would occur in the vicinity of a school, a daycare, a playground, and multi-unit residences. He had a lengthy criminal record. [ 90 ] In sentencing the offender to 10 years imprisonment, the judge specifically commented on the gang context and the accused’s understanding of the criminal justice system at paras 46 and 50: It is my view that denunciation and deterrence must be emphasized in passing sentence. In this regard I agree with the Crown submissions.

However, I am not as quick, as the Crown would have it, to write off Mr.

Belisle-Taylor as an incorrigible criminal for whom the possibility of rehabilitation should be accorded little weight. … However, in cases such as this one, where the offender has been engaged in illegal activity over an extended period of time starting at an early age, with a regular contact with the police, repeated experiences in criminal courts, and who operates with associates in the general culture of drugs and violence, then it is reasonable to expect them to have some greater awareness of what the specific consequences may be for any particular illegal conduct.

The courts have often focused on how best to generally deter that group who would be of like mind in similar circumstances. As such, it remains a significant factor to be considered in the imposition of sentence in a case such as this. … [ 91 ] In Smith , the victim was shot in his vehicle at a busy location outside a hospital in a settling of scores between two rival gangs involved in the local drug trade. He was not killed. Four people were charged with conspiracy to commit murder and attempted murder. Smith pleaded guilty to conspiracy to commit murder and received a 10 year sentence.

He was an active participant in the conspiracy and had an extensive criminal record for his age. The judge noted the impact of gang violence on the community at large, particularly the notion that members of the public are entitled to feel safe if they stay away from gangs and the pockets of the city those gangs inhabit. The Crown suggests Darby is even more culpable since one man is dead as a result of the conspiracy. [ 92 ] In the companion Murphy case, R v Murphy , 2011 NSSC 410 , upon which the Defence relies, Murphy was sentenced to 5 years imprisonment for a lesser role in the conspiracy.

He relayed information over the telephone about the location of the target. He was not involved in the offence prior to the shooting or afterwards, nonetheless, Coady J found that Murphy would have known that “murder was in the air”: Murphy at para 7 . [ 93 ] In sentencing Murphy, Justice Coady emphasized his rehabilitative potential. The judge found he was “basically a good person who allowed himself to fall in with the criminal crowd”: Murphy at para 21 .

The judge also concluded that, unlike the other conspirators, he was not a dangerous man. [ 94 ] The Defence correctly argues there are striking similarities between Murphy and the case at bar. Darby and Murphy were both 25 years old at the time of the offence. They both became involved with the wrong crowd and allowed themselves to become swept up in the conspiracy. They each passed along information to others as part of the conspiracy.

Neither were the masterminds of the criminal plots; rather, they were both bit players. [ 95 ] Both cases involve gang activities, yet the judge found Murphy was not a dangerous man, just as the evidence here suggests Darby lacks violent tendencies. [ 96 ] Defence counsel submitted a number of cases in support of their argument. I have considered all of them but discuss below the ones I found to be most relevant. [ 97 ] In R v Belcourt , 2012 BCSC 404 , three accused conspired to kill the father of Belcourt’s child, with whom she was locked in a custody battle.

She paid a fellow conspirator $10,000, who then hired a third conspirator, Doiron to kill the target. Belcourt provided photos and information about the target, while the other two planned the killing. They intended to use a high-powered rifle in a public place, but police intervened and arrested them. [ 98 ] In Belcourt , there was about three weeks of planning and deliberation, but no actual observation of the intended victim before the police stopped the plot. Justice Dillon found the offence fell in the middle of the range of seriousness for conspiracy to commit murder.

All three accused “displayed a callous, indifference for life.” [ 99 ] Belcourt was 34 years old at sentencing and a first offender; however, she expressed no remorse and did not make any efforts towards rehabilitation while on bail. Doiron was 22 years old at the time of the offence. He had a minor criminal record and, at the time of sentencing, he had also pleaded guilty to extortion. As a teenager he used drugs, which lead him to a criminal lifestyle, but the judge noted he had stopped.

He also had strong family support, expressed remorse and apologized to the victim in court. [ 100 ] The judge found different aggravating and mitigating factors for each accused, but sentenced both to 6 years imprisonment. [ 101 ] The Defence submits that Darby is far less culpable than these conspirators. He did not benefit financially from the conspiracy and it was never his role to do the shooting. He also has made far more rehabilitative efforts than Belcourt. [ 102 ] In Van Buskirk , 2007 BCSC 1925 , the offender pleaded guilty to two counts of conspiracy to commit murder.

In the first conspiracy, Van Buskirk was involved in a plot to murder his co-conspirator’s competitors in the drug trade. The conspirators intended to detonate an explosive in a nightclub. Aside from the targets, it was expected that others would be killed in the explosion. If the plan to use explosives did not work, Van Buskirk planned to use a handgun to murder the targets. Ultimately, he did not obtain explosives. [ 103 ] In the second plot, Van Buskirk agreed to travel to Whistler to kill an unidentified person.

He and the co-conspirator drove to Whistler to do some reconnaissance, but did not carry out the conspiracy beyond this early stage. [ 104 ] The first plot was obviously more serious than the second and Justice Groberman was troubled by Van Buskirk’s preference of a “scenario involving many deaths rather than one that only involved the intended victims”: Van Buskirk at para 6 .

[ 105 ] Van Buskirk was 18 years old at the time of the offences and had a prior assault conviction. More recently, however, he had developed plans to become a hit man and to that end, he had murdered a man (while still a youth) in an apparent contract killing prior to the conspiracy offences. Although he had expressed remorse, there was no evidence of progress or rehabilitative efforts. [ 106 ] The Crown sought 9 years for each conspiracy offence, to be served consecutively.

The defence argued the sentences should be concurrent, with 8 years for the explosives plot and a lesser concurrent sentence for the Whistler plot. [ 107 ] Justice Groberman imposed a sentence of 8 years and 6 years for the two conspiracy counts. The judge made them concurrent to each other since, although separated by time, victim and co-conspirator, they were part of Van Buskirk’s plan to become a hit man. Also, consecutive sentences would have resulted in an excessive period of incarceration. [ 108 ] Defence counsel argues that the facts in Van Buskirk’s case are more severe than those herein.

It included two separate charges of conspiracies to murder, including one plan that was likely to hurt many innocent parties. Yet, despite his dangerousness and cold- blooded disregard for the lives of others, Van Buskirk was sentenced to 8 years and 6 years concurrently. Darby, by contrast, was only a lookout for a short-lived plan. Also, Darby had not set out on a career path as a hit man, has shown remorse and rehabilitative potential, and so forth. [ 109 ] The Crown argues that the facts of Van Buskirk are too different from Darby’s circumstances to assist me.

In particular, the conspiracy ended early, Van Buskirk did not get any explosives, and no one was hurt. [ 110 ] The Defence notes that there was no guilty plea in Belcourt or Murphy , yet the offenders in those cases received sentences of six years and five years, respectively. On this note, Defence counsel urge me to give significant credit for Darby’s guilty plea, perhaps as much as 25 or 30%, because (and I agree) this would have been a complex trial and there were significant pre-trial applications.

Accessory after the Fact Crown position [ 111 ] The Crown argues that Darby’s involvement as an accessory was significant. First, he rented the getaway car for the shooters and he had some awareness of the plan. Second, he cleaned the getaway car after the murders. The Crown argues that the context is particularly important, since it involves gang warfare and Darby’s involvement in the gang as its treasurer. [ 112 ] The Crown seeks to discredit the evidence suggesting Darby has rehabilitation potential. For example, some of the evidence suggests he was trying to sever ties with the gang in 2010.

Yet the court is informed that, as late as December 2012, he was intercepted with a gang member discussing gang business. The Crown suggests this lessens the likelihood that Darby will disassociate successfully from gangs. [ 113 ] The Crown argues some of the same aggravating factors apply to this offence as to the conspiracy offence: the gang war context; the destruction of evidence; his willing participation, which was significant rather than fleeting; and, the fact he was on release for firearms charges at the time.

A further aggravating factor is that this offence occurred five months after the conspiracy offence, thus it was the second time in a short period that Darby was involved in a homicide related to the FOB/FK feud. [ 114 ] Similarly, the same mitigating factors apply. He has expressed remorse and tendered a guilty plea before trial. Defence position [ 115 ] The Defence disputes the Crown’s characterization of Darby’s involvement. They argue that his role was limited to renting and cleaning the car used in the shooting. While he did not attempt to stop the murder, he clearly indicated that he did not want to take

part in the kidnapping or the shooting. He was not at the scene of the triple murders, he did not assist with destruction of the clothing or cellphones or the concealment of firearms, nor did he formulate the plan to do so. [ 116 ] The Defence also argues Darby should receive significant credit for his guilty plea. Case law [ 117 ] The Crown notes that there is very little case law on accessory after the fact. It points to R v Gwyn , 2009 ABPC 212 for guidance, in which Fradsham PCJ reviewed the law as it relates to accessory after the fact to murder.

He adopted Watt J’s (as he then was) perspective in noting that there is a wide range of potential sentences for this offence. He identified the following as relevant factors to consider in imposing sentence for this offence at para 14: (

a) The nature, extent and duration of the accessory’s involvement; (

b) The age and experience of the accessory; (

c) The nature, extent and duration of the relationship, if any, between the accessory and the relevant principle; (

d) The presence or absence of any coercion of or threat to the accessory of others to obtain the accessory’s participation; (

e) The nature of the accessory’s assistance; and, (

f) The antecedents, present status and realistic prospects of the accessory.

[118] On the facts in Gwyn, the accused learned of a murder shortly after it occurred. He came up with the idea of burning the bodyand helped the principal do so in a dumpster. He was a full, voluntary participant in the offence. He pleaded guilty and was sentenced to6 years imprisonment. [119] In a case related to the case at bar, the accused pleaded guilty to kidnapping Aaron Bendle and being an accessory after the factto the same homicides by destroying clothing: R v Hovanesian, (8 March 2013), Calgary 091339143Q3 (Alta QB).

He was sentenced to14 years for kidnapping and 5 years concurrent for being an accessory in a joint submission. [120] The Crown also relies on the Alberta Court of Appeal’s decision in R v. Barrette, 1983 ABCA 267 , [1983] AJ no 71(CA). Trudeau cleaned his co-accused’s (Barrett’

s) fingerprints from the trailer, except in the bedroom, after Barrette had stabbed thetwo victims to death. He also assisted Barrette to remove a safe from the trailer, shared in the proceeds, and fled to eastern Canada withBarrette. [121] Trudeau pleaded guilty to accessory after the fact to murder. The trial judge had sentenced Trudeau to 3 years imprisonment, butthe Alberta Court of Appeal increased it to 7 years. In increasing the sentence, the appeal court noted that Trudeau did not attempt to stopBarrette from committing the murder when he went to the victims’ bedrooms with a knife.

Furthermore, his actions in removing thefingerprints, sharing the spoils, and fleeing with Barrette made him almost akin to an accomplice. [122] The Crown argues that Darby’s actions in obtaining the getaway car and cleaning it afterwards put him in a similar situation tothat of Trudeau. [123] The Defence argues the circumstances in Barrette are clearly more egregious than those that led to Darby’s accessoryconviction. Unlike Trudeau, Darby was not present for the actual murders and he did not have a direct opportunity to intervene.

Also, hedid not benefit financially from the offence, nor did his actions amount to being an accomplice to the three murders. [124] The Defence notes that, as with conspiracy to commit murder, there is a wide range of sentences for being an accessory after thefact to murder. Defence counsel provided summaries of a number of cases. Keeping them all in mind, I discuss the cases I found to bemost relevant below. [125] In R v Hynes, 2014 NSSC 119, the accused, after doing crack cocaine at the principal’s house with the principal and the victim,decided to leave.

Several days later, the principal asked for his help in moving a carpet out of the house. Hynes could tell there was abody inside the carpet and he assumed it was the victim. He and the principal drove the body to a wooded area and left it there. [126] Justice Edwards held that the aggravating factors included Hynes’ criminal record, the disrespect shown to the body, and thefact that he had placed himself in the awkward situation where he felt compelled to help the principal.

His guilty plea was a mitigatingfactor along with his remorse, the help he gave police in identifying the principal, the limited time of involvement in the offence, and theprincipal’s negative influence. He was sentenced to three years imprisonment for being an accessory after the fact. [127] In R v Campbell, [2001] NSJ no 410 (Sup Ct), Campbell lived with Marriott, who was hired to kill a drug dealer. Marriott toldCampbell of the plan to murder the victim. Campbell left her home to go shopping on the appointed day. She knew a murder was likelyhappening at her home at the time.

Upon her return she helped clean up blood and other evidence left at the scene. She did not pleadguilty, nor did she express any remorse for her actions. She was sentenced to 3 years imprisonment pursuant to a joint recommendation. [128] In R v Matheson, 2015 NSSC 42, the accused pleaded guilty to being an accessory after the fact. He drove a vehicle for theprincipal to dispose of the body.

His involvement was short and only took place after the murder; nonetheless, it interfered with theadministration of justice. [129] Matheson was 49 years old at the time of the offence and had a criminal record that included violent offences, although heshowed remorse for his actions. Murray J accepted a joint recommendation of 3.5 years imprisonment. The Defence argues that Darby,by contrast, is much younger and has no relevant criminal record for sentencing purposes.

Furthermore, Darby played no role in movinga victim’s body. [130] In R v Courtoreille, 2004 NWTSC 25 and the related case of Tutin, supra, the offenders were sentenced to 3 years and 3.5years respectively for being accessories after the fact. The victim had been beaten to death by two of their drug associates. Tutin waspresent for the murder and tried verbally to intervene. Under threat, Tutin assisted in cleaning up the scene. He then went to get the truckthat would be used to move the body. At that point, he could have gone to police to report what had happened, but instead returned toassist further.

He also assisted in burning the body. In sum, his assistance carried on for several days. [131] Courtoreille assisted with the cleanup and provided money so that Tutin could obtain the truck needed to dispose of the body.He did not accompany the others when they disposed of it, but he met with them a few days later to come up with a cover story. [132] Courtoreille and Tutin were both 44 years old and had criminal records that included offences of violence. The Defence notesthat Darby is much younger than these two offenders. He also did not take

part in creating a cover story, nor was he directly involved indisposing of any bodies. [133] In R v Steadman, 2008 BCSC 1613, affirmed by 2010 BCCA 382 at para 10, Justice Barrow conducted a review of accessoryafter the fact to murder cases and concluded as follows at para 51: From these cases, a number of principles emerge. First, it is not uncommon for offenders to assist in hiding a murder because of threatsmade against them or their families which do not rise to the level of duress. Such threats were present in Lowe, Turpin and Ropchan, andsignificantly mitigated the offender’s moral culpability.

A not uncommon aggravating feature is when the accessory is present for orknew in advance that a murder was going to be committed. That was the case in Wisdom, Murdoch and Campbell. Further, where theaccessory’s assistance extends to actually disposing of the deceased’s body, that too has been held to be an aggravating circumstance.That was so in three of the cases I have just noted. Next, as in any case, a guilty plea is significant. These cases disclose that a range of

sentence for an offender whose involvement is significant and who is not subject to threats of serious harm is between 18 months at the low end and five years at the upper end. [ 134 ] On the facts in Steadman , the accused assisted the wife (who had murdered her husband). He assisted in dismembering and burying the body, burning the victim’s head and hands, and disposing of the ashes. He also disposed of the likely murder weapon and took other actions to help the wife avoid detection. With his assistance, the crime remained undetected for five years.

Noting that he was a first time offender with little risk of re-offending, Barrow J sentenced him to four years imprisonment. Analysis [ 135 ] Darby was 25 years old at the time of the offences. He was an integral member of the FOB street gang. While he may not have been the organization’s directing mind, he was its treasurer and appears to have had significant involvement with its various members. [ 136 ] He will be 33 years old by the time of sentencing and he has spent the past six years of his life in custody.

The evidence suggests prison has had a significant impact on him and he expresses a desire to put his gang life behind him. [ 137 ] The psychiatric evidence indicates that he has high rehabilitation potential, provided he avoids the negative influences that initially led him astray. The court is informed that he earned his high school diploma while at Grande Cache and Bowden Institutions and has worked towards a journeyman’s certificate in welding. At his request, he was transferred to a lesser security facility in an effort to disassociate from gang members.

Unfortunately, his placement in the gang unit at the Calgary Remand Centre has resulted in forced re-association. [ 138 ] Darby appears to have significant community support. His family and a friend have provided letters to the court as evidence of this support. Darby’s mother writes that she has seen her son grow during his incarceration. He has been able to “take responsibility for his actions and mature into the man [she] knew he was going to be.” [ 139 ] Other family members offered their support to assist Darby with future employment ventures and described the importance of their relationship with him.

They all describe him as thoughtful and caring, and they suggest he will be a benefit to the community upon his release by becoming a productive individual. [ 140 ] I note that although Darby was incarcerated prior to being charged for these offences, his sentences were for offences that occurred after the offences herein. While I may consider his post-offence convictions as evidence of his character, potentially reducing the impact of mitigating factors, I must not consider them as a prior record for sentencing purposes.

For the purposes of sentencing, Darby’s criminal record includes only the breach offences (failing to comply with a recognizance). [ 141 ] The principles of denunciation and deterrence, however, require a sentence of sufficient gravity to deter Darby and others from participating in these sorts of crimes. Conspiracy to commit murder and accessory after the fact to murder are foul offences for which our society has no tolerance.

It is unacceptable for individuals to coldly calculate and carry out a plan to end someone else’s life or to assist those who have done so to escape the penal consequences of their actions. [ 142 ] With respect to the conspiracy offence, the facts are clear. Darby, a member and treasurer of the FOB gang, conspired with H.E., G.H., Zuccherato and two other FOB members to kill Bontogon, a member of the rival FK gang.

After a brief meeting, the group decided to follow Anaya later that day from a tattoo parlor in the hopes that he would lead them to Bontogon, at which point H.E. and G.H. would shoot and kill Bontogon. [ 143 ] Darby did not participate directly in the shooting of Anaya. He followed Anaya, but had stopped following him when Anaya turned onto Marcombe Drive NE. At the moment of shooting, Darby was in a nearby alley, but still close enough to hear the shots fired by H.E.. [ 144 ] After the shooting, however, Darby met with H.E. and G.H..

He gathered H.E.’s gun and clothing and helped with their disposal. [ 145 ] This was not a sophisticated, well-planned or long-standing conspiracy and Darby was not its directing mind. His involvement was somewhat peripheral, in that he was a lookout and facilitated communication between the other gang members. Yet he never attempted to stop the plan or express concern about its premise. Although he did not know that Anaya would be killed, he was fully aware that the objective of the conspiracy was to take a life.

He also assisted with disposing of evidence after the murder. [ 146 ] The main aggravating factor is Darby’s involvement with the FOB gang and his willingness to go along with a planned murder. In the normal course, the use of a weapon in a public place also would be an aggravating factor, though I note in this case Darby was not the one with the weapon. [ 147 ] A substantial mitigating factor is Darby’s guilty plea in November 2015. The jury trial was scheduled for eight weeks, thus his plea saved considerable court resources.

Furthermore, his plea is recognition of his blameworthiness for these offences, as well as an expression of remorse, both of which bode well for his rehabilitation prospects. But for the guilty plea, his apparent remorse and his rehabilitation potential (provided he avoids negative influences), his sentence may have been closer to that suggested by the Crown. [ 148 ] The case law suggests a broad range of sentences for this crime.

In all of the circumstances of the case and taking into account the mitigating effect of Darby’s guilty plea, I find that a just and appropriate sentence is eight years imprisonment. [ 149 ] With respect to the accessory conviction, Darby’s primary role was to clean the rental car prior to its return to eliminate any trace evidence. G.H. assisted with the cleaning. Darby then returned the rental vehicle to the airport. At that time, he knew it had been used by G.H. and Zuccherato to get to the restaurant.

[ 150 ] Darby’s involvement is relatively minimal when compared to the facts in many other accessory cases. He clearly had self- interest in cleaning a vehicle that was rented in his own name and that had been used in a crime. He did not dispose of the deceased’s bodies. The vehicle was not used to transport the victims. Furthermore, there is no indication that his actions in cleaning the car assisted the murderers by concealing the offence or allowing them to escape detection. [ 151 ] Yet, once he delivered the vehicle to G.H., he knew it would be used in a murder.

Although he expressed his concern, he took no other action to inform authorities or stop the others from carrying out their plan to completion. This alone reflects his tacit approval of the gang’s actions and disregard for human life. These facts form part of the overall context and circumstances of the accessory after the fact offence. [ 152 ] The aggravating and mitigating factors for this offence are the same as those identified for the conspiracy offence. [ 153 ] I find the majority of accessory cases to be far more serious that Darby’s limited role in renting and cleaning the car.

Generally, the cases involve offenders with far more advance knowledge of the murder and a more significant role in hiding evidence, including disposing of bodies. Yet Darby’s gang involvement and his peripheral role in two separate gang murders within five months of each other must be sanctioned. [ 154 ] In all the circumstances of the case and taking into account Darby’s guilty plea, I conclude that a just and appropriate sentence is 3 years imprisonment, to be served consecutively to the conspiracy sentence. [ 155 ] In my view, the 11 year global sentence satisfies the totality principle.

The combined sentence reflects the gravity of the offences, as serious crimes to be condemned by our society, while acknowledging the somewhat limited nature of Darby’s specific involvement in each offence, within the context of his greater involvement with a notorious Calgary street gang. Credit for time served [ 156 ] I reject the Crown’s argument that Darby should receive no credit for the time he has served in the Remand Centre.

The Crown argues that Darby should get no credit because his time at the Remand Centre is attributable to a prior offence; in other words, his detention did not arise “as a result of the offence.” [ 157 ] The Crown argues that giving Darby credit for time served will be giving him credit for time already attributed towards an earlier sentence, a form of double-counting. I find that this is not an accurate characterization of Darby’s situation. [ 158 ] Darby was charged on these matters while he was serving a sentence of approximately 7.5 years for unrelated matters.

He served those sentences at the Grand Cache and Bowden Institutions until his statutory release date of April 8, 2015. On that date, Darby was returned to the Calgary Remand Centre on charges for the present offences. [ 159 ] The Crown argues that Darby was never released on parole. In the normal course, a person on statutory release is released on conditions that restrict that person’s liberty and a violation of parole conditions may result in the loss of parole.

The Crown submits that no one knows what Darby’s parole conditions would have been, and for this reason, the time spent at the Remand Centre should be viewed as a continuation of his original sentence. [ 160 ] I disagree. Statutory release under

section 127 of the Corrections and Conditional Release Act , SC 1992, c 20 (“ CCRA ”) requires mandatory release from imprisonment when an offender has served 2/3 of a sentence. An offender on statutory release is subject to supervision for the time remaining before the expiry of his sentence. Statutory release is different from parole. It mandates that the offender serve the final one third of his sentence in the community. By contrast, parole permits prisoners to serve part of their prison sentence in the community.

Offenders can apply for parole after serving one third of their sentence or seven years, whichever is less. Offenders on statutory release are those who either did not apply for release on parole or who were denied release on full parole. [ 161 ] The Crown also makes arguments regarding the impact of the CCRA in calculating Darby’s parole eligibility. The main thrust of their argument is that Darby will obtain double-credit in determining the date of his parole eligibility for these sentences due to how the time will be calculated in relation to his prior sentence.

My review of the legislation suggests otherwise. [ 162 ]

Section 120.1(2) provides that an offender serving a sentence who then receives an additional consecutive sentence or sentences, is not eligible for full parole until the day on which he has served, from the day on which the additional sentences were imposed, the total of any remaining period of ineligibility on the original sentence and the period of ineligibility in respect of the new sentences. Darby had no remaining period of parole ineligibility on his original sentence, having served 2/3 of it.

Thus, as I understand it, his eligibility for parole in relation to the new sentences will be calculated taking into account his time served from the date of sentencing for these offences. Essentially, it is as though he did not have a prior offence since his parole ineligibility period had already passed. [ 163 ] This said, the main point is that regardless of the impact of the CCRA , I accept Defence counsel’s argument that, but for the charges related to the conspiracy and accessory offences, Darby would have been out on statutory release.

By instead being sent to the Remand Centre as a result of these charges, he was deprived of his liberty, even if that liberty would have been subject to conditions. He is entitled to credit for time served, particularly since he has served this time in relation to these offences in the harsh conditions of the Remand Centre and I conclude as much (the Crown does not disagree with the harshness of these conditions as characterized by Defence counsel). [ 164 ] In Summers at para 49 , the Supreme Court of Canada reaffirmed that permitting enhanced credit for pre-trial custody serves two purposes.

First, it ensures that an offender detained in pre-sentence custody, which is not subject to parole and early release provisions, does not spend more time behind bars than identically situated offenders out on bail. Second, it compensates for the harshness of living conditions in remand facilities, including overcrowding and lack of programming that makes remand more onerous.

These are the conditions in Darby’s case. [ 165 ] At para 50, the court in Summers explicitly recognized that even if pre-sentence custody is credited towards the calculation of parole eligibility, courts retain the discretion to grant additional credit for pre-trial custody based upon the second aspect, to address situations of qualitative harshness. [ 166 ] The Crown relies on R v Keepness , 2014 SKCA 110 at para 72-75 to support its contention that Darby is not entitled to any credit for his time at the Remand Centre.

Keepness is distinguishable, in that the offender in that case was serving the prison portion of his sentence at the same time as he was in pre-trial custody. Darby, by contrast, should have been on mandatory statutory release. As stated above, his detention at the Remand Centre is attributable solely to the matters in this case. [ 167 ] Darby should have been released from prison on mandatory statutory release on April 8, 2015. Instead, he was sent to the Remand Centre as a result of charges in relation to these offences.

As of the date of sentencing, Darby will have been in custody at the Remand Centre for one year, two months, and 21 days. [ 168 ] Furthermore, due to the nature of these offences Darby has been held in the gang unit. In his prior incarceration he had made significant rehabilitative progress and had begun distancing himself from gang members. The nature of the current charges has put him on the gang unit and back in the gang environment. [ 169 ] Prior to the Truth in Sentencing Act amendments to the Criminal Code , the courts commonly applied 2:1 credit for each day spent in pre-sentence custody.

There is conflicting jurisprudence as to whether the new legislation applies to Darby. He was charged after the amendments came into force for a crime that occurred prior to the amendments. [ 170 ] I do not find it necessary to decide this issue. I conclude in all the circumstances of this case that Darby is entitled to 1.5 days credit for every day of pre-sentence custody. Darby should receive enhanced credit for time served in remand since April 8, 2015, his statutory release date, to reflect his loss of liberty and the harsh conditions at the Remand Centre.

By my calculations, he has been in pre- trial custody for 14 months and 21 days, as such, he is entitled to 22 months credit. Conclusion [ 171 ] I impose a sentence of 8 years for the conspiracy offence and 3 years for accessory after the fact, for a global sentence of 11 years imprisonment. This is not an appropriate case for concurrent sentences because most importantly the convictions arise from separate events at separate times.

Conspiring to commit murder and being an accessory after the fact to murder are unacceptable acts to be condemned by society; the need for denunciation and deterrence requires separate, consecutive sentences for these two offences.

Yet this sentence also acknowledges the remorse reflected in Darby’s guilty plea and respects the objectives of sentencing in encouraging Darby’s rehabilitative potential. [ 172 ] Taking into account credit for pre-sentence custody, the 11 year consecutive sentence for these two offences is reduced to a sentence of 9 years and 2 months imprisonment. [ 173 ] I impose a lifetime weapons prohibition.

A DNA sample will also be provided, the reason being I am satisfied it is in the best interests of the administration of justice given the specific gang background of this case and my finding of the equivalency of a gang and criminal organization for the purpose of this sentencing, the reasons of which are listed in paras 60-65 above. Dated at the City of Calgary, Alberta this 29 th day of June, 2016. W.A. Tilleman J.C.Q.B.A.

Appearances: Steven Johnston and Adam May Alberta Justice, Specialized Prosecution Branch for the Crown Karen B. Molle & Michelle Daneliuk for the Accused