R. v. Bennett Date:, 2015 BCPC 410

Citation: R. v. Bennett Date: 20151203 2015 BCPC 0410 File No: 40511-2-C Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID ALLAN BENNETT ROBERT EDWARD GURR FRANCIS KENNETH McCANN ORAL REASONS FOR SENTENCE RE ACCUSED BENNETT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: C. Gibson Appearing on his own behalf, by videoconference David Bennett

Place of Hearing: Nanaimo, B.C. Date of Hearing: December 3, 2015 Date of Judgment: December 3, 2015 [1] THE COURT (orally): I have rendered my reasons with respect to Information 40511-C-2, and specifically with respect to theconvictions I have entered on Counts 2 and 3 against David Allan Bennett. [See neutral citation: R. v. Bennett, [2015] B.C.J. No. 2884;2015 BCPC 377 .] [2] On Count 2 I convicted Mr. Bennett for an offence that occurred on the 2nd of May 2012, that he did unlawfully fish withoutthe authority of a tidal water sports fishing licence contrary to s. 18(

a) of the British Columbia Sport Fishing Regulation (1996); that iscontrary to s. 78(

a) of the Fisheries Act. [3] On Count 3 I convicted him of setting prawn fishing gear and failing to properly mark the said gear with the operator's name. Again, that is contrary to s. 27(1)(

b) of the Fishery (General) Regulation and/or s. 40(2) of the British Columbia Sport FishingRegulation. [4] I acquitted Mr. Bennett on two other allegations, on Counts 5 and 6. [5] I also entered conditional stays on Counts 1 and 4 of the same information, based on R. v. Kienapple and the rule againstmultiple convictions arising out of the same delict or factual situation. [6] Crown is seeking a fine with respect to these convictions. Crown notes that Mr.

Bennett has a prior conviction for a FisheriesAct offence dating back to the 13th of August 2001, which was disposed of September 19th, 2002, at which time he was fined $250, itappears, on two counts; one for purchasing, selling or possessing illegally caught fish, and the other for wasting fish suitable for humanconsumption. He then has a further conviction under the Fisheries Act for offences dating back to August 2002, and those were disposedof on the 16th of May 2003. It appears that he received a hundred-dollar fine, which was allocated out amongst three separate offences.

One was for setting gear or apparatus during a closed time, one was salmon fishing with the wrong gear during a closed time, and thethird was purchase, sell, or possession of illegally caught fish. [7] The next matter on his admitted record was that he was fined $750 for an offence alleged to have taken place the 6th of August2012; that was disposed of on February 19, 2014. He received a $750 fine for contravention of a condition of a commercial fishinglicence. Mr.

Bennett does offer the explanation that the breach of the condition in that case was failure to have an operative revival tankas required by the terms of his licence at that time. [8] Having taken into account all the circumstances and the circumstances surrounding the present offences, I am of the view thatan appropriate fine for these offences would be $600 on each, that would be $600 consecutive on each offence, for a total of $1,200. [9] How much time will you require, Mr. Bennett, to pay the $1,200? [10] THE ACCUSED: I can pay it any time. [11] THE COURT: Okay.

I am going to give you 30 days from today's date in order to pay the fine. And as I recall there is novictim fine surcharge, is that correct, under the Fisheries Act? [12] MR. GIBSON: There is no victim fine surcharge. [13] THE COURT: So I will give you 30 days to pay the fine. The fine will be paid through the court registry. Do you understandthat, Mr. Bennett? [14] THE ACCUSED: Yes, yes, I do. [15] MR. GIBSON: And forfeiture of the eight traps. [16] THE COURT: All right. Any issue with respect to the forfeiture of the eight traps? [17] THE ACCUSED: Pardon me [indiscernible/videoconference]. [18] THE COURT: No?

No issue? Sorry? [19] THE ACCUSED: [Indiscernible/videoconference]. I didn't hear the question, sorry. [20] THE COURT: Okay. I recall from the evidence that Mr. Gurr may think he is the owner of the traps, but they were seizedfrom you since they were under your control. So I am going to grant the forfeiture order. I will leave it between you and Mr. Gurr tosort out who is going to bear the financial loss of the forfeiture of the eight traps. Okay. [21] THE ACCUSED: Okay. [22] THE COURT: Anything further?

All right, now, do I have to make a specific order with respect to any of the other itemsseized or the return of money, or will that -- [23] MR. GIBSON: No. I will deal with the order. If Your Honour could please give the order dispensing with Mr. Gurr's -- or

sorry, with Mr. Bennett's signature on the order, then I can get that order done faster. [ 24 ] THE COURT: Okay. Do you understand what is being suggested, Mr. Bennett? Mr. Gibson is going to prepare the formal order, that is a document. Depending on the nature of a matter, if you were represented by a lawyer Mr. Gibson would in the usual course send a copy of that order to your lawyer for that lawyer to approve the document, specifically the form of the document, and basically to ensure that it reflects the orders that I have made today.

What he is suggesting is that he not be required to send it to you for signing. That is not an unusual request. What will happen is the court clerks keep notes and they will refer to the notes. They will make sure that Mr. Gibson has prepared that order in the appropriate form. So I am going to dispense with your consent on the form of that order. Make sure you keep in touch or let Mr. Gibson know where you can receive a copy of that order. Your address has changed or it has not changed in the last little while? [ 25 ] MR. GIBSON: I have Mr.

Bennett's email address, and so I can email it to him. [ 26 ] THE COURT: Okay. So he will email you a copy of that, all right? [ 27 ] THE ACCUSED: Okay. [ 28 ] MR. GIBSON: And Mr. Bennett should know that there will be a 30-day appeal period and he won't get the money back for the other prawns during that period, but after that I will direct the DFO to provide that back to him. [ 29 ] THE COURT: All right.

Do you understand what he is saying? [ 30 ] THE ACCUSED: Yes. [ 31 ] THE COURT: It is open to either of the parties to appeal my decision on either the convictions or the acquittal or on the sentences, so the 30-day appeal period has to run before moneys, et cetera, start getting distributed. Do you understand all that? [ 32 ] THE ACCUSED: [Indiscernible/videoconference]. [ 33 ] THE COURT: All right. Anything further, Mr. Gibson? [ 34 ] MR. GIBSON: No, thank you. [ 35 ] THE COURT: All right, I think that concludes all matters. We can stand down. (SENTENCE CONCLUDED)