R. v. Kohlman, 2021 BCPC 273

Citation: R. v. Kohlman 2021 BCPC 273 Date: 20211108 File No: 259557-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. BENJAMIN ORION CARLSON KOHLMAN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. BAKAN Counsel for the Crown: J.R. Dow Counsel for the Defendant: J. Dawkins Place of Hearing: Vancouver , B.C. Date of Hearing: November 8, 2021 Date of Judgment: November 8, 2021 A Corrigendum was released by the Court on November 9, 2021. The corrections have been made to the text and the Corrigendum is appended to this document.

[ 1 ] THE COURT : I am going to give my oral reasons, following submissions by Crown and defence counsel this morning. As I am giving these reasons orally, I reserve the right to edit them for clarity and grammar. [ 2 ] On September 17, 2021, Benjamin Orion Carlson Kohlman pled guilty to Counts 2, 4, and 6, as particularized in Information 259557. These were arson charges that Mr. Kohlman committed on March 30, 2021, contrary to s. 434 of the Criminal Code . [ 3 ] The three arsons committed by Mr.

Kohlman resulted in over two and a half million dollars in damages to two Masonic Halls in North Vancouver, situated at 1371 Lynn Valley Road, 1142 Lonsdale Ave., and a Masonic hall located at 4474 Rupert Street in Vancouver, British Columbia. The building at 1142 Lonsdale Avenue in North Vancouver was a total loss. [ 4 ] In addition to the agreed statement of facts submitted jointly by Crown and defence counsel, I had the benefit of reading a psychiatric report prepared on May 5, 2021. It was not prepared for sentencing, but for the purpose of assessing whether Mr.

Kohlman was suffering from a mental disorder at the time of these offences, so as to be exempted from criminal responsibility, under s. 16(1) of the Criminal Code . It was not a report, again, prepared to assist with sentence, but does contain information on Mr. Kohlman's background, which includes some family history and the fact he is of Ojibway descent. While a Gladue report has not been prepared, Crown and defence counsel agree that Gladue factors apply to this sentence. [ 5 ] In terms of sentencing positions, the Crown seeks a sentence of imprisonment from three to five years, with a mandatory DNA order.

Defence seeks a sentence of two to three years and did not state a position on the DNA order, and that is likely because it is mandatory. [ 6 ] In terms of the circumstances of these offences, on the evening of March 29, 2021, up to and including the time of these offences, Mr. Kohlman had steadily consumed ecstasy and marihuana. At approximately six in the morning on March 30, 2021, he went to a gas station in North Vancouver and bought gas that he placed into a can. He then drove his van to the Masonic lodge at 1371 Lynn Valley Road in North Vancouver.

On arrival, he forced his way inside and started a fire, using gasoline as an accelerant and lit the fire with a lighter. Approximately half a million dollars of property damage was caused to the building. He did check the building first to ensure it was empty before setting the fire, and, fortunately, no injuries or death ensued. [ 7 ] Following this, he drove his van to 1142 Lonsdale Avenue in North Vancouver, British Columbia, and repeated the same sequence of events as he had done at the Lynn Valley Road address.

The building was a total loss from the fire, with damages estimated to exceed two million dollars. [ 8 ] After this arson, he drove his van to a third Masonic hall, situated at 4474 Rupert Street in Vancouver, British Columbia, and went again through the same process, forcing entry into the building, checking to ensure no people were inside, igniting the gas with a lighter. [ 9 ] Fortunately, Sergeant Gardner, of the VPD, was driving to work and saw Mr. Kohlman leaving the premises and had seen evidence of a fire. He pulled his service pistol and pointed it at Mr. Kohlman.

Unusually, for a person in this situation, instead of surrendering, Mr. Kohlman kicked at the officer and managed to get into his van and drive away. Again, fortunately, Sergeant Gardner was able to get the licence plate on Mr. Kohlman's van. This was traced, Mr. Kohlman was located, and he was arrested that day. [ 10 ] On that day, Mr. Kohlman gave statements to the police that acknowledged he had committed the three arsons and that he broke into the buildings prior to setting fires to them to ensure no one was in the buildings. Mr.

Kohlman advised the police that he was on a mission to address Illuminati/Freemasons who are using mind control on people. He made a number of statements to police about conspiracies and advised that guardian angels were directing him to commit arsons to bring attention to this. He advised the psychiatrist that wrote the report I previously mentioned that the arsons were his way of making public his belief that dark souls and evil were involved in regards to the persons who used the buildings he burned. [ 11 ] In terms of Mr. Kohlman's personal circumstances, he is 43 years old.

He comes before the court with no criminal record. He was born in British Columbia, in Nelson, and is of Ojibway descent. His father is from the Nagatherwin [phonetic] First Nation in Northern Ontario near Thunder Bay. His father had attended residential schools for Indigenous persons and had substance abuse and mental health problems. Mr. Kohlman and his sister were exposed to their father's issues at an early age. Mr. Kohlman's father killed his mother and, shortly thereafter, committed suicide. Mr.

Kohlman Jr. was five years old at the time. [ 12 ] After his parents' death, he went to live with a maternal aunt and her husband. There were some issues with alcohol abuse in that home. The maternal aunt and uncle split up and he was then raised by his aunt. Mr. Kohlman ceased contact with his father's family after his father's death. In 2000, he returned to the Thunder Bay area and visited relatives on his father's side, but, apart from this, has not been involved with his Indigenous culture or family and has lost that connection and support. [ 13 ] Mr.

Kohlman started using illicit substances and drinking alcohol as a teenager. He moved to Vancouver, British Columbia when he was 18 and fell into more serious substance abuse. He had periods of paranoid psychosis, involving paranoid delusions and auditory hallucinations that appeared to have been triggered by drug use. Despite this, he has been gainfully employed since leaving school in Grade 11, but for short times on social assistance. He has worked as a dishwasher and in the logging industry. For the last 20 years he worked as a drywaller and painter.

He was a self-employed drywall and painting contractor when these offences were committed. [ 14 ] In regards to the offences before me, Crown and defence concur the crimes did not involve an intent to injure persons and that Mr. Kohlman took steps to ensure the buildings were empty before setting fire; there was no financial motive and no revenge motive at play. They concur that his mental illness and the resultant psychosis triggered by his drug use was behind these offences. [ 15 ] Mr. Kohlman has been in custody since the date of the offences.

His counsel advises that he is attending Narcotics Anonymous at the facility where he is in custody and intends to continue with this. As Crown has stated, there is a real concern Mr. Kohlman will reoffend if he does not seek effective treatment for his addiction issues.

[16] In terms of sentencing objectives, the purpose and principles of sentencing are set out in s. 718 to 718.2 of the Criminal Code. The fundamental purpose of the criminal law generally, and sentencing in particular, is to protect society. The ways of achieving thisprotection includes the offender's effective rehabilitation; to deter the offender from reoffending; to deter others from offending, throughconsequences given to the offender; to denounce unlawful conduct; and to isolate offenders from society where required.

The weightcourts place on each of these factors depends on the circumstances relating to the individual offender and the nature of the offence. [17] The Criminal Code sets out the sentencing principles, including proportionality and totality. Under s. 718.2(a), the court mustconsider both aggravating and mitigating factors. Sentences should be similar for similar offences on similar cases. Consecutivesentences should not be unduly long or harsh.

Section 718.2(

e) requires: … all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [18] This provision requires the court to consider systemic factors, including the effects of residential schools and intergenerationaltrauma, that has led to the overrepresentation of Indigenous persons in Canadian prisons. Courts are required to take into account Gladuefactors.

While there is no Gladue report before me, again, Crown and defence concur that, due to Mr. Kohlman's Indigenousbackground, Gladue factors must be analyzed and applied. [19] As stated by Mr. Justice Marchand in R. v. Laforge, [2020] B.C.J. No. 1338, a decision of the British Columbia Supreme Court: Cases such as R. v. Gladue . . . (SCC), [1999] 1 S.C.R. 688, and R. v. Ipeelee, 2012 SCC 13 make it clear that [inrelation to s. 718.2(e)] it is a remedial provision that was and is intended to deal with the crisis of over-representation of Indigenousoffenders . . .

He goes on to state: Sadly, the statistics are worse today than they were in 1996. This is at paragraph 38 of Laforge. [20] In paragraph 41, Mr. Justice Marchand states that [as read in]: To help address the crisis, Gladue and Ipeelee changed the way Indigenous offenders are sentenced, though not necessarily the resultivesentence. In sentencing an Indigenous offender, a sentencing judge must consider two factors: 1. The unique systemic or background factors which may have played a

part in bringing this particular offender before the court; and 2. The [type] of sentencing procedures and sanctions which may be appropriate in the circumstances. [21] In paragraph 42 of Laforge, Marchand J. goes on to state that [as read in]: The court must take a holistic approach to sentence. It must be proportional, balancing the seriousness of the offence with the moralblameworthiness of the offender. Background factors include alienation, substance abuse, bias as a result of Colonial history, and theintergenerational negative consequences of residential schools. [22] I note that, again, Mr.

Kohlman's father did attend one of these schools. [23] Marchand J. notes that [as read in]: A restorative approach does not necessarily lead to a reduced sentence, especially for violent or serious crimes. [24] In terms of the law, s. 434 of the Criminal Code -- and Mr. Kohlman has pled guilty to three offences under that

section -- carry amaximum of 14 years' imprisonment. [25] I was referred by Crown counsel to the decision of R. v. Petropoulos, [1995] B.C.J. No. 1449, and R. v. Quigley, [1998] B.C.J.No. 1449. Though somewhat dated, these are British Columbia Court of Appeal decisions. [26] Defence references R. v. Leer, 2017 B.C.J. No. 1642, a decision of the B.C. Provincial Court, and the decision of R. v. Laforgethat I previously cited. Both R. v. Leer and R. v. Laforge review a number of arson cases and an analysis of the law on arson. [27] In R. v.

Petropoulos, the offender had hired others to burn down his restaurant that was in a building containing three otherbusinesses. He threatened to kill those he hired if they told anyone about the plan. He planned the crime carefully. The arson waspurely for financial gain. Damage to the building was estimated at one million dollars, which, with inflation, would likely exceed threemillion dollars today, and that is without property increases. The offender was a 53-year-old with no criminal record. At trial, he wassentenced to imprisonment for five years.

The Court of Appeal held that the general range for arson involving primarily property losswas two to three years; and this is at paragraph 8 of Petropoulos. The Court of Appeal reduced Mr. Petropoulos's sentence to 3.5 years,given premeditation, damage to other property owners, and the threat of murder to those he hired if they divulge what was beingplanned. Mr. Petropoulos was not Indigenous. [28] The second case Crown referenced was R. v. Quigley. Mr. Quigley had received an eight-year sentence for arson.

He had beenevicted from his residential apartment complex and committed the arson of the building in revenge against the landlord. He hadparanoid tendencies and a personality disorder. He was resistant to treatment. He was not Indigenous, but had unhappy early childhoodcircumstances, including being placed in an orphanage. The Court of Appeal considered that there had been a real potential of seriousharm to residents who lived in the building. They were present when the arson was set. The sentence was reduced from eight years to

five years. [ 29 ] In the case of R. v. Leer , 2017 BCPC, a decision of my brother Judge Koturbash, the offender was a mentally ill 18-year-old female who burned down the townhouse she lived in with her mother to get revenge on her mother because she was angry at her. The fire was set at 8 p.m. in a townhouse complex when other residents were home. While no person was killed or injured, some families in the complex had pets that died as a result of the fire. Other families did not have insurance and were left in a very bad financial situation. [ 30 ] Over one million dollars in damage was caused by the arson. Ms.

Leer was not remorseful. She had no prior criminal record. She had borderline personality disorder and an alcohol-use disorder, but refused treatment. She was found to be at a high risk of reoffending. The defence submitted a sentence of three years' incarceration was reasonable, while Crown sought four to five years' incarceration. Judge Koturbash considered the effects of mental illness on Ms. Leer, at paragraph 63 of his decision, which states: Although mental illness does not diminish the gravity of the offence, it can diminish the degree of responsibility or moral culpability of the offender.

People who are afflicted by impaired reasoning, delusional disorders, and other similar mental conditions are distinguished from the ordinary offender who is fully accountable for his or her [offence]. [ 31 ] He went on to consider a number of arson cases, which are discussed in paragraphs 87 to 109 of his decision, with a range from a suspended sentence to five years' imprisonment. Ms. Leer received a sentence of just over three years in jail, plus three years' probation to follow. [ 32 ] In R. v. Laforge , the decision of Mr.

Justice Marchand that I have previously cited, the offender set fire to his vehicle, which was in front of a 7-Eleven store, using gasoline and a lighter or some other accelerant. Both the car and building caught fire. There was extensive damage caused to the 7-Eleven store, two employees' vehicles, and a customer's scooter. [ 33 ] Marchand J. stated that arsonists are generally divided into four categories for sentencing purposes: (1) pyromaniacs or persons with mental illness; (2) those who commit arson without special reason; (3) vandals; (4) those who commit arson for financial gain or revenge.

Marchand J. notes that those suffering from mental illness are generally considered to have the lowest moral blameworthiness, and that is at paragraph 48. [ 34 ] Marchand J. stated that public safety, deterrence, and denunciation are the primary sentencing principles for arson, but, where mental illness plays a central role, deterrence and punishment should be given less weight, while treatment and protection of the public should be given more weight, and that is at paragraph 63 and 64.

He held that offenders with delusional thinking and other impaired reasoning have a reduced level of moral blameworthiness compared to those of ordinary, fully accountable offenders. [ 35 ] Mr. Laforge was of Métis heritage and had schizophrenia. Like in the case before me, he did not intend to hurt anyone, but "wished to bring attention to his struggles; in particular, his delusional belief that he was being interfered with by intrusive brain-altering and perception-altering technologies"(paragraph 4 of Mr. Justice Marchand's decision). There was no evidence that Mr.

Laforge was under the influence of intoxication by drugs or alcohol at the time of his offence. [ 36 ] Marchand J. stated that while he was unable to say that Gladue factors caused Mr. Laforge's mental illness that was central to the offences, he found it was hard not to link his criminal behaviour to his heritage and background, and that is at paragraph 85. [ 37 ] Mr. Justice Marchand, at paragraph 86, stated: Like many Indigenous people in Canada, consistent with the objective of Canada’s historic assimilationist policies, Mr. Laforge has become disconnected from his heritage and community.

This relates in large part to his father being part of the “sixties scoop”. This disconnection made Mr. Laforge [more] vulnerable to the very type of traumatic experiences he endured and the addiction issues he developed. It also left him with no community to support him as he struggled with his addictions and mental health issues. With knowledge of and connection to his Indigenous identity, family, heritage, culture and community, it seems likely that Mr.

Laforge stood a much better chance of handling his addictions and mental health issues in a more prosocial fashion. [ 38 ] Counsel in Laforge , interestingly enough, had put forward a joint submission for a 27-month sentence of incarceration. That means that both Crown counsel and Mr. Laforge's lawyer agreed on the sentence and asked Mr. Justice Marchand to approve that sentence. Mr. Justice Marchand rejected this sentence as being too harsh and held that it did not consider relevant Gladue factors.

He carefully set out why he took the unusual step of not applying a joint submission on sentence, and, following a careful review of the law, he imposed an 18-month jail sentence on Mr. Laforge, followed by three years' probation. Mr. Laforge had already served 18 months in jail and, therefore, it was a time-served sentence. [ 39 ] In regards to Mr. Kohlman, who is the offender before me, I find the following factors to be aggravating: 1.

Despite being delusional from excessive substance use, he was coherent enough to drive, purchase gas to use as an accelerant, break into all three buildings, and start the three fires. 2. He was aware that his use of illicit substances triggered paranoid delusions, but does not appear to have engaged in prolonged or effective treatment for same. 3. The damage to property was extensive and took place at three separate locations. This increased the risk of death and injury to persons, including firefighters, police, and paramedics.

The number of locations involved reduced the availability of police, fire, and paramedics at other locations and created much upheaval, both in North Vancouver and Vancouver, where, as Crown stated, the smoke could be seen from these fires, especially the ones in North Vancouver. 4. There is trauma to the community that used the three lodges. It would be hard, if one was a member of the community that used those lodges, not to be fearful of using facilities that were meant for their use.

[ 40 ] In terms of the mitigating factors: 1. Mr. Kohlman pled guilty at an early stage to these offences, prior to the matter being set for trial. While he was clearly linked to these offences, he gave up his Charter arguments or pursuing a finding he was not criminally responsible and saved witnesses stress and the justice system time and money. 2. He comes before this court with no criminal record. He has been gainfully employed for most of his adult life, despite his traumatic start in life. 3.

He did not intend to injure or kill anyone and committed the offences at a time when people would not be expected to be in the buildings. He also checked the buildings before he set fire, to ensure no people were in them. 4. He does have reduced moral blameworthiness due to his traumatic upbringing and mental illness. He believed he was drawing attention, although very erroneously, to dark souls and evil. 5. Mr. Kohlman has engaged in Narcotics Anonymous while in custody in order to understand and cease his addiction. Through counsel, he advises he plans to continue with this.

While this is no guarantee, it is certainly a positive step in his rehabilitation. 6. I accept that the apology Mr. Kohlman conveyed, through counsel, to those he offended against and those whose property was damaged, is genuinely remorseful. It shows that he at least has some insight into the great harm he has caused and the greater harm that could have arisen had the sergeant not observed him in the process of offending in Vancouver, British Columbia.

He also acknowledges that he should be punished for these offences, which are very serious. [ 41 ] Gladue factors are applicable and do impact on his addiction and other issues. While no cases are exactly on point, the facts of this case, I find, are closest to those in R. v. Laforge , in terms of the role of mental illness, motivation, and lack of revenge or financial motivation, and the Gladue factors. Mr.

Kohlman, however, committed arsons to three separate buildings, increasing the risk to public safety and the numbers of persons who suffered damage. [ 42 ] In considering the sentencing principles and objectives I have outlined previously, including the principle of totality, I sentence you sir, to 40 months in prison, less presentence time served, with credit, that counsel agrees reduces your time to be served by 335 days, on Count 2.

I sentence you to three years concurrent, less presentence time served, for each of Counts 4 and 6. [ 43 ] Your conviction on offences under s. 434 of the Criminal Code make it mandatory for you to provide a DNA sample in accordance with the Criminal Code , and I make such an order. The sample will be taken while you are in custody. [ 44 ] Given you will remain in custody for some time, I waive the surcharge. [ 45 ] It is hoped you can engage in programs while in custody to address your addiction and mental health issues.

If you wish, Indigenous-centred programs hopefully will be provided to you while you are in custody, including any healing lodges you may be eligible to attend before your release into the community again. [ 46 ] I thank counsel and Crown for their submissions and very helpful agreed facts and cases. [ 47 ] CNSL J. DOW: Thank you, Your Honour. I just want to clarify the sentence, for the benefit of the -- of noting the record appropriately. [ 48 ] THE COURT: Yes. [ 49 ] CNSL J. DOW: A 40-month sentence, if we're multiplying it by 30 days per month, that's a 1200-day sentence, and Mr.

Kohlman is entitled to credit for 223 days' time served, credited at 335 days. [ 50 ] THE COURT: All right. [ 51 ] CNSL J. DOW: So the sentence would be 1200, less credit for 335, yielding a sentence of 865 days on Count 2. [ 52 ] THE COURT: Okay. [ 53 ] CNSL J. DOW: Now, I just want -- and I say that, and then I put a question mark at the end. I just want to ensure that that's the spirit in which you're sentencing Mr. -- [ 54 ] THE COURT: Yes. [ 55 ] CNSL J. DOW: -- Kohlman in. [ 56 ] THE COURT: Yes. Then, it would be -- yes. [ 57 ] CNSL J.

DOW: Now, the three years of sentence on each of them that are concurrent -- [ 58 ] THE COURT: Yes. [ 59 ] CNSL J. DOW: -- they will also be entitled to the credit for -- [ 60 ] THE COURT: Yes. [ 61 ] CNSL J. DOW: -- the --

[ 62 ] THE COURT: Yes. [ 63 ] CNSL J. DOW: -- time. And -- [ 64 ] THE COURT: The 335. [ 65 ] CNSL J. DOW: -- to ensure that they do not run higher than the first one, if we do 365 times three, that's 1095; and then we minus three -- just let me speak out loud for a moment. Because this is a -- it's a lesser sentence than the first one. [ 66 ] THE COURT: Yes. [ 67 ] CNSL J. DOW: Six -- [ 68 ] THE COURT: And those are both concurrent, so the longest time left to serve is the 865 days on Count 2. [ 69 ] CNSL J. DOW: Sorry, just give me one sec. So, in relation to Counts 4 and 6, a three-year sentence is 1,095 days.

Three sixty-five -- [ 70 ] THE COURT: Less -- [ 71 ] CNSL J. DOW: Three sixty-five times three -- [ 72 ] THE COURT: Mm-hmm. [ 73 ] CNSL J. DOW: -- is 1,095 days. And then we credit, in the same convention, two -- sorry, 223 credit, 335 -- or, sorry, 223 served, a 335 credit. So 1095 minus 335 equals 460 days to be served on Counts 4 and 6. [ 74 ] THE COURT: Yes. Concurrent both to -- [ 75 ] THE COURT: -- 2. [ 76 ] CNSL J. DOW: Yes. Counts 2, 4, and 6 are all concurrent to one another. [ 77 ] THE COURT: Yes. [ 78 ] CNSL J. DOW: Madam Registrar, do you -- are we ad idem here? [ 79 ] THE CLERK: Yes. [ 80 ] CNSL J.

DOW: Okay. And the DNA is primary on all three? [ 81 ] THE COURT: Yes. [ 82 ] CNSL J. DOW: And because it's a federal sentence, there's no ord -- there's no other ancillary -- [ 83 ] THE COURT: No. [ 84 ] CNSL J. DOW: -- orders to make. [ 85 ] THE COURT: Because it would be parole system, not probation system, as -- [ 86 ] CNSL J. DOW: Okay. [ 87 ] THE COURT: -- it is a federal -- [ 88 ] CNSL J. DOW: Good. I just want to ensure that we're all on -- [ 89 ] THE COURT: Yes. Yes. [ 90 ] CNSL J. DOW: -- on the same page here. [ 91 ] THE COURT: Yes. [ 92 ] CNSL J.

DOW: Remaining counts that have not been addressed are stayed, if I haven't said that already, and that concludes this -- [ 93 ] THE COURT: Thank you. [ 94 ] CNSL J. DOW: -- unless there's any other questions for clarity here. [ 95 ] CNSL J. DAWKINS: No, Your Honour, and I thank my friend for his clarification on that as well. [ 96 ] THE COURT: Okay. Thank you very much for your able assistance. [ 97 ] Sir, I hope you can take the services that will be available to you and rehabilitate yourself, for yourself and for the good of everyone else in society. Thank you.

[ 98 ] THE ACCUSED: Okay. [ 99 ] CNSL J. DOW: Thank you, Your Honour. (REASONS CONCLUDED) CORRIGENDUM – Released November 9, 2021 In the Oral Reasons for Sentence dated November 8, 2021, the following changes have been made in respect to sentence and the DNA order: [15] CNSL J. DOW: Your Honour, I would ask that the matter be added to the list today to make a -- what amounts to a clerical change to your -- to the sentence imposed on Counts 2 and 4 and the DNA order made on Counts 2, 4, and 6. [16] THE COURT: Yes. [17] CNSL J.

DOW: It comes as a result of a calculation error that I made yesterday, and I apologize for that. You had intended, I believe, on Counts 4 and 6 for the sentence to be 36 -- or three years minus credit for time served and I miscalculated how the credit interacted with the three-year sentence and, as a result, when -- the registry advised me that the math did not add up. [18] THE COURT: All right. [19] CNSL J. DOW: So however the math may be -- have been configured, the intention was that Mr.

Kohlman was to be sentenced to 1,095 days which is 365 times three and that he be given credit for 223 days' time served, 335 days' credit, yielding a sentence of 760 new days on Counts 2 -- or on Counts 4 and 6 concurrent to one another and concurrent to Count 2. [20] THE COURT: Yes, that is correct. [21] CNSL J. DOW: The DNA order that you made at my suggestion was a primary designated DNA order on all counts. It has been brought to my attention, and it is my oversight, that this is actually a secondary designated offence. [22] THE COURT: Oh. [23] CNSL J.

DOW: It was actually optional -- it is actually an optional -- [24] THE COURT: All right. [25] CNSL J. DOW: -- or discretionary order which I think, given the circumstances of how the offence was investigated and undertaken, would be an appropriate order to make as a discretionary order. I am not sure if there is any opposition to my application for that DNA order to go, but if you are going to make it, it has to be under the secondary -- [26] THE COURT: All right. [27] CNSL J. DOW: -- secondary ground regime. [28] THE COURT: Ms. Dawkins, do you have any submissions on that? [29] CNSL J.

DAWKINS: No, Your Honour, we do not oppose. [30] THE COURT: All right. I think in the circumstances, I will grant the DNA order on the secondary -- as a discretionary order. So I will grant that. [31] So, sir, you will still submit for the DNA testing while you are in custody, but it is secondary rather than primary. [32] I thank you for bringing that to my attention. I did not realize that. [33] CNSL J.

DOW: No, no, that was at my -- or my suggestion, Your Honour, so the fault lies here, and I trust that you are amending the jail sentence as I have suggested, as well. [34] THE COURT: Yes, and the calculations, that is agreed by counsel? [35] CNSL J. DAWKINS: Yes, those calculations -- [36] THE COURT: Thank you -- [37] CNSL J. DAWKINS: -- make sense -- [38] THE COURT: -- and so that was -- [39] CNSL J. DAWKINS: -- and that is what you directed. [40] THE COURT: -- on Counts 4 and 6 -- [41] CNSL J. DOW: Four and six. [42] THE COURT: -- with the credits.

So 760 new days on Counts 4 and 6, and they are both concurrent to the Count 2 which was

the longer sentence of 40 months less the time served. [43] CNSL J. DOW: Thank you. [44] THE COURT: Thank you. Thank you very much, sir. [45] CNSL J. DAWKINS: Thank you, Your Honour. [46] THE COURT: Thank you. [47] CNSL J. DOW: That is all from me, Your Honour, thank you. [48] THE COURT: Thank you. [49] CNSL J. DOW: Have a good afternoon. [50] THE COURT: Thank you very much, Ms. Dawkins. (REASONS CONCLUDED)