R. v. Hockley, 2013 BCSC 113

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Hockley, 2013 BCSC 113 Date: 20130102 Docket: 151818-2 Registry: Victoria Regina v. Rodney Lyle Hockley Rohan St George Thomas Before: The Honourable Mr. Justice Bracken Oral Reasons for Sentence Counsel for the Crown: S. Rupertus Counsel for the Accused Hockley: J. Mills Counsel for the Accused Thomas: J. Watt (as Agent for T. Russell) Place and Date of Trial/Hearing: Victoria, B.C. December 20, 2012 Place and Date of Judgment: Victoria, B.C. January 2, 2013 [ 1 ] THE COURT: Mr. Hockley and Mr.

Thomas were convicted after a trial of breaking and entering a dwelling and assaulting one of the occupants of the residence in an apparent attempt to collect a business debt owed to Mr. Thomas by the victim, Mr. Kovic. [ 2 ] The debt arose when Mr. Thomas hired Mr. Kovic as a subcontractor on a renovation contract. Mr. Thomas was carrying out the contract for one of his customers. [ 3 ] Mr. Kovic asked for and received a deposit of approximately $3,000 in order to obtain materials. Mr. Kovic never performed his part of the contract and, so far as I know, to this day has never returned the deposit. [ 4 ] Mr.

Thomas contacted Mr. Kovic over the course of several weeks. He was waiting for Mr. Kovic to perform his work so that the job could be finished. The customer was becoming frustrated, as was Mr. Thomas. [ 5 ] Calls to Mr. Kovic at first were met with excuses and then finally were simply ignored. This went on for a considerable period of time. At some point it appears that Mr. Thomas became frustrated and, together with Mr. Hockley, he went to the residence where Mr. Kovic was living in the Sooke area near Victoria.

They arrived in the evening, parked their vehicle a block or so away, and went to the door of the residence. Each of them was carrying a weapon: one had a shaft of a hockey stick, and the other a portion of a shovel handle. Both were wearing gloves, although it was a July evening. [ 6 ] They entered the residence through an unlocked front door and went to where Mr. Kovic was lying naked on his bed. They demanded that Mr. Kovic pay the money he owed. When he refused or said that he was not able to pay, he was struck with the sticks by both of the accused. [ 7 ] Unknown to either of the accused, Mr.

Kovic's son was in the residence in the lower level of the house. When he heard the commotion in his father's bedroom, he went to look and, seeing strangers in the house apparently engaged in a dispute or attack upon his father, he called the police. [ 8 ] A single police officer arrived very quickly and both accused were arrested without any difficulty. [ 9 ] Mr. Kovic received some injuries in the attack. He had several bruises and one or more cuts to his head which bled profusely.

He was treated and released at the hospital, and it appears that his injuries were not serious. [ 10 ] He has prepared a victim impact statement that is in evidence, and he claims some residual effects from the attack, both physical and psychological. He moved to Calgary not long after this incident and apparently still resides there. [ 11 ] There is a considerable disparity between the Crown and defence submissions as to an appropriate sentence. The Crown seeks a significant sentence in the range of three and one-half years in the penitentiary.

The Crown correctly, in my view, sees the unlawful entry into an occupied dwelling as a serious offence, and has referred to several cases which have been described as “home invasions”. [ 12 ] Defence counsel both recognized the seriousness of the offence, but emphasized the absence of any criminal record and seek to

distinguish the authorities relied upon by the Crown. Counsel for the accused submits that it is open to the court to suspend the passing of sentence and to place the accused on probation. [ 13 ] This case has taken a long time to complete. As a result, Mr. Hockley and Mr. Thomas have been on some form of bail order for more than three years without any incident or difficulty. It is submitted on their behalf that this was an offence that was completely out of character for them and there is no need for any specific deterrence as they are highly unlikely to offend ever again.

They submit that a denunciatory sentence can be achieved without a sentence of incarceration. In short, they submit that a jail sentence will cause both of them to lose their employment, cause harm to their families, and leave them less able to return to their normal, law-abiding lifestyles. [ 14 ] Mr. Hockley is 37 years old and in a relationship. He and his partner are expecting a child. He has no prior criminal record and has maintained steady employment for many years and throughout the extended length of this matter. He is currently a manager of a local small business. [ 15 ] Mr.

Thomas is 34 years old, has no prior criminal record. He operates his own business and has never had any difficulty with the law in any respect. He is active in the community. Both men have good support networks, and I accept that both men have been, until now, law abiding and productive. There is every reason to believe that will continue in the future. [ 16 ] The term “home invasion” has gained some currency in the law in recent years. This is largely a result of a few high-profile cases where criminals have entered private homes to try and steal money or drugs, or both, and/or terrorize the occupants.

Two cases created what was suggested to be a conflict in the sentencing principles respecting so-called home invasion cases. The first was R. v. D.A.W. , 2002 BCCA 336 , where a sentence of 10 years was imposed and upheld on appeal. The second was the case of R. v. N.P.D. , 2002 BCCA 304 , where a sentence of five and one-half years was imposed. Those cases were reconciled by the Court of Appeal in R. v.

Bernier , 2003 BCCA 134 , where the court sat as a panel of five justices. [ 17 ] In that case, also categorized as a home invasion, Southin J.A. thoroughly analyzed the principles of sentencing involved in such cases. In concurring judgments by Prowse J.A. with Levine J.A. concurring, and a separate concurring judgment by Newbury J.A., the essential principles were summarized. In each of the judgments, it was pointed out that there is no offence in criminal law known as “home invasion”.

Prowse and Levine J.J.A. noted that it is a term that is: ... loosely used as a shorthand expression for a combination of offences involving a breaking and entering with intent to commit theft or robbery, with knowledge or recklessness as to whether the dwelling is occupied at the time, and frequently involving an assault on one or more occupants. Bernier at para. 81 . [ 18 ] Southin J.A. for the majority said: ... the Criminal Code does not speak of "home invasion" crimes. The phrase is useful for the press.

It is not useful in the administration of the criminal law because it lacks precision as to the exact crime committed. [ 19 ] She went on to say that the offence of breaking and entering an occupied dwelling house is more heinous than breaking and entering an unoccupied building. [ 20 ] In each of the three cases noted, D.A.W. , N.P.D., and Bernier , the facts of the offences were more egregious than the facts here.

Nevertheless, the one consistency is the fact of entering an occupied dwelling for an unlawful purpose. [ 21 ] In Bernier , three or four people entered the victim's residence in an attempt to steal marihuana they believed was in the residence. They handcuffed the occupant and threatened and then struck him with a firearm. They found no drugs, but took money and other items. Mr. Bernier was 21 years old at the time and had a criminal record for assault, breaking and entering, possession of break-in instruments, and carrying a concealed weapon.

He was given a 14-year sentence at trial that was reduced to six years on appeal. [ 22 ] In D.A.W. , the accused and another entered the home of a couple who were both over 70 years of age. They were threatened with a knife and about $300 was stolen. In addition, one of the accused, not D.A.W . , sexually assaulted the female victim and the two occupants were generally terrorized by both accused. A sentence of 10 years was imposed on D.A.W. and 13 years on his co-accused who had committed the sexual assault. [ 23 ] In N.P.D. , the accused and another man entered the home of the victim through a window.

They each had a firearm and had their faces masked. The home was occupied by the victim and his stepson at first, and then later the victim's wife and four-year-old daughter came home. Money and other items were taken, and the victim and his stepson were tied up. The accused was 19 at the time of the offences and had a Youth Court record for aggravated assault and three break and enters. The sentence imposed at trial was the equivalent of four years. On appeal, the sentence was increased to an effective sentence of five and one-half years. [ 24 ] The Crown referred to other cases as well. In R. v.

Forrester , 2004 BCSC 1310 , a sentence of five years was imposed for aggravated assault to be served concurrently with a sentence of two years for break and enter. The circumstances were that the accused and another entered a residence armed with baseball bats. They had their faces masked, and assaulted the occupants, leaving them seriously injured. Forrester had a criminal record and was at the time 23 years old. He was of aboriginal heritage. The court noted that the offences were serious and left the victim with very serious injuries.

The intent of the accused was to enter the residence and beat the victim senseless, according to the trial judge, which of course they did (para. 23). [ 25 ] In R. v. Whitford , 2005 BCSC 1110 , the accused broke into an occupied house and assaulted the female victim. The female accused was 27 years old at the time and was of Métis descent. She had what was described as a serious criminal record, including several crimes of violence, including a prior assault with a weapon. She was sentenced to three and a half years.

[26] R. v. Moore, 2008 BCCA 129, was a case where a six-year sentence was upheld for a break-in of a dwelling house and thecommission of a serious assault committed by the accused and one other. The residence was occupied by a man, his wife, and twochildren. The two accused attacked the male resident and Mr. Moore kicked the man's wife several times and threatened to kill her. Atone point he put a pillow over her face to try and suffocate her. The accused was 24 years old at the time and had a prior record forviolent criminal offences. [27] The court referred to R. v.

Vickers, 2007 BCCA 554, for the principle that deterrence and denunciation are the primary factorsin sentencing for violent crimes. The same reference cited R. v. Meigs, 2007 BCCA 394, where Saunders J.A. stated that: ... it is a grave offence to enter another person's home without permission, and graver to enter the home and violate the occupant. Thecourts must and do impose stern sanctions for such crimes. [28] Finally the Crown referred to R. v.

Ross, 2009 BCSC 1831, where a global sentence of one year was imposed, together with twoyears of probation, where the accused and three others broke into a residence and assaulted the occupant with a baseball bat. The offencetook place at about 2:30 in the morning, and the victim received a seriously broken forearm and toes, as well as bruising to his legs andhis head. The court noted that the baseball bat used was capable of causing serious harm, including death, but also noted that theaccused had demonstrated positive subsequent behaviour.

The accused was 23 years old at the time of the sentencing and of aboriginalheritage. He had spent considerable time in pre-trial custody and was given credit for 33 months. [29] After discussing the Bernier case, the offence in Ross was described at paragraph 33 as a species of home invasion. The courtindicated a sentence in the range of three years and nine months was considered appropriate, without considering the pre-trial period ofcustody. [30] Counsel for the two accused in this case referred to several cases where conditional sentences were imposed for offences of thisnature. In R. v.

Jacko, 2010 ONCA 452, the accused entered a guilty plea to several offences arising from a break-in at an apartment bythe accused and three others who burst into the apartment with their faces masked. They punched and kicked the occupant, causing himserious injury. One of the men, not the accused, was armed with a large knife which he pressed to the throat of the female occupant. They stole money and property, as well as damaged the home and other items in the apartment. Mr. Jacko received a four-year sentenceat trial that was reduced on appeal to a conditional sentence of two years less one day.

The court held that the sentencing judge hadfailed to give sufficient weight to the accused's aboriginal heritage and the principle of restorative justice. [31] A conditional sentence is no longer available for this offence; however, counsel for the accused emphasized that considerabledamage to each of the accused will likely result from a custodial sentence in the range sought by the Crown. Counsel referred to severalcases where similar serious offences were dealt with by the imposition of shorter jail terms or no jail terms at all. [32] In R. v.

Loring, 2009 BCCA 166, the court reduced a sentence of two years less one day to nine months' imprisonment for a 20-year-old First Nations man. The offence involved serious violence by the accused and two others. In addition, after leaving theresidence he had entered, he returned a short while later armed with a rifle which he discharged into the air. Much of the analysis of theCourt of Appeal turned on the offender's aboriginal status and the appropriate application of R. v.

Gladue, (SCC),[1999] 1 S.C.R. 688, although the court noted by the time of sentencing the accused was working and trying to lead a responsible life. [33] In R. v. Luttman, 2005 BCSC 405, the accused and another kicked in the door of a home and assaulted one of the residents. There was a baby and a young child in the home at the time. Sentence was suspended for both accused for a period of two years,provided they complied with a probation period and certain conditions. The offence was recognized as serious, particularly so since itoccurred in the middle of the night.

Both accused were young and remorseful and were employed at the time. While somewhat dated,the case was submitted as authority for a suspended sentence in a case of this nature. [34] Counsel also referred to R. v. Nakamura, 2012 BCSC 327. While the offences were serious, they did not include the break andenter of an occupied dwelling. The court canvassed a considerable body of case law on sentence, particularly with respect to youthfulfirst offenders. The result was a suspended sentence with probation.

While the offences were described as vicious and unprovoked,resulting in an assault and a robbery, the accused were young and were considered good prospects for rehabilitation. Again, the casestands for the proposition that it is sometimes appropriate to impose a non-custodial sentence with conditions sufficient to satisfy thedeterrence and denunciation necessary for serious offences. [35] It is not uncommon for the courts to be faced with a sentencing dilemma such as this one.

The offence is a serious one that hasbeen frequently recognized as an offence requiring the emphasis of the principles of denunciation and deterrence, yet the two accusedare productive citizens who have had no prior involvement with the courts or the police. [36] The nature of the offence the accused have been convicted of is one which has received special notice by way of s. 348.1 of theCriminal Code, which clearly states that the unlawful entry of a dwelling that is known to be occupied is an aggravating circumstance forthe purposes of sentencing.

Our Court of Appeal has said as much in several of the decisions that have been discussed above. [37] However, the court in Bernier was careful to note that while the expression “home invasion” has become commonly used in andout of the courtroom, there has been no new offence carved out of s. 348 of the Criminal Code.

The court in Bernier was also careful togive meaning to the word “range” as it is used in respect to ranges of sentencing, and noted at para. 42 of Bernier that: A “range” does not preclude on grounds of deterrence or denunciation or the gravity of the particular offence a sentence different fromthat “range”. Nor does a “range” preclude a lesser sentence if some special circumstances warrant such a course. When considering anyparticular case similar to R. v. D.A.W. or to R. v. N.P.D. or to this case, trial judges and this court will have in mind those sentences aspart of the “range”.

The “range” is not conclusive. [38] The court in Bernier also noted that the facts of the offence, as found by the trial judge, are critical to the sentencing process. As was noted by Lamer C.J.C. (as he then was) in R. v. M.(C.A.) at para. 92:

It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime: See Mellstrom, Morrissette and Baldhead . Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

For these reasons, consistent with the general standard of review we articulated in Shropshire , I believe that a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes. [ 39 ] As Prowse J.A., with Levine J.A. concurring, commented at paras. 73 and 74 of Bernier : While I agree with most of what the trial judge has said in these passages, I disagree with his description of this Court's role, referred to in the underlined portion of this quote.

This Court does not set “minimum and maximum sentences” which it is “the duty” of trial judges to fit their sentences within, or have the sentence declared unfit. Rather, this Court suggests a range of sentences for similar offences and similarly situated offenders, drawn largely from its own prior decisions, supplemented, in some instances, by decisions of trial judges. These authorities are either provided by counsel, or are derived from other authorities which have been summarized in earlier decisions. This system of establishing ranges is imperfect.

Counsel may not provide the Court with all relevant authorities; some of the authorities provided may reflect offences or offenders that are not truly similar; the authorities may be dated, or from jurisdictions where the particular crime is a greater or lesser problem; the authorities may define the relevant crime too broadly, or too narrowly; the authority may simply be anomalous. Because of these imperfections, and more importantly, because sentencing is an inherently subjective and individual process, ranges suggested by this Court are simply that -- suggestions. They are guidelines, not rules.

They are not, nor could they be, mandatory minimum and maximum sentences which demand compliance by trial judges. [ 40 ] I turn then with these authorities in mind to the principles of sentencing set out in ss. 718, 718.1, and 718.2. Those principles provide, in part, in s. 718: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 41 ]

Section 718.1: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 42 ]

Section 718.2: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender ... (Parenthetically, I say that here I include reference to s. 348.1 of the Criminal Code .) (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; [and finally] (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances ... [ 43 ] Here we have two men who are beyond the age normally associated with youthful indiscretion and who, for reasons best known to themselves, chose to try and collect a legitimate debt that was long overdue by the commission of a serious crime.

I think it likely that they gave little or perhaps no thought to that fact when they embarked on the course of action that led to their convictions. [ 44 ] The victim was not a man with an impeccable reputation, and he chose to take money entrusted to him for the purpose of purchasing material for work he had agreed to take on, and then failed to purchase the material or return the money. Perhaps the frustration of Mr. Thomas was justified, but not his conduct. [ 45 ] Pre-sentence reports have been prepared and filed, and not surprisingly they are positive in all respects.

There are many positive factors to consider with respect to both of the accused and, other than the seriousness of the offence, there is nothing to justify a long custodial sentence. [ 46 ] I distinguish many of the cases referred to on the basis that often the purpose of those offences or the offenders themselves was associated with a criminal lifestyle. Here the accused at least felt some legitimate purpose, however wrongly they conceived that belief.

They made no attempt to disguise themselves or conceal their purpose. [ 47 ] When the police arrived, they made no attempt to flee and simply cooperated with the lone officer who first arrived at the residence. A second officer arrived a short time later. [ 48 ] As to the injuries, while the injuries looked serious, given the amount of blood from the cut or cuts on his head, it appears that not a great deal of injury was caused. For example, it is not clear whether the cuts even warranted stitches to close. [ 49 ] Neither of these men followed a criminal lifestyle or anything close to it.

Both were well employed, and Mr. Hockley will lose his ability to carry on his former occupation in security work based on this conviction. They have both maintained employment while this case has been pending, and have dutifully obeyed all of the conditions imposed. [ 50 ] In all of the circumstances of this case, I distinguish the facts from the line of cases that have been described as home invasions.

While still serious, the facts of this case do not, in my respectful view, require a sentence in the range of three years, nor do they require a jail sentence that is likely to disrupt their normal productivity in the community. [ 51 ] I return to s. 718 and the fundamental principles of sentencing.

The first and the most significant principle at work in this case is the denunciation of unlawful conduct. [ 52 ] As to the second, deterrence of the offender and others from committing offences; it is my view that specific deterrence of these particular offenders is no longer necessary, and general deterrence, in my view, can be satisfied by something other than a long penitentiary sentence.

There is no need to separate either of these men from society. [ 53 ] As to rehabilitation, it seems to me that they have led law-abiding and productive lives up until this particular incident, and there is nothing in any of the material to suggest that they will do anything other than that in the future. [ 54 ] The promotion of a sense of responsibility in offenders and acknowledgment of the harm done, as well, it seems can be dealt with in a way other than a jail sentence. [ 55 ] As to reparations, I am tempted to try and impose some community service work or perhaps some sort of restitution, although there is no evidence of any need for restitution, and it cannot be forgotten that Mr.

Kovic still has something in excess of $3,000 that belongs to Mr. Thomas. [ 56 ] In my view, the sentence that I impose must recognize that the offence these two men committed is a serious one, and to that extent it does require a jail sentence of some kind to emphasize to themselves and to others the gravity of entering an occupied dwelling to commit a criminal offence. It is my conclusion that such a sentence can be designed to fit within the intermittent sentence provisions of s. 732 of the Criminal Code . [ 57 ] Mr. Hockley and Mr.

Thomas, would you stand up, please. [ 58 ] I will impose a sentence of 90 days in custody on each of you to be served intermittently on weekends. The weekends will commence Friday at 6:00 p.m. and end Sunday at 6:00 p.m. I will hear some submissions from counsel as to the configuration of the sentence. It does not have to be always on weekends, and I am prepared to make an alteration accordingly. [ 59 ] You will both be covered by a probation order that will require you to be on probation for the entire time from today until such time as the last day of your sentence has been completed.

The terms of that probation order will be that you keep the peace, be of good behaviour, arrive at the institution where you will be serving your sentence on time and free from the influence of any alcohol or any illegal substance, and you must follow the rules and regulations of the institution. [ 60 ] That probation order will be followed, once your incarceration period is completed, with a period of probation for one year. You will report to a probation officer within 48 hours of completion of your sentence; thereafter as and when directed by the probation officer.

Keep the probation officer informed of your residential address; do not change it without first informing the probation officer, and keep the peace and be of good behaviour. [ 61 ] I will hear from Mr. Mills with respect to -- [ 62 ] MR. MILLS: If I might have a moment's indulgence, My Lord? [ 63 ] MR. WATT: My Lord, if I could have about five minutes, if we could just stand down? [ 64 ] THE COURT: We will stand down briefly. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [ 65 ] MR. WATT: Yes, thank you, My Lord. With respect to Mr. Thomas, all those conditions are fine.

We are content with those conditions. [ 66 ] MR. MILLS: With respect to Mr. Hockley, he's got no issue with any of the conditions. He's asking if he can serve his intermittent sentence from Tuesday at six till Thursday at six, as opposed from Friday to Sunday, with the exception of this weekend, where he's asking to submit himself Friday to Sunday, thereafter Tuesdays and Thursdays, if that's agreeable, My Lord. [ 67 ] THE COURT: Mr. Rupertus, any comment on that? [ 68 ] MS. RUPERTUS: No, thank you, My Lord.

[ 69 ] THE COURT: All right, then I will make the order with respect to Mr. Hockley to be served from Tuesday at 6:00 p.m. to Thursday at 6:00 p.m., and to commence? [ 70 ] MR. WATT: This Friday. [ 71 ] MR. MILLS: I'll ask for one week today, if that's agreeable. [ 72 ] THE COURT: With respect to Mr. Thomas, that sentence will commence Friday, January 3rd at 6:00 p.m., and with respect to Mr. Hockley, it will commence the 14th of January. That is a week from this coming Tuesday. [ 73 ] MR. MILLS: I was going to suggest -- is it Tuesday today, My Lord? I was going to suggest the 9th of January. [ 74 ] MS.

RUPERTUS: Today is Wednesday the 2nd, and Friday will be the 4th. [ 75 ] THE COURT: Oh, I am looking at the -- sorry, I am looking at the wrong calendar. [ 76 ] MR. MILLS: Sorry, I apologize, I'm stuck. [ 77 ] THE COURT: Tuesday the 15th. [ 78 ] MR. MILLS: Thank you, My Lord. [ 79 ] MS. RUPERTUS: And -- [ 80 ] THE COURT: So Tuesday the 15th at 6:00 p.m. [ 81 ] In addition, there will be an order that you provide samples of DNA.

That will be done under the direction of the probation officer, and for that purpose I will make an order that you report to the probation officer not later than 4:00 p.m. on January 7, 2013. [ 82 ] Also, there is a mandatory lifetime ban on firearms pursuant to s. 109. [ 83 ] MS. RUPERTUS: My Lord, with respect to the DNA collection, I understand that that is most efficiently done either at the institution or at an RCMP station, rather than the probation office. As they will be committing themselves into an institution, perhaps that can be accomplished at that point, unless Mr.

Sheriff has suggestions otherwise. [ 84 ] THE COURT: Perhaps what I could do then is add a condition to the probation order, the first probation order covering their period of incarceration, that they provide, as directed by an officer at the Vancouver Island Correctional Centre, a sample of DNA suitable for analysis. [ 85 ] MS. RUPERTUS: Thank you, My Lord. [ 86 ] THE COURT: Thank you. [ 87 ] MR. MILLS: Thank you, My Lord. [ 88 ] MR. WATT: Thank you, My Lord. “J. K. Bracken, J.” The Honourable Mr. Justice Bracken