R. v. McPherson, 2013 BCSC 1416

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. McPherson, 2013 BCSC 1416 Date: 20130719 Docket: 155911-2 Registry: Victoria Regina v. Douglas Archer McPherson Before: The Honourable Madam Justice Dorgan Oral Reasons for Sentence Counsel for the Crown: K. A. Henders Miller Counsel for the Accused: M. J. Munro Place and Date of Trial/Hearing: Victoria, B.C. June 20 and 24, 2013 Place and Date of Judgment: Victoria, B.C. July 19, 2013 [ 1 ] THE COURT: Mr. McPherson is charged in this case with the robbery of Yuanquing Chen. Ms. Chen was a teller at the Bank of Montreal at Douglas and Yates.

The robbery took place around 3:00 p.m. on December 23, 2011; the amount stolen was $1,745. [ 2 ] Given that it was the Christmas season, of course, the bank was busy and there were customers lined up waiting to access a teller. Mr. McPherson was in that customer lineup. Because of an earlier tip, a plainclothes police officer was also in the lineup, a number of customers behind Mr. McPherson. The officer observed a man in the lineup, who turned out to be Mr. McPherson, moving side to side in what was described by Ms. Henders Miller as an agitated manner. [ 3 ] When Mr. McPherson got to Ms.

Chen's desk, he said, “Don't close your drawer and give me all the money”. Ms. Chen did not immediately react. According to Crown counsel, Ms. Chen thought this might be a prank or a joke of some sort. Mr. McPherson repeated his demand, adding, “I'm serious” and “keep it quiet”. [ 4 ] Mr. McPherson showed no weapon or facsimile of a weapon. Indeed, he had no weapon. He was unremarkably dressed and obviously was not masked. [ 5 ] The teller gave Mr. McPherson all the 5- and 20-dollar bills she had in her drawer. Of the twenties, eight were bait money. [ 6 ] Mr.

McPherson then said to her, “Is that all you've got?” At which point, Ms. Chen gave him the 10-dollar bills in her drawer. Mr. McPherson said, “Don't tell anybody”. Ms. Chen replied that she would not, and Mr. McPherson left the bank. [ 7 ] The undercover officer then confirmed with a very distraught Ms. Chen that she had just been robbed. The officer radioed a colleague officer who was standing by outside on the street. Mr. McPherson was watched as he crossed Douglas Street, took off his jacket, left it, I believe, on a garbage can, and was arrested. [ 8 ] Mr.

Munro says that at the time of his arrest, he was trying to bum a cigarette from a street person, though he had $1,745 in his pocket. [ 9 ] Mr. McPherson has been in custody since the date of the offence, some 18 months ago. [ 10 ] On June 10, 2013, Mr. McPherson pled guilty to robbery in this court. On June 20, 2013, sentencing submissions were made and the matter was set over to today's date for disposition. [ 11 ] Mr.

McPherson is 56 years old, soon to be 57, I am told, and his criminal record is unenviably extensive. [ 12 ] The position of the Crown is that a sentence of seven to nine years is appropriate, given the gravity of the offence and particularly Mr. McPherson's record -- its length, and nature. On the robbery for which Mr. McPherson was sentenced immediately prior to this one, that is in November 2006, the sentence imposed was five years.

The Crown urges the court to impose a sentence of seven to nine years on a consideration of the principles of general and specific deterrence, denunciation, and the protection of the public. The Crown urges the court to consider and apply the step-up principle. [ 13 ] The defence position is that provincial time imposed is appropriate in the circumstances. Mr. Munro's suggestion is that a further 18 months of time be imposed, plus the longest possible probationary period, three years, in these circumstances.

[ 14 ] In particular, the defence stresses Mr. McPherson's age and the positive efforts and strides he has made over the last 18 months while in custody. The defence contends that the sentence sought by the Crown is a sentence which, in effect, “throws away the key”. The defence contends that the sentence sought by the Crown does not support Mr. McPherson's opportunity for rehabilitation, thereby protecting the public, that it is a significantly longer custodial sentence than is needed to meet the principles of denunciation, deterrence, and for the purposes of protecting the public.

The defence urges this court not to give the so-called step-up principle undue weight. [ 15 ] In her victim impact statement, Ms. Chen describes her recollection that she felt fear during the incident. She describes the robbery as a “bad experience”, one in which she felt “uncomfortable”, and an experience which left her having nightmares for several days afterward. She wrote the victim impact statement on June 19, 2013 and describes herself as being “totally fine”. [ 16 ] In addressing the court, Mr. McPherson called his crime “a serious crime”, and with that description I wholeheartedly agree. Mr.

McPherson expressed his empathy for Ms. Chen. He acknowledged that she was clearly a victim. Mr. McPherson told this court that he has sisters and nieces and that he would not like to see them exposed to what he put Ms. Chen through on December 23, 2011. [ 17 ] Mr. McPherson, I have already noted, has an unenviable criminal history. I am told, Mr. McPherson, that you have been addicted to heroin since about age 15. Mr.

McPherson will be 57 years old this fall, and his criminal record commencing 1973 includes convictions for possession of drugs and for trafficking drugs, possession of stolen property, theft, break and enter, forgery, being unlawfully at large, and a number of convictions for robbery. The robbery convictions start in 1984, continue in 1989, 1992, four charges and convictions in 1997, and finally in November 2006, the last conviction before this one. [ 18 ] Three of the robbery convictions -- 1984, 1992, and 1997 -- took place inside penitentiaries or jails, according to the Crown.

I was given no further information of the circumstances of those robberies. [ 19 ] Mr. McPherson told this court that he committed most of the crimes when he was drug seeking or was on a drug binge. Oddly or coincidentally, the last robbery conviction, that in November 2006, for which Mr.

McPherson was sentenced to five years, was of the same Bank of Montreal branch as is involved in the present case. [ 20 ] Over the course of this criminal history, and the record is three and a half pages long, the sentences handed out are a variety of sentences ranging from fines, provincial time plus probation, and federal time, as I have said, the last one five years. [ 21 ] Arising from the 2006 conviction for robbery, I understand that Mr. McPherson was paroled in about March of 2010, that he was on parole for about one and a half years, during which time he received treatment for drug addiction.

I am told that at one point he breached his parole by apparently driving without a driver's licence, but that parole was not revoked for that breach. Thereafter he went absent without leave -- stopped reporting -- parole was revoked, and he served to warrant expiry. [ 22 ] The present offence was committed 38 days after completion of the sentence which was served to warrant expiry. [ 23 ] Mr. Munro submits that this offence was committed by Mr.

McPherson when his judgment was addled by methadone and benzoid drugs, that he was at that point homeless, having been released on November 15, 2011, with $50 and no plan, that Mr. McPherson was worried that he was headed back into the drug addiction cycle, and that he chose to rob a bank in order to get the stability that incarceration would then provide him and which he considered he then needed. [ 24 ] On the submissions of the defence, after spending approximately 22 of the last 25 years in prison, Mr.

McPherson had no skills to deal with his homelessness, his lack of money, and the vestiges of his drug addiction, and seemingly was unable to access any community services which might have been able to assist. [ 25 ] So on the defence theory, he went back to the bank that he had robbed in 2006, robbed it again, made no real effort to flee, and was immediately back in jail, back to the stability it is contended that he sought. [ 26 ] For the past 18 months, and while at Wilkinson Road, Mr. McPherson has, by all accounts, done fairly well.

A corrections officer, somewhat unusually, I would say, wrote a letter in support of Mr. McPherson. The officer had worked with Mr. McPherson or has worked with Mr. McPherson at VIRCC in the prison industry shops for the past 18 months. This officer wrote as follows: I confirm that Doug McPherson is employed in the prison industries/shops at the Vancouver Island Regional Correctional Centre from March 28, 2012, to the present. He is a team player and easily gets along with Corrections staff in the shops, as well as those temporary staff that fill in from time to time.

He also holds an acceptable attendance record. I would recommend Doug for other institutional work or public employment when he gets released, as he continues to strive to improve himself and his situation. [ 27 ] Mr. McPherson has obtained a certificate of completion in training and basic painting practices since his incarceration in December 2011. [ 28 ] A therapist working with Corrections has also written on behalf of Mr. McPherson. This therapist describes his contact with Mr. McPherson as follows: I have maintained a casual contact with Mr.

McPherson over the course of his remand following his conversational approach to inform me of his plans and his hopes for a future that would provide and support his basic needs. My observation leads me to believe his institutional behaviour at VIRCC was exemplary. [ 29 ] The therapist goes on to interpret and draw conclusions regarding Mr. McPherson's motivation to rehabilitate himself based on conversations that he has had with Mr. McPherson. [ 30 ] In turning to the principles of sentencing, I can do no better than to refer to Judge Quantz's synopsis of those in R. v.

Peters , October 7, 2008, where Judge Quantz says at para. 20 on p. 8:

... The fundamental purpose of sentence is to contribute to respect to the law and a just, safe society by imposing stated objectives. Parliament has set out these objectives and they include denunciation, deterrence, separating offenders from society, rehabilitation, repairing harm, and promoting a sense of responsibility in offenders and acknowledging the harm to victims in the community. Importantly, a sentence must be proportionate to the gravity of the offence and the accused's level of responsibility for it.

These principles are codified in s. 718 ... of the Criminal Code . [ 31 ] In the Peters case, which the defence urges this court to consider, the charge was attempted robbery, the offender had a lengthy criminal history, which included a number of robbery convictions, and he was sentenced, in a case which Judge Quantz referred to as unique, to time served which then equated to five months plus a three-year suspended sentence. Of major significance, in my view, and quite different from the case at bar is the fact that Mr.

Peters had lived for 10 years as a law-abiding citizen before an attempted robbery which the judge described as bizarre and pathetic. [ 32 ] The Crown emphasizes and urges this court to impose the sentence of seven to nine years, given a consideration of the step-up principle, and noting that the last conviction for robbery was indeed one for five years. [ 33 ] R. v. Zakis (January 4, 2012, Provincial Court of British Columbia, Vernon Registry, Docket Number 46557) is a case of a planned and deliberate robbery by a masked person found to be incapable of empathizing with the victim.

The sentence of six years was upheld by the Court of Appeal, 2012 BCCA 450 . [ 34 ] In referring to the “step-up principle”, Justice Levine at para. 30 reminds the court that the “step-up principle” is not a sentencing principle enumerated in the Code . Rather, it is a way of expressing, in a short-hand manner, the idea that a sentencing judge is required to take a measured approach in sentencing an individual.

That is particularly so in a case where rehabilitation is a significant factor. [ 35 ] At para. 32, Justice Levine says: In any event, the step [up] principle is inapplicable when considering imposing a lesser sentence than previously imposed. [ 36 ] The Crown also relies on R. v. Nilsson , January 10, 2012, where Mr. Justice Walker imposed a sentence of eight years for two robberies on an offender who had prior robbery convictions.

In that case, as distinct from the case before me, the offender told the teller that he had a gun, the court made a finding that the robbery was planned and deliberate, and it was committed while the offender was on parole. [ 37 ] There are aggravating factors in the case before me. The seriousness of this offence is certainly an obvious one, and it is also obvious that implicit in a robbery is the threat or harm to the victim. [ 38 ] The mitigating factors here are that Mr.

McPherson cooperated with the police -- he was arrested within minutes of the robbery -- and his acceptance of responsibility is reflected in the guilty plea. Now, the defence urges the court to consider Mr. McPherson's guilty plea as “early”. I decline to do so. In this case, a preliminary inquiry was waived at the very last moment. In preparation for trial, there was an agreed statement of facts which precluded the necessity of Ms. Chen testifying. However, the guilty plea was entered on the first day of trial in Supreme Court. Many witnesses were inconvenienced, as was the court calendar and schedule.

This is a last minute guilty plea. [ 39 ] What is of interest is that I believe there are some signs that rehabilitation is a factor which deserves a great deal of weight in this case. I note the ongoing efforts and success that Mr. McPherson has made and has had within VIRCC since December 2011. I consider that Mr. McPherson has insight into his circumstances and those of the victim.

His description of his crimes, his lifestyle, and his abilities to eventually integrate into society and to live a lawful life once out of jail are of importance to me. [ 40 ] However, the circumstances here, as distinct from those in the Peters case, do require further incarceration, in my view. The question of this court is how much longer is appropriate in all of the circumstances.

Do the principles of denunciation and deterrence, and does a consideration of the step-up principle require the length of sentence the Crown contends is appropriate, or will the principles of sentence referred to, along with a consideration of rehabilitation and its companion, the long-term protection of society, be met by imposing the sentence that the defence contends is appropriate? [ 41 ] As our courts repeatedly state, the sentencing of an offender is an individualized process; a process which requires a measured approach to the circumstances of the crime and the circumstances of the offender.

Here the circumstances of the offender include not only an unenviable record of cognate offences, but also some glimmer of hope of rehabilitation based on Mr. McPherson’s insight and efforts. [ 42 ] Mr. McPherson, if you would stand, please. You have told me that you want to be very secure when the time for release comes. You have told me that you, considering all of the circumstances of your life, will require a lot of assistance from community services when you are released. You said you will need help with housing and with accessing social programs.

You told me that you need to be drug free when you are released from prison, that you have been on methadone for two years now, and you described to me that you need to be even cleaner.

You said, “I need to be cleaner”. [ 43 ] I accept that at the time that you were released on November 15, 2011, as the time went on you became less and less confident that you were ready to live outside of jail in a law-abiding fashion -- you became less confident that you could deal with the remnants of your drug addiction and in your ability to look after yourself in those circumstances. [ 44 ] Based on what you told me, I think you have insight of what is required for you to live as a law-abiding citizen, because eventually you will be out of jail, whether the sentence imposed is that which the Crown seeks or that which the defence seeks. [ 45 ] I gather from you that, given the passage of time, you think that this time you may be ready, you can be ready; not may be, but that you can be.

You have told me that this crime, as distinct from many that you have committed when you were younger, is different.

That you care now; you did not always care in the past. [ 46 ] You have told me that you have worked seven days a week at VIRCC. It is suggested to me that that gives you a semblance of an idea of what it is like to be employed -- what is required -- and you have shown up, according to the Corrections Services people. [ 47 ] You have told me that at this stage, in the context of your age and given your last experience with being outside of jail, you know you have got to pick up the ball. I mean, you know, Mr.

McPherson, that you have kind of come to the end of the road and there is only one path to take, if you are not going to spend the rest of your life in jail. [ 48 ] I am satisfied that you want to take the path of leading a simple life outside of jail as a law-abiding citizen, but you need a lot of structure in order to do so. [ 49 ] I am satisfied that the sentence that the Crown seeks inappropriately emphasizes denunciation, deterrence, and in particular focuses on the step-up principle to the exclusion of the potential for your rehabilitation and to the exclusion of the protection of society that will follow in the event of your rehabilitation. [ 50 ] You have acknowledged the seriousness of your crime in your statement to this court.

I accept that you have empathy for the teller -- you know she was a victim. I accept that a factor in this bank robbery was your addled judgment from the drugs, plus the lack of confidence at that point that you could stay out of jail and remain drug free and crime free. You used no weapon, but you know that there is an implied threat when you rob a bank. I accept that you used no threatening gestures during the robbery. [ 51 ] Your plea of guilty reflects that you take responsibility for your behaviour, though it was not entered at the first available opportunity.

Your statements to the court reflect, in my view, some insight into your behaviour and what is required for the future. [ 52 ] Your lengthy record reflects badly, of course, and it is the record of a drug-addicted person who has turned to crime on numerous occasions. [ 53 ] You are aware that few, if any, chances remain for you to achieve your stated goal of living a simple life outside of jail as a law- abiding citizen. [ 54 ] You have already served 18 months which is credited on a one-to-one basis.

The sentence I impose, in addition to the time already served, is two years less a day, plus the maximum probationary period of three years. The lengthy probationary period allows for strict community supervision, involvement which you say is required, and I am satisfied is required if the public is to be protected. [ 55 ] Given the time that you have served, this is the equivalent of a three-and-a-half-year sentence, combined with three years of supervision in the community by the Corrections people.

In my view, this sentence does not undermine the principles of deterrence and denunciation, and it supports to some degree the principles relating to your rehabilitation and its companion, the protection of the public. [ 56 ] I have, as earlier noted, considered the Crown's submissions regarding the step-up principle. [ 57 ] I will hear submissions in regard to the terms of probation at some point. In the meantime, I have some terms in mind. Mr. McPherson, when you are released, you will report to a probation officer immediately.

You will live where your probation officer directs you, and thereafter you cannot change your address without written permission from your probation officer. [ 58 ] You cannot possess or consume non-prescription drugs as they are defined by the Controlled Drugs and Substances Act . You are to attend counselling and therapy and treatment, if you consent to it, as your probation officer directs.

That would include therapy for substance abuse. [ 59 ] You are to attend Forensic Psychiatric Services for psychiatric/psychological assessment and intervention as directed by your probation officer, who will no doubt be aware that you have attended a program in the last five years or so of addiction counselling. [ 60 ] You are prohibited for life from possessing weapons, that would include firearms, as defined in s. 109 of the Criminal Code . You are required to provide a sample for DNA Registry purposes.

That sample will be provided -- is it appropriate, counsel, to be provided to the Victoria City Police or -- [ 61 ] MS. HENDERS MILLER: I believe the sheriffs actually -- [ 62 ] THE COURT: -- Corrections? Or sheriffs. [ 63 ] MS. HENDERS MILLER: -- do that, yes. [ 64 ] THE COURT: The sheriffs, to the Sheriff Services when requested. [ 65 ] For the three years after your release, Mr. McPherson, as you know -- you are familiar with probation -- you will be under the strict supervision of the Probation Service.

You are well aware but I will just remind you, that any breach of your probationary terms will bring you back before the court, and you know that the most likely option then will be a return to jail. [ 66 ] Are there submissions regarding further conditions of probation or indeed in respect of those I have imposed? [ 67 ] MS. HENDERS MILLER: Yes, My Lady. You did mention, just to be clear, that Mr. McPherson is to report to probation on his release.

Just to be clear, I would assume that includes “and thereafter as directed”? [ 68 ] THE COURT: Yes, and thereafter as directed, yes, thank you for picking that up. [ 69 ] MS. HENDERS MILLER: In addition, you indicated that he should be prohibited from I guess it is possessing or consuming

drugs while on probation. I'm asking Your Ladyship to consider alcohol as well, as I believe that has been an issue for Mr. McPherson in the past. I may have that wrong, but -- [ 70 ] THE COURT: I did not hear anything about alcohol being an issue in the past. Mr. Munro? [ 71 ] MR. MUNRO: Yeah, I don't think so. It's always been the drug addiction. He doesn't drink, frankly, so … [ 72 ] THE COURT: So what do you say about the Crown asking for that provision? [ 73 ] MR. MUNRO: Well, it's not -- it's perhaps surplusage. [ 74 ] THE COURT: Yes. [ 75 ] MR.

MUNRO: In the sense that it's not offence-related, he doesn't have a history of it, he's not going to, in any event, but it's probably not -- [ 76 ] THE COURT: Well, I agree with you, Mr. Munro, and I thank you for bringing it to my attention, Ms. Henders Miller, but there is just nothing about drinking here. [ 77 ] MS. HENDERS MILLER: I may have just had that wrong -- [ 78 ] THE COURT: Yes. [ 79 ] MS. HENDERS MILLER: -- remembering the wrong case. [ 80 ] THE COURT: All right. [ 81 ] MS.

HENDERS MILLER: I'd also ask, just for completeness sake, that there be a no-contact with the complainant, and not to attend 1225 Douglas Street, and that he not be in possession of any drug paraphernalia, given the types of drugs he has been involved with in the past. And finally that, in addition to the s. 109 prohibition, that there be a condition on his probation order that he not be in possession of any weapons as defined in s. 2 of the Criminal Code . [ 82 ] THE COURT:

Section 2 ? [ 83 ] MS. HENDERS MILLER: Yes. [ 84 ] THE COURT: Yes. [ 85 ] MR. MUNRO: That's fine. [ 86 ] THE COURT: Mr. Munro? [ 87 ] MR. MUNRO: Yeah, I don't take any issue with that. [ 88 ] THE COURT: All right. The address, 1225, is the bank address, is it? [ 89 ] MS. HENDERS MILLER: Correct, yes. [ 90 ] THE COURT: Douglas. All right, further conditions of your probation which I impose, Mr. McPherson: You are to have no contact with the victim in this case, Ms.

Chen. [ 91 ] You cannot attend at 1225 Douglas Street, the Bank of Montreal. [ 92 ] You cannot be in possession of any drug-related paraphernalia, and you are prohibited from possession of weapons as defined by s. 2 of the Criminal Code . [ 93 ] MS. HENDERS MILLER: And sorry, My Lady, I just -- it just struck me that, given what Mr.

McPherson has indicated about his intentions upon release and his hopes for his time on release, I'm wondering if it makes sense to have a condition, just so that it's flagged for the probation officer, that this is -- something we're trying to achieve here is that he make reasonable efforts to seek and maintain employment. I'm not sure, given his age, if that's a realistic one, but given what he's indicated to the court he wishes to do and has been doing for the last 18 months, I just put that before Your Ladyship to consider. [ 94 ] MR.

MUNRO: Yeah, I never had a problem with that as a condition, and he intends on doing it, in any event, so if you wish to put it there for a principle purpose, we don't have any problem with that. [ 95 ] THE COURT: Well, it would draw it to the probation officer's attention, I agree, Ms. Henders Miller, so I do impose that condition of probation as suggested, that you seek -- that you look for and maintain employment as directed by the probation officer. [ 96 ] Anything further? [ 97 ] MS. HENDERS MILLER: No, My Lady. [ 98 ] MR.

MUNRO: I think only the victim fine surcharge, perhaps you might consider waiving that, given -- [ 99 ] THE COURT: I do waive the victim fine surcharge in the circumstances.

[ 100 ] MR. MUNRO: Thank you, My Lady. [ 101 ] THE COURT: In this circumstance, of course. [ 102 ] MR. MUNRO: Thank you very much. “J. L. Dorgan, J.” The Honourable Madam Justice Dorgan