R. v. Forsythe, 2013 BCSC 1576

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Forsythe, 2013 BCSC 1576 Date: 20130618 Docket: 60267-2 Registry: Chilliwack Regina v. Shawn Bradley Forsythe Before: The Honourable Mr. Justice Joyce Oral Reasons for Sentence Counsel for the Crown: G. Lindsey Counsel for the Accused: W.A. Westcott Place and Dates of Hearing: Chilliwack, B.C. May 1, June 7, 2013 Place and Date of Sentence: Chilliwack, B.C. June 18, 2013 [ 1 ] THE COURT: On January 25, 2013, I convicted Mr. Forsythe of the robbery of Mr. Phillip Hardy Agassiz, British Columbia on April 27, 2012.

I now have to decide what is a fit and proper sentence for this offence. [ 2 ] The circumstances surrounding the offence can be briefly summarized as follows. [ 3 ] On April 27, 2012, Mr. Hardy was working at Pioneer Motors in Agassiz, an automobile service station and shop owned by his father. At around 8:45 to 9:00 p.m., Mr. Hardy was in the process of closing up the business for the night. He was taking a cart to the service bay area of the business when Mr. Forsythe approached him from behind. Mr. Forsythe said that he had a gun and that Mr. Hardy should not cause a scene or he would shoot him. Mr.

Forsythe told Mr. Hardy to go to the till and get the money. Mr. Hardy went into the office part of the garage where the till was located, followed by Mr. Forsythe. Mr. Hardy took eight five-dollar bills, eight ten-dollar bills, and a handful of toonies and loonies and gave the money to Mr. Forsythe. Mr. Forsythe took the money and fled down the street. [ 4 ] As a result of information provided to them, the police came up with Mr. Forsythe as a suspect. They put together a photo line- up in which Mr. Hardy identified Mr. Forsythe as the robber. I accepted the identification evidence and convicted Mr.

Forsythe of the offence of robbery. [ 5 ] The following circumstances with respect to Mr. Forsythe are drawn from the pre-sentence report that was ordered in this case. [ 6 ] Mr. Forsythe is 30 years of age. He is an only child whose parents separated when he was three years old. He was raised primarily by his mother who moved a number of times during his early life in order to secure employment. [ 7 ] Mr. Forsythe reported that his upbringing was unremarkable and without any family violence or substance abuse, however, he feels there was a lack of parental guidance, discipline, and structured home environment.

He basically had a free rein. [ 8 ] Mr. Forsythe had regular access with his father on weekends, and when he was 15 years old he went to live with his father and stepmother. By that time, Mr. Forsythe was associating with negative peers, getting into trouble at school, and smoking marihuana, so his mother arranged to have him live with his father. [ 9 ] When living with his father Mr. Forsythe was rebellious and rejected the help and guidance that his father tried to provide. Mr. Forsythe moved out from his father's home when he completed high school, and according to Mr.

Forsythe himself, became associated with a criminal element. He said that in his twenties he was offered a "full patch" membership with a large criminal organization but declined. [ 10 ] Mr. Forsythe told the author of the pre-sentence report that he enjoyed the prestige and the lavish lifestyle that came with his criminal association and found it hard to give up. He professes at this stage the desire not to return to that kind of lifestyle having spent the last few months in prison. [ 11 ] Mr.

Forsythe has a history of drug use beginning with marihuana in high school and progressing to other hard drugs, including cocaine. His drug use was essentially continuous from 2001 until May 2012 with some periods of sobriety and some unsuccessful attempts to obtain drug abuse treatment. It was during one of these attempts to detox at his mother's home that Mr. Forsythe committed the offence for which he is being sentenced. [ 12 ] Mr. Forsythe had a brief relationship with a younger woman which was a tumultuous and dysfunctional relationship that ended

with violent behaviour on Mr. Forsythe's part. On May 27 of this year Mr. Forsythe was convicted of several offences including assault causing bodily harm and unlawful confinement of his common law spouse. He received an effective sentence of two years less one day and an actual sentence for approximately five months after receiving credit of 19 months for time spent in custody prior to sentencing. [ 13 ] In addition to the convictions for which he was sentenced in May of this year, Mr.

Forsythe has a record for obstruction of justice and failing to comply with an undertaking, both in 2010, and failing to comply with a probation order in 2011. [ 14 ] Mr. Forsythe shows no acceptance of responsibility for his actions and no remorse as he denies that he committed the offence of robbery. [ 15 ] The author of the pre-sentence report notes several areas of concern including pro-criminal attitudes, gang affiliation, hostility, risk-taking behaviour, egocentricity, failure to recognize problems, and poor problem-solving skills. [ 16 ] Mr.

Forsythe's parents express a willingness to continue to help and support him upon completion of his sentence. [ 17 ] The Crown says that there is a very wide range of sentence for robbery but submits that the appropriate range of sentence for this offence which involves the robbery of a gas station attendant with a pretended firearm and this offender is between two and three years in prison. [ 18 ] Crown counsel submits that while the sentence for this offence must be consecutive to those imposed on May 27, 2013, the fact that a consecutive sentence being imposed so close in time to those imposed in May make it appropriate to take into account the principal of totality.

Crown counsel submits that a sentence at the low end of that range would be appropriate. [ 19 ] The Crown refers to a number of cases which have some similarities in terms of the nature of the offence and the offender. In discussing these cases R. v. Reid , (Vancouver Registry No. CA011386 dated February 5, 1990) the Court of Appeal dismissed an appeal of a sentence of two years on a 20-year-old offender who pleaded guilty to robbery while pretending to have a gun.

In that case, the Court said the procedure followed the similar pattern of such robberies involving threats to the attendant who was on duty alone that he would be shot if he did not hand over the contents of the till and conform to other instructions including lying on the floor. The Court further said this: The use of threats of death or grave bodily injury for the purposes of robbery or any other unlawful purpose whether or not the person making the threats intends or has the means to carry them out is rightfully regarded as particularly reprehensible in our society.

Those who work alone in retail establishments are particularly exposed to being victimized in this way and they must be protected by the courts so far as they can be by the imposition of sentences intended to deter such conduct. Substantial terms of imprisonment are the only way by which the Court can hope to achieve that end and particularly so in cases such as this where leniency and probation has in the past been tried and has failed. [ 20 ] In R. v.

Schikowski, 2000 BCCA 136 the offender was sentenced to two years less one day in prison and three years' probation for robbery of a convenience store at knifepoint. The offender entered a very early guilty plea and had good family support. The offender had earlier received a sentence of 21 days for being unlawfully at large. [ 21 ] The Court of Appeal varied the sentence only to the extent of reducing it to 23 months so that the combined effect of the sentences under the law (as it then was) would not make the probation order an illegal order.

At para. 8 the Court noted the need to consider the security issues for those who work on their own late at night in small stores and to give the aspect of general deterrence and concern for public safety considerable weight. [ 22 ] In R. v. J.P.O., 2001 BCCA 465 the offender received a sentence of 18 months for robbery of a gas station. He and companion planned the robbery. They wore masks and carried a starter's pistol. The offender, who was 18 at the time of the robbery, pleaded guilty. He had a prior Youth Court record of six offences for theft and was on probation at the time of the robbery.

At the time of the sentencing three years later, he had made significant rehabilitative steps which were recognized by the Court at the time of sentencing. He continued with positive steps towards rehabilitation after sentencing. [ 23 ] On appeal, the offender did not challenge the length of sentence but sought a conditional sentence. The Court dismissed the appeal observing that offences of robbery involving threats and violence to a young victim working alone at night are serious and that incarceration is the appropriate form of sentence for the serious nature of the offence. [ 24 ] In R. v.

Bell , 2005 BCCA 403 the offender was convicted of robbery and using an imitation firearm and sentenced to two years on the robbery offences and one year on the use of an imitation firearm to be served consecutively. The effective sentence for the robbery was two and a half years. The offender was a 38-year-old woman with a long record. [ 25 ] The Court of Appeal held that the sentence was not demonstrably unfit and noted that specific deterrence, general deterrence, and the protection of the public were the overriding sentencing factors. [ 26 ] R. v.

Gill , 2006 BCCA 127 involved a 23-year-old offender who pleaded guilty to robbery using an imitation firearm while committing robbery and committing an indictable offence with his face masked. At the time of the offences he was serving a conditional sentence order. He was given a global sentence of six years which included a sentence of five years for the robbery charge. [ 27 ] On appeal, the five-year sentence was reduced to three years. The appellant had pleaded guilty and was described by Madam Justice MacKenzie as a young man who did not present as a hardened criminal.

She noted that the relevant factors in reducing the sentence were the appellant's age, the absence of any record for similar offences, and the fact that it was a single incident involving an unloaded replica. [ 28 ] In R. v. Davidson , 2009 BCCA 485 the offender was a 25-year-old drug addict with a lengthy criminal record who robbed a pharmacy, pointed what appeared to be a firearm tucked into his shorts, and demanded that the clerk fill his bag with Dilaudid, a form of

synthetic heroin. The offender had earlier been unable to fill his prescription for Methadone. The offender pleaded guilty to robbery withan imitation firearm and received a 34-month sentence which taking into account pre-trial custody amounted to an effective sentence offour years. [29] On appeal, the Court of Appeal found the sentence to be unfit taking into account the relatively young age of the offender; thepossibility of rehabilitation; and the nature of his criminal record.

In that case, he had 20 youth convictions of primarily propertyoffences as well as adult convictions for theft under, breach of probation, possession of stolen property, dangerous operation of a motorvehicle and breach of probation. The Court also took into account the fact that his longest previous sentence was nine months and theabsence of aggravating factors such as the use of a disguise, use of actual violence, or commission of the offence while on probation orunder court restraints. The Court reduced the sentence to an effective sentence of three years. [30] In R. v.

J.H.L., 2012 BCCA 142 the offender was convicted of two counts of robbery; one count of robbery of a conveniencestore in December 2009 when he implied he had a firearm, and one count of robbery of a gas station with a knife in January 2010. Theoffender was 23 years old and had had a difficult childhood. He had a ten-year history of drug abuse and demonstrated an escalation ofcriminal activities involving the use of violence.

He received an effective sentence of four years which was upheld on appeal, the Courtnoting the importance of the safety of the public. [31] Defence counsel submits that an appropriate sentence aside from the principle of totality would be one of 18 monthsincarceration and that taking into account totality, the actual sentence should be between 12 and 18 months. Counsel says that thecircumstances in this case are much less serious than those in Gill, supra, where a sentence of three years was found to be fit. [32] Counsel for Mr. Forsythe refers to R. v.

Green (1993), (BC CA), 28 B.C.A.C. 31 (C.A.), where the offenderpleaded guilty to two counts: robbery and committing the offence of robbery with his face masked, and was sentenced to two years less aday. The offender was 18 years old and had a difficult upbringing.

He had a significant youth record as well as adult convictions forattempted theft. [33] On appeal, the Court of Appeal held at para. 11 that a sentence of two years less a day was "well within the range of sentencesthat might be imposed for offences of this kind and for offenders similar to the appellant" but the Court gave consideration to the progressthat the offender had made in prison while awaiting his appeal and reduced the sentence to 18 months. [34] Defence also referred to R. v.

Gates (1993), (BC CA), 24 B.C.A.C. 68 (C.A.), where the Court of Appealincreased a sentence of 12 months to one of 18 months on Crown appeal. The offender in that case had made significant steps towardsrehabilitation subsequent to the commission of the offence which the Court recognized the sentencing judge was entitled to take intoaccount. However the Court also agreed with the Crown that the sentencing judge had failed to give sufficient consideration to thefactors of deterrence and protection of the public. [35] In R. v.

Reedel, 2006 BCCA 435 the Court of Appeal upheld a global sentence of two years less one day on two counts ofrobbery, one count of assault, and one count of failure to appear. The offender was 20 years of age with no prior criminal record andpleaded guilty. [36] Finally, defence refers to the sentence in R. v.

Reid, supra, which I discussed earlier. [37] I agree with counsel for the Crown that in these types of cases denunciation, general deterrence and protection of the public arethe most important factors. [38] While this case does not involve any actual violence or the use of a mask, it appears to have been a case without any planning orat least any significant planning. However, absent are mitigating factors that are present in some of the cases that I have discussedincluding a guilty plea and the absence of a criminal record. [39] Mr.

Forsythe has taken some initial steps while in custody towards addressing some of his issues including substance abuseprograms and an employment skills course. However, his attitude in regard to his criminality displayed in his interview with the author ofthe pre-sentence report, is troubling. His recent record of violent behaviour is troubling. His family offers support, but they have beenoffering support for over ten years without any real success.

He claims to have job prospects waiting for him but they are unspecified. [40] Based upon my review of the case authorities to which I have been referred, and considering the circumstances of this offence,and Mr. Forsythe's circumstances, I agree with Crown counsel that but for the principle of totality a sentence of between two and threeyears in prison would be completely appropriate. I also agree with the submission that it is appropriate in the circumstances to haveregard to the principle of totality.

In my view, a sentence at the low end of the range suggested by the Crown is the appropriate way totake into account that principle of totality. But for that fact, I would have imposed a sentence of greater than two years. [41] Mr. Forsythe, would you please stand. [42] Mr. Forsythe, I sentence you to a term of imprisonment of two years.

That will be in addition to the sentence you are currentlyserving. [43] Considering the violent nature of your recent offending, I also impose a lifetime firearms prohibition under s. 109 of theCriminal Code, and as robbery is a primary designated offence with regard to the provision of a DNA sample, I order that you providesuch a sample or samples. [44] Is there anything else? [45] THE ACCUSED: Is that two years less a day? [46] THE COURT: It is a sentence of two years. I don't think it matters whether it is two years less a day in your circumstances. If

it mattered – [ 47 ] THE ACCUSED: Is it still provincial? [ 48 ] THE COURT: I believe that will take you into a federal penitentiary sir. [ 49 ] MR. LINDSEY: I think that is all. [ 50 ] THE COURT: Victim impact surcharge I suppose. [ 51 ] MR. LINDSEY: I'm not – [ 52 ] THE COURT: I will waive it anyway. “B.M. Joyce J.”