R. v. Fletcher, 2013 BCSC 2159

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Fletcher, 2013 BCSC 2159 Date: 20131030 Docket: 159725-3 Registry: Victoria Regina v. Dennis Grant Fletcher Whitney Rae Furber Before: The Honourable Madam Justice Humphries Oral Reasons for Sentence Counsel for the Crown: T. Hodge Counsel for the Accused Fletcher: J. Watt Counsel for the Accused Furber: M. Munro Place and Date of Trial/Hearing: Victoria, B.C. October 29, 2013 Place and Date of Judgment: Victoria, B.C. October 30, 2013 [ 1 ] THE COURT: All right.

Well, as I indicated yesterday, I was very impressed with the amount of thought and what seemed to be an objective approach that went into the joint submission, so I am prepared to accept the joint submission. [ 2 ] I will just go briefly through the facts that lead up to these guilty pleas that Mr. Fletcher and Ms. Furber have made pursuant to the events of February 25, 2013. [ 3 ] These events arose at a nightclub on Douglas Street. An altercation between Mr. Fletcher and Mr. Morton, the security club officer who asked Mr. Fletcher to leave, became quite heated. Ms. Furber became aggressive as well.

They were both angry and hostile at being asked to leave. However, they eventually left after Mr. Fletcher focused on Mr. Morton and uttered a number of threats, telling him he would be back in a couple of minutes, "You're fucking dead", "Bang, bang, you're dead", and making threatening hand gestures. Mr. Fletcher also had a roll of money in his pocket that he waved at the club employees, telling them he made much more than they did. [ 4 ] The confrontation went on for some minutes while there were people milling around outside the club, and Mr.

Fletcher was heard by a passerby to say he was going to shoot the people, that is, the club’s security people. [ 5 ] The two went to Ms. Furber's car, drove around the block, headed north on Douglas Street past the club, and Mr. Fletcher fired 14 shots out the window at the front of the club. [ 6 ] Video of the front of the club shows the security people and others milling around the front, seemingly calm after the altercation, and then diving for cover when the shots began. Mr. Mizerski, a doorman at the club, was hit in the thigh. The bullet went through his thigh, scrotum, and grazed his other thigh.

He described in his victim impact statement how difficult it has been for him to cope with the panic attacks and fear he has felt as a result of this incident. [ 7 ] Photographs show bullet holes and damage from bullets in many locations in the front of the club, including a chair where the cashier, who was very fortunately on a break, usually sat. [ 8 ] The black car can be seen speeding up Douglas Street in the video, and a police chase ensued. Ms. Furber reached speeds of 100 kilometres an hour as she refused to stop for the police car with lights and siren, at one time driving on the wrong side of the median.

The police halted the pursuit at one point and resumed it again, but lost sight of the car briefly, and when the vehicle was eventually stopped, only 10 minutes after the shots had been fired, Mr. Fletcher was no longer in the car. [ 9 ] A tracker dog was taken to the area where they lost sight of the car, and found the gun and a sweatshirt that Mr. Fletcher had been wearing, and $2,215 in cash. [ 10 ] A search of Ms. Furber's car revealed five shell casings, cellophane packages of heroin, cocaine, and methamphetamine, several cellphones, and a metal lock box in the trunk with a replica firearm in it.

A search of their residence turned up a box of ammunition for the gun. Mr. Fletcher's DNA was on the pistol grip. Neither had a licence for the gun, and it is not disputed that the shots at the club were fired from this gun. [ 11 ] Gram amounts of meth and cocaine were also found at the residence. Ms. Furber was arrested that day and Mr. Fletcher shortly

thereafter. Neither obtained release on bail. [12] Mr. Fletcher is only 24; Ms. Furber is 26. Neither completed high school. Mr. Fletcher has a troubled history with variousdiagnoses, including ADHD, Tourette’s Syndrome and OCD. He has a longstanding drug addiction problem, although he managed toremain out of trouble for some years, a factor his counsel says bodes well for his rehabilitation. [13] Ms. Furber has a good history of work and volunteering, and is well thought of by many people who have written supportiveletters for her, but she too became addicted to drugs. Ms.

Furber was under the influence of methamphetamine and alcohol during theseevents. Mr. Fletcher had been using methamphetamine for three days and had not slept during that time. [14] Since being arrested, both have taken courses while in pre-trial custody, and Mr. Fletcher sought counselling. [15] The Crown listed the various aggravating and mitigating factors: the use of the weapon; the number of shots; the injury toMr. Mizerski; that others could have been wounded or killed - obviously known to Mr. Fletcher since he had just been in the area and itwas a busy public area.

This was a horrific response to being legitimately ejected from the club. [16] As for mitigating factors, the Crown points to an early guilty plea, which is important as no witnesses have to testify, his youth,and his lack of a violent record. [17] For Ms. Furber, the Crown cites the following aggravating factors: constructive possession of a firearm without a licence; shedrove Mr. Fletcher; she did not stop for the police; the drugs; the replica firearm. On the mitigating side, there is an early guilty plea andno criminal history. [18] Mr.

Fletcher's counsel particularly emphasizes his client's youth, prospects for rehabilitation, and the early guilty plea. Hesubmits the offence was not premeditated, it was reactive, and fuelled by drugs. [19] Ms. Furber's counsel emphasizes that this evening was out of character for her, given her history of helpful work andvolunteering, and her lack of a criminal record, all put off track by drugs. She has taken every course available to her in the remandsetting and is anxious to move forward. [20] The joint submission that counsel have proposed is, for Mr.

Fletcher, eight years for attempted murder with no credit forpre-trial custody, six and a half years for the aggravated assault, five years for the discharge of the firearm, and four years for possessionof a firearm. The mandatory minimum for the attempted murder with a firearm is five years, mandatory minimum for discharge of afirearm without a licence is five years, and the mandatory minimum for possession of a firearm without a licence is three years. [21] For Ms.

Furber, the joint submission is for three years for the possession of the firearm without a licence, and 30 to 60 days forthe dangerous driving. [22] Various ancillary orders are asked for. [23] Counsel went through the principles of sentencing in their submissions. I do not intend to dwell on them, as this is a jointsubmission and I am accepting the submission. [24] Those principles are generally denunciation, deterrence, rehabilitation, separating an offender from society where necessary,and providing reparations for harm done to victims, promoting a sense of responsibility, and acknowledging harm.

Aggravating andmitigating factors are to be taken into account, and sentences are to be proportional and similar to sentences imposed on similar offendersfor similar offences. [25] The courts have indicated, without exception, the obvious; that society simply will not tolerate gun violence. Denunciation anddeterrence are fundamental principles for these offences, and moral culpability and blameworthiness are high.

It is extremely fortunatethat more people were not hurt or killed on this occasion. [26] However, I also accept that rehabilitation is a strong consideration where the offenders are young and, as here, are not hardenedcriminals. [27] Many cases were cited to me on the range of sentences for these offences, and I accept that the range, while very wide in someof the cases, is such that appropriate sentences have been proposed by counsel in this case. [28] The court should not reject a joint submission unless it would be contrary to the public interest or would bring theadministration of justice into disrepute.

For that proposition, I cite the case given to me by counsel for Mr. Fletcher, R. v. Cerasuolo, (ON CA), 151 C.C.C. (3d) 445. [29] After considering the cases, and I note particularly R. v. Cuthbert in our Court of Appeal, 2007 BCCA 585, and R. v. Kipp inour court, 2010 BCSC 584, which contains a helpful review of the cases, I am prepared to accept the joint submission. [30] So I will now impose sentence, but there is just one clarification I wanted from counsel, and that is the effect -- this isMr. Fletcher -- of the sentence he is serving now.

The sentences I am imposing will be concurrent to that sentence? [31] MR. WATT: I think it's finished. [32] THE COURT: Is it? [33] MR. WATT: Yes. [34] MS. HODGE: I'm not sure on that.

[ 35 ] MR. WATT: Yes, I think it's -- he's not serving any sentence at this point in time. [ 36 ] THE COURT: All right then, thank you. Mr. Fletcher, would you please stand? [ 37 ] On Count 1 of the indictment, the attempted murder of Andrew Morton, I sentence you to eight years without credit for the five months you have spent in custody on that. For Count 4, aggravated assault of Mr. Mizerski, six years and six months concurrent to the sentence on Count 1. On Count 5, discharge of a firearm, five years concurrent to Counts 1 and 4.

Count 6, possession of a firearm without a licence, four years concurrent to Counts 1, 4, and 5. [ 38 ] You will be subject to an order under s. 109 of the Criminal Code prohibiting you from possessing the listed items: firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, any ammunition, any prohibited ammunition, or an explosive substance for life. [ 39 ] You will be required to give a DNA sample pursuant to s. 487.051. [ 40 ] Counsel did not address the victim of crime surcharge. Since both are going to be in prison, I am inclined to exempt them unless the Crown has another position.

I know the law has changed recently and my discretion will no longer exist, but I think I do still have the discretion. [ 41 ] MS. HODGE: Yes, that's my understanding. [ 42 ] THE COURT: All right, so that is on the victim of crime surcharge. [ 43 ] So all right, thank you, you can be seated, Mr. Fletcher. Ms. Furber, will you please stand. [ 44 ] I sentence you to three years on Count 6, possession of a firearm, with credit for eight months' pre-trial custody, so that is 28 months if my math is correct.

I sentence you to 60 days on Count 7, the dangerous driving count, concurrent with the sentence on Count 1. [ 45 ] You also will be subject to an order prohibiting you from the possession of firearms and the other listed items for life. [ 46 ] As for the DNA sample, your offence is not a primary designated offence. Your counsel has asked that I consider whether a DNA sample is necessary in your case.

According to the Criminal Code , I must consider your criminal record, which you have none, the nature of the offence, the circumstances surrounding its commission, and the impact such an order would have on your privacy and security of the person. [ 47 ] Given the nature of your participation in these events and the crimes which you have pleaded guilty to, I am unable to see that taking a DNA sample from you is in the best interests of the administration of justice, so I will not order that. [ 48 ] The driving prohibition: the Crown seeks a three-year prohibition. Your counsel has asked for two.

You have one minor infraction on your driving record, failing to display an "N" or an "L" sign. [ 49 ] You were driving very fast and dangerously, and obviously spurred on by the panic and excitement of your drug-induced state. [ 50 ] I have heard no evidence of any danger to any particular person, other than the obvious danger of speeding through a city at those speeds and on the wrong side of the median. However, in view of your record, I am of the view that a two-year prohibition would be appropriate. [ 51 ] You are also exempted from the victim of crime surcharge. [ 52 ] I have signed the forfeiture order.

Does that conclude everything I have to deal with on sentence? You can be seated now, Ms. Furber. [ 53 ] MS. HODGE: My Lady, with respect to the outstanding counts against Ms. Furber and Mr. Fletcher, the Crown enters stays of proceedings. [ 54 ] THE COURT: All right, thank you. Humphries J.