R. v. Ridgeway, 2017 BCSC 1472

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Ridgeway, 2017 BCSC 1472 Date: 20170505 Docket: 26926; 27201 Registry: Vancouver Regina v. Christopher John Ridgeway Before: The Honourable Madam Justice Ker Oral Reasons for Sentence Counsel for the Crown: P.F. Sebellin Counsel for the Accused: I. Donaldson, Q.C. Y. Khan, A/S Place and Date of Hearing: Vancouver, B.C. March 30 and April 28, 2017 Place and Date of Judgment: Vancouver, B.C. May 5, 2017 Introduction [ 1 ] THE COURT: Christopher John Ridgeway is before the court today for sentencing on two separate indictments. The first includes one count of robbery, contrary to s. 344(1) (

b) of the Criminal Code (“ Code ”), and one count of use of an imitation firearm while committing or attempting to commit robbery, contrary to s. 85(2) of the Code . The second involves one count of possession of a loaded prohibited firearm, contrary to s. 95(1) of the Code . Circumstances of the offences [ 2 ] The robbery and the use of an imitation firearm offences relate to what is often referred to as a home invasion. The offences occurred on May 1, 2014 in Burnaby, B.C. at the residence of L.A. and P.A. Of note, the couple operated a licensed marihuana grow operation in the basement of their home.

The couple are in their sixties. Also living in the home was the couple's son, daughter-in-law, and two young granddaughters, then ages 10 and seven years. Their son was not home at the time, but everyone else was in the residence. [ 3 ] At approximately 8:30 a.m., the owners of the residence heard a knock at the front door. Thinking that it was the postman, the couple, who were in their kitchen, looked at the surveillance camera that focused on the front-door area. They observed a man approach the door. The man was wearing a white construction hat, sunglasses, and a yellow safety vest.

He was carrying a clipboard. The Crown alleges the man was a Mr. Webb, now deceased. Mrs. A. went to the front door and opened it. Mr. Webb lifted his clipboard, pointed an imitation gun at her, and hit her. Mrs. A. fell to the ground. When Mrs. A. screamed, her husband came to the front door. Mr. Webb pointed the gun at Mr. A. and asked where the money was. He pistol-whipped Mr. A. and threatened to kill the couple. Although the couple's first language was not English, they indicated to the intruder that they had no money. [ 4 ] A second man, described by Mr.

A. as a black man wearing black clothing, sunglasses, and carrying a red gym bag, entered the residence. It is admitted that the second man was Mr. Ridgeway. Mr. A. said this man waved a phone-like device in the air. Although the Crown alleges Mr. Ridgeway produced zap straps from the gym bag and gave them to Mr. Webb, who then restrained the couple, Mr. Ridgeway denies producing the zap straps.

The Crown did not seek to prove this fact, and it may well be that given the terrifying circumstances they experienced, the victims were confused as to the identity of the person who produced the zap straps. [ 5 ] As these events were unfolding in the front entry of the house, the couple's daughter-in-law and two young granddaughters were upstairs. The daughter-in-law pulled her two daughters into their bedroom and then out onto the balcony. The daughter-in-law called 911 at approximately 8:30 a.m., but the call cut out intermittently. The 911 dispatcher called back at least once.

At this time, the daughter-in-law heard someone trying to get into the bedroom. She and her daughters climbed onto either a ledge or the roof of the home. The daughter-in-law then saw a third man wearing a jacket with red sleeves approach and enter the home. She then heard police sirens and saw three men leave the home, all running in different directions. [ 6 ] The police arrived in the vicinity at approximately 8:38 a.m. They observed Mr. Ridgeway running from the residence to a taxi

across the street. They removed him from the taxi and arrested him. In his possession was a radio communication jamming device, the possession of which is prohibited by s. 4 of the Radiocommunication Act . On the floor of the taxi, the police located a pair of gloves and a cordless handset telephone taken from the victims' residence. [ 7 ] The police conducted a dog track from the backyard of the residence. They located Mr. Webb in the water in a ravine behind the victims' home. It appears that to facilitate his escape, Mr. Webb forced his way through the backyard wooden fence with a crowbar found nearby.

The red gym bag was found along Mr. Webb's flight path. It contained garden shears, a baseball bat, and an air pistol, the imitation firearm used by Mr. Webb. Surveillance tracked the flight path of the third man who went the opposite direction of Mr. Webb. Along the route the police found a loaded, functioning handgun and a red jacket. The third man was never apprehended. The second firearm was never produced during the commission of the offence. [ 8 ] Mrs. A. sustained bruising to the abdomen. Mr. A. was struck in the head, but fortuitously suffered no physical injuries.

His physical injuries were not caused by Mr. Ridgeway. No victim impact or community impact statements were filed. However, the Crown advised all of the occupants were terrified and traumatized by the events. That point was not disputed. [ 9 ] The possession of a loaded prohibited firearm offence relates to a separate event on January 9, 2017. At 7:45 p.m., the concierge of an apartment building at 68 Smithe Street in Vancouver, B.C., was conducting a security patrol of the building's parking lot when she heard loud music coming from the parking stalls area.

The concierge approached the area and observed a black vehicle halfway out of the parking stall with the front driver's side door open. She approached the vehicle and saw a man, later identified as Mr. Ridgeway, passed out in the driver's seat and leaning towards the centre console. A large pit bull dog was in the back seat. The concierge endeavoured several times to wake Mr. Ridgeway, but he was unresponsive. [ 10 ] The concierge was concerned about the man’s condition and called 911. Police and ambulance personnel responded to the call. An EHS officer was able to rouse Mr.

Ridgeway using painful stimuli techniques. Mr. Ridgeway was disoriented and confused. He exhibited difficulty walking and was unable to identify what agencies were attending to him. The vehicle had a visitor's pass affiliated to a unit in the apartment building occupied by his girlfriend. Mr. Ridgeway's behaviour with the emergency response personnel was described as erratic and slightly combative. In an effort to further assess his condition, one of the EHS workers endeavoured to remove the hoodie sweatshirt Mr. Ridgeway was wearing.

A VPD officer assisted and located in the front pocket of the hoodie a .22-calibre Sterling Arms model 302 semiautomatic pistol containing one cartridge magazine with one round of a .22 long rifle cartridge. The single round of ammunition was in the magazine, in the pistol, but the round was not chambered. [ 11 ] The pistol was submitted for forensic firearms examination. As part of the examination, the round was fired from the pistol confirming that the pistol was fully functioning. As its barrel was less than 105 millimetres in length, the handgun meets the definition of a prohibited firearm.

Also located in the front pouch of Mr. Ridgeway's hoodie was .82 grams of heroin, a crack pipe, and a tube. A search of the vehicle’s trunk located four zip-lock bags, each containing between 200 and 230 grams of marihuana. Each of the four zip- lock bags was labelled "Pink Kush $10/gram". The total weight of marihuana seized was 896 grams and had a retail value of $8,960. [ 12 ] Observations of Mr. Ridgeway's physical condition were consistent with the symptoms exhibited by individuals who have consumed GHB, also known as the date-rape drug. Mr.

Ridgeway's girlfriend confirmed for the emergency responders that Mr. Ridgeway used GHB. Mr. Ridgeway was arrested, taken to St. Paul's Hospital for assessment, and then taken into custody where he has remained since that time. [ 13 ] No victim impact or community impact statement was filed with respect to the third offence. However, this offence occurs in the context of another wave of gun violence afflicting the Lower Mainland. Circumstances of the offender [ 14 ] Mr. Ridgeway is now 29 years old. He has a criminal record and it was marked Exhibit 1 on sentencing.

His youth record from December 12, 2005, includes an 18-month probation order covering five offences of sexual assault, uttering threats, break and enter for the purpose of committing an indictable offence, possession of stolen property, and possession of break-in instruments. Between December 17, 2010, and January 14, 2011, Mr. Ridgeway accumulated two convictions for failure to comply with a recognizance and possession of a

Schedule I substance that resulted in the imposition of fines. [ 15 ] On August 18, 2011, he was sentenced in Calgary, AB to seven days' imprisonment for obstructing a peace officer and failing to attend court. His last conviction was for robbery on September 30, 2011, and he received a term of 20 months' imprisonment and a 10 year mandatory firearms prohibition order pursuant to s. 109 of the Code . The robbery did not involve the use of a firearm. [ 16 ] Mr. Ridgeway's background is set out in detail in the comprehensive sentencing report prepared by his counsel.

He was born in Lindsay, ON, and was adopted by Tom and Janet Ridgeway when he was 13 months old. He moved to Peterborough, ON, to live on the family farm. His parents, the Ridgeways, are retired school teachers. Mr. Ridgeway has four other siblings, all of whom were also adopted by the Ridgeways. [ 17 ] Mr. Ridgeway is black and his adoptive family Caucasian. Peterborough is a small town in southwestern Ontario and is predominantly Caucasian. As noted in the sentencing report: His childhood was shaped in part by racist incidents that eventually caused him to leave Ontario. [ 18 ] Mr.

Ridgeway went as far as Grade 11 in high school. Academic studies were difficult for Mr. Ridgeway, no doubt due in part to a reading disability not diagnosed until Grade 10, and exacerbated by the repeated racism he experienced from his peers and authority figures, including teachers. [ 19 ] His parents and others have written very moving and supportive letters which are included in Exhibit 2, the defence sentencing

materials. Mr. Ridgeway's parents note that he was a talented athlete, playing AAA hockey in Peterborough, and also playing soccer at an elevated level. His parents describe him as always being more interested in machines and mechanics. [ 20 ] He left high school at the age of 16 to work at various jobs in the construction and roofing industries. At 18 years of age, Mr. Ridgeway moved to Vancouver and worked with equipment tractors. He then moved to Calgary and worked for EllisDon Construction as a tower crane rigger and operator.

In 2009, he completed a one year course at Olds College and obtained his certification as a tower crane operator. He has also obtained certification in first aid, construction safety training systems, petroleum safety training, and workplace hazardous materials information systems. [ 21 ] Mr. Ridgeway's employment finished in Alberta at some point in 2011. He moved back to Vancouver. When he learned there was an outstanding arrest warrant in Alberta, he returned, pleaded guilty, and received the 20 month sentence for robbery. Upon completion of his sentence, Mr.

Ridgeway returned to Vancouver and started to work for Allied Crane. Over the past five years or more, he has gained experience building and operating cranes, building high rise towers for R-Four Concrete, Concord Pacific, and Bosa Construction. [ 22 ] To Mr. Ridgeway's great credit, between June 2014, after his release on bail on the robbery charge, and early 2016, he returned to work as a crane operator. In early 2016, he started his own company, Ridge Form Work Ltd., which does concrete forming and rigging. By the end of 2016, his company had 15 employees.

A character reference letter from a longstanding friend and employee, Michelle Papas, attests to his strong work ethic and the respect he enjoys in the construction industry. [ 23 ] All of the character reference letters filed in support of Mr. Ridgeway describe him as hardworking, a devoted friend, a considerate and compassionate person, and now a devoted father to a little girl born in September 2016. [ 24 ] Mr. Ridgeway is in another relationship now, as the mother of his daughter pushed him away sometime after his daughter was born.

Nevertheless, he has maintained a courteous relationship with the mother of his daughter. He has supported both individuals, and wants to remain involved in his daughter's life and continue contributing to her support. [ 25 ] Mr. Ridgeway's current girlfriend has known him for three years. She describes him as honest, loyal, and extremely considerate, and a loving and caring father towards his daughter. [ 26 ] Mr.

Ridgeway's parents describe him as not always having made the best choices in his life and from time to time having made poor choices, but never to the degree of the current circumstances has he found himself in. [ 27 ] Mr. Ridgeway presents as a bit of an enigma. He clearly is a very hardworking young man who has managed to build a respected reputation in the construction industry, operating and building cranes used in the construction of high rise towers.

He is described by friends and family as a caring, considerate, and devoted friend and father, and yet he has committed the very serious criminal offences at issue in this case. [ 28 ] His current girlfriend accurately captures the tragedy of the choices he has made by committing these two offences: He has worked extremely hard to build his company and become a successful entrepreneur. A lengthy . . . term will probably result in a company failure and no income . . . [ 29 ] What is troubling about the January 9, 2017, offence is Mr. Ridgeway's explanation for how he came into possession of the handgun.

He says he was cleaning litter from his girlfriend's car when he found the handgun. He took possession of it and then took a drink from a bottle that had been left in the vehicle. Thereafter, he remembers nothing until becoming conscious in the hospital. He believes there must have been GHB in the drink and he did not know it was in there. [ 30 ] With respect, that explanation stretches the bounds of credulity and it does not really explain why he would even contemplate taking possession of the handgun in the first instance, given that he was bound by three different court orders not to possess weapons.

He was still subject to the 2011 Calgary mandatory firearms prohibition order on January 9, 2017. He was also bound by two different bail orders not to possess weapons; he was on bail for the robbery, and on November 25, 2016, he was charged with impaired driving in West Vancouver and released on bail terms including a weapons prohibition. [ 31 ] Aside from the January 9, 2017, offence, and the outstanding West Vancouver charges from November 25, 2016, Mr. Ridgeway has performed well while on bail for the robbery.

His efforts at returning to a productive and contributing member of society as an employee, then employer, and as a father are not only commendable, they also demonstrate the strong likelihood of Mr. Ridgeway's rehabilitation. [ 32 ] Although one might argue rehabilitation has been achieved, the November 2016 and January 2017 offences demonstrate that there is still room for further improvement. [ 33 ] Mr.

Ridgeway has expressed his remorse for the offences, not only through his guilty pleas, entered on January 20, 2017, for the robbery and use of an imitation firearm offences, and April 28, 2017, for the possession of a loaded prohibited handgun offence, but also in court when he advised he took responsibility for his actions and apologized to the A. family for his role in the home invasion. [ 34 ] After the robbery, Mr. Ridgeway spent 29 days in pretrial custody from his arrest until his release on bail on May 29, 2014. He has been in custody again since his arrest on January 9, 2017.

In total, he has spent 146 days in pretrial custody. I am advised that he has had difficulty in pretrial custody and has himself been the victim of a serious assault. Positions of counsel [ 35 ] Crown counsel seeks a sentence of six to eight years' imprisonment for the robbery, and one to two years' imprisonment for the

use of an imitation firearm, with that sentence to be served consecutive to the robbery sentence. Crown counsel argues that a further sentence of four years' imprisonment ought to be imposed for the possession of the loaded prohibited handgun offence, and that it should be served consecutive to all other sentences. [ 36 ] Crown counsel recognized that the total sentence sought, 11 to 14 years’ imprisonment, would represent a crushing sentence and so, in accordance with the totality principle, urged that a global sentence of eight to 10 years' imprisonment be imposed.

From that, seven months and nine days must be deducted from the sentence to reflect the credit for pretrial custody. [ 37 ] Crown counsel also seeks a number of ancillary orders which are unopposed by Mr. Ridgeway. [ 38 ] Counsel for Mr. Ridgeway made an impassioned plea for restraint in the sentence to be imposed, urging a global sentence of six to eight years' imprisonment before Mr.

Ridgeway's pretrial custody credit is deducted from the sentence, arguing that would be a fit and appropriate sentence in all the circumstances Principles of sentence and relevant authorities [ 39 ] The statutory principles and considerations that inform the determination of the sentence to be imposed in Mr. Ridgeway's case are enumerated in ss. 718 through 718.2 of the Code . [ 40 ]

Section 718 of the Code sets out that the fundamental purpose of sentencing and the objectives to achieving that purpose are as follows: 718 The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 or to the community. [ 41 ] The fundamental principle of sentencing is codified in s. 718.1 of the Code : 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 of the Code enumerates a number of other principles, including statutory aggravating factors in s. 718.2 (a). None of the aggravating factors enumerated therein are applicable to Mr. Ridgeway's circumstances. However, s. 348.1 of the Code provides that it is an aggravating circumstance on sentence where a robbery was committed in relation to a dwelling house and the offender knew or was reckless as to whether the home was occupied and violence was used or threatened. [ 43 ] Although Mr.

Ridgeway says he did not think the home would be occupied at the time, saying he expected to raid an unoccupied marihuana grow operation, his confederates were certainly prepared for such an eventuality, given the imitation firearm, the zap straps, the real firearm, and the baseball bat. More significantly, Mr. Ridgeway would immediately have become aware that the home was occupied when he entered it, given the location of the A.s at the front entryway of their home, and he failed to leave when he became aware of their presence. [ 44 ] I accept Mr. Ridgeway did not personally use or threaten violence.

Nevertheless, he was a co-principal in the robbery. His participation in it assisted the others in effecting their purpose. Accordingly, s. 348.1 of the Code applies to Mr. Ridgeway's circumstances. [ 45 ] The principles codified in s. 718.2(

b) through (

d) of the Code are also engaged in this case. Those principles are: 1) the parity principle in s. 718.2(

b) which mandates that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; 2) the totality principle in s. 718.2(

c) which mandates that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; 3) the restraint principle in s. 718.2(

d) which mandates that the least restrictive sanction appropriate to the circumstances ought to be imposed. Restraint must be exercised not just for the mode of sentence, but also where imprisonment is imposed, the length of sentence should be governed by restraint as well. [ 46 ] The jurisprudence reminds us that nothing is more important than the proportionality principle in s. 718.1. That is because it explicitly mandates a specific sentencing outcome, namely that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Therefore, no matter what objectives a sanction is intended to achieve, to be a just sanction, the sentence imposed must comply with the proportionality principle.

[47] In R. v. Lacasse, 2015 SCC 64 at paragraphs 1, 12, and 53, the Supreme Court reminds us that determining a proportionatesentence is a delicate task done with regard to two bases: the individual basis and the comparative approach of similar sentences. [48] What is meant by proportionality in the context of sentencing was considered in R. v. Nasogaluak, 2010 SCC 6: [42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender andthe gravity of the offence. In this sense, the principle serves a limiting or restraining function.

However, the rights-based, protectiveangle of proportionality is counter-balanced by its alignment with the “just deserts” philosophy of sentencing, which seeks to ensure thatoffenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and theharm they caused (R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 81; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at pp. 533-34, per Wilson J., concurring). Understood in this latter sense, sentencing is a form of judicialand social censure (J. V. Roberts and D. P.

Cole, “Introduction to Sentencing and Parole”, in Roberts and Cole, eds., Making Sense ofSentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, the degree of censure required to express society’scondemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moralculpability, and not greater than it.

The two perspectives on proportionality thus converge in a sentence that both speaks out against theoffence and punishes the offender no more than is necessary. [49] The gravity of the offence component of the proportionality principle refers to what the offender did wrong and includes twocomponents: the harm or likely harm to the victims and the harm or likely harm to society and its values. [50] The degree of responsibility of the offender refers to the moral blameworthiness of the offender: Lacasse, para. 12. [51] In order to satisfy the parity principle when imposing sentence, sentencing judges are guided by the decisions of other courts insimilar cases.

Appellate decisions usually set out the range of sentence for offences. However, it is critical to understand that sentencingranges are used simply as a guide for judges in fashioning an appropriate sentence. The purpose of the range is to encourage greaterconsistency between sentencing decisions in accordance with the principle of parity enshrined in the Code. [52] In Nasogaluak, the Supreme Court considered the "range of sentence" concept and indicated that a sentence range constitutesguidelines rather than hard and fast rules: [44] . . .

A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing.Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all thecircumstances of the offence and the offender, and to the needs of the community in which the offence occurred. [53] In R. v. Scott, 2013 BCCA 397,at para, 36 to 41, our Court of Appeal opined that sentencing judges can, in the proper exerciseof their discretion, depart from general ranges in appropriate cases.

However, sentencing judges have also been directed to exercisecaution in imposing a sentence outside the range, and that absent distinctive circumstances, a sentence which is a substantial and markeddeparture from the range of sentence imposed for similar offences and similar offenders will likely be found to be unfit: R. v. Allen, 2012BCCA 377, para. 34. [54] An example where a sentence below the established range may nevertheless be appropriate can be found in R. v.

Voong, 2015BCCA 285, paras. 59 to 62, where our Court of Appeal said offenders in dial-a-dope cases can expect to receive a jail sentence, andwhere a judge imposes a non-custodial sentence, then there must be something that would lead the sentencing judge to conclude that theoffender had truly turned their life around and that the protection of the public was subsequently better served by a non-custodialsentence. Accordingly, sufficient exceptional circumstances to justify going outside the normal range of sentence and imposing a non-custodial sentence must exist.

To put it another way, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence. The same considerations would apply in imposing a custodial sentence below and outside the appropriate range. [55] I turn now to the relevant authorities provided by counsel which they have taken me through in their submissions. I have alsoread and considered each of the cases provided. [56] The Crown provided the following cases. R. v. Parinas, (BC CA), [1993] B.C.J.

No. 2465 (C.A.), where theCourt of Appeal raised the sentence imposed after trial from three years to four and a half years' imprisonment. The offender was 20years old with a prior criminal record with offences of violence. Mr. Parinas and at least two others gained entry to a home by means of atrick. Mr. Parinas brandished a sawed-off shotgun and another perpetrator had a knife. The occupants of the home, two adult women andtwo children, were terrorized as they were bound, gagged, and threatened to be killed.

In raising the sentence imposed, the Court ofAppeal noted that the appropriate range for the robbery offences would be five to eight years. [57] I pause to note that Parinas is a decision from 1993 and the sentencing authorities since that time have somewhat realigned therange of sentence for home invasion style robberies to be between 6 and 13 years' imprisonment. This realignment occurred followingthe decisions in R. v. N.P.D., 2002 BCCA 304, R. v. D.A.W., 2002 BCCA 336, and R. v.

Bernier, 2003 BCCA 134. [58] The authorities caution, however, that the label "home invasion" is elastic and can encompass a broad range of offences.Accordingly, establishing a range for home invasion offences is difficult, due to the variety of ways and combination of offences thatmay be committed in the course of the home invasion: R. v.

Vickers, 2007 BCCA 554, para. 19. [59] Returning to the Crown’s authorities, N.P.D. is a case where a 19 year old offender pleaded guilty to unlawful confinement,assault with a weapon, breaking and entering to commit unlawful confinement, and having his face masked with intent to commit anindicatable offence. The offender, along with another, broke into a house through a bathroom window. Both men carried guns. They zapstrapped the two occupants. Two other residents came home during the course of the offences and were also confined. Mr. N.P.D. spent11 months in pretrial custody and was credited for 22 months.

His net sentence of two years less a day and two years' probation wasincreased to three and a half years. The sentence imposed was found to be unfit and outside the range of sentence for home invasions,which was said to be five to eight years in 2002.

[ 60 ] R. v. Leggo , 2003 BCCA 392 , was a sentence appeal determined approximately three and a half months after Bernier . In Leggo , the 32 year old offender's sentence was upheld. He received seven and a half years for break and enter, robbery, unlawful confinement, possession, and use of an imitation firearm, in addition to eight months' pretrial custody. Mr. Leggo and an accomplice took the ferry to Salt Spring Island, B.C. They were armed with a wooden bat and an imitation revolver. They kicked in the door of the victim's home, tied him up, stole his marihuana, $7,800 in cash, and other personal items. Mr.

Leggo had a lengthy criminal record with seven prior convictions for break and enter. [ 61 ] Vickers is a case where the 24 year old offender was sentenced to 10 years' imprisonment for home invasion offences, consisting of break and enter with intent to commit an indictable offence and attempted robbery using a firearm. The victims had a variety of businesses, including formerly selling heroin to a select clientele of friends. The offence in Vickers involved a significant degree of violence with one of the three offenders carrying a long barrelled gun that was fired at least twice during the offence.

One of the occupants was shot in the leg and then hit with a pipe wrench. Mr. Vickers, despite his youth, had an unenviable criminal record with a number of convictions for violence. Mr. Justice Frankel upheld the 10 year sentence of imprisonment as fit and noted it to fall at the midpoint of the range. [ 62 ] R. v. Moore , 2008 BCCA 129 , where, after a trial, the 24 year old Métis offender was sentenced to a global sentence of eight years' imprisonment, reduced to six years following a deduction of two years for credit for one year of pretrial custody.

The home invasion offence consisted of robbery, break and enter, assault, uttering threats, and suffocating to enable the commission of theft. Mr. Moore and another gained violent entry into the victim's home, essentially fighting the two adult occupants to get into the residence. Mr. Moore's sentence was upheld on appeal, and Mr. Justice Low found that the cases relied upon established a range of 6 to 13 years' imprisonment. [ 63 ] R. v.

Steinhauer, 2016 BCSC 1322 , is a case where a 27 year old offender was sentenced to 10 years, reduced to eight years and seven months' imprisonment once pretrial custody was deducted. The offender pled guilty to home invasion offences of break and enter, robbery armed with an offensive weapon, and use of an imitation firearm. The offender had an extensive criminal record with youth convictions for violence. [ 64 ] Insofar as the third offence from January 9, 2017, is concerned, the Crown relies upon R. v.

Holt , 2015 BCCA 302 as being authority for the range of sentence for possession of a loaded prohibited firearm without an authorization or licence as starting at 30 months' imprisonment. [ 65 ] Mr. Holt was a 66 year old first offender with a heavy drug addiction at the time of the offence. The loaded firearm was found in his truck as part of a search incident to arrest after Mr. Holt was apprehended for a driving infraction. He was sentenced to 18 months' imprisonment. The Crown appealed.

In Holt , Madam Justice Newbury for the court noted at paras. 18 to 19 the need for a realignment of the range of sentence for possession of loaded firearms, given the serious and growing threat posed by the possession of loaded firearms in this country. Mr. Holt's sentence was increased to 30 months' imprisonment, with Mr. Holt being placed at the bottom end of the criminal range. [ 66 ] Counsel for Mr. Ridgeway relied upon the following cases to support his position that a sentence of five years' imprisonment for the robbery offence should be imposed: R. v. Brogan , 1999 BCCA 278 ; R. v.

M.E.W. , 2011 BCPC 267 ; R. v. Marks , 2016 BCCA 480 ; and R. v. Weber , 2016 BCCA 279 . [ 67 ] Notwithstanding the eloquent submissions of Mr. Donaldson, the decisions in M.E.W. and Marks are distinguishable, as they both involve robberies of convenience stores or equivalent stores. By distinguishing them, I do not mean to downplay the seriousness of that type of robbery.

However, robbery in the context of a home invasion is even more serious than the robberies of convenience store attendants. [ 68 ] Although Brogan is also a case of sentencing for two convenience store robberies while armed with a pellet gun, it nevertheless is an important case for general sentencing principles and factors to consider.

In Brogan , Madam Justice Ryan, writing for the Court, set the range at two to nine years for that type of robbery and provided a non-exhaustive list of factors to consider, including: the age of the offender, criminal history, level of violence, number of offences, level of premeditation, whether the offender was disguised, type of weapon and how it was used, possibility of rehabilitation, and the need for deterrence in the particular community. [ 69 ] The decision in Weber involves a home invasion style robbery where it appears the 37 year-old offender and an accomplice decided more on the spur of the moment to steal 15 half pound bags of marihuana that were in plain sight and try to obtain more marihuana from the victim's home.

Mr. Weber was sentenced to an effective five year sentence, reduced by 20 months for 20 months of pretrial custody. On appeal, the sentence imposed was found to be fit, but reduced by a further 10 months to conform to the proper credit of 1.5 to one based on the decision in R. v. Safarzadeh-Markhali , 2016 SCC 14 . [ 70 ] In Weber , the occupant of the home refused to show the offender the rest of his marihuana. Mr. Weber proceeded to threaten the man and then beat him when he tried to escape. Although not a premeditated offence, the circumstances in Weber were nevertheless serious.

No gun was produced, but its use was threatened. At para. 16 of Weber , Mr. Justice Goepel speaking for the court noted that even on the appellant's "artfully minimized view of the circumstances" - that the offence was an unplanned robbery and not a home invasion - the range of sentence of two to nine years as set out in Brogan would apply, considering the various factors enumerated therein. Analysis [ 71 ] The statutory maximum and minimum sentences for the offences are as follows.

The maximum sentence available for robbery is life imprisonment and the minimum sentence for use of an imitation firearm in the commission of an offence is one year imprisonment consecutive. The maximum sentence available for possessing a loaded prohibited firearm is 10 years' imprisonment. The statutory minimum sentence of three years' imprisonment was recently struck down by the Supreme Court of Canada in R. v. Nur , 2015 SCC 15 .

[ 72 ] I will now examine the aggravating and mitigating circumstances. There are a number of aggravating circumstances, including: 1) The statutory aggravating factor of s. 348.1 of the Code , as the home was occupied. Mr. Ridgeway was aware of that once inside the home. Although he may not have been aware that there were two young children in the home, the fact of the matter is that there were. 2) An imitation firearm was brandished by Mr. Ridgeway's confederate, Mr. Webb, who pistol whipped Mr. and Mrs. A. and threatened violence. Mr.

Ridgeway was a co-principal to the robbery and a party to the possession of the imitation firearm. 3) The offence was a premeditated and planned attack. The home was targeted to harvest the marihuana crop. 4) Mr. Ridgeway was in possession of and used an illegal radio communication jammer that compromised the ability of the daughter-in-law to telephone 911. Possession and use of a jammer during an offence such as a home invasion further violates the safety and integrity of the victims who are prevented from accessing emergency assistance.

The deployment of a jammer in this scenario is the digital equivalent of cutting the telephone line. 5) The offenders turned their minds to the possibility that people would be home, as zap straps and weapons were brought to the scene and disguises were used. While Mr. Ridgeway believed the home would be unoccupied during the offence, he certainly did not abandon the enterprise when it turned out the home was occupied. 6) Mr. Ridgeway's criminal record contains an entry for a previous robbery. 7) At the time of the possession of the loaded firearm offence, Mr.

Ridgeway was not only subject to a mandatory firearms prohibition from his earlier robbery conviction, he was also bound by two different bail orders prohibiting him from possessing weapons. 8) Mr. Ridgeway was in possession of a loaded firearm in a public place when he was found incapacitated by the consumption of some type of drug, perhaps GHB. [ 73 ] On the other side of the scale are several significant mitigating circumstances, including: 1) Mr. Ridgeway's guilty pleas and his stated remorse, which I accept as genuine. 2) Mr.

Ridgeway's impressive employment history and his demonstrated work ethic. 3) His demonstrated efforts at rehabilitation, including starting his own business while on bail for the robbery. 4) The strong support he enjoys from his family and friends. [ 74 ] As reviewed earlier, I have been provided with several authorities that set out the range of sentence for these types of offences. Insofar as the robbery and use of an imitation firearm are concerned, I find that the low end of the range is between five and eight years' imprisonment and the higher end of the range is between six and 13 years.

Obviously, each case must be determined by reference to its own facts and in view of the relevant authorities.

Sentencing remains a highly individualized process. [ 75 ] Insofar as the possession of a loaded prohibited firearm offence is concerned, while the statutory range is a suspended sentence to 10 years' imprisonment, the decision in Holt establishes the range starts at 30 months' imprisonment. [ 76 ] The authorities establish that for a home invasion robbery the sentencing objectives of deterrence, denunciation, and protection of the public are of paramount importance in cases involving the violent entry into a home and the domination of the occupants therein. [ 77 ] The context of a home invasion robbery makes it an extremely serious offence, because it represents a violation of the sanctity of the home and of the sense of security people feel when in their homes.

These are highly cherished values in our society. Members of the public have to understand this behaviour will not be tolerated: Vickers , para. 12 ; Moore , para. 13; and Steinhauer , para. 93 to 94 . [ 78 ] Insofar as the possession of the loaded prohibited firearm is concerned, the decision in Holt makes it clear that the paramount sentencing objectives for an offence under s. 95 are public safety, general and specific deterrence, and denunciation. [ 79 ] Of course, I must and do consider the objective of rehabilitation and the need for restraint in any sentence to be imposed on Mr. Ridgeway.

In my view, there is strong evidence of rehabilitation and the likelihood of returning to a productive and law abiding life once Mr. Ridgeway has completed his sentence. [ 80 ] His efforts while on bail for the robbery could lead one to conclude Mr. Ridgeway has truly turned his life around, given his employment and fledgling but seemingly successful business. These circumstances would be sufficiently exceptional to justify going below the normal range of sentence; however, his involvement in the subsequent offence has a negative moderating influence on that observation.

Crafting the appropriate sentence in this particular case is a very difficult exercise. [ 81 ] In determining an appropriate sentence in this case, I have considered the guilty plea, the expression of remorse by Mr. Ridgeway, the principles of sentencing, the circumstances of both the offences and the offender, and the case law. The robbery home invasion was premeditated and violence was employed by Mr. Ridgeway's accomplices, who were armed and did use violence to achieve their objectives.

A fair and appropriate sentence in this case must emphasize the goals of deterrence and denunciation. [ 82 ] I must also address the totality principle as consecutive sentences are required. As a general rule, where there is no relationship between the commission of distinct criminal offences, the court should impose consecutive sentences. The test for determining whether consecutive or concurrent sentences are appropriate is whether the acts constituting the offence were part of a linked series of acts within a single endeavour: R. v. G.P.W. , [1998] B.C.J. No. 838 (C.A.) at para. 35 .

[83] It is not disputed that consecutive sentences for both the use of an imitation firearm in connection with the May 1, 2014, offenceand the subsequent offence from January 9, 2017, must be imposed. The question really becomes what the overall global sentence oughtto be in the totality of the circumstances and in light of Mr.

Ridgeway's moral culpability overall. [84] The jurisprudence directs that where a judge is sentencing for several offences, she should first determine the global sentencefor the offences, and then assign sentences for each offence and designate whether each sentence is to be served concurrently orconsecutively to fit within the global sentence: R. v.

B.R., 2014 ONCA 840, para. 8. [85] However, one must also be cognizant of the need to avoid the imposition of a crushing sentence when the aggregate sentenceimposed is greater than the sum of the parts, particularly when bearing in mind the principle of proportionality. Having said that, thesentencing judge must also be mindful to not reduce or adjust the overall sentence too significantly downwards, essentially granting atwo-for-one discount and thereby giving a reward for reoffending: R. v.

Moore, 2006 BCCA 44, para. 8. [86] This brings me to the totality principle in s. 718.2(c), which is explained in the jurisprudence: R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500, para. 42; R. v. Abrosimo, 2007 BCCA 406; and R. v. Li, 2009 BCCA 85, paras. 26 to 28. Basically, where asentencing judge is imposing consecutive sentences for more than one offence, even though the sentence for each individual offencemight be fit, the totality or cumulative sentence must not be too harsh or crushing.

The totality principle applies to ensure that the overalleffect of the sentences is not disproportionate to the overall moral blameworthiness of the offender and the totality of the circumstancesof the offences for which he is being sentenced. [87] In Li at para. 28, our Court of Appeal confirmed the two stage approach to sentencing an offender convicted of multipleoffences. The first stage is to determine the appropriate sentence for each offence and decide whether the individual sentences should bemade consecutive or concurrent.

If consecutive sentences are imposed, then the second stage is to determine whether the sentences in theaggregate offend the totality principle. If the sentence as a whole is unduly harsh or disproportionate, then the length of the individualsentences should be adjusted in order to arrive at an appropriate global sentence. [88] Applying the principles outlined in Li, I have reached the following conclusion as to the sentence on the offences before thecourt.

Prior to adjusting for totality, there would be a global sentence of 11 and a half years' imprisonment, apportioned as follows: eightyears for the robbery; one year consecutive for the use of an imitation firearm as mandated; and 30 months for the possession of a loadedprohibited firearm to be served consecutive to the other offences. [89] I recognize that an 11-and-a-half-year global sentence is unfit, as it would be truly crushing and far exceed the overall moralculpability of Mr. Ridgeway for these offences.

Accordingly, I propose to make adjustments to ensure that: 1) the totality principle is not violated; 2) the principle of restraint in s. 718(2)(

d) of the Code is observed; and 3) that the positive rehabilitative promise Mr. Ridgeway has demonstrated is not extinguished. [90] I conclude that a global sentence of eight years’ imprisonment is appropriate including: six years for the robbery; one yearconsecutive for the use of an imitation firearm; and one year imprisonment for the possession of the loaded prohibited firearm to beserved consecutive to the other sentences. [91] From that, I must deduct the time Mr. Ridgeway has served in pretrial custody. Pursuant to s. 719(3.1) of the Code and theauthorities from the Supreme Court of Canada, including R. v.

Summers, 2014 SCC 26 and R. v. Carvery, 2014 SCC 27, Mr. Ridgeway isentitled to enhanced credit of 1.5 days to one for his pretrial custody.

As of today's date, he has served 146 days in pretrial custody.Applying the statutory and common law multiplier of 1.5 to one, by my calculation that is 219 days or seven months and nine days to bededucted. [92] Accordingly, taking into account the seven months and nine days pretrial custody to be deducted from the global sentence ofeight years, your additional sentence or net sentence will be seven years, four months, and 21 days. [93] In addition, there will be a firearms prohibition order pursuant to s. 109(3) of the Code for life on both indictments. [94] As robbery is a primary designated offence, a DNA order is mandatory and so, pursuant to s. 487.051 of the Code, I order thatthe number of samples of bodily substances that are reasonably required for the purposes of forensic DNA analysis be taken fromMr.

Ridgeway. That DNA order is attached to the robbery count on the first indictment. [95] There are also forfeiture orders pursuant to s. 490(9) of the Code for the radio communication jammer seized fromMr. Ridgeway on May 1, 2014. That order is with respect to the robbery count on the first indictment, and pursuant to s. 491 of the Codefor the forfeiture of the firearms, imitation firearm, and ammunition seized on both offences, so that order goes with respect to bothindictments. [96] Finally, s. 737 of the Code mandates the imposition of a victim fine surcharge of $200 per count.

That will be payable forthwith,and in default of payment, two days' concurrent on the sentence imposed. “Ker J.”