R. v. Spence, 2017 BCSC 2145

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Spence, 2017 BCSC 2145 Date: 20170912 Docket: 84219-3; 84556-2 Registry: Kelowna Regina v. Walter Daryl Spence Before: The Honourable Madam Justice Burke Oral Reasons for Sentence Counsel for the Crown: M.C. Treddenick Counsel for the Accused: N.C. Jacob Place and Date of Hearing: Kelowna, B.C. September 11, 2017 Place and Date of Judgment: Kelowna, B.C. September 12, 2017 [ 1 ] These are my oral reasons for judgement. I reserve the right to edit them but the substance will not change . OVERVIEW: [ 2 ] Mr.

Walter Spence has entered a plea of guilty on two separate indictments. [ 3 ] Mr. Spence has plead guilty on Indictment 84219-3, Count 1, to the offence of using a restricted or prohibited firearm and committing robbery of Mr. Felix Maisonneuve, contrary to s. 344(1) (

a) of the Criminal Code , on February 17, 2016, in Kelowna, British Columbia. [ 4 ] That particular offence has a statutory minimum sentence of five years. [ 5 ] In addition, Mr. Spence has pled guilty on Indictment 84556-2, Count 1, of possessing a firearm on February 17, 2016, in Kelowna, British Columbia, while he was prohibited from doing so, contrary to s. 117.01(1) of the Criminal Code . [ 6 ] The Crown and defence have put forward a joint submission with respect to sentence as follows: 1. On Count 1 of Indictment 84219-3: a sentence of five years, the mandatory minimum sentence; 2.

On Count 1 of Indictment 8455-2: a six-month consecutive sentence. THE FACTS Circumstances of the Offence [ 7 ] Crown counsel has read the circumstances surrounding the commission of the offences into the record. As a result, I will not go into great detail but rather provide a brief

summary of the circumstances. [ 8 ] On February 17, 2016, four individuals, two females and two males, including Mr. Spence, drove to an apartment complex on Glenmore Road North in Kelowna, following Mr. Spence’s directions. The female knocked on the door of Mr. Felix Maisonneuve’s apartment located in the apartment complex at 1475 Glenmore Road at 9:30 a.m. Mr. Maisonneuve was sleeping but when the knocking did not stop, he got up and noted what appeared to be a 40-year-old woman at the door. As he opened the door for the woman, two men —Mr. Spence and a young man—burst through the door. Mr.

Spence had a gun and the youth had a knife. Mr. Spence appeared to be in his 40s, with neck tattoos and sunglasses, and the youth held a knife. [ 9 ] Mr. Maisonneuve screamed for help while the men said, “Where is the money?” with Mr. Spence pointing a gun at Mr. Maisonneuve’s face. Mr. Maisonneuve tried to push the males back towards the door and during this struggle, the gun went off. Mr. Spence said, “We need to go; I shot myself in the face.” Mr. Maisonneuve said the older man no longer had his sunglasses on and one eye was missing. While the two males were still armed but leaving, Mr.

Maisonneuve retrieved bear spray and sprayed the males as they were leaving. He then called 911 and later described the gun to the police.

[ 10 ] The two males left in a vehicle that had been waiting outside, and Mr. Spence was driven to hospital by one of the females. The younger male and the other female, who had knocked on the apartment door, abruptly departed the vehicle, having no desire to attend at the hospital. [ 11 ] While Mr. Spence was being treated in hospital for the gunshot wound, the female driver consented to a police search of the vehicle. This search revealed a bloody backpack; a wooden handle bolt-action gun, essentially a sawed off rifle with a 22 caliber cartridge; and a knife. [ 12 ] Mr. Spence was arrested at the hospital.

Police also seized four 22 caliber bullets from Mr. Spence’s jeans. Police attended at the Maisonneuve residence and ultimately DNA evidence identified Mr. Spence’s blood from the entrance way and the trigger of the firearm. Cocaine, along with other drugs and drug paraphernalia, was also discovered in the apartment. The firearm in question was later determined by experts to be a CIL Model 125 rifle, serial number 794210-10, with both the stock and barrel cut down to a prohibited level. [ 13 ] Additional circumstances relevant to Indictment 84556-2 reveal Mr.

Spence already had two lifetime firearm prohibition orders: one issued April 7, 2006, from the Vancouver Registry, and one issued October 14, 2008, from the Kelowna Registry. Circumstances of the Offender [ 14 ] Mr. Spence’s personal circumstances were outlined by the defence. Mr. Spence is 49 and will be 50 next month. He was born and raised in Kelowna and has a good relationship with his family members who include his parents and a brother and sister. He has two sons, one of whom he maintains a good relationship with. [ 15 ] He was married as a teenager at 18.

That relationship did not go well, resulting in its demise and the estrangement of his son. This ultimately caused him to “go off the rails” and turn to drugs and alcohol. His criminal record is largely related to and in furtherance of his drug addiction. [ 16 ] Mr. Spence left school at the age of 15. Except for the last 13 years, he was employed in a variety of construction related jobs. He has had at least one extended period after his release from jail during which he did well, being from 1998 to 2004.

Unfortunately, he has been on disability since 2004 with a significant injury to his neck and shoulder due to a criminal assault he suffered. After this assault and his inability to work, he became despondent and returned to his drug use and activity to fund that drug use. [ 17 ] Mr. Spence has been in custody since February 16, 2016, and “clean” for 18 months. He is enrolled in the Suboxone program, an alternative to methadone that has assisted him with withdrawal symptoms and his pain.

He has completed various courses while in custody including Substance Abuse Management, Managing Change, and Rebuilding the Brain after Brain injury. [ 18 ] As a result of the incident in question, Mr. Spence lost his right eye and continues to have a bullet lodged in his brain. He underwent an eight-hour surgery to deal with the bullet after the event. He is dizzy and disoriented with cognition problems. This has had a significant impact on him with respect to specific deterrence and he is motivated to live a pro social life in the future.

Impact on the Victim and/or Community [ 19 ] There is no victim impact statement but I take note of the impact of such a violent incident on the victim and community, especially the neighbours in the apartment complex where the robbery took place. Mitigating and Aggravating Factors [ 20 ] As the Crown points out, the aggravating factors in this case are the accused’s lengthy criminal record spanning 30 years, albeit Mr. Spence’s longest sentence is over 20 years ago. His longest sentence in more recent history was for 18 months. Furthermore, as Crown points out, this was a planned robbery, which Mr.

Spence carried out with a loaded prohibited firearm. Mr. Spence also used both a youth to assist him and a female friend to secure a ride to the apartment complex and to get the victim to open the door. [ 21 ] The mitigating factors in this case include Mr. Spence’s early guilty plea, one month before a trial of two weeks with over 41 witnesses. Furthermore, Mr. Spence has suffered a serious personal injury with the loss of his right eye, which is pertinent to specific deterrence. [ 22 ] Mr. Spence is now almost 50 and said to be motivated to lead a prosocial life.

He has remained “clean” in jail and has suffered a life-changing injury that he must deal with, including dizziness and cognition problems. He has support from his family to follow on the path of a prosocial life. PRINCIPLES OF SENTENCING [ 23 ] The principles governing sentencing are well established.

Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. It also lists a number of specific objectives that a sentencing judge must consider, which are: (

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. [ 24 ]

Section 718.1 states the most basic principle of sentencing, namely, that the sentence imposed should be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 25 ]

Section 718.2 sets out a number of additional principles: • a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances; • an offender should not be deprived of liberty if a less restrictive sanction is appropriate; • all reasonable sanctions other than imprisonment should be considered; and • a sentence should be increased or reduced to take account of any aggravating or mitigating circumstances. REASONS [ 26 ] The sentencing judge is not obliged to simply accept a joint submission without question or further consideration.

The judge must be satisfied that, in all the circumstances, it is a fit and proper sentence. That said, the sentencing judge must give serious consideration to the joint submission where it is the product of negotiation between experienced counsel who are in the position to assess the strengths and weaknesses of the case. [ 27 ] The minimum sentence in this case is five years, which is a significant sentence. Mr. Spence has a lengthy criminal record but his longest sentence was over 20 years ago.

He has pleaded guilty, thereby avoiding a trial and indicating that he accepts responsibility for his actions. [ 28 ] The joint submission is made between two experienced counsel and Mr. Spence has been in custody for some time now. [ 29 ] After consideration of all the circumstances, and the submissions of counsel, I am prepared to accept the joint submission. As per R. v.

Anthony-Cook, 2016 SCC 43 , a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or otherwise be contrary to the public interest. [ 30 ] The case law provided by Crown counsel provides for sentences from five to six years for robbery with a prohibited firearm in somewhat similar circumstances. These cases include: R v. Herd , 2014 BCSC 1146 ; R. v. Rintoul , 2016 BCCA 468 and 2014 BCPC 264 ; R. v. Muir , 2015 ONSC 3119 ; and R. v. Azizi , 2017 MBQB 22 .

I have considered these in coming to my conclusion in this matter. [ 31 ] The case law supports a six-month consecutive sentence for the s. 117.01(1) offence, possession of firearm while prohibited: R. v. Ball , 2014 BCCA 120 ; R. v. Beattie , 2015 BCCA 335 ; and R. v. Walsh , 2016 BCCA 425 . [ 32 ] While there is no doubt the discharging of a firearm is a very serious offence, I am persuaded that the joint submission meets the needs of sentencing.

I conclude on the basis of the submissions of the parties and the circumstances noted above that the joint submission on sentence is in the range of sentence that would be appropriate in the circumstances. [ 33 ] The sentence will provide adequate denunciation and deterrence on a general level and specific deterrence for Mr. Spence. It also provides opportunity and potential for rehabilitation, which Mr.

Spence has demonstrated by the courses he has taken while in custody and his adherence to a non-opioid lifestyle. [ 34 ] I therefore do not believe it would be contrary to the interests of justice if I were to impose the sentences sought. FINAL DECISION [ 35 ] Mr. Spence would you please stand. [ 36 ] Mr. Spence, for the offence of robbery with a prohibited firearm, contrary to s. 344(1) (

a) of the Criminal Code , I sentence you to a term of imprisonment of five years. [ 37 ] For the offence of possession of a prohibited firearm, contrary to s. 117.01(1) of the Criminal Code, I sentence you to a term of imprisonment of six months, consecutive to the sentence previously noted. The total sentence will therefore be a sentence in federal prison amounting to five years and six months. [ 38 ] In terms of calculating the sentence, Mr. Spence has been in custody since February 16, 2016, and as of today, will have been in custody for 574 days.

Applying credit for pre-trial custody of 1.5 days for every one day served, results in credit for 861 days. Five years (2,008 days) less 862 days leaves 1,147 days or, just over three years. That is the sentence that I impose. Ancillary Orders

[ 39 ] In addition to the prison sentence, I make the following ancillary orders. [ 40 ] Mr. Spence, you are prohibited from possessing firearms on a lifetime basis under s. 109 of the Criminal Code . [ 41 ] Pursuant to s. 487.05(1), I am authorizing the taking of body samples for DNA analysis and registration in the national DNA databank. [ 42 ] There is to be on order of forfeiture to the Crown under s. 491 of the Criminal Code of the material seized in the investigation for destruction. [ 43 ] Mr. Spence, your family support has been noted along with your desire to live a prosocial life.

This is your opportunity to maintain your progress in that direction and I encourage you to do so. [ 44 ] THE ACCUSED: Yes, I plan to. [ 45 ] THE COURT: Thank you. Counsel does that take care of everything? [ 46 ] MS. TREDDENICK: Yes, Your Honour, with respect—or, sorry, My Lady, the Crown would enter stays—I believe there is outstanding counts on Count 2 on the 84556-2— [ 47 ] THE COURT: So these are stays—so there is the two indictments. [ 48 ] MS.

TREDDENICK: —And on 84210-3, there is Count 2 and Count 3 and the Crown would enter stays on those remaining counts. [CROWN ENTERS STAYS ON THE OUTSTANDING COUNTS ON EACH OF THE TWO INDICTMENTS] [ 49 ] THE COURT: Thank you. That concludes my reasons. [ 50 ] Madam Registrar, please order a transcript of these reasons. The Honourable Madam Justice E. Burke