R. v. Cornish, 2017 BCSC 665

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Cornish, 2017 BCSC 665 Date: 20170228 Docket: 32528-1 Registry: Dawson Creek Regina v. Shaun Christopher Cornish And: Dockets: 99409-3, 102731-1-T and 102732-1-T Registry: Kamloops Regina v. Shaun Christopher Cornish Before: The Honourable Mr. Justice Bracken Oral Reasons for Sentence Counsel for the Crown: E. C. Goulet Counsel for the Accused: D. M. Melville Place and Date of Trial/Hearing: Kamloops, B.C. February 28, 2017 Place and Date of Judgment: Kamloops, B.C.

February 28, 2017 [ 1 ] THE COURT: The defendant, Shaun Cornish, is charged with several counts of robbery. The offences took place in Alberta, Saskatchewan, and British Columbia. He has pled guilty to nine charges of robbery and four charges of using an imitation firearm while committing the robberies. Each of the latter counts carries a one-year minimum mandatory sentence. I will summarize the offences by referring to the agreed statement of facts which was prepared by counsel for the Crown and defence.

The list of the offences is set out in the Crown sentencing submissions and I will briefly go through them just so that the appropriate offence, the section, and the dates are on the record. [ 2 ] The first charge in time is a robbery in Princeton on December 1, 2014. Associated with that offence is the offence under s. 85(2), the use of an imitation firearm while committing the robbery. The next was on December 9, 2014, a robbery in Vernon and the use of an imitation firearm while committing the robbery upon that occasion.

On December 23, 2014, there was a robbery at Merritt; and, on January 21, 2015, there was robbery in Aldergrove and associated with that robbery was the use of an imitation firearm. Finally, in Dawson Creek on January 28, 2015, there was a robbery and the use of an imitation firearm while committing that robbery. [ 3 ] The first offence in Alberta is the offence of robbery, hence, s. 344(1) (b), of the Criminal Code of the High River Bank of Nova Scotia in High River, December 19, 2014. There was a robbery of the Lethbridge T.D. Canada Trust on January 13, 2015.

There was a robbery of the Claresholm, Alberta, Canadian Imperial Bank of Commerce on January 16, 2015, and a robbery of the RBC in Swift Current on January 8, 2015. [ 4 ] The circumstances of the robberies are, first, in Princeton, the police received a call which was later tied to the accused alleging a suspicious male with a baseball bat near the Princeton Hospital. The police officer who was on duty was dispatched to the hospital, but no one was found and, within minutes of that, the defendant went to the CIBC in Princeton and committed a robbery. He approached the teller at a wicket.

He asked her how her day was going. She said, “Fine,” and Mr. Cornish responded, “Well, I'm sorry, it's just going to get worse.” Mr. Cornish received $485 in cash from that robbery and he left very soon after entering the bank. [ 5 ] On December 9, 2014, in Vernon, Mr. Cornish went to the Interior Saving Credit Union with the imitation handgun tucked into his waistband. He wore sunglasses, a dark toque and gloves, and dark clothing. There were seven employees on site, and no customers. He demanded everyone's money. He pulled the gun from his waistband and held it at his side, but did not point it at anyone.

Some of those who saw the gun knew it was an imitation firearm. He was somewhat aggressive and he obtained $1,660 in cash from that robbery.

[ 6 ] On December 19, 2014, at High River, Alberta, Mr. Cornish entered the Bank of Nova Scotia, just before 5:00 p.m. He was armed with the imitation handgun. He was wearing sunglasses and a black toque. There were six employees and one customer in the bank at the time. Mr. Cornish approached a teller and said, “You know what's about to happen.” She collected 15 $100 bills and then began to retrieve smaller bills when he said, “No, just large.” He was shown what the teller had from her drawer and said he needed more. She replied that was all she had and asked if he wanted the small bills.

Eventually, she counted out $150 and he left the bank. He pulled the imitation handgun from his waistband when he was in the bank. The teller believed it was fake. Another person believed it was real and believed it was a nine millimetre handgun. He pointed the gun at the ground for the most part and apparently inadvertently pointed it at a customer. [ 7 ] On December 23, 2014, Mr. Cornish went to the Royal Bank just before 5:00 p.m. There were five employees and one customer in the bank at the time and it was just before closing. He was wearing sunglasses, a dark hoodie, and gloves.

He approached the teller at the wicket and said, “Do you know what this is about?” He demanded all the money and said that he was in a hurry and that he had a gun, but did not want to hurt anyone. He was described as very aggressive and he left the bank with $4,150 in cash. [ 8 ] On January 8, 2015, at Swift Current, Saskatchewan, just after 7:00 p.m. on January 8, Mr. Cornish went into the bank with what appeared to be a handgun and demanded all of the money. There were two people in the bank at the time, the manager and a teller. He was wearing dark sunglasses, a black toque, and dark clothing.

He walked quickly toward the teller and said, “I want all your money.” He said that he was serious and showed the teller the handle of the gun. He left the bank with $1,250. [ 9 ] On January 13, 2015, at Lethbridge, Alberta, just before 6:00 p.m., Mr. Cornish entered the T.D. Canada Trust Bank where there were six customers and four employees in the bank at the time. Again, the bank was just about to close. He approached the teller, showed the handgun, and was holding it with his finger on the trigger.

He demanded the money saying, “I need all the money you have on the counter right now as fast as you can.” She produced some of the money and he left the bank with about $530 in cash. [ 10 ] On January 16, 2015, at Claresholm, Alberta. He entered the CIBC just before 3:30 p.m. and there was a fairly long lineup of customers waiting for tellers. He went directly to one of the tellers and said, “Give me all your money.” He held a handgun and said, “Don't make me use this.” Again, he was wearing sunglasses, a dark toque, and dark clothing. The teller responded by putting some cash in.

He pointed the gun at her and repeated, “Don't make me use this.” He left with $395 and, before doing so, threw a $5 bill at her and said, “Here's a tip.” [ 11 ] On January 21, 2015, just before 6:00 p.m. on January 21, Mr. Cornish robbed the T.D. Canada Trust in Aldergrove, and again, the bank was about to close. There were two tellers, a manager, and one customer inside the bank. Mr. Cornish was wearing sunglasses and dark clothing. He walked up to one of the tellers, said that he was in a bad mood, and demanded money.

He said he did not want small bills and lifted up the bottom of his hoodie to show the handgun. A customer who saw the handgun did not believe it was real, but nevertheless he was able to obtain $1,750 from the bank. He said at that time he did not want to hurt anyone and said that he did not have anything to live for. [ 12 ] On January 28, 2015, at Dawson Creek, British Columbia, Mr. Cornish entered the CIBC just before 5:00 p.m. on that date and was again wearing sunglasses, a toque, and dark clothing. There were nine employees and two job applicants in the bank at the time.

He approached the tellers and apologized and said that he wanted everything in the cash drawers. He received about $4,000. He then left the bank. On that occasion, he was in the bank for 37 seconds. [ 13 ] That was the last of the robberies and, in that robbery, the RCMP canvassed the surveillance footage from local businesses in the area and found that one of them, apparently near the bank, showed the accused, Mr. Cornish, getting into a white pickup truck after the robbery without his disguise, but holding a pistol in the other hand and that was one of the things that led to his arrest.

That information was given to the police in response to publicity that the police had issued. With that information, together with the information from the Dawson Creek robbery, the accused was located in Grande Prairie, Alberta, and was arrested on January 30, 2015, on the Alberta charges. A warrant for the British Columbia charges was issued after those offences were tied to Mr.

Cornish and that warrant was executed in January of 2016. [ 14 ] That results in a period of custody of about 37.5 months at one-and-a-half days for each day served in pretrial custody and 19- and-a-half months at one-and-a-half days for each day in pretrial custody for the British Columbia charges. It is not clear to me how -- where the accused is arrested initially in January of 2015 and then a series of other charges are added to the offence for which he is arrested just how the time should be apportioned or how pretrial credit should be given.

It is my view that given that he has had a credit of about 37.5 months on the Alberta charges, that an overall credit of 36 months should be given, given all of the charges that now have accumulated against him and he has now been in custody since the initial arrest. [ 15 ] Mr. Cornish was born on September 5, 1988. He is now 28 years old. He is a single man. He has no children. He grew up in Mission, British Columbia. He was raised by his mother and had regular contact with his father, although his parents were separated when he was quite young. He has a brother who he maintains strong positive contact with.

They are 15 months apart in age. He described his childhood as being a positive childhood that was free from any neglect or abuse. He still has strong support from his parents and his brother. [ 16 ] He has presented letters of support from family members and friends. All of the letters have the same theme. The offences are surprising to the authors of the letters and are completely out of character for Mr. Cornish. Mr. Cornish was described as a good and compliant student who was not troublesome in any way. His mother describes him in the same way.

He began working after high school and then later returned for further education and followed a program of electrical apprenticeship almost to its completion. I am told that he has about two or three months of coursework left for him to do to receive his journeyman electrician's qualification. [ 17 ] In the letters filed, his family and friends describe him as a quiet, polite, and well-mannered man who is always willing to help other people. He was employed for several months by an electrical company that carried out projects in the oil industry.

He was well- regarded by his supervisor who spoke to the presentence report author about the defendant’s employment and his history of employment. He was described as a well-regarded employee that learned quickly and, as a result, was capable of increasing

responsibilities. Before he was fired from that job, he was supervising other electricians. The problems that ultimately led to these offences interfered and resulted in the loss of that employment. [ 18 ] From the age of about 16, the defendant had gradually become a heavy user of alcohol. In his early 20s, he became more of a heavy user or a frequent user of alcohol. He also began using cocaine and from time to time he used heroin. His substance abuse problems resulted in the loss of his job.

He had borrowed heavily to sustain his substance abuse habit and his gambling habit and he had largely borrowed from payday loan businesses. He also had a loan for the truck that he purchased. That loan was co-signed by a friend of his. When he lost his job, he was left unable to repay the various payday loan organizations.

The description given was of someone who on payday went around to the various payday loan businesses and repaid the debts from the previous month and then began repeating the same pattern by borrowing to his limit and repaying what he was paid the next payday. [ 19 ] There were several victim impact statements filed. I will not read from all of them, but they all have the same comments, some more eloquent than others. Some people, obviously, were affected more intensely than others. All of them describe the stress, fear, and anxiety that they felt during the robbery.

Some felt that fear, anxiety, and sleeplessness as well as fear of being out in public for months afterwards. At least one employee quit her job as a result of the experience. One manager said that she was robbed for the first time in her 27 years of banking experience. She commented on the loss of a valued employee. Several of the offences occurred just prior to the Christmas season. The stress, obviously, impacted on some of the victims over the holiday period. [ 20 ] The defendant has expressed remorse which I found genuine.

He attempted to read a statement, but could not finish doing so and asked his counsel, Mr. Melville, to read it for him. He described how he came to be in the predicament that he now finds himself and, in summing up what he did, he said this: I scared dozens of innocent people including bank tellers and for that I am sorry. I disrupted several communities and their law enforcement agencies and for that I am sorry. I am sorry for hurting my family. I am sorry for not being a respectable member of our society.

I deeply regret any pain or inconvenience I have caused to anyone involved in these crimes. [ 21 ] He went on to say that he has had plenty of time to consider his position while he has been incarcerated and that he has convinced himself and appears to have convinced others that he has put the difficulties that led him to these crimes behind him. He has taken the program of Criminal Addictive Thinking and worked through a socialization workbook. There is a letter in the materials from the substance abuse counsellor attesting to the fact that he has completed those programs. He is now, as he said, drug-free.

He has performed various jobs and work in the course of his incarceration leading up to today. He is described by prison officials as reliable, punctual, and having above-average initiative and capability. His work was described as excellent. He has been a trouble-free inmate. He has kept a low profile. He was described as someone who tended to sit in his cell playing chess or watching TV. There are no issues with the way he maintains his work and living area and he is described as well organized, neat, and tidy.

He has not been particularly engaged with his peers, but he has not had any particular trouble with them, either. He has certainly caused no trouble while he has been in custody. [ 22 ] The Crown and the defence have referred to several relevant and helpful authorities.

The Crown has reviewed various authorities with respect to the range of sentences that have been awarded in cases of this nature and the defence has also provided some sentencing cases with respect to the appropriate range and has emphasized the proportionality and the totality principles as they should be applied to the sentencing principles of denunciation and specific and general deterrence. Both counsel agree that the sentences should be determined as consecutive sentences and then the proportionality and totality principles should be applied.

The Crown has summarized the sentences that it says should be imposed with respect to these offences. [ 23 ] The Crown has commented on the case in R. v. Bui , 2013 BCCA 168 , at para. 14 which stands for the principle that regard should be had to the standards of sentencing in the province where the offences took place. In doing so, the Crown has also referred to the decision of R. v. Johnas , 1982, Alberta Court of Appeal, that is ABCA, 331, at para. 33 where the court, then sitting as a panel of five judges, said that the starting point for a robbery in Alberta should be three years.

The Crown submission from Alberta with respect to the Alberta charges is a sentence of six years for the robbery in High River, seven years for the robbery in Lethbridge, seven years for the robbery in Claresholm, for a total of 20 years, and the Crown submission from Alberta is that when the totality and proportionality principles are applied, that sentence should be 11 years.

The British Columbia offences suggest that for the robbery in Princeton, there would a three-year sentence; use of an imitation firearm, one year, which is a mandatory minimum in addition to the three years; the robbery in Vernon three years, again for the imitation firearm is a one-year mandatory minimum; the robbery in Merritt, two-and-a-half years; the robbery in Aldergrove, two-and-a-half years, with the use of the imitation firearm of one year; and the robbery in Dawson Creek would be two-and-a-half years with the use of an imitation firearm to be one year.

The total of sentences would be 17-and-one- half years, reduced for totality would be six years. From the Saskatchewan offence, the robbery in Swift Current, the Crown submits in conjunction with Saskatchewan Crown that a fit sentence of three-and-one-half years. [ 24 ] The Crown and defence both submit that there must be guidance to the court in sentencing ranges for British Columbia, Alberta, and Saskatchewan, as well as any source, although I do not think there are any other sources presented. The Crown suggests that in the decision of R. v.

Stauffer , 2007 BCCA 7 , the appropriate sentence for sentencing major robberies is between two to nine years, however, aggravating factors can raise the sentence above that and, in fact, in the case of Stauffer which has more significant circumstances than this case, the sentence was, in fact, 18 years. The Crown suggests that analogous cases in British Columbia range from seven to nine years, but none of those cases involved sentencing for nine disguised bank robberies with an imitation firearm used in eight of them, although not all of those are placed before the court.

Sentences in Alberta and Saskatchewan, particularly Alberta, perhaps seem higher and this court, in accordance with Bui , must be guided by that jurisprudence. The sentence in Saskatchewan of three years seems consistent with the sentencing principles that are in existence in that province. [ 25 ] The aggravating factors, of course, have been touched on in the review of the circumstances. First of all, all of these are serious offences. They targeted financial institutions and there should be an applicable principle of deterrence and denunciation given financial institutions are vulnerable targets.

The additional aggravating features that I have referred to of the trauma and stress that has resulted for the employees of the financial institutions and perhaps some of the customers, as well. Some of the employees and customers saw the weapon that was brandished by Mr. Cornish as being an imitation. Some believed that it was real.

[ 26 ] The mitigating circumstances are somewhat unusual category in that the accused is a man of 28 years who has no prior record. These offences were all admitted and were committed in a short period of time. He has, through his incarceration, involved himself in rehabilitation and particularly seems to be satisfied that the substance abuse problem that was the driving force behind these offences has now been put behind him.

He has strong support from members of his family and friends, and his record shows that they have been frequent visitors to him while he has been incarcerated in the British Columbia region and that support will no doubt continue. All of them say that they will continue to support him. All of them say that this was a series of offences, the conduct on the part of Mr.

Cornish that was totally and completely out of what they knew his character to be. [ 27 ] Perhaps of significance, as well, is the fact that he has employment skills that will likely, notwithstanding this history, lead him to come into some sort of sustained form of employment. His history of employment when he was working seems to have been strong.

He appears to have all of the requisite skillsets that employers desire in the industrial electrical industries and there is no question that he is able to find employment provided it is available to him. [ 28 ] Obviously, the general principles of sentencing are to be considered by a judge whenever considering sentences in cases such as this. The principles of deterrence and denunciation are quite rightly emphasized as both counsel have said.

Likewise, the principles of proportionality and, in particular, the principle of doing no more than is necessary by way of incarceration is a guiding principle of the courts, particularly where an individual is facing his first sentence of incarceration. As well, and perhaps of some significant importance in this case and cases of this type, the principles of proportionality and totality must be applied. The totality principle is set and described in the decision of R. v. Burleigh , [2015] B.C.J. No. 1101 , where the court there quoted from a decision of R. v. Li , [2009] B.C.J.

No. 340 , where our Court of Appeal stated: Thus, there is a two-stage approach to sentencing an offender convicted of multiple offences. The first stage is to determine the appropriate sentence for each offence, and decide whether the individual sentences should be made consecutive or concurrent. If consecutive sentences are imposed, then the second stage is to determine whether the sentences, in the aggregate, offend the totality principle.

If the sentence, as a whole, is unduly harsh or disproportionate, then the length of the individual sentences should be adjusted in order to arrive at an appropriate global sentence. [ 29 ] That principle emerges from a decision of the Supreme Court of Canada in R. v. C.A.M. , cited in R. v. Radjenovic , [2013] B.C.J. No. 2672 . In that case, the court stated: In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the “totality principle”.

The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D.A.

Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is “just and appropriate”. [ 30 ] In this case, the consecutive sentences, as described in the Crown sentencing submission, all seem to be appropriate with perhaps the exception of the Alberta offences which start with a sentence of six years.

Were that the only offence, it seems to me that the sentence of six years given the principles set out by the court in Johnas would allow a starting point of three years. In those counts, I would impose a sentence of three years for the robbery in High River, Lethbridge, and Claresholm, which will be a total of nine years and that -- and would be a total sentence for the Alberta offences.

With respect to the British Columbia offences, the sentences that are outlined in the sentencing submission seem to me to be entirely appropriate within the range that is set in British Columbia and taking into account the circumstances of the offences and the circumstances of the offender. Likewise the sentence from Saskatchewan, which appears to be consistent with Saskatchewan sentencing principles, a sentence of three-and-one-half years is not disproportionate.

That total would lead to a very significant sentence, something, I believe, well excess of 20 years. [ 31 ] Using the principles in Burleigh and Li , as expressed in Radjenovic , it appears appropriate to apply the totality and proportionality principle in this case to reduce the overall aggregate sentence.

This was, after all, essentially a two-month spree of serious offences by a man with no previous record, with strong employment skills, well supported by family and friends in the community, but who had come to a problem that combined serious substance abuse that led him to serious debt and an unwise and very harmful decision not only to others, but to himself, to engage in a string of robberies rather than take a different course of action, one which he acknowledges in his statement to the court would have been more appropriate.

In my view, an appropriate sentence in the aggregate in this case is a sentence of seven years. That sentence will be reduced by the time that he has spent in custody and I will give him a rounded -- slightly rounded-down overall credit of 36 months or three years. That leaves a net sentence left to serve of four years. [ 32 ] There will be three ancillary orders which the Crown has requested which will be a DNA order, a lifetime prohibition on firearms, and forfeiture of the imitation firearm and the cash that was seized. [ 33 ] Mr.

Cornish, would you stand up, please. [ 34 ] The sentence I impose upon you is seven years in custody. That sentence will be reduced by the amount of time you have spent in custody which I calculate to be and allow at three years. That sentence will be a sentence of four years to be served in the penitentiary. [ 35 ] You will provide a sample of your DNA upon demand by a correctional official or a police officer. That will be placed in the DNA databank. [ 36 ] There will be a lifetime firearms prohibition.

You are prohibited from possessing any firearm, ammunition, or explosive substance for the period that will end upon your death, for your life. [ 37 ] There will be a forfeiture order of the cash seized from you and of the imitation firearm or pellet gun that was seized from you by the police at the time you were arrested.

[ 38 ] That concludes my sentencing reasons. [ 39 ] MR. GOULET: The Crown directs a stay of proceedings on any outstanding counts which should at least include Count 2 on the Dawson Creek Information and -- [ 40 ] THE CLERK: That is the only count. [ 41 ] MR. GOULET: That is the -- I thank Madam Clerk for that. That is it. “J. K. Bracken, J.” The Honourable Mr. Justice Bracken