R. v. Cetin, 2023 BCSC 905

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Cetin, 2023 BCSC 905 Date: 20230328 Docket: 32945-2 Registry: Vancouver Rex v. Yakup Cetin Before: The Honourable Justice Tammen Oral Reasons for Sentence Counsel for the Crown: D.L. Mulligan Appearing on his own behalf: Y. Cetin Place and Date of Hearing: Vancouver, B.C. March 24, 2023 Place and Date of Judgment: Vancouver, B.C. March 28, 2023 [ 1 ] THE COURT: On January 16, 2023, the accused, Yakup Cetin, pleaded guilty to six of 16 counts on Indictment 32945-2.

On March 10, 2023, after a 22-day trial, I found the accused guilty of an additional five counts on that indictment. [ 2 ] The task before me today is to determine fit sentences for the 11 criminal offences committed by the accused between March and November 2021. Those offences are summarized in my reasons for conviction. In brief, they are as follows:

a) criminally harassing Stephanie Clogg between March 18 and April 23, 2021;

b) threatening to kill Hanjoo Kee on March 30, 2021;

c) engaging in a pattern of conduct directed at Ms. Clogg that included a continuation of the criminal harassment and serial breaches of court-ordered bail conditions which proscribed contact with both victims and attendance at Ms. Clogg's home and workplace;

d) attempts to break in to Ms. Clogg's apartment around midnight on September 4 and 5, 2021. That offence occurred approximately three days after the accused was released at bail following an arrest for breaching a condition that he not attend Ms. Clogg's workplace, which he did on August 31, 2021. At that time, the accused was awaiting sentence for the criminal harassment, threatening, and an earlier bail breach. The accused was detained on April 23, 2021, after allegedly breaching his bail conditions.

On May 28, 2021, after pleading guilty to various offences, he was once again released to permit preparation of a presentence report and psychological assessment. The guilty pleas were withdrawn on May 9, 2022, but the no-contact and non-attendance terms of bail were extant throughout August and early September 2021; and

e) a final set of breaches following his release on October 18, 2021. The accused did not immediately seek bail after his arrest on September 5, 2021, but did so on October 18, 2021. The release plan included residential treatment at Luke 15 House and electronic monitoring. The accused, as he had planned to do, breached all the important terms of that release order almost immediately. He left Luke 15 House within hours, failed to report for fitting of the electronic monitoring bracelet, and failed to remain in Surrey, BC. Instead, he travelled to Vancouver, intending to confront Ms. Clogg.

He went to the area of her workplace near Hastings Street and Howe Street the morning of October 19, 2021. However, rather than confront Ms. Clogg, the accused, based on a change of heart, sent her flowers and a note, a further breach of the no-contact condition. The accused was arrested again on October 19, 2021, and has been in custody since that time. He managed to send Ms. Clogg one further letter from jail near the end of October 2021. [ 3 ] At this hearing, the Crown filed victim impact statements from the following individuals: Ms. Clogg, the primary victim; Mr.

Kee, the recipient of the death threat; Sarah Hardy, who was present when the threat was made, and Ms. Clogg's mother, Yana Clogg. [ 4 ] Immediately after the attempted break and entry of Ms. Clogg's apartment on September 5, 2021, the accused took a taxi to the neighbourhood where Yana Clogg lived. There he prowled around for some time and likely perpetrated some mischief on her property. [ 5 ] As one would expect, Ms. Clogg has been profoundly affected by Mr. Cetin's crimes. Her overall sense of safety, security, and well-being has been shaken immensely.

She now feels violated, fearful, unsafe, vulnerable, and fears for her life. [ 6 ] The accused was someone Ms. Clogg barely knew, who inexplicably became obsessed with her and engaged in persistent

unwanted communication, some of which she perceived as frightening and threatening. The Background of the Accused [ 7 ] Mr. Cetin is 40 years old, born on November 1982 in Turkey, the eldest of four children. His father died when the accused was six, leaving the accused as the eldest male in the household. He grew up poor, but did well in school and attended university, studying history. The accused worked as a teacher in Turkey. In 2009, he got married and moved to Canada. The accused became a Canadian citizen in 2016.

He has a son, born in 2014, who lives with his mother, now divorced from the accused, in Russia. [ 8 ] In Canada, the accused worked at a gas bar and then as a building maintenance worker. He has not worked since March 2021. Mr. Cetin has no noteworthy health problems nor issues with substance abuse. He is a moderate drinker, although he was intoxicated on March 30, 2021, at the time of the threatening incident. The accused has no criminal record, but he was placed on an eight-month recognizance pursuant to s. 810 of the Criminal Code, R.S.C. 1985, c.

C-46 , in February 2020 in relation to a woman with whom he had a romantic relationship. [ 9 ] According to a presentence report and psychological assessment prepared in August 2021, the accused demonstrates a lack of insight into his offending behaviour. The psychological assessment puts the accused at "relatively high risk for future criminal harassment." Positions of the Crown and Defence [ 10 ] Crown counsel has very helpfully summarized their position in an appendix to their written submission, which I will have marked as Exhibit A for identification in these proceedings:

a) With respect to Count 1, Crown says an appropriate sentence is between 4–6 months’ imprisonment;

b) Count 2, criminal harassment, Crown says a fit sentence is 8–12 months consecutive;

c) Count 3, breach of the no-contact with Ms. Clogg between March 31–April 23, 2021, Crown says a fit sentence is 6–9 months, concurrent with Count 2;

d) Count 4, breach of the no-contact provision in relation to Mr. Kee on April 23, 2021, Crown says a fit sentence is 2–4 months consecutive;

e) Count 6, breach by attending the workplace of Ms. Clogg on August 31, 2021, Crown says a fit sentence is 4–6 months consecutive;

f) Count 9, attempted break and entry of Ms. Clogg's residence on or about September 4, 2021, Crown says a fit sentence is 18– 24 months consecutive;

g) Count 11, breach committed on September 4, 2021, by attending in the 1200-block Homer Street, Crown says a fit sentence is 6–9 months concurrent with the sentence on Count 9;

h) Count 13, breach on October 19, 2021 by failing to report and comply with electronic monitoring, Crown says a fit sentence is 8–12 months consecutive;

i) Count 14, breach of bail by failing to reside at Luke 15 House, Crown says a fit sentence is 8–12 months concurrent with the sentence on Count 13;

j) Count 15, breach on October 19, 2021, by sending flowers and a card to Ms. Clogg, Crown says a fit sentence is 8–12 months consecutive; and

k) Count 16, breach committed by failing to remain in Surrey, Crown says a fit sentence is 8–12 months concurrent with the sentence on Count 15. [ 11 ] Using those ranges of sentence, the total sentence would amount to anywhere between 52–76 months, somewhere between 4.3– 6.3 years' imprisonment. [ 12 ] Crown says a deduction should be made, taking into account the totality principle, leaving a fit overall range of sentence between 42–60 months.

From that, credit for time spent in pretrial custody must be deducted, slightly in excess of 20 months, which equates to slightly in excess of 30 months, accounting for the appropriate multiplier, which leaves a total cumulative sentence of anywhere between 12–30 months based on the Crown appendix. [ 13 ] Crown counsel ultimately submits that an appropriate sentence is two years' imprisonment to be followed by three years' probation. Crown proposes a host of terms of probation, 16 additional terms to those required by statute, some of which can only be characterized as punitive.

The complete list of proposed conditions is contained at Tab 3 of Exhibit 2. [ 14 ] The accused submits that a fit sentence is 18 months' jail, which he breaks down this way: six months for the criminal harassment; six months for the attempted break and enter; and, six months for the October 19, 2021 breaches. [ 15 ] The principles of sentencing are now largely codified in ss. 718 , 718.1 , and 718.2 of the Criminal Code , all of which I have read

and considered. With respect to mitigating factors, there was only the guilty plea at the start of the trial to some of the offences. [ 16 ] The aggravating factors include the following:

a) the fact that the accused targeted a woman with whom he was only superficially acquainted;

b) the fact that several offences occurred while the accused was on bail with conditions, including the very serious offences the accused committed after pleading guilty to criminal harassment and threatening, but prior to being sentenced;

c) the brazen nature of the breaches of court-ordered bail conditions. For example, the accused acknowledged at trial that he planned to breach the bail order in October 2021, and only agreed to those conditions in order to secure his release so he could once again contact Ms. Clogg. Throughout these proceedings, the accused made very clear his view that he does not feel obliged to abide by any court orders that he thinks are unreasonable;

d) The degree of planning and premeditation of some of the offences, for example, the attempted break and entry and the October 2021 bail breaches; and

e) The express aggravating factor set out in s. 264(4) (

b) of the Criminal Code which applies to the criminal harassment that occurred between March 31–April 24, 2021. [ 17 ] I also agree with Crown counsel that the accused exhibits a profound lack of insight into his offending behaviour and the harm it causes. I do not view that as an aggravating factor, but it does reinforce my view that the accused is very likely to reoffend.

That lack of insight also tempers my consideration of prospects for rehabilitation, which at present seem rather dim. [ 18 ] I am satisfied the principles of sentencing which most inform my consideration are denunciation and specific deterrence. I am also firmly of the view that the accused must be separated from society, such is the antisocial nature of his offending and attitude towards societal norms.

The degree of moral blameworthiness of the accused is extremely high. [ 19 ] The offences which most acutely mandate imposition of a denunciatory sentence are the criminal harassment, September 4 and 5, 2021 attempted break and entry of a dwelling house, and the panoply of breaches committed in October 2021. [ 20 ] I agree with what was said by Justice Skolrood, as he then was, in R. v. Fulton , 2021 BCSC 2721 , that criminal harassment is an insidious offence which attacks a complainant's sense of personal safety, security, and well-being. That is precisely what has befallen Ms.

Clogg in this case. [ 21 ] The circumstances of the attempted break and entry could scarcely be more alarming. The accused attempted to gain entry to Ms. Clogg's personal living space in the dead of night. He was bound by a court order to have no contact with Ms. Clogg and not to attend anywhere in that city block. He was waiting to be sentenced for criminally harassing Ms. Clogg and breaching a previous bail order. Having been unsuccessful in using Jeremy Levy as a conduit to persuade Ms. Clogg to soften her position, and having been told by Mr. Levy that Ms.

Clogg wished to be left alone, the accused decided to escalate his offending behaviour. [ 22 ] The attempted break-in was not particularly sophisticated, but was moderately persistent. From there, the accused went directly to the North Vancouver neighbourhood where Yana Clogg lived, where he prowled around for some time. Any attempt to break into a dwelling house is extremely serious, since it is an intrusion on an individual's most private space, a place where each of us is entitled to feel safe. [ 23 ] Only Mr.

Cetin knows what further unlawful act or acts he intended to commit had he succeeded in gaining entry. I have already commented on the serious nature of the October 19 bail breaches, their brazen nature, and the premeditation involved. [ 24 ] I am in substantial agreement with the submissions of Crown counsel as to both a fit sentence for the various offences and the general range of fit sentence, taking into account the totality principle. I also agree with the Crown’s position concerning concurrent versus consecutive sentences. [ 25 ] I

part company with the Crown's submission in two respects:

a) the precise sentence to be imposed for certain of the individual offences; and

b) the overall sentence which is appropriate once the totality principle is considered. [ 26 ] The individual sentences which, in my view, are fit are as follows: Counts 1 and 2, Crown says 4–6 months for Count 1, threatening, and 8–12 months for Count 2, criminal harassment. I agree that the total sentence for those offences should be 18 months, but apportion the sentences differently. For Count 1, the sentence should be three months.

For Count 2, a fit sentence is 15 months consecutive to Count 1. [ 27 ] I agree with Crown that a fit sentence for Count 3, the breach of bail which overlaps with the criminal harassment, is six months which should be concurrent with the sentence on Count 2. [ 28 ] Count 4 is the breach of April 23, 2021, involving Mr. Kee. That followed an attempt by Mr. Kee to induce the accused to breach his bail order. A fit sentence is one day imprisonment. [ 29 ] Count 6 is the August 31, 2021 breach, attendance at Ms. Clogg's workplace.

A fit sentence is six months' imprisonment consecutive. [ 30 ] Count 9 is the attempted break and entry. A fit sentence is 24 months consecutive. I view two years as the minimum fit sentence. Indeed, were it not for the position taken by Crown counsel, I might impose a lengthier sentence.

[ 31 ] Count 11 is the bail breach which accompanied Count 9, attendance at the 1200-block Homer Street. A fit sentence is six months concurrent with the sentence for Count 9. [ 32 ] Counts 13, 14, 15, and 16 are all breaches of the October 18, 2021, bail order. I agree with the Crown's submission that the range of sentence for each is 8–12 months' imprisonment. A fit sentence for Count 13, failing to report for electronic monitoring, is 12 months consecutive to all other sentences. For Count 14, failure to reside at Luke 15 House, a fit sentence is nine months concurrent.

For Count 15, breaching the no-contact order with respect to Ms. Clogg, a fit sentence is 12 months consecutive to all other sentences. For Count 16, failure to remain in Surrey, a fit sentence is nine months concurrent. [ 33 ] Those sentences total 72 months, or six years. In my view, some deduction is required, taking into account the totality principle. I would impose a total cumulative sentence of 66 months, or five and a half years.

I would do that by reducing the sentences on each of Counts 13 and 15 from 12 months to nine months. [ 34 ] Time already spent in presentence custody must be deducted from the total cumulative sentence. Crown agrees it should be credited at 1.5:1, the maximum permitted pursuant to s. 719 of the Criminal Code . [ 35 ] Actual time served by the accused to date is 607 days. Multiplied by 1.5, that equals 910.5 days. Measured in months, the credit would be approximately 30 and one-third months. I intend to credit the accused with 30 months. That is approximately but not precisely 1.5:1 credit.

My reasons for rounding down are these:

a) I am not persuaded that the accused is entitled to enhanced credit for every day he has spent in pretrial custody, given his many arrests post-March 30, 2021, based on allegations of bail breaches and committing further offences.

b) based on a consideration of all the evidence, including Mr. Cetin's behaviour while in custody and in court, I think it extremely unlikely that he will be granted early release.

c) In my view, sentence calculation by judges should not be reduced to a purely arithmetic exercise. Doing so potentially trivializes the process. [ 36 ] The result is that taking into account time already served, credited at 30 months, the sentence I impose today is 36 months' imprisonment, to be served in a federal penitentiary.

I decline to reduce the sentence in order to permit imposition of a probation order. [ 37 ] The types of conditions which can be imposed as part of parole or statutory release will better serve to protect the public from the accused than would the types of conditions which may form part of a probation order. [ 38 ] I apportion the so-called dead time of 30 months as follows: Count 1, one month; Count 2, seven months; Count 6, three months; Count 9, 11 months; Count 13, four months; Count 15, four months. [ 39 ] Mr. Cetin, please stand.

I sentence you to the following terms of imprisonment: Count 1, two months; Count 2, eight months consecutive; Count 3, six months concurrent; Count 4, one day concurrent; Count 6, three months consecutive; Count 9, 13 months consecutive; Count 11, six months concurrent; Count 13, five months consecutive; Count 14, nine months concurrent; Count 15, five months consecutive; Count 16, nine months concurrent. [ 40 ] You may be seated while I make the ancillary orders, Mr. Cetin. [ 41 ] I make the following ancillary orders:

a) an order in Form 5.04 of the Criminal Code authorizing the taking of bodily substances for forensic DNA analysis pursuant to s. 487.051(2) of the Criminal Code ;

b) an order that there be a mandatory firearms prohibition pursuant to s. 109(1) (

b) of the Criminal Code . The term is for life with respect to any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition, and that is pursuant to 109(2)(b), and for ten years with respect to any firearm, other than a prohibited or restricted firearm, and any cross-bow, restricted weapon, ammunition, and explosive substance, and that is pursuant to s. 109(2) (a)(ii);

c) I waive the victim fine surcharge pursuant to s. 737 of the Criminal Code ; and

d) an order of no contact while the accused is in custody pursuant to s. 743.21 of the Criminal Code . There will be no contact with Stephanie Clogg, Yana Clogg, Christopher Clogg, Hanjoo Kee, and Sarah Hardy. [ 42 ] Pursuant to s. 743.2 of the Criminal Code , I direct that these reasons be transcribed and forwarded to the Correctional Service of Canada, along with the reports contained at Tabs 1 and 2 of Exhibit 1 on sentencing. [ 43 ] Is there anything further from the Crown, Mr. Mulligan? [ 44 ] CNSL D. MULLIGAN: Nothing further from the Crown, thank you. [ 45 ] THE COURT: All right, thank you. We will adjourn. “Tammen J.”