R. v. C.P.L. Date:, 2013 BCPC 437

Citation: R. v. C.P.L. Date: 20131113 2013 BCPC 437 File Nos: 56143-14; 58400-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. C.P.L. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: J. Horneland Counsel for the Defendant: D. Sudeyko Place of Hearing: North Vancouver , B.C. Date of Hearing: November 13, 2013 Date of Judgment: November 13, 2013

[ 1 ] THE COURT: On September 19, 2013, C.P.L. pled guilty to the following charges: robbery of M.V. and S.F.R., contrary to s. 343 (

a) of the Criminal Code , arising August 1, 2012; assault of a peace officer, Constable Smith, contrary to s. 270(1) (

a) of the Criminal Code , arising August 1, 2012; and escape from lawful custody, contrary to s. 145(1) (

a) of the Criminal Code , arising July 13, 2012. [ 2 ] The pleas were entered on the day his trial was to have commenced. Circumstances of the Offences [ 3 ] On August 1, 2012, Mr. L. was serving a two-year provincial sentence for robbery. He had been released on parole and directed to reside in a halfway house. He left that facility without permission on July 13th and returned home to the lands of the [omitted for publication] Nation in West Vancouver. [ 4 ] At around 8:00 p.m. on August 1, 2012, the victims were riding dirt bikes on a trail in an undeveloped area near or on the reserve. It was before dusk.

The victims were 21 and 23 and both were Caucasian. One of their bikes stalled on the trail and they were stopped, trying to fix it, when the offender and four other males approached them. [ 5 ] Mr. L. informed them that he had just gotten out of the "penitentiary" and asked if they had any pot. At first the victims said they did not have any and then, as they felt intimidated, admitted they did. When they produced their marihuana, the offender grabbed it and told them one of the other males would pay them $20 for it.

Instead, knives were produced by the other males and the victims were told to give them whatever they had. The offender then also produced a knife. Their pockets were emptied and they were frisked. Sunglasses were taken from one victim and a necklace was ripped off the neck of the other. [ 6 ] As the robbery was concluded, they were told by the other males to "get out of here, white boys, this is what you get, stay off the reserve". There was a pit bull or boxer-like dog with the males which was barking. The victims were told the dog would be let loose to attack them.

As the victims turned to leave, the offender pushed one of them, while holding a knife in his hand. [ 7 ] Mr. L. was described as the leader, in that he was directing the other males what to do. [ 8 ] Mr. L. was located on a nearby trail approximately half an hour later. He was noted to have a strong odour of liquor on his breath. He gave Constable Smith a false name and was somewhat resistant when placed under arrest. [ 9 ] Once handcuffed, he demanded a cigarette.

When he was told he could not have a cigarette, he told the officer he wanted to stab him in the neck and kill him, and it was only the handcuffs that prevented him from doing so. He then spat on the officer and lunged at him, knocking him to the ground, which injured the officer's elbow. [ 10 ] Another officer arrived and Mr. L. continued to kick and struggle and make threats. He continued to act out aggressively at the detachment. Victim Impact [ 11 ] One of the victims continues to be traumatized by the robbery.

He moved away from the area due to his anxiety and fear at the prospect of meeting any of the perpetrators again. The other victim reported having moved on and that he was no longer experiencing any impact. Antecedents of the Offender [ 12 ] The court ordered a pre-sentence report with a Gladue component. The Gladue component is scant and unhelpful. I do not have specific information that either of his parents were residential school survivors or if others in his ancestry were.

However, having now sat in North Vancouver since late 2009, and having presided in the First Nations sentencing court for 18 months, I am prepared to infer from the information that I have about this offender, from information I received when dealing with T.N., his younger brother who was before me on a number of Youth Court matters, and from my knowledge of the history of the [omitted for publication] Nation, that the offender has been impacted by the Gladue factors and that his moral culpability can and should be viewed as reduced as a result. [ 13 ] Mr. L. is now 20 years of age.

As noted, he is a member of the [omitted for publication] Nation. He has spent his life on the [omitted for publication]. He experienced significant neglect as a child and was placed in a First Nations foster home at age two. For seven years he lived with one foster mother, who has also raised his younger brother. [ 14 ] Due to his acting out, described as bullying, he was no longer welcome at that home.

He spent the balance of his time in care in group homes, from which he was frequently absent without permission. [ 15 ] Both he and his full brother have cognitive issues related to fetal alcohol syndrome disorder, as do two female half-siblings also born to their mother. Mr. L. has an IQ of 87. He was also diagnosed as having attention deficit hyperactivity disorder, alcohol-related neurodevelopmental disorder, and he may suffer from reactive attachment disorder. [ 16 ] He is noted not to have any meaningful relationships with any adults.

He has few supports in the community, and those who can offer support will not do so until his behaviour improves and he "cleans up his life". He does not report having any friends. [ 17 ] He has had no relationship with his biological father, except that he recently encountered him while in custody at a pre-trial centre where his father was serving a sentence for drug trafficking. I have no information as to any relationship he has had with his biological mother.

[ 18 ] His brother, T.N., attended court and supported Mr. L. Unfortunately, T. is not in a position to offer meaningful support other than his loyalty and affection. [ 19 ] Mr. L. has a Grade 10 education and no meaningful employment history or skills. During his time in the care of the Ministry and while involved in the youth justice system, extensive resources were made available to him, both in the community and in custody. [ 20 ] At times he has stated he accepts he has substance abuse issues and at other times he says he does not.

He reported that he completed an anger management program in the youth detention centre and sees no need to repeat such a program. He does not accept that he requires counselling. [ 21 ] When he was asked if he would consider himself a bully, he said he did not and that it was the people he associates with who are bullies.

He does not believe he can comply with the terms of any community-based disposition, and his history of poor compliance with community dispositions, described in the pre-sentence report as abysmal, supports that conclusion. [ 22 ] He has no interest in participating in his aboriginal culture or traditions. There are resources available to him through his nation, including one-to-one counselling, therapy to assist in controlling his violent behaviour, and assistance in finding a placement in a First Nations residential treatment centre.

The probation officer notes that his best chance for success is to connect with the resources and support of his nation. [ 23 ] It is unfortunate that at this time in his life he is not motivated to take advantage of this. In any event, at this time, his community does not have the resources to meet his needs in a manner that could ensure the safety of the public. [ 24 ] The pre-sentence report aptly summarizes the offender's personal circumstances as follows [as read in]: The risk factors for C. are substance abuse, violence, weak socialization, poor insight, inability to problem solve, and impulsivity.

At age 20, he does not seem to be too concerned about his behaviour and sees no immediate need to change anything. Instead, he is focused on receiving a substantial amount of money from the [omitted for publication] Nation and then finding a place to live and work. The writer has doubts C. will actually follow through with these plans to be productive, given his pattern of instability. While in the youth system, C. had many resources available to him. He did not seem to benefit from the more intense supervision and resourcing they tried to provide to him.

Sadly, now that he is in the adult system, resources are definitely more limited. Criminal History [ 25 ] Mr. L. has an extensive criminal history of violent offences which was set out in the pre-sentence report. He has six prior convictions for robbery, the first five of which were committed as a youth. His record also contains a possession of a weapon conviction and a threatening conviction from 2008.

The balance of the history is comprised of two prior entries for resisting or obstructing police officers, eight entries for failing to comply with disposition or sentence, and four property offences. [ 26 ] The circumstances of the robbery which resulted in the two-year sentence he was serving at the time of this offence are of great concern. It was also his first conviction as an adult. He and two other males approached some foreign students who were standing outside a restaurant near the SeaBus terminal. Two of the males produced knives and demanded the victims turn over their valuables.

When they did not immediately comply, Mr. L. produced a machete and cut one victim across the face and then swung the machete at another, which connected with the back of their head causing massive trauma to the brain. Aggravating and Mitigating Factors [ 27 ] The aggravating factors are that the accused directed the other males in committing the robbery and was in possession of and brandished a knife. The victims were physically accosted during the offence. [ 28 ] It is also aggravating to some degree that the perpetrators suggested the robbery was racially motivated. [ 29 ] Mr.

L. was unlawfully at large while serving a sentence for a similar, although more serious, offence and he has a lengthy history of similar offences. [ 30 ] The mitigating factors are his age, the Gladue factors, being his First Nations ancestry and life experiences, and his cognitive limitations. The offences were opportunistic rather than premeditated, and no physical harm was done to the victims. Positions of Crown and Defence [ 31 ] Counsel for the Crown submitted that a sentence of four to six years' incarceration was appropriate for the robbery, consecutive to a short sentence for the escape lawful custody.

The principles of sentence they say should be given the greatest weight are denunciation, general deterrence, protection of the public, and specific deterrence of this offender. They point to the contents of the pre-sentence report as illustrating that there is little prospect of rehabilitation, and that there are no restorative or reparative aims which could be met. [ 32 ] Counsel for Mr. L. asked the court to take into account the reduced moral blameworthiness and responsibility of this offender, given his particular background and mental capabilities. He reminded the court that Mr.

L. had already served the term of incarceration imposed for the very serious attack with a machete and should not, in effect, be sentenced again for that offence. He remains bound by a probation order of three years from that sentence. [ 33 ] His relative youth allows for the prospect of maturation, and in turn for an increase in self-control, which supports a realistic potential for rehabilitation. They ask the court to grant a sentence of time served and consider releasing Mr. L. to reside in a residential treatment program.

Credit for Time in Custody [34] Mr. L. has remained in custody since his arrest. His warrant on the previous sentence would have expired sometime near theend of February or early March 2013. He was transferred to a provincial institution in January of 2013. He is entitled to credit for atleast eight months to the date of imposition of sentence, and I am prepared to credit him with 10 months, as I do not have any moreprecise dates with respect to any remission he may have earned. Principles and Range of Sentence [35] The maximum sentence for this offence is life imprisonment.

There is no minimum sentence prescribed. A conditionalsentence is not available due to the violent nature of the offence. [36] In coming to a determination of an appropriate penalty, I must consider and balance all the principles of sentence set out in ss.718, 718.01 and 718.1 of the Code. I have also considered s. 718.2(

e) which provides that all available sanctions, other thanimprisonment, that are reasonable in the circumstances should be considered for all offenders, with particular attention to thecircumstances of aboriginal offenders. [37] In this regard, I have considered R. v. Gladue, (SCC), [1999] S.C.J. No. 19, R. v. Wells, 2000 SCC 10, and R.v. Ipeelee and Ladue, 2012 SCC 13. [38] As was stated by the Supreme Court of Canada in R. v.

Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, at paragraph 82: 82 This Court has held on a number of occasions that sentencing is an individualized process, in which the trial judge hasconsiderable discretion in fashioning a fit sentence. The rationale behind this approach stems from the principle of proportionality, thefundamental principle of sentencing, which provides that a sentence must be proportional to the gravity of the offence and the degree ofresponsibility of the offender.

Proportionality requires an examination of the specific circumstances of both the offender and the offenceso that the "punishment fits the crime". As a by-product of such an individualized approach, there will be inevitable variation insentences imposed for particular crimes. [39] In R. v. Wells, supra, the Supreme Court addressed the application of s. 718.2(

e) when dealing with serious offences where theparamount principles of sentence are denunciation and general deterrence: 40 However, the scope of s. 718.2(e), as it applies to all offenders, restricts the adoption of alternatives to incarceration to thosesanctions that are "reasonable in the circumstances". Again, as was expressly stated in Gladue, the Court in no way intended to suggestthat as a general rule, the greatest weight is to be given to principles of restorative justice, and less weight accorded to goals such asdenunciation and deterrence.

Indeed, such a general rule would contradict the individual or case-by-case nature of the sentencingprocess, which proceeds on the basis of inquiring whether, given the particular facts of the offence, the offender, the victim and thecommunity, the sentence is fit in the circumstances. 41 I should take this opportunity to stress that the guidelines as set out in Gladue, and reiterated in the present appeal, are notintended to provide a single test for a sentencing judge to apply in determining a reasonable sentence in the circumstances. Section718.2(

e) imposes an affirmative duty on the sentencing judge to take into account the surrounding circumstances of the offender,including the nature of the offence, the victims and the community. 42 Notwithstanding what may well be different approaches to sentencing as between aboriginal and non-aboriginal conceptions ofsentencing, it is reasonable to assume that for some aboriginal offenders, and depending upon the nature of the offence, the goals ofdenunciation and deterrence are fundamentally relevant to the offender's community.

As held in Gladue, at para. 79, to the extent thatgeneralizations may be made, the more violent and serious the offence, the more likely as a practical matter that the appropriate sentencewill not differ as between aboriginal and non-aboriginal offenders, given that in these circumstances, the goals of denunciation anddeterrence are accorded increasing significance. [40] Crown counsel relied on: R. v. Browning, 2006 BCSC 1478; R. v. Chiasson, 2007 BCCA 360; and R. v. Anderson, 2007 BCCA462. Although none of those offenders were aboriginal, these authorities are nevertheless of some assistance.

In each, the nature of theoffences involved the opportunistic robbery of strangers with a knife, without causing physical injury. The offenders were in their fortiesand had intellectual or other mental health challenges, were on parole, and had similar criminal histories. The sentences ranged fromfour to six years. [41] Defence counsel relied on R. v. Soosay, 2012 ABPC 220. That case involved a 19-year-old aboriginal male with FASD. Therobbery and break and enter were characterized by the court as thefts with aggravating features. He had a history which consistedprimarily of breaches of court orders.

A sentence of 10 months was imposed. [42] R. v. Sutherland, 2010 ONCJ 103, involved an aggravated home invasion and robbery, and other less serious offences. Theoffender was 26 and of aboriginal heritage, which was found to be a mitigating factor. He had a significant criminal history for assaultand was on probation for aggravated assault. A sentence of 30 months was imposed. [43] R. v. Ramalho, 2004 BCCA 617, involved a 20-year-old female who participated in a robbery at gunpoint in a parkade. She hada lengthy and serious criminal history. She also had been diagnosed as having FASD.

On appeal, a sentence of two years lessinstitutional incarceration was varied to a conditional sentence order, as her parents were prepared to support her in the community. [44] R. v. M.S.R., 2002 BCCA 268 , [2002] B.C.J. No. 845, involved a very serious aggravated assault by the accused on

his wife. He was aboriginal and lived in a remote community. He had prior convictions for violence. Due to fresh evidence, being significant efforts made by the offender towards his rehabilitation, and the support of a restorative justice committee in the community, a 20-month conditional sentence was imposed. [ 45 ] These authorities have assisted the court in determining an appropriate range of sentence, but of course each case turns on its particular circumstances and the particular circumstances of the offender. Analysis and Conclusion [ 46 ] Mr.

L.'s personal circumstances make it inappropriate and unrealistic to analyze his attitude, insight, or remorse in the same manner as would be the case for offenders who have intellectual and cognitive functioning within the normal range. [ 47 ] I am not able to factor a lack of such understanding or feelings into my decision as either aggravating or mitigating. In my view, it is proper to consider these issues only in the context of his prospects for rehabilitation and the risk he may pose to the safety of the public: see R. v.

Harper , 2009 YKTC 18 . [ 48 ] Having found that this offender's moral culpability and responsibility is greatly reduced due to his mental capacity, it makes the task of determining a just and appropriate sentence a difficult one in these circumstances: see R. v. M.N.J. , 2002 YKTC 15 . [ 49 ] I find that at this point in his life, Mr. L. presents as a person likely to reoffend violently and who is currently unable to self- regulate and control his behaviour. He has a limited ability to understand the consequences of his behaviour or to learn from it.

He has demonstrated an entrenched propensity for acting out violently on impulse to satisfy his desires for money and other property. [ 50 ] I find that the potential for his rehabilitation lies in the natural process of maturation, coupled with intensive treatment and programming.

As there is nothing in the evidence before me to suggest he is currently motivated to accept assistance and change his behaviour, I find there are limited prospects for his rehabilitation in the short term. [ 51 ] I also find that, due to his attitude and past inability to abide by terms in the community, it is highly unlikely he would succeed in a residential treatment program at this time in his life. [ 52 ] I have considered that this offence is not in the same category of seriousness as his previous offence. However, it is of particular concern that Mr.

L. chose to carry a knife when he ventured out into the community, and to wield that weapon which, in his hands, as we know from his previous offence, created the very real risk of serious harm to innocent persons. The need to protect the public must be given significant weight. [ 53 ] The nature of the offence requires that the principle of general deterrence also be met. [ 54 ] Regretfully, the principles of sentence as applied to this offence and this offender must result in a period of incarceration.

I find that all of the mitigating factors present in this matter, including that which flow from his experiences as an aboriginal person, are outweighed by the need to protect the public and separate this offender from society. [ 55 ] As there is no alternative to incarceration, I must consider the length of sentence which would be appropriate, given the reduced moral blameworthiness of this offender. [ 56 ] Having considered all of the circumstances of this offender and this offence, and having balanced all the principles of sentence, I conclude that he must be separated from society for a significant time. [ 57 ] What is not available is an alternative to incarceration in a mainstream institution.

What is needed to address the rehabilitation of this First Nations offender, and many other offenders who suffer from fetal alcohol syndrome disorder or other deficits in cognitive functioning, who find themselves in conflict with the law, is a specialized healing lodge where they can access and benefit from long-term programming specifically developed to meet their needs.

I have no such option available to me. [ 58 ] In determining the appropriate sentence, I have also taken into account that the programming available in a provincial institution is less likely to bring about the specific deterrence or rehabilitation of this offender. If there is to be any meaningful improvement for Mr. L., it is more likely to occur in a federal penitentiary. [ 59 ] As a society, we have failed Mr. L. He should have had the benefit of specialized care and education as a child. Through no fault of his own, he finds himself a young adult man who cannot function prosocially in the community.

We should all despair of and take responsibility for his unfortunate fate. [ 60 ] It is simply shameful that we continue to allow children and adults with such significant challenges to languish without specialized education and supports, with the almost inevitable result that they become enmeshed in the criminal justice system. [ 61 ] It is with a feeling of profound regret and sympathy, and with an acknowledgment of the inherent unfairness which has brought Mr. L. here today, that I impose a sentence of 34 months and one day.

He will be given credit for 10 months' time served and will serve a further two years and one day. [ 62 ] On the charge of assaulting a police officer, I impose a sentence of 60 days to be served concurrently. [ 63 ] On the charge of escaping lawful custody, I impose a sentence of 60 days to be served concurrently with the sentence for the robbery and assault. The latter sentence recognizes the totality principle. (REASONS CONCLUDED)