R. v. Field Date:, 2016 BCPC 456

Citation: R. v. Field Date: 20161207 2016 BCPC 456 File Nos: 208719-2C, 208719-4A, 208720-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NATHAN ROBERT WAYNE FIELD REASONS FOR SENTENCE OF THE HONOURABLE JUDGE WOLF Counsel for the Crown: S. Hamade Counsel for the Accused: M. Fingas Place of Hearing: Surrey , B.C.

Date of Hearing: December 7, 2016 Date of Judgment: December 7, 2016 [ 1 ] THE COURT: These are the reasons for sentence with respect to Mr. Nathan Robert Wayne Field. He has been found guilty of two offences on a multiple-count Indictment. The first offence is that on November 20th, 2014, that he did use a restricted or prohibited firearm and commit the robbery of a Jameel Dawood, contrary to s. 344(1) (

a) of the Criminal Code . The second offence, which I find him guilty of, comes from the same date of November 20th, 2014, and has to do with having his face masked during the commission of this indictable offence and that offence is contrary to s. 351(2) of the Criminal Code . [ 2 ] The Crown has tendered one exhibit. Included in that exhibit are a number of authorities which are tabbed and, also included in that exhibit is a written outline of their submissions and, lastly, in that exhibit is the criminal record of the accused, Mr. Field.

The Crown points to the different sentencing principles and objectives when we are talking about the fundamental purposes of sentencing. These principles, as outlined in paragraph 2 of Crown counsel's outline, is denunciation, deterrence, public protection, rehabilitation, reparation and the promotion of a sense of responsibility in offenders and an acknowledgment of the harm done to the victims or communities.

The sentencing process requires a delicate balancing and an over emphasis on one of these principles would be inappropriate. [ 3 ] Ultimately, it is 718 of the Criminal Code , that refers to the fundamental purpose of sentencing which is 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. Those principles that were outlined in the proposal of the Crown are found under 718.

The objectives listed in 718 of the Criminal Code are to denounce unlawful conduct, to deter the offender and other persons from committing offences, to separate offenders from society where necessary, to assist in rehabilitating offenders and as well, as mentioned in the Crown's submissions, to provide reparations for harm done to victims or to the community.

Also, to promote a sense of responsibility in the offenders and an acknowledgment of harm done to victims and to the community. [ 4 ] Any sentence imposed by the court needs to be proportional, that is, the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In the imposition of any sentence, the principle of restraint should be at the forefront of a judge's mind.

Ultimately, restraint can simply be stated as imposing the least onerous alternative appropriate in the circumstances. [ 5 ] I am given guidance when I look at s. 718(2) and, specifically, 718(2)(

e) of the Criminal Code in this case. Mr. Field self- identifies through his counsel as being an Aboriginal individual and 718(2)(

e) demands that the court fulfil its duty by taking into account the sentencing concept that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders with particular attention to Aboriginal offenders. In this case, I think Crown counsel and learned defence counsel have quite fairly agreed that in these circumstances imprisonment is a requirement. The minimum sentence for the firearm with a restricted or, in this case, prohibited weapon, being the shotgun, is a five-year sentence.

That does not mean that a sentence needs to be void of other considerations, whether they are aggravating or mitigating. Certainly, counsel for the defence was correct in submitting that a five-year minimum sentence already reflects the idea that a firearm was used in the commission of this offence. [ 6 ] In this particular case, after a trial, this accused was found guilty of participating in a robbery. Ultimately, he and another individual got into a taxi, came to the Surrey Central Motor Inn and went into the Surrey Central Motor Inn.

The co-accused wielded a shotgun that had been altered and, as a result of that alteration, it became a prohibited weapon. His co-accused aimed that prohibited weapon at the desk clerk. While this was taking place, Mr. Field, not in possession of that prohibited weapon, went around the counter where the desk clerk was sitting and grabbed the cash box. They both made their escape. On their escape, they attempted to get into the taxi that they had arrived in. However, the taxi driver had left the area thinking that 'something was up'.

These two accused individuals then went to a van and attempted to gain access to the van and leave in the van. [ 7 ] There were charges dealing with the robbery of that van and ultimately I found that the charges were not proven. Specifically, the identification of Mr. Field was not proven and, as a result, I do not take into consideration any of the circumstances of the attempt robbery of that van or carjacking. [ 8 ] I do point out for Mr.

Field's benefit that it is a bit disturbing that, in the circumstances, it appears by some evidence that there were some children in the van and, no doubt, they have also been greatly affected by the events that took place on that night. [ 9 ] Nevertheless, Mr. Field is to be sentenced simply for his participation in the robbery of the hotel. [ 10 ] He was not the individual that was holding the gun. He did get into a taxi and go to the hotel.

He went into the hotel with his co-accused who he knew was holding the gun. [ 11 ] Those are generally the circumstances of the offence. [ 12 ] The circumstances of this particular offender are complicated. Submissions include some of his background. He is a young man now. He was even younger at the time of the offence. His stepfather is of the Cree Nation and his stepfather had suffered abuse, both physical and sexual, while in a residential school. His mother, as well, I am told is a First Nations individual. [ 13 ] His upbringing was not the best upbringing, to say the very least.

He suffered abuse at the hands of any number of individuals, including sexual abuse at a very young age. He was exposed to alcoholism, physical abuse and other factors which, I think, quite properly fall under the concept of Gladue factors. [ 14 ] He has not had a good life. Although he does have good family ties. He has a number of siblings, some of which he feels close to and a mother that lives in the Abbotsford area not far from where he is being sentenced right now.

[ 15 ] I do take into account these factors. It is his right to have these factors taken into account by the sentencing judge. I take it from submissions of counsel, the idea of a pre-sentencing report that may have contained a Gladue component and an accompanying Gladue report, may have provided some background information. But it is Mr.

Field's wish to deal with these matters sooner than later. [ 16 ] I take it from submissions of counsel, part of the reason for that is that he has been in segregation and has suffered some health consequences of a prescribed medication overdose while he has been in custody. [ 17 ] I take into consideration that his time in custody has been long and his time in custody has not been easy.

I do not understand fully why he has been in segregation but I understand that segregation has a very strong effect on individuals and it is something which the Canadian courts have hoped that we would use less of. [ 18 ] Crown seeks a seven-year sentence and takes me through a number of ways how to get to that number. Five years ultimately for the minimum period of punishment for the firearms offence and an additional two years. It is possible for me to consider a seven- year sentence by imposing a five-year sentence plus a consecutive term for the masked offence. That is an available option to the courts.

The Crown submitted there has to be a message sent to the public that, if you are going to commit such a serious offence, there has to be consequences to the additional feature of being masked. [ 19 ] Defence counsel submits that a five-year sentence is appropriate. I am asked to take into consideration Gladue factors. Some of which I have outlined. Ultimately the law allows me to take into account what is called the moral blameworthiness of Mr. Field.

It is emphasized that to impose a seven-year sentence would be a significant sentence taking into consideration his current youth, his youth at the time of the offence, as well as the other mitigating factors. [ 20 ] Crown points to the aggravating features of the offence and specifically the use of the prohibited weapon. I have already covered this in dealing with the submissions of defence counsel.

It is true that the five-year minimum does reflect part of the severity of the prohibited weapon. [ 21 ] When I look at his criminal record, which, again, is attached as an exhibit, it is not the most disturbing record that has ever come before the courts. The Crown has taken me through it and has pointed out a pattern of behaviour that almost on each occasion when the accused was sentenced to a jail sentence and released, it was a very short time period after his release back into the community that he found himself back before the court.

I will not talk about his first sentence, which was a youth sentence in Fort St. John. I understand that Mr. Field was born in Prince George and spent much of his time being raised in Fort St. John. [ 22 ] On his record, there is a break and enter, a number of breaches, another break and enter in 2009, more breaches, a theft under in 2010 and I think one day after being released back into the community, ultimately, he pleads guilty to the offence of being unlawfully in a dwelling house. [ 23 ] The record continues with breaches and thefts until April 6, 2011, when he is sentenced for a robbery.

That offence date was February 18th, 2011. He received 800 days with 40 days' credit so a total sentence of 840 days which, by my recollection, by defence submissions was some two years, three months and perhaps 15 days, a federal sentence ultimately in the end. [ 24 ] He also on his record has an assault with a weapon.

I am told that had to do with a knife not a firearm and a wilfully obstruct, as well as another breach. [ 25 ] I take it implicit in Crown counsel's submission is that this young person before the court, and when I say young, I mean youthful in the sense that he is a young man, has had the opportunity to benefit from rehabilitative sentences. He has been placed on short periods of jail, short periods of probation and lengthy periods of jail, lengthy periods of probation and throughout that has still fought with addictions and still fought with the ability to abide by conditions.

That inability to abide by conditions is fairly apparent on the face of the record. In looking at his record, I do not think I need to condemn him for the rest of his life to an inability to do well. He is in custody now. He has had some addictions issues. He has been on the methadone program. By volunteering to participate in the methadone program, that tells me that he understands that part of the reason he has been in trouble and before the courts is because of the addictions issues. He appears to be a person who is willing to benefit from rehabilitative programming.

Maybe he just has not done as well as he had hoped to do in the past. [ 26 ] He had the ability to consider a challenge to the minimum punishment provisions when this sentencing started. It was my understanding that, as a result of his record, if the Crown wished to, they could be proceeding and the minimum sentence would be seven years. The Crown is not proceeding in this manner.

I take that as a mild recognition, too, that a seven-year sentence might, in the circumstances, have been appropriate or not but that the Crown wanted the court to take into account all the factors and not simply just impose a minimum sentence and not recognize factors such as Gladue factors. [ 27 ] I also take it that, by their submissions and their written authorities, that they agree the Gladue factors are something that need to be taken into account. [ 28 ] In short, Mr.

Field, I think that was a very fair approach and I think you are lucky that your counsel and the Crown counsel have agreed to this redesigning of the sentencing submissions. [ 29 ] Brogan was a case which was in the book of authorities by the Crown. It stands for the proposition that the range of sentence for a robbery in British Columbia is anywhere from two to nine years. I think it is fair to say that every individual's circumstances are unique and every crime is unique and when you try to balance the circumstances of the offender and the circumstances of the offence, the end result is going to be unique.

There is no one case that I can look to which is going to perfectly describe Mr. Field's background and circumstances. [ 30 ] In the end, I take into account the circumstances of this offence, the circumstances of Mr. Field, the ultimate waiver of his Gladue report and pre-sentencing report with Gladue component and submissions of his counsel that assisted me understanding some of his background.

[ 31 ] Ultimately, I find that an appropriate sentence is six years for the robbery with the firearm offence. [ 32 ] Part of the rationale for that is it is a five-year minimum for the firearm offence. That is if a person had no record and was unmasked and before the court, that is the sentence they would receive is five years. In your circumstance, you were masked and I think it is appropriate to take that into account as an aggravating circumstance. I also recognize it was available to me to impose a consecutive sentence.

It is quite common to impose consecutive sentences of one year to two years for being masked during the commission of these offences. I consider it more of an aggravating feature of the robbery. As well, while I think you have great potential of being rehabilitated, I cannot lose track of the fact that you have a criminal record with related robbery conviction on it as well as an assault with a weapon offence to do with the knife that I mentioned. [ 33 ] The breaches are understandable. It takes a long time to find your path through life when you are talking about rehabilitation.

I applaud you for trying to be in the recovery house in Prince George that your stepfather was running. Sadly, not all recovery houses are perfect and certainly that one seems to not have assisted you. I would emphasize to you that there are many other pathways and you have to find your own. [ 34 ] That being said, I believe the six-year sentence takes into account the circumstances of the offence, his criminal record, as well as the fact that he was masked during this particular offence.

I think his record also needs to properly reflect that he was masked intentionally during the commission of this offence and I believe a one-year concurrent sentence to that would properly reflect how serious I consider that aspect to be. [ 35 ] The end result is that I believe that this young man needs to work on his rehabilitative efforts. As time goes on he will have health issues to deal with. He has a future. I take into account what he has served. I give full credit for that and in the end it is going to be a six-year, what I call, global sentence and the time served will be subtracted from that.

In a moment, I will ask counsel to give those exact figures and in the end you will have a total remainder of sentence to serve. [ 36 ] There will be the s. 109 mandatory prohibition for life, firearms ban. [ 37 ] There will be a DNA order. [ 38 ] I am going to find that due to the amount of time that he has been in custody, that the victim fine surcharge may be imposed forthwith and that he is not in a position to pay it.

Ultimately, it will be one day deemed served which will run concurrent to the sentence that I have imposed. [ 39 ] Any questions with respect to clarification of the sentence, first of all, to the Crown? [ 40 ] MR. HAMADE: No, Your Honour, thank you. [ 41 ] THE COURT: Now, to defence? [ 42 ] MR. FINGAS: No, thank you, Your Honour. (REASONS FOR SENTENCE CONCLUDED)