R. v. Sawatsky, 2022 BCSC 625

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Sawatsky, 2022 BCSC 625 Date: 20220414 Docket: 16490 Registry: Powell River Regina v. Jason William Sawatsky, also known as Jason William Sawatsky Before: The Honourable Justice Basran Oral Reasons for Sentence Counsel for the Crown: L.T. Phipps Counsel for the Accused: C. Hodson Place and Date of Hearing: Powell River, B.C. April 14, 2022 Place and Date of Judgment: Powell River, B.C. April 14, 2022 [ 1 ] Mr. Sawatsky was charged and convicted of four offences:

a) Count 1 - On September 11, 2019, he broke and entered 9295 Kristensen Road in Powell River, BC, and stole six firearms located therein, contrary to s. 98(1) of the Criminal Code , R.S.C. 1985, c. C-46 ;

b) Count 2 - On September 11, 2019, he possessed instruments suitable for breaking into a place under circumstances that give rise to a reasonable inference that the instruments were used or were intended to be used for such purpose, contrary to s. 351(1) of the Criminal Code ;

c) Count 3 - On September 12, 2019, he committed mischief by wilfully damaging a wall of the Powell River RCMP Detachment, contrary to s. 430 of the Criminal Code ; and

d) Count 4 - On September 11, 2019, at or near Powell River, BC, he unlawfully possessed a controlled substance: cocaine, contrary to s. 4(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 . [ 2 ] At the conclusion of the evidentiary phase of the trial, counsel for Mr. Sawatsky invited the court to enter convictions on Counts 3 and 4. [ 3 ] In oral for reasons for judgment delivered on August 20, 2021, Mr. Sawatsky was convicted on all four counts in the indictment. [ 4 ] Following trial, bail continued. Mr.

Sawatsky last reported to his bail supervisor on September 13, 2021, but did not report on September 22, 2021 and, subsequently, the breach of bail was submitted on October 12, 2021. He was arrested on December 13, 2021, convicted for breach of bail in February 2022, and sentenced to three days. [ 5 ] Regarding the circumstances of the offence, on September 11, 2019, Mr. Sawatsky broke into the Kristensen Road residence. It was usually occupied but no one was there at the time of the offence. Mr. Sawatsky used a pry bar and flathead screwdriver and stole six firearms from a locked gun cabinet. These included:

a) a 357 Magnum handgun, a restricted firearm;

b) a 3030 rifle;

c) a 303 hunting rifle;

d) a two gauge shotgun; and

e) two .22 calibre rifles. [ 6 ] The Crown and defence made a joint submission on sentencing. They agree that Mr. Sawatsky should be sentenced to:

a) Five years on Count 1. This is the most serious charge and I note that Mr. Sawatsky was convicted under s. 98 of the Criminal Code – break and enter to steal a firearm, a more serious charge than break and enter under s. 348 of the Criminal Code ;

b) One month on Count 2, concurrently; c) 15 days on Count 3, concurrently; and

d) On Count 4, the Crown suggests four months concurrently in light of Mr. Sawatsky’s previous drug-related convictions; the defence seeks 60 days concurrently on the basis that this was simple possession. [ 7 ] On Count 4, I am satisfied that a sentence of four months concurrently is appropriate in light of Mr.

Sawatsky’s three previous drug-related convictions, including the most recent one in June 2007, when he was convicted of possession of drugs for the purpose of trafficking and sentenced to six months. [ 8 ] The Crown and defence set out the aggravating and mitigating factors in this case and I accept that their joint submission takes these factors into account. [ 9 ] I note that Mr. Sawatsky has 25 convictions dating back to 1995, including eight for break and enter. His last conviction for break and enter was in October 2017.

He was sentenced to three years. [ 10 ] In my view, the proposed sentence is not a marked departure from the range provided by the case law such as R. v. Powis , 2007 BCCA 108 and R. v. Burnett , 2017 MBCA 122 . This latter case specifically deals with the s. 98 offence and the circumstances are similar to those in this case. [ 11 ] The jointly-proposed five year custodial sentence does not, in my view, arouse public considerations nor does it bring the administration of justice into disrepute.

Taking into account the purposes of sentencing as set out in ss. 718 , 718.1 , and 718.2 of the Criminal Code and the joint submission, I find that the purposes of sentencing are fulfilled by the suggested sentence. [ 12 ] Mr. Sawatsky, please stand. Sir, you are sentenced to:

a) five years on Count 1;

b) one month on Count 2 concurrently; c) 15 days on Count 3 concurrently; and

d) four months on Count 4 concurrently.

e) You are also required to provide a DNA sample because s. 98 is a primary designated DNA offence and you are subject to a lifetime firearms prohibition pursuant to s. 109 of the Criminal Code . [ 13 ] On the calculation of the days, counsel agree that Mr. Sawatsky served 136 days so he receives credit for 204 days at a rate of 1 to 1.5. As he used three days for his conviction for breach of bail mentioned earlier, he will serve 1624 days (1825 days - 201 days) on Count 1. [ 14 ] The sentences on Counts 2 to 4 will be served concurrently with Count 1. [ 15 ] This matter is concluded and we are adjourned. “Basran J.”