2018 MBPC 45, 2018 MBPC 45

Cite 2018 MBPC 45 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) P. Cooper for the Crown ) - and – ) ) Brett James Sutherland ) J. Kostiuk for the Accused ) ) Judgment delivered: November 19, 2018 L.M. Martin, P.J. INTRODUCTION [ 1 ] Brett Sutherland (Sutherland) is before the Court for the sentencing of numerous Criminal Code ( Code ) offences committed between November 30 and December 1, 2016, specifically: • two counts of housebreak enter contrary to s. 348(1) (

a) of the Code ; • theft under $5000 contrary to s. 334 (

b) of the Code ; • uttering threats contrary to s. 264(1) (

a) of the Code ; • motor vehicle flight from police contrary to s. 249.1 of the Code ; • dangerous operation of a motor vehicle contrary to s. 249(1) of the Code ; • possession of methamphetamine contrary to s. 4(1) of the Controlled Drugs and Substances Act ( CDSA ). [ 2 ] The Crown proceeded by indictment on all charges except the drug possession. The Crown argues for a sentence of nine years of jail, reduced to just over seven years for totality, less time in custody.

Defence counsel argues for three years of custody, less time in custody, followed by two to three years of supervised probation. [ 3 ] At issue is the characterization of the offences, Sutherland’s moral blameworthiness and his prospects for rehabilitation, whether the sentences should attract concurrent or consecutive sentences, and whether Sutherland should receive the full benefit of enhanced pre-sentence custody. PROCEDURAL BACKGROUND [ 4 ] Sutherland’s matters were initially set for a four day trial from December 15 to December 20, 2017.

Due to a variety of issues that arose on the first day of trial, the matters did not proceed. Instead, on December 18, 2017, Sutherland pleaded guilty to the offences of uttering threats, flight from police and dangerous operation, as well as possession of methamphetamine. On December 19, 2017, his trial on the remaining charges proceeded by way of agreed statement of facts and exhibits. Sutherland testified, was disbelieved, and was convicted of those offences. [ 5 ] A Pre-Sentence and Gladue report ( Gladue report) was ordered with an anticipated sentencing date of February 7, 2018.

That report was not prepared on time and the sentencing was remanded to March 19, 2018. On that day, Sutherland discharged his lawyer. Once the Legal Aid formalities, including an appeal, were perfected so that new counsel could be appointed to represent Sutherland, a new sentencing date of June 28, 2018 was chosen. Unfortunately, Sutherland was not transported. Ultimately, the sentencing hearing took place on August 30, 2018. THE OFFENCES [ 6 ] The agreed facts and factual findings are set in my unreported trial decision of December 20, 2017. The following is offered by way of

summary and background to the offences.

[ 7 ] On November 1, 2016, Sutherland committed his first offence of housebreak enter with intent at the Doell residence in Dufferin, Manitoba. Sutherland entered the Doell residence through the unlocked front door and Mr. Doell came home with his family to find Sutherland inside. Surprisingly, Mr. Doell drove Sutherland to Winnipeg, dropping him off at the Grant Park Shopping Center at Sutherland’s request. Not far from there, Sutherland committed his second housebreak and enter into an attached garage on Beiko Avenue where he stole the homeowners’ 2008 Lexus.

He next made his way to Park Lane East where he stole licence plates which he affixed to the stolen Lexus. [ 8 ] Sutherland then drove to the Behavioural Health Foundation (BHF) at approximately 3:30 a.m., on December 1, 2016, as he wanted to see his girlfriend who was residing there for treatment. When he was denied entry by BHF staff, he threatened them saying “get out of the way you fucking goof or I’ll fucking kill you”, before leaving in the stolen Lexus. [ 9 ] At 12:50 p.m. on December 1, 2016, Sutherland was pursued by members of the Winnipeg Police Service (WPS) in the stolen Lexus.

The pursuit was called off after two minutes for safety reasons. During that pursuit, Sutherland collided with two officers’ vehicle. He collided with another cruiser as well as other civilian vehicles during the next pursuit which began at 12:58 p.m. Once again, the pursuit was called off for safety reasons. [ 10 ] At 1:30 p.m., Sutherland was apprehended at a former guardian’s residence. He was found in possession of a small amount of methamphetamine. THE OFFENDER [ 11 ] Sutherland comes before the Court at the age of 37 with a criminal record that spans 20 years.

It is related and it includes recent convictions. Notably, he has eleven break and enter convictions, one prior drug possession conviction and one dangerous operation conviction entered as a youth close to 20 years ago. [ 12 ] His last conviction before these offences was July 26, 2016, when he was sentenced to what appears to be a global sentence of 137 days plus the equivalent of 283 days pre-sentence custody and two years of supervised probation.

He was released into the community and under supervision by probation services at the end of October, 2016, just over a month before these offences occurred. [ 13 ] Most of Sutherland’s convictions have resulted in mid to high provincial sentences. Only once has he served a penitentiary sentence. Only three times has the sentence included probation, the last being from July 26, 2016. [ 14 ] Sutherland has had a complicated and chaotic upbringing. His father, who is Métis, was not raised within his culture as he was adopted as an infant.

No other information was available about his Indigenous heritage other than that Sutherland was never exposed to it. He has however expressed a desire to learn more, particularly because his partner is Indigenous. [ 15 ] Sutherland’s father was mentally, emotionally and physically abusive to his entire family. When Sutherland was 10 years old, his mother ended the marriage, taking her youngest son with her and leaving Sutherland with his abusive father.

Sutherland’s relationship with his mother and younger brother became distant and around the age of 15, he eventually moved in with another family, which also suffered from domestic violence. The male guardian in this family introduced Sutherland to drugs at the age of 16, and criminality at the age of 17. The male guardian would plan break and enters for Sutherland to commit, which he did. According to Sutherland, this male guardian also sexually assaulted him, a disclosure Sutherland had not previously made.

Interestingly, the Gladue report writer notes that immediately upon making this disclosure, “Sutherland appeared more relaxed, open and engaged”. The writer also notes that Sutherland displayed physical signs consistent with the impact of trauma when making the disclosure. [ 16 ] Drug abuse is a high-risk area for Sutherland. Having been introduced to drugs at the age of 16, he has experimented with a wide variety of drugs including Percocets and methamphetamine.

While he has participated in treatment, it is noteworthy that he was taking methamphetamine on November 30, 2016. [ 17 ] Sutherland is currently in a long-term relationship with a woman who also suffers from addictions. It is the reason she was at BHF the night he committed these offences. The two share a six year old child who was apprehended by Child and Family Services for three years but is now back in the care of her mother. [ 18 ] The Gladue report writer assesses Sutherland as a very high risk to reoffend.

However, she parses that risk out, noting that it is his companion associations which place him at a very high risk. His anti-social patterns, alcohol and drug problems, leisure and recreation, family and marital, education and employment and criminal history place him at a high risk whereas, his pro-criminal attitude is only assessed as a medium risk factor. However, the Gladue report writer states “in spite of his very high risk level and his lengthy criminal history, this writer believes the subject is a viable candidate for a community disposition.

This may in some part be due to his willingness to accept accountability, acknowledge the need for immense changes to his thinking patterns, and his change of attitude towards custodial programming, which was noted by [Brandon Correctional Centre] staff.” IMPACT ON THE VICTIMS [ 19 ] Despite the Crown’s efforts to contact the multiple victims, no formal victim impact statements were provided to the Court. SENTENCING PRINCIPLES [ 20 ] The purpose, objectives and principles of sentencing are set out in s. 718 and following of the Code . Briefly, these sections

require a court to consider and weigh the circumstances of the offence and the offender so as to arrive at a proportionate sentence that takes into consideration aggravating and mitigating factors as well as parity. [ 21 ] Counsel agree that given the nature of the offences, denunciation and deterrence are primary sentencing objectives. They differ however as to the degree of emphasis on rehabilitation. [ 22 ] Crown counsel submits that Sutherland is an incorrigible criminal offender who is not entitled to leniency nor belief.

He submits that not only is his offending from November 30 to December 1, 2016, extremely dangerous offending, it also displays a very high degree of moral blameworthiness. Defence counsel submits that the Court should view Sutherland’s offending as rooted in his drug addiction which he is finally ready to address. [ 23 ] The Crown provided two cases on the principles related to concurrent or consecutive sentences and totality. Neither counsel provided any case law on the applicable sentencing principles or ranges for each of the offences. I think it is helpful to set those out.

Housebreak and Enter [ 24 ] The offence of breaking and entering a dwelling-house is a strictly indictable offence punishable by a maximum sentence of life imprisonment. As noted in Clayton C. Ruby et al., Sentencing , 8th ed. (Markham: LexisNexis Canada Inc., 2012) at para. 23.458: …The statutory maximum is often interpreted as a reflection of the extreme seriousness with which Parliament, and hence the courts, will regard the offence of housebreaking.

It is a crime which is seen to violate the sanctity of the home and to present danger to life through the potential for violent confrontation with occupants. [ 25 ] R v. Blacksmith , 2018 MBCA 81 indicates that this offence generally attracts a sentence in the range of two years: [18] The offence of breaking and entering a dwelling-house is a serious offence punishable by a maximum sentence of life imprisonment. The accused properly acknowledges that breaking into a dwelling-house generally attracts a sentence in the range of two years.

In fact, that has been the case since the late 1970’s (see R v Hickey , 1979 CarswellMan 269 (CA) , which was a unanimous decision rendered by a five-member panel; and see more recently R v Duerksen , 2012 MBCA 41 at para 4 ; Burnett at para 11; and R v Beardy , 2018 MBCA 52 at para 2 ). The starting point assumes a mature accused with previously good character and no criminal record and is adjusted based on the aggravating and mitigating factors. Dangerous Operation and Fight from Police [ 26 ] Dangerous operation of a motor vehicle and flight from police are both hybrid offences.

Because Crown counsel proceeded by indictment, they are punishable by a maximum five year sentence. [ 27 ] R. v. Hiebert , 2015 MBPC 34 does a very comprehensive and useful analysis of the sentencing principles and range of sentences in dangerous driving and flight from police officer cases. (See paras. 20-29). The sentencing range is wide, taking into account the wide spectrum of moral blameworthy conduct.

Theft under $5,000 and Utter Threats [ 28 ] Having proceeded by indictment on the offences of theft under $5,000 and utter threats, the maximum sentence is two years of custody for theft under, and five years for uttering threats. Possession of methamphetamine [ 29 ] Methamphetamine is a

Schedule 1 drug under the CDSA. Because Crown counsel proceeded by way of

summary conviction, and it is a first offence proceeding, the maximum sentence is a $1,000 fine or six months of imprisonment or both. AGGRAVATING AND MITIGATING CIRCUMSTANCES OF THE OFFENCES [ 30 ] The aggravating circumstances of the offences lie mainly in Sutherland’s dangerous and wanton offending conduct.

However, there are also the following: • The housebreak and enters occurred either while the victims were home or reasonably be expected to be home; • The flight from police officer and dangerous operation involved multiple victims and multiple properties, occurred over a protracted period of time and over a distance that included residential areas; • The offences involved a degree of planning as each was designed to further one of Sutherland’s goals to: get dry clothing and transportation; remain undetected; not get apprehended; • Sutherland was on supervised probation. [ 31 ] There are very few mitigating circumstances:

• Sutherland entered guilty pleas for the driving offences and the utter threats; • He has expressed a degree of remorse. SUTHERLAND’S MORAL BLAMEWORTHINESS [32] As every sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1of the Code), the Court must also assess Sutherland’s moral blameworthiness. [33] As noted by Gascon J. in R. v.

Lacasse, 2015 SCC 64: [130] Whereas the gravity of the offence concerns the harm caused by the offender to the victim as well as to society and its values, theother aspect of the principle of proportionality involves factors that relate to the offender’s moral culpability: The “degree of responsibility of the offender” as used in s. 718.1 certainly includes the mens rea level of intent, recklessness or wilfulblindness associated with the actus reus of the crime committed. For this assessment, courts are able to draw extensively on criminaljustice principles.

The greater the harm intended or the greater the degree of recklessness or wilful blindness, the greater the moralculpability. However, the reference in s. 718.1 is not simply to the “mens rea degree of responsibility of the offender” at the time ofcommission of the crime. Parliament evidently intended “degree of responsibility of the offender” to include other factors affectingculpability. These might relate, for example, to the offender’s personal circumstances, mental capacity or motive for committing thecrime.

Where else does the Code provide for an offender’s degree of responsibility generally to be taken into account? Here, too, theanswer takes us to s. 718.2.

Section 718.2 directs the sentencing judge to take into consideration a number of principles. All are either components of theproportionality principle or properly influence its

interpretation and application. Either way, all are relevant in determining a just sanctionthat satisfies the proportionality principle. [Citation omitted.] (R. v. J.L.M.A., 2010 ABCA 363 , 499 A.R. 1, at paras. 58-59; seealso Nasogaluak, at para. 42; M. (C.A.), at para. 40.) [34] The assessment of Sutherland’s moral blameworthiness entails not only a consideration of his intentional risk taking, it alsoincludes an assessment of his personal circumstances, encompassing his disclosure of sexual abuse as a teenage boy. [35] I find Sutherland’s intentional risk-taking in the commission of the offences to be high.

Each one of Sutherland’s offences isindicative of actions taken to further his own wishes or goals at that particular moment with a lack of regard for others. He entered theDoell’s house because he wanted warm clothing; he broke into the attached garage on Beiko Avenue because he needed a car. Hisoffending is also indicative of forethought: he needed a vehicle to get to BHF; he wanted to make sure he was not caught driving a stolenvehicle so he stole another licence plate which he affixed to the stolen vehicle.

It is further indicative of a lack of care about the safetyand feelings of others: he uttered threats to staff at BHF even though he knew his request to see his partner was absurd; he drove in such amanner as to damage people’s property and put their lives at risk. [36] Even though Sutherland had consumed drugs the day he committed his offences, there is nothing to suggest it deprived him ofhis ability to make calculated decisions. I agree with defence counsel’s submission that none of his offences are rational.

However, thenature of his offences are consistent with his past offending and his lack of regard for others. [37] That is not to say that Sutherland’s life has not been fraught with tremendous trauma and abandonment. It has, and in a verysignificant way. The Crown acknowledges Sutherland’s past trauma but submits not only that it is not the worst trauma courts can see,but also that the Court should not accept his disclosure of alleged sexual abuse. He argues that the allegations have not been proven.

Hefurther argues that Sutherland’s conduct, namely, not sharing the disclosure with his family once disclosing it to the Gladue report writerand hiding from the police in the home of his alleged aggressor the day he was arrested for these offences, should raise concerns aboutthe veracity of the allegations.

Defence counsel urges the Court to accept the disclosure given the ring of truth to it, noting that the lackof further disclosure and continued rapport with his aggressor are irrelevant, constituting stereotypical myths. [38] S. 724(1) of the Code provides: In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and anyfacts agreed on by the prosecutor and the offender. [39] S. 724(3) of the Code clarifies the rules of evidence where there is a dispute with respect to a fact relevant to the determinationof sentence: Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, (

a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence wasadduced at the trial; (

b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it; (

c) either party may cross-examine any witness called by the other party; (

d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying onit in determining the sentence; and (

e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous convictionby the offender.

[40] The Gladue report was entered as an exhibit in the sentencing hearing. The probation officer who authored it, was not called toprovide oral evidence and the Crown did not request this. The Court must therefore make a credibility assessment of Sutherland’sdisclosure based on the other evidence in the proceedings. That credibility assessment is difficult as Sutherland’s presentation iscontradictory. [41] As already noted, the Gladue report writer made observations about Sutherland’s demeanour when he made the disclosure,noting that it was consistent with someone who has suffered trauma.

The Court also notes that the evidence as to Sutherland’scriminality and drug abuse started around the time he began living with his alleged aggressor, which supports his disclosure to somedegree. [42] There are, however, general issues of credibility regarding Sutherland. Not only did this Court not find his evidence credible attrial, the Gladue report also contains comments made by Sutherland that are not true. For example, his comments that he once gotkicked out of BHF because WPS kept doing curfew checks which disrupted the staff and clients, are untrue.

The truth is that Sutherlandgot kicked out because he was breaching rules at BHF. [43] Despite these credibility concerns, I do accept Sutherland’s disclosure about the sexual abuse he suffered. Not only are theobservations of the probation officer very persuasive, the information provided by Sutherland about the abuse does have a ring of truth toit. [44] In the end, I find that the assessment of Sutherland’s moral blameworthiness must be nuanced to adequately balance hisconduct with his personal circumstances, particularly since there are prospects of rehabilitation as will be discussed later.

CONCURRENT VERSUS CONSECUTIVE [45] Crown counsel submits that each of these sentences should be served consecutively given that each constitutes a separateoffence and for which there is no nexus. [46] Defence counsel submits that the Court should consider that some of Sutherland’s conduct is consistent with the underlyingrationale for imposing concurrent sentences for offences characterized as a spree, given his addiction issues. [47] Offences that can be characterized as a “spree” have been the subject of judicial commentary. More recently, R. v.

Kozussek,2013 MBCA 52, discussed what is captured by a “spree”: [8]…robberies, and the concurrent and consecutive sentencing regimes, have been discussed by this court in many recent decisions.

InWozny, MacInnes J.A., for the court, explained spree offences (at paras. 50-52): Dealing more specifically with what this and other courts have described as a crime spree carried out for the purpose of feeding anaddiction, Chartier, J.A., wrote in Arbuthnot 2009 MBCA 106 , [2009 MBCA 106, 245 Man.R. (2d) 244] (at paras. 24-25): In my view, in light of the fact that there were a series of similar, continuous and recurring offences with the same gravamen within asustained and relatively short period of time, the accused’s offending conduct with respect to the robbery offences can be viewed assufficiently interconnected to form a single criminal transaction or crime spree and thereby attract concurrent sentences.

This court, as well as other appellate courts, has reached similar conclusions with respect to interrelatedness when dealing with offenderswho commit a series of robberies to feed an addiction. For the most recent examples, see R. v. N.A.S. (2007), 2007 MBCA 97 ,220 Man.R. (2d) 43; 407 W.A.C. 43; 2007 MBCA 97; R. v. Thompson (J.M.) (2008), 2008 BCCA 350 , 259 B.C.A.C. 160; 436W.A.C. 160; 2008 BCCA 350, and R. v. Lagimodiere (S.M.E.) (2008), 2008 MBCA 137 , 231 Man.R. (2d) 261; 437 W.A.C.261; 2008 MBCA 137.

The rationale for permitting a sentencing judge to impose in his/her discretion a concurrent sentence, notwithstanding the fact that “spreeoffences” appear to be separate and distinct, is that the sentencing judge may conclude that the accused was acting under an unbrokeninfluence of addiction, such that the offences could be seen or interpreted as forming a single, continuous transaction.

While there has been no uniform definition of what is meant by a crime spree fuelled by or carried out to feed an addiction, it wouldseem that it is a series of similar and recurring offences which are committed, if not continuously, within a sustained and relatively shortperiod of time, for the purpose of obtaining resources necessary to feed an addiction. [9]While the robberies in this case appear to fit the description of “spree offences,” there is an element of discretion given to thesentencing judge regarding his determination of which regime should apply (see Wozny at para. 47), or whether the facts indicate acombination of the two, but, whichever regime is chosen, the reasons for that choice should be clear and transparent. [48] More recently in R. v.

D.C,. 2016 MBCA 49, the Manitoba Court of Appeal appears to have limited a “spree” to cases ofrobberies committed over a short period of time to feed an addiction: [42] The accused’s submission that the offences involving his children were akin to a “spree” is inappropriate. When this Court haspreviously described offences as “sprees”, it has been limited to cases of robberies committed over a short period of time to feed anaddiction. That is not the case here. There was no evidence of addiction.

In this regard, I would adopt the view articulated by theAlberta Court of Appeal in R v CGJL, 2013 ABCA 140 , 544 AR 360 (at para 19): “As a word for these crimes, ‘spree’trivializes them and is plainly not a proper term to use.” [49] Though there is no dispute Sutherland is an addict, the gravamen of his offending, as it relates to the housebreak enters are notto feed an addiction. Further, though Sutherland may have been consuming methamphetamine on the night and day in question, there is

no indication that his mental faculties were impaired to such a degree that he was not aware of what he was doing. Quite to the contrary,he was able to convince the first victim to drive him from Dufferin to Winnipeg and he stole a licence plate off of a vehicle to avoiddetection. [50] For these reasons, this Court does not find that Sutherland’s offending constitutes a “spree”. [51] As for whether the sentences should be consecutive or concurrent, s. 718.3(4) of the Code provides:

(4) The court that sentences an accused shall consider directing (

a) that the term of imprisonment that it imposes be served consecutively to a sentence of imprisonment to which the accused is subjectat the time of sentencing; and (

b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively, including when (

i) the offences do not arise out of the same event or series of events, (ii) one of the offences was committed while the accused was on judicial interim release, including pending the determination of anappeal, or (iii) one of the offences was committed while the accused was fleeing from a peace officer. [52] As noted in R. v. Arbuthnot, 2009 MBCA 106, paras. 19-21: [19] The decision as to whether or not consecutive sentences should be imposed is not always as straightforward as it may seem… [20] So the question remains: when is it appropriate to order consecutive instead of concurrent sentences? In R. v.

E.T.P., 2001 MBCA194, 163 Man.R. (2d) 113, Philp J.A. noted (at para. 24): Principles to guide the sentencing judge in determining whether to order sentences to be served concurrently or consecutively are notreadily discernible from the jurisprudence. .... [21] Indeed, Clayton C. Ruby et al., Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008) comments on the inadvisability oflisting factors with respect to this "thorny problem" (as to when to order concurrent or consecutive sentences), recognizing that it is fact-driven and therefore must be adapted to each case (at paras. 14.9-14.10, 14.12): ....

Indeed, it has been thought "impracticable and undesirable" to attempt to lay down comprehensive principles according to which asentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. One cannot minimize the difficulty of deciding when there is a sufficiently close nexus to fit within the rule [regarding when concurrentor consecutive sentences should be ordered].

That thorny problem has not been made easier by the judicial use of a multitude of phrasesto express the same concept: "a break in the transaction"; "really separate invasions of the community's right to peace and order,notwithstanding that they are historically interdependent"; "one multi-faceted course of criminal conduct"; "one transaction"; "part of thesame transaction or endeavour"; "closely linked together"; "one continuous criminal act"; "one simple enterprise"; "single criminaladventure"; and "reasonably close nexus".

Ultimately, the tests are very flexible, and it becomes a fact-specific inquiry whether the connection between two offences is sufficientlyor insufficiently close to merit either consecutive or concurrent sentences. [emphasis added] [53] As regards more specifically concurrent or consecutive sentences for dangerous operation and flight from police, Hiebertreviews the case law at paras. 35-42. Referring to R. v.

Roberts, 2005 ABCA 11, the court in Hiebert noted that flight from police officersentences should generally be consecutive sentences as the offence is usually committed to avoid detection of another offence. (See:Roberts, paras. 32-36). As noted by the same Court of Appeal in R. v.

Cardinal, 2011 ABCA 195 at paras. 3-4, “the sentence for flightfrom the police should only be consecutive if the sentence for the dangerous driving conviction is less than the sentence for flight fromthe police” and that “the sentencing regime should not create an incentive to flee from the police once another crime has beencommitted.” The court noted however that: [5] We do not read Roberts as holding that a concurrent sentence is unavailable in cases like this, where the actus reus overlaps, so longas the sentence for flight from the police exceeds the sentence for dangerous driving, and the global sentence is otherwise fit. [54] In the end, the court found that it was not an error to impose consecutive sentences based on the facts of the case before it.

Thiswas the case in R. v. Witvoet, 2013 ABCA 76 where the court held: [4] Although a concurrent sentence may be available where there is an overlap in the actus reus for the dangerous driving and flightoffences, it is not an error in principle to impose consecutive sentences: R v De Souza, 2011 ABCA 220 at para 3, 510 AR 228;R v Cardinal, 2011 ABCA 195 at para 5, 14 MVR (6th) 195.

It was within the trial judge’s discretion to give consecutivesentences for these offences; since much of the dangerous driving in this case occurred while the appellant was not being activelypursued by the police, we see no error in her decision to do so. The overall sentence was proportionate and well within the appropriaterange. [55] Roberts and subsequent case law from the Alberta Court of Appeal do not appear to have been considered by our ManitobaCourt of Appeal. [56] In my view, all of the offences, with the exception of the driving offences, should be consecutive sentences.

There is no nexusbetween the offences other than Sutherland’s desire to further his own goals. As for the driving offences, the facts disclose that the

dangerous driving arose out of the flight from police. There is therefore, a strong nexus such that those two sentences should beconcurrent to one another, but consecutive to the others. TOTALITY [57] As noted in s. 718.2(

c) of the Code and the case law (See: R. v. Wozny, 2010 MBCA 115; R. v. Arbuthnot (S.M.), 2009 MBCA106; R. v. Taylor, 2010 MBCA 103), when the court imposes consecutive sentences, including a series of offences sentenced on aconsecutive basis and others sentenced on a concurrent basis but consecutive to others forming part of the overall series of offences, itmust apply the totality principles, meaning that a: 59… “last look” be taken to ensure that the total or cumulative sentence is a fit sentence in that it does not exceed the overall culpabilityof the offender.

Again, due regard is to be given to the “intentional risk-taking of the offender, the consequential harm caused by theoffender, and the normative character of the offender’s conduct” (see M. (C.A.), at para. 80). 60…in addition, the intended total or cumulative sentence may offend the totality principle if it is substantially above the maximumsentence available for that type of crime or if its effect is a “crushing sentence,” that is, a sentence not in keeping with the offender’srecord and future prospects. (Wonzy) [58] In this case, and as will be apparent when imposing sentence, I do find that the sentence imposed on Sutherland needs to beadjusted to account for totality as I do find that it would be excessive in all the circumstances.

Although I have found Sutherland’s moralblameworthiness to be on the higher end and he has an extensive record, this combined sentence will be significantly greater than anyprevious sentence.

There is as well, the prospect of rehabilitation that should not be dismissed, though admittedly, that prospect can bestbe described as burgeoning. [59] The Gladue report suggests that Sutherland continues to minimize and rationalize his conduct, apparently finding it acceptableto enter someone’s home because he was cold or to damage property in his flight from police because they “pushed him onto the lawns,”failing to recognize that it was his initial criminal activity that is to blame.

Likewise, Sutherland seems to fixate on what he characterizesas police “harassment” as a result of police keeping an eye out for him in the community, dismissing any suggestion that would not bethe case if he did not have such extensive involvement with the criminal justice system. [60] Sutherland does express some remorse, stating that he has been selfish, justifying his conduct to suppress his conscience andwanting to make things right this time. His stated goal is to not return to custody.

He recognizes he will need the support and supervisionof a probation officer to be successful in his commitment to remain crime-free and addiction-free. It is also noteworthy that he hasreached out to his mother from custody, apologizing in a letter for the “things he caused.” [61] The Gladue report writer also notes a “substantial shift in his Stage of Change in comparison to previous incarcerations”. Thisis the first time Sutherland has not had any institutional incidents other than for a breach charge for contacting his partner, a conditionwhich has since been deleted from his court order.

He has also spent his time upgrading his education with the aim of securingemployment upon release so he can support his family. And yet, these positives need to be weighed against what appears to be somereticence in making real rehabilitative change. For example, despite saying he needed the support and assistance of a probation officer,Sutherland had still not engaged in any custodial programming or activities at the time the Gladue report was written, stating “I just wantto do my time”.

That said, he did request a referral to the Thinking Awareness Program and at the sentencing hearing, Sutherlandindicated that he has been doing counselling, something that was not further commented on by counsel. [62] In the end, notwithstanding Sutherland’s lack of concrete rehabilitative steps, I accept that Sutherland is open to change and hasbegun to make that change. Nonetheless, it is also clear that change is recent and uncertain.

While he professed to having a paradigmshift and understanding the harm he causes through his offending, and he has changed his behaviour in the institution, he has been slowto engage in programming and he has misrepresented facts to the probation officer, such as the reason for leaving past programming atBHF. Time will tell if Sutherland is prepared to fully engage in rehabilitation. It is however a very good sign that he has taken the stepshe has, and that he is open to working towards rehabilitation. PRE-SENTENCE CUSTODY [63] Sutherland has been in custody since his arrest on December 1, 2016.

However, while in custody, he pleaded guilty to a breachof probation and received a custodial sentence which reduces his time in custody by 30 days. As of today’s date, he has therefore spent atotal of 718 days in custody. [64] The Crown agrees that Sutherland should receive enhanced credit for this time at a rate of 1:1.5 but says that should only be thecase up to and including the date he discharged his former counsel. After that time, he submits that Sutherland should only receive crediton a 1:1 basis.

Defence counsel takes objection to this submission, saying there is no basis to deny Sutherland enhanced credit. [65] As noted in R. v. Bonneteau, 2016 MBCA 72 at para. 17: [17] The reasons for granting enhanced credit for PSC are well established, and include the fact that conditions in PSC are often harsherthan in post-sentence incarceration. In addition, enhanced credit can be granted to account for the fact that time in PSC is not consideredin determining parole eligibility or entitlement to early release. See R v Summers, 2014 SCC 26 at paras 21-30, 71, [2014] 1SCR 575.

Ultimately, the decision as to the appropriate amount of enhanced credit, if any, is discretionary. [66] There is nothing to indicate Sutherland experienced harsh remand conditions or that he was denied access to programming. There is also no evidence to suggest that he has intentionally delayed proceedings. The record of proceedings, as set out earlier, is quite

to the contrary. It is true that Sutherland discharged his former counsel but defence counsel indicated it was for valid reasons he preferred not to “get into” on the record. [ 67 ] For those reasons, and considering that he has been doing well in custody, Sutherland is entitled to enhanced credit at the rate of 1:1.5. Sutherland therefore has an effective 1077 days of time in custody.

SENTENCE [ 68 ] Considering the foregoing, I find that the appropriate sentences are as follows: Offence Sentence Concurrent or Consecutive Reduced for Totality Less Time in Custody Go Forward Housebreak in Dufferin 2 years Consecutive 18 months 11 months, 15 days (230 days x 1.5=345 days) 6 months 15 days Housebreak on Beiko Ave 2 years Consecutive 18 months 11 months, 15 days (230 days x 1.5=345 days) 6 months 15 days Theft Under 2 months Consecutive 1 month 27 days (18 days x 1.5) 3 days Utter Threats 2 months Consecutive 1 month 15 days (10 days x 1.5) 15 days Dangerous operation 18 months Concurrent to one another but consecutive to others 18 months 11 months (220 days x 1.5 = 330 days) 7 months Flight from Police 18 months Concurrent to one another but consecutive to others 18 months Possession 15 days Consecutive 15 days 15 days (10 days x 1.5) 1 day TOTAL 5 years, 10 months,15 days 4 years, 8 months, 15 days 2 years, 11 months, 27 days (718 days x 1.5 = 1077 days) 1 year, 8 months, 18 days [ 69 ] As detailed in the above chart, I find that the appropriate sentence combined is 5 years, 10 months, 15 days, reduced for totality to 4 years, 8 months, 15 days.

Subtracting his time in custody by an equivalent amount of 2 years, 11 months and 9 days, his total sentence on a go forward basis is 20 months and 18 days or 1 year, 8 months and 18 days.

Given that this effective sentence falls below two years, a three year period of supervised probation will follow with the following conditions: • Keep the peace and be of good behaviour; • Appear before the Court when required to do so by the Court; • Notify your Probation Officer or the Court before you change your name or address, and promptly tell your Probation Officer or the Court if you change your job or occupation; • You must report to the Provincial Director or designate by calling 1-800-334-8792 within 24 hours of release from custody.

After you first report, your must continue to report and be supervised by your Probation Officer when and how you are told by your Probation Officer; • You are to attend, participate and complete all assessments, counselling and programming as directed; • You are not allowed to consume alcohol, other intoxicating substance, or drugs except in accordance with a medical prescription; • You are not allowed to possess any weapon; • You must not contact or communicate with: Staff Sgt R. Harding and Inspector C.

Baldwin except during the course of their duties; Ronald Doell; Marilyn Grant; Soungkon Han; Sui Man Simon Tse and Damian Ikeokwu; • You must not attend within 200 metres of their residence, schooling, employment or place of worship. [ 70 ] There are also the following ancillary orders: • Housebreak enter with intent in Dufferin: Primary designated DNA order and s. 109 lifetime weapons prohibition; • Housebreak enter commit on Beiko Avenue: Primary designated DNA order and s. 109 lifetime weapons prohibition; • S. 4(1) possession: s. 16.1 CDSA order of forfeiture. [ 71 ] As the Crown did not seek any other discretionary ancillary orders the Court is declining to issue any.

The victim fine

surcharge and costs are to be spoken to by counsel. “Original signed by” MARTIN, P.J.