R. v. Brotherston Date:, 2017 BCPC 161

Citation: R. v. Brotherston Date: 20170517 2017 BCPC 161 File No: 170105-1 Registry: Victoria File No: 19616-1 Registry: Western Communities File Nos: 37897-2-B; 39195-1; 39261-1; 39284-1; 39297-1; 39391-1; 39488-1; Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL TERRANCE BROTHERSTON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. P. MacCARTHY

Counsel for the Crown: B. Tomlin Counsel for the Defendant: J. Watt Place of Hearing: Duncan , B.C. Date of Hearing: April 18, 2017 Date of Judgment: May 17, 2017 INTRODUCTION [ 1 ] THE COURT: Michael Terrance Brotherston is before the court, having been charged with a number of break and enter offences, stretching from the period of October 21, 2016, through to approximately November 11, 2016. The offences are either pursuant to s. 348(1) (

a) of the Criminal Code , that is the break and enter of a dwelling with intent to commit an indictable offence therein, or the companion charge, which is pursuant to s. 348 (a)(

b) of the Criminal Code , that is the break and enter of a dwelling and committing an indictable offence therein. [ 2 ] Crown and defence agree that Mr. Brotherston, who is a young man, must serve a custodial sentence for these offences to which he has entered pleas of guilty. What is at issue is the duration and the nature of that sentence, and whether or not that sentence should be served in a federal penitentiary or in a provincial jail. [ 3 ] The task of this court is to impose a fit sentence on Mr. Brotherston (the “Offender”). CIRCUMSTANCES SURROUNDING THE OFFENCES [ 4 ] Specifically, Mr. Brotherston is charged, and entered guilty pleas, as follows:

a) On Information 39261-1 with an allegation that on or about October 21, 2016, he did break and enter a dwelling house at 3415 Shawnigan Lake Road and did commit an indictable offence therein, namely, theft;

b) On Information 19616-1 that he, on or about October 26, 2016, at or near Langford, in British Columbia, did break and enter a dwelling house at 2873 Canyon Park Place with intent to commit an indictable offence therein;

c) On Information 39488-1, that he, on or about October 29, 2016, at or near Cowichan Bay, British Columbia, did break and enter a dwelling house at 1779 Wilmot Road, and did commit an indictable offence therein, namely, theft;

d) On Information 39195-1, that on November 3, 2016, at or near Mill Bay, British Columbia, he did break and enter a dwelling house at 679 Bay Road, and committed an indictable offence therein, namely, theft;

e) On Information 39297-1, specifically on Count 2 of that Information to which Mr. Brotherston has entered a guilty plea on the allegation that on November 4, 2016, at or near Duncan, in the Province of British Columbia, he did break and enter a dwelling house at 3604 Gibbins Road and committed an indictable offence therein, namely, theft;

f) On Information 39391-1, a guilty plea to an allegation that on or about the 11th of November 2016, at or near Cobble Hill, in the Province of British Columbia, he did break and enter a dwelling at 1250 Fisher Road, and committed an indictable offence therein, namely, theft. [ 5 ] Mr. Brotherston has entered these pleas of guilty with respect to all of these matters prior to any trial of any of these charges. [ 6 ] Crown has proceeded by way of indictment on each of these matters. [ 7 ] Crown has outlined, specifically, the circumstances with respect to each of these break and enter offences.

There is no need for me to provide the exact particulars; however, having reviewed the circumstances which have been provided by Crown, which are not disputed and which I accept as being factually correct for the purposes of this sentencing, there are a number of common features with respect to these break and enter offences. [ 8 ] As previously noted, the offences occurred during a relatively short period of time between October 21, 2016 and November 11, 2016.

Each of the offences took place, as indicated by my recital of the locations, from Duncan throughout the south end of the Cowichan Valley and into the southern part of Vancouver Island, including the Western Communities. [ 9 ] The offences occurred in unoccupied residential premises. The break-ins occurred during daylight hours in a timeframe between 6 o’clock in the morning and approximately 6:15 at night.

Entry was gained either through breaking windows, removing screens, or gaining entry or access through doors, I take it, through jimmying or breaking through the door. [ 10 ] In each case, the victims were strangers to Mr. Brotherston. [ 11 ] In each case, his fingerprints were left both inside and outside of the various premises. The Offender rifled through bedroom areas and targeted jewellery, coin collections, currency, cameras, and electronic products during the course of his intrusion into these houses.

Little, approaching none, of the property taken in the course of the break and enters was actually recovered. The jewellery that was taken in many cases had significant sentimental value. In one case, there was a diamond ring with a value approaching some

$10,000. [ 12 ] The reasonable inference I can draw is that, in addition to the actual intrusion, there was a considerable amount of inconvenience caused to each of the victims, as well as significant feelings of having been violated and victimized by these intrusions. [ 13 ] The intrusions, although multiple in nature, showed a certain amateur aspect to them.

Clearly, an opportunistic advantage was taken of the homeowners who were absent from their premises; however, the fact that fingerprints of the Offender were found at the various break in sites clearly indicated a degree of a lack of sophistication to these offences. [ 14 ] The motive for these offences is described more fully in the circumstances of the Offender which I will deal with later. However, it appears that the prime motive was to secure property that could be easily disposed of in order to produce sufficient funds for the Offender to meet and satisfy his drug addiction.

HISTORICAL CIRCUMSTANCES OF THE OFFENDER [ 15 ] In this case, I do not have the benefit of a pre-sentence report or a forensic assessment. For reasons that will become obvious, the availability of those resources for the court would have been very useful. I would hope that if Mr. Brotherston ever comes before the court again, some effort will be made to procure those types of reports in order to more fully understand and deal with some of the underlying issues that this Offender has experienced throughout his life. [ 16 ] What I do have are fairly detailed submissions from defence counsel with respect to Mr.

Brotherston. The information I have before me indicates that he is 22 years of age. He was born in Duncan, British Columbia, and raised in the Lake Cowichan area. He came from a family which suffered a great deal of dysfunction. The Offender's father died when the Offender was only age seven. He was raised by a mother under challenging circumstances. The Offender has seven siblings that include six half-siblings and one full sibling. He is the youngest. [ 17 ] When he was approximately age 11, he was taken into foster care for a period of some 13 months.

It was during that period of time, it is reported, that he suffered significant sexual abuse. He was apparently then returned to his family when he threatened to run away from the foster home. He then came back into the care of his mother and he lived with her thereafter, as I understand it, until approximately age 19.

At that point, his mother passed away. [ 18 ] In direct submissions to the court, the Offender indicated that he was also adversely influenced by a brother who not only physically abused him but also exposed him to drugs and to other criminal activity. [ 19 ] Upon the death of the Offender's mother, a significant amount of blame was placed upon him by other members of the family for his mother's death, which, according to other family members, was precipitated by the antisocial behaviour of the Offender. [ 20 ] The Offender has an aunt who is essentially his only positive family support.

I understand that she faces some significant issues at present and is suffering from a life-threatening disease. [ 21 ] There has essentially been a lack of guardianship and support for the Offender during his life. This negatively precipitated itself by way of his addiction to crack cocaine at age 13. [ 22 ] By age 16, the Offender was admitted into residential drug addiction treatment for a period of 6 months. Apparently, he did reasonably well at that and then was able to enjoy a year of sobriety from drugs.

However he has, since that period of time, fallen back into drug addiction. [ 23 ] At age 18 he suffered from an overdose of drugs. By age 19, he was addicted to heroin; that became apparent shortly after his mother had passed away. [ 24 ] His sexual orientation is homosexual. Accordingly, that has had a significant impact on his life and has certainly been an issue for him when he has been in custodial settings as a result of his criminal behaviour. Admitted Criminal record [ 25 ] His criminal record is very significant and quite alarming. The admitted adult record is before the court.

His first involvement with the adult criminal system appears to have been as a result of offences starting in May of 2013. [ 26 ] A series of offences occurred during the month of May 2013. Those matters came before the court on the 16th of July, 2013. There were a total of seven break and enter offences that were dealt with at that time. The sentence which was imposed upon the Offender at that time was a conditional sentence order for a period of one year which applied to one of the offences which occurred on May 9, 2013.

Then, the balance of the offences was dealt with again by way of another conditional sentence order which appears to have been running on a concurrent basis. [ 27 ] By September 2013, the Offender was in breach of that conditional sentence order and it was suspended for a period of seven days.

By December 10, 2013, a few months later, the conditional sentence order was again suspended for 21 days, and then in June 2014, the conditional sentence order was terminated, and the remaining 74 days was served in a custodial setting. [ 28 ] Subsequent to the dispositions arising from the first series of seven break and enter offences, the Offender was again back before the court on the 10th of December 2013. It appears that an offence dating back to April 2013 was before the court at that time.

Again, it was a break and enter offence and a one-day concurrent sentence was imposed upon him for it. [ 29 ] In October 2014, the Offender was back before the court dealing with another couple of offences. They were break and enter offences.

[ 30 ] The first one, dating back to March 4, 2014, was dealt with by way of what was effectively a 3 month sentence and a same type of offence committed on March 5, 2014, was dealt with at the same time by way of a jail sentence which would have been an effective sentence of 4.5 months. In both cases there was pre-sentence time available for credit. [ 31 ] On February 27, 2015, the Offender was convicted of possessing a weapon for a dangerous purpose. That resulted in a 3 month custodial sentence and 18 months of probation.

It is noteworthy that probation was also attached to the previous offences dating back to the dispositions in October 2014. [ 32 ] Then there is another significant series of charges and convictions for Mr. Brotherston. These related to a series of breaches which occurred on April 20, 2015, and April 25, 2015. There were three breaches of probation orders. That series of offences was dealt with by way of a custodial sentence of seven days with time credited. [ 33 ] The Offender was back before the court on October 21, 2015, for a further breach of a probation order for which he received 14 days.

Also, a number of other offences were dealt with at the same time. Those were two additional breaches of probation orders. Again, the sentence was 14 days. [ 34 ] At the same time, there was a further disposition of a break and enter offence. That offence garnered the Offender an effective sentence of 540 days. However, it was combined with a number of other offences all dealt with at the same time.

Those included: a further breach of undertaking of mischief under $5,000; possession of stolen property under $5,000; wilfully resisting or obstructing a peace officer; and then convictions for two more break and enters which occurred on the 24th of June 2015 and the 26th of June 2015. For those offences, there appears to have been an additional 540-day sentence; that is, approximately 18 months for each.

All of those sentences ran on a concurrent basis. [ 35 ] The most recent matter that has brought the Offender to court is the offence of possession of a controlled substance dated November 12, 2016, which was dealt with on December 6, 2016; that resulted in an effective 9 day custodial sentence, on a time-served basis. [ 36 ] Overall, the record indicates convictions for five prior break and enters, three breaches or suspensions of conditional sentence orders, six breaches of probation orders, one breach of an undertaking, plus the other offences, including the possession of stolen property, possession of a dangerous weapon, and possession of a controlled substance as well as the mischief charge.

UPDATED CIRCUMSTANCES and Attitude OF THE OFFENDER [ 37 ] Based on the submissions that I have heard from defence counsel, as well as direct representations made by the Offender to the court, since going into custody on November 12, 2016, the Offender has been at the Vancouver Island Regional Correctional Centre. [ 38 ] During his stay in that facility, he has taken steps to deal with his heroin addiction. He is receiving medication for that purpose. He also has been taking steps to deal with his lack of education. He has completed his British Columbia Adult Graduation Diploma.

From the transcript of his grades, he achieved what is referred to as an “honour standing” as of January 2017. [ 39 ] He has also been attending a number of other courses. In addition to his education courses, he has taken what is called the ESS (Employability Skills Program) which he completed in March 2017. He has taken the ESS Healthy Relationships Program, which he completed in March 2017. He has completed the ESS Substance Abuse Education Program which he also completed in March 2017.

He has taken the ESS Living Skills, Units 1-5, again completed in March 2017. [ 40 ] In addition to the self-improvement programs and the programs that deal with substance abuse, the Offender has also, apparently, been in contact with and received some guidance to kindle his spirituality. He now indicates through direct submissions to court, and through counsel, that he is an adherent to the Christian faith. [ 41 ] He also has met a person and has now, apparently, formed a strong, romantic relationship with that individual.

His same sex partner, as I understand it, who is not incarcerated but rather living in the community, comes from a very supportive family. The indication is that the family of the partner is both supportive of the Offender in an emotional sense but also is prepared to provide the Offender with a form of employment once he has re-joined the community. [ 42 ] The indication, both through counsel as well as directly from the Offender, is that he is remorseful for having committed these offences. He has insight into his offences.

He wishes to enter into a program, known as the Guthrie House Program, at Nanaimo Regional Correctional Centre in order to deal with his offending behaviour and, in particular, with his offending behaviour that arises from his addiction to drugs. [ 43 ] The other indication I received directly from the Offender is that he describes himself now as a “man of God,” and that he is promising that we will never see his face again in court or at what he referred to as the “cop shop.” He has also pledged himself to leading a drug-free life.

Position of Crown on Sentencing [ 44 ] The sentencing position being advanced by Crown in this case emphasizes denunciation and deterrence. Given the significant criminal background that this young man has accumulated within the criminal justice system since becoming an adult, the Crown says that the appropriate sentence would be a federal sentence of 42 months on each of the offences, to be served on a concurrent basis, with a deduction of the available credit for pre-sentence custody.

[ 45 ] That sentence, says Crown, will provide a measure of protection to the community from the offending behaviour of Mr. Brotherston. Because it is a federal sentence, there would not be any additional community supervision other than what may result from his parole. [ 46 ] A probation order is not available for the sentence that is being proposed by Crown. Case Authorities Relied Upon by Crown [ 47 ] Crown has placed before the court the following case authorities for consideration: 1) R. v. Thomas , 2009 BCCA 233 , a decision of our Court of Appeal; 2) R. v.

Groleau , 2010 BCCA 363 , again a decision of our Court of Appeal; and 3) R. v. Penney , 2010 BCCA 307 , once again a decision of our Court of Appeal. [ 48 ] These decisions, in Crown's submission, specifically establish an appropriate range of sentences for individuals who have committed a significant number of break and enter offences, and specifically, for individuals who have significant criminal records. [ 49 ] The decision of R. v.

Thomas was a Crown appeal of a sentence imposed by the sentencing judge, being one year of imprisonment followed by one year of probation on four counts of break and entering into a dwelling house and committing a theft therein. [ 50 ] In this particular case, the accused was of aboriginal heritage, 36 years of age, with 23 prior criminal convictions, including ten for breaking and entering and five others for possession of stolen property or for theft.

His most recent conviction immediately preceded the offence in question at which time he received an effective sentence of 29 months on one count of break and enter.

At trial, Crown sought a 4 year sentence and then, on appeal, Crown sought a 4 year sentence and the accused was seeking a sentence of 2.5 years. [ 51 ] Based on the analysis contained in that decision, the court allowed the appeal to the extent of vacating what was deemed to be an illegal probation order, increased the sentence to 4 years on each count to be served on a concurrent basis with one another but consecutive to another sentence that the accused was serving and which was imposed in April 2007. [ 52 ] The decision of R. v. Groleau again was an appeal of a sentence.

The sentencing judge had sentenced the accused in that case to 36 months in custody. He reduced it to 22 months after giving credit which, at that time, was on a double-time basis or on a credit for double the time served presentence. [ 53 ] The accused in that case sought to appeal the sentence and sought a conditional sentence order in order to avail himself of mental health treatment.

The accused in that case had what was described as an "uninterrupted record." It consisted of 58 convictions prior to April 19, 2010, including 38 prior break and enter convictions, two attempted break and enter convictions, six theft convictions and six convictions for possession of stolen property. [ 54 ] The Court of Appeal noted in Groleau that the sentencing judge had the benefit of a pre-sentence report which set out several of the background factors which therefore were in front of the sentencing judge.

At the conclusion of the reasons for judgment, noting that the trial judge was of the view that it was likely that the accused would continue to offend, the Court of Appeal dismissed the appeal, and the sentence rendered in the first instance was upheld. [ 55 ] The decision in R. v. Penney dealt with an appeal of a sentence imposed consisting of 3 years of incarceration on one count of break and enter of a dwelling place. There was a guilty plea proffered in that particular case. There was a very significant criminal record for this accused.

He had between 16 or 17 convictions for various types of break and enter offences. In addition to those, the convictions included: fraud, trafficking and possession of a narcotic, (although the narcotic offences were quite dated) mischief and theft. [ 56 ] The accused in that case had previously served a 4 year incarceration sentence on each of the six counts of break and enter and theft, running on a concurrent basis. [ 57 ] The Court of Appeal was dealing with the issue of whether or not the 3 year sentence on a single count was a fit sentence. Having regard to the fact that the accused, Mr.

Penney, was a mature man; that among his prior offences he had a long record for similar types of offences; and having regard for the seriousness of the break and enter offences, the Court of Appeal held that the sentence that was imposed could not be said to be unfit. [ 58 ] In coming to that conclusion, one of the persuasive factors is referred to in paragraph 13, wherein the court says, in part, as follows: In R. v.

Arsenault , 1999 BCCA 578 , this Court said as to the seriousness of breaking and entering: [7] It sometimes seems to be lost sight of that a break and enter of residential property is a very serious offence from the point of view of the victims of that offence. It can in some circumstances have a shattering effect upon people but, short of those extreme cases, it is a significant invasion of their privacy and of their sense of having a refuge that is immune from intrusion.

It is not suggested by the Crown, and I do not suggest, that it was wrong for the judge in February to agree to the compassionate and constructive disposition which was proposed then. But in view of Mr. Arsenault's utter failure to carry through with his assurances, it was clearly wrong to dispose of the April 13 charge as was done on July 22, 1999. The sentence of one day is virtually derisory and meaningless.

If the Crown at trial had asked for a sentence in a range beyond four years, I would have given serious consideration to imposing such a sentence in order to provide some substantial period of protection to the public. However, four years is within the range of fitness. In

respect of the April 13 offence, I would grant leave to appeal, set aside the sentence of one day, and impose a sentence of four years. Iwould issue a warrant of committal in respect of that sentence. POSITION OF DEFENCE ON SENTENCING OF THE OFFENDER [59] At the initial hearing for sentencing held on April 18, 2017, the submission made by defence was that the appropriate sentencein this case would be a 32 month sentence less available credit of 8 months.

That would result in a sentence of 24 months. [60] It is defence's submission that the sentence should be 2 years less a day in order to permit the Offender to serve the balance ofhis sentence in a provincial jail. [61] As I previously mentioned, part of the sentencing plan proposed by defence is that the Offender in this case would apply to getinto the Guthrie House Program. [62] The Guthrie House Program is one that is known to this court. It is an innovative program which has a reputation for successfulrehabilitation of offenders. It is a program that requires individualized consideration for admission.

As I have often said to individualswho have expressed a wish to enter into that program, it is a difficult program to gain entrance into and it is an easy program to be kickedout of if an individual fails to abide by the philosophy and the conditions of that particular program. [63] However, it does have an excellent record for reducing recidivism of individuals, many of whom have had serious involvementwith the criminal justice system for many years. [64] One of the focuses on the Guthrie House Program is it is designed to assist individuals reintegrating back into the communityon a constructive and productive basis. [65] Accordingly, it is that program which defence counsel says is particularly important for this individual before the court,especially given that this Offender is a young person who has, fairly recently during his remand custodial stay, taken appropriate stepson his own behalf to start his rehabilitative journey. [66] The significant emphasis is placed by defence upon the court crafting a sentence in such a fashion as to ensure that theprogramming available in the provincial jail system can be accessed.

It is submitted that the provincial programming is more attuned towhat is required for this particular individual, and, further, that there is a greater ability to ensure safety of the Offender while in theprovincial jail system, especially in light of his youth and his sexual orientation. [67] Fundamental to the submissions made by defence is that much of the criminal behaviour of this Offender is tied to his seriousand long-standing drug addiction. [68] The factors that the court is being urged to place particular emphasis on, in addition to a measure of denunciation anddeterrence, are the rehabilitative factors.

Defence points specifically to the following factors that are to be addressed in the sentence: therelatively young age of this Offender, being in his early 20s; what previously I had referred to as the drug addictions which have drivenhis life; and both his need and his desire for rehabilitation at this point, specifically through the Guthrie House Program. [69] In addition to the sentence that is being proposed, which will permit the Offender to serve his custodial time in a provincialsetting, I am also being urged to utilize a probation order to assist in the continuing rehabilitation of the Offender.

In defence'ssubmissions, it should be what was referred to as a "lengthy" probation order. When I asked defence counsel directly as to what hewould interpret “lengthy” to mean, I was told that a probation order in the range of between 2 and 3 years should be considered by thecourt. CASE AUTHORITIES RELIED UPON BY THE OFFENDER [70] Defence has referred the court to three authorities as follows: 1) R. v. Gill, [2006] B.C.J. No. 519, 2006 BCCA 127, a decision of our Court of Appeal; 2) R. v. Preston, (BC CA), [1990] B.C.J. No. 2886, again, a decision of our Court of Appeal; and 3) R. v. Dulude, [2008] B.C.J.

No. 722, 2008 BCSC 510. This is a decision of Justice S.R. Romilly of our Supreme Court of BritishColumbia. [71] The decision in R. v. Gill is relied upon for the proposition that the objectives of denunciation and specific and generaldeterrence do not require a maximum sentence, and further that, for younger offenders generally, rehabilitation holds out the best long-term prospect for the protection of the public. [72] The decision in R. v.

Gill was an appeal from a 5 year sentence of imprisonment for robbery and one year consecutiveimprisonment for using an imitation firearm while committing the offence of robbery at a convenience store. [73] The Court of Appeal noted that the record of the appellant in that case indicated that he did not respond well to sentenceleniency, and it was that factor which was key to the decision of the sentencing judge when imposing that sentence. [74] The majority decision made the following observation at paragraph 16: I think that it was an error in principle for the sentencing judge to conclude that deterrence and the protection of the public required a"maximum emphasis" on incarceration in this case.

As the Supreme Court of Canada emphasized in R. v. Proulx, 2000 SCC 5 ,[2000] 1 S.C.R. 61, incarceration generally fails to rehabilitate offenders and reintegrate them into society. For younger offendersgenerally, rehabilitation holds out the best long term prospect for protection of the public. For a young person, maximum sentences may

undermine prospects of rehabilitation. Despite the paucity of background information given to the sentencing judge, the prospects of rehabilitation could not be ignored in view of his age and limited record. The objectives of denunciation and specific and general deterrence did not require a maximum sentence of incarceration. [ 75 ] As a result of that analysis, the Court of Appeal held that the global sentence of 6 years imprisonment was excessive and unfit.

Accordingly, it granted leave to appeal and allowed the appeal to the extent of reducing the sentence on Count 1, the robbery, from 5 years to 3 years, thereby imposing, in effect, a 4 year global sentence. [ 76 ] The decision in R. v. Preston is a decision of Justice Josiah Wood (as he then was) of the Court of Appeal, and a former and recent member of our court.

This decision is relied upon by defence with respect to the issue of sentencing of persons who are a subject of significant addiction. [ 77 ] The decision of Justice Wood emphasizes that there may be a short-term protection for the community by sentences of incarceration with respect to persons who are addicted to drugs and feed that drug addiction through criminal behaviour. However, in the words of Justice Wood, at page 8, he states as follows: What then is the proper approach for the court to take when sentencing in a case such as this?

When the benefit to be derived to society as a whole, as a result of the successful rehabilitation of a heroin addict, is balanced against the ultimate futility of the short-term protection which the community enjoys from a sentence of incarceration, I believe it is right to conclude that the principle of deterrence should yield to any reasonable chance of rehabilitation which may show itself to the court imposing sentence.

To give the offender a chance to successfully overcome his or her addiction, in such circumstances, is to risk little more than the possibility of failure, with the result that the cycle of addiction leading to crime leading to incarceration will resume, something that is inevitable, in any event, if the chance is not taken. On the other hand, as has already been pointed out, if the effort succeeds the result is fundamentally worthwhile to society as a whole. [ 78 ] It is that concept and approach that defence says should guide the sentence in the case before me. [ 79 ] The final case of R. v.

Dulude is factually different than the case presently before me. It does involve a robbery charge perpetrated by a relatively young offender. This case is relied upon by defence with respect to the fact that, what is referred to as a prompt guilty plea should be taken into consideration as a mitigating factor (see paragraphs 27 to 30 inclusive). [ 80 ] The second factor that is relied upon by defence arising from this particular case is the effect that an accused's previous record should have on any sentencing.

The thrust of the decision in Dulude on this point is that a person should not be punished twice for the same offence, although the past criminal record of the accused should be considered in imposing a sentence (see paragraphs 49 to 52 inclusive). [ 81 ] Justice S.R. Romilly notes that the fundamental principle of proportionality requires that the sentence be proportionate to the gravity of the offence and the degree of the responsibility of the offender. A prior conviction cannot, therefore, justify a disproportionate sentence. The authority relied upon by Romilly, J. for that principle is R. v.

Angelillo , 2006 SCC 55 . PURPOSES, OBJECTIVE AND PRINCIPLES OF SENTENCING [ 82 ] Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence and the specific circumstances of the Offender (see R. v. Shoker , 2006 SCC 44 , at paragraph 14 , and R. v.

Angelillo (supra) , at paragraph 22). [ 83 ] As the sentencing judge, I must direct myself to consider all the principles of sentencing contained in the Criminal Code , but also to be mindful that, depending on the nature of the offence committed, certain principles will receive more emphasis than others (see R. v. McCormick , 2006 ABCA 410 , at paragraphs 9 to 12 ). [ 84 ] The purposes and principles of sentencing are found in ss. 718 to 718.2 of the Criminal Code . These sections codify these principles and plainly state the intention and rationale for imposing particular sentences. [ 85 ]

Section 718 of the Code outlines the fundamental purpose of sentencing as follows: The fundamental purpose of sentencing is to protect society and 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 that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the Offender and other persons from committing offences; (

c) to separate Offenders from society, where necessary; (

d) to assist in rehabilitating Offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in Offenders, and acknowledgment of the harm done to victims or to the community. [ 86 ]

Section 718.1 directs that a sentence must be proportionate to the gravity of the offence and the degree of the offender's responsibility. [ 87 ]

Section 718.2, under the heading of "Other Sentencing Principles" states, in part, that a court that imposes a sentence must also take into consideration the following principles:

(

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the Offender, and, without limiting the generality of the foregoing ... (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, ... shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar Offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all Offenders, with particular attention to the circumstances of Aboriginal Offenders.

OTHER RELEVANT PROVISIONS OF THE CRIMINAL CODE [ 88 ] I note that with respect to the sections that are relevant to the charges before me, namely s. 348(1)(a), that is break and enter with intent to commit an indictable offence, and s. 348(1)(b), break and enter and committing an indictable offence, that these offences, because they are in relation to a dwelling-house, are themselves indictable offences under s. 348(1) (d), for which there is no minimum sentence, but that there is a possibility of a life sentence of imprisonment for these offences.

A discharge under s. 730 of the Criminal Code and a conditional sentence order under s. 742.1 are no longer available under these sections. [ 89 ] There is a possible requirement for s. 109, a mandatory firearms order, and there is also a possible s. 491, a mandatory weapons forfeiture order, that runs with these offences. Hence, it is clear that, as noted in R. v. Penney , these are serious offences and both Parliament as well as the courts have dealt with them in such a fashion.

ANALYSIS [ 90 ] The Offender in this case, clearly at an early stage in his life, has embarked on what can be properly characterized as a life of crime. [ 91 ] He has had little in the way of guidance or support from family members. He has been victimized by other individuals in his life, including family members; however, until recently he has demonstrated little in the way of an ability or inclination to rehabilitate himself.

He has also, very quickly after being released on previous occasions and after serving significant sentences, lapsed back into both drug addiction as well as criminal behaviour. [ 92 ] A fit sentence in this matter before me for the number of offences, the type of the offences, and the repetitive nature of these offences clearly requires a sentence which will offer society a measure of protection and will serve as a form of significant denunciation and deterrence for the Offender. [ 93 ] Accordingly, a lengthy custodial sentence is warranted.

As I indicated at the outset, it is the crafting of that sentence which is the difficult task left to this court. [ 94 ] Having heard submissions from counsel and based on all of the information before me, I have considered both the aggravating and the mitigating circumstances. I have also taken into account the victim impact statement obtained from one of the victims of the break and enters perpetrated by the Offender and the resulting negative impact suffered by the victim. Aggravating and Mitigating Factors [ 95 ] The following are what I accept as aggravating factors: 1.

The extensive number of identical type of offences committed by the Offender, during his relatively young life measured chronologically; 2. The fact that he committed the series of offences which are presently before me shortly after his release from his previous custodial sentences, that release having occurred approximately in July 2016, and while the Offender was bound by a probation order; 3. The fact that he really has distinguished himself as a career criminal, having followed that path through most of his adult life, without any material breaks or pauses in that criminal behaviour; 4.

The fact that he has, until very recently, shown little interest in the nature of seeking to rehabilitate himself in a positive fashion; 5. The impact of his criminal behaviour on some of his victims. While I do not have an extensive number of victim impact statements (in fact, limited to one) I can safely infer that what is described by the one victim, Ms. Meers, is likely what others have also endured as a result of these criminal offences. [ 96 ] In her victim impact statement, Ms. Meers indicates that she is now hyper-cautious in her home.

She often fears leaving it, with a feeling she did not adequately secure it. She feels insecure while in the home. It has had a negative impact on her family. Now, she is hyper-alert before unlocking the door and continues to be cautious when leaving the home also fearing that when she returns home, she

will encounter another break and enter and possibly what she refers to as encountering and surprising a burglar in her house. [ 97 ] Sixth, I accept as aggravating, as has our Court of Appeal, that these are types of offences which very negatively impact on the community. [ 98 ] With respect to mitigation, I accept the following as being mitigating factors: 1. The guilty pleas entered at a relatively early stage with respect to all of these offences. These have saved multiple trials for these offences. 2. The relatively young age of this Offender. 3.

That he has been burdened and shaped by his drug addiction since a very early age. 4. His very difficult and very unfortunate upbringing during which he has endured a lack of family guidance or support, and with the resulting intervention of the Ministry of Children and Family. 5. The general lack of positive family direction and support experienced, with the early loss of his father and with a mother obviously overburdened with other responsibilities; 6. The sexual abuse that he suffered while in foster care. 7. The Offender’s recent active steps to deal with his addictions and to improve himself; 8.

His insight into the effect that his offences have had on others. 9. I accept as genuine his direct statements to the court of remorse for having committed these offences. 10. Then the final mitigating factor is that he appears to have support in the community once he returns from completing his custodial sentence.

Other Present Sentencing Considerations and Concerns [ 99 ] I have significant concerns, based upon his past criminal record, that if this Offender simply serves a custodial sentence and re- enters into the community without a significant degree of community supervision and access to services, he is likely to re-offend within fairly short order. [ 100 ] In my view, what is going to be necessary here for him in order to succeed within the community, is to successfully complete a program like the Guthrie House Program, although I do stress that there is no certainty that he will be accepted into that program.

However knowing some of the benefits that flow from that program, in my view, it would be a program ideally suited for him if he were able to gain entry and to successfully complete it. [ 101 ] The second aspect of his rehabilitation must come from a lengthy probation order with terms which must emphasize and must permit the Offender to take reasonable and appropriate steps in order to gain life skills, to deal with maintaining his sobriety and to remain free of an active drug addiction. These are the most important steps that need to be successfully completed by the Offender in order to protect society.

CONCLUSIONS [ 102 ] Having regard to the case authorities to which I have referred, I have concluded that the custodial sentence being sought by Crown, given all of the circumstances, is certainly within a reasonable range. [ 103 ] However, in order to make some attempt to curtail and hopefully end the criminal behaviour of Mr. Brotherston, I am satisfied that what is being proposed by defence has a better prospect of meeting the objectives of the Offender returning successfully to society and continuing on a path of rehabilitation. At the same time, Mr.

Brotherston must understand that any future offences of this nature will most likely attract a lengthy federal custodial sentence. [ 104 ] Based on all of the above, I therefore conclude that the appropriate sentence will be along the lines suggested by defence. SENTENCE [ 105 ] I am going to ask Mr. Brotherston to stand please. [ 106 ] Mr. Brotherston, based on all of the foregoing, I am going to impose a sentence on you of 33 months on each of the counts before the court. [ 107 ] You will be entitled to 9 months' credit from that amount, based on the agreed calculations by defence and Crown.

I will make the order that the resulting remaining custodial sentence will be 2 years less a day, such that you will serve your sentence in a provincial custodial facility. Terms of Probation Order [ 108 ] There will be attached to that custodial sentence and following it a probation order of a duration of 3 years. [ 109 ] Before I outline the terms of the probation order, I feel compelled, having looked at your record, to remark that you have

demonstrated in the past that you are not a particularly good candidate for serving a sentence within the community or for following community supervision. [ 110 ] However, having said that, I view the terms of the probation order that I am about to impose upon you to be strict in their nature. It is important that you understand that these are not to be regarded by you in any fashion as simply an inconvenient suggestion.

If you were to breach any of these conditions, which will continue for a lengthy duration, then you can well expect that Crown will be proceeding with charges against you in a very vigorous fashion, and Crown will be seeking a very lengthy sentence for that breach. [ 111 ] The terms and conditions will be provided to you in writing, but for the record, I am going to read them in to you, and I will use the Vancouver Island sentencing pick list. [ 112 ] Starting with Number 200: You shall keep the peace and be of good behaviour. You shall appear before the court when required to do so by the court.

You shall notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 113 ] Number 202: Within 72 hours after completion of your jail sentence, you shall report in person to the probation office in Duncan, British Columbia, at 205B Boundary Road, Duncan, B.C., and after that you shall report as directed, but at least once per week during the first 2 years of your probation order. [ 114 ] Number 205: When first reporting to the probation officer you shall inform him or her of your residential address and telephone number. [ 115 ] Number 207: You shall commence the terms of this probation order by residing at a residence approved by the probation officer and you shall not change your residence at any time without first obtaining the written consent of the probation officer. [ 116 ] Number 208: You shall obey all rules and regulations of your residence. [ 117 ] Number 209: You shall remain in the Province of British Columbia unless you have received the written consent of the probation officer to go elsewhere. [ 118 ] Number 217: You shall (

a) attend school regularly and not be absent, except in accordance with either a medical certificate or the advance written consent of the probation officer, or (

b) make reasonable efforts to seek and maintain employment approved by the probation officer. [ 119 ] Number 227: You shall not possess or consume any alcohol or any controlled substance as defined in s. 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician. [ 120 ] Number 231: You shall not enter any liquor store, beer and wine store, bar, pub, lounge or nightclub. [ 121 ] Number 232: You shall not possess any pipes, syringes or other drug paraphernalia. [ 122 ] Number 236: You shall not possess any weapon as defined in s. 2 of the Criminal Code . [ 123 ] Number 238: You shall not possess any knife outside your residence, except for the purpose of preparing or eating food, or for purposes directly and immediately related to your employment approved of by your probation officer. [ 124 ] Number 239: You shall not possess any tools such as pry bars, screwdrivers, bunk keys, bolt cutters, pliers, blow torches or night goggles, except as follows: (

a) while in your residence; (

b) for purposes directly and immediately related to your employment that has been approved of by your probation officer; or (

c) otherwise with the written permission of the probation officer, in which case the written form of the permission is to be carried on your person. [ 125 ] Number 251: You shall attend, participate in and successfully complete any assessment, counselling or program as directed by the probation officer, which may include: (

a) alcohol or drug abuse; (

b) a full-time attendance program for alcohol or drug abuse; (

c) forensic and assessment counselling or treatment through the Forensic Psychiatric Centre of Victoria, British Columbia, or such other facility designated by your probation officer; or (

d) life skills -- and you shall comply with all rules and regulations of any such assessment, counselling or program. [ 126 ] I am going to pause for a moment. Because Crown was not seeking a probation order containing no contact provisions, is there a list of individuals with whom you specifically do not want Mr. Brotherston to have contact? [ 127 ] MR. TOMLIN: Well, since we've got the order, I suppose we may as well include the no-contact and no go terms.

In relation to 39488, seek a no-contact order with Kathleen Miller [phonetic] and an order not to attend to 1779 Wilmot Road. [ 128 ] THE COURT: Okay, just let me follow along with these if I could. One moment please. [ 129 ] MR. TOMLIN: Actually, I'll go through them in the order in which you did, Your Honour -- [ 130 ] THE COURT: All right. [ 131 ] MR. TOMLIN: So the oldest would be 39261 -- [ 132 ] THE COURT: That would be useful, thank you. So that is 3415 Shawnigan Lake Road, is that right? [ 133 ] MR. TOMLIN: Yes, in Cobble Hill.

And in terms of that, Crown would seek a no-contact order with Jennifer Watson.

[ 134 ] THE COURT: Yes. [ 135 ] MR. TOMLIN: Information 19616, the Victoria matter, Crown would seek a no go to 2873 Canyon Park Place in Langford. [ 136 ] THE COURT: Yes. And the individual? [ 137 ] MR. TOMLIN: Sorry, just a sec -- James Witty -- W-i-t-t-y. [ 138 ] THE COURT: W-h-i -- [ 139 ] MR. TOMLIN: No, sorry, no H. W-i-t-t-y. [ 140 ] THE COURT: W-i- -- [ 141 ] MR. TOMLIN: James. [ 142 ] THE COURT: -t-t-i? [ 143 ] MR. TOMLIN: Information 39488 is the 1779 Wilmot Road, in Cowichan Bay. [ 144 ] THE COURT: Yes. Yes. [ 145 ] MR. TOMLIN: And that, Your Honour, was the Kathleen Miller residence.

Information 39195 is 679 Bay Road, in Mill Bay and in terms of that, that's the victim impact -- victim Leanne Meers. [ 146 ] THE COURT: Okay, that's -- yes. [ 147 ] MR. TOMLIN: And Information 39297, Count 2, is the break and enter at 3604 Gibbins Road, in Duncan. [ 148 ] THE COURT: Yes. [ 149 ] MR. TOMLIN: And in relation to that -- sorry, just a sec -- Valerie Tutton -- T-u-t-t-o-n. And then finally Information 39391, residence at 1250 Fisher Road, in Cobble Hill.

And the no-contact term the Crown would seek would be in relation to Richard and Sarah -- S-a-r-a-h -- Burdet - B-u-r-d-e-t. [ 150 ] THE COURT: All right.

So the -- just to repeat those, so I will start using -- I am going to use Number 219 and modify as follows: you shall have no contact or communication, directly or indirectly, with any of the following persons, Jennifer Watson, James Witty, Kathleen Miller, Leanne Meers, Valerie Tutton, Richard and Sarah Burdet. [ 151 ] The next one is Number 223: You shall not attend at any place which you know to be the residence, school or workplace of any of those individuals listed above. There will be specifically a provision.

You shall not attend at any of the following premises: 3415 Shawnigan Lake Road, Cobble Hill, British Columbia; 3873 Canyon Park Place, Langford, British Columbia; 1779 Wilmot Road, Cowichan Lake, British Columbia; 679 Bay Road, Mill Bay, British Columbia; 3604 Gibbins Road, Duncan, British Columbia; 1250 Fisher Road, Cobble Hill, British Columbia. [ 152 ] Will there be any other conditions the Crown would be seeking? [ 153 ] MR. TOMLIN: Yes, Your Honour.

In terms of the counselling provision, I would suggest if it would be appropriate that you also include in there that he attend to a detox program as directed, just in case there is a failure within the first 3 years and they decide that it would be best to initially send him there. I also think it would be appropriate that you include in there a term that he attend to a second-stage recovery house if directed -- [ 154 ] THE COURT: All right. [ 155 ] MR.

TOMLIN: -- which would provide some means to direct him to the Guthrie Program. [ 156 ] THE COURT: So that would be -- I would be adding that to condition -- the condition Number 251? [ 157 ] MR. TOMLIN: Yes. [ 158 ] THE COURT: So I will add in as additional to a -- is the technical term detox or detoxification -- is it -- [ 159 ] MR. TOMLIN: Yeah. [ 160 ] THE COURT: -- to a detox program as directed by your probation officer and to attend at and participate in a second-stage rehabilitation, rather it is a drug rehabilitation program, is it not? [ 161 ] MR.

TOMLIN: Yep, I think that's sufficient. [ 162 ] THE COURT: -- a drug rehabilitation program as directed by your probation officer. [ 163 ] MR. TOMLIN: Sorry, if I may, Your Honour, in addition to that, you'd directed him to report on a weekly basis in the first couple of years of the order. [ 164 ] THE COURT: Yes.

[ 165 ] MR. TOMLIN: I think there should be an exception unless in a program directed -- a full time program directed by the probation officer. That way they're allowed to [indiscernible] [ 166 ] THE COURT: I will add that in. So, with respect to the reporting condition, it will be modified: and except while in attendance in a full-time program as directed and approved of by your probation officer. [ 167 ] MR. TOMLIN: The other aspect of it -- I didn't think a curfew was particularly useful in one sense, that being that these have been daytime break and enters, as has been the pattern with his prior convictions.

But in order to assist in his rehabilitation, I think it might be prudent for you to consider a curfew for the first year of the probation order, even of 11:00 p.m., to provide some stability in terms of him being in a residence as opposed to on the street, which is where he has tended to reside when the drug addiction gets carried away. [ 168 ] MR. WATT: I'm going to oppose that, Your Honour. Certainly that wasn't mentioned in your decision.

That's a -- that is a significant burden upon an individual, and I think the way that you have crafted the probation order, reporting once per week is going to keep him monitored and supervised, and the plan is obviously to go to Guthrie and hopefully, upon release into the second stage housing, a curfew in place. And my submission is, is it needed and will it -- well, the concern is, is that could have him back before the courts. That's a strict condition that -- [ 169 ] THE COURT: Well, the whole purpose of what I have done is to ensure monitoring.

I am not satisfied that the curfew will be much of a deterrent effect. I would expect that Mr. Brotherston is going demonstrate very early on -- [ 170 ] MR. WATT: Exactly. Exactly. [ 171 ] THE COURT: -- how serious he is about what he has indicated to this court, and that is a commitment to rehabilitating himself and with the assistance of weekly reporting. [ 172 ] I would expect that he certainly can anticipate being observed by the police -- [ 173 ] MR.

WATT: Of course. [ 174 ] THE COURT: -- and by other authorities, and any suggestion that he has not been abiding by all of these conditions is going to have him back before the courts in fairly short order -- [ 175 ] MR.

WATT: I agree. [ 176 ] THE COURT: -- so I think that I am already putting a number of resources from the public's perspective that will be directed towards him, and I am sure that Crown will be proceeding appropriately if there is any suggestion that there is a charge that should be pursued. [ 177 ] So I am going to ask Madam Clerk to order a copy of the transcript so that it will be available if there is any occasion for Mr. Brotherston to come back before the court, and I think it will provide ample guidance as to how Mr. Brotherston will be dealt with in the future. [ 178 ] MR.

WATT: Thank you. [ 179 ] THE COURT: Anything further with respect to orders? [ 180 ] MR. TOMLIN: It's a mandatory DNA. He is in the DNA database but -- [ 181 ] THE COURT: I think I will make the order in any event, and then there will be a

section -- I think there is a mandatory

section 109 order, is that right? [ 182 ] MR. TOMLIN: I don't think there is. You mentioned that, and it isn't an offence that involves any use of violence so I don't see 109 as being applicable. [ 183 ] THE COURT: I thought when I checked the grid that it did require a s. 109. [ 184 ] MR. TOMLIN: Sorry, Your Honour. I just don't see s. 109(1)(a),(a.1),(b),(

c) or (

d) being applicable. Nor does 110 apply. [ 185 ] THE COURT: I would look over -- if you have a copy of the -- I have got the 2016 Martin's in front of me -- I'm not sure -- but it -- I look over under the comments. [ 186 ] Mr. Watt, do you have any submissions -- [ 187 ] MR. WATT: Sorry -- sorry Your Honour, I didn't know you were asking me a question. [ 188 ] THE COURT: Oh, I'm sorry. The question is whether or not the s. 109 mandatory firearms order and the s. 491 mandatory weapons forfeiture apply. I was relying on the grid

section at the back of Martin's. [ 189 ] MR. WATT: Okay. [ 190 ] MR. TOMLIN: Sorry, Your Honour, I don't have Martin's, so -- I have the grid. [ 191 ] THE COURT: Oh, here. Do you want me to loan you a copy?

[ 192 ] MR. TOMLIN: Oh, no, I've looked at the section. I don't care what the grid says. [ 193 ] MR. WATT: Yeah, Your Honour, and in Tremeear's as well. Just looking at sort of the grid in the back of Tremeear's as well, I see -- it says as well, s. 109 mandatory firearms weapons prohibition. But then again, I also understand my friend's submission. Yeah, like it -- [ 194 ] MR.

TOMLIN: I think it's mandatory if a firearm is taken during the B&E, but that wasn't the case here, and there was no weapon used. [ 195 ] THE COURT: It says, if I look at the offence grid notes, it says, thus for example were the comments, s. 491 mandatory weapons forfeiture appears. It is only if the requirements of s. 491 are met. Likewise, where the comment - s.109, mandatory firearms order appears, the order is mandatory only if the requirements of s. 109 are met, so -- [ 196 ] MR. WATT: Right. So that would seem to make sense for Mr. Tomlin -- [ 197 ] THE COURT: All right. All right.

Well, then I won't make -- I won't make either of those two orders. [ 198 ] The DNA order I will make. [ 199 ] Anything further with respect to additional orders that are being sought? [ 200 ] MR. TOMLIN: Not in terms of sought, Your Honour. I will direct a stay of proceedings on the matters that aren't subject to the plea. [ 201 ] So in relation to that, Information 170105-1, I will direct a stay of proceedings. Count 1 on Information 39297, I will direct a stay of proceedings. I will also direct a stay of proceedings on Information 39284-1 and 37897-2-B.

I think that takes care of everything. [ 202 ] THE COURT: All right. Stays of proceedings will be recorded on those. [ 203 ] With respect to the victim fine surcharge, any submissions? [ 204 ] MR. WATT: Yes. Just given he's going to be in custody for a period of time, obviously the goal is to focus on his recovery when he is released. I would ask that he be found in default and have the sentence to run concurrent. [ 205 ] THE COURT: All right. So you are asking me to apply Judge Gove's approach in R. v. Bailey , [2013] B.C.J.

No. 2760 ; 2013 BCPC 326 and to make an immediate order for payment of victim fine surcharge and in default one day -- oh, actually, it's more time in default because it is an indictable offence. [ 206 ] But it will be in default, I think it may be two days, in default. The sentences will run on that bases, but they will be concurrent with the sentences I have imposed. Is that correct? [ 207 ] MR. WATT: Yeah, well, in terms of following Judge Gove's decision, Your Honour, I can tell you I have not reviewed that decision.

I know that that's a practice that Your Honour uses. [ 208 ] There is also, your sister Judge Flewelling just decides not to impose it pursuant to another Provincial Court decision. So whatever way you want in this. [ 209 ] THE COURT: I will follow Bailey so it will be in default as prescribed by the regulation, I believe it is, and so it will be that any default sentence will run concurrent with the sentences I have imposed today. [ 210 ] MR. TOMLIN: Thank you, Your Honour. [ 211 ] THE COURT: All right. Thank you. [ 212 ] Mr. Brotherston, we don't want to see you back here, okay.

Do you understand that? [ 213 ] THE ACCUSED: You won't. [ 214 ] THE COURT: Thank you. [ 215 ] MR. WATT: Thank you. [REASONS FOR SENTENCE CONCLUDED]