R. v. Roberts Date:, 2011 BCPC 329

Citation: R. v. Roberts Date: 20111005 2011 BCPC 0329 File No: 181565-3-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHAWN ANDRE ROBERTS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K.W. BALL Counsel for the Crown: L. O'Grady Counsel for the Defendant: A. Bonfield Place of Hearing: Surrey , B.C. Dates of Hearing: November 15, 16, 17, 18, December 2, 3, 14, 15, 16, 2010; Dates of Hearing: January 26, March 8, 9, 10, 2011 Date of Judgment: October 5, 2011 [ 1 ] THE COURT : These are oral reasons for sentence in the matter of Regina versus Shawn Roberts, Surrey file number 181565.

INTRODUCTION : [ 2 ] Following a trial which occupied 13 days, which included a voir dire to determine the admissibility of a statement made by Shawn Roberts, he was convicted before me of eight counts involving use and possession of a prohibited restricted handgun on the 17th of April 2010.

The convictions were, Count 1, possession of a Glock .40 calibre handgun (hereinafter "the Glock") for a purpose dangerous to the public peace, contrary to s. 88(1) of the Criminal Code ; and, Count 2 possession of the Glock while not being a holder of a licence to possess a firearm and a registration certificate for the Glock, contrary to s. 91(1) of the Code; and, Count 3, being the occupant of a motor vehicle in which he knew there was a prohibited or restricted weapon without being the holder of an authorization or licence or registration certificate for the Glock, contrary to s. 94(1)(a)(

i) of the Code; and, Count 4, possession of the Glock knowing he was not the holder of a licence to possess the Glock or a registration certificate for it, contrary to s. 92(1) of the Code; and, Count 5, carrying a concealed weapon, the Glock, contrary to s. 90(1) of the Code; and, Count 6, possession of a loaded prohibited or restricted firearm, the Glock, without being a holder of a licence or authorization to possess the Glock and registration certificate for it, contrary to s. 95(1) of the Code; and, Count 8, using a firearm, the Glock, to commit an indictable offence of assault with a weapon, contrary to s. 85(1) of the Code; and, using a restricted or prohibited firearm, the Glock, in a careless manner and without reasonable precautions for

the safety of other persons, contrary to s. 86(1) of the Code; and, Count 10, committing an assault on Kalin Willis using the Glock,contrary to s. 267(

a) of the Code. [3] Today, Mr. Roberts is before the court to be sentenced on these charges. PURPOSE AND PRINCIPLES OF SENTENCING: [4] The purpose and principles of sentencing are set out in s. 718 and following sections of the Criminal Code, all of which havebeen reviewed in preparing for these Reasons for Sentence.

The fundamental purpose of sentencing is, "to contribute, with crimeprevention initiatives, to respect for law and the maintenance of a just, peaceful and safe society." The purpose of imposing sanctions isto achieve objectives, including denunciation, deterrence, both general and specific, to separate offenders from society where necessaryfor the protection and safety of the public, and to rehabilitate offenders.

Parliament has, in the offences for which this accused has beenconvicted, in particular Counts 6 and 8, specified minimum sentences and consecutive sentences due to the use of a firearm in thecommission of offences. There is no question that this accused must be sentenced to at least four years of jail time in a penitentiary. Theissue in this case is the cumulative length of a fit sentence. An ancillary issue is the length of credit the accused is to be given for pre-sentence time in custody. [5] I have considered and intend to follow the helpful passage from the case of R. v.

M.(C.A.), (SCC), [1996] 1SCR 500 at page 566 where former Chief Justice Lamer wrote: The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencingagainst the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needsand current conditions of and in the community. [6] In the case before me denunciation, deterrence, both general and specific, as well as the protection of the public must beparamount considerations. As will be noted below, Mr.

Roberts has begun to address rehabilitation but the path to successfulrehabilitation is not entirely clear. CIRCUMSTANCES OF THE OFFENCE: [7] The facts in this case as found at trial are set out in Reasons for Judgment dated June the 2nd, 2011. [8] In brief

summary, on the night in question Mr. Roberts was drinking alcohol with his friends. He had also taken an ecstasy tabletof unknown strength or composition. Then Mr. Roberts and his friends attended an after hours club in Surrey. He attended the clubarmed with the loaded Glock in his jacket pocket, which he said was for his protection. He consumed more alcohol while at the club. While he was still at the club friends of Mr. Roberts warned him to take the Glock home. He did not heed that warning. [9] After Mr.

Roberts and his friends left the club, an altercation took place near the after hours club, which altercation did notdirectly involve Mr. Roberts. A Mr. Willis and a Mr. Morgan were arguing one with another but without significant physical contactbetween them. Mr. Morgan was a friend of Mr. Roberts. Without facing a direct threat to himself from anyone and, in particular, fromMr. Willis, who was a foot shorter and physically smaller than Mr. Roberts, Mr. Roberts produced the Glock from his jacket pocket andthreatened Mr. Willis verbally and then the Glock discharged immediately adjacent to the head of Mr. Willis.

The bullet from the Glockpierced, then ripped the ear of Mr. Willis and he fell to the ground. The injured ear required surgical repair. [10] In the company of several friends, Mr. Roberts fled the scene in a Dodge Caravan. The Glock possessed by Mr. Roberts washidden in the centre console of that vehicle.

That van was stopped a few minutes later by police and once searched the Glock which Mr.Roberts had fired was located hidden in the centre console. [11] At paragraph 5 of the reasons for judgment the following appeared: In addition to the evidence called from witnesses, admissions of fact dated the 2nd day of December 2010 (the Admissions) were filedwhich provided that the continuity of exhibits, including the Dodge Caravan, Glock handgun, shell casing, bullets and magazine wasadmitted.

The Admissions also included affidavits of three firearms officers which stated that no firearms licence of any kind, including anauthorization to transport or an authorization to carry was issued to Mr. Roberts in this case. Further, it was admitted that there was norecord of a valid registration certificate issued by the Canadian Firearms Registry for the Glock.

With respect to that firearm, a forensicreport stated that the Glock was a fully operational firearm, a prohibited weapon under s. 84(1) of the Criminal Code, from which asingle cartridge case located and exhibited at trial was found to have been fired. [12] I also found as a fact that Mr. Roberts had brought the Glock with him to the after hours club. I rejected the testimony of Mr.Roberts that the Glock was given to him by Orrie Crom at the after hours club. I also rejected the evidence of Mr. Roberts that thedischarge of the Glock occurred when he struck Mr. Willis with the gun. I found as a fact that Mr.

Roberts was pointing the handgun atthe head of Mr. Willis when the Glock was discharged, injuring the ear of Mr. Willis. Mr. Roberts made no inquiry as to the well-beingof Mr. Willis after the Glock discharged and offered no assistance to Mr. Willis after he fell to the ground following the discharge of theGlock. CIRCUMSTANCES OF THE OFFENDER: [13] A pre-sentence report was prepared in this case for Mr. Roberts. In addition to the submissions of counsel, seven handwrittenreference letters were submitted.

It is difficult to assess the value of these letters as they contain little information about the apparentsignatories of these letters. A letter of support was also filed by the father of Mr. Roberts and by a former employer, who is prepared tore-employ him once he has completed his sentence.

[14] The father of Mr. Roberts was in court to support his son, as were two individuals. Messrs. Richards and Storey both travelledfrom the U.S. for the sentencing hearing. Counsel advised the court that the latter two were long-term friends of Mr. Roberts and foundhim to be loyal, gregarious and trustworthy. A letter was also submitted written by Debbie Andrews, who was also present in court, thegirlfriend of a man for whom the accused worked. A letter penned by Shane Cunningham, who Mr. Roberts supported and befriendedwhile Mr. Cunningham began to attend a drug treatment centre was also filed. [15] Mr.

Roberts is 25 years old, born in Georgetown, Guyana. He told the report writer that as a child he suffered abuse at the handsof a church pastor. He moved to New York City at the age of 12 to live with his mother and at age 16 moved to Canada to live with hisbiological father, Thomas Robertson. As noted above, Mr. Robertson wrote a letter of support for his son and has also attended thiscourt throughout the trial to support his son notwithstanding he lives in Toronto and is of limited means. [16] Mr. Roberts entered Canada on a student visa.

That visa expired before he gained permanent status and he was deported to theUnited States. Ten months later he re-entered Canada as a landed immigrant. He lived with his father in Surrey until his father moved toOntario in 2009. Shortly thereafter Mr. Roberts ceased to be employed, with irregular housing and, according to the pre-sentence report,entered a downward spiral fuelled by alcohol and drugs. [17] Mr. Roberts completed Grade 12 at Purpose Secondary in New Westminster and has had no further training since. He worked asa roofer for approximately four years for the same company.

He then tried to start his own sub-contracting business but without greatsuccess. He says smoking marihuana is a daily habit and he used ecstasy as well. He lost one roofing employment situation because ofhis use of marihuana. [18] Mr. Roberts has no prior criminal record. He describes himself as a non-violent person but is reactive when confronted orchallenged. Institutional logs indicate that he is confrontational and anti-authority. He was reported to be abusive to staff and refused tofollow institutional rules and regulations.

The pre-sentence report states, "He appears to lack constructive problem-solving skills." Because of his behaviour while in custody he was involved in the "Enhanced Supervision Program," a behaviour modification program,and he also completed the Substance Abuse Management Program in the North Fraser Pre-trial Centre. [19] Mr. Roberts has expressed remorse for his offences. SUBMISSIONS OF COUNSEL: [20] Crown counsel submitted that a fit cumulative sentence in this case was in the range of six to eight years.

Defence counselsubmitted that the sentence should be four to five years, with credit given for 17 months in pre-trial custody at the rate of 1.5 days creditfor each day of custody, pursuant to s. 719(3.1). [21] Both counsel provided the court with briefs of authorities and noted that cases which were on "all fours" were not located andthat most of the cases cited were distinguishable by one or more factors, including circumstances of the offence or offences andcircumstances of the offender. [22] Crown counsel provided the court with a number of cases to demonstrate the abhorrence with which Canadian society views guncrimes, including R. v.

Clayton and Farmer, 2007 SCC 32 , [2007] 2 SCR 725, R. v. Felawka, (SCC), [1993]25 C.R. (4th) 70, where at paragraph 38 the court said, "A firearm always presents the ultimate threat of death to those in its presence." R. v. Thurston

(2004) BCCA 526, R. v. O'Toole

(2003) BCSC 747, R. v. Bagri, Minhas and Minhas

(2004) BCSC 591 and R. v.Villella, (ON SC), [2006] OJ No. 4690, as well as the cases which are cited in those authorities. [23] The Criminal Code and the case law together are very clear that persons in possession of and carrying loaded handguns, deadlyweapons, pose a risk of significant harm to any persons they contact and to society at large and are to be sanctioned accordingly. The useof unauthorized handguns in Surrey, British Columbia has been a particular and ongoing problem as described in the “Community ImpactStatement of the City of Surrey” which is filed herein. The danger posed by Mr.

Roberts, being driven through the streets of Surrey,while carrying a concealed loaded firearm cannot be understated. [24] With respect to the length of sentence to be imposed Crown counsel provided the court with the following authorities, all ofwhich have been reviewed by me with care: R. v. Kipp

(2010) BCSC 484, a case of a shooting in a residential neighbourhood where thefacts and circumstances are more serious than the case at bar. The court noted the extreme danger to the public of firing a gun in aresidential area. The sentence, which included attempted murder in that case, was 11 years; R. v. Huard

(2009) BCSC 999 is a casewhere the accused was convicted of simple possession of a handgun, no shooting was involved, which handgun was not on the person ofthe accused but located in a bag in the trunk of his car. Mr. Justice Sewell followed R. v. Morrisey, noting that the minimum sentenceavailable is available to the "best" or least culpable offender. The offender in that case had an aged record followed by a long period ofsobriety and lawful living. Noting the plague of gun violence which has affected society in recent years, the court gave a five-yearsentence in that case subject to credit for time served; R. v. Violette

(2009) BCSC 1557, a sentencing under s. 95(1) for the offence ofpossession of two firearms. The court noted that, "Mere possession of loaded firearms is inherently dangerous." A two-year sentencewas imposed on the offender, who had a limited record but was apparently involved with the Hell's Angels; R. v. Ivanic

(2011) BCCA158 was an appeal of a sentence following a guilty plea by the accused involved in a shooting in an attempt to steal drugs. The accusedhad a record for drug trafficking. A sentence of four years and four months was imposed at trial before the legislation for minimum orconsecutive sentences for firearms offences was legislated. This sentence was described by our Court of Appeal as being at the low endof the appropriate range. [25] Crown counsel also cited R. v. Cuthbertson

(2009) BCSC 1865, R. v. Frohock

(2009) BCCA 227, R. v. Vidal

(2009) BCSC1095, R. v. Desmond

(2011) BCSC 696, R. v. Chin

(2009) ABCA 226 and R. v. Nguyen

(2009) ABCA 317. In the case of R. v. Chinthe court noted that while the offences in that case were over three years old, if the charges had occurred after the amendments to thesentencing provisions and "the proliferation of gun violence in our communities," the sentence would have been higher than the fiveyears that was imposed in that case. In the case of R. v. Nguyen, while clearly distinguishable because no injury occurred in a shootingincident in a parking lot of a shopping mall, the accused had no adult record and was 23 years old. The Alberta Court of Appeal upheld asentence of five years under s. 244(b), including a one year consecutive sentence under s. 95.

SUBMISSIONS CONCERNING CREDIT FOR PRE-SENTENCE CUSTODY : [ 26 ] Defence counsel submitted that a lack of programming, lack of access to open air exercise, poor segregation of prisoners and overcrowding are factors which should be considered under s. 719(3.1) for additional credit for pre-sentence custody. Based on these submissions, defence counsel sought credit at the rate of 1.5 days for each day spent in pre-sentence custody. Crown counsel submitted that no circumstances in this case justified the use of the exception contained in s. 719(3.1) of the Criminal Code . [ 27 ] All of the defence submissions were based on conditions in jails in Ontario outlined in R. v. Johnson

(2011) ONCJ 77, a case where the accused pled guilty to trafficking for selling $20 worth of cocaine to an undercover police officer. Mr. Johnson was arrested on February 26th, 2010. He was held pending a bail hearing until March 11th, 2010 when he consented to remain in custody, likely because of an extensive record for similar convictions. He pled guilty on May the 4th, 2010 and the sentencing was adjourned. The sentencing hearing apparently involved five hearing days and the reasons for sentence were pronounced on February 23rd, 2011.

The accused was given a sentence of 18 months and was credited with 12 months of pre-trial custody at 1.5 days for each day in custody, based on the opinion of the court reading s. 719(3.1) of the Criminal Code . [ 28 ] The case of R. v. Johnson is clearly distinguishable on its facts and is not binding on this court. In proceedings before this court no evidence of any kind was presented concerning conditions in pre-trial facilities in British Columbia. Mr.

Roberts, according to his counsel and the pre-sentence report, had access to a behaviour modification program, not simply solitary confinement or segregation, to stem his negative behaviour while in custody and also completed the Substance Abuse Management Program. [ 29 ] Counsel for Mr. Roberts also made a submission, again based on the Johnson case, that this court should consider the fact that Mr. Roberts was originally detained at a bail hearing pursuant to the tertiary ground. The submission was that Mr.

Roberts was detained because he was not able to offer cash or sureties in sufficient amount to convince the bail court that release was a viable option. As I said, I was advised by counsel that Mr. Roberts was detained under the tertiary ground but the court was not provided with a transcript of the bail hearing, nor a transcript of the decision at the bail hearing. I was advised by counsel that no application had been made to have the detention order reviewed in the Supreme Court.

Counsel was unable to provide any binding legal authority that would provide jurisdiction for one judge of this court to consider as a factor in sentencing the basis for a bail order made by another judge of this court. Even if there was jurisdiction for this court to conduct such a review, which is doubtful, it would surely have to be on the basis of the evidence presented to this court. No such evidence was presented in this case. [ 30 ] Without conducting a review of the entirety of the issues concerning ss. 719 and following raised by R. v.

Johnson , I am aided by the British Columbia Court of Appeal decisions in R. v. Mayers

(2011) BCJ No. 1047 and

(2011) BCCA 365, both of which follow Johnson in time. The first of those citations makes reference to the Johnson decision. In R. v. Mayers , unlike Johnson , the Court of Appeal treated s. 719 as remedial legislation. Other cases in British Columbia which have commented on the effect of s. 719(3) treated the

section as remedial and those included R. v. W.M.

(2010) BCCA 1791, R. v. Hindmarch

(2010) BCSC 1257, R. v. A.W.C.

(2010) BCPC 197, a decision of Her Honour Judge Dollis of this court. At paragraph 23 of Mayers , the second citation, the court stated: The clear wording of the Act indicates Parliament's desire to change the status quo under which sentencing judges generally granted two days credit for each day in custody and to implement a different approach to sentencing. The changes made to s. 719 give effect to Parliament's intention.

For instance, if the loss of remission which occurs in every case of a person detained before sentence were a basis for granting additional credit under 719(3.1) of the Code, then the effect of subsection (3) would be undermined and the intention of Parliament frustrated. If Parliament had intended to change the status quo from two days for every day in pre-sentence custody to 1.5 days for each day in custody, Parliament would not have enacted s. 719(3). [ 31 ] I do not intend to give effect to the submissions of defence counsel based on the case of R. v.

Johnson . [ 32 ] Absolutely no evidence of the sort which might create circumstances to justify the use of the exception contained in s. 719(3.1) was presented in the hearing before me. No statistics for British Columbia, in general, or for the North Fraser Pre-trial Centre in particular were presented, nor any particular facts that apply to Mr. Roberts at all.

His participation in programs while in custody are clearly positive but would not support the use of the exception. [ 33 ] Following the provisions of s. 719(3) in finding no factual basis for the use of the exception contained in s. 719(3.1) , I will award Mr. Roberts one day credit for each day he has spent in pre-trial custody. [ 34 ] Counsel for Mr. Roberts noted when arguing the matter that his client had spent 17 months in pre-sentence custody and he has spent slightly more than that on the day I am reading these Reasons.

SUBMISSIONS BY DEFENCE COUNSEL : [ 35 ] Defence counsel submitted that the expressions of denunciation and deterrence are implied in mandatory minimum sentences and in the mandatory consecutive minimum sentence and that no further jail time is required as the minimum sentences already take into account the seriousness of a firearms offence. I am satisfied that this

interpretation is not consistent with the provisions of the Criminal Code and is inconsistent with the decision of the Supreme Court of Canada in R. v. Morrisey

(2000) SCC 39 at paragraph 75 where, in a concurring judgment, Madam Justice Arbour wrote: To the extent possible, mandatory minimum sentences must be read consistently with the general principles of sentencing expressed, in particular, in ss. 718, 718.1 and 718.2 of the Criminal Code W.(L.M.) supra at paragraph 22.

By fixing a minimum sentence, particularly when the minimum is still just a fraction of the maximum penalty applicable to the offence, Parliament has not repudiated completely the principle of proportionality and the requirement, expressed in s. 718.2(b), that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Therefore, in my view, the mandatory minimum sentences for firearms-related offences must act as an inflationary floor, setting a new minimum punishment applicable to the so - called 'best' offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentence imposed on all but the

very worst offender who has committed the offence in the very worst circumstances. The latter approach would not only defeat the intention of Parliament by enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions. [ 36 ] The mandatory minimum sentence must be considered the beginning point or floor for a sentence involving the use of a firearm.

This accused is not the "best offender" in my judgment because the unregistered Glock was illegally obtained by the accused, carried into a public location fully loaded and the Glock was discharged after a threat was made to the victim, Mr. Willis. I was not satisfied that Mr. Roberts intended to shoot Mr. Willis, but Mr. Roberts created a circumstance where the Glock was discharged into the ear of Mr. Willis and then Mr. Roberts fled from the scene without paying any attention to the injured Mr. Willis. Other aggravating factors are listed below. [ 37 ] As noted above, counsel for Mr.

Roberts submitted that the fit and just sentence was four to five years less credit for time spent in custody, which I have discussed above. I have reviewed all of the cases which Mr. Bonfield submitted, which included R. v. Bueger

(1994) BCCA Vancouver Registry No. CA018489, R. v. Rathor

(2006) BCPC 0504, R. v. Blanchard

(2010) BCPC 380, R. v. Nguyen

(2009) ABCA 317, R. v. Morvia

(2009) CanLII 15901, R. v. Stevens

(2010) NSSC 133 and R. v. Grier

(2011) ONSC 3848. [ 38 ] Counsel specifically made reference to the last case. There is a similarity between the cases in that the victims were both shot and received non-life threatening wounds to the head. Mr. Grier and his victim were brothers. A family dispute simmered for some time between the brothers and boiled over on the date of the offences charged. After firing a shot in the direction of his brother the accused and his brother locked arms and their hands pushed upwards.

When one of the hands of the accused slipped off his brother's hand, the gun came down and fired, striking the brother in the scalp, causing a flesh wound. The jury hearing the case concluded that the accused had not pointed the firearm at his brother. In the case at bar, I made a specific finding that Mr. Roberts pointed the Glock at Mr. Willis, at the same time uttering threatening words towards Mr. Willis. [ 39 ] In Grier , no charges concerned the possession of an unlicensed or restricted firearm. Those are serious charges in the case at bar.

In Grier there were no charges, as there are in the case at bar, concerning possession of a loaded firearm in a motor vehicle. The case at bar concerned the shooting of a person who was a stranger to Mr. Roberts. In Grier there was a long-simmering family dispute. I am satisfied that the Grier case is far less serious than the case at bar and is, therefore, distinguishable. [ 40 ] The other cases referred to by defence counsel, including R. v.

Bueger , cited above, which was a guilty plea on a charge of assault with a weapon, which is a less serious charge than those in the case at bar, in particular in that case because the accused knew that the firearm contained non-lethal ammunition, the bullets fired did not even penetrate the clothing of the victims. R. v. Rathor , cited above, is a less serious range of convictions in a situation where the accused fired a single shot from some distance that did not strike anybody; a sentence longer than the minimum was found to be appropriate there and five years was found fit less time served.

In the case of R. v. Blanchard , also cited above, the accused pled guilty to a count of aggravated assault and possession of a loaded prohibited firearm without permits or authorizations. The sentence there was passed before the consecutive sentence was required and in that case the sentence was five years. AGGRAVATING AND MITIGATING FACTORS : [ 41 ] It is an aggravating factor that this accused obtained the Glock unlawfully without a licence, registration or authorization. Traffic in firearms such as the Glock without registration is a very serious concern for the safety and security of the public. Mr.

Roberts' purpose in acquiring the Glock may not have been drug dealing or other gang or underworld activity, as his counsel submitted, but his purpose was to do exactly what he did in this case, that is, use the Glock for the purpose of threatening, intimidating or, worse yet, wounding or killing another individual whom he confronted because of real or imagined concerns for his own safety. Mr.

Roberts ignored the warning given by one of the friends in the after hours club to take the Glock away. [ 42 ] It is aggravating that he chose to conceal and carry the Glock while it was fully loaded and ready to fire in a residential neighbourhood when he was intoxicated, with the extreme inherent danger that an innocent bystander may be injured by the discharge of the Glock. The Glock was loaded and easy to fire. Mr. Roberts testified that he thought the Glock might go off in his pocket if he got into a fight.

Removing the Glock from that pocket made the danger of discharge greater, if not, in these circumstances, likely. The Glock, in the hands of Mr. Roberts, was discharged at or near the head of Mr. Willis, injuring him. By good luck, his injury was not devastating. The bullet might have also struck anyone else in the group arguing around Mr. Willis and Mr. Morgan or another person leaving the after hours club. It is also an aggravating factor that without any thought at all about the medical condition of Mr. Willis, Mr.

Roberts fled the scene in the Dodge Caravan and hid the Glock in the console of the Caravan. [ 43 ] The mitigating factors in this case are the lack of criminal record and the relative youth of the accused. He has also maintained a generally positive work history. He has also expressed remorse for the damage done to Mr. Willis. CONCLUSION : [ 44 ] I have considered the submissions of counsel, the circumstances of the offences and the offender, and the principles of sentencing set out in s. 718, 718.1, 718.2 and, in particular, s. 718.2 (

e) of the Criminal Code . I am also mindful of the quote cited above from R. v. M.(C.A.) cited above. [ 45 ] Mr. Roberts has significant moral blameworthiness, demonstrated by his actions in this case, including obtaining, possessing, carrying and concealing the fully loaded Glock in a residential neighbourhood in the City of Surrey and then using the Glock in such a manner as to cause injury to Mr. Willis when the Glock was discharged. A "Community Impact Statement" was filed setting out the statistics on significant gun-related violence in Surrey, British Columbia. Without regard for the condition of Mr.

Willis following discharge of the Glock, Mr. Roberts fled the scene in a motor vehicle and hid the Glock in a console of that vehicle. Those actions lead only to the conclusion that the fit and proper sentence is a lengthy jail sentence. [ 46 ] That said, I am also mindful to consider the need for potential for rehabilitation of this offender. In the pre-sentence report at page 6 the report writer states:

Nevertheless, Shawn's behaviour poses significant risk to the community and himself. His conduct points to a total disregard for people's life and liberty as well as the law. It would appear he is quick to solve problems with violence and intimidation. [ 47 ] He has taken some programming while in custody and the pre-sentence report filed notes that a wide variety of services and programs, tailored to the risks presented by and needs of offenders are available in the Federal Corrections system, including violence prevention programs and substance abuse programs.

Rehabilitation for this accused may take some time, given the circumstances outlined above. [ 48 ] The maximum sentences for the offences for which Mr. Roberts has been convicted are between five and 14 years. In this case, given the lack of a prior criminal record and the age of the accused, a more moderate sentence must be awarded. Maximum sentences would not be fit or appropriate. [ 49 ] As noted above, the minimum sentence for a first offence under s. 95(1) is a sentence of three years, with a maximum of ten years.

The minimum sentence for a first offence under s. 85(1), that is, the use of the Glock in commission of an indictable offence, is one year consecutive to any other punishment imposed, up to a maximum of 14 years. [ 50 ] Balancing the aggravating and mitigating circumstances, taken together with the submissions of counsel and the case law cited therein, and keeping in mind the principle of totality, the cumulative sentence in this case will be seven years, comprised of a sentence of five years and six months concurrent on each of Counts 1, 3, 4, 6 and 10.

On Counts 2 and 5 there will be a concurrent sentence of two years on each count. On Count 9 there will be a concurrent sentence of one year. On Count 8, pursuant to s. 85(3)(a), there will be a sentence of one year and six months consecutive to the sentences above. [ 51 ] From the global sentence of seven years the accused will be given credit for time spent in custody on a one-for-one basis pursuant to s. 719(3). He has been in custody since April 17th, 2010. He is being sentenced on October 5th, 2011, 17 months and 19 days later.

In those circumstances he will receive 18 months credit for time served and will serve a five-year-six-month sentence starting today. [ 52 ] There will be an order pursuant to s. 487.051 for the taking of bodily substances reasonably required for the purpose of DNA analysis. [ 53 ] There will also be an order under s. 109 banning Mr. Roberts from possessing any firearm or other items mentioned in that subsection for a period that ends ten years after the release of Mr. Roberts from prison and pursuant to s. 109(2)(

b) Mr. Roberts is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon or prohibited device, prohibited ammunition for life. [ 54 ] There will be an order for forfeiture of the firearm. [ 55 ] Given the length of time that Mr. Roberts has been in custody until today and the time he will spend in custody in the future, the victim fine surcharge is waived. [ 56 ] I thank counsel for their careful preparation and presentation of case law in this case. (REASONS FOR SENTENCE CONCLUDED)