R. v. Korte, 2019 BCPC 148

Citation: R. v. Korte 2019 BCPC 148 Date: 20190517 File Nos: 65729-1, 96956-1, 102525-1 Registries: Chilliwack, Port Coquitlam, Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RYAN MATTHEW KORTE ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE W. YOUNG Counsel for the Crown: H.B. Waldock Counsel for the Accused: P. Gardiner Place of Hearing: Chilliwack , B.C. Date of Hearing: April 11, 2019 Date of Sentence: May 17, 2019

[ 1 ] THE COURT : Ryan Korte has pled guilty to the following charges. On Information 102525, Count 1, that on or about the 18th day of September 2016, at or near Merritt, did have in his possession property, a 2007 Chevrolet truck, the property of Natasha Weiss, of a value in excess of $5,000, knowing that the said property was obtained by the commission in Canada of an offence punishable by indictment, contrary to s. 355(1) of the Criminal Code . [ 2 ] Count 6.

That on or about the 18th day of September 2016, at or near Merritt, in the Province of British Columbia, having been released pursuant to s. 515 of the Criminal Code , did fail to comply with a condition of an undertaking or a recognizance by possessing alcohol, contrary to s. 145(3) of the Criminal Code . [ 3 ] Count 9.

That on or about the 18th day of September 2016, at or near Merritt, in the Province of British Columbia, having been released pursuant to s. 515 of the Criminal Code , did fail to comply with a condition of an undertaking or a recognizance by being in a vehicle contrary to the April 4, 2016 order of Judge Warner, contrary to s. 145 of the Criminal Code . [ 4 ] Count 10.

That on or about the 18th day of September 2016, at or near Merritt, in the Province of British Columbia, having been released pursuant to s. 515 of the Criminal Code , did fail to comply with a condition of an undertaking or a recognizance by being in a vehicle contrary to the August 19, 2016 order of Judge Dyer, contrary to s. 145(3) of the Criminal Code . [ 5 ] Count 11.

On or about the 18th day of September 2016, at or near Merritt, in the Province of British Columbia, having been released pursuant to s. 515 of the Criminal Code , did fail to comply with a condition of an undertaking or a recognizance by being in a vehicle contrary to the August 22, 2016 order of Justice C. Fuhrmann, contrary to s. 145(3) of the Criminal Code . [ 6 ] On Information 65729, the accused has pled guilty to Count 3, which is the following.

That on or about the 17th day of September 2016, at or near Chilliwack, in the Province of British Columbia, having been released pursuant to s. 515 of the Criminal Code , did fail to comply with a condition of an undertaking or a recognizance by being in a private motor vehicle without the registered owner present, contrary to s. 145(3) of the Criminal Code . [ 7 ] On Information 96956, he has pled to the following. [ 8 ] Count 1.

That on or about the 13th day of August 2016, at or near Langley, in the Province of British Columbia, did rob Jordan Savage of money and cigarettes, contrary to s. 344(1) of the Criminal Code . [ 9 ] Count 2. That on or about the 13th day of August 2016, at or near Maple Ridge, in the Province of British Columbia, did rob Shannon Hanley of money, cigarettes and an iPhone, contrary to s. 344(1) (

b) of the Criminal Code . [ 10 ] The Crown seeks a sentence of 14 months with respect to the first two Informations, being the possession of stolen property, the truck and the various breach charges. The Crown seeks a period of four-and-a-half years with respect to the two robbery charges, concurrent with one another but consecutive to the 14 months the Crown seeks with respect to the other counts.

The Crown seeks a global sentence of six to eight months. [ 11 ] Defence counsel seeks a global sentence of eight months with respect to the first two Informations and a consecutive sentence of 40 months for the two robberies, for a global jail sentence of 48 months. [ 12 ] Accordingly, the Crown is seeking two years more than what is being sought by the defence. [ 13 ] The defence position is that the accused has been consistent throughout in his position to plead guilty to these charges and while it has taken some time to arrange for all the charges to be waived to Chilliwack, the guilty pleas should be given significant weight by the court when considering mitigation. [ 14 ] The accused has been in custody since September 18, 2016.

He consented to a detention order on November 22, 2016. The Crown advises that 30 days needs to be deducted from the total time the accused spent in custody as that time was applied to a sentencing in Surrey for possession of stolen property in May of 2017. [ 15 ] This sentence was adjourned to May 17th and, thus, counsel have done the following calculation. That the accused be credited actual pre-sentence time of 941 days in custody and with credit on a 1.5 basis for every pre-sentence day in custody, the credited time would amount to 1,412 days in custody, or approximately 47 months and five days.

Thus, if the court agrees with the defence sentencing position, the accused would have about one more month in custody and the Crown position would result in a further lengthier period of custody. [ 16 ] The Crown also seeks ancillary orders which are not opposed. [ 17 ] Thus, the issue is the global sentence to be imposed given the purpose and principles of sentencing, the accused's record, and the mitigating and aggravating circumstances. [ 18 ] The accused also has a release plan in place to live with family members in Saskatchewan. [ 19 ] He has expressed remorse with respect to his conduct, especially with respect to the two robberies. [ 20 ] Defence counsel has also been forthright in pointing out that the accused is in custody on charges from Calgary and that he will have to return to Calgary at the conclusion of this sentence in order to deal with those outstanding matters.

So his current proposed release plan will not take effect until after he has dealt with his outstanding Alberta charges. [ 21 ] It should also be noted that it took some time for the pleas to be entered. The robbery charges were waived to Chilliwack from Kamloops and Information 96958 was waived to Chilliwack from Port Coquitlam. Counsel advised that it took some time for the waivers to be accomplished, especially given that there was a change of counsel one year ago. The guilty plea on the robbery charge,

Count 1, was entered on November 6, 2018, two years after the offence date of August 13, 2016. That file arrived in the Chilliwack registry in August of 2017. The guilty plea on the possession of stolen property of the truck and the breaches was entered on May 9, 2017. So it is apparent from the timeframe of the waivers and the pleas that the accused was hoping to enter pleas by the summer of 2017, although it took some time for the sentencing to be resolved after the accused hired Mr.

Muldoon in the summer of 2018. [ 22 ] I would like to turn to the facts. [ 23 ] Dealing, first of all, with the possession of a stolen motor vehicle and the breaches. [ 24 ] On September 17, 2016, Ms. Weiss called the police to report that her 2007 Chevrolet Silverado pickup truck was stolen from her residence in Chilliwack. She noticed the vehicle missing at 11:00 a.m. The value of the vehicle was $12,000. [ 25 ] The theft of the vehicle was broadcast on the social media platform Facebook. As a result, at 7:10 p.m., a witness reported that she had just seen a pickup truck matching the description.

She had seen the driver enter the liquor store, exit with two bags and enter the truck and drive to another liquor store in Chilliwack. She noted that the male driver was wearing a sports jersey that had "Fitzgerald" on it, plus a goatee, and he was tall, skinny and wearing a ballcap. [ 26 ] The police then found the truck and pulled the driver over. The vehicle sped off, heading north on Lickman Road. [ 27 ] The police attended the liquor store and spoke with the employee of the store. She asked the police if their attendance was about Mr. Korte.

The store employee knew him from her work at the Chilliwack Community Correctional Centre and had spoken with him in the store. She described him as wearing a jersey with "Fitzgerald" on the back. Mr. Korte had pointed out the truck he was driving and told the witness that his employer had lent it to him. He also told the witness that he was using cocaine and the witness knew, through her work, that he had been dealing with an addiction problem. [ 28 ] The owner of the vehicle, Ms.

Weiss, and her family, became aware that the accused had taken the vehicle and through social media the owner was able to get a phone number for him. Her brother then called the accused and pretended he wanted to buy the truck. The accused advised Ms. Weiss' brother he would meet him in Merritt to sell the truck. [ 29 ] The following day, on September 18, 2016, a tow truck driver in Merritt who had heard about the stolen vehicle from Ms.

Weiss contacted the police to tell them that her vehicle was in Merritt. [ 30 ] At 11:30 a.m., the RCMP found the truck in a parking lot of a retirement residence in Merritt with the accused inside the driver's seat. The police confirmed that the vehicle was stolen and arrested him for possession of stolen property. Inside the vehicle there was the jersey described previously, as well as other items including liquor, a cell phone, cigarettes and a knife.

When the accused was searched, the police found a four-inch collapsible knife on his waistband and found the key for the truck. [ 31 ] The accused was on a court-ordered condition not to possess weapons. He was bound by several recognizances of bail in British Columbia and Alberta at the time the offences occurred. He was on an OR of bail dated August 19, 2016 from North Vancouver which order included a term that he not be found inside a motor vehicle other than one involving public transportation.

He was likewise on another bail order, dated August 22, 2016, from Surrey which also included a term that he not be found in any private motor vehicle without the registered owner being present. [ 32 ] There are two bail documents from Alberta. They are both dated April of 2016.

The orders from Alberta prohibited the accused from possessing alcohol or from being in a motor vehicle without the registered owner being present. [ 33 ] The breach charges speak for themselves, being that he failed to comply with an undertaking by possessing alcohol when the stolen vehicle was located in Chilliwack and that he was in a vehicle without the consent of the owner, in contravention of three court orders both on the 17th and the 18th of September 2016. [ 34 ] On August 12th of 2016, the Richmond RCMP received a report that a Mr.

Singh's vehicle, a 2002 Dodge Ram, had been stolen with the keys inside. [ 35 ] On August 13, 2016, a clerk at the Shell station on 200th Street in Langley was robbed of cigarettes and cash by the accused. Surveillance video was seized of the robbery and was played in court. During the course of the Langley robbery, the accused directed the clerk, Mr. Savage, to lock the door, open the cash till, sit down on the floor and face away, grab black garbage bags for him to use, not make any stupid moves and unlock the door so he could leave.

The accused held a pair of scissors throughout the course of the robbery and told the clerk that he was not going to hurt him as long as he did not do anything stupid. [ 36 ] Approximately $160, as well as a garbage can and bag containing cigarettes were taken by the accused during the robbery.

The value of the cigarettes is not known. [ 37 ] The accused left from the Langley robbery in the vehicle and then at approximately 10:17 hours, the clerk called 9-1-1 to report the Langley robbery. [ 38 ] A few moments later, just before 10:28 hours, the next clerk, Shannon Hanley, at the Shell gas station on the Lougheed Highway in Maple Ridge was robbed of cigarettes and cash, as well as her personal cell phone. The Crown played the surveillance video of the Maple Ridge robbery.

During the course of the robbery, while holding a pair of scissors, the accused directed the clerk to get down on the floor, turn away, and not look at him and open the till. The accused told the second clerk he was not going to hurt her. He took approximately $400 and a garbage can and bag filled with cigarettes during that robbery, along with the clerk's cell phone. [ 39 ] While the accused was filling the garbage can or bag full of cigarettes, he put down and left the scissors on the counter. He left the Maple Ridge robbery in the same vehicle.

[ 40 ] Then at 10:28 hours, Ms. Hanley called 9-1-1 and the police attended and seized the scissors.

DNA recovered from the scissors was identified as matching the DNA of the accused. [ 41 ] On August 18, 2016, at approximately 16:10 hours, the West Vancouver Police received a report of a suspicious male seeking money from a woman in the 1400 block of Haywood Avenue and he had left in a vehicle. [ 42 ] At approximately 16:35 hours, West Vancouver Police located the vehicle parked in the 1300 block of Marine Drive with a Troy Wiebe in the driver's seat and the accused in the rear middle seat. [ 43 ] At approximately 14:44 hours, Mr.

Wiebe and the accused were both arrested for possession of stolen property and transported to the West Vancouver police detachment. [ 44 ] The vehicle was seized. A search warrant was obtained and during the course of the search, Ms. Hanley's cell phone was located on the rear passenger seat. In addition, forensic identification located the accused's fingerprint on the exterior driver's door of the vehicle. [ 45 ] On August 23, 2016, the police met with the accused's former parole officer who viewed and identified the accused from the Maple Ridge robbery surveillance.

The distance between the two robberies was approximately six kilometres and is about a seven- minute drive. [ 46 ] I want to turn to the victim impact statement. [ 47 ] The only victim impact statement was provided by Mr. Savage, the clerk in the first robbery who wrote how the robbery had affected his life every day. It has made him feel paranoid that someone is waiting to harm him.

He also lost wages as a result of his being off work for a period of time. [ 48 ] I want to turn to the Pre-Sentence Report. [ 49 ] The accused, who is 35 years of age, has a lengthy record for property-related offences commencing in 1998. He has a prior robbery conviction in 2012 in Kamloops for which he received a four-year sentence in addition to one year concurrent for possession of a weapon.

He also received a mandatory prohibition order pursuant to s. 109 of the Criminal Code . [ 50 ] The position of the Crown in seeking a global sentence of six to eight months is based on the facts and on the aggravating factor of the accused's criminal record. [ 51 ] The accused was born to a young mother. He does not recall anything about his father. As a child, he was often unsupervised and left alone. The child protection services became involved when he was six and his grandmother began living in the home. For over a year, his grandmother was the primary caregiver as his mother was busy with school and work.

He described moving often as a child. At the age of nine he moved to Calgary. He did not report any substance abuse or mental health issues within the home. [ 52 ] He also went to live with an aunt and uncle in Saskatchewan for one year at the age of 12. [ 53 ] By the age of 14 he started to do as he wanted. He would not attend school and was out late at night. His mother placed him into a group home at age 14. [ 54 ] During his teen years he was in and out of the Calgary Youth Offender Centre. He has been incarcerated for approximately 15 years out of the last 20.

He advised he has not had a long term, romantic relationship, has never married and has no children. Upon his release he intends to return to Moose Jaw where he plans to reside with his uncle and aunt. His grandmother lives nearby. His aunt indicated that she has offered her home to him. [ 55 ] The accused attended school until Grade 6 or 7. It is believed that he got his Grade 12 Dogwood certificate while in jail at Matsqui Institution, although that information has not been confirmed.

He has also had some period of employment in the construction and landscape industry. [ 56 ] He recalled as a child being diagnosed with attention deficit hyperactive disorder but was not medicated. While he was institutionalized there was no indication of mental disorder or impairment. There is no history of mental disorder. He has a diagnosed history of attention deficit disorder, anxiety and depression. He has taken medication for sleep, depression, ADD and anxiety. He was also prescribed suboxone for opiate addiction.

While at North Fraser Pretrial Centre he has also completed a number of essential skills to success programs. He has expressed some fear of leaving the custodial centre as he has always felt accepted in custody and he finds it familiar and comfortable, more so than being in society at large. [ 57 ] He reported that he first experimented with marihuana at the age of nine or 10 and commenced drinking at age 11 or 12. He was introduced to crack cocaine at age 14. He reported using drugs most of his life. [ 58 ] He was placed on a CSO in 2006 and once that was concluded he relapsed into drug use.

He knows he has had a problem with drugs but never did anything about it. He denies having used any drugs since his arrest in September of 2016. [ 59 ] While in custody at North Fraser, he has seen an alcohol and drug counsellor. He obtained a certificate after completing the Criminal and Addictive Thinking Workbook in January of 2017. He has been prescribed suboxone to treat opiate use disorder. He advised the report writer that his criminal history is the result of substance abuse. [ 60 ] He also has explained that the commission of the current offences can be explained by his use of illicit drugs.

He advises that he is attempting to gain some insight into his actions and has expressed an interest in counselling. His parole officer advised that he has engaged in programs while in the federal institution and has completed the multi-target, high intensity program. He was granted day

parole and then found himself suspended for selling drugs, associating with persons with criminal records and testing positive for drugs. [ 61 ] His parole officer advised that the accused has a good attitude and that he is skilled at impression management. The accused is also capable of performing well and has an understanding of the risk factors and offence cycle. [ 62 ] His federal sentence expired in February of 2016. He was back in custody as a result of the current offences by September of 2016. He did receive a sentence of four years for robbery and possession of a weapon in 2012.

In 2016 in Calgary he received a sentence of 36 days for possession of stolen property and failing to comply with a recognizance. In 2017 he received a sentence of 30 days pre-sentence custody for a conviction for possession of stolen property. [ 63 ] His record is replete with property-related offences dating back to 1998 in youth court in Alberta. He has, thus, spent the last 20 years in a custodial setting or a large number of those years. He has had the benefit of probation and parole.

He is capable of doing well, performing well, however, he violated his parole on three separate occasions and accumulated new charges while supervised in the community. He has not posed a security concern while in custody.

The report writer is of the opinion that his greatest risk factors are to reoffend given his history of criminal thinking, his misuse of substances and his choices of associates. [ 64 ] I want to turn to the Crown submissions. [ 65 ] As I have stated at the outset, the Crown seeks a 14-month sentence for the possession of stolen property, in addition to 30-days concurrent with respect to the various breach convictions.

The Crown then seeks a consecutive sentence of four-and-a-half years with respect to the two robbery convictions. [ 66 ] The Crown submits that the accused's record is an aggravating factor for the court to consider and that the accused has multiple theft convictions, break and enter convictions, and other types of property offences including a robbery conviction in 2012. [ 67 ] The accused has spent the majority of his adult and teen life in custody.

I think it is fair to say that he has perhaps become institutionalized. [ 68 ] The accused also has a history of opioid use and is currently on suboxone. [ 69 ] The Crown has drawn the court's attention to the following decisions: R. v. Lawson , 2012 BCCA 508 ; R. v. McLaren , 2015 BCCA 478 ; R. v. Bowman , 2004 BCPC 297 ; R. v. Slater , 2010 ONCA 376 ; R. v. Ward , 2006 BCCA 153 ; and R. v.

Ward , 2005 BCPC 630 . [ 70 ] I have had the opportunity of reviewing those decisions and will refer to them more extensively in my conclusion. [ 71 ] The Crown submits that the aggravating factors are the accused's prior record and the circumstances of all the offences but, in particular, the accused’s holding a pair of scissors during the course of the second robbery in Maple Ridge, in the direction of the store clerk.

Thus, the Crown submits that a sentence of four-and-a-half years is a fit sentence with respect to the two robbery convictions. [ 72 ] As I have indicated at the outset, the Crown also seeks a further period of 14 months consecutive with respect to the balance of the charges. [ 73 ] The Crown seeks a DNA order pursuant to s. 487.051(1), plus a lifetime firearms prohibition pursuant to s. 109 of the Code. [ 74 ] The Crown has provided her calculation with respect to the accused's pre-sentence time in custody and, as I have stated at the outset, being actual time of 941 days, with credited time would be 1,412 days in custody. [ 75 ] I want to turn to the defence submissions. [ 76 ] The defence seeks a sentence of 40 months with respect to the robbery charges, plus a consecutive sentence of eight months with respect to the balance of the charges for a global sentence of 48 months. [ 77 ] Defence counsel acknowledges the serious nature of the robbery charges but points out that there was no suggestion that the accused was brandishing the scissors in either robbery.

Defence submits that the accused had the scissors in his hand, down by his side, in the first robbery in Langley and that he had the scissors in his pocket on the second occasion when he then removed them and left them on the counter. The video does not reveal that the scissors were pointed at the clerk in the second robbery. Defence counsel submits that the accused did not bring the scissors to the first robbery but, rather, had found the scissors on the counter and took them to the second robbery.

So thus, the defence does not agree that the accused used the scissors in any threatening manner on either occasion. [ 78 ] Defence counsel submits that the offences were all crimes of desperation to sustain the accused's drug addiction. The defence submits that the accused is an individual who comes from a disadvantaged background and that he has not had the stability of a solid home life. The accused experienced serious upheaval as a child and was removed from his mother's house. He did not know his father.

Defence counsel submits that the accused is an insightful and, indeed, an intelligent person and, thus, has the capacity to have insight into these offences. [ 79 ] The accused finds that jail is a place where he actually does feel safe and that he wanted to be arrested on these offences. [ 80 ] The accused acknowledges that he has struggled with cocaine and methamphetamine use.

He was in the throes of serious drug addiction at the time of the current offences. [ 81 ] Defence counsel submits that the accused does not struggle with mental health issues but it is acknowledged that he has ADD and that the ADD has impacted his decisions in the past. The defence submits that the accused's unstable background, ADD, and drug use have become, in essence, a perfect storm resulting in his accumulating a significant record.

[ 82 ] The defence has filed reference letters which have been marked as Exhibits 5 and 6 in this sentencing. I have had the opportunity of reviewing those letters. The first is a letter from the accused's relatives, being his aunt and uncle, who reside in Moose Jaw and who are prepared to have him reside with them upon his eventual release. I find that letter to be insightful with respect to the accused's past as a child and also hopeful for the future. His relatives are not only willing to have him live with them but also to work with him to help him get back onto his feet.

The accused's aunt then provided a further letter, dated March 5th, which has been marked as Exhibit 6, and reiterates her desire to have the accused reside with her and her husband in Moose Jaw. [ 83 ] Defence counsel submits that the family in Moose Jaw will provide a stable and supportive environment for him upon his release, especially given his aunt's prosocial values. It is clear that she hopes to go out of her way to assist her nephew. [ 84 ] The defence acknowledges that the accused still has to deal with outstanding matters in Calgary before he is able to move to Moose Jaw.

He may well receive further time with respect to those charges. However, his family is aware of those further Alberta charges and is prepared to continue to work with him after he has concluded the totality of his sentence. [ 85 ] The defence also filed as Exhibit 7 a series of certificates of achievement obtained while the accused has been in custody.

The dates of those are January 2016, November 2016, December 2016, as well as in the early part of 2017 from January through to May of '17. [ 86 ] The accused denies using any drugs since his arrest in September of 2016 and that he has been seeing an alcohol and drug counsellor while in custody. He is also on suboxone. [ 87 ] The defence submits that the accused's plan to live in Saskatchewan with his relatives is a good release plan and that, moreover, his family are fully aware of his criminal record and his past struggles.

Their support has been unwavering throughout. [ 88 ] Defence counsel submits that the court must be mindful of the sentencing principles set out in 718 to 718.2 of the Code and, in particular, 718.1 which is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender and that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh, as set out in 718.2. [ 89 ] The defence has drawn my attention to the following decisions: R. v. Dhindsa , [2018] B.C.J. No. 268 ; R. v. Buschkewitz , [2006] B.C.J. No. 665 ; R. v.

Haggstrom , [2017] B.C.J. No. 1237 , and R. v. Muncey , [2014] B.C.J. No. 947 . [ 90 ] I have had the opportunity or reviewing those decisions. Defence counsel submits that the Muncey decision is perhaps the most similar to the case at bar. [ 91 ] Defence counsel submits that the accused has had no convictions for assault, that he is not a violent person and that he has not been involved in institutional fights and that, in mitigation, he is still young enough to be rehabilitated. He has been offered a supportive plan by his relatives. Such a plan has not been provided in the past.

The accused has shown that he is capable of rehabilitation and that he has taken counselling while in custody and has stepped away from active drug use. [ 92 ] Defence counsel also submits that I should consider the guilty pleas as a major mitigating factor. Defence acknowledges that it took some time for the pleas to be entered but current counsel only became involved in the summer of last year. The defence does acknowledge that there was a trial set with prior counsel but that the accused was not willing to press ahead with that trial.

He, thus, entered the guilty pleas to the robberies in November of 2018 after he had retained his current counsel. [ 93 ] The accused also made a statement to the court last day in which he expressed remorse for the robberies. His position is that he was not in the stores to hurt the clerks but, rather, to obtain property, being cash and product. This statement does suggest someone who is mindful of his behaviour and the consequences to others of his behaviour. He acknowledged that he committed these offence because "he was getting sick and desperate".

In other words, there was drug use at the root of these offences. [ 94 ] I will turn to my conclusion. [ 95 ] I would like to review the case law submitted by counsel before dealing with my analysis. [ 96 ] In R. v. Lawson , the B.C. Court of Appeal upheld a 29-month sentence after giving the accused credit for seven months' pre-trial custody for property-related offences. A CSO was not appropriate given the accused's lengthy record. The accused had a lengthy criminal record.

He also had a history of failing to abide by conditional sentences. [ 97 ] The Crown in Lawson relied on a number of sentences which supported a sentence of three years and they all involved property offences and offenders with lengthy criminal records. The sentence was not unfit. The Crown relies on this decision in seeking a 14- month sentence regarding the property-related offence. [ 98 ] In R. v. McLaren , the accused stole a motorhome and was convicted of theft of a motor vehicle of $5,000. The trial judge sentenced the accused to 18 months' imprisonment.

The accused appealed and the sentence was varied to 12 months. The sentence of 12 months more adequately reflected proportionality, while recognizing the accused was deserving of a more severe penalty than the low end of the range. The accused has an extensive criminal record including 40 criminal convictions. [ 99 ] In R. v. Bowman , which is a Provincial Court decision, the accused pled guilty to offences involving robbery and unlawful confinement of an older woman clerk. He had flashed a knife upon entry to the store. He took cash and store product. The accused had an extensive criminal record.

The court sentenced the accused to four years. The accused had six prior robberies and an attempted murder conviction. It is interesting that in Bowman the Crown had applied for a long-term offender designation which was allowed and then counsel agreed to a sentence that was greater than two years. So in that sense, Bowman can be distinguished. [ 100 ] In R. v. Slater , the accused was sentenced to an eight-and-a-half year term of imprisonment, less two-for-one credit for time

spent in pre-sentence custody. The accused had robbed a bank teller of $3,000 by stating that he was in possession of a gun. He was on probation at the time of the offence. He had a history of offences driven by drug use. The sentence appeal was dismissed. In Slater , the sentence came within the range of sentence suggested by the accused's counsel. So again, this case can be distinguished. The circumstances in Slater were clearly more aggravated than here. [ 101 ] In Ward , the accused was convicted of five counts of robbery after pleading guilty and was sentenced to five years' imprisonment.

The trial judge emphasized denunciation and deterrence given the fear that the crimes had caused in a small community. The Court of Appeal held that the sentence imposed was not outside the normal range for five charges of robbery and given the accused's circumstances. The accused's heroin addiction required serious treatment which he would receive in the federal system. Again, in my view, the Ward decision is distinguishable. [ 102 ] I would like to turn now to the defence cases. [ 103 ] In R. v. Dhindsa , the accused had pled guilty to three robberies of convenience stores.

In that case, wearing a mask during one of the robberies and in violation of his bail and probation. The stores were all operated by a solitary clerk in the middle of the night. The accused had a knife in one case and an accomplice who threatened to shoot the clerk in another robbery.

The accused had a recent criminal record including three counts of theft and noncompliance with court orders. [ 104 ] The Crown sought a sentence of three years concurrent for each robbery charge and masked-face charge and one day for the bail breach and probation breaches, less credit for time served. [ 105 ] Judge Gaffar sentenced the accused to a total of 226 days of imprisonment. The court found that the use of a weapon, repeated victimization and the shooting threat, all against vulnerable clerks, were aggravating circumstances. Also his noncompliance with court orders was an aggravating circumstance.

However, the guilty plea was a mitigating circumstance. The accused also had a potential, workable recovery plan, as here. Denunciation and deterrence were the primary sentencing considerations. There was drug addiction at play, as is the case here. The court opined that the accepted range of sentences for robbery was between two and nine years. [ 106 ] In Buschkewitz , the accused was sentenced to two years' imprisonment on charges of robbery of a convenience store and time served for a charge of theft.

The court took into consideration the accused's diagnosed mental illness, his criminal record and the need for general and specific deterrence, as well as denunciation. The accused was also given probation for three years. In mitigation, the accused had pled guilty to the charges. [ 107 ] Judge Watchuk, as she then was, considered that it is always important when dealing with offenders who suffer from mental illness that rehabilitation be considered. In that case, the accused was under treatment. The other primary principle of sentence is protection of the public in these types of cases.

The court also considered as an aggravating factor that there were offences on the accused's record from 1987 to 2006, almost 20 years. There were property-related offences and offences of violence. The most serious offence on the record was an offence of robbery of a convenience store for which the sentence was two years plus probation. [ 108 ] In R. v. Haggstrom , Judge Hamilton of our court sentenced the accused on two robberies. The offender was 21 years of age, addicted to crystal methamphetamine and owed money to his drug dealer. The accused robbed two convenience stores to satisfy the debt.

The accused pled guilty. He had no prior convictions. The Crown had sought a three-year sentence. Defence counsel sought a 20-month sentence plus time served. The court imposed a sentence of two years less eight-and-a-half month’s credit for time served, plus probation for two years. [ 109 ] The aggravating factors were the use of face masks, the presence of premeditation and the confinement of the store employees. However, the mitigating factor was the lack of prior convictions, the accused's youth and the guilty pleas. [ 110 ] In R. v.

Muncey , the accused was sentenced after he was convicted for robbery and using an imitation of a firearm. He had pointed an imitation firearm at a convenience store clerk, demanded money and left with $30 as a passenger in a waiting vehicle. He was young, with a long, prior record. The accused had a prior sentence of three years for robbery, plus substance-abuse problems. He failed to appear before his bail supervisor and before the court for sentencing. He had spent 176 days in pre-sentence custody. [ 111 ] The Crown sought a sentence of five to six years.

The defence argued for a sentence of three to four years. Mr. Justice Voith sentenced the accused to three-and-a-half year’s imprisonment for robbery, plus 18 months consecutive for the use of an imitation of a firearm. I note that there were no mitigating factors in Muncey of a guilty plea. [ 112 ] Defence counsel has drawn my attention to paragraph 16 of that decision where there is reference made to the accused’s having attended rehabilitation programs over an extended period of time and as having a lengthy criminal record, including property-related offences.

The accused in Muncey had 18 adult convictions, less than is the case here. The accused did have a prior conviction for robbery in January of 2009 for which he received a sentence of three years. He was also on probation when he committed the offences in question. I note that in Muncey the court did a step-up of the sentence from the prior three years to three-and-a-half years but there was not the mitigation of a guilty plea as here. [ 113 ] Now, I will, in a minute, turn to my analysis. It will take a few minutes and I think maybe this might be a good time to take our morning break.

So I will just break off my reasons, sir, we will have our break and I will come back and finish. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [ 114 ] THE COURT: I will turn to my analysis portion. [ 115 ] I will now examine the mitigating and aggravating circumstances of these offences and the offender, first of all dealing with the aggravating circumstances.

[ 116 ] The accused has a lengthy record of property-related offences and breaches of court orders dating back to 1998. He has one prior robbery conviction in 2012 for which he received four years, plus one year concurrent for possession of a weapon.

He received a mandatory prohibition under s. 109 at that time. [ 117 ] Since 2012, the accused has accumulated two subsequent convictions for possession of stolen property and failing to comply with a recognizance, as well as a conviction in Surrey for possession of property for which he received 30 days pre-sentence time in custody. [ 118 ] While the accused is capable of performing well on probation and parole, he has also violated his parole on three separate occasions. He has accumulated new charges while being supervised in the community on bail.

His greatest risk factors to reoffend include his history of pro-criminal thinking, his misuse of substances, and his choice of associates. He, thus, has demonstrated difficulty with prosocial functioning. [ 119 ] In the two robberies on the 13th of August of 2016, he was looking for money and product to fuel his drug addiction. He did grab a pair of scissors in the first robbery which he then took to the second robbery. I accept the defence position that the accused did not use the scissors in an aggressive manner towards the two store clerks.

However, an aggravating factor is that both clerks were confined behind the counter. [ 120 ] The breaches of court orders are also of concern. They arise in the same timeframe as the robberies, being in August and September of 2016. The accused has shown an inability to comply with court orders. I consider the breaches and the number of breaches to be an aggravating factor. [ 121 ] The accused also committed the substantive offences of possession of stolen property and robberies while on bail.

That, too, is an aggravating factor. [ 122 ] Now turning to the mitigating factors. [ 123 ] The accused, by virtue of the guilty pleas, has accepted responsibility for his actions. He has saved court resources and the need for the Crown to call a significant number of witnesses. The accused did set the original Chilliwack charges for trial but, upon obtaining new counsel, indicated his wish to plead guilty to the other charges and to arrange for them to be waived to Chilliwack for disposition.

The guilty pleas were, thus, rather late in the day but did occur nevertheless. [ 124 ] The accused has also expressed remorse for his criminal behaviour and a recognition that his drug use was behind his offences. He acknowledged that he felt badly for the two store clerks. [ 125 ] The accused also has generated a rehabilitative release plan which he has not done in the past in the same way as now. That plan involves the support of family members in Saskatchewan. His aunt and uncle have written a letter of reference indicating their commitment to the accused's plan.

The aunt seems to understand that the accused, while hopeful, is also anxious about his being released into the community but his aunt also advises that their place in Saskatchewan is the best place for him. Their residence will provide emotional connections, structure, a recognition of family history and support. [ 126 ] In further mitigation, the accused has taken a number of courses while in custody and is now on suboxone treatment. Thus, there is no suggestion the accused is currently using illicit drugs.

It is hopeful he will not relapse into drug use. [ 127 ] I want to turn to the legal principles. [ 128 ] Those principles are set out in 718 to 718.2 of the Criminal Code .

I have considered all those principles and, in particular, general deterrence, denunciation, protection of the public and rehabilitation of the accused. [ 129 ] I am mindful that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 130 ] I am also mindful that the offences, most especially the robberies, had a significant impact on the victims and most especially the clerk in the first robbery, John Savage, who wrote that the robbery has affected his life every day. [ 131 ] I am also mindful that the sentence should be similar to sentences imposed on similar offenders, for similar offences, committed in similar circumstances and that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. [ 132 ] The accused has been in custody now for a total of 941 days and I am prepared to give him credit on a 1.5 basis for pre-sentence time in custody of 1,412 days or 47 months and five days. [ 133 ] I also have no evidence that the accused has used illicit drugs while in custody or that he has been a management problem.

He has been placed on medical suboxone treatment. His positive conduct while in custody and his rehabilitative plan with his family offers hope for his future after his release from custody. [ 134 ] I am also mindful that he has further charges to deal with in Alberta and the hope, of course, going forward is that his positive work to date while in custody will continue. [ 135 ] I want to turn to the range of sentence. [ 136 ] The accepted range of sentence for a robbery is between two and nine years, depending on the circumstances of the offence and the offender.

However, rehabilitation always remains a factor. [ 137 ] The Crown has provided cases at the higher end of the range while the defence has provided cases at the lower end of the range. They will be seen as more helpful when considering what sentence is a fit sentence here.

[ 138 ] The defence seeks a global sentence of 48 months, while the Crown seeks a global sentence of six to eight months.

However, I am mindful that the need for proportionality is important in the sentencing, given the many factors that must be balanced. [ 139 ] It can well be said that all these offences arise during a drug-induced spree in the months of August and September of 2016. [ 140 ] I have considered the facts, the submissions of counsel, the case law to which they have referred, the mitigating and aggravating circumstances and the purposes and principles of sentencing set out in 718 to 718.2, as well as the pre-sentence time in custody. [ 141 ] Mr. Korte, if you would stand.

I just want to deal with each of these Informations individually. [ 142 ] On Information number 102525, Count 1, that is the possession of a truck, the property of Natasha Weiss, the sentence is eight months in custody. [ 143 ] On Counts 6, 9, 10 and 11, the sentence is that of 30 days concurrent. [ 144 ] On Information 65729, the sentence is as follows: Count 3, breach of an undertaking, the sentence is 30 days concurrent. [ 145 ] On Information 96956, the sentence is as follows: Count 1, that is the robbery of John Savage, the sentence is four years; and on Count 2, the robbery of Shannon Hanley, the sentence is four years concurrent to Count 1.

The four years is to be consecutive to the eight months global sentence on the first two Informations that I have referred to.

I will credit the pre-sentence time in custody of 47 months, five days on Information 96956, that is the robbery Information, leaving 25 days to be served on that matter. [ 146 ] The global sentence thus remaining is one of eight months and 25 days to be served. [ 147 ] I will make the following ancillary orders. [ 148 ] First of all, a DNA order in Form 5.03, pursuant to s. 487.051(1) with respect to Information 96956, that is the robbery matter because it is a primary designated offence. [ 149 ] A lifetime firearms prohibition pursuant to s. 109 of the Criminal Code . [ 150 ] My reasons are to be forwarded to the Correctional Services of Canada and that, of course, is pursuant to s. 743.2 of the Code. (REASONS FOR SENTENCE CONCLUDED)