R. v. D.R.M.L. Date:, 2012 BCPC 184

Citation: R. v. D.R.M.L. Date: 20120427 2012 BCPC 0184 File No: 189310-2C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D. R. M. L. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P. D. GULBRANSEN Counsel for the Crown: P. Barclay Counsel for the Defendant: B. Anderson Place of Hearing: Surrey , B.C. Date of Hearing: April 27, 2012 Date of Judgment: April 27, 2012

[ 1 ] THE COURT : Mr. D. R. M. L . has pleaded guilty to one count of committing theft of a motor vehicle, an indictable offence. [ 2 ] On October 6th, in the early morning hours, he stole a "bait car" in Surrey and drove off in it. There was a passenger with him. There is a recording made of his utterances in the car, and he seems to have suspected he was in a bad situation. He may have thought it was a bait car. He drove that car some distance. It was clear he was looking for another car to steal, and he was with another man. Eventually the police converged on him and he tried to get away.

He drove somewhat dangerously through a couple of stop signs, the car was disabled, he ran away and was caught. [ 3 ] He has been in custody since then for seven months. [ 4 ] The Crown says because of this man's long, long record, he should get three years in jail. The defence says that a conditional sentence is the better approach. He has got a detailed plan to deal with a longstanding addiction problem by going to King Haven, a well-known and highly-respected treatment centre. He has been accepted there.

That, in a nutshell, is what the difference is in the position of the Crown and defence. [ 5 ] The Crown says that really he has been in and out of jail from 1995 until present. He has received prison sentences, relatively short prison sentences, for property offences and driving offences over the years, year in/year out; concurrent sentences for four months, nine months, five months, nine months, three months, six months, et cetera. Later on in his life, and he is only 33, the courts decided to give him a conditional sentence. He got one in 2001, one in 2007 and one in 2010.

In each case, those conditional sentences were terminated after some attempts to have him rehabilitated. He has got a background of having three conditional sentences and not being able to comply with them for their duration.

To be fair, he tried in each one, but he was not able to complete the conditional sentence. [ 6 ] Given these circumstances, the Crown says the only way to both protect society from him stealing things, to deter him from committing further such offences, to deter others who commit these offences, and I suppose to denounce the stealing of cars, although that is not quite as important here, in my view, I ought to give him a federal sentence.

The Crown also says that I should be very sceptical of this man's expression of his motivation to rehabilitate himself. [ 7 ] Defence counsel, in a really careful and excellent submission, has put to me that conditional sentences can be given to people who have got long records where there is evidence that they have really turned their life around and can change. He has also said I should take into account, and I think I have to, the aboriginal background of this man. [ 8 ] The Gladue report that I received is particularly unsatisfactory, in my view.

It does not set out who the person is who drew it up, in the sense of the person's background, training and experience. I do not know anything about her. Secondly, it is, frankly, far too much of an advocacy piece as opposed to a more objective report. Thirdly, in my view, it does not go deeply enough into the aboriginal aspect of this man's life and of aboriginal life in general; rather, it more expresses a strong-felt belief, and I do not doubt this man is sincere, but a strong-felt belief that he really is going to change and wants to change and has the tools to do it.

I do not give much weight to that report. [ 9 ] What is his background? I think I have to consider this very carefully before I consider what a fit sentence is. It is a terrible background. It is unfair. He was taken from his parents, his mother, when he was young. His mother was not in his life after that, and neither was his dad. He did not grow up in a family, in a neighbourhood, in a stable school, et cetera. He went from foster home to foster home. He was badly mistreated as a child in a foster home, very badly mistreated.

I know that the Ministry of Family and Child Services really has a huge workload and really cannot cope with some of its workload, but it seems that he really was neglected by everybody, he and his family, to the point where he was not even brought up in a stable family, he was not even with his siblings all the time, not growing up going to school with his friends and hanging out with his friends and playing sports and going to birthday parties and things like that. He is going from foster home to foster home; he was not adopted.

There is no question that by the time he is a teenager, he is a bitter, lost young man, and through no fault of his own. There is nothing he did, nothing, to put himself in that situation. So he ends up living the drug lifestyle. He turns to drugs and he associates with people who are doing drugs. But what happens is an "unending" series of offences, over and over and over again until now. [ 10 ] What I might question, and what we all might question, is this; that the first reaction to his offending as an adult is that he goes to jail. The first reaction to him as a youth; he goes to jail.

He is 16 years old in 1995 and he gets four months for a break and enter. There is no consideration of his background there, no consideration of what is going on. [ 11 ] I will make this remark. Mr. D. R. M. L . is a very intelligent man. He spoke very well to me here and I have read the letters that he has written. Not only is he very articulate, but he writes very well, has well-organized thoughts. He is a man of high intelligence. So why did nobody notice that when he was a child? Why did somebody not try to encourage him to go to school? Why did somebody not try to keep him in school?

I know it would be tough. By the time he is a teenager, he is not going to listen to anybody, but there is a great potential here that has been, so far, terribly missed, because he could have, in my view, gone far in school and done very well and done all kinds of occupations. He has got the brains to do it and he has got the mental acuity to engage in all kinds of educational opportunities. He never did; he spent all his time in jail. He has been sentenced to jail almost every time he did something. [ 12 ] The difference though, as I see it, is the Gladue issue finally came to light.

I do not know when it did, but by the time he started getting a conditional sentence order in 2001, the courts were at least, I believe, trying to take into account his background and trying to give him a chance to change, to be someone he could be. A conditional sentence in 2001 and relatively short sentences thereafter. A conditional sentence in 2007 and a conditional sentence in 2010. Three times he got a conditional sentence.

It is rare that someone gets two conditional sentences, so I think the courts have taken into account his aboriginal background and the need to sort of break the cycle that people talk about. [ 13 ] I have no doubt that he is quite sincere about what he wants to do. He has expressed himself very well, but I am also certain that he has expressed himself just as well to other judges. I am sure I am not the only judge who has been impressed by him.

[ 14 ] Putting aside the Gladue report, the letter from Mary-Jo Redland, filed by counsel, really says a lot. She says this: It is understandable that a person with such a history as this would grow up with a chip on his shoulder. For much of his life, D. R. M. L . lived with a sense of entitlement and a feeling that others should be helping him more. She goes on to identify I think probably what he was like, and she then goes on to say: I think he has changed. He is working wholeheartedly towards his goal for a better life for himself and his family. He has taken all the courses he should.

So that is some pretty good evidence that he at least has got a strong positive attitude. [ 15 ] So what is a fit sentence here? It is a serious offence. Crown counsel gave the number of property offences he has committed; it is in the 70s. It is a serious offence in that he has stolen a car and driven dangerously. Surrey is not an empty city in the early morning hours. Near Scott Road, there are cars on the road. He drove dangerously in a stolen car. Someone could have been killed. Luckily, they were not.

That is something I have to consider in terms of his attitude towards the law. [ 16 ] Secondly, he stole a car. While lots of people's cars get stolen, it is not a minor crime. It is something I have to look at very carefully. That is a very serious aspect of the case. [ 17 ] In my view, the Crown has taken a very moderate position in terms of sentence.

Frankly, a person with this kind of a record, had he not been an aboriginal or not had the clear intelligence and ability that this man has, he would have gotten longer sentences a long time ago. [ 18 ] Taking into account that other cases have considered conditional sentences in similar circumstances, could I impose a conditional sentence if I decided that two years less a day was a fit sentence? I am bound by the principles set out in the Criminal Code and to grant you a conditional sentence, I have to conclude first that the fit sentence is two years less a day, or lower.

Assume that is the case. [ 19 ] Secondly, would it endanger the community to release him into the community? That is, it does not mean would people be in danger of their lives or getting harmed, it just means would a crime be committed, and what is the risk of him committing a crime and the nature of the crime if he is released into a conditional sentence? [ 20 ] I am afraid I have to say that it is almost certain that if he is released on a conditional sentence, this man will commit another crime. It is just a matter of time.

I know he is well motivated, and I believe he is well motivated, but his record over the last 17 years is that he is unable to stop criminal activity, and he has been unable to complete a conditional sentence. I would conclude, I am afraid, that it would endanger society to release him on a conditional sentence if two years less a day was a fit sentence. [ 21 ] This is not something that I enjoy doing, because I think his counsel has identified quite clearly the tragedy of this man's life.

He is a young man still, he is only in his 30s, and I point out again, he is a highly intelligent man, he is able to do a lot. He has got horrible judgment and I think the core of his problem is to learn to deal with his background. That is easy for me to say; I did not grow up being rejected by society, being rejected by foster parents, being deprived of an education and being deprived of my dignity. So I am not saying that it is an easy thing to do, but it is something he is going to have to deal with. [ 22 ] His counsel made an excellent point; who says that prison really works to decrease crime?

It probably does not, but what it does do is it keeps people out of other people's cars while they are in jail. [ 23 ] Secondly, in a case like this, there are programs in the federal system that can help Mr. D. R. M. L . , and thirdly, there is parole. There is parole, and I think he might well be able to accomplish something there. [ 24 ] Having considered all these circumstances, and having listened very carefully to your lawyer's excellent submission, Mr. D. R. M. L., I think you are a person of really great potential, but I have no choice in this case.

I owe it to society to protect society and to apply the law. I say a fit sentence would have been three years. I will give you credit for having served seven months in prison. [ 25 ] The sentence is 29 months, no victim fine surcharge, and I direct that DNA samples may be taken under s. 487.05(1). [ 26 ] That is my sentence. (REASONS FOR SENTENCE CONCLUDED)