R. v. Morgan and Bamberry Date:, 2013 BCPC 99

Citation: R. v. Morgan and Bamberry Date: 20130305 2013 BCPC 0099 File No: 194954-2-C, 186401-2-A Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TROY MORGAN and WARREN BAMBERRY ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P.D. GULBRANSEN Counsel for the Crown: W. Sayson, Q.C. Counsel for Morgan : C. Browning Counsel for Bamberry : M. Berry

Place of Hearing: Surrey , B.C. Dates of Hearing: December 10, 2012, March 4, 2013 Date of Judgment: March 5, 2013 INTRODUCTION [ 1 ] THE COURT : Troy Morgan and Warren Bamberry have pleaded guilty to breaking into a dwelling house and robbing its occupants.

They have also pleaded guilty to related counts of unlawful confinement, having their faces masked with the intent to commit an indictable offence, and assault with a weapon; a crowbar in the case of Morgan and pepper spray in the case of Bamberry. [ 2 ] The Crown seeks a sentence of eight-and-a-half to nine-and-a-half years for Morgan, and seven to eight years for Bamberry. [ 3 ] The accused do not deny that the court must impose a prison sentence of some length, but submit that a fit sentence in these particular circumstances, considering the personal circumstances of both accused, would be in the range of five years.

Each accused also suggest that they should receive enhanced credit beyond the one-to-one ratio for the nine months they have served in custody. CIRCUMSTANCES [ 4 ] The circumstances are briefly as follows. In the early morning of June 8th, 2012, the two accused approached a home located at 145A Street in Surrey. There were three occupants there; a man, Slate Swain, his spouse, Lisa Little, who was seven months pregnant, and Mr. Swain's son, a 16-year-old boy named Chase McLaren.

They were all asleep. [ 5 ] Some of the evidence in this case came from recordings made by nine surveillance cameras which were posted around this house. It was about 2:00 a.m., and the video shows Morgan and Bamberry approach the house, which was at the end of a cul-de-sac. It was not an isolated place, but more isolated than a place on a busy street, for example. [ 6 ] Morgan can be seen carrying a crowbar. He used the crowbar to start prying the door open, and the two men forced the door open and go inside.

It turned out that the young boy, Chase, heard what was going on, heard the noises of breaking in and then heard shouting, obviously at his parents, for them to get on the floor, and some other words. He instantly took his cell phone and, a very quick- thinking young man, phoned the police, talked to a 9-1-1 operator.

The Crown played a recording of that wherein Chase provided accurate information to the dispatcher about what happened, and was kept on the line as police were dispatched. [ 7 ] In the end, this particular incident did not take very long, because the police were dispatched and did arrive in the midst of this offence going on. Nonetheless, before the police arrived, quite a bit happened. [ 8 ] Morgan and Bamberry had forced their way into the bedroom where Mr. Swain was. Mr. Swain had come out of the bedroom and gone back in.

They started yelling at them and demanded things from them like money, jewellery, and I suspect they were also asking for drugs. It appears that both Bamberry and Morgan thought that there was a quantity of cocaine in this house. That is what they were there to get. It turns out there wasn't any, and they ended up taking the two victims downstairs. [ 9 ] There was a safe in the detached garage, but it was a safe that was unused. The prosecutor showed the court a picture of that safe. It was on the floor, but if you open it, it is completely rusted because it gets flooded whenever the area floods.

So there was nothing in the safe. [ 10 ] It appears that the two intruders were very frustrated and started demanding, again and again and again, money, jewellery. Bamberry was sort of the person in charge of Ms. Little, and he took her upstairs twice to try and find things for them to take away. He rummaged through the drawers of their bedroom. The first time he found nothing. He went back upstairs again once Swain had told his spouse where something could be located, some sort of watch or jewellery. Eventually they located a gold chain and a watch, which Bamberry took possession of.

He had already taken $80 in cash which was there, and a ring. [ 11 ] In terms of the account of what happened, Mr. Swain declined to cooperate with the police or to give a statement. Ms. Little did. She told Bamberry that she was pregnant, and Bamberry acted appropriately in the sense that he did not use any overt physical violence on her. He controlled her, pushed her, prodded her, but did not commit any acts of significant violence against her. [ 12 ] Secondly, when Bamberry was upstairs, at one point he opened the door of Chase's room, but Ms.

Little encouraged him to leave Chase alone, "He's just a kid." Bamberry shut the door and did not pursue it any further. [ 13 ] There is some account by Ms. Little of further violence between Mr. Swain and the two accused. That is denied by the accused. That is of little moment. I do not think the Crown is in a position to say, without Mr. Swain being willing to provide his version of events, what happened, but I find it is quite likely that Mr. Swain resisted and struggled with Mr. Morgan. Morgan was there unlawfully and was committing an unlawful act by using his crowbar to menace people - using it as a weapon.

Any struggle that Mr. Swain decided to engage in, of course he is the victim of an unlawful act by Mr. Morgan, but I am not taking into account the allegation that was made through Ms. Little that there was further significant violence perpetrated by the two men on Mr. Swain in her presence.

It is of little moment, because it is clear that these men were making very vocal, very threatening demands that money, jewellery or other things be produced so they could take them, and it must have been accompanied by threats and menaces, otherwise the people involved would not have done what they said. [ 14 ] To make it a little more vivid here, we have got a woman who is seven months pregnant, sometimes separated from her husband. I can just imagine his concerns about what would happen to her when he cannot even see what is going on with her.

So whether or not there was further violence between the two men and Swain is of little moment.

[ 15 ] In any event, on a couple of occasions, Bamberry was upstairs. He got some goods from them. He came back downstairs, he or Morgan looked through the kitchen, and the drawers in the kitchen were rummaged through as well, looking for anything they could steal. [ 16 ] The video shows that probably just within a matter of not much longer after Chase had called, a large contingent of police showed up in the cul-de-sac, a dozen or more, and they can be seen getting ready to go into the house. Some went to the back and some went right into the house.

By my observation, they walked in in an organized fashion, and when they got in there, they first encountered Bamberry. I think he was in the kitchen. He did not surrender right away, he tried to take off and somehow deployed the pepper spray that he had on him. Now, that had not been deployed before, and what counsel tells me is he basically pepper-sprayed himself. He could quite well have done that in a panic, as opposed to trying to distract the policemen chasing him. He may well have been trying to do that, but it did not work. He ran towards the back of the house, but was caught inside the house.

Some violence had to be used on him to get him to comply. He was hit a couple of times in the head with the butt of a rifle, and probably some more violence was used on him to subdue him. He was cooperative thereafter, and he was taken back to the detachment and even then I think he was expressing his guilt and his regret for committing this crime. [ 17 ] He had in his possession money, the watch, the gold chain and a ring, all of which he had taken from the occupants of the house. All that property was returned. [ 18 ] Morgan was still in the garage with Swain.

It looks like Swain continued to struggle with him, and I recall Mr. Sayson saying that Swain somehow had the crowbar and threw it at Morgan. This is probably after the arrest. Swain said something to the effect that, "You chose the wrong place, buddy, you don't know who I am." In any event, Morgan surrendered without incident. [ 19 ] Both accused were then taken back to the police detachment and have been in custody ever since. [ 20 ] Neither of the victims suffered any serious injuries and I was not given Victim Impact Statements by any of them. They declined to make them.

CIRCUMSTANCES OF THE ACCUSED [ 21 ] As a generalization, I think it can be said they both come from troubled backgrounds, and I think I can say that Mr. Bamberry's background is troubled in a much more complex manner. He suffers from more inherent problems than Mr. Morgan does. Morgan [ 22 ] Mr. Morgan is 42 years old and grew up in the Lower Mainland. He did not have a happy childhood. It could best be described as horrific. He has been troubled with drug addiction for most of his adult life. He was using crack cocaine daily when this particular offence was committed.

From the Pre-Sentence Report, it appears he has tried, unsuccessfully, to try to kick the habit several times, but it has not worked. He has been employed at various jobs throughout his adult life, after he finished school. I do not think we can say that he has any particular occupation or profession, but he has been able to work in the community fairly consistently. [ 23 ] He has a criminal record. It, oddly enough, started when he was 26 years old; a conviction for assault. It may be related to him getting more and more caught up in drugs.

The most serious offences are two convictions for robbery in 2003 where he got a three-year sentence. He also has two other assault convictions. [ 24 ] The material filed by counsel shows that he still has support in the community. Ms. Gregson, the woman with whom he has been living for a period of time, expresses a hope that he, when he gets out of prison, can continue to be with her and her family. She says many positive things about him. Another person has filed a letter saying that he would hire Mr. Morgan as a delivery driver for his business.

The point there is he still has some support in the community and there are people who believe that he can live a normal life. So there is still some hope for rehabilitation for this man. Bamberry [ 25 ] Mr. Bamberry is much younger. He is 24 years old and he has been plagued with a troubled existence from the day he was born. He is an aboriginal man. He never knew his natural parents. He was adopted at age three by Mr. and Mrs. Bamberry.

They have, over the years, done whatever they could to try and help him and to try and get him on the right path. [ 26 ] Although we do not have a definite diagnosis put before this court, it seems extremely likely that Mr. Bamberry suffers from Fetal Alcohol Spectrum Disorder. At birth he was probably also affected by his mother consuming drugs, as well as alcohol, when she was pregnant. He has also been diagnosed as having Attention Deficit Hyperactivity Disorder. [ 27 ] He had serious problems coping with school right from the beginning, right from Grade 1, and his education was really slow and difficult.

By the time he was in high school, he had to be put in an alternative program where he went to school half a day. His parents remark that he was really set adrift; half a day at school and half a day he just got to do whatever he wanted. For a person in his situation, that was the worst thing that could happen, giving him some idle time. In any event, his high school education, it seems to me, never really amounted to much. [ 28 ] His mother indicates him knowing this, that he expressed feelings of hopelessness, frustration, possibly anger, at the fact that he could not seem to learn like his peers could.

He could not function like they could. It is pretty clear from that background that he is suffering from a significant intellectual deficit. [ 29 ] I have had the benefit of a very thorough and eloquent Gladue Report. In this particular case, given the nature of the crime, it is not the kind of factor that is going to play too much

part in deciding what sentence should occur, but it does explain the context of this man's life. How did he get here, how did he end up in this position?

[ 30 ] As the Gladue Report shows, the answer to this question goes back over 200 years. His ancestors are from a community that lived in Lake Winnipegosis. According to the Gladue Report, they were called the Saltaux. It is a French name. That is, they were called something which was not even their own name for themselves. That is a function of colonialism, I think. But subsequent to European presence in North America, one of the things that happened is something like the plague to this unfortunate group of people. So smallpox and measles started devastating the community, decimating the community.

It started to tear the community apart. Well- intentioned attempts by the Canadian government to assimilate native people into Canadian society ended up with them being forced to go to residential schools with the, I think universally recognized, tragic results to the lives of the people who went there, and probably to their parents. [ 31 ] Mr. Bamberry believed for the longest time that maybe his mother was dead. But, she is still alive and was interviewed by the Gladue Report writer. She indicates that she was born to a drug-addicted alcoholic mother. There were 12 children; six of them are dead already.

Her life was also plagued by drug use, abuse, and she was unable to control her drug problem and her life when her son was born. A lot of what makes Bamberry tick, a lot of what makes him troubled in our society is the result of something he had no choice over. His mother unfortunately took drugs and used alcohol, and it had severe effects on his brain and on his neurological functioning. There is nothing he can do about it.

So it does explain in a greater sense why he is the way he is. [ 32 ] Looking at his criminal record, he has got a minor record, I would say, essentially for drug trafficking, although he is not a drug addict. His first sentence was seven months imprisonment, the first time he got convicted in 2009.

He has had a couple of other jail sentences after that for trafficking in drugs, and it shows the complexity of our problem in facing what I will call the Gladue issues, the plight of native people, because probably the essential point of the Gladue decision is that there are way, way too many young native men in prison. The default position for young native men in trouble over the last century has been to put them in prison, and that is what happened to Mr. Bamberry. [ 33 ] At the same time, our system requires there be significant deterrent sentences for drug trafficking.

However, in this case, it shows how difficult the problem is, coping with Mr. Bamberry, who has got severe problems. It seems unlikely to me that a prison sentence would serve any deterrent value to this man. I am not saying the criminal justice system could never solve his problems, but perhaps some concentration on what he needs, which is structure, dignity, some sort of education, and a job, some presence in the community, some self-esteem, are not going to be achieved in prison. [ 34 ] This is not something the justice system can actually solve. Mr. and Mrs.

Bamberry, who are very loving, dedicated parents, spent many years trying to help their son and keep him on the right track, and could not do it either. The supports are not there and Mr. Bamberry's inherent problems are too severe. I just point out that it is another example of what the Gladue case was really about and how our system, I think necessarily, cannot cope with the essence of the problem without further supports for young men like him. In any event, he has got a relatively minor criminal record, as I pointed out, and no record of violence.

APPLICABLE LEGAL PRINCIPLES [ 35 ] I agree that to use the phrase "home invasion" to describe this kind of act, this kind of crime, is convenient, but it is really not very helpful because it is such an imprecise term. As a general term, that phrase refers to the situation where accused persons break into a dwelling house, knowing that the place will be occupied, often expecting that it will be occupied, and then intending there to rob the occupants of their valuables; sometimes drugs, sometimes money, sometimes other things.

But of course the circumstances of the many cases cited to me by counsel, and other cases that we all know about but we do not need to talk about here, show all kinds of differing circumstances. AGGRAVATING FACTORS [ 36 ] It is an aggravating factor under s. 348.1 of the Criminal Code , that the residence was occupied and that the accused knew that it was occupied or were reckless as to whether people were there.

There is a big difference between someone who breaks into a home intending to steal something, ignoring the fact or being lazy about whether anyone is there or not, as opposed to someone who wants to go into the home and force the people inside to give him their valuables or drugs, et cetera. But that has always been an aggravating factor in any sentencing regarding this kind of crime, well before s. 348.1 was enacted. RANGE OF SENTENCE [ 37 ] The cases are consistent that the objectives of deterrence and denunciation are paramount objectives in these kinds of sentencing.

I think I can say in British Columbia there is no set range of sentence deliberately set out by our Court of Appeal. That is made clear by the case of R. v. Bernier 2003 BCCA 134 in which a five-judge panel court sat. One of the principles that one has to distil from that case is that the idea of a range is merely a guideline.

A court has to look at how people were sentenced in similar circumstances in the past and impose sentences consistent with that, but courts are not bound by any pronouncement of the Court of Appeal as to what a particular range of sentence is to be imposed in these kinds of cases, partly because there are so many varying circumstances.

That is what I gather from the judgments in Bernier . [ 38 ] It seems to me then that in situations like this the trial court really must infer what general type of sentence or what general type of range of sentence should apply in the particular case by looking at the prior decisions and seeing what sentences were imposed in similar circumstances, and to apply general legal principles to the circumstances of both the offence and the offenders. [ 39 ] As I have said, however, the circumstances from these "home invasion" cases can vary quite a lot, and as I say, counsel have cited I think 12 cases to me to consider, all of which are quite apposite and quite important to consider in the context of this case. [ 40 ] I do think it is possible to sort of apply a broad-brush approach to this problem and to look at what is the general thrust of cases in similar circumstances.

As has been remarked before in other cases, inevitably there is a relatively lengthy prison sentence that must be imposed. Secondly, sentences of 10 to 15 years or more are reserved for cases of real gravity, and I would say cases including terrible violence, such as someone getting killed and resulting in a conviction for manslaughter, or sexual assault, or mistreatment and abuse of vulnerable elderly persons, or perhaps extortion of money and other goods from wealthy persons, and sometimes involving even

kidnapping of family members. Those kinds of cases result in very, very lengthy sentences, and when I say 10 to 15 years, it could even be more for those kinds of crimes. [ 41 ] Sentences in the lower range, and I would say in the range of five to six years, have been imposed where the offender is young, who does not have a long record. Other factors include the person having an aboriginal background, and where the circumstances of the offence are not particularly egregious. As I say, that is a broad brush of the kind of sentences that have been imposed.

CASE LAW [ 42 ] Now looking at some of the cases to see what the courts have done. In the Bernier case, the Court of Appeal reduced a sentence of 14 years to one of six years for a person who was the operating mind behind a plan to commit a robbery after breaking into someone's home, but actually did not go inside, and his sentence was reduced to six years. [ 43 ] Another case cited by the Crown, R. v. Chudley , [2012] B.C.J. No. 289 was a planned break and enter and robbery and the victim was shot. A firearm was used on the victim. He was sentenced to ten years. [ 44 ] In the R. v.

D.A.W . 2002 BCCA 336 case, it involved an elderly couple. During the commission of the crime, there was

an act which would be considered a sexual assault of the woman involved. That was a ten-year sentence. [ 45 ] The R. v. Leggo 2003 BCCA 292 case, there was confinement, significantly serious confinement, like tying up of the person. The victims were beaten with an imitation revolver. The accused had seven prior convictions for break and enter. The sentence there was six-and-a-half years. [ 46 ] In R. v. Gonzalez , [2008] B.C.J. No. 2167 a firearm was used, a 9mm pistol. That was a seven-year sentence. [ 47 ] The R. v. Cooper , [2008] B.C.J. No. 391 case was another seven-year sentence.

The accused had a bad record with prior robberies and assaults. He was a relatively young man. [ 48 ] So as a general comment, those cases cited by the Crown involve fairly significant violence; some of those accused were aboriginal persons. They were all planned robberies and break-ins, just as in the case at bar. [ 49 ] Some of the defence cases took a slightly different approach to the issues of deterrence and denunciation. R. v. Johnson and Forrester 2004 BCSC 1310 was a case involving terrible violence. Mr.

Justice Barrows' decision indicates that the offence occurred because of a quarrel or a slight between the involved parties. There was certainly a breaking-in to a home, and a terrible beating was administered on one person at least. It was not a planned robbery to intimidate and steal things from people; it appeared to be more motivated by revenge. In any event, that was a five-year sentence. [ 50 ] In R. v. Lebrun 2011 BCCA 42 the accused administered a terrible beating on the victim. This is a case that only involved forcible confinement and the unlawful use of a firearm. It did not involve a break-in.

I think they lived in the same area, same suites. He had a minor record and that was a two-and-a-half year sentence. [ 51 ] R. v. Ali 2012 BCSC 340 was a six-and-a-half-year sentence. A co-accused used a loaded firearm in committing the offence. Ali had a bad record and he was on bail at the time this happened. But in Ali , he did not personally carry the gun or beat up or confine the victim, but of course he was participating in the act and was a party to it. He was only 21 years old. [ 52 ] In R. v.

Gill and Van Dyke 2012 BCSC 1603 , the victim was assaulted with a baseball bat, hit in the face, and then he was shot as he tried to run away. Van Dyke was 39, Gill was 41 years old, with, I think minor records. Gill was an aboriginal person who had been adopted. In that case, the learned Supreme Court judge imposed sentences of five years for both of them, somewhat anomalous judgment, in my view, but I note that in giving his reasons for judgment, the Supreme Court judge indicated that, and he charged the jury in this case - he had to give a Vetrovec warning.

That is, a warning about dealing with accomplices, in relation to the testimony of the victim, who had been hit in the face and shot. It turns out that the victim was involved in running grow operations for the brother of Mr. Gill and that may have played a role in assessing the circumstances in this five-year sentence. [ 53 ] In R. v. N.G.H.N . 2011 BCSC 80 , a decision of Mr. Justice Romilly, that involved the accused committing two offences, one in which he broke into a home where people were asleep and was caught stealing things from a drawer in their bedroom and ran away.

That is, it did not appear to be an offence where he broke in intending to rob or intimidate people, and he ran away. The second offence he was convicted of though involved a break-in where he did use a meat cleaver to intimidate the occupants, in fact cut one of the victims on the ankles with the meat cleaver, and coerced people there to give him some money and took off. He had an extensive criminal record, even at the age of 33. He was an aboriginal man. He had many, many convictions for break and enter, but there appears to be no violence on his record. [ 54 ] Just in passing, Mr.

Justice Romilly, in paragraph 45 of that judgment, discusses the large number of cases that the courts across Canada have decided, and tried to wrestle with the principles of sentence with similar cases, and in that paragraph, he cites about 30 cases on home invasions from various jurisdictions in Canada, mostly appellate jurisdictions. [ 55 ] In terms of dealing with aboriginal issues, the valuable quotations from Mr. Justice Romilly's decision, I refer to paragraph 62. He is quoting Mr.

Justice Watt who wrote the decision in a case called Jacko , at paragraph 64 of that decision, and he says this: Restorative justice objectives do not trump other sentencing objectives in every case involving aboriginal offenders. Separation, denunciation and deterrence retain their fundamental relevance for some offenders who commit serious offences. As a general rule, the more serious and violent an offence, the more likely it is that the terms of imprisonment imposed on similarly circumstanced aboriginal and non-aboriginal offenders will not differ significantly, and indeed may be the same.

And I must keep that quotation in mind. That is not the first time a judge has given that particular view. Mr. Justice Romilly said that he had to give credit for time served, but he gave sentences of three years for the break and enter and four years for what I will call the home invasion, a seven-year total sentence - three and four years consecutive. [ 56 ] In the case of R. v. Deadder and Wright 2011 BCJ No. 409 - this is another case where there was very serious violence on the victim. The victim was hit on the head either by a fist or a gun.

The accused was 30 years old, relatively extensive criminal record for a man that age. He had two prior robberies, and the sentence imposed amounted to a net sentence of six-and-a-half years after time served. Wright never went inside the residence, although he was of course part of this plan to commit the robbery, but his sentence was a total sentence of five years, before taking into account time served. [ 57 ] So those are the cases that were cited to me by counsel and do, I think, inform the court in terms of what is a fit sentence in these circumstances.

DISCUSSION [ 58 ] As I pointed out before, denunciation, deterrence and isolation; that is, protecting society for that latter point, are the paramount objectives in this case. However, I must point out that rehabilitation still is a significant factor in this particular case for both accused, although of course it plays a lesser role. It cannot take a paramount position, given what the law is and given the nature of this crime. Of course the case of R. v. Gladue applies to Mr. Bamberry. [ 59 ] In my opinion, the significant aggravating factors are these.

First of all, these two men broke into the home knowing, or in fact expecting, that the occupants were there and that they were asleep. That of course has to be an aggravating factor because of s. 348.1 of the Criminal Code , and as I say, has always been considered one as long as I have been a lawyer and a judge. [ 60 ] This was a planned act. The accused went there with the idea of getting inside, probably to steal some cocaine they thought was there. Morgan had a crowbar, Bamberry had bear spray, and that is what they were going to do, break in there and steal what they can and use force to do it.

As I say, they were armed, a crowbar and bear spray. [ 61 ] There was a vulnerable victim there. I am referring in particular to Ms. Little. She was seven months pregnant. [ 62 ] Another factor which is aggravating in almost all cases like this, there was just an undoubted emotional trauma to all the occupants. It does not take an expert to prove that when people are terrorized in this manner, they suffer emotional and psychological trauma. [ 63 ] There are some mitigating factors which I must take into account. There is the guilty plea.

I take issue with the Crown's approach to this that the case is so strong that a guilty plea ought not to be given much weight. The real significance, in my view, of a guilty plea, especially in a serious case like this, is that the accused are willing to take responsibility for their actions and they are willing to face the serious consequences of taking such responsibility.

That in a sense is the first step in being able to be rehabilitated, to change their ways, and suggests there is still some possibility for them to change. [ 64 ] In a case like this, the timing of the plea has also got to be given some latitude. Counsel in a case like this need to first of all get particulars, full particulars, and analyze the evidence carefully and determine what facts their clients should be sentenced on, and secondly, to get proper instructions from their clients; in particular, giving to them the knowledge that a guilty plea is going to inevitably result in a long prison sentence.

This is not something that can be done quickly or that can be done without proper preparation and care, and that is what both counsel in this case did. [ 65 ] So the guilty plea is a mitigating factor for the reasons I have given, and as I say, the timing of the plea is not, in my view, of any particular consequence. Nine months, given how busy this court is and given how long a prison sentence has to be and given the work that counsel have to do to prepare them and their clients for this sentencing, is not a particularly long time. [ 66 ] Mr.

Bamberry's aboriginal background and his personal circumstances are mitigating factors. In my view, it imparts a somewhat lower moral culpability. I say that because there is no question he is suffering, as I called it before, significant intellectual deficits. In some ways he has no ultimate control over his actions. He understands, I think, from these reports that he has got problems but he cannot cope with them. It is impossible to say to Mr. Bamberry, "You've got intellectual defects, do something about it." It cannot happen.

He has drifted in his life, after he left home, and he has ended up with the people that he gets some acceptance from, in a world he gets some acceptance from, sort of a low-level drug world, although he is not an addict himself. In this case, too, he is a younger man. He is only 24 and I would suggest somewhat less mature than other people at the age of 24. [ 67 ] As well, the guilty plea has another significant effect. The victims are spared having to testify. I realize Mr. Swain wasn't interested in participating, but he could have been made to testify. Secondly, Ms.

Little and Chase McLaren would have had to be witnesses, and particularly Ms. Little, who I guess has now had her child. It would have been quite a burden for her to have to testify, even though the case almost certainly would have resulted in a conviction. So sparing them the included trauma of having to relive this horrible night is another factor I think I have got to take into account with this guilty plea. It is a mitigating factor of some significance. [ 68 ] Finally, I will point out, just to distinguish this case from other cases, there is a lack of certain aggravating factors.

I point out these are not mitigating factors, they certainly are not, but there is a lack of egregious characteristics of other cases that we have looked at. Neither of these men carried or used firearms. No one has to point out the obvious, that if someone uses a firearm, a loaded firearm, or brings a firearm, there is a terrible danger of someone being killed or hurt. It probably shows a more vicious mindset. But anyway, no firearms were used in this particular case. [ 69 ] No one was badly hurt in this case. I have to temper that remark.

It is important that no vicious violence was used on these people; however, we do not know what might have happened if Chase had not got on the phone and called the police. These two men were becoming more and more frustrated with not getting what they wanted and it looks like they believed that Mr. Swain was just being obstinate, as opposed to being truthful, that there was nothing in the house, and some more serious violence could have happened. There

could have been a larger struggle with Mr. Swain; he could have been badly hurt. Even Ms. Little might have been in danger of being hurt. So I do not want to put too much emphasis on this, but the fact is unlike some of the other cases where terrible violence was inflicted on people: either broken bones, skull fractures, wounds, gunshot wounds; that was not the case here. I think it is of some significance. Bamberry acknowledged that Ms. Little was pregnant and did not treat her with any particular violence.

He pushed her, he prodded her, he made her do stuff, but he did not use any force which involved her suffering any injuries. As well, it is important to note, as Mr. Sayson pointed out and she pointed out, that when Bamberry was near her son's room or opened the door, he listened to her and took her entreaties seriously, to leave him alone, "He's just a kid," and shut the door. He did not try to do anything with Chase. And I point out that is not a mitigating factor, it is just a lack of the aggravating factor of being a vicious assault. [ 70 ] Finally, this was not a sophisticated plan.

This was not a case where there were getaway cars parked nearby, or where they had lookouts to warn of any oncoming police or other vehicles. This was a poorly-thought-out plan with little foresight. So I am not saying there was not a plan, there clearly was, but it was not the kind of sophisticated plan that we see in other cases. [ 71 ] So those I think are important factors and looking at some of the things that are not in this case that are found in other cases. [ 72 ] Finally, I just want to point out that some of the other cases involved what I would call instant gratuitous violence.

That is, people have broken into places intending to steal or intimidate someone, and immediately assault someone, causing serious harm, to get their attention and to intimidate them. That was not the case here. It does not make this crime any less serious, but this factor is missing in this case, when it is found in other cases. [ 73 ] There are some similarities but some differences between these two accused, which I think I have to consider in deciding what a fit sentence is for both of them. They are both equally culpable in this case.

You cannot differentiate between their culpability in the particular event. They both went in there, they both knew what they were doing, they both knew what they were to steal, I think it was cocaine, and they both knew that there would be people inside, asleep, and they both participated in threatening and menacing these people to try to get something from them. [ 74 ] But there is a difference in terms of their personal circumstances. Morgan has a prior conviction for robbery, two robberies, for which he got three years. He is older and more mature than Bamberry.

In other words, he should have known better and there is no excuse for him committing this crime. There is less explanation for why he would get involved in something like this, because he knew very well how bad it was and what can happen if he commits such a crime. [ 75 ] Bamberry, on the other hand, is less mature and he does suffer from these intellectual deficits I referred to. [ 76 ] However, Morgan was a drug addict, and it is clear that he was doing drugs when this happened. In one sense, his act is

an act of continuing desperation to try and keep his head above water in his drug addiction. [ 77 ] Bamberry is not a drug addict. He is not compelled to commit these crimes because he needs drugs. Of course different from Mr. Morgan, Bamberry has an aboriginal background. I point out again he has severe intellectual defects, so his moral culpability in that sense is somewhat less than Mr. Morgan's. [ 78 ] However, in assessing what sentence is fit for Mr. Bamberry, I have got to consider what his needs are. I do not know how society is going to cope with him.

What he needs is structure, a sense of purpose in his life, a sense of dignity, and he needs some self- esteem. None of these things have been available to him because of what happened to him before he was born. I do not think any prison system can give him all of this. The prison system will give him structure, the prison system will give him some idea of his aboriginal roots, give him some idea of what he can do with his life, but in my view, it is still very likely that once he is out of prison, he may gravitate to the world where he gets some acceptance, the sort of low-level drug world.

It is a life of idleness, selling drugs, and basically continuing despair. So this seems to me to indicate a need for him to receive a prison sentence that isolates him from society for a significant time, to allow the system to take effect and give him at least a sense of structure and maybe find out more about himself and about his background, and to get some sense of what he can actually do with his life. [ 79 ] One of the differences for Mr. Morgan is he has got a prior record for robbery, two robberies.

He is now in his 40s, and for much of his adult life, he has drifted in sort of trying to cope unsuccessfully with drug addiction, and has a led a life basically without much purpose. He has been unable to kick his drug habit, and how likely is it he will go back to it? He might very well go back to it. He has done it before.

So once again, a sentence needs to be imposed that deters him specifically from committing similar crimes, isolates him from society enough to prevent him from doing that for a while, and gives him an opportunity to come to terms with how he copes with this serious problem. [ 80 ] Nonetheless, both of these men have some prospect for rehabilitation in the sense they have got support in the community. Mr. Bamberry has his parents, who still care for him and will help him if they can. Mr. Morgan has, it looks like, significant support from a woman with whom he has been living, and from someone who will employ him.

So that is something I have to consider as well in tempering what the sentence should be. SENTENCE [ 81 ] So I hope I have articulated what I think all the factors are and what the sort of range of sentence and type of sentence that has been imposed in the past. [ 82 ] So do you want to stand up, please, both of you? [ 83 ] Mr. Morgan, in these circumstances, in my view, the sentence I would have imposed before I take into account time served for the break and enter and robbery charge would have been seven years.

I take into account you have served nine months in custody, and the sentence is six years and three months. [ 84 ] On the other counts, I would have imposed sentences of two years, concurrent. I take into account you spent nine months in

custody on those and the sentence on those counts is 15 months, concurrent. [ 85 ] Mr. Bamberry, in my view, a fit sentence for you would have been six years. I take into account you served nine months. The sentence is reduced by that amount and it is five years and three months on the break and enter, and robbery charge. [ 86 ] All the other counts you have pled to, the sentence would have been two years. I take into account you have served nine months, and the sentence is 15 months concurrent on all those. [ 87 ] I have considered counsels' argument for enhanced time, or credit for time served.

In my view, counsel have made good arguments, but they have not satisfied me that there is any need or any jurisdiction for me to give any enhanced time or credit for time served in custody. [ 88 ] On all counts, I make an order that DNA samples be taken pursuant to s. 487.05(1). [ 89 ] I make a lifetime weapons prohibition under s. 109 of the Criminal Code . [ 90 ] I make an order that neither accused have any contact, directly or indirectly, with Mr. Swain, with Ms. Little or Mr.

McLaren, pursuant to s. 743.2(1) of the Criminal Code . [ 91 ] The victim fine surcharge is waived. [ 92 ] I think I have covered everything. [ 93 ] MR. SAYSON: And the court will order transcripts of your reasons? [ 94 ] THE COURT: Yes, I will, Mr. Sayson, but every time someone gets a federal sentence, Corrections instantly orders a transcript. I will order a transcript. [ 95 ] I will direct as well that the Pre-Sentence Report, Gladue Report and all other reports filed with the court should be sent to the prison authorities. [ 96 ] MR. SAYSON: And the warrant of committal for Mr.

Bamberry, can Your Honour please recommend that the accused be placed in the Integrated Correctional Program model? [ 97 ] THE COURT: No, I am not going to tell Corrections how to classify him. What I am going to say is I recommend that, when serving his sentence, Mr. Bamberry be referred to whatever services or programs are available to connect him and help him identify his aboriginal roots. That is all I can do. The federal system is very sophisticated and they spend a lot of time classifying people. [ 98 ] MR. SAYSON: I just need to tie up some loose ends.

Madam Clerk, on the matter of Morgan, the Crown directs a stay of proceedings on Count 2, 3, 5, 7, 11 and 12. [ 99 ] With respect to the accused Mr. Bamberry, the Crown directs a stay of proceedings on Counts 2, 3, 4, 8, 10, 11 and 12. [ 100 ] Further, for Mr. Bamberry, there is an outstanding charge of breach of recognizance. He was on recognizance. That is Information 186401-2-A. That is a stay of proceedings as well. (REASONS FOR SENTENCE CONCLUDED)