R. v. Quinlan Date:, 2015 BCPC 116

Citation: R. v. Quinlan Date: 20150303 2015 BCPC 0116 File No: 199762-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DANIEL QUINLAN REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Crown: J. Lester Counsel for the Defendant: D. Silverman Place of Hearing: Surrey , B.C. Date of Hearing: February 5, 2015 Date of Judgment: March 3, 2015 [ 1 ] On October 1, 2014, Mr. Quinlan was found guilty on three counts that on or about the 23 rd day of August, 2011, at or near

Surrey, in the Province of British Columbia, did break and enter a dwelling house and did commit an indictable offence, contrary to Section 348(1) (

d) of the Criminal Code of Canada ; further, on the same date and location, without lawful authority, confined James Sorensen, contrary to Section 279(2) of the Criminal code of Canada; and thirdly, on the same date and location, did, in committing an assault upon James Sorensen, use a weapon, to wit: an incapacitating and/or noxious spray, contrary to

Section 267 (

a) of the Criminal Code of Canada . [ 2 ] Mr. Quinlan appeared before me on February 5, 2015, for sentencing. I have carefully considered the submissions of both Crown and Defence counsel, reviewed case law, the relevant provisions of the Criminal Code of Canada , the Pre-Sentence Report, and the letters tendered from both his mother and his father. [ 3 ] This arises out of a violent home invasion in which the property contained an authorized Health Canada permit to both grow and use marijuana. The home was located in a secluded area of Surrey, British Columbia, with Mr.

Quinlan and two others pulling up to the driveway of the victim, forcing their way into the home, the victim was bear-sprayed, hit, and forced face down on his bed naked and thereafter was duct-taped. In the course of such, the home was ransacked throughout, sundry items were stolen, and the outbuilding containing the grow-op caught on fire and burned to the ground, all while the victim was bound and confined in the home. [ 4 ] A significant part of the multi day trial focussed upon forensic evidence of the duct tape found on the scene. There is no specific

section of the Criminal Code of Canada pointing to an offence defined as “home invasion”; however, it is a term often used by parties regarding incidents that involve breaking and entering into a residence in combination of other crimes such as the use of a weapon and/or confinement, in essence having factors of violence. [ 5 ] In Regina v.

Vickers, 2007 BCCA 554 , at Paragraphs 12 and 13, the British Columbia Court of Appeal firmly articulated the following: This Court has repeatedly stated that deterrence and denunciation are the primary factors in sentencing for violent crimes, particularly when these crimes violate the safety and security of a person’s home. As Madam Justice Saunders recently stated in Regina v. Meigs, 2007 BCCA 394 at Para. 25, “it is a grave offence to enter another person’s home without permission and graver to enter the home and violate the occupant.

The courts must and do impose stern sanctions for such crimes. “ While rehabilitation cannot be overlooked, it is of secondary importance in dealing with a case of this kind. Similarly, often cited is the decision of Regina v. Bernier, 2003 BCCA 134 , as the authority that in the broadest of terms, a sentencing range of five to eight years is within the realm for consideration. However, the caveat in place at Paragraph 82 is paramount in that it states: “Because the combination of crimes charged in these offences will vary to some extent, it is difficult to determine a [relative] range of sentence.

For this reason, the Court should exercise more caution than usual in attempting to suggest general ranges of sentence for home invasions.” Both the Vickers (supra) and Bernier (supra ) decisions are decisions that are the benchmarks that guide both counsel and judges in their succinct principles of sentencing. [ 6 ] Crown counsel respectfully submits that this Court should impose a sentence of between three to five years on Mr. Quinlan, noting that the sanctity of the home is paramount and this type of crime is to be taken very seriously. Mr.

Quinlan was found guilty on all three counts, weapons were used, duct tape was used to bind the victim, the victim was struck and sprayed, the house was ransacked, the out-shed containing the legal grow op burned down, the primary motivation in the act was that of robbery, the offences were done with others participating in concert with one another, and the victim was bound and left face down on his bed while the out-shed was burning, thereafter leaving the victim to flee his own home naked while still bound and run to his neighbours late in the evening. [ 7 ] Defence counsel respectfully submits that a sentence of three years is appropriate and suggested that even a lower sentence was appropriate noting that in Regina v.

Young, [2014] BCJ No. 1336 ; Mr. Justice Bowden imposed a sentence of two and a half years. Defence counsel submitted that the accused is easily persuaded by others, that the Pre-Sentence Report contained a number of favourable entries and that case law can be distinguished in terms of sentencing as some cases involve the use of a firearm and the presence of children in the home. [ 8 ] Both Crown and Defence counsel have tendered case law of which I have carefully reviewed and considered.

In the Young decision, such decision is easily distinguishable because an important factor that was considered throughout by the Honourable Mr. Justice Bowden was that the sentence would have grave immigration consequences upon the accused and the accused would be deported. In Regina v. Navas-Rivas, [2013] BCJ No. 2638 , a sentence of three years and three months was imposed after Mr. Navas- Rivas was found guilty.

Distinguishing factors in the Navas-Rivas decision were that a firearm was used, there were children in the home at the time of the invasion, and the accused had a criminal record including a prior violent offence. At Paragraph 32, the Court noted that an aggravating factor was that the home was occupied at the time of the break and enter and that even if Mr. Navas-Rivas did not know that the home was occupied, his actions were reckless and the Court relied upon the provision of the Criminal Code of Canada that sets out that this is an aggravating factor for sentencing. In Regina v.

Chudley, [2012] BCJ No. 289 , similar to the case before me, the Chudley matter involved what was referred to as a “home invasion grow rip” and the victim was duct-taped and kept face down. Identical to the matter before me, in Chudley the fingerprints on the duct tape connected the accused to the commission of the offences.

Relying on Bernier , the judge in Chudley, in commenting about those offences loosely categorized as home invasions, commented at Paragraph 18: It is not a simple break-in of a residence, but rather has a heightened degree of culpability given the disregard for the presence of occupants and the wanton use of violence that ensues. In Regina v. Brossault, [2009] BCJ No. 682 , factors unique to the imposition of the six year sentence included that the accused were armed, masked and wore bullet-proof vests, each accused pressed a weapon against the victim, one accused was of aboriginal descent,

and there were guilty pleas. In Regina v. Brien, [2014] BCSC 1260 , the Judge imposed a three and a half year sentence and in Regina v. Tkachuk, [2014] BCSC 1780 , a four year sentence was imposed with the aggravating factor that a child was present at the time of the entry into the home. [ 9 ] Other factors for consideration in imposing a fit and appropriate sentence are the Pre-Sentence Report wherein the accused is suffering from a unique medical condition that requires daily medication and has residual symptoms of depression and fatigue. Mr.

Quinlan does have a criminal record of one entry dated 2012 from a 2009 offence for possession of a controlled substance. He has been able to maintain consistent employment since being a youth, currently resides with his parents, and there have been no breaches while on bail. He self-reported in the Pre-Sentence report that he participated in the offence to help a friend who was in “a lot of trouble” and that at the time he was unaware of the deep and significant consequences that a conviction can land him in jail. Two letters of support were provided from his mother and his father. [ 10 ]

Section 718 of the Criminal Code of Canada sets out the codified factors for consideration in the determination of an appropriate sentence. The sentence must be a fit sentence that is in proportion to the gravity of the offence or offences, and consider the degree of responsibility of the accused or co-accused persons in the commission of such offence or offences.

Such sentence must balance the mitigating and aggravating factors, must consider similar sentences imposed for similar offences in a similar circumstance, and must meet the objectives of deterrence, denunciation, and rehabilitation. [ 11 ] I have carefully considered the submissions of counsel, the review of case law, the consideration of the Pre-Sentence Report, and the Criminal Code of Canada provisions as set out above. The reckless disregard for the sanctity of one’s home is an aggravating factor that clearly emerges in a review of case law at all court levels. In Regina v.

D.A.W., 2002 BCCA 336 , at Paragraph 21, the British Columbia Court of Appeal stated: A person’s home is usually considered to be a place of safety and repose. All too frequently, however, it seems that the expectation that this will be so has been rudely shattered by instances…where occupants of households are confronted with persons breaking into their houses in violent fashion and subjecting them to often terrifying ordeals. The object of these invasions is usually…to rob the householders. The culpable conduct of the accused includes that this was a planned offence.

It included violent acts including the binding of duct tape of the victim who then was bound, placed face down naked on his bed after being sprayed with bear spray and unable to exit his home in the ordinary course that one would, while the out-shed was on fire necessitating him to escape his home with the burn of bear spray and while bound by the duct tape, and that this offence was purely for quick monetary gain.

Balancing the mitigating factors, the significant aggravating factors of the offence and the facts of this offence, and the principles of deterrence, denunciation, rehabilitation, and the protection of society, I will impose a period of three years of incarceration, there will be a ten year firearms prohibition and a DNA Order. The Honourable Judge K. Arthur-Leung Provincial Court of British Columbia