R. v. R. J. S. Date:, 2014 BCPC 58

Citation: R. v. R. J. S. Date: 20140116 2014 BCPC 0058 File No: 200330-2C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R. J. S. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. N. HAMILTON Counsel for the Crown: A. Jantunen Counsel for the Defendant: M. Cheema Place of Hearing: Surrey , B.C.

Date of Hearing: January 16, 2014 Date of Judgment: January 16, 2014 [ 1 ] THE COURT : RJS is before the court for sentencing after I found him guilty of two counts of robbery and one count of assault with a weapon at the conclusion of a trial on October the 22nd, 2013. I convicted Mr. RJS of robbing a convenience store on May the 26th, 2013, and at that time he was brandishing a metal club while demanding money from the shopkeeper. [ 2 ] I also convicted Mr. RJS of robbing a convenience store on October 19th, 2012, while at that time brandishing a knife.

The knife was described by the victim, again the shopkeeper, as an eight-inch-to-one-foot-long knife. By nothing more than a strange coincidence, the shopkeeper in each of the two robberies was the same individual, and the robberies occurred approximately seven months apart. [ 3 ] At the sentencing hearing, the Crown submits that a global sentence of four to five years in jail is appropriate. Mr. RJS has been in custody prior to this sentencing hearing for seven months, or 236 days.

On Count 1, the Crown seeks a sentence of credit for that time served plus an additional two years, and on Count 3 of the indictment, the Crown is seeking a sentence of between two to three years consecutive to the sentence imposed on Count 1, given the fact that these are two separate crimes and they are not linked with each other in any material way. [ 4 ] The defence submits that an appropriate sentence is a global sentence of 12 months in prison with seven months' credit for pre- sentence custody, leaving an additional five months to serve on that sentence.

The defence made no submissions regarding a period of probation to follow the 12-month sentence, and while it is not clear why, I suspect that is because Mr. RJS has a lengthy record of breaching orders for probation, parole and bail. [ 5 ] The defence also made no submissions with respect to a release plan, despite the pre-sentence report and psychiatric report that stressed the need to have Mr. RJS controlled in some kind of a residential setting given his high risk to reoffend. Having said that, Mr.

RJS wrote a letter, which I have read, and in that letter he does talk about a release plan, not in any specific way other than to say that he has been in contact with the Salvation Army and B.C.

Corrections, and he indicates that there is a residence available for him and that he could have some assistance through the Salvation Army in accessing a treatment facility to deal with his drug addiction. [ 6 ] I have had the benefit of reading a pre-sentence report which was completed on January the 9th, 2014, so just about a week or so ago, and I also had the benefit of a psychiatric report which was prepared, I believe, on December the 31st. It would be fair to characterize those two reports as not very positive. In short, they describe Mr.

RJS as a person of relatively low intelligence, impulsive, with little self-control over his behaviour, little prospect for rehabilitation and a high risk to reoffend. [ 7 ] These crimes are serious. I watched the security video of the second robbery, that was the one committed on May the 26th, 2013, when Mr. RJS was brandishing the club. He is captured behaving in a very threatening manner, holding the club up to threaten the victim while demanding money from the cash register.

While the robberies did not result in any significant loss, no cash was taken in the second robbery and only a few packages of cigarettes were taken in the first robbery, my view is that these are serious crimes that warrant a similarly serious jail sentence. [ 8 ] The motive for these robberies is not clear. Mr. RJS suffers from a drug addiction, and so it is certainly possible that the second robbery was motivated out of a need to obtain some money in order to buy drugs.

The first robbery, as I have indicated, only resulted in him obtaining a few packages of cigarettes. [ 9 ] In my view, the principles of sentencing that are engaged in this case are, first and foremost, denunciation. A message needs to be sent to Mr. RJS, and a strong message, that society will not tolerate his criminal behaviour. The second principle of sentencing that I am of the view is engaged in this case is the need to separate Mr. RJS from society.

The third principle that I am of the view is engaged here is general deterrence; in other words, sending a message to like-minded individuals that if they commit these kinds of crimes in circumstances similar to Mr. RJS, they will receive a substantial jail sentence. [ 10 ] With respect to specific deterrence, that is, attempting to deter Mr. RJS from committing further crimes, given his substantial and relatively unabated criminal record, I am of the view that specific deterrence is unlikely in this case. In addition to that, Mr.

RJS's drug addiction needs to be addressed before society has any prospect of expecting a change in his criminal lifestyle. [ 11 ] Rehabilitation is engaged in this case, but only on the margins, in my view. Mr. RJS is a young gentleman, and ordinarily one would hold out some prospect or hope that by engaging in programs and getting help for the various problems that he has got, he might change his behaviour, but he has not shown any sign that he is learning from the prior convictions he has received or the sentences that have been imposed for those convictions. [ 12 ] Mr.

Jantunen, on behalf of the Crown, made submissions with specific reference to Mr. RJS's criminal record, and I note that on June 30th, 2008, Mr. RJS was convicted of robbery, and for that crime he received a federal jail sentence of 35-and-a-half months in prison, including time served prior to being sentenced. His record also includes two convictions of robbery while he was a youth; those convictions occurred on November 24th, 2003, and another conviction for robbery as a youth, that conviction occurred on March 20th, 2002.

So he has four prior robbery convictions, although the youth convictions, in my view, should not carry much weight now that we are dealing with Mr. RJS as an adult. [ 13 ] By my count, Mr. RJS has a total of 23 convictions for a combination of breaching national parole, breaching probation, breaching undertakings, and failing to comply with youth sentences. Of those 23 convictions, 11 are convictions while Mr. RJS has been an adult. [ 14 ] I do not see, from my review of Mr. RJS's record, any sign that Mr. RJS is being deterred from committing crimes as a result of

the sentences that are being imposed upon him. Orders that have been made in an effort to try and control Mr. RJS's behaviour do not appear to me to be having any effect. My view is that protecting society from Mr. RJS can only be achieved by separating him in a secure setting. I am also of the view that controlling his behaviour will only be achieved by separating him in a secure environment. [ 15 ] Mr. RJS submitted 19 certificates indicating that he has engaged in and successfully completed a number of programs, all part of a global program in the prison called Essential Skills to Success.

I have taken into consideration the fact that he has set aside the time and put in the effort to complete that program, but I will also say this: All of those certificates are dated between August the 17th and September the 14th, so I gather that what has occurred is that, for that period of approximately one month over the course of the seven months that he has been in custody awaiting his trial and sentence, he was engaged actively for that month in completing the various modules that make up that program. [ 16 ] His counsel has submitted that the fact that he completed that program, the Essential Skills to Success, is an indication that he is trying to better himself and acquire the skills to become a law-abiding citizen.

I am not so sure that I am able to reach that same conclusion. There is nothing in the material that has been put before me that demonstrates what he has actually learned from taking those programs, but I accept that having spent the time applying himself to that program he has certainly been exposed to some skills that would be necessary for him to start changing his behaviour. [ 17 ] He wrote the letter, I read the letter.

It is actually a fairly well-written letter and it expresses his hope that he is going to be able to make changes, that he is going to be able to put his drug addiction behind him, and that he is going to be able to reintegrate into society in a law-abiding way. I also note, though, that in the psychiatric report and the pre-sentence report, the authors extend a concern that Mr.

RJS, while he says things and he does things, we have to be concerned about the possibility that he is simply attempting to manipulate the situation to his benefit. [ 18 ] In the end, considering all of the material that was placed before me on this sentencing hearing, Mr. RJS, if you would stand for a moment, please? In respect of Count 1, I will sentence you to time served of 236 days, and in addition to that I will sentence you to two years in prison. In respect of Count 3, I will sentence you to two-and-a-half years, or 30 months in prison, that sentence to run consecutive to the sentence imposed in Count 1.

I will enter a judicial stay of proceedings in respect of Count 2 on the basis of the Kienapple principle. [ 19 ] I will note, Mr.

RJS, that individually those two sentences in fact are less than what you received for your last robbery conviction as an adult; however, I have to take into account the global sentence that is being imposed, and the global sentence is slightly more than five years in prison, and under all the circumstances, for the reasons that I have articulated, I am of the view that that is the appropriate sentence for you to serve in respect of those two convictions. [ 20 ] I will issue a lifetime firearm prohibition pursuant to s. 109 of the Criminal Code . [ 21 ] I will order that you provide a sample for the DNA databank. (REASONS FOR SENTENCE CONCLUDED)