R. v. Rollinson, 2018 NLSC 32

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Rollinson , 2018 NLSC 32 Date : February 13, 2018 Docket : 201701G5389 Her Majesty The Queen v. Jay Rollinson Before: Justice James P. Adams Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: February 8 and 13, 2018

Summary: The offender was convicted of break and enter into a dwelling with intent, theft of the homeowner’s motor vehicle, breach of probation and of a recognizance. He is 32 years old with a lengthy criminal record including for similar offences. He has prospects for rehabilitation. Held : For break and enter – 24 months; for theft – 6 months concurrent; for breach of probation – 2 months consecutive; and for breach of recognizance – 1 month concurrent, for a total of 26 months, less time served on remand. Plus a DNA Order, a no contact order and a 24 month probation order. Appearances: Jude W. Hall Appearing on behalf of the Crown

Kevin S. Baker Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Fleming , 2017 CarswellNfld 260, 140 W.C.B. (2d) 418 (Prov. Ct.) ; R. v. Hutchings, 2012 NLCA 2 STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Adams, J. : INTRODUCTION [ 1 ] On 1 February 2018 I convicted Jay Rollinson of break and enter into a dwelling with intent, theft of a motor vehicle, breach of probation and breach of a recognizance.

This is my decision on sentence. positions of the parties [ 2 ] The Crown seeks a period of incarceration of 24 months on the break and enter, six months to run concurrently on the theft charge, two months to run consecutively on the breach of probation charge and one month to run concurrently on the breach of recognizance charge, for a total of 26 months, less time served.

The Crown is also seeking a DNA Order and two years’ probation. [ 3 ] The defence seeks a period of incarceration of 18 months on the break and enter, six months on the theft to run concurrently, one month on the breach of probation to run consecutively and one month on the breach of recognizance to run concurrently, for a total of 19 months, less time served on remand. The defence is not opposing the DNA Order or the probation order. FACTS [ 4 ] The facts in this matter can be briefly stated. On 19 March 2016 Mr.

Rollinson broke into the home of Deirdre Greene Lono at 27 Barnes Road by entering the unlocked back door. He stole a bottle of pills belonging to Ms. Lono, together with various electronic equipment, some liquor and a couple of coats. He stole the keys to Ms. Lono’s car and then stole the car which was shortly after located by the police. The stolen property belonging to Ms. Lono was found in the car. Mr.

Rollinson left a cigarette butt at the crime scene which contained his DNA and which on the evidence I accepted conclusively proved that he was at the scene of the crime. analysis [ 5 ] In sections 718 to 718.2 of the Criminal Code , R.S.C. 1985, c. C-46, Parliament has established the purposes and principles of sentencing to be applied in every case. They include denunciation, deterrence (both specific and general), rehabilitation of the offender, reparations for harm done to the community, the promotion of responsibility in offenders and acknowledgement of the harm done to victims.

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It must also be reduced or increased resulting from any mitigating or aggravating factors. A sentence must be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Consecutive sentences should not be unduly long or harsh. If less restrictive sanctions are appropriate, an offender should not be deprived of his liberty. [ 6 ] Mr. Rollinson has waived the preparation of a pre-sentence report so I will not have the benefit of that in my deliberations.

However, at the trial on liability, Mr. Rollinson provided some helpful personal information. [ 7 ] Mr. Rollinson is 32 years of age. He quit school in grade 9. He has made several efforts to achieve his grade 12 but each time these attempts have been thwarted by his many periods of incarceration. Mr. Rollinson doesn’t have a trade but he has worked over the years in the restaurant business and claims to have picked up a reasonable level of knowledge in cooking. [ 8 ] Mr. Rollinson is in a 12-year personal relationship with the mother of his 10-year-old daughter.

His partner was in court on the sentencing hearing to support him. He said he has a caring mother and a positive family relationship. He has tried to spend as much time as possible with his partner and child but his trouble with the law has interfered with that. [ 9 ] By his own admission, Mr. Rollinson has been addicted to cocaine for about ten years and continues to battle this problem. He hasn’t spoken with a psychiatrist but he has spoken with psychologists over the years. He said he has no mental issues.

He said his biggest issue in battling his addiction and in staying out of trouble is the people he chooses to associate with. [ 10 ] Mr. Rollinson has a lengthy criminal record comprising 29 pages in length. His convictions include numerous offences involving possession of stolen property, fraud and breaking and entering. These convictions include sentencing on 1 February 2017 for 28 offences, mostly for possession of property obtained by crime and failure to abide by court orders. He received an 11-month sentence

on that occasion taking into account 28 months for time already served. There was some overlap in time between those offences and the present offences. [ 11 ] This is Mr. Rollinson’s fourth conviction for breaking and entering into a dwelling. In 2005 he received a one year sentence; in 2008 he received an 18 month sentence; and, in 2010 he received a sentence of six months. He has a long history of breaking and entering into dwellings stretching back to 2002 when he was convicted as a youth. Mr. Rollinson does not appear to have gotten the message that such crimes will not be tolerated. [ 12 ] Mr. Rollinson was convicted under

section 348 of break and enter with intent to commit an indictable offence. This offence carries a maximum penalty of life imprisonment. The offence of theft of a motor vehicle, contrary to

section 333.1 of the Criminal Code carries a maximum penalty of ten years’ imprisonment and a minimum sentence of six months’ imprisonment for a third or subsequent offence. The offence of breach of probation, when prosecuted by way of indictment, which was the case here, carries a maximum penalty of four years’ imprisonment. The breach of a recognizance, contrary to section 145(3) (a), when prosecuted by way of indictment, carries a maximum penalty of two years’ imprisonment. Cases Referred to by the Parties [ 13 ] The Crown referred me to the case of R. v.

Fleming , 2017 CarswellNfld 260, 140 W.C.B. (2d) 418 (Prov. Ct.) a decision of Orr, Prov. J., in which at paragraph 12 he reviewed a large number of cases mostly from this court and the Court of Appeal. From those cases he concluded (and I agree) that the range of sentences for residential break-ins is one to three years in prison.

Factors which tend to raise the sentence and which are relevant to this case are the amount of money or goods taken and evidence that the house was occupied at the time of the break and enter. [ 14 ] The defence did not take issue with the range of sentences outlined and did not provide other cases in response. [ 15 ] Mr. Rollinson has been convicted of two serious offences which carry severe maximum sentences. He has a lengthy criminal record including break and enters, thefts and possession of stolen property stretching back to his youth.

The principal objectives to be applied here are denunciation, deterrence and protection of the public. [ 16 ] Breaking into someone’s home is a significant violation of their privacy and feeling of security. It deserves significant punishment in order to attempt to deter the offender from committing such crimes in the future and to serve as a warning to others who may be considering such actions that these crimes will bring severe consequences. [ 17 ] However, I am also mindful of the need for rehabilitation of all offenders. After all, Mr.

Rollinson will one day be released from prison and one can only hope that he will have learned from his experience and will not return to the life of crime he has led to this point. One also hopes that he will seek and receive counselling which may help him to overcome his addiction to illegal drugs. [ 18 ] Counsel for Mr. Rollinson presented a number of letters supporting him and setting out the programs in which he has participated while incarcerated.

These include Christian based programming, as well as parenting skills development and individual and group psychological programs to help him gain insight into the underlying causes of his criminal lifestyle. However, his time in jail has not gone unblemished. The letter from the classifications officer at Her Majesty’s Penitentiary also referred to two infractions he committed while incarcerated in 2017: possessing contraband and assault of another inmate. I was not given any details of these infractions. [ 19 ] Mr. Rollinson also spoke in his own behalf.

He accepted responsibility for his criminal record and said he respects the Court’s decision in this matter. He spoke eloquently of his love for his daughter and his desire to be a good parent. He stated his commitment to stay sober. I feel he was being genuine. Mr. Rollinson was articulate and polite in his testimony at trial. He appears to have a positive work experience and training in the restaurant business which he could build on if he chose to do so. But this is entirely in his hands. [ 20 ] Mr. Rollinson appears to have a positive and supportive family which he could rely on.

He must choose to find a different circle of friends which admittedly will not be easy in light of his past criminal career. But if he is serious about rehabilitating himself he will find ways of doing this. One critical way will be to find the means to overcome his addiction to cocaine which, again, I do not pretend will be easy. [ 21 ] I find the following to be aggravating factors in this case: 1) Mr.

Rollinson’s lengthy criminal record of breaking and entering, theft and other crimes of dishonesty; 2) The fact that the occupants of the home he broke into and entered were at home at the time, which could have led to a confrontation with potential for tragic consequences; and 3) Among the items he stole was a motor vehicle which has a substantial value. [ 22 ] There are no mitigating circumstances. [ 23 ] Mr. Rollinson has been on remand on this matter since 26 September 2017. Prior to that time, he was serving a sentence for a previous crime and that does not count toward pre-trial custody. Mr.

Rollinson is entitled to credit on a 1:1.5 basis for his time on remand. Some reference was made to whether he is entitled to enhanced credit from the time he was denied bail last fall. Upon inquiry, I am satisfied that he is. Therefore, I credit him with 214 days of time served. [ 24 ] In R. v. Hutchings , 2012 NLCA 2 Court set out the appropriate approach to follow on sentencing where an offender is sentenced to multiple offences arising out of the same circumstances.

The Court should first impose an appropriate sentence for each offence and then consider the principle of totality and adjust the sentences to achieve the proper result through making some sentences concurrent to others in order to avoid a result which would have a crushing impact on the offender.

[ 25 ] Were it not for the submissions of Crown counsel I would have imposed a sentence closer to the higher end of the range. However, in the circumstances, I conclude the appropriate sentence on each offence to be as follows: Count No. 1 [ 26 ] On count number 1; 24 months’ imprisonment. Count No. 2 [ 27 ] On count number 2; 6 months’ imprisonment. Count No. 3 [ 28 ] On count number 3; 2 months’ imprisonment.

Count No. 4 [ 29 ] On count number 4; one month imprisonment. [ 30 ] Taking into account the principle of totality earlier outlined, and the submissions of counsel, I conclude it is appropriate to make count number 2 concurrent to count number 1 and count number 4 concurrent to count number 3. conclusion [ 31 ] In conclusion therefore, Jay Rollinson is sentenced as follows; Count No. 1: 24 months’ imprisonment; Count No. 2: six months’ imprisonment to be served concurrently with count number 1; Count No. 3 : two months’ imprisonment to be served consecutive to count number 1; and Count No. 4: one month imprisonment to be served concurrent to count number 3. [ 32 ] This results in a total of 26 months or 780 days in prison less credit for time served of 214 days, resulting in Mr.

Rollinson being required to serve a further 566 days or a little over 1.5 years’ imprisonment. [ 33 ] I also make the following ancillary orders: 1) Pursuant to

section 487.051 Mr. Rollinson shall provide the number of samples of bodily substances reasonably required for the purpose of DNA analysis; 2) Mr. Rollinson shall have no contact with Deirdre Greene Lono or Simon Lono; and 3) Mr. Rollinson is placed on supervised probation for 24 months on the following conditions: a. Keep the peace and be of good behavior; b. Abstain from communicating, directly or indirectly with Deirdre Greene Lono or Simon Lono; c. Appear before the Court when required to do so by the Court; d.

Notify the Court or the probation officer in advance of any change of name or address, and promptly notify the Court or the probation officer of any change of employment or occupation; e. Report to a probation officer within seven working days after the making of the probation order; and thereafter, when required by the probation officer and in the manner directed by the probation officer; f. Remain within the jurisdiction of the Court unless written permission to go outside that jurisdiction is obtained from the Court or the probation officer; g.

Abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance; h. Provide, for the purpose of analysis, a sample of bodily substances prescribed by regulation at regular intervals that are specified by a probation officer in a notice in form 51 served on the offender; i. Abstain from owning, possessing or carrying a weapon.

_____________________________ James P. Adams Justice