R. v. Starkes, 2018 NLSC 158

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Starkes , 2018 NLSC 158 Date : July 19, 2018 Docket : 201703G0185 Her Majesty The Queen v. John Leslie Starkes Before: Justice Kendra J. Goulding Edited Transcript of Oral Reasons for Judgment Place of Hearing: Grand Falls-Windsor, Newfoundland and Labrador Dates of Hearing: March 12 and May 28, 2018 Date of Oral Judgment: June 13, 2018

Summary: Following guilty pleas, the offender was sentenced to a total of 24 months imprisonment as follows: (21 months for a break and enter and assault, 2 months consecutive for uttering a threat to cause death to police officers and 1 month consecutive for possession of a firearm without a trigger lock or in a locked container.) He was given credit for 419 days of pre-sentence custody leaving 311 days to serve. Further, he was placed on probation for three years. Ancillary orders (DNA analysis, firearms prohibition, forfeiture of firearm, victim fine surcharges) were granted.

Appearances: Karen J. O'Reilly & Stephanie T. Roberts Appearing on behalf of Her Majesty The Queen Michael P. O'Rielly & Derek P. L. Ford Appearing on behalf of John Leslie Starkes Authorities Cited: CASES CONSIDERED: R. v. Ipeelee, 2012 SCC 13, 1 S.C.R. 433; R. v. Bennett, [2013] N.J. No. 104, 334 Nfld. & P.E.I.R. 201; R. v.Daye, 2010 NBCA 53; R. v. Hatch, (NS CA), [1979] N.S.J. No. 520 (N.S.C.A.); R. v. Francis, 2016 NLTD(G) 122;R. v. Jakupaj, 2017 NLTD(G) 120; R. v. Newhook, 2008 NLCA 28; R. v. Critch, 2012 PCNL 1310A00475; R. v. McAuley, 2012 PCNL1312A00152.

STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46; Firearms Act, S.C. 1995, c. 39. TEXTS CONSIDERED: Clayton Ruby in Sentencing (4th ed. Toronto: Butterworths, 1994). REASONS FOR JUDGMENT Goulding, J.: INTRODUCTION [1] John Leslie Starkes entered guilty pleas to the following charges:

a) break and enter into a dwelling house and committingtherein the indictable offence of assault contrary to section 348(1)(

b) of the Criminal Code of Canada;

b) uttering a threat to cause deathto police officers contrary to section 264(1)(

a) of the Criminal Code of Canada; and

c) possession of a 12 gauge break action shotgunwithout a trigger lock or in a locked container contrary to section 86(2) of the Criminal Code of Canada. The offences occurred on orabout September 7, 2017 at Nippers Harbour in the Province of Newfoundland and Labrador. issue [2] What is a fit and just sentence for this offender considering the circumstances of these offences?

summary of facts [3] After visiting a friend, Eva Dolland returned home in the early hours on September 7, 2017 to find Mr. Starkes in herresidence. He grabbed her by the throat and said “You bitch, I’m going to kill you.” He then pinned her to the floor and placed his handson her throat to the point she was unable to breathe. [4] Mr. Starkes stated, “You know what happened to the girls in St. John’s and St. Anthony? They never did find their bodies.”Ms. Dolland told Mr. Starkes he needed to use his head and she tried to calm him down. He asked if there was any alcohol and Ms.Dolland provided him with a beer.

While Mr. Starkes was drinking the beer, she ran out the door and hid across the street. [5] Ms. Dolland watched Mr. Starkes leave her home and as he walked up the road, he said again, “You bitch, I’m going to killyou.” Ms. Dolland contacted the R.C.M.P. and Constables Barton and Fewer were dispatched from the Baie Verte Detachment at 2:38a.m. and arrived at Mr. Starkes’ residence in Nippers Harbour at 4:20 a.m. [6] Mr. Starkes refused to come out of the residence as he did not want to go to Baie Verte. He was agitated and intoxicated andcalled Ms.

Dolland “a whore” and stated he “should have killed her so she couldn’t use the phone”. When the two officers advised theywould return with a warrant, Mr. Starkes stated if they did, he would “blow their heads off”. The interaction with Mr. Starkes ended at5:02 a.m. when Mr. Starkes advised again he was not coming out of the house, turned off his lights and went to bed. [7] At 1:37 p.m., Constable Barton and Constable Fewer returned to Nippers Harbour aided by three additional officers. With theassistance of the public, Mr. Starkes was arrested on a roadway in the community without incident.

He was read his right to counsel andthe police caution. Thereafter he advised he had an antique firearm in his bedroom closet. Mr. Starkes consented to a search and an

unsecured 12 gauge Cooey break-action shotgun was located without any ammunition. Mr. Starkes did not have a valid possession andacquisition license. He was taken to the hospital for treatment of injuries sustained prior to any police involvement. [8] Ms. Dolland advised she had a causal relationship with Mr. Starkes some 12 years previous. Mr. Starkes in a cautionedstatement at 9:12 p.m. advised he was upset because of certain looks Ms.

Dolland was giving him. position of the crown [9] The Crown submits that a global sentence of two years’ imprisonment followed by three years probation be imposed on theoffender together with ancillary orders regarding firearms prohibition, DNA forensic analysis and forfeiture of the seized firearm. position of the defence [10] The Defence requests that the sentence be ‘time served’ and a period of probation. The Defence takes no issue with theancillary orders. general principles of sentencing [11]

Section 718 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 sets out the principles of sentencing which encompassconsiderations from denunciation, deterrence, reparation, rehabilitation and promoting a sense of responsibility in the offender for theharm caused to the victim and the community. [12] The fundamental principle is that the sentence be proportionate to the gravity of the offence and the degree of responsibility ofthe offender.

The Court must consider the aggravating and mitigating factors, the principles of parity and totality, and all availablesanctions other than imprisonment that are reasonable in the circumstances with particular attention paid to the circumstances ofaboriginal offenders. The fundamental purpose of sentencing is the maintenance of a just, peaceful and safe society through theimposition of just sanctions. (see R. v. Ipeelee, 2012 SCC 13, 1 S.C.R. 433 at paragraph 37). the legislation [13] Section 348(1)(

b) of the Criminal Code states in part that everyone who breaks and enters a dwelling house and commits anindictable offence therein is guilty of an indictable offence and liable to imprisonment for life. [14]

Section 264.1(1)(

a) of the Criminal Code states in part that everyone who knowingly utters, conveys or causes any person toreceive a threat to cause death or bodily harm to any person is guilty of an indictable offence and liable to imprisonment for a term notexceeding five years. [15] Section 86(2) states in part that every person commits an offence who contravenes a regulation made under paragraph 117(h)of the Firearms Act, S.C. 1995, c. 39 respecting the storage of firearms is guilty of an indictable offence and liable to imprisonment inthe case of a first offence, for a term not exceeding two years and in the case of a second or subsequent offence, for a term not exceedingfive years. crown authorities [16] In R. v.

Bennett, [2013] N.J. No. 104, 334 Nfld. & P.E.I.R. 201 Gorman, P.C.J. sentenced the offender to a total of 90 daysincarceration and one-year probation for uttering a threat to a police officer, breach of an undertaking and possession of a controlledsubstance being four grams of marihuana. The offender had plead guilty to two of the three charges. He had a long term serious problemwith alcohol and had a prior criminal record consisting of 13 offences. Gorman, P.C.J. considered the threat involving a police officer asan aggravating factor and thus placed emphasis on denunciation. [17] In R. v.

Daye, 2010 NBCA 53, Larlee, J.A. writing for the Court, allowed a Crown appeal and ordered that two sentences ofnine months be served consecutively instead of concurrently for breach of probation and uttering threats to a peace officer. The factsindicated that 12 hours after arrest for breach of a probation order, Mr. Daye stated “this would be another ‘Mayerthorpe’ someday”referencing an event during which four officers were killed. [18] The offender plead guilty but had a most extensive criminal record including violent offences. The issue was whether this wasan appropriate case to impose concurrent sentences.

Larlee, J.A. considered R. v. Hatch, (NS CA), [1979] N.S.J. No.520 (N.S.C.A.) and the comment of MacKeigan, C.J. who stated, “we have frequently noted that the Code seems to require consecutivesentences unless there is a reasonably close nexus between the offences in time and place as part of one continuing criminal operation ortransaction. If a consecutive sentence is to be imposed, the totality principle is engaged.” [19] In paragraphs 17 and 18, Larlee, J.A. considered that the offences occurred within a relatively short period but there was nonexus between them.

Therefore, the sentencing judge made a reversible error in labelling the two offences arising out of the samecriminal transaction. The two offences warranted consecutive sentences and the totality principle was respected because of the gravity ofthe offences. Larlee, J.A. emphasized “The Court has a duty to protect law enforcement officers by imposing sentences that will send aclear message not only to this offender but also to others that this type of behaviour will not be tolerated.” (see paragraph 18) [20] In R. v.

Francis, 2016 NLTD(G) 122, Handrigan, J. sentenced the offender in relation to three counts of an assault of a policeofficer, two counts of uttering threats, mischief and possession of a controlled substance (oxycodone) to a total of 22 monthsimprisonment and imposed victim fine surcharges of $200 on each offence and ancillary orders. The total sentence was calculated asfollows: Assaulting Corporal Foley – 14 months imprisonment

Assaulting Constables Mitchell and Greening – 4 months imprisonment, concurrent to each other but consecutive to the first assault Uttering threats – 4 months imprisonment on each, concurrent to each other and to the first two offences Mischief – 3 months imprisonment consecutive to all Possession of oxycodone – 1 month imprisonment consecutive to all [ 21 ] The events happened in as few as a couple of hours and had three dimensions to it: 1) when Mr. Francis came to Ms. Murley’s residence; 2) when the police arrived; and 3) the ancillary possession of oxycodone.

Also, Handrigan, J. separated the assault on Corporal Foley from the others as it was so repulsive involving spitting in the officer’s face knowing he had Hepatitis C Virus. The past criminal history of Mr. Francis consisted of 75 offences in this province. He was age 50 and a troubled person. He had spent 14 months on remand but had gained some insight into his issues. [ 22 ] In R. v. Jakupaj , 2017 NLTD(G) 120, Whalen, C.J., imposed a sentence of four years imprisonment for an offence of break and entry.

The 33 year old first offender had arrived from Kosovo in 2007 and was suffering from “Post Traumatic Stress Disorder”. He was a taxi driver and had picked up a 22 year old female and drove to her residence. A few minutes after she exited the vehicle, he committed a break and entry into her residence and was involved in an altercation with another person and then left. It was the early hours of the morning and he immediately had gone to the bedroom and had intended a sexual assault. [ 23 ] Whalen, C.J. cited R. v.

Newhook , 2008 NLCA 28 , wherein a sentence of 23 months was increased to 5 years imprisonment for multiple offences including a break and enter into a residence which was occupied at the time of the offence and actual use of violence to a person. This constituted a home invasion which was an aggravating factor. [ 24 ] Whalen, C.J. noted the importance of the societal value protecting the integrity of a person’s place of residence. “A home invasion is a most serious and egregious crime for which offenders should expect to receive lengthy terms of imprisonment.” As well, Mr.

Jakupaj was in a position of trust as a taxi driver. [ 25 ] In R. v. Newhook , 2008 NLCA 28 the offender pleaded guilty to assaulting a female and being unlawfully in her home and damaging her property. On December 9, 2006 when they were together at an event, she decided to leave with her cousin. He followed her and grabbed her arms and pushed her. She fell but eventually got away and went to a friend’s house. At 5:00 a.m. he went to her home. He was asleep on her bed when she arrived and asked him to leave.

He began screaming, struck her hard in the face and when she tried to call police, he struck her on the thigh. He had a key to her home but had broken in as he had left his key inside. [ 26 ] On January 6, 2007, he waited outside until her male friend left at 6:30 a.m. He then broke into the residence with a hatchet. He slapped her across the face, put on handcuffs and hauled her to the bedroom. He told her to dress and then dragged her to the trail that led to his house.

Once at his home, he told her to go upstairs, he locked the door and stated, “I’ve got no life, you’ll have no life” and that it was her last day. Eventually, she got away without a coat and wearing socks on her feet. [ 27 ] Mr. Newhook had a previous related record for assault. The trial judge imposed a total sentence of 23 months and probation for 2 years. Rowe, J.A. for the appellate court, reviewed firstly whether the offences were part of a single criminal adventure and then whether the sentence was demonstrably unfit. He found that the trial judge failed to apply the aggravating factor of a home invasion.

Rowe, J.A. stated the case warranted a sentence above the low end of the range which is 18 months. This was the second time the offender had entered her house and assaulted her. He imposed three years for that break and entry, kidnapping – four years, assault with a weapon – nine months, assault – four months, all consecutive except the last and three months on each of the breaches of undertakings for a total of eight years and three months. He then considered the totality principle and reduced the sentence to five years in total. defence authorities [ 28 ] In R. v.

Critch , 2012 PCNL 1310A00475 , Gorman, P.C.J. granted a conditional discharge and probation for 12 months for careless storage of firearms and ammunition contrary to section 86(1) of the Criminal Code of Canada . The facts indicated a young boy was shot by another young boy at Mr. Critch’s residence. The accused had no prior record, pled guilty, was very remorseful and ensured his children participated in a hunter/safety program. The Crown had sought 30 to 60 days imprisonment while the defence had requested a discharge so that his future employment in Alberta would not be jeopardized. [ 29 ] In R. v.

McAuley , 2012 PCNL 1312A00152 , Gorman, P.C.J. granted a suspended sentence and probation for 12 months for the offence of break and entry into a dwelling house contrary to section 348(1) (a)(

d) of the Criminal Code of Canada . The accused had kicked in the front door of his friend’s residence as he believed he was having an affair with his common law partner. Once inside, he screamed at them and pushed a stool but then left. Mr. McAuley was a first time younger offender who pled guilty and had an excellent employment history. The Crown had sought a period of six to eight months incarceration while the Defence had requested a suspended sentence and probation. circumstances of the offender [ 30 ] John Leslie Starkes is 61 years old, single and unemployed.

He has a related prior criminal record involving threats and possession of a firearm. He has been treated leniently by the Courts in the past as his sole period of imprisonment was in 2016 for 15 days. Now he is before the Court for a very grave offence, the most serious he has committed in his lifetime at least to the knowledge of this Court. [ 31 ] I believe he is a troubled individual who is suffering from depression, no doubt exacerbated by his excessive consumption of alcohol. This is information gained from his statement to the police on September 7, 2017.

I have no medical information although I granted postponements so that reports could be obtained. Mr. Starkes believes his mental stability and general unhappiness are affected by his living in an isolated community. He has been trying to find alternate accommodation through a government agency in a large center. Mr. Starkes owns a home in Nippers Harbour to which he may have to return which is a concern.

[ 32 ] Mr. Starkes has little support other than from his sister who lives in another community and has been present in court with him. He was living with his cats in Nippers Harbour at the time of the offences and has been in custody since September 7, 2017. A cousin in the community has assisted him in the past. Some years ago, he was gainfully employed as a commercial fisherman and cites the decline in the crab industry as the reason for his business losses. His financial situation is not good and his prospects for employment appear dim. prior Criminal record [ 33 ] Mr.

Starkes’ most recent conviction in 2016 was for impaired driving which occurred in 2014. He was sentenced to 15 days imprisonment, probation for 1 year and a driving prohibition for 12 months. His other convictions, 11 in number, date from 1988 to 2007 and involve fisheries violations, mischief, possessing unregistered restricted weapon, dangerous use of a firearm, uttering threats and impaired driving, for which fines, restitution and probation have been ordered. pre-sentence custody [ 34 ] Mr. Starkes was denied judicial interim release and has been in custody since September 7, 2017 which is 279 days.

Defence advised that he has spent about 97 days in holding cells which has been very difficult and stressful for him. After his guilty pleas on March 12, 2018, his matter was postponed at the request of defence on three occasions for various reasons. This accounts for some of his stay at the local detachment. Mr. Starkes will be given 1.5 days of credit for each day of pre-sentence custody which equates to 419 days. nature of offences [ 35 ] The offence perpetrated on Ms. Dolland is very disturbing. Mr. Starkes harboured ill feelings towards Ms. Dolland arising from their relationship some 12 years ago.

He was upset by what he perceived as “looks” she was giving him. After a night of heavy drinking, he entered Ms. Dolland’s home uninvited and when she returned sometime after midnight, he assaulted her. This was a terrifying experience for Ms. Dolland as it would be for any person. Mr. Starkes put his hands around her throat to the point she could not breathe. He had stated to Ms. Dolland, “you bitch, I’m going to kill you.” She had the presence of mind to try to calm Mr. Starkes. He asked if she had any alcohol and after giving him a beer, she fled. [ 36 ] This crime has had a devastating effect on Ms. Dolland.

She is fearful Mr. Starkes will return to Nippers Harbour which is a considerable distance from a police detachment. I am very concerned for the safety of Ms. Dolland, particularly if Mr. Starkes returns to his previous lifestyle of abusing alcohol. He acted in a most irrational manner that night displaying no control over his behaviour even when the officers were on the scene. I found his comments to Ms. Dolland particularly devious and despicable when he referenced missing women in St. John’s and St. Anthony. Later, he threatened the police officers saying he would blow them away if they returned to arrest him.

Such conduct is intolerable and unacceptable in our society and must be addressed in a manner that sends a clear message to Mr. Starkes and other likeminded persons. attitude of the offender [ 37 ] Mr. Starkes has entered guilty pleas to the offences which is a mitigating factor. The Court accepts that he acknowledges his wrongdoing. He apologized to officers on the scene for his conduct towards them earlier. However, I see no indication of remorse and no empathy for his victim, Ms. Dolland. He had no interest in reading her Victim Impact Statement. There was no apology from him in relation to Ms. Dolland.

This is troublesome to the Court. impact on the victim [ 38 ] Eva Dolland stated in part she does not sleep at night, has panic attacks, and locks her doors night and day since this offence was committed. Her life has not been the same. She fears for her life and is concerned the offender might get out and try it again. Clearly, Ms. Dolland’s sense of security has been greatly impacted by the criminal actions of Mr. Starkes. conclusion [ 39 ] I have considered the mitigating factor of the guilty pleas although I am not satisfied that Mr.

Starkes fully and truly comprehends the very grave nature of his crime involving Ms. Dolland. He did apologize to the police officers during his arrest for his earlier conduct towards them. It is egregious that he entered Ms. Dolland’s residence which should be a place of sanctity and security for her and assaulted her by pinning her to the floor and choking her. Ms. Dolland has been profoundly and adversely affected and is fearful that Mr. Starkes may return to Nippers Harbour. Mr.

Starkes has a prior related record for uttering threats and firearms violations. [ 40 ] Therefore, on the charge of break and enter into Ms. Dolland’s home and assault on her, I am sentencing Mr. Starkes to 21 months imprisonment. On the charge of uttering threats to police officers, 2 months imprisonment consecutive and on the firearms offence, 1 month consecutive for a total sentence of 24 months less 419 days for pre-sentence custody leaving 311 days to serve. [ 41 ] In consideration of the totality principle in the terms set out by Clayton Ruby in Sentencing (4th ed.

Toronto: Butterworths, 1994) at pages 44 – 45 and referenced by Rowe, J.A. in Newhook , I am satisfied the aggregate sentence of 24 months is not substantially greater than the normal level of a sentence for the most serious of the offences which is the break, enter and assault nor is 24 months a “crushing sentence” not in keeping with Mr. Starkes’ record and prospects. [ 42 ] I also find the offences do not arise from a single criminal adventure, they are separate in time and there is no nexus between them. [ 43 ] Further, Mr. Starkes is placed on probation for three years with conditions that: 1.

He keep the peace and be of good behaviour.

2. Report to the probation officer within 72 hours of his release from custody and thereafter as required. 3. Have no contact nor communication with Eva Dolland and to remain away from her place of employment and place of residence. 4. Undertake counselling as may be recommended by the Adult Probation Officer. [ 44 ] The following orders are also imposed: 1. Pursuant to section 109(1) of the Criminal Code , the offender is prohibited from possessing any firearms, ammunition or explosive substance for a period of 10 years following his release from prison. 2. An order under

section 487.051(3) to provide necessary samples of bodily substances for purpose of DNA analysis. 3. Forfeiture of the seized firearm. 4. Victim Fine Surcharges of $200 on each offence to be paid by the offender within six months. Thank you. _____________________________ Kendra J. Goulding Justice