R. v. Farrell, 2022 NLSC 76

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Farrell , 2022 NLSC 76 Date : April 22, 2022 Docket : 202006g0099 202006G0105 202006G0107 Her Majesty The Queen v. Anthony Cyril Farrell Before: Justice Katherine O'Brien Place of Hearing: Grand Bank, Newfoundland and Labrador Dates of Hearing: November 15-19, 2021 November 22-23, 2021 December 21, 2021 February 23, 2022 March 25, 2022

Summary: This is a sentencing decision. The offender was sentenced to 24 months of incarceration plus 12 months of probation, less time served, for various offences related to a break-in at a pool house and lounge. The offender caused significant property damage. He broke open an automatic teller machine and stole over $4000. The Court did not reduce the offender’s sentence because of the conditions of his pre-

sentence custody related to the COVID-19 pandemic. Appearances: Alison J. Manning Appearing on behalf of the Crown Jason A. Edwards Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Farrell, 2021 NLSC 175; R. v. Friesen, 2020 SCC 9; R. v. Parranto, 2021 SCC 46; R. v. Duncan, 2016ONCA 754; R. v. Bryon, 2021 ABQB 883; R. v. Morales (2021), 174 W.C.B. (2d) 349, [2021] N.J. No. 133 (Prov. Ct.); R. v. Marshall,2021 ONCA 344; R. v. Dawson, 2021 NSCA 29; R. v. Boucher, 2020 QCCQ 2308; R. v. Gordey, 2020 ABQB 425; R. v. Penney, 2005NLCA 31; R. v. Summers, 2017 NLCA 20; R. v.

Thorne, 2014 NLTD(G) 111; R. v. Wakeham (2001), (NL SC),199 Nfld. & P.E.I.R. 131, 49 W.C.B. (2d) 343 (Nfld. T.D.); R. v. Sparkes, 2018 NLPC 1318A00140, ; R. v. Saunders(2019), 157 W.C.B. (2d) 191, [2019] N.J. No. 233 (P.C.); R. v. Farrell (2013), 341 Nfld. & P.E.I.R. 244, N.J. No. 289 (Prov. Ct.); R. v.Murphy, 2021 NLSC 170; R. v. Hutchings, 2012 NLCA 2; R. v. Roberts, 2019 NLCA 43 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 TEXTS CONSIDERED: Clayton C. Ruby, Sentencing, 6th ed. (Toronto: Butterworths, 2004) REASONS FOR JUDGMENT O'Brien, J: INTRODUCTION [1] I found Mr.

Farrell guilty of four offences under the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”) following a trial byjudge alone. Those offences are: break and enter (section 348(1)(a)), possession of stolen property (section 354(1)), possession of break-in instruments (section 351(1)), and mischief to property not exceeding five thousand dollars (section 430(1)(a)). This is my decision onsentence. [2] The relevant facts are set out in detail in my decision on conviction (R. v. Farrell, 2021 NLSC 175). Briefly, on January 13,2020, Mr. Farrell broke into JJ Billiards and Lounge in Salt Pond, Newfoundland and Labrador.

Mr. Farrell acted with an accomplice,Shane Murphy. I cannot say exactly who did what, but Mr. Farrell was definitely inside the building and Mr. Murphy drove the pairaway from the scene. The automatic teller machine (ATM) was broken open and money from inside was stolen. The ATM was sosignificantly damaged that it could not be used again. The rear door to the building was also significantly damaged. Outside, the powermeter was torn from its socket and the wire to it was cut. [3] Despite the power being cut, the security alarm was triggered and the police responded.

En route to the scene, a police officerstopped a car with Mr. Farrell and Mr. Murphy inside. Both men were arrested. There were wire cutters and a pry bar in the car, which Ifound were used in the break and enter. Mr. Farrell had $4360 in his pockets, which I found to be money stolen from the ATM. [4] Shane Murphy had a separate trial. He was convicted and has been sentenced. ISSUES [5] I have to decide the appropriate individual sentences for each of these crimes and the appropriate overall sentence for Mr.Farrell.

DECISION [ 6 ] I have determined that the appropriate sentence for Mr. Farrell is 24 months of imprisonment, less time served, 12 months of probation and a DNA order. My reasons are as follows. SENTENCING OBJECTIVES [ 7 ] Determining an appropriate sentence starts with the principles of

section 718 of the Code . The sentence must contribute to respect for the law and the maintenance of a just, peaceful, and safe society. It should meet one or more of the following objectives: denunciation, deterrence, separation of offenders from society (where necessary), rehabilitation, reparation, and general promotion of a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community. [ 8 ] The goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal.

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender ( R. v. Friesen , 2020 SCC 9 , para. 30 ; R. v. Parranto , 2021 SCC 46 , para. 10 ). [ 9 ] It is important to consider the offender’s personal circumstances including family and social background, alternatives to incarceration (where they are available and appropriate), and any factors that mitigate or aggravate the offences.

The sentencing sections of the Code have as their primary focus the protection of the public, which is best achieved by crafting a sentence that fits both the offence and the offender. [ 10 ] While each case and each offender is unique, a fit sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is known as the principle of parity. To arrive at a sentence that is in parity with other sentences , courts look at comparable sentencing decisions.

The principle of parity is secondary to the principle of proportionality, but the two are not at odds with each other. This is because parity assists courts in fixing a proportionate sentence ( Friesen , para. 31 ; Parranto , para. 11 ). RANGE OF SENTENCE UNDER THE CODE [ 11 ] The Code does not prescribe minimum punishments for any of these crimes, but it prescribes maximum punishments as follows: a. Break and enter (sections 348(1)(

a) and (e)) - ten years b. Possession of stolen property valued at no more than five thousand dollars (sections 354(1) and 355(b)(i)) - two years c. Possession of break-in instruments (section 351(1)) - ten years d. Mischief to property not exceeding five thousand dollars (sections 430(1)(

a) and (4)(a)) - two years [ 12 ] A maximum penalty will by its very nature be imposed only rarely and is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness. CROWN POSITION [ 13 ] Crown counsel submitted the following sentences of imprisonment were appropriate for each count: a. Break and enter – 3 years b. Possession of stolen property – 6 months c. Possession of break-in instruments – 3 months d.

Mischief to property – 3 months. [ 14 ] Crown counsel submitted that all of the offences form part of a single criminal venture and thus the sentences should be served concurrently. [ 15 ] Additionally, Crown counsel sought ancillary orders under the Code : a DNA order (section 487.051(3)) and a restitution order (section 738). If the sentence of imprisonment imposed did not exceed two years, she requested probation. The DNA order is discretionary because break and enter is a secondary designated offence under

section 487.04 of the Code . With respect to the restitution order, Crown counsel noted that the money seized from Mr. Farrell would be returned to the owners of JJ Billiards if the conviction decision is not appealed and thus did not include that amount in the request for restitution.

[ 16 ] Crown counsel asked me to consider the following aggravating factors in relation to sentence: a. Mr. Farrell’s criminal record, which is lengthy and related. b. The prevalence of break and enter offences in the community involving ATMs at commercial premises. c. The role Mr. Farrell played in the break and enter, which Crown counsel submitted was more involved as compared to that of Mr. Murphy. d. The significant loss suffered by a family-owned business. [ 17 ] Crown counsel did not identify any mitigating factors. She disagreed with the defence positon that Mr.

Farrell should be given sentencing credit for the impacts of COVID-19 during his time in pre-sentence custody. Crown counsel submitted that Mr. Farrell should be credited at a ratio of one and one-half days for each day spent in pre-sentence custody (1.5:1). DEFENCE POSITION [ 18 ] Defence counsel agreed with Crown counsel’s sentencing submissions in relation to possession of stolen property, possession of break-in instruments and mischief. He also agreed that the sentences should be served concurrently. [ 19 ] Defence counsel submitted that the appropriate sentence for the break and enter offence is time served.

Counsel agreed that Mr. Farrell had spent 367 days in pre-sentence custody as of the date of their submissions. Using a credit of 1.5:1 this equates to a custodial sentence of approximately 18.5 months. [ 20 ] Defense counsel’s submission is predicated on Mr. Farrell’s sentence being reduced because of the conditions of his pre- sentence custody caused by the COVID-19 pandemic. He noted that courts have taken two approaches to dealing with this issue. One approach has been to give enhanced credit over 1.5:1.

The other has been to consider it as a mitigating factor that serves to reduce the sentence within the range of fit sentences. Defence counsel submitted that treating COVID-19 as a mitigating factor was the more fitting approach for this case. [ 21 ] Defence counsel distinguished the present case from commercial break and enters involving pharmacies and the theft of narcotics. He also noted that much of his client’s criminal record is a youth record. While he did not suggest that Mr. Farrell and Mr. Murphy should receive the same sentence, he noted that Mr. Murphy was convicted of conspiracy and Mr.

Farrell was not. [ 22 ] Defence counsel did not oppose probation or a DNA order. With respect to the restitution order, he noted that Mr. Farrell is currently incarcerated but has good employment prospects upon release. He asked that the victim fine surcharge be waived. analysis COVID 19 Evidence of Mr. Farrell [ 23 ] Mr. Farrell testified about his pre-sentence custody experience at Her Majesty’s Penitentiary (“HMP”) in St. John’s.

As a result of restrictions imposed there to prevent or reduce the spread of COVID-19, he was confined to his range for prolonged periods without access to the library, outdoor recreation or the gym. Mr. Farrell was not specific as to the time frames of these restrictions but said that the restrictions had been greater during the last three months. For the rest of the time, he testified that the restrictions were “on and off”. [ 24 ] Approximately four weeks prior to testifying, Mr. Farrell was diagnosed with COVID-19. He testified that he was required to isolate in his cell for 14 days as a result.

He said he was really sick and still has pain in his chest and numbness in his arms. He says he has a “puffer” now. He was not hospitalized although he had recently visited the hospital to get his heart checked. Mr. Farrell complained about air quality, a lack of water, and mold in his cell. He said he had covered the air vent in his cell because of his concern about black mold. [ 25 ] When asked about the effect of these conditions on his health and mental health, Mr. Farrell responded that it was “bad”.

He referred to being locked in his cell, thinking he was going to die because he had no fresh air and could not breathe. He said the nurse would check on him and tell him he was going to be fine. Evidence of Assistant Superintendent (AS) Fred Cumby [ 26 ] AS Cumby oversees day-to-day operations at HMP including the safety and accommodation of all staff and offenders. He has only been in this position for five weeks, but previously he held the same position at the Bishop Falls correctional centre.

AS Cumby testified that the response to COVID-19 has generally been the same in all correctional facilities in the province. [ 27 ] AS Cumby testified that for all but 11 days, ten of which were related to a disciplinary matter, Mr. Farrell has been housed in unit 4A at HMP. That unit houses federal inmates, provincial inmates, and remand inmates. It has 16 cells, five of which are double bunked. It also has common areas with showers, two phones, a mini-fridge, kettle, toaster, sink, fresh water, television and two picnic tables used for sitting, cards and games.

All inmates on the range have the same access to these areas unless they are confined to their cells for isolation or disciplinary reasons. [ 28 ] AS Cumby testified that COVID-19 has had a significant impact on operations at HMP. He said that the COVID-19 protocols used are formulated in conjunction with the Department of Health and follow guidelines provided for the penitentiary by Infection Prevention and Control (“IPAC”), which AS Cumby described as an arm of Eastern Health. He testified that these guidelines are similar to those for long-term care facilities in the province.

[ 29 ] Impacts on operations have included a loss of programming, recreational time, and in-person visits. The impacts have been different at different times based on COVID-19 alert levels, IPAC’s recommendations, and staff availability. Some changes have been made to the facility in an effort to lessen impacts such as space for virtual visiting and a behind-glass meeting room for lawyer visits. AS Cumby could not give details about when and how specific programs or privileges were affected since March 2020. AS Cumby testified that all inmates, remand and not, have been affected in the same way.

He confirmed that all inmates, remand and not, have the same access to programming and privileges at HMP. [ 30 ] AS Cumby testified that inmates infected with COVID-19 have to isolate according to the rules in effect at the time. When Mr. Farrell was infected, IPAC recommended 14 days of isolation. At this time, inmates were organized in cohorts depending on their infection status. During isolation, positive inmates were permitted out on the range with other positive inmates for periods of time. [ 31 ] AS Cumby testified as to the medical care received by inmates at HMP.

Nursing staff is on site 16 hours a day and a physician visits once a week. He also testified about the vaccination program at HMP. Special clinics were set up when vaccines first became available and now vaccines are available each day. [ 32 ] With respect to Mr. Farrell’s conditions, AS Cumby testified that Mr. Farrell has been double bunked for 25 days of his incarceration. AS Cumby confirmed that Mr. Farrell had made complaints through official channels about the air quality and mold in his cell. The air quality in Mr.

Farrell’s cell was tested in November 2021 by a third party company and was found to be suitable. No mold was found in his cell but the cell was professionally cleaned anyway. [ 33 ] Although he did not have a record of Mr. Farrell making a complaint about water, AS Cumby confirmed that HMP has periodic and on-going problems with water and plumbing. At times a cell is without water while the on-site plumbing staff work on the problem. Water is usually restored within a couple of days and, although inmates are offered another cell if available, some prefer not to move.

If they stay in their cell, inmates are given access to the main sink to fill up water bottles. AS Cumby testified that this was the case even for inmates with COVID-19 as guards wear protective equipment. [ 34 ] AS Cumby confirmed that complaints about air quality, cleanliness and the access of inmates to recreation are long-standing ones at HMP. Judicial treatment of COVID-19 in sentencing [ 35 ] Section 719(3.1) of the Criminal Code limits the credit courts can give an offender for time spent in custody before being sentenced to 1.5:1.

Nevertheless, a number of decisions have held that courts retain a discretion to grant greater credit when circumstances warrant, particularly when pre-sentence custodial conditions have been particularly harsh. This type of enhanced credit is often referred to as “ Duncan credit” in reference to R. v. Duncan , 2016 ONCA 754 , a case in which the Ontario Court of Appeal endorsed the practice. [ 36 ] Sentencing courts have given enhanced credit to address the effects of COVID-19 on pre-sentence custody conditions in a number of Canadian cases. In R. v. Bryon , 2021 ABQB 883 , Friesen J included a

Schedule “B” to her reasons containing a

summary of many of those reported decisions. A further example from this province is R. v. Morales (2021), 174 W.C.B. (2d) 349, [2021] N.J. No. 133 (Prov. Ct.) . [ 37 ] Sentencing courts have used different analytical paths to justify their decisions and have accounted for the effect of COVID-19 in different ways. A number have viewed harsh custodial conditions caused by the pandemic as a mitigating factor that can be taken into account in determining an appropriate sentence, but that cannot be used to justify a sentence that is otherwise unfit or disproportionate.

This view accords with recent appellate consideration in R. v. Marshall , 2021 ONCA 344 and R v. Dawson , 2021 NSCA 29 . The Newfoundland and Labrador Court of Appeal has not yet considered the issue. [ 38 ] The jurisprudence is consistent that COVID-19 does not result in a presumptive reduction in sentence and that the matter remains discretionary to the sentencing judge. In most cases where judges have reduced sentence, they have considered both the conditions of the pre-sentence incarceration and the impact of those conditions on the particular accused. Analysis of the impact of COVID-19 on Mr.

Farrell [ 39 ] There is no doubt that COVID-19 has made Mr. Farrell’s pre-sentence custody time more difficult. The impact of COVID-19 on operations at HMP has been profound. Direct impacts on Mr. Farrell have included a loss of access to facilities such as the gym and the library, a loss of in-person visits, and more time in his cell and within unit 4A. However, I am not satisfied that Mr.

Farrell’s circumstances as a result of the COVID-19 pandemic have been established to be sufficiently harsh such that they should reduce his sentence from what I would otherwise find to be a fit and proportionate one. [ 40 ] Over the course of the pandemic, COVID-19 has affected everyone’s ability to move about, spend time with others, and partake of activities that they otherwise would have.

People who have been incarcerated have been impacted more because of the closeness of their living quarters, the difficulties of adapting those quarters to allow social distancing and other preventative measures, and the strict conditions imposed to help prevent spread. Yet, I do not accept that this greater impact should automatically or too readily justify a reduction in otherwise fit sentences. Such a reduction, if given, should be reserved for cases where the effects have been particularly harsh or the institution’s response has been unreasonable.

The bar should not be low and, for reasons I will explain, I do not find it has been met here. [ 41 ] First, Mr. Farrell has not shown that his conditions as a remand inmate differed from those of inmates serving sentences. In many cases in which sentences have been reduced, the inmates served pre-sentence time in remand centers where conditions differed

from those faced by inmates serving sentences. In R. v. Boucher , 2020 QCCQ 2308 , the court considered this distinction and determined that enhanced credit was not justified when the conditions of remand were the same as those post-sentence because one of the policy reasons for enhanced credit for pre-custody time is that such custody is often more onerous or difficult than post-sentence custody (paras. 108 to 122). [ 42 ] Additionally, I am not satisfied that Mr. Farrell has proven on a balance of probabilities that he suffered from serious deprivations such as a lack of fresh air or water.

With respect to the air, Mr. Farrell testified that there was black mold in his cell and that he covered his air vent because of poor air quality. He did not advise that the cell had been assessed and the air found to be suitable and the substance was not mold. I believed AS Cumby on both of these points, which were not challenged by Mr. Farrell’s counsel. As such, the only established reason for a lack of fresh air, is Mr. Farrell’s covering of the air vent in his cell. Mr. Farrell’s assertions about a lack of water were vague and without specifics such as when, for how long, or how often.

Although I accept that Mr. Farrell may have had problems with the plumbing in his cell, I believed AS Cumby’s evidence that water is provided to inmates from the main sink when such issues arise. [ 43 ] Also, Mr. Farrell was not subject to lockdowns or significant time in isolation other than when he was ill with COVID-19. Even then, HMP arranged for infected inmates to have time out of their cells on the range. This distinguishes Mr. Farrell’s case from those such as R. v. Gordey , 2020 ABQB 425 , where harsh lockdown conditions have been a factor. [ 44 ] Although Mr.

Farrell contracted COVID-19 while he was an inmate, he did so at a time when the Omicron variant of the virus was predominant. In January 2022, Newfoundland and Labrador’s Chief Medical Officer stated publicly that this virus is so infectious that most people will acquire it. Public health officials now speak regularly of living with COVID-19. Although I do not wish to minimize Mr. Farrell’s illness, the reality is that COVID-19 is not at this time an illness that institutions such as penitentiaries and long- term care homes can reasonably prevent.

The evidence before me establishes that HMP has taken appropriate steps, in consultation with experts in public health and infectious diseases, to manage COVID-19. [ 45 ] Finally, as confirmed by AS Cumby several of Mr. Farrell’s complaints are long standing ones at HMP and not related to the institution’s COVID-19 response. As described in Morales , the oldest part of HMP was built in 1868 and the newer part was built in the 1980s. No one disputes that HMP is an old facility with many deficiencies. Work on its replacement is on-going.

Yet, for now, HMP continues to house inmates and the building’s deficiencies are not such that they should habitually or universally impact sentences. [ 46 ] In short, Mr. Farrell has not established on a balance of probabilities that his pre-sentence custodial conditions were sufficiently harsh to warrant enhanced credit or reduction of an otherwise fit sentence. Victim Impact Statement [ 47 ] Wanda Barron, owner of JJ Billiards, filed a Victim Impact Statement. Ms. Barron described the stress these crimes have caused her and her employees. Some employees feel nervous or scared. One left work as a result. Ms.

Barron described feeling frustrated and violated. She also wrote of the difficulty of being a small business and the financial loss suffered because of the property damage and the loss of a full day’s business. Aggravating and Mitigating Factors [ 48 ] Mr. Farrell is 35 years old and has a lengthy and related criminal record which includes prior convictions for break and enter (eight), theft (eight), and possession of stolen property (two). He also has twenty three prior convictions for breach of court order or failure to comply with a disposition. [ 49 ] There are no significant gaps in Mr.

Farrell’s record, the lengthiest ones being on the order of three years. Five of the break and enter convictions, one of the possession of stolen property convictions and all of the theft convictions are from his youth record. [ 50 ] Even considering that a significant part of Mr. Farrell’s criminal record is a youth record, it is a significant aggravating factor. It demonstrates Mr. Farrell’s long history with similar crimes, without significant gaps. [ 51 ] There are also circumstances of the offences that are aggravating. This was not a “smash and grab” type of event. Mr.

Farrell had to have premeditated his actions, given that power was cut in an effort to circumvent the security system and the ATM was breached. He also did a significant amount of property damage. [ 52 ] Mr. Farrell apologized to the court and showed some remorse. This is a mitigating factor. Comparable Sentencing Decisions [ 53 ] I am satisfied that the sentences for the offences agreed to by Crown and defence counsel are within the range of comparable sentences and fit and appropriate for Mr. Farrell. As such, I will focus on the break and enter offence, for which they disagreed as to sentence. [ 54 ] In R. v.

Penney , 2005 NLCA 31 , the Newfoundland and Labrador Court of Appeal found the appropriate sentence for a 24- year-old offender who had pleaded guilty to break, enter and theft at a pharmacy was 24 months. The court was unanimous in the result, although Rowe J.A. (as he then was) dissented with respect to the application of the totality principle. His dissent is not relevant to this case.

In his consideration of sentence, Rowe J.A. cited the following passages from Clayton Ruby in Sentencing , 6th ed. (Toronto: Butterworths, 2004) at pages 791-2 with apparent approval: A middle range of sentence from about one year to just below three years for commercial break-ins typically involves offenders with a record of some substance.

The sentence of two years has been given on a number of occasions to 19- and 20-year-olds with substantial records. [55] I do not take from this that Rowe J.A. was pronouncing a sentencing range. Even if he was, sentencing ranges are non-bindingguidelines, not hard and fast rules (Parranto at para. 36). Yet, the guidance provided in Penney is helpful to my determining a sentencethat is both proportionate and in parity with other sentences. [56] Counsel filed a number of cases most of which are within the range suggested in Penney. The cases filed that I found mostcomparable to Mr. Farrell’s are: a. R. v.

Summers, 2017 NLCA 20. The court of appeal upheld a sentence of three years imprisonment for break and enter into apharmacy to steal narcotics. The offences evidenced “a great deal of planning” and property was damaged (paras. 10 and 12). Mr.Summers was 32 years old, pleaded guilty and had an extensive criminal record. Picking up on comments made in Penney, the courtemphasized the damage caused by the use and trade of illegal hard drugs.

It held that breaking into a pharmacy and stealing narcotics issignificantly more serious than breaking into a commercial building to steal items, such as electronics, to sell for money (para. 9). Themain distinguishing features of Summers from the present case are that Mr. Farrell did not target a pharmacy and he does not have themitigating effect of a guilty plea. b. R. v. Thorne, 2014 NLTD(G) 111. The 42-year-old offender pleaded guilty to break and enter into a restaurant and was sentencedto 20 months of imprisonment.

He had an extensive criminal record with a number of property-related offences, although not for breakand enter. A pre-sentence report concluded that his prospects for rehabilitation were poor. The main distinguishing features of Thornefrom the present case are that Mr. Farrell’s crimes evidence more planning, he has a history of break and enters, and he does not have themitigating effect of a guilty plea. Additionally, Mr. Throne was on a probation order and release conditions at the time, although he wassentenced for those offences separately. c. R. v.

Wakeham (2001), (NL SC), 199 Nfld. & P.E.I.R. 131, 49 W.C.B. (2d) 343 (Nfld. T.D.). The 36-year-oldoffender pleaded guilty to a break and enter and theft from a safe in a commercial premises. He was sentenced to 45 months ofimprisonment. The sentencing judge found comparable cases demonstrated a range of 3 to 6 years for similar offenders with significantcriminal records. Mr. Wakeham had a lengthy criminal record that included a number of break and enter offences. There are a number ofsimilarities between Mr. Wakeham’s case and that of Mr. Farrell.

However, the decision is dated and the sentencing range considered ishigher than that evidenced by more recent jurisprudence. d. R. v. Sparkes, 2018 NLPC 1318A00140, . The 36-year-old offender pleaded guilty to the offences of break andenter, possession of stolen goods and damage to property, all related to a break and enter into a restaurant and convenience store business.Once inside, Mr. Sparkes and an accomplice broke into cash registers, two safes, and a filing cabinet. Over $7,000 in cash was stolen andthere was significant property damage. The judge found the break and enter was planned and deliberate. Mr.

Sparkes had a long criminalrecord and was bound by a probation order at the time. He did not have any prior convictions for break and enter, although had three fortheft. He was sentenced to concurrent sentences, the longest of which was 22 months of imprisonment for damage to property. Hereceived six months concurrent for the break and enter. He also received 3 years of probation. Mr. Sparkes’ case has many similarities tothat of Mr. Farrell, although the property damage was more extensive in the case of Mr. Sparkes. I understand that the judge imposed alonger sentence on the property charge to denounce Mr.

Sparke’s wanton destruction of property. He found that all of the offences werepart of the same criminal venture. e. R. v. Saunders (2019), 157 W.C.B. (2d) 191, [2019] N.J. No. 233 (P.C.). The 43-year-old offender pleaded guilty to break, enterand theft from a commercial premises, as well as other offences. Mr. Saunders had a lengthy criminal record including eight offences forbreak and enter, but it was dated. His last conviction was 13 years prior and his last conviction for break and enter was 26 years prior.Mr. Saunders suffered from addiction and showed significant remorse.

He was sentenced to 15 months for the commercial break andenter. The judge found that the offence fell on the higher end of the scale of seriousness for commercial break and enters because itinvolved foresight and the use of information Mr. Saunders obtained while an employee. A safe was breached and $15,000 stolen andnot recovered. Mr. Saunders’ overall sentence was reduced because of totality. He additionally received two years of probation and arestitution order. [57] Also of assistance is R. v. Farrell (2013), 341 Nfld. & P.E.I.R. 244, N.J. No. 289 (Prov. Ct.), in which Mr.

Farrell wassentenced at provincial court for three separate break and enters he committed as an adult over a period of a year and a half. Two of thebreak-ins were at commercial premises and involved thefts and one was at a dwelling house. The judge determined appropriate sentencesto be nine months for one commercial break-in, 12 months for the other, which was “deliberate, planned and extensive” (para. 95), and“at least” 12 months for the dwelling house. The sentences would have presumptively been served consecutively because they weredistinct criminal ventures.

Including a three month sentence for breach of undertaking, this would have resulted in a total sentence ofthree years, which the judge found would be “neither unduly long nor harsh, in the sense of being disproportionate to the gravity of theoffence and the degree of responsibility of the offender” (para. 97). However, because a joint submission had been tendered the judge,somewhat reluctantly, endorsed a global sentence of 18 months plus two years of probation. [58] In R. v. Murphy, 2021 NLSC 170, Mr.

Farrell’s co-accused was sentenced to 12 months for the break and enter, six months forpossession of break-in instruments, three months for possession of stolen property, and three months for mischief. Additionally, Mr.Murphy was convicted of conspiracy and sentenced to six months for this offence. Mr. Murphy was a 35-year-old first time offenderwith mental health and substance abuse issues. Sentence for Break and Enter [59] I do not consider the present case to be as serious as a break and enter into a pharmacy to steal narcotics.

The damage wroughtby the illegal trade and use of such drugs is well documented and tragic. Nonetheless, I consider a break and enter involving an ATMhigh on the scale of seriousness. Businesses with ATMs are easily identified, prevalent in our communities, and are tempting targetsbecause of the amounts of cash typically carried. As was the case for Mr. Farrell, break and enters involving ATMs are typicallyplanned, somewhat sophisticated, and often result in substantial property damage. A fit sentence for Mr. Farrell must consider general

deterrence and denunciation. [ 60 ] This crime has had a serious impact on the owners and employees of JJ Billiards. The consequences have been financial and emotional. The property damage done was significant. An appropriate sentence should acknowledge the harm Mr. Farrell has done to these victims. [ 61 ] Mr. Farrell’s criminal record highlights the importance of specific deterrence as well. This is the fourth distinct break and enter he has committed as an adult and he committed another five similar crimes as a youth.

Despite serving a significant sentence of incarceration for previous offences, he has persisted in his activity. This is a significant aggravating factor and distinguishes Mr. Farrell from his co-accused Mr. Murphy. A fit and proportional sentence for Mr. Farrell must recognize this distinction. [ 62 ] Additionally, I accept that Mr. Farrell’s involvement in the crime has been established as being greater than that of Mr. Murphy. Mr. Farrell was in the building and Mr. Farrell was carrying the stolen money. This also warrants a higher sentence for Mr. Farrell than for Mr.

Murphy. [ 63 ] That being said, although I have little information about Mr. Farrell’s personal circumstances, he is only 35 years old and his rehabilitation and successful reintegration into society are also important goals for his sentence. [ 64 ] I have considered the above, the specific circumstances of the break-in at JJ Billiards, its impact on the victims, Mr. Farrell’s circumstances to the extent I know them, and comparable sentencing decisions.

I have determined that a sentence of 24 months imprisonment plus 12 months of probation for the break and enter charge is a fair, fit and principled sentence that is proportionate to the seriousness of the offence and the high degree of Mr. Farrell’s responsibility for it. [ 65 ] I will hear from counsel with respect to the conditions of probation before finalizing that order. Ancillary Orders [ 66 ] I am imposing a DNA order (section 487.051(3)) but not a restitution order (section 738). [ 67 ] Mr. Farrell is currently incarcerated and has been for over a year. He is obviously not employed.

Although, his counsel advised that he has good prospects for employment upon release, the future is always uncertain. Although restitution orders can be an effective way to promote a sense of responsibility in an offender and acknowledge harm done to victims, a significant debt for a person of limited means can be a hurdle to successful reintegration to life outside prison. [ 68 ] The cash stolen from the ATM, which was the majority of the amount initially claimed for restitution, will be returned to the business in due course.

While I acknowledge that this does not make JJ Billiards (or potentially their insurers) whole, I have to consider all of the circumstances in determining a just and proportionate sentence. Having done this, I am exercising my discretion to not order restitution. For similar reasons, I am also waiving the Victim Fine Surcharge. Concurrency and totality [ 69 ] For the offenses of possession of stolen property, possession of break-in instruments and mischief, I accept the shared submissions of Crown and defence counsels.

Their submissions are within the range of appropriate sentences and fit and proportionate for Mr. Farrell. [ 70 ] I also agree with counsel that the offences form part of a single criminal venture and should be served concurrently ( R. v. Hutchings , 2012 NLCA 2 at para. 84 , and R. v. Roberts , 2019 NLCA 43 at para. 37 ). [ 71 ] Applying concurrency of sentences results in a total sentence of 24 months plus 12 months of probation. Following the direction in Hutchings and Roberts , I must take a final look at the combined sentence and consider the principle of totality.

The principle of totality requires that the total sentence not be unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender. I am satisfied that the sentence I have arrived at is appropriate and fit. It is not unduly long or harsh and it is commensurate with the seriousness of these offences and Mr. Farrell’s responsibility for them. Credit for Pre-Trial Custody [ 72 ] Mr. Farrell shall be credited for 395 days of pre-trial custody at a ratio of 1.5:1. This is 593 days. A sentence of 24 months amounts to 730 days.

Applying the credit, Mr. Farrell has 137 days or approximately 4.6 months of custody remaining. DISPOSITION [ 73 ] Mr. Farrell is sentenced as follows: a. Break and enter (sections 348(1)(

a) and (e)) – 24 months plus 12 months of probation b. Possession of stolen property valued at no more than five thousand dollars (sections 354(1) and 355(b)(i)) – six months, concurrent c. Possession of break-in instruments (section 351(1)) – three months, concurrent

d. Mischief to property not exceeding five thousand dollars (sections 430(1)(

a) and (4)(a)) – three months, concurrent [ 74 ] In addition, I order, pursuant to

Section 487.051(3) of the Code , a DNA order in Form 5.041. _____________________________ Katherine O'Brien Justice