R. v. Rintoul Date:, 2014 BCPC 264

Citation: R. v. Rintoul Date: 20140731 2014 BCPC 0264 File No: 202153-3-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DUSTY LEE RINTOUL ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P.D. GULBRANSEN Counsel for the Crown: W. Sayson, Q.C. Counsel for the Defendant: G. Bowen Place of Hearing: Surrey , B.C. Date of Hearing: July 24, 2014

Date of Judgment: July 31, 2014 Introduction [ 1 ] THE COURT : Dusty Rintoul has pleaded guilty to robbery using a firearm contrary to s. 344(1)(a.1) of the Criminal Code and to possessing a loaded prohibited firearm contrary to s. 95(1) of the Criminal Code . On October 6th, 2013 he used a loaded sawed-off .22 rifle to commit a robbery. The accused was arrested on the same day and has been in custody ever since. [ 2 ] Robbery with a firearm carries a four-year minimum sentence but the Crown submits that a fit sentence in this case would be five-and-a-half years.

The firearms charge carries with it a minimum sentence of three years but the Crown says that the sentence for that offence should be five years. The defence does not take much issue with the Crown's proposed sentence but suggests that the court should give the accused credit for one-and-a-half days for each day he has been in custody since his arrest. The Crown disagrees, submitting that the accused is not eligible for that consideration because the detention order at his bail hearing was made because of his criminal record.

Circumstances [ 3 ] On October 6th, 2013 the accused, in the company of his girlfriend, Ms. McNeil, who is to be sentenced at a later date, went to the home of a man named Patrick Mitchell. Mitchell and the accused had known each other since childhood. As he had done many times before, Rintoul just walked in Mitchell's front door without even knocking. That was how close the friendship was. [ 4 ] The three of them began talking to each other. McNeil and Rintoul ingested some drugs, Mitchell did not.

At some point after that Rintoul accused Mitchell of "checking out" his companion, McNeil, the implication being that he was somehow flirting with her or showing some sexual interest in her. Rintoul then produced a sawed-off rifle from the bag that he had been carrying. He pointed it at Mitchell. He proceeded, with the assistance of McNeil, to remove a significant amount of Mitchell's personal property from the residence. The rifle was pointed continually at Mitchell for an extended period of time while the robbery occurred. Mitchell did not resist but asked Rintoul not to take out any of his parents' property.

Apparently Rintoul complied with this request. Before he left, Rintoul told Mitchell that if he called the police that Rintoul would shoot him. [ 5 ] Rintoul and McNeil left the house to load the property into a vehicle. Mitchell locked the front door to the house, ran out the back door to a neighbour's home and phoned the police. The police responded quickly and attended Rintoul's residence where they arrested him and McNeil. They obtained a search warrant and recovered the stolen property and during the search they found a duffle bag which contained the sawed-off rifle. It was loaded.

Circumstances of the Accused [ 6 ] Mr. Rintoul is now 29 years old. He has been a drug addict for much of his life. His criminal record starts in 1998 and his last conviction before the present one occurred in July of 2013. His criminal record [began many years ago] and his last conviction before the present one occurred in July of 2013. He has many convictions [text removed for publication].

In particular, he has been convicted of robbery on July 30 th , 2010 and [on an earlier occasion a number of years ago]. [ 7 ] The accused had a troubled childhood, including experiencing the separation of his parents when he was very young, and a very turbulent upbringing. His mother and step-father were drug addicts. He did not do well in school and was a troubled child [text removed for publication] and lived in a series of foster homes. His abuse of drugs started in his teens and has continued ever since. [ 8 ] The pre-sentence report portrays Mr.

Rintoul as a man who is realistic about his past life and who accepts responsibility for the criminal acts which bring him to court on these latest charges. He is motivated to change, in particular, to escape the dependence on drugs and the associated lifestyle which comes with drug addiction or drug abuse. Analysis [ 9 ] The offence in this case is typical of the kind of case that occurs within the drug world. That is, it was somewhat impulsive and rather pointless. Rintoul obtained some property, presumably to get money for drugs. No doubt he would only receive a minimal amount of money for this property.

He had no ill will toward the victim, someone he had known for most of his life. It was virtually certain that he would be identified as the robber. What is a fit sentence in this circumstance? [ 10 ] Of most concern in this case is Mr. Rintoul's use of a loaded firearm. One has to ask, why would a person carry a loaded firearm? Of course, the answer is not only to intimidate a person but to shoot them if necessary. In Mr.

Rintoul's case, however, it is clear that he was not employed as a “hit man,” nor was he intent on shooting his friend or anyone else, but the very act of carrying a loaded gun suggests very strongly that he would use it if he needed to. [ 11 ] I agree with the Crown's suggested sentencing range. Although there is a minimum sentence of four years on the count of robbery with a firearm, the circumstances of this offence and of the offender mandate a higher sentence.

Even in the absence of a minimum sentence, case law going back many years before there was a minimum would suggest that the proper range in a case like this would be five to seven years in prison. That is, Rintoul has two prior convictions for robbery, he was under a court ordered prohibition from possessing firearms; he has a prior conviction for unlawful possession of a prohibited or restricted weapon. As well, he has many other criminal convictions, indicating that he is someone who needs to be isolated from society.

Therefore, the paramount consideration for the court in a case such as this is the protection of society and the need to isolate Mr. Rintoul for a period of years to achieve that purpose. As well, the court must impose a sentence which denounces such dangerous conduct and which provides for general and specific deterrence. Thus, in my view, a sentence of five-and-a-half years is a fit sentence for the offence under s. 344(1)(a.1). [ 12 ] While the offence under s. 95 of the Criminal Code carries a minimum sentence of three years, the circumstances mandate as

well a higher sentence. The accused was already prohibited from possession of any firearm, let alone a prohibited firearm. He has a prior conviction for unlawful possession of a prohibited or restricted weapon. He possessed the prohibited firearm in the context of committing a robbery. In those circumstances I agree that the sentence should be more than the minimum three years. The need to protect the public and to isolate the accused from society applies equally to this count as it does to the robbery count. Therefore, a fit sentence in these circumstances is five years.

Credit for Time Served in Custody [ 13 ] I have to deal, however, with the issue of credit for time served. The issue of how much credit to give the accused for the time served awaiting sentence is a vexing one. Section 719(3.1) of the Criminal Code prohibits the court from granting credit of one-and-a- half days for each day served if the justice who made the detention order stated in the record that the order fell within s. 515(9.1) of the Criminal Code . That

section says that if the justice orders that the accused is to be detained in custody “ primarily because of a previous conviction of the accused the justice shall state that reason in writing on the record .” So the point there is if the detention occurred in that context where the justice made a detention order because of the prior conviction then the accused is not entitled to get one-and-a- half days credit for the time served. That is what the effect of that provision is. [ 14 ] I was the judge who detained the accused in this case. I detained him on what is commonly called the secondary ground under s. 515(10) (

b) of the Criminal Code on the basis that there was a substantial likelihood that if he was released Rintoul would commit further criminal offences. I did not state on the record that I detained him primarily because of a previous conviction. That, however, does not end the matter. [ 15 ] Section 515(9.1) is a most clumsily worded provision. It is not particularly consistent with the rest of the language in s. 515. That is, there are only three reasons for which a judge can order someone detained in custody:

(1) If it is necessary to detain the person in custody to ensure his or attendance in court,

(2) If it is necessary to detain the person in custody to protect the public, including the need to protect victims, and, in particular, whether there is a substantial likelihood that if the accused is released he will commit a further criminal offence or otherwise interfere with the administration of justice, or

(3) If the alleged offence is a grave one, the Crown's case is particularly strong such that it is virtually certain there will be a lengthy prison sentence and that it is, therefore, necessary to detain an accused in custody to maintain the public confidence in the administration of justice. Thus, a judge cannot state simply that he or she detained someone in custody because of a prior criminal record or criminal conviction. However, I am bound to interpret this

section in a manner which gives it some meaning. [ 16 ] The essential basis for my detention of Mr. Rintoul was the pattern of behaviour reflected in his criminal record, including convictions for robbery and unlawful possession of firearms. That is, I have to say that my primary reason for the detention order was his prior criminal record and the pattern of behaviour it revealed.

As well, the circumstances of the current offence and his prior record led me to conclude that he had to be detained to protect the public. [ 17 ] In the circumstances I am bound to conclude that my reasons for detaining Rintoul fell within the language of s. 515(9.1) .

That subsection, despite being worded in a particularly clumsy and obtuse manner, can reasonably be interpreted to mean that a person is not entitled to one-and-a-half to one days credit for time served when the reason for the person being detained in custody was that his criminal record was such that the judge in the bail hearing concluded that there would be a substantial likelihood that the accused would commit further criminal offences if released. [ 18 ] It may not always be possible for the sentencing judge to determine what the reasoning process was of the judge who made a detention order.

In a sense, s. 515(9.1) requires the judge at the bail hearing to make an analysis of his or her own decision that he or she has just made and to declare whether a criminal record or conviction was the primary reason for the order. If that judge does not make that analysis it may be difficult for a sentencing judge to draw an inference without a transcript. However, in the case at bar I was the judge at the bail hearing and I remember that bail hearing and I can, therefore, state exactly why I made the order. [ 19 ] I conclude that Rintoul, therefore, has spent, I am going to assess it at 300 days in custody.

He is not entitled to credit for one- and-a-half days for each day served. Conclusion [ 20 ] I find that a fit sentence for Count 1 is five-and-a-half years. That is the sentence that I would have imposed on Count 1 before calculating the credit for time served. The accused will be given credit for having served 300 days in custody, therefore, by my calculation, on Count 1 I must impose a sentence of four years and 248 days. That is the sentence I impose. [ 21 ] On Count 2 I would have imposed a sentence of five years.

Taking into account that he has spent 300 days in custody I impose a sentence of four years and 65 days concurrent to Count 1. [ 22 ] I have to make ancillary orders. I direct that DNA samples may be taken pursuant to s. 487.05 (1) of the Criminal Code . These are primary designated offences. [ 23 ] I also direct that the accused be prohibited for life on both counts from possessing any of the weapons named in s. 109 of the Criminal Code .

[ 24 ] Given the length of the prison sentence and the fact that the accused otherwise lacks any financial resources, I waive the victim fine surcharge. [ 25 ] Pursuant to s. 743.21 of the Criminal Code , I direct that the accused have no communication, directly or indirectly, with Patrick Mitchell. [ 26 ] I also order that a transcript of my reasons be prepared and be sent to the appropriate prison authorities, and I also direct that a copy of the pre-sentence report be attached to those reasons.

I will add that in my experience every time a person is sentenced to a federal sentence the prison authorities also automatically order a transcript. [ 27 ] If it is necessary, I order that the firearm and ammunition seized by the police be forfeited. [ 28 ] MR. SAYSON: Just to confirm, the firearm forfeiture order is pursuant to s. 491(1)(b). [ 29 ] THE COURT: Okay. [ 30 ] MR. SAYSON: And that the DNA applies to both counts. [ 31 ] THE COURT: Yes. [ 32 ] MR. SAYSON: Thank you. [ 33 ] THE COURT: If it has already been taken, it will not be taken again. (REASONS FOR SENTENCE CONCLUDED)