R. v. MacKenzie Date:, 2015 BCPC 382

Citation: R. v. MacKenzie Date: 20151027 2015 BCPC 0382 File No: 207583-3C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JUSTIN ALEXANDER MacKENZIE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Crown: S. Wagner Counsel for the Defendant: J. Banks Place of Hearing: Surrey , B.C. Dates of Hearing: September 21, 22, 29, 2015 Date of Judgment: October 27, 2015

[1] THE COURT: Justin Alexander MacKenzie has entered guilty pleas to three counts of a six-count Information, with thosepleas including that on or about the 11th day of October, 2014, at or near Surrey, in the Province of British Columbia, did rob MonicaMcNamara. Further, that on the 11th day of October, 2014, at or near Surrey, in the Province of British Columbia, did rob MohammedSultan.

And finally, that on or about the 12th day of October, 2014, at or near Surrey, in the Province of British Columbia, did robEdwin Sanger, all of which are contrary to s. 344 of the Criminal Code of Canada. [2] The circumstances in each instance which give rise to the pleas are not in dispute. On October 11, 2014, Mr. MacKenzieentered the Royal Bank of Canada branch located at 10201 King George Boulevard in Surrey, British Columbia, where he robbed Ms.McNamara, a senior citizen, while being armed with a knife, of $40 that she had withdrawn from an ATM machine.

In a statement, itwas noted in the Crown's written submissions that Ms. McNamara described the knife as a "large kitchen knife". This was all caught onvideo surveillance. In addition, the complainant was able to identify Mr. MacKenzie from the photo lineup. [3] Later, on October 11th, 2014, in Surrey, British Columbia, Mr. Mohammed Sultan was robbed by Mr. MacKenzie while usingan ATM in a Bank of Montreal branch located at 10155 King George Boulevard in Surrey, British Columbia, wherein he told Mr.Sultan, "I will stab you. Give me the money," and took his wallet, despite Mr.

Sultan pleading for him not to do so, while brandishing aknife described as being five inches in length. Approximately $140 and the contents of Mr. Sultan's wallet, including overseasidentification, was stolen. [4] On the following day, October 12th, 2014, Mr. Edwin Sanger, an elderly gentleman who uses a cane, was at the ATM at theHSBC branch located on City Parkway in Surrey, British Columbia. Mr. Sanger withdrew monies from the ATM, Mr. MacKenziegrabbed the money and demanded that Mr.

Sanger surrender the funds and said, "Gimme your money or I'll fucking kill ya." A physicalaltercation arose between the parties which resulted in Mr. MacKenzie fleeing without any money or personal effects of Mr. Sanger. Mr.MacKenzie was later located and apprehended on October 12th, 2014, and at the time of apprehension was wearing the same clothing ashe wore during the robberies. [5] The facts as stated by Crown counsel were not in dispute. [6] Crown counsel submitted that all three victims expressed fear and concern about testifying and having to face Mr. MacKenzieat trial. Ms.

McNamara produced a victim impact statement that was filed in court, wherein she noted that she "suffered from loss ofconfidence to go out anywhere alone", that she does not use the bank machine, and that she "does not trust anybody anymore, except mygranddaughter". She reported that, "Soon after the offence I was driving by the bank, blacked out and rear-ended a person. This collisionhas increased my car insurance." She continues to state, "I am afraid the offender will see me and take some kind of revenge." Herhome is listed for sale, and she has changed her banking. [7] Mr.

Sultan reported to Crown counsel difficulty sleeping after the robbery. He was fearful that the person who committed thecrime would locate both he and his family. His wallet was lost; he feared that his identification would be compromised. It is very clearthat the lasting and negative impact that the momentary actions of Mr. MacKenzie has had on all three victims is troubling, and hassignificantly altered each of their lives. [8]

Section 718 of the Criminal Code of Canada codifies the principles of sentencing that must be taken into consideration, whichinclude denunciation, general and specific deterrence, protection of the public, rehabilitation, reparation, and the promotion andrecognition of a sense of responsibility by an offender, including acknowledging the harm done to victims and to the general public. [9]

Section 718.1 articulates that any sentence must be in proportion to the gravity of the offence and must consider the degree ofresponsibility of the offender.

Further, s. 718.2 sets out additional considerations that should be made in determining the sentence to beimposed which should include considerations of ethnicity, abuse, the age of the victim, whether there was an abuse of a position of trust,the impact upon the victim, if it was terrorism, that a sentence imposed should be similar or within a range of similar offenders in similarcircumstances, that a sentence of consecutive cannot be unduly lengthy, that there should be no deprivation of liberty upon an offender ifless onerous sanctions are available and appropriate, and that all other sanctions outside of imprisonment have been considered,particularly if the offender is Aboriginal. [10] Crown counsel respectfully submits that these principles for consideration are addressed in R. v.

C.A.M., [1996] SCC No. 28wherein retribution was specifically addressed as a consideration, including at paragraph 80 where the court stated: An objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of theoffender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normativecharacter of the offender's conduct, retribution requires the imposition of a just and appropriate punishment. [11] Sentences for each offence are in the form of a range.

There is no one fact pattern that will match another; hence therequirement in the codified provisions of the Criminal Code of Canada to ensure that all of the principles of sentencing as set out aboveare considered, weighed and balanced carefully. [12] The offences to which Mr. MacKenzie has entered pleas of guilty are violent offences that include a weapon. In R. v.

Brogan,1999 BCCA 278 , [1999] BCJ No. 1011, in paragraphs 10 and 11, the British Columbia Court of Appeal succinctly set outsentencing: The age of the offender, his previous criminal experience, the level of violence, the number of offences, the level of premeditation,whether the perpetrator was disguised or not, the type of weapon used and how it was used, the possibility of rehabilitation, therequirement of deterrence in a particular community, are some of the factors which serve to distinguish one fact pattern from another.

Section 718.2 imposes the principles of consistency:

Since no two offences are ever entirely the same, the

section mandates that the court determine a general range for similar offences forsimilarly situated offenders. Offences and offenders can be generally categorized but a multitude of factors...will distinguish the details. [13] In Brogan (supra), the court concluded that an appropriate range would be between two to nine years. In relying upon Brogan(supra), Crown notes that the matter involved a conviction to two counts of robbery, two counts of committing an indictable offencewhile masked, and one count of taking a hostage.

The court found this to be a series of offences in one scheme, and imposed a globalsentence of eight years. The British Columbia Court of Appeal upheld that sentence, [14] In R. v. Marshall, [2008] BCJ No. 2570 (BCCA), a sentence of 27 months was imposed with a fact pattern of an accused having14 prior convictions, a threat of a weapon being produced but no weapon actually being produced, and physical violence to the victim. [15] In R. v. McPherson, [2003] BCJ No. 646 (BCCA), a young accused, who was intoxicated, brandished a screwdriver to rob a 16-year-old victim of $30 from an ATM.

A sentence of 20 months was imposed and upheld. [16] And finally, in the British Columbia Court of Appeal decision of R. v. MacDonald, [2006] BCJ No. 31 (BCCA), the Court ofAppeal reduced the sentence to four years concurrent for three robberies, where in each offence a knife was brandished. Mr. MacDonaldwas a heroin addict with an extensive historical criminal record; however, there was a 13-year gap from the date of his prior convictionand entry.

Factors in reducing the sentence included the significant gap in the criminal record entry, his employment, his stable home,and to entering guilty pleas at an early opportunity. [17] The British Columbia Court of Appeal decision of R. v. Anderson, 2007 BCCA 462 , [2007] BCJ No. 2173 (BCCA)imposed a four-year sentence for a robbery with a knife. Mr. Anderson was on a CSO at the time of committing the robbery. [18] Defence counsel respectfully submits that Mr. MacKenzie is a construction worker by trade, he is currently 31 years of age,separated, and the father of two young children ages nine and seven.

Defence counsel acknowledges that Mr. MacKenzie's offenceswere part of a crime spree that was fuelled by his need and desire for drugs. However, the retribution portion for consideration should bemitigated because of his addiction, and that he has a lower level of blameworthiness as a result. [19] Defence counsel seeks to rely upon R. v. Quaye, [2012] BCSC 1111, and submits that in Quaye, similar to the matter of Mr.MacKenzie, Mr.

Quaye was addicted to heroin and that his crimes were driven by that addiction. [20] In considering the sentence to impose, and considering the case law and carefully applying the relevant provisions of theCriminal Code of Canada, the court must carefully consider both the aggravating and mitigating circumstances unique to that offender. [21] Crown counsel, in relying on Brogan (supra), seeks to rely on paragraphs 10 and 11 as stated above. Crown counsel hassuccinctly put into writing and verbally directed the court to the aggravating factors for consideration. These crimes were premeditatedand planned by Mr.

MacKenzie. He ensured that these crimes occurred while vulnerable victims had their backs to him and were usingtheir ATM card at a bank machine. He used a large knife, photographs of which are exhibited. Mr. MacKenzie was violent towardseach of the victims. He approached each victim at an ATM machine, threatened to kill a complainant, visibly displayed a large knife,threatened to stab a complainant. One complainant begged for his wallet and told Mr. MacKenzie that he could have the cash; however,he took everything, including the wallet itself.

He physically grabbed one complainant as he was putting his wallet away, and with thatsame victim, entered into a physical tussle with a senior citizen. All of the victims were vulnerable and elderly. Mr. MacKenziecarefully, in premeditating and pre-planning these crimes at an ATM machine, selected elderly victims. The crimes occurred after hoursand at ATM machines. Mr. MacKenzie has a criminal record. [22] Consideration must be given to the gravity of the consequences and the magnitude of the offence, and that each waspremeditated robbery with the use of a large knife.

In each instance, verbally threatening harm and/or death to a victim, and pre-selectingelderly victims. [23] These crimes have had a lasting impact upon the victims. Ms. McNamara set out in her victim impact statement that she haslost her confidence to go out alone. Independence and living a life free of harm and free of relying on someone is a value cherished,particularly with seniors, and Mr. MacKenzie has taken that away in a brief few moments from these victims. Ms. McNamara no longeruses a bank machine. She has incurred additional emotional stress that has impacted her physical limitations.

The $40 was neverrecovered. She has changed her bank and is moving her residence. [24] Mr. Sultan lost the entire contents of his wallet, including foreign identification, and the $140 that was taken from him wasnever recovered. He is fearful that his identification will be used by someone other than himself. [25] Mr. Sanger, at age 76, challenged Mr. MacKenzie and a physical tussle ensued, and while Mr. MacKenzie did not leave withany personal effects or money from Mr. Sanger, the trauma remains for a 76-year-old gentleman to have his life threatened. [26] There are mitigating factors for Mr.

MacKenzie that require court consideration. First, it is clear that all three victims remainfearful of Mr. MacKenzie, and by entering a guilty plea at the commencement of this trial, Mr. MacKenzie has precluded the victimsfrom having to attend court to re-live each of their traumatic encounters with Mr. MacKenzie. [27] While having been detained, and while in custody, Mr.

MacKenzie has completed a number of programs and those certificatesare collectively marked as Exhibit 7 in this matter, which includes a Certification of Completion dated March 19th, 2015, for Self-Awareness, Anger Management, Family and Parenting and Healthy Relationships, and Communication One-To-One, a Certificate ofAchievement dated August 10th, 2015, for Substance Abuse Unit 1, a Certificate of Achievement dated July 31st, 2015, for SubstanceAbuse Unit 2, a Certificate of Achievement dated July 18th, 2015, for Substance Abuse Unit 3, and a Certificate of Achievement datedAugust 11th, 2015, for Healthy Relationships Number 3. [28] Exhibit 8 in these proceedings is a written statement from Mr.

MacKenzie stating, amongst other things, that he will "lead aproductive life and be the father I was a couple of years ago, again. I need to be a real man again." His parents divorced at a young age,

and he and his sibling were raised primarily by his mother. That in 1999 he and a friend were playing inside a dryer in the residential complex, taking turns putting one another in the dryer and turning it on and off, and after, upon riding their bikes, his friend collapsed and passed away. That in 1994 his brother was diagnosed with leukemia and passed away months thereafter.

That his stepfather died in 1995 and his mother, being in the long haul truck, sustained serious injuries, and that a friend of his died in 2003. [ 29 ] His letter included that he helped watch a grow-op for a friend for what he calls "easy money". The home was raided and he was incarcerated. Mr. MacKenzie became addicted to OxyContin because of a breakdown in his relationship with his spouse, and thereafter he became addicted to heroin which thereafter these crimes were committed while he was fully addicted to heroin. [ 30 ] Mr.

MacKenzie writes in Exhibit 8 that he is "confident" that the court process will "never" see him again, that he intends to be a good parent, and this is a life lesson. [ 31 ] Defence counsel also seeks to rely upon an affidavit filed in the bail hearing for Mr. MacKenzie which was filed in May 2015 wherein he deposes that he was employed in the construction trade in the past, that he is the father of two young children, that he intends to work to get his life back on track, and that he is very remorseful. Mr.

MacKenzie, in submissions by his counsel, is agreeable to attending rehab to address his addiction; however, he is not prepared to attend residential treatment. There was no rational reason given for his refusal to attend residential treatment. [ 32 ] Crown counsel is seeking a three-year period of incarceration, to be followed by a two-year probation order in addition to ancillary orders.

Defence counsel is seeking an 18-month period of incarceration, to be followed by a three-year period of probation. [ 33 ] After carefully reviewing the case law, taking into consideration all of the relevant provisions of s. 718 of the Criminal Code , listening to the submissions of both counsel, and in particular, applying the mitigating and aggravating factors that are relevant solely to Mr.

MacKenzie's matters before me, and in balancing the principles of deterrence, denunciation and rehabilitation, I will impose a period of three years' incarceration, to be followed by a 12-month probation order. [ 34 ] In imposing such, the aggravating factors that I have been mindful is that this was a robbery on three occasions, each involving wearing a hoodie, brandishing a long knife, that it was premeditated at an ATM machine after hours, thus making the victims vulnerable, and each of these victims were elderly, and the impact that each of these crimes has had on each victim.

Community standards dictate that the message to offenders such as Mr. MacKenzie are such that crime sprees, wearing a hoodie, brandishing a large knife, approaching victims who are each elderly and in a physically vulnerable place, cannot be tolerated. [ 35 ] I am mindful of mitigating factors, particularly that there was a guilty plea on the first day of trial, that Mr.

MacKenzie, as set out in his exhibited letter, has had a tragic life, and that while incarcerated pending his trial, he has undertaken some courses. [ 36 ] These robberies were fuelled by his drug addiction to heroin which is an insidious drug that takes a hold of the person and completely controls that person. It is a horrific drug, and Mr. MacKenzie would be best served to quickly and properly address both his emotional history and his addiction. [ 37 ] These robberies were fuelled by his need for money to purchase more drugs. Mr.

MacKenzie needs to address long-term counselling, and needs to address his drug addiction both while incarcerated and at a residential treatment facility. The period of incarceration imposed best addresses a balancing of the principles of sentencing as set out in s. 718 of the Criminal Code of Canada , including for Mr. MacKenzie the mitigating and aggravating factors unique to him.

I am mindful particularly in his written family narrative of his tragic circumstances; however, I so too must balance it in addressing the principles of deterrence, denunciation and rehabilitation, including, as I have stated, that a hoodie was worn during the offences, a weapon was used, including brandishing it at some of the victims, that the victims were elderly, that the victims were each placed in a vulnerable position at the time of each crime. [ 38 ] I am not satisfied that a period of an 18-month sentence, as submitted for consideration respectfully by counsel for Mr.

MacKenzie, best addresses s. 718 of the Criminal Code of Canada , taking into consideration the extensive aggravating, and being mindful of the mitigating circumstances. [ 39 ] Therefore, this court will impose a period of incarceration of three years, to be followed by a 12-month probation order which include the following terms: Keep the peace and be of good behaviour, appear before this court as and when directed to do so. Report in person to your probation officer within 72 hours of your release and thereafter when directed to do so; however, all reporting shall be in person.

Reside where directed, and do not change that address without the prior written consent of your probation officer. [ 40 ] Enrol, attend and successfully complete, to the satisfaction of your probation officer, any and all such counselling, including life skills, substance abuse, residential treatment and anger management. [ 41 ] Seek and maintain employment to the satisfaction of your probation officer. [ 42 ] Abstain absolutely from the possession and consumption of alcohol, and those drugs as defined under the Controlled Drugs and Substances Act. [ 43 ] Remain in the Province of British Columbia during the entire duration of the probation order unless you have a court order granting such consent. [ 44 ] No contact, direct or indirect, with Monica McNamara, Mohammed Sultan and Edwin Sanger. [ 45 ] Do not go within a one-block radius of any known or may become known to you residence, workplace, place of school and place of worship of Monica McNamara, Mohammed Sultan and Edwin Sanger. [ 46 ] Do not enter into any financial institution unless you are doing so solely to conduct your own financial and banking business.

[ 47 ] There will be a weapons prohibition including knives, save and except in the immediate preparation and consumption of food, and the actual course of lawful employment. [ 48 ] And finally, within the first ten months of your probation order, you are to pay into court as restitution to the credit of Monica McNamara, the sum of $40, and to the credit of Mohammed Sultan, the sum of $140. [ 49 ] In addition, there will be an order pursuant to s. 109(1) of the Criminal Code of Canada , that being a lifetime firearms prohibition, and in accordance with s. 487.051 of the Criminal Code of Canada , there will be a DNA order. [ 50 ] MS.

WAGNER: Just with respect to the credit for time served, Your Honour, I had -- I believe that it's credit for, and as of the day of writing submissions, I think it should be 367 days as of today's date, but I just wanted to double-check that quickly here. I believe that's right, because he was getting one-and-a-half for the period from October 12th until October 31st, which was 30 days, and then one- for-one on the basis of his -- for November 25th to today's date, so I think the total is 367 days. [ 51 ] THE COURT: I think if we replay DARS, it was a different number. [ 52 ] MS.

WAGNER: It was, because it was only a time credit up to the date of sentencing on -- in anticipation of sentencing taking place when we were back in court on -- I think it was September 29th. Is that right? [ 53 ] THE COURT: Yes. [ 54 ] MS. WAGNER: Yeah, so as of that date it was -- [ 55 ] THE COURT: So have you and Mr. Banks done the math so you're in agreement? [ 56 ] MS. WAGNER: I've just done the math now. [ 57 ] MR. BANKS: I'm in agreement. [ 58 ] THE COURT: So for Madam Registrar, how much credit is there? [ 59 ] MS.

WAGNER: It's one -- one to one-and-a-half for October 12th until October 31st. [ 60 ] THE COURT: How many days? [ 61 ] MS. WAGNER: And that's 30 days. And then from November 25th to today’s date, it's 337, and so the total to his credit is 367, adding those two. [ 62 ] THE COURT: Mr. Banks, are you in agreement? [ 63 ] MR. BANKS: Yes, I agree. [ 64 ] THE COURT: Okay. So, Madam Registrar, if you could let Corrections know that he gets credited 367 days. (REASONS FOR SENTENCE CONCLUDED)