R. v. Dhindsa Date:, 2018 BCPC 33

Citation: R. v. Dhindsa Date: 20180116 2018 BCPC 33 File No: 208468-7KB, File No: 215711-1, File No: 215711-2A Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. MANVIR SINGH DHINDSA ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. GAFFAR Counsel for the Crown: J. Henry Counsel for the Defendant: J. Meyers Place of Hearing: Surrey , B.C.

Dates of Hearing: November 23, December 21, 29, 2017 Date of Sentence: January 16, 2018 INTRODUCTION CHARGES [ 1 ] Mandir Singh Dhindsa has entered guilty pleas relating to three robberies and the wearing of a mask during one of the robberies, all of which occurred on convenience stores operated by a solitary clerk in the middle of the night, in November 2015. Mr. Dhindsa has also entered guilty pleas to a violation of his bail and a violation of his probation, both of which occurred in September 2016. CROWN POSITION [ 2 ] The Crown argued that the aggravating circumstances in Mr. Dhindsa's case and Mr.

Dhindsa's particular circumstances place him in the accepted range for robbery offences, which is between two years and nine years. Accordingly, the Crown seeks the following sentences. For each robbery charge and the masked face charge, the Crown seeks a sentence of three years concurrent, for a global sentence of three years less time served calculations. For the breach of bail, the Crown seeks one day with credited time served of 20 days concurrent. For the breach of probation, the Crown seeks one day with credit for time served of 30 days concurrent.

DEFENCE POSITION [ 3 ] The defence position centred on the immigration consequences of the particular sentence on each charge and whether any custodial sentence is six months or more. The defence proposed different and alternative allocations of custodial time, time served, conditional sentences and probation to permit each sentence to remain below six months. After much discussion to ensure various combinations complied with the law, I understood the defence submissions to be as follows.

For each robbery count, a sentence of six months less a day, less time served credited per count, for a remaining sentence of one day on each count, consecutive. For the use of a mask during a robbery, a conditional sentence of two years less a day and three years’ probation. For the breach of bail count, 10 days less time served, credit of nine days, for a remaining sentence of one day, consecutive to all other sentences. For the breach of probation count, 20 days less time served of 19 days credit, for a remaining sentence of one day, consecutive to all other sentences.

TIME SERVED CALCULATIONS [ 4 ] The parties have different calculations for time served. The Crown provided me with the time periods for its calculations. As the defence did not provide me with its relevant time periods for calculations, I am required to consider the time periods described by Crown. I have calculated actual time served as follows: from the 9th of March 2016 to July 4th, 2016, 118 actual days. From November 13, 2016 to January 16, 2018, 430 actual days. The total actual time in custody is 548 days as of today's date.

For clarity, this is equivalent to one year, six months, three days, or one-and-a-half years and three days. If enhanced credit for time served is granted, the credit for time served is 1.5 days for each day in custody which equals 822 days. For clarity, the available enhanced credit for time served is 27 months two days or, more simply, two years, three months, two days. GENERAL PRINCIPLES OF SENTENCING [ 5 ] In order to understand how I have made this sentencing decision, Mr.

Dhindsa, his loved ones and the community must (in turn) understand that the fundamental purpose of sentencing is to protect society and to contribute to the respect for the law. In addition, the sentencing process seeks to maintain a just, peaceful and safe society by imposing fair sanctions. I must apply and balance the sentencing principles in s. 718 through 718.2 of the Criminal Code as I consider the circumstances of the offences and the offender. I must also assess any aggravating and mitigating factors arising from the circumstances of the offences and the offender.

Some principles of sentencing may require more emphasis than others, in all the circumstances. [ 6 ] This sentencing poses some challenges on the issues of immigration consequences and calculation for time served. I must also consider whether various sentences should be served consecutively or concurrently. OVERVIEW [ 7 ] I will now provide an overview of the offences and the offender. OFFENCES [ 8 ] On the 19th of December 2015, at approximately 3:25 a.m., Mr. Dhindsa entered a Mac's Convenience Store in Surrey, British Columbia. He wore a red mask and held a yellow X-acto knife type weapon.

He demanded money and threatened the solitary clerk while pointing the knife. Mr. Dhindsa stole approximately $70 and several cigarette packages, some of which were later thrown to the floor upon his exit. Mr. Dhindsa fled into a waiting stolen vehicle driven by another masked male. [ 9 ] On the 22nd of December 2015, at approximately 3:47 a.m., Mr. Dhindsa and another male entered the same Mac's Convenience Store that was robbed by Mr. Dhindsa on the 19th of December 2015. The same store clerk was working. Both males were masked. The two males behaved aggressively and yelled at the clerk. Mr.

Dhindsa removed the cash drawer, stole $60 and grabbed cigarette packages before he fled with the other male. During the robbery, one of the males yelled, "Give me cash," as well as, "I'll do anything. I'll fucking shoot you." [ 10 ] A short time later, at approximately 4:43 a.m., Mr. Dhindsa alone entered a 7-Eleven Store in Surrey, British Columbia, and

demanded money from the clerk. Mr. Dhindsa was masked but did not produce any weapon. Mr. Dhindsa kept his hand in his pocket as if threatening that he had a weapon. Mr. Dhindsa removed the entire cash drawer and stole $130. Mr. Dhindsa fled into a waiting, stolen vehicle driven by a masked male. The stolen vehicle, at this time, was different from the stolen vehicle on the 19th of December 2015. [ 11 ] Mr. Dhindsa was in custody for a period of time on these offences in early 2016.

He was released to New Horizons recovery facility in July of 2016. [ 12 ] On the 20th of September 2016, he overdosed on GHB and was hospitalized. He failed to comply with the rules of the facility by using drugs. [ 13 ] In September 2016, Mr. Dhindsa was also required to attend substance abuse counselling but failed to attend, participate and/or complete the offered programs from the 22nd of September to the 29th of September 2016. His whereabouts were unknown from September 21st until his return into custody on the 13th of November 2016. OFFENDER [ 14 ] Mr. Dhindsa has a brief and recent criminal record.

In September 2015, Mr. Dhindsa was convicted of a series of offences resulting in a sentence of one day with 18 months’ probation. At that time he was convicted of three counts of theft under $5,000, one domestic assault, and one breach of a court order pertaining to the domestic assault. In January 2012, he was convicted of breaching his probation and received a sentence of one day in jail and nine months’ probation. [ 15 ] I have reviewed the Pre-Sentence Report prepared on Mr. Dhindsa, which described his background. Mr.

Dhindsa came to Canada from the Punjab, India, when he was 10 years old with his mother and two older siblings. He has permanent residence status in Canada at this time. His father died in India due to alcohol abuse related issues. He was raised in a single parent home but did not suffer from any of the abuses experienced by so many others before these courts. [ 16 ] Mr. Dhindsa dropped out of high school after Grade 10 due to adjustment and language issues. He worked at a variety of jobs, which included landscaping and an extended period of five years in The Bay warehouse.

At that time, his drug addiction solidified. He has not been lawfully employed since that time. [ 17 ] He obtained money from his unsuspecting mother to support his drug habit. He used drugs at an early age: cocaine at age 18, heroin at age 19 and was addicted to heroin by age 23. [ 18 ] While family support has ebbed and flowed over the years due to Mr. Dhindsa's conduct while addicted to drugs, he now enjoys their support. [ 19 ] Mr. Dhindsa has made new efforts to deal with his drug problems, which were previously unsuccessful. He stayed briefly in drug recovery facilities on a couple of occasions in the past.

Mr. Dhindsa has never completed any drug treatment program either in custody or out of custody. However, he started receiving the medication Suboxone to manage this addiction in mid-2016. He was at a recovery facility from the 3rd of July 2016 until the 20th of September 2016, when he overdosed on GHB. [ 20 ] While he reported to his bail supervisor the next day, he did not return to the recovery facility nor his counselling sessions.

His whereabouts were unknown before he was returned to custody on the 13th of November 2016. [ 21 ] Since that time he has been sober and participating in the medical methadone program for approximately 1.5 years in custody. The Pre-Sentence Report does not refer to any difficulties with his sobriety or the methadone program. [ 22 ] Mr. Dhindsa is currently in a relationship with a long-time friend who has a pro-social background. Ms. Kallu is a positive support for Mr. Dhindsa.

Upon his release, the couple intend to introduce him to her parents and eventually marry. [ 23 ] He acknowledges and appears to have insight into the personality flaw that causes him to be easily swayed by negative peers involved in a criminal lifestyle. [ 24 ] Currently while in custody, Mr. Dhindsa was unable to take any substance abuse counselling or programs due to staff unavailability. He also did not see an alcohol or drug counsellor while in custody to obtain help in securing a bed at a residential recovery facility prior to his release.

While he lacks a defined plan involving residential treatment or outpatient counselling prior to his release, he intends to make those arrangements with the assistance of Community Corrections after he is released. I note that he has been sober for one-and-a-half years and taking the medically prescribed methadone. He is willing to work closely with Community Corrections in developing a more organized treatment plan and is open to residential treatment. [ 25 ] As I have mentioned, Mr. Dhindsa has strong family support at this time. Upon his release, Mr. Dhindsa intends to return to his mother's home.

In 2015, his mother experienced severe health issues and must now be cared for in her home due to mobility issues. Prior to his incarceration, Mr. Dhindsa was able to provide some assistance to his mother. His efforts were complicated by his drug addiction. Upon his release, he intends to reside with her temporarily and to provide whatever limited assistance he can now provide, given the need for more specialized care. Given that he is open to residential treatment, he considers his residence with her to be temporary at this point. [ 26 ] I have been informed that a family friend, Mr. Basra, has offered Mr.

Dhindsa a job where he may, probably or eventually, drive a delivery truck. His future plans include becoming a commercial truck driver, marrying his girlfriend and continuing to care for his mother. AGGRAVATING AND MITIGATING CIRCUMSTANCES [ 27 ] I will now examine the aggravating and mitigating circumstances of these offences and the offender. The aggravating and

mitigating circumstances may tend to increase or decrease the sentences. AGGRAVATING CIRCUMSTANCES [ 28 ] I will begin with the aggravating circumstances of the particular offences. [ 29 ] Mr. Dhindsa used a visible weapon in the first robbery. Mr. Dhindsa returned to the same store for the second robbery. He victimized the same store clerk during the second robbery. Mr. Dhindsa was either an accessory or the person who threatened to shoot that same clerk during the second robbery. [ 30 ] In a related aggravating circumstance, I note that Mr.

Dhindsa chose convenience stores with solitary clerks working in the middle of the night. In other words, he robbed convenience stores when the clerks were at their most vulnerable. [ 31 ] Mr. Dhindsa was masked on December 22nd for the two robberies. [ 32 ] I am not prepared to find that the presence of another perpetrator during the second robbery is an aggravating circumstance. The presence of a second perpetrator during a robbery is not an uncommon feature.

While the presence of the second person may have augmented the aggression or intimidation demonstrated, I am unable to conclude beyond a reasonable doubt that his presence meets the requirements for an increased sentence on this basis. [ 33 ] I am also not prepared to infer, without a more precise description of Mr. Dhindsa's actions, that Mr. Dhindsa's hand in his pocket was an implicit threat of violence. I note that his actions were not accompanied by a verbal threat of violence or comment relating to the presence of a weapon.

I am unable to conclude beyond a reasonable doubt that he intended to simulate the possession of a weapon or use the gesture to convey a threat or intimidation. [ 34 ] I do not consider that any planning around these offences rises to an aggravated feature. On the whole, the offences were basic and lacked most hallmarks of sophistication, other than having a stolen getaway vehicle. If I were to consider this an aggravating feature, it would be a minimal one. [ 35 ] As I have mentioned, Mr. Dhindsa's criminal record is brief but relatively recent. It lacks a pattern of repeat offending over a long period of time.

Consequently, he cannot be considered a prolific offender who was incapable of pro-social functioning. Mr. Dhindsa's 2015 conviction for violence in a domestic situation is unrelated to the context of these offences. I have not been provided with any information that it was related to his drug addiction. I have not been provided with any information concerning this offence which would elevate it beyond its inherent seriousness. [ 36 ] The other two breaches for noncompliance with court orders are more concerning but unsurprising, given his drug addiction.

The limited nature of the criminal record and sentences imposed attenuate this aggravating circumstance. In his short criminal record, Mr. Dhindsa has demonstrated noncompliance with court orders. He was on probation at the time of the robberies. This is an aggravating feature. [ 37 ] The Pre-Sentence Report noted challenges in his compliance with previous reporting to Corrections Officers and attending drug counselling programs in the community. After the robbery charges, he used the GHB in September 2016 and thereby violated his bail terms on the robbery matters.

However, he did report to his bail supervisor the next day. It would appear that he was evicted from the recovery facility at that point and failed to make arrangements to enter a new facility or continue with his counselling. He failed to report to his bail supervisor thereafter. [ 38 ] He has already entered guilty pleas with regard to his failure to obey the rules of the September 2016 recovery house and complete counselling. I must be careful not to penalize Mr. Dhindsa again by viewing the same conduct as an aggravating feature. [ 39 ] The Crown argues that Mr.

Dhindsa's insight is very limited and his recovery plan is not well-defined, which means he will have a difficult time dealing with his drug addiction. The Crown submits that this situation, in turn, increases his risk. While I had hoped Mr. Dhindsa would make further efforts to define his recovery plan, I find that he is sufficiently motivated with sobriety and the medical management of his addiction, particularly after his extended time in custody, to succeed.

A return to drugs, any kind of drugs, will unravel all of his hard work and no doubt destroy his family and future plans. [ 40 ] I have considered whether there is "a reasonable chance that the offender may succeed in an attempt to control his addiction...": R. v. Hansen , 2012 BCCA 142 at para. 27 . The law does not require absolute certainty in success. I am persuaded that there is a reasonable chance that Mr. Dhindsa may succeed in his attempts. MITIGATING CIRCUMSTANCES [ 41 ] I turn now to the mitigating circumstances. [ 42 ] By his guilty plea, Mr.

Dhindsa indicated that he accepted responsibility for his actions. Mr. Dhindsa has saved court resources. Importantly, Mr. Dhindsa has saved the victims from testifying and the potential trauma of reliving their experiences. According to the Pre-Sentence Report, Mr. Dhindsa has expressed remorse for his past behaviour in the context of its impact on his family. He has also expressed remorse for the impact of his criminal conduct on the victims in this case to the pre-sentence writer, which was repeated through counsel. [ 43 ] I have already referred to Mr. Dhindsa's motivation and rehabilitation efforts.

While he has not obtained a bed in a residential facility prior to release, drug treatment is not a one-size-fits-all option. Residential treatment has proven benefits but they are dependent on the personality of the addicted person and the professionalism of the facility. Some individuals still benefit from other forms of treatment.

[44] Regarding his employment, I make the small note that the employment offer seems somewhat informal. I cannot say that his plans are entirely unrealistic. He appears to be committed to sobriety, rehabilitation, steady employment, his familyand his girlfriend. While I had hoped Mr. Dhindsa would make further efforts to define his recovery plans, he has still sufficientlymitigated his sentence with a potential workable recovery plan.

ANALYSIS LEGAL PRINCIPLES [45] I turn now to the legal principles that I must apply. [46] There are many legal principles that I must apply to this sentencing contained in ss. 718 through 718.2 of the Code. I haveconsidered them all. Counsel provided numerous cases during their submissions, which I have reviewed. In this case, many of theprinciples of sentencing contained in those provisions overlap. [47] Regardless of Mr. Dhindsa's drug addiction, his offences have a clear and serious impact on the community. The decision of R.v.

McDowell, 2010 BCCA 529 at para. 10 reminds us all how these kinds of offences impact the community: We cannot lose sight of the fact that these offences were serious...To a cocaine addict, such offences are merely a means of getting cash;but to the victims and the community, they are frightening and represent serious threats to public safety. [48] Accordingly, denunciation and general deterrence loom large in this sentencing. Clearly, I must impose a sentence that reflectsthe community's condemnation of Mr. Dhindsa's conduct. I must also impose a sentence that serves to deter others from similar conduct.

I acknowledge that general deterrence is attenuated when dealing with drug addicts who may mentally lack good judgment and whoseability to weigh the consequences of their actions fluctuates unpredictably. [49] The sentences should be proportionate to the seriousness of these offences and Mr. Dhindsa's degree of responsibility. Byreturning to the same convenience store and victimizing the same solitary store clerk, Mr. Dhindsa's moral responsibility is elevated forthat particular offence.

However, it is somewhat attenuated by his drug addiction and the associated lack of clear thinking at the time. [50] The courts have acknowledged that drug addiction is an illness. The rehabilitation of a drug user is not simply a matter ofchoosing whether or not to use drugs. Hinkson, JA, as he then was, emphasized this dilemma in R. v. Hansen at para. 26: "Drugaddiction is an illness characterized by a loss of control over the need to consume the substance to which the drug user is addicted": Hansen at para. 26 citing Canada (Attorney General) v.

PHS Community Services Society, 2011 SCC 44. [51] In considering the degree to which the offender must be separated from society, I cannot ignore that he has been in custody forover one-and-a-half years on remand. This was his first significant time in custody and I infer that it had a substantial deterrent effect onhim. I have no evidence that he used illicit substances while in custody or was a management problem. He was placed on the medicalmethadone program. His conduct on remand enhances his prospects for rehabilitation and specific deterrence which, in turn, enhanceslong term public probation. [52] The B.C.

Court of Appeal continues to emphasize: "...the importance of considering whether there is a reasonable chance thatthe offender may succeed in an attempt to control his addiction in order to avoid imposing a sentence that addresses the protection of thepublic at the expense of rehabilitation." Hansen at para. 27. [53] In the Hansen case, the prospect for treatment in a recovery house was unlikely due to the offender's personal mental healthissues and drug use. The court noted "the absence of any potentially workable treatment plan" at para. 29. [54] On the other hand, Mr.

Dhindsa is relatively young at 27 and his drug issue and very limited past criminal record makerehabilitation a real factor to be considered. His rehabilitation provides the greatest assurance that he will not commit similar offencesand provides greater protection of the public. The courts are clear that, "The treatment of an illness-like drug addiction requires theassistance of others to be effective": Hansen at para. 26.

While I am disappointed that he was unable to participate in counselling whilein custody and did not have a more defined recovery plan, he appears to have gained insight into areas for improvement. [55] Mr. Dhindsa seems to be motivated to maintain sobriety and committed to manage his addiction with the help of CommunityCorrections and others in the community. I am not prepared to say that his treatment either in a recovery house or on an out-patient basiscannot be fully arranged with the help of Community Corrections. [56] It is clear that in the fall of 2016, Mr.

Dhindsa was not yet capable of fully committing himself. I am unable to conclude thathis recovery is unworkable at this time, in all of the circumstances. He has had one-and-a-half years to consider and understand moreclearly what kind of life he wishes to live. Had he done nothing to address his drug issues, his prognosis would be worse. As I havementioned, his use of medical methadone and motivation to deal with his addiction, in combination with community support, improveshis prognosis.

These factors represent a "potentially workable treatment plan." [57] As a general rule, I am permitted to tailor a sentence after considering the collateral immigration consequences as long as theresulting sentence reflects the gravity of the offence and Mr. Dhindsa's moral responsibility: R. v. Pham, 2013 SCC 15 , [2013]1 SCR 739 at paras. 11 and 14. [58] In this case, if Mr. Dhindsa's sentence on any one charge is six months or more, including any credit for time served, Mr.Dhindsa is unable to appeal any negative immigration decision about his status in Canada. Reference to the decision in Tran v.

Canada(Public Safety and Emergency Preparedness), 2017, SCC 50. [59] The weight to be given to this collateral consideration varies from case to case. I must consider the type of offences committed

and the seriousness of those offences: Pham at para. 12 . [ 60 ] If two possible sentences are both appropriate after I consider the gravity of the offences and the responsibility of the offender, "the most suitable one may be the one that better contributes to the offender's rehabilitation": Pham at para. 11 . [ 61 ] However, I am not permitted to impose an inappropriate and artificial sentence in order to avoid collateral immigration consequences and thereby circumvent Parliament's will: Pham at para. 15 . [ 62 ] The courts are aware "there is seldom only one correct sentencing response.

The risk of deportation can be a factor to be taken into consideration in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender...": Pham at para. 19 , adopting R. v. Hamilton , 2004 O.R. (3d) 1 ONCA at para. 156. [ 63 ] I note that Mr. Dhindsa came to Canada when he was 10 years old. He is still relatively young now and was 25 years old when the offences were committed. These offences are serious and traumatized the solitary store clerks. Mr.

Dhindsa's elevated moral culpability is attenuated by his drug addiction, which is a health issue, as well as his prospects for rehabilitation. His deportation without the ability to appeal it would have a significant impact on him and his family. [ 64 ] I am limited in my ability to apply the other case provided by defence counsel, R. v. Hennessey , 2007 ONCA 581 as it is dated and very fact specific.

SENTENCE CALCULATION [ 65 ] When sentencing on multiple offences, I must first determine whether the sentences will be served concurrently or consecutively before I indicate the appropriate effective sentence for each count. I must then assess the applicable range and the totality of the sentences. After that I will determine whether and to what extent credit for time served must apply. CONSECUTIVE vs. CONCURRENT SENTENCES [ 66 ]

Section 718.2(4) paragraph (

c) permits me to impose consecutive sentences when an offender is convicted of more than one offence. Consecutive sentences are usually imposed when the offences involve separate victims and/or separate transactions. Concurrent sentences may be imposed where there is a reasonably close connection between the offences such as in time and place. Reference to the decision in R. v. Johnson , [1996] N.B.J. No. 478 , Q.L. (17 paras.) NBCA. [ 67 ] In these circumstances, I characterize Mr.

Dhindsa's actions as separate and discrete transactions involving separate victims, except when he returned to revictimize one of the solitary store clerks a few days later. He was alone on two occasions and with another robber on one occasion. Different getaway vehicles were used on the two separate days. I am mindful that he was on drugs at the time but I weigh the other factors more heavily in determining whether a consecutive sentence should be imposed. He is not entitled to the benefit of a concurrent sentence in these circumstances. I will be imposing consecutive sentences.

RANGE OF SENTENCES [ 68 ] The accepted range of sentences for robbery is between two and nine years, depending on the circumstances of the offence and the offender: Hansen at para. 37 , citing R. v. Brogan , 1999 BCCA 278 at para. 10 . [ 69 ] However, the courts have also acknowledged that rehabilitation remains a tangible consideration: Hansen , supra , at paras. 26 - 27 . In some cases, sentences have dipped below two years due to the particular circu mstances of each case: R. v.

Marks , 2016 BCCA 480 . [ 70 ] The Crown provided robbery cases that all reflected multiple incidents involving small stores, solitary clerks, late evening hours and all drug-addicted offenders. Their ages, criminal records and efforts at rehabilitation varied, sometimes significantly from Mr. Dhindsa's situation. [ 71 ] In R. v. McDowell , 2010 BCCA 529 , the offender was 43 years old, had a significantly long criminal record and used significant violence, in my view. His gross sentence of five years was upheld. [ 72 ] In R. v. Hansen , supra , the offender was 23 years old when originally sentenced.

He had a moderately long criminal record, including breaches. He experienced child sexual abuse and foster care, and had significant psychiatric and behaviour issues that made it unlikely that his treatment in a recovery house would be workable. The court held that the offender fell within a range of two to four years. His gross sentence of four years was upheld. [ 73 ] In R. v.

Haggstrom , 2017 BCPC 190 , the offender was 21 years old at sentencing with no criminal record; confined the store clerk during one robbery; and upon his release on bail, he leaped from the vehicle transporting him to the recovery facility. He was sentenced to two years in custody and two years’ probation. [ 74 ] The defence acknowledged the range of sentence is established by the Court of Appeal in Brogan , supra . However, Mr. Dhindsa points out that, in certain circumstances, a sentence may be higher or lower than the identified range. [ 75 ] I was provided with one case on this point: R. v.

Patrick, 2017 BCCA 299 . The Patrick case dealt with one count of attempted robbery involving a 30-year-old offender, who produced a knife and demanded money from the gas station clerk before fleeing when a customer entered the store. Given that the Patrick decision concerned only one count of attempted robbery, I am unable to use it as a precedent for the nine-month sentence that was upheld on appeal.

The court in Patrick reiterated that the low end of the range for robbery sentences was two years in small venues such as gas stations where violence was used or threatened: Patrick at para. 20 , and also referring to R. v. Gill , 2006 BCCA 127 and R. v. Marks , 2016 BCCA 480 .

[76] However, the B.C. Court of Appeal has indicated that a sentence may fall below the usual sentence range for an offence if thereare "exceptional circumstances" or "highly exceptional circumstances" in a "rare case." Reference to R. v. Voong, 2015 BCCA 285 atpara. 59; R. v. Carrillo, 2015 BCCA 192 at paras. 29, 31, 34 and 40; and R. v.

Marks, supra, at para. 17. [77] Exceptional circumstances may include a combination of the following non-exhaustive list: no criminal record; significant andobjectively identifiable steps towards rehabilitation for the drug addict; gainful employment; remorse; and acknowledgement of the harmdone to society as a result of the offences as opposed to harm done to the offender as a result of being caught: Voong at para. 59. [78] Whether the term is exceptional circumstances or highly exceptional circumstances in a rare case, the underlying considerationis whether the circumstances are "above and beyond the norm" to justify the sentence.

The court must be able to identify a "justifiablecase specific basis" that "...would lead a sentencing judge to conclude that the offender had truly turned his or her life around and that theprotection of the public was subsequently better served" by the proposed lower sentence: Carrillo at para. 31, citing R. v. Nasogaluak,2010 SCC 6 , [2010] 1 SCR 206 at para. 44; Voong at para. 59; and Marks at para. 19. [79] Sentencing judges are "on the front lines of the criminal justice system" and must use their experience and abilities to assess thesubmissions of the parties.

I am entitled to make my decision after hearing the submissions, gauging the relevant factors andassimilating impressions that can be difficult to articulate: Carrillo at para. 32, citing R. v. L.M., 2008 SCC 31. Such impressionsinclude the sincerity of expressions of remorse and whether there is a real possibility of rehabilitation, as well as a genuine motivationfor it: Carrillo at para. 32. [80] Overall, Mr. Dhindsa does have a brief and minor criminal record. He has made significant and objectively identifiable stepstowards rehabilitation for his drug addiction.

He has obtained future gainful employment in the truck industry. I accept his expressionsof remorse as sincere and he has acknowledged the harm done to society by his conduct. I accept that he has turned his life around. [81] In the end, however, I must remember that exceptional circumstances or highly exceptional circumstances in a rare case do notjustify an unfit sentence.

Thus, a sentence that falls below the usual range must still conform to sentencing principles and objectives: Carrillo at para. 32. [82] The real question in this case is whether the defence proposal of six months less a day for each robbery and the masked facecharge is unfit. Certainly, if the sentences were concurrent, a six month less a day sentence would be unfit. It would fall too far belowthe range of sentences for multiple robberies of this kind. It would not comply with the principle requiring similar sentences for similaroffences and offenders.

However, consecutive sentences of approximately six months less a day would more clearly recognize theimpact of his conduct, express the community's condemnation for Mr. Dhindsa's conduct, deter him and others from similar conduct,enhance his rehabilitation prospects and reflect the impact of immigration consequences. [83] The need for proportionality is important in this sentencing. Given the multitude of challenging factors that must be balanced inthis case, I do not consider that such a sentence is artificial or inadequate. It is not imposed for the purpose of circumventing theimmigration legislation.

It is imposed for the purpose of giving real effect to all the principles of sentencing and the collateral factorrelating to the immigration consequences. It also recognizes the denunciatory and deterrent effect of the one-and-a-half years alreadyspent in custody. [84] I do not find that a consecutive sentence on each count is excessive or that it offends the totality principle. TIME SERVED CALCULATIONS [85] The law now imposes restrictions on how the court may calculate and apply credit and enhanced credit for time served in pre-sentence custody.

The general rules are as follows. [86] I have the discretion to take into account any time spent in custody as a result of the offence, but I am required to limit anycredit to a maximum of one day for each day spent in custody pursuant to s. 718(3). However, I may enhance the credit for time servedif the circumstances justify such credit to a maximum of 1.5 days for each day spent in custody, pursuant to s. 719(3.1). I am notrequired to enhance the time served in every case: R. v. Summers, 2014 SCC 26 at para. 48.

I am permitted to deny credit for timeserved if a long period of pre-sentence detention is caused by the wrongful conduct of the offender: Summers, supra, at para. 48. I amentitled to apply the rate that I consider to be correct and not adhere to a rigid formula: Summers at para. 30. [87] Mr. Dhindsa was initially released on the robbery, et cetera, charges but eventually breached his bail in September 2016. Hewas back in custody November 2016, where he has remained.

A breach of bail resulting in the offender's detention is consideredwrongful conduct that permits me to deny enhanced credit for time served pursuant to s. 719(3.1).

Accordingly, I intend to credit timeserved on a one-for-one basis only.+ CONCLUSION [88] The sentence will be as follows. [89] On Information 215711, Count 3 (robbery at the Mac's Convenience Store on the 19th of December): the effective sentence is179 days in custody less time served credit for 178 days for a remaining sentence of one day consecutive. [90] Count 4 (having his face masked at the Mac's Convenience Store on the 19th of December 2015): the effective sentence is 179days in custody less time served credit for 178 days, for a remaining sentence of one day consecutive. [91] Count 5 (robbery of the Mac's Convenience Store on the 22nd of December 2015): the effective sentence is 179 days in custodywith no credit for time served for a remaining sentence of 179 days consecutive. [92] Count 7 (robbery of the 7-Eleven Store on the 22nd of December 2015): the effective sentence is 179 days in custody less time

served credit for 178 days for a remaining sentence of one day consecutive. [ 93 ] On Information 215711-A2, Count 1 (failure to comply with his bail by failing to obey the rules of his recovery facility): the effective sentence is 20 days less six days credit for time served for a remaining sentence of 14 days consecutive. [ 94 ] Information 208468, Count 1 (failing to comply with probation by failing to attend, participate or complete counselling): the effective sentence is 31 days less 30 days credit for time served -sorry.

The effective sentence is 30 days and there is no further credit available for time served. [ 95 ] I intend to impose a three-year probation order on the following counts of Information 215711: Counts 3, 4 and 7.

I need to hear submissions with regards to the probation terms. (PROCEEDINGS) [ 96 ] THE COURT: At the end of your sentence you will be placed on probation for a period of three years. [ 97 ] The terms of your probation will be that you are to keep the peace and be of good behaviour. [ 98 ] You must appear before the court when required to do so by the court. [ 99 ] You must notify the court or the probation officer seven days in advance of any change of name and address and promptly notify the court or the probation officer of any change of employment or occupation. [ 100 ] You must report in person to a probation officer at unit 102-14245 56th Avenue in Surrey, British Columbia within three business days of your release from custody and after that you must report as directed by the probation officer.

Mr. Henry, I am going to impose that condition as opposed to your proposed term which is very complicated. [ 101 ] MR. HENRY: I've just taken them off of your list, Your Honour. [ 102 ] THE COURT: Thank you. [ 103 ] You must attend, participate in and complete any intake, assessment, counselling or program as directed by the probation officer. Without limiting the general nature of this condition, the intakes, assessments and counselling or programs may relate to alcohol or drug misuse. You are to comply with-sorry. May include alcohol and drug misuse counselling programs, et cetera, or residential treatment.

You must comply with all instructions, directions and rules of any counselling programs or residential treatment. [ 104 ] You must have no contact or communication directly or indirectly with Veerkaran Asija, Rupinder Gill, or Amarinder Baidwan. You must not be found within a 100 metre radius of any known residence, workplace or educational facility or place of worship of Veerkaran Asija, Rupinder Gill or Amarinder Baidwan. [ 105 ] You must provide your residential address to your probation officer at your first attendance, as well as your phone number.

You must not change your residence or phone number without the prior written permission of your probation officer. [ 106 ] You must not possess either personally or through another person any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, explosive substance, anything that resembles a weapon or firearm, any weapon as defined in s. 2 of the Criminal Code or any related authorizations, licences or registration certificates. [ 107 ] You must not reside in any residence in which any other person keeps or stores any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance. [ 108 ] You must not use or possess anything intended to allow you to mask or disguise your face, including a face mask or balaclava. [ 109 ] Mr.

Henry, are you seeking any ancillary orders? [ 110 ] MR. HENRY: Yes.

Section 109, a lifetime prohibition given the number of robberies. [ 111 ] THE COURT: I'm sorry. The firearm provision under

section 109? [ 112 ] MR. HENRY: Yes. [ 113 ] THE COURT: For what period? [ 114 ] MR. HENRY: Lifetime, considering -for a second offence it's a lifetime. Considering we're dealing with three robberies, I'm seeking lifetime. [ 115 ] THE COURT: Madam Registrar, the firearms prohibition will apply to Count 5 on Information 215711 and it will be for a period of life. [ 116 ] Any other ancillary orders? [ 117 ] MR. HENRY: His DNA is primary, Your Honour, pursuant to s. 487.04. [ 118 ] THE COURT: I make that order. I make that order due to the seriousness of the offences and the multiple offences before the court.

The DNA order will apply -- might as well just make it apply to the same count, Madam Registrar.

[ 119 ] THE CLERK: Thank you, Your Honour. [ 120 ] MR. HENRY: And then the victim fine surcharge. [ 121 ] THE COURT: Mr. Myers, if I were to impose the victim fine surcharge and make it payable forthwith, would Mr. Dhindsa be in a position to pay? [ 122 ] MR. MYERS: Well, he's got -- no. [ 123 ] THE COURT: All right. Given that you have been in custody for 1.5 years, Mr. Dhindsa, I do order a victim fine surcharge on each count for which you have been convicted. I make those fines payable forthwith, immediately.

I find you in default and I sentence you to one day in custody concurrent to each other and concurrent to all other sentences. [ 124 ] MR. HENRY: And Your Honour, I'm just -- I may have missed it but did Your Honour post the no-go with respect to the Mac's stores and 7-Eleven stores? [ 125 ] THE COURT: No. Sorry. I did not and I obviously -- [ 126 ] MR. HENRY: It's the second on page 2. [ 127 ] THE COURT: I did -- I obviously did miss that. Mr.

Dhindsa, you are not to attend or be found within a 100 metre radius of the Mac's Convenience Store located at 13192-104th Avenue in Surrey, British Columbia, or the 7-Eleven Store located at 7986-120th Street in Surrey, British Columbia. [ 128 ] What that means, at the end of the day, Mr. Dhindsa, is that you will still have further time in custody but each of your sentences will be below six months. (REASONS FOR SENTENCE CONCLUDED)