R. v. Biwer Date:, 2017 BCPC 133

Citation: R. v. Biwer Date: 20170323 2017 BCPC 133 File No: 208669-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. EDWARD JOSEPH BIWER ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D.R. GARDNER Counsel for the Crown: W. Sayson, Q.C. Counsel for the Defendant: M. Swartz Place of Hearing: Surrey , B.C. Date of Hearing: January 6, 2017 Date of Judgment: March 23, 2017

[ 1 ] The accused, Edward Joseph Biwer, is before this court for sentencing on seven counts including two counts of robbery, one count of attempted robbery, using an imitation firearm while committing a robbery, assault causing bodily harm, possession of a stolen motor vehicle, and dangerous driving. These convictions arose as a result of the events of December 22 and December 23, 2014, which I will summarize briefly. [ 2 ] On December 22, 2014, a Nissan Maxima was stolen from in front of a home at the 10600 block of 140th Street in Surrey, British Columbia.

Around 12:20 p.m. the following day, December 23rd, the accused drove to the Husky gas station located at 18398 Fraser Highway in Surrey. He abandoned the Nissan and left on foot. Around 12:30 p.m., two blocks away from the Husky gas station, the accused unsuccessfully attempted to rob Neslihan Rocha, a 43-year-old pre-school teacher, as she was getting into her 2005 Chevrolet Cobalt. The accused demanded that she give him her keys, pointed what appeared to be a black handgun at her, and attempted to grab both her keys and her purse. She resisted and yelled for help and the accused fled the scene. [ 3 ] Mr.

Biwer then ran across the highway towards the Shoppers Drug Mart where he approached a black Toyota pickup truck. Samantha McLeod, who was 22 weeks pregnant at the time, was waiting in the passenger's seat of the vehicle while her husband ran inside to pick up her medication. The engine was still running. Mr. Biwer entered the vehicle from the driver's side door and started to drive away. Ms. McLeod yelled repeatedly at the accused to stop driving and that she was pregnant, but he ignored her. She grabbed the steering wheel in an attempt to stop him from driving. The accused responded by punching her in the face.

Ms. McLeod continued to fight with him by pushing his head into the driver's side window and punching him in the face. During this altercation, the Toyota pickup truck hit two other vehicles in the parking lot and the accused threw Ms. McLeod's small French bulldog out the vehicle's window. [ 4 ] The Toyota pickup truck, driven by Mr. Biwer, drove out of the parking lot and headed westbound on Fraser Highway. At the intersection of Fraser Highway and 68th Avenue the accused lost control of the vehicle and drove over the raised median, hitting three more vehicles before rolling over.

The accused landed on top of Ms. McLeod and punched and kicked her in the face and stomach as he exited the overturned Toyota pickup truck. She sustained multiple contusions, a fractured right pelvis, mild neck strain and mild back pain. [ 5 ] Monica and Steve Johanson witnessed the accident of the Toyota pickup truck and stopped their Ford Escape to assist. Their seven-week-old daughter was in the backseat. While Steve Johanson approached the Toyota truck to give assistance, Mr. Biwer approached the Ford Escape and pushed Monica Johanson in the chest in an attempt to get into the driver's seat.

She tried to stop him from entering the vehicle, and yelled, "My baby's in the car. Please, let me take my daughter." Mr. Biwer ignored her, entered the vehicle and drove away with the child still inside. [ 6 ] Approximately 40 minutes later the Ford Escape was located by the RCMP in an alley near 158th Street and 95A Avenue in Surrey. The accused had abandoned the vehicle and the child. The temperature outside was only two degrees Celsius. The RCMP recovered the child, placed her in a warm car, and returned her to her parents. She sustained a mild concussion. [ 7 ] Mr.

Biwer has been in custody for 27 months since his arrest on December 23, 2014. [ 8 ] The court has the benefit of a pre-sentence report, psychological assessment and Gladue report in relation to the accused. Mr. Biwer was born on July 22, 1990 and is a 26-year-old male of the Ojibwe First Nation. At the time of these offences he was 24 years old. He has resided in the Lower Mainland for most of his life with the exception of a one-and-a-half-year period in which he lived and worked in Powell River. [ 9 ] Mr.

Biwer was raised by his mother and stepfather who were in an on again/off again relationship until he was 15 years old. He does not know his biological father. He reports that his mother and stepfather struggled with alcohol addiction during his childhood and that he witnessed incidents of domestic violence. Mr. Biwer dropped out of school at the age of 14; as a result, he only has a Grade 8 education. He worked at various jobs during his adolescence but has been marginally unemployed for the past several years. [ 10 ] Both the pre-sentence report and the psychological assessment emphasize Mr.

Biwer's long-term struggle with substance abuse. He reports that he first tried alcohol and marihuana at the age of 12 years old. By the age of 16 he was abusing crystal meth and living on the streets. At 18 he began using heroin intravenously and was using both heroin and crystal meth on a daily basis. He has made some attempts to quit using drugs, but these attempts have thus far been largely unsuccessful. [ 11 ] Mr. Biwer's drug use has caused a myriad of problems in his life, not the least of which is a recent string of drug-related offences.

Since the age of 19 he has received criminal court dispositions for 27 offences, including 10 robberies, 10 thefts under $5,000.00, and two assault with a weapon offences. [ 12 ] The pre-sentence report also highlights the difficulties that Mr. Biwer has had being in the community following release. Since 2012, the maximum time he has spent in the community before re-offending was only four months, and in the minimum, only three days. Most recently, Mr. Biwer was released from custody on December 12, 2014 after completing a custodial sentence of two years less a day.

He committed the offences in this case less than two weeks later, on December 23 rd . [ 13 ] In the pre-sentence report dated December 21 st of last year, Mr. Biwer reports he does not remember the offence date well. He is upset and shocked at his behaviour. He acknowledges that his behaviour must have impacted the victims, that prior to these offences he had plans to move forward, and that he is ashamed that he allowed these offences to occur. In the report he recognizes that he needs to stay away from drugs, that he needs a plan, and that treatment would be helpful. However, I note that Mr.

Biwer made similar statements of regret in the pre-sentence report dated October 28, 2013, following his February 2013 robbery offences. He served two years less a day in custody for those offences and was on probation for only 12 days before committing the offences which are currently before this court.

[ 14 ] The court has also the benefit of a Gladue report. The report sets out the impact that the government policy of enfranchisement had on the Ojibwe First Nation, the impact that residential schooling has had on their family, and the resulting adverse factors that are present in Mr. Biwer's personal life. In particular, Mr. Biwer has been affected by a multi-generational familial history of substance abuse, instability, violence, criminality and premature death. The report notes that Mr. Biwer was substantially unaware of this familial history. [ 15 ] The Gladue report also notes many of the difficulties Mr.

Biwer had as a child. He was diagnosed with Attention Deficit Disorder which impacted his educational success and vocational opportunities. Both his home and school life were equally unstable. He began consuming alcohol and using substances at the age of 12 and has struggled with substance addictions throughout his adult life. [ 16 ] The Crown has submitted that this court should impose the following consecutive and concurrent sentences of imprisonment: Count 1, attempted robbery of Ms.

Rocha, three years; Count 2, use of an imitation firearm and attempted robbery of Neslihan Rocha, one year consecutive which is the mandatory minimum under s. 85(4) of the Criminal Code ; Count 3, robbery of Samantha McLeod, five years consecutive; Count 5, assault causing bodily harm to Samantha McLeod, two years concurrent to Count 3; Count 6, robbery of Monica Johanson, four years consecutive; Count 7, dangerous driving causing bodily harm to Samantha McLeod, two years concurrent to Count 3, and finally; Count 8, possession of a stolen vehicle, one year consecutive.

Taken together, this would result in a global sentence of 14 years. [ 17 ] The Crown has acknowledged that a 14-year global sentence does not comply with the totality principle in s. 718.2 (

c) of the Criminal Code which requires that a global sentence not be unduly long or harsh. They concede that application of the totality principle should reduce the sentence to 11 years. The Crown further acknowledges the requirement to apply the principles of 718.2(

e) and R. v. Gladue in determining an appropriate sentence in this case and concede that the global sentence should be reduced by a further one year. Thus, the Crown is seeking a global sentence of 10 years imprisonment, minus 27 months for time served in pre-trial custody. [ 18 ] The Crown has referred the court to a number of relevant cases. I have reviewed these cases and note that one of the principles that emerge is that denunciation and deterrence, both general and specific, are the predominant sentencing considerations in carjacking offences. They rely on R. v.

Enotie, a 2013 case of the Ontario Court, O.J. No. 6246 R. v. McCrea , a 2007 decision of the B.C. Provincial Court, [2007] BCPC 258 , and R. v. Noor , another decision of an Ontario court, [2007] O.J. No. 4092 . [ 19 ] In R. v. Enotie , the offender was found guilty of robbery, dangerous driving, and a series of other offences arising from five carjackings. In each of these robberies a gun was pointed at the victim and at least one of the robberies involved explicit threats of death. The robberies were premeditated and part of a larger criminal enterprise involving the shipment of stolen vehicles offshore.

The Crown sought a global sentence of 10 to 12 years imprisonment, and the defence sought a global sentence of six years imprisonment. The Honourable R. A. Clarke sentenced Mr. Enotie to a global sentence of 11 years and 10 months imprisonment, less time served in pre-trial custody. I acknowledge that the circumstances in Enotie are aggravated by the pre-meditated nature of the carjackings, as well as the explicit threats of death in at least one of the robberies.

However, I also note that the case at hand is distinguishable on the fact that the accused in Enotie , unlike here, had no criminal record, and while there were threats of death, no physical harm was actually done to the victims. [ 20 ] In R. v. McCrea, a 2007 decision of our Provincial Court, BCPC 258 and upheld by our Court of Appeal in 2008, BCCA 227 the accused robbed a convenience store while masked and armed with bear spray. He fled the scene and a high-speed chase ensued. After crashing the car in a service station, Mr.

McCrea abandoned the car and ran to a nearby parking lot where he stopped and carjacked a pickup truck, throwing the owner to the ground and speeding off. Mr. McCrea received an eight-year global sentence, less credit for time served. In his decision, His Honour Judge Brecknell emphasized Mr. McCrea's difficulties with substance abuse, his lengthy, unrelated criminal history, and that he was on probation at the time of these offences. He said at paragraph 128: Just as cocaine has been a plague in Mr. McCrea’s life, his criminal behaviour has become a plague on the community. Mr.

McCrea’s criminal record of over a decade was of a relatively minor nature until 2000. Since 2000 Mr. McCrea’s behaviour has become more and more erratic and his criminal activities have become more and more serious and dangerous to members of the community. From his criminal record it is clear that he is prepared to act in a violent and dangerous manner in order to obtain what he wants, either drugs or money to purchase drugs.

He now faces sentencing for his fourth and fifth robberies and his third dangerous operation of a motor vehicle along with the ancillary charges of being masked while committing the first robbery, failing to stop for the police and resisting arrest once the last pursuit ended. Mr. McCrea’s record indicates clearly that he has not responded positively to lenient sentencing. The nature of his criminal behaviour has increased in severity and dangerousness over the past several years. He has continued to commit further crimes while being out of custody but under the supervision of Community Corrections.

He has failed to comply with a Conditional Sentence and other forms of Court direction. In these circumstances, given the nature of Mr. McCrea’s criminal record and the offences for which he is to be sentenced today, I must impose a sentence that will drive home the point that his criminal conduct will not be tolerated by the community and the community deserves protection from him. [ 21 ] While I find the circumstances in McCrea and the comments of the Honourable Judge Brecknell to be helpful in determining an appropriate sentence in the case at hand, in my view the circumstances here are again distinguishable.

In particular, the circumstances are aggravated by the significant amount of harm caused to the victims, including a pregnant woman and an infant child, as well as the exceptionally short amount of time between Mr. Biwer's release from custody and these new offences. [ 22 ] The defence has asked the court to impose a global sentence of six years imprisonment, less time served in pre-trial custody, as a fit and appropriate sentence. Defence counsel submits that the accused has embarked upon furthering his education while at the Surrey

Pre-Trial Centre, and has committed himself to address his substance abuse issues by attending counselling. He has also attended courses to increase his living skills and establishing and maintaining healthy relationships. [ 23 ] Mr. Swartz has characterized the Crown's sentencing position as heavy-handed and that such a sentence would undermine his client's prospect of rehabilitation, and argues that such lengthy sentences are normally reserved for the worst types of offenders who are either chronic or prolific offenders and are more mature in terms of age than Mr. Biwer.

He has also submitted that sentencing is a highly individualized process. Furthermore, there has been systemic discrimination historically against First Nation offenders, and proportionality is the fundamental principle in sentencing any offender. Counsel refers to the Gladue report which speaks of the historical disadvantages and hardships faced by Mr. Biwer's family. He was diagnosed with ADHD in Grade 6, which impacted upon his reading and learning skills. He is now taking medication to address that disorder.

The accused also began using alcohol and marihuana at age 12, other street drugs at 14, crystal meth and crack cocaine at 16, and began intravenous use of heroin at 17. In making his submissions, defence counsel has referred the court to a number of cases which I have reviewed and considered. [ 24 ]

Section 718.2 (

b) of the Criminal Code provides that a sentence should be similar to those imposed for similar offences committed in similar circumstances by similarly-situated offenders. He has referred the court to R. v. B. (E.P.) , (1999) 125 BCAC 310, (subnom. R. v. Brogan) 1999 BCCA 278 , a 1999 decision of our Court of Appeal in which Madam Justice Ryan suggested that the range of sentence for robberies with violence is between two to nine years. She stated: We have been given a number of cases where robbery with violence has been committed by young men such as Mr. Brogan.

An analysis of the range produced by these cases is that the sentencing range is somewhere between 2 and 9 years. 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, the requirement of deterrence in a particular community, are some of the factors which serve to distinguish one fact pattern from another. Madam Justice Ryan's comments were further clarified by Mr. Justice Lambert in R. v.

Longtin , a 2001 decision of our Court of Appeal, 2001 BCCA 614 at paragraph 17 , where he stated: I agree with the principles that have been set out by Madam Justice Ryan. I only wish to add a caution that the range that is being talked about by Madam Justice Ryan is not the range that the Supreme Court of Canada is concerned with when it talks about the “appropriate range” within which this Court cannot interfere.

It cannot have been the intention of the Supreme Court of Canada that if a sentence for robbery committed by a young man falls within the range between two years and nine years, then this Court cannot interfere with it. So the words “range” or “appropriate” or “sentencing range” have come to have two distinguishable meanings.

All of the factors discussed by Madam Justice Ryan helps to reduce the two-year to nine-year range to a more precise “appropriate range” for the particular case. [ 25 ] Defence counsel has relied on a number of cases in which the accused committed violent robberies and received a global sentence of between three and six years. For instance, in R. v. Rosov , a 2006 decision of our Court of Appeal 2006 BCCA 276 , the accused pled guilty to three counts of robbery and one count of theft over $5,000 and received a four-year global sentence. [ 26 ] In R. v.

Gill , a 2006 decision of our Court of Appeal, 2006 BCCA 127 , the accused pled guilty to robbery, using an imitation firearm while committing the offence of robbery, and committing an indictable offence with his face masked, and received a four-year global sentence. [ 27 ] In R. v. Bell , a 2005 decision of our Court of Appeal, 2005 BCCA 403 , the accused was convicted of two counts of robbery and two counts of using an imitation firearm in the commission of a robbery, and received a three-year global sentence. [ 28 ] In R. v.

Witso , a 2011 decision of our Provincial Court, 2011 BCPC 403 , the accused received a global sentence of four years for two counts of robbery. [ 29 ] Furthermore, in R. v. Z. (D.R.) , a 2011 decision of our Provincial Court, 2011 BCPC 395 , the accused received a six-year global sentence for two counts of robbery and two counts of using an imitation firearm during the commission of robbery. However, the circumstances in these cases are, in my view, distinguishable from the case at hand because they do not involve a carjacking. [ 30 ] In R. v. Noor, a 2007 case of the Ontario Supreme Court, [2007] O.J.

No. 4092 (Ont. SCJ) , a case relied on by both Crown and defence counsel, the accused carjacked the victim at a stoplight and threatened to kill him if he did not get out of the vehicle. The accused was sentenced to three-and-a-half years imprisonment for the single carjacking. The court discusses the distinction between carjacking and other forms of violent robbery at paragraph 22, in which the court states: At the risk of stating the obvious, robbery is a very serious offence, as demonstrated by the fact that it is punishable by life imprisonment. Car-jacking is a serious type of robbery.

The average person enjoys a degree of privacy and, more importantly, feels a sense of security while traveling in his or her motor car, as opposed to walking or using public transport. Although not so sacrosanct as the expectation to be secure in one’s home, as the excerpts from the cases that follow make plain, the expectation to be able to travel about the community in safety in one’s own vehicle is recognized as a fundamental value of Canadian society. This value is something to be assiduously fostered and protected. [ 31 ] The court in R. v. Noor goes on to endorse the remarks of Justice Block in R. v.

DaSilva , a 2000 decision of the Ontario Court, [2000] O.J. No. 739 (Ont. S.C.J.) where it states at paragraph 21: Law-abiding Canadians from coast to coast in this country place their highest value in life on family, home and economic security. I venture to say, in that order. Protection and the securing of home and family must receive very high priority in our criminal justice system. If it were otherwise, the confidence of Canadians in that system would evaporate. I see little difference between a home invasion and a carjacking invasion.

In the reality of the present daily life in this country, our cars are extensions of our homes. [ 32 ] The defence has further relied on additional cases in which the robbery was characterized as carjacking; for instance, in R. v. Chad , a 2009 decision of the Alberta Court of Appeal, 2009 ABCA 48 , R. v. Wong, 2013 BCSC 1154 , a 2013 decision of the B.C.

Supreme Court, and R. v. B. (N.J.), 2014 BCPC 49, a 2014 decision of our Provincial Court. In these cases, the court imposed a globalsentence ranging from five years and six months, to eight years. I have considered these cases and note that, in my view, thecircumstances in the case at hand are significantly more aggravating. [33] As required by s. 718.2(

e) of the Criminal Code and as set out by the Supreme Court of Canada in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 (SCC), I have considered the systemic and background factors that may have contributed to Mr. Biwerbeing before the court. As a period of incarceration is mandatory in this case, I must now consider whether a reduced sentence isappropriate in the circumstances. [34] Both the Crown and defence have provided case excerpts from R. v. Gladue, and specifically refer to paragraph 93 where theSupreme Court of Canada sets out the Gladue principles.

I will not repeat those principles here but have taken particular note of thefollowing in paragraph 8: If there is no alternative to incarceration, the length of the term must be carefully considered. Paragraph 9:

Section 718.2(

e) is not to be taken as a means of automatically reducing the prison sentence of aboriginal offenders; nor should it beassumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed. Furthermore, paragraph 13: It is also unreasonable to assume that aboriginal peoples do not believe in the importance of traditional sentencing goals such asdeterrence, denunciation, and separation, where warranted.

In this context, generally, the more serious and violent the crime, the morelikely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders, whether theoffender is aboriginal or non-aboriginal. [35] I have also been referred to the Supreme Court of Canada decision in R. v.

Ipeelee, 2012 SCC 13, a decision, where they againclarify the Gladue principles, and the court stated at paragraph 84: The passage in Gladue that has received this unwarranted emphasis is the observation that “[g]enerally, the more violent and serious theoffence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to eachother or the same, even taking into account their different concepts of sentencing”… Numerous courts have erroneously interpreted thisgeneralization as an indication that the Gladue principles do not apply to serious offences. (see R. v.

Carriere (2002), (ON CA), 164 CCC (3d) 569 (Ont.

C.A.)) The court goes on to say that: Whatever criticisms may be directed at the decision of this Court for any ambiguity in this respect, the judgment ultimately makes it clearthat sentencing judges have a duty to apply s. 718.2(e): “There is no discretion as to whether to consider the unique situation of theaboriginal offender; the only discretion concerns the determination of a just and appropriate sentence”. [36] As I have set out above, the Crown has submitted that a one-year reduction to the global sentence from 11 to 10 years, less timeserved, will appropriately address the principles in s. 718.2(

e) and Gladue in Mr. Biwer's circumstances. [37] The court has also had the benefit of three victim impact statements. The first one was given by Samantha McLeod, the victimof one of the carjackings, who chose to read her statement into court, and she began by saying that she had re-written her statement athousand times and did not know where to begin. She speaks of how this incident has left her emotionally crippled, as well as damagingher physically. She continues: I don't smile like I used to, and I certainly don't laugh as much. I'm also not very fun to be around a lot of the time because I am moreirritable.

I suffer from dark moods that can literally suck the energy right out of a room, and I have a tendency to self-medicate byoccasionally drinking too much. She also personally thanked the Surrey RCMP members who went above their call of duty to visit her in the hospital on Christmas Eveon their way home to see their families. [38] As for physical injuries, she suffered a fractured hip and severed muscles which made walking incredibly difficult, and as shegrew with her baby, the pressure on her hip intensified, causing her to use a cane for the remainder of her pregnancy. Some nights thepain would be unbearable.

She continues to suffer nightmares, night-time panic attacks, and pain which has disrupted her sleepingpattern. She is currently receiving a disability pension. [39] At the time of this incident she was enrolled in the real estate course at UBC and was unable to write the final exam in January. When I asked her how her son is doing; he is now 16 months old. She said he was doing amazing. [40] Monica Johanson provided a victim impact statement to the court as well, setting out that in the weeks after this event sheunderstandably suffered from feelings of anger, guilt and fear.

She is still tormented by the sounds of screeching tires which serve toremind her of the time the accused drove away with her seven-week-old daughter in the backseat. Fortunately, their daughter hasemerged from his incident essentially unharmed. They are no doubt grateful for the swift and successful response of the RCMP infinding their daughter in the abandoned vehicle. [41] Her husband, Steve Johanson, also provided a victim impact statement.

He understandably still remembers the feeling ofdespair that he experienced as, "I hopelessly saw my seven-week-old daughter being driven off without knowing if she would ever bereturned back to me, or if he would be in another accident like the one I just witnessed."

[ 42 ] The circumstances in this case are obviously extremely aggravated. On the last appearance the accused read an apology to the victims and stated his remorse for committing these offences, but I have not lost sight of the fact that he displayed absolutely no remorse on the day he committed these offences. [ 43 ] I have considered the facts of this case, the submissions of counsel, the relevant case law, the sentencing provisions of the Criminal Code , and the victim impact statements that have been provided.

I am in agreement with the Crown that a 10-year global sentence would be appropriate, less the time he has already served in custody. [ 44 ] Accordingly, on Count 3, robbery of Samantha McLeod, I will sentence him to five years imprisonment. [ 45 ] On Count 1, attempted robbery of Neslihan Rocha, three years imprisonment. [ 46 ] On Count 2, one year jail consecutive to Count 1 as it is a mandatory sentence for using an imitation weapon during a robbery. Mr.

Sayson has recommended that the assault causing bodily harm to Samantha McLeod should be two years jail, concurrent to Count 3, and dangerous driving, two years jail, concurrent to Count 3, and four years jail, consecutive to Counts 1, 2 and 3 for the robbery of Monica Johanson, and one year jail, consecutive to Counts 1, 2, 3 and 6 for the possession of a stolen vehicle. However, Mr.

Sayson, in my view, has quite fairly pointed out the 14-year suggested sentence should be reduced to 11 years jail to comply with the totality principle, and furthermore, the 11 years should be reduced to 10 years, applying the principles in R. v. Gladue and s. 718.2(

e) of the Criminal Code , and that obviously the 10 years is further reduced by dead time credit. [ 47 ] Although these offences, particularly the two carjackings, were very closely connected in time, I agree with the Crown that they were two entirely different offences with two entirely separate victims, not to mention the baby that was in the backseat of a stolen vehicle. Although I must consider the possible rehabilitation of Mr.

Biwer given his relative youth, I have concluded that the court must impose a sentence that emphasizes deterrence and denunciation. [ 48 ] Accordingly, I would have imposed a global sentence of 10 years imprisonment, but that must be tempered by the time he has already spent in custody. He has been detained on these charges since the date of these offences, a total of 27 months. I am required by law to give him credit on a one-and-a-half-to-one basis as during the time he has awaited sentencing he has earned no parole eligibility. This amounts to 40 months and 15 days.

This reduces the global sentence that I would normally impose of 10 years to six years and seven months. [ 49 ] Therefore, on Count 3, the robbery of Samantha McLeod, I agree with the Crown and impose a sentence of five years imprisonment. [ 50 ] On Count 6, the robbery of Monica Johanson, I would normally have imposed a consecutive sentence of four years; however, I will reduce that to seven months, in addition to time served, which I have already fixed to be 40-and-one-half months. [ 51 ] On Count 2, use of an imitation firearm, I will impose the mandatory minimum of one year consecutive. [ 52 ] On Count 1, attempted robbery of Neslihan Rocha, I will impose three years concurrent. [ 53 ] Count 5, assault causing bodily harm to Samantha McLeod, two years concurrent. [ 54 ] Count 7, dangerous driving causing bodily harm to Samantha McLeod, two years concurrent. [ 55 ] Count 8, possession of a stolen vehicle, one year concurrent.

All of the concurrent sentences apply to Count 3. [ 56 ] In addition, I must make the following orders. First of all, there will be a lifetime prohibition from possessing any firearms, ammunition, explosive substance, crossbow and restricted weapons pursuant to s. 109(3) of the Criminal Code which will apply to Counts 1, 2, 3, 5 and 6. [ 57 ] There will also be an eight-year driving prohibition in Canada which will commence the day he is released from custody under s. 259(2)(b).

That is, of course, applicable only to Count 7. [ 58 ] Also there is a mandatory DNA order for the robbery conviction. [ 59 ] I will also make, under s. 743.21(1) a non-communication order with the following people: Neslihan Rocha, Samantha McLeod, Steve Johanson, Monica Johanson and Asha Khan. [ 60 ] Parliament dictates that the victim surcharge, $1,400.00, that is $200.00 per count, is mandatory. I will impose that.

It is payable forthwith, in default 49 days concurrent. [ 61 ] I also will be ordering a transcript of my Reasons for Sentence to be prepared and forwarded to Correctional Services of Canada, and order that copies of all sentencing exhibits be sent to Correctional Services. [ 62 ] THE ACCUSED: You fucking goof. (REASONS FOR SENTENCE CONCLUDED)