R. v. Prosser Date:, 2017 BCPC 122

Citation: R. v. Prosser Date: 20170329 2017 BCPC 122 File No: 209913-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. THOMAS DENNIS PROSSER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. SUDEYKO Counsel for the Crown: R. Antonuk Counsel for the Defendant: R. Bellows Place of Hearing: Surrey , B.C. Date of Hearing: January 31, 2017 Date of Judgment: March 29, 2017

Introduction [1] Thomas Denis Prosser (“Mr. Prosser”) has pleaded guilty to five counts of robbery, contrary to s. 344 of the Criminal Code. [2] All of these robberies occurred in banks and were achieved by passing notes to the tellers. No weapons were used, but thenotes were threatening. Mr. Prosser was partially disguised. They occurred over approximately a six week period, almost two yearsago. He has been out on bail for nearly all of that time.

He is 38 years old, and has no previous criminal record. [3] The Crown argues that deterrence and denunciation are the primary sentencing principles in this case and seeks a sentence of 3½ to 4 years in jail. The Defence says Mr. Prosser has strongly addressed the issues that led to these robberies and is prepared tocontinue to do so, such that the principle of rehabilitation is primary in this case. He seeks a suspended sentence, with a lengthy andextensive probation. [4] The issue is whether Mr.

Prosser’s rehabilitation outweighs the principles of deterrence and denunciation applicable to theseparticular offences, such that a non-custodial sentence is appropriate. The Robberies [5] Between January 26 and March 4, 2015, Mr. Prosser went to five different banks in three different cities and, while at leastpartially disguised with a hat and sunglasses, provided notes to tellers seeking money. The notes were threatening. The note from thefirst robbery was left behind and included the following: “This is a robbery. Stay calm and act casual, your life depends on it.

Do not make eye contact with your co-workers or security. Do nottrip the alarm. I will be watching you closely… You should know that I am well armed and will not hesitate to use force. After I leave the bank, wait 30 seconds before alerting anyone of the robbery. I will check behind me before I am out of sight. If I seeanyone even looking out the window of the bank, I will know that you opened your mouth too soon and will make sure you and yourfamily will suffer the consequences at some point.” [6] Mr.

Prosser had researched the methodology of a bank robbery on the internet, typed out his note, and always wore a hat ortoque and sunglasses as a partial disguise. In the end, Mr. Prosser got just $2,684.00 in total, of which $1,200.00 was recovered on theday of his arrest. Crown Position [7] The Crown accepts that Mr. Prosser has achieved significant benefit towards his rehabilitation, although to some extentquestioned his insight into the harm to the victims.

The Crown also concedes the mitigating factors of a guilty plea, the lack of aprevious criminal record, and successful bail release. [8] However, the Crown also points out certain aggravating factors to these already serious offences, including the fact that therobberies were well-planned, the use of a partial disguise, the significant threat of violence, and the presumed effect on victims. Theysay the principles of deterrence and denunciation are paramount for these offences and outweigh the principle of rehabilitation. [9] The Crown referred me to case law in support of their position, including R. v.

Swazey, 2006 BCPC 271 , [2006]B.C.J. No. 1356 BCPC, a decision of Kitchen, J. that focusses on the additional risk of a robbery of a financial institution as anaggravating factor. That is because of the additional sums of money at stake and the possibility of reaction by the police or theinstitution that may put the employees of such institutions, as well as the public, at risk. [10] By way of guidance towards the appropriate range of sentence and the underlying principle of parity, the Crown also referredme to three cases they say are similar to this one:

(1) R. v. Peters, [2005] B.C.J. No. 2873 BCPC, a decision of Gulbransen, J., in which there were five robberies of banks with verysimilar circumstances of a threatening note and no weapon. Mr. Peters was 24, had a criminal record, but no robbery convictions. Gulbransen, J. imposed 4 years.

(2) R. v. Smith, 2007 BCPC 198, a decision of Frame, J., in which there were some seven robberies over a month’s time by a 49 year oldcrack cocaine addict, with a significant criminal record, including an old armed robbery to which he received 2 years. Frame, J. imposeda 4 year sentence.

(3) R. v. Solheim, 2008 BCPC 192, a decision of Dyer, J., in which there was a grocery store robbery with the use of a knife, followed byeight bank robberies while on bail. Mr. Solheim was 32 and had a limited and unrelated record, mental health issues, and had goodfamily support. Dyer, J. imposed 4.5 years. [11] Finally, in apparent anticipation of the Defence position for a suspended sentence, the Crown also referred me to the very recentdecision of R. v. Marks, 2016 BCCA 480. In that case, the B.C.

Court of Appeal (“BCCA”) upheld Gardner J.’s sentence of 1 year for alate night robbery of a gas station with an imitation handgun by an 18 year old, even though there had been 3 years on bail, and Markshad followed all terms and seemingly rehabilitated himself. [12] In Marks, the BCCA says that a suspended sentence may satisfy the deterrence and denunciation principles in exceptionalcircumstances and refers to R. v. Voong, 2015 BCCA 285 and R. v. Carrillo, 2015 BCCA 192, cases involving a dial-a-dope drugoperations and mid-level drug trafficking, respectively.

However, the majority in Marks found that Gardner, J. had indeed considered

that possibility and found reason to reject it, while still imposing a sentence below the usual range for the offence. [13] In the end, the Crown in this case submits that Mr. Prosser should receive a sentence of 3.5 to 4 years. Defence Position [14] The Defence says that the combination of Mr. Prosser’s longer term mental health issues, significant debt problems, togetherwith drug and alcohol use, led to his extreme and uncharacteristic behavior at the time of these offences. The Defence further says that,in addition to the mitigating factors of the guilty plea and lack of a criminal record, Mr.

Prosser has achieved real rehabilitation over anextended period and there is a significant depth to his recovery. It is Mr. Prosser’s intention to continue with his rehabilitation and thenlook to re-employment. [15] Indeed, the material submitted by the Defence supported the position that Mr. Prosser has made significant efforts to address hisaddiction, mental health issues, and has also given back to his community. That included the following: (

a) completion of a 90 day drug treatment program and ongoing residency at that program; (

b) a 50 hour Outpatient Daytox Treatment Program; (

c) regular counselling at Surrey Substance Use since September, 2015; (

d) participation in Alcoholics Anonymous on a weekly basis since November 2015; (

e) ongoing attendance with a psychiatrist, who provided a diagnosis and medication; (

f) participation in Psychiatric Outpatient Treatment Programs, including formal courses on anxiety and depression; (

g) participation in a volunteer community group attached to his treatment; (h) 450 hours as a volunteer at the Surrey Food Bank. [16] The Pre-Sentence Report (“PSR”) confirmed the rehabilitation and supports the view that Mr. Prosser has achieved insightregarding the harm done to the victims, and expressed genuine remorse.

He also has the ongoing support of his family, who have cometo his aid at this time, including their attendance in court on his behalf. [17] The Defence says that the rehabilitation is real and should be the paramount sentencing principle, and that a suspended sentencecan satisfy the principles of deterrence and denunciation. [18] In support of that position, the Defence referred me to the cases of Voong, supra and Carrillo, supra.

Although factuallydifferent cases involving serious drug offences, the BCCA’s view was that a suspended sentence can satisfy principles of deterrence anddenunciation, in “exceptional circumstances”. That view is not limited to non-violent cases. [19] In turn, the Defence referred me to R. v. Cain, (BCCA), in which a suspended sentence was imposed when theCrown was originally seeking a 9 to 12 year sentence for a single count of “unarmed robbery”, primarily based on Mr. Cain’s significantpast record.

On appeal, the Crown suggested a 3 year sentence was appropriate, but the suspended sentence was upheld because therewas “real and substantial grounds to believe a person of previously bad character has and can effect his own rehabilitation” and judgescan “give paramountcy to the principle of rehabilitation”. [20] Finally, the Defence also referred me to R. v. Chand, 2015 BCSC 484, although I did not find that case had any factualsimilarity or a principle that has particular application to this case. [21] In the end, on behalf of Mr.

Prosser, the Defence seeks a suspended sentence with three years of extensive terms on probation. Analysis [22] The cases cited by both Crown and Defence provide some helpful guidance. However, any sentencing is an individualizedprocess, examining the circumstances of both the offence(

s) and the offender, and weighing and balancing the applicable sentencingprinciples. [23] There may be cases where a suspended sentence is appropriate for a serious offence(s), even where there is a significantprevious record (which is not the case here). That approach may apply where the “window of opportunity” for successful rehabilitationis briefly open, particularly when that may have previously not been the case. It may also apply where the timing of successfulreintegration into the community is such that the protection of society will be best served by such a sentence.

Such was the case in R. v.Cain, supra. [24] In this case, I must weigh the significant progress that Mr. Prosser has made towards his own rehabilitation, which includesreintegration, against the principles of deterrence and denunciation that apply to these sorts of offences, keeping in mind that a suspendedsentence can, in some cases, satisfy all of those principles. [25] I conclude that there is considerable weight to be given to the significant progress that has been achieved by Mr.

Prossertowards his own rehabilitation, as well as what he has already given back to his community. [26] In my view, the extent of that rehabilitation and his contribution to the community is an “exceptional circumstance”. However,it is important to remember that where the BCCA has concluded that a “special” or “exceptional circumstance” is necessary, that is notalways a sufficient, basis for a suspended sentence.

[ 27 ] I turn to the issue of deterrence, which has two aspects – specific deterrence and general deterrence. [ 28 ] Successful efforts towards rehabilitation will typically reduce the need for a deterrent effect to the sentence. That is particularly the case with respect to specific deterrence. I conclude that I need not consider, in any significant way, the principle of specific deterrence in regard to Mr.

Prosser, because of his successful rehabilitation, expression of remorse, and his apparent achievement of insight. [ 29 ] In my view, the same cannot be said for general deterrence and denunciation in this case. The general deterrence and denunciation principles remain a consideration for these particular offences, where there is a significant threat and risk of violence and planning involved. It is not entirely off-set by Mr. Prosser’s successful rehabilitation, even if it may be somewhat tempered by it.

In that latter regard, the need to impose a lengthy jail sentence is reduced when a person has successfully rehabilitated, which will be reflected in the sentence without entirely compromising the general deterrent and denunciatory effect. [ 30 ] In the end, even taking into account the significant weight to be given to the extensive rehabilitation achieved by Mr. Prosser, the seriousness of these five bank robberies threatening violence, leads me to the conclusion that a suspended sentence will not adequately address the principles of general deterrence and denunciation.

For those reasons, I do not agree with the Defence sentencing position. [ 31 ] On the other hand, that rehabilitative progress, together with the other mitigating circumstances of the guilty plea, lack of a criminal record, success on bail and continued family support, leads me to conclude that a sentence shorter than that proposed by the Crown, is appropriate. Moreover, I have considered the length of the sentence, keeping in mind the delay a jail sentence will have on Mr. Prosser’s continuing reintegration into society.

Sentence [ 32 ] I therefore impose a sentence of 2 years on Count 1 on the Information, and 2 years on each of the remaining 4 counts, all to run concurrent to Count 1. From that 2 years, I note Mr. Prosser’s entitlement to enhanced credit of 72 days, such that the remaining jail sentence to be served will be a total of 658 days. [ 33 ] This will be followed by a period of probation for one year, which will include the statutory conditions, a reporting condition, and counselling as directed. This will hopefully assist with his ongoing rehabilitation and reintegration. The Honourable Judge D.

Sudeyko Provincial Court of British Columbia