R. v. Perusini, 2019 BCPC 254

Citation: R. v. Perusini 2019 BCPC 254 Date: 20190923 File Nos: 85413-1, 85324-1, 85673-1, 85414-C-2, 85654-1, 85646-1, 85663-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JENNIFER LYNN PERUSINI REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: B. McCormick Counsel for the Defendant: B. Movassaghi Place of Hearing: Nanaimo , B.C. Dates of Hearing: August 29 and September 23, 2019 Date of Judgment: September 23, 2019 The Issue [ 1 ] Ms.

Perusini has entered guilty pleas to six separate counts of breaking & entering, committed at six different addresses over a period of six months, and to one count of driving while prohibited during the same period. It is my task to sentence her for those offences. [ 2 ] Counsel agree that the appropriate sentence for driving while prohibited is the statutory minimum under the British Columbia Motor Vehicle Act ; i.e. a $500 fine and a six-month driving prohibition.

[ 3 ] In relation to the breaking & entering offences, Mr. McCormick, for the Crown, seeks a jail sentence of 2 years less a day and a term of 2 years’ probation. Mr. Movassaghi, for Ms. Perusini, seeks a suspended sentence and a term of 3 years’ probation. The Breaking & Entering Offences [ 4 ] All of the breaking & entering offences were committed at the homes of the victims. No one was at home when the offences were committed. Five of the six breaking and entering offences were committed during the daylight hours. In each case, property of a value between $1,000 and $10,000 was stolen.

In several cases, heirloom property, whose value to its owner greatly exceeded its market value, was taken. In one case, debit cards and similar items were taken, which might have been used to commit identity theft, but, in the result, were not. [ 5 ] The Crown has proceeded by indictment, with the result that the maximum sentence is life imprisonment: Criminal Code , s. 341 (d). For that reason, a conditional sentence is not available: Criminal Code , s. 742.1 (c). Victim Impacts [ 6 ] I was provided with a number of victim impact statements. The following are notable extracts from them. 1.

The invasive feeling was horrible. The door was smashed a big hole ( sic ). Bits of wood and dust were scattered across the floor. Drawers and closets in my bedroom were opened and my stuff were threw ( sic ) everywhere. The bathroom window was smashed. ... I am scared to live there. I can’t sleep. I got severe anxiety. … I lost interest of life. I lost patience and temper often. I keep talking negative and miserably with family and friends. … I am so scared and anxious. I can’t stay by myself at night. Any noise make me terrified. 2. I felt afraid to be home alone or when we were all asleep.

I feared to come home because I thought she might come back. Other victims commented upon the loss of items (for example, heirloom jewelry) whose value to the owner far exceeded the market value of the item. The Offender [ 7 ] Ms. Perusini is 36 years of age. She has no criminal record. She suffered from an abusive childhood and spent some time in foster care. She graduated high school in 2000 and has taken some post-secondary courses at Vancouver Island University. She has worked as a yoga instructor and a house-cleaner. Ms. Perusini began using marijuana and alcohol in her early teens.

She was later prescribed opioids for a medical condition and developed an addiction to them, which she fed by the use of street drugs. [ 8 ] Ms. Perusini has one child, now age 11. The father of that child, with whom Ms. Perusini is no longer intimate, supplied a letter of support, in which he describes Ms. Perusini as an “excellent mother”, and expresses his concern at the effect on their child if she is sent to jail. The paternal grandmother provided a similar letter of support. [ 9 ] Ms. Perusini was arrested on these charges on December 11, 2018, and released on bail on January 24, 2019.

One of her bail conditions was that she attend residential substance-abuse treatment. She attended at the residential program to which she was assigned, but was expelled from that program for breach of its rules on May 27, 2019. I was provided with no particulars of the breach of house rules which led to her expulsion. She was not charged with a breach of her bail conditions as a result of that expulsion, and no other breach of bail is alleged. On June 14, 2019, Ms. Perusini entered a second residential treatment program. Her counselor in that second program provides the following

summary of her progress to date: [Ms. Perusini] has been engaging well with the program here according to our expectations and guidelines. She has been abiding by the rules, policies and procedures that [the program] has set out for her while she resides here. She has shown growth and insight into her recovery and continues to be a cooperative member of the group here. She has been engaging in group sessions and has not missed any of her scheduled appointments with the Turning Point counselor. [Ms. Perusini] has shown empathy, and kindness to the other residences ( sic ) here.

She has also shown her ability to be aware of her challenges, and is working to overcome those challenges. The Jurisprudence [ 10 ] In support of the proposition that a jail sentence is appropriate, Mr. McCormick relies upon R. v. Arsenault [1999] BCJ No. 2361 ; 1999 BCCA 578 , R. v. MacDonald [2015] BCJ No. 252 ; 2015 BCPC 24 and R. v. Bernier [2013] BCJ No. 466 ; 2003 BCCA 134 . Mr. McCormick relies upon Bernier for the proposition that, absent unusual circumstances, the range of sentences for a residential break & enter is 9 months to 5 years. [ 11 ] Mr. Movassaghi responds by relying upon R. v.

Bay [2011] BCJ No. 1356 ; 2011 BCCA 297 , in which it was held that the sentencing judge erred in imposing a sentence of 2 months’ jail for a single break & enter, with a concurrent one-month sentence for possession of stolen property. The Court of Appeal substituted a 30-day sentence (equivalent to time served in pretrial custody), followed by a period of probation. [ 12 ] Each of Mr. McCormick and Mr. Movassaghi remarked upon the wide range of sentences for breaking & entering offences to be found in the authorities. [ 13 ] I have considered R. v.

Draghani [2018] BCJ No. 1181 , 2018 BCCA 225 , in which the court upheld 90-day intermittent sentences, followed by 2 years’ probation, for a violent home invasion committed by two offenders without prior criminal records. The particulars of the offences committed in Draghani were very much more grave than those of the offences for which Ms. Perusini is to be sentenced. [ 14 ] For the reasons which follow, I am of the view that Arsenault, MacDonald and Bernier are of limited assistance in the case at

bar. [ 15 ] The offender in Arsenault was described in the following terms: Mr. Arsenault, age 45, had a record of 37 convictions over a period of 26 years.

That included 20 break and enter convictions, most if not all of which I understand were of residences, four convictions for possession of stolen property, two for theft, two for possession of house-breaking instruments, two weapons offences, two narcotics offences, one for obstruction, and four for breach of probation or failure to appear. [ 16 ] Similarly, the offender in MacDonald had a record of 14 convictions for breaking & entering prior to the offence for which he was sentenced. It is also noteworthy that a young child was at home alone when Mr.

MacDonald broke into her house, and that the child was badly traumatized by the offence. [ 17 ] By contrast, Ms. Perusini has no previous criminal record. [ 18 ] One of the difficulties in establishing a range of sentences for breaking & entering is that the offence is often committed in the context of other offences, commonly involving possession or use of weapons and acts of violence. There are few cases, like this one, in which no one’s personal safety was threatened and no weapon was used.

For example, in Bernier , Justice Southin described the circumstances of the offence in the following terms: … [the offender] had masterminded, but not been proven to be present at, a breaking and entering, the purpose of which was to steal marijuana thought to be in the apartment of Mr. Eve, who is a young man. There was no marijuana but money was taken. In the course of the breaking and entering, someone hit Mr. Eve with a gun. He was also briefly confined but suffered no permanent injury.

Thus, this case is about a crime less heinous than those recent breakings and enterings in which the perpetrators have offered violence to frail, elderly householders. Nonetheless, all breakings and enterings accompanied by robbery, by definition a crime of violence, are grave. [ 19 ] The particulars of Ms. Bay’s offences were less egregious than those of Ms. Perusini. She entered guilty pleas to one count of theft of property valued at less than $5000 and one count of breaking & entering. Her previous criminal record consisted of one conviction for theft of property valued at less than $5000.

Her personal circumstances, and her conduct while awaiting trial, were similar to those of Ms. Perusini. [ 20 ] Mr. Movassaghi points out that, as a practical matter, intermittent sentences are not available to female offenders on Vancouver Island, because the nearest women’s correctional facility is in the Fraser Valley, 3 to 4 hours’ journey from Nanaimo. That circumstance may give rise to an allegation of infringement of a female offender’s rights under

section 15 of the Canadian Charter of Rights & Freedoms , but no such allegation was made in this case. Applying the Jurisprudence To This Case [ 21 ] Of the authorities to which I was referred, Bay is the case most similar to that of Ms. Perusini. The differences are that: (

i) Ms. Bay committed only two offences, one break & enter and one theft, and Ms. Perusini committed six, all break & enters; and (ii) Ms. Bay had a previous criminal record, although a very limited one, and Ms. Perusini has none. To borrow a quote from Justice Bennett in Bay @ paragraph 16 , each of Ms. Bay and Ms. Perusini was “… a young person, with little criminal history, who committed property offences, and had taken significant steps towards her rehabilitation ...” and “… has considerable family support …”.

Applying the principle that “… a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances …” [ Criminal Code s. 718.2 (b)], I think that Ms. Perusini’s sentence should be similar to that imposed upon Ms. Bay. [ 22 ] Ms. Perusini spent 44 days in custody before she was released on bail. Giving credit at 150% of actual time in pretrial custody, she is entitled to credit for 66 days.

I think that a sentence of 60 days’ jail, with credit for 60 days time served, concurrent on all six counts of breaking & entering, is fit in her case. [ 23 ] I think that an extended period of probation is important in this case. Ms. Perusini faces many challenges, and I think that her probation officer is likely to be able to provide her with meaningful assistance in moving forward.

Disposition [ 24 ] On each of the six break & enter charges, there will be a sentence of 60 days’ jail, with credit for 60 days served, each concurrent to each of the others, and a term of 3 years’ probation, on the following conditions. [ 25 ] Ms.

Perusini must: a. keep the peace, and be of good behaviour, and attend court when required to do so by the court; b. report in person to a probation officer no later than noon on September 24, 2019, and report thereafter as and when directed by her probation officer; c. provide her probation officer with her residential address and telephone number, and not change her address or telephone number without prior notice to her probation officer; d. not possess or consume any alcohol; e. not possess or consume any cannabis, cannabis derivatives or controlled substances, as defined by the Controlled Drugs & Substances Act , except in accordance with a valid medical prescription; f. not possess any drug paraphernalia;

g. attend, participate in and successfully complete any counselling program to which she is referred by her probation officer, including a full-time attendance program if she is referred to one; h. not be found within 200 metres of any of the following civic addresses: (i) [omitted for publication] Place, Nanaimo, British Columbia; (ii) [omitted for publication] Road, Nanaimo, British Columbia; (iii) [omitted for publication] Road, Lantzville, British Columbia; (iv) [omitted for publication], Nanaimo, British Columbia; (v) [omitted for publication] Street, Nanaimo, British Columbia; (vi) [omitted for publication] Drive, Nanaimo, British Columbia; i. have no contact, directly or indirectly, except through legal counsel, with any of the following people: M.S., T.S., H.S., B.K., R.S., J.W., S.A., B.A., P.A., S.S., C.R., or J.J.; j. not possess any identification document, banking document, credit card or debit card in a name other than her own; k. pay restitution to the clerk of the court, in the amounts and for the credit of the persons named below, such amounts to be paid in full no later than July 2, 2022: M.S. $1000.00 H.S. $1000.00 TD Bank Insurance $4991.96 S.A. $1000.00 Associated Independent Adjusters $8775.45 [ 26 ] There will also be an order that Ms.

Perusini attend at the Nanaimo RCMP detachment no later than 4:00 p.m. on September 24, 2019 for the purpose of providing a DNA sample. [ 27 ] On the charge of driving while prohibited, there will be a $500 fine, payable on or before July 31, 2020, and a one-year driving prohibition (under s. 98 of the Motor Vehicle Act ) , commencing today. September 23, 2019 ____________________________ The Honourable Judge Gouge Provincial Court of British Columbia