R. v. S.J.H. Date:, 2016 BCPC 206

Citation: R. v. S.J.H. Date: 20160520 2016 BCPC 206 File No: 211572-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. S.J.H. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Crown: A. Starno Counsel for the Defendant: M. Forhan Place of Hearing: Surrey , B.C. Date of Hearing: May 18, 2016 Date of Judgment: May 20, 2016

[ 1 ] THE COURT : S.J.H. (S.H.) has appeared before me on May 18, 2016 for the purposes of sentencing as he has entered a guilty plea to a one-count Information that on May 31, 2015 in Surrey, British Columbia, to robbing A.P.( 1 ), contrary to s. 344(1) (

b) of the Criminal Code . [ 2 ] This was a joint submission that was presented before me and I adjourned it until today's date because I had concerns regarding the contents of the submissions made to me. [ 3 ] The circumstances are such that on May 31st, 2015, at approximately 5:40 p.m., S.H. entered into a Fresh Slice Pizza, located at 14357 104 Avenue in Surrey, British Columbia. Exhibit 1 in these sentencing proceedings is a video DVD showing S.H. entering the Fresh Slice location.

S.H. pulled a knife, to which his victim, a 21-year-old, A.P.( 1 ), described as being "as long as a banana." S.H. demanded repeatedly of A.P.( 1 ) to open the till and A.P.( 1 ) refused to do so, so S.H. is seen jumping over the counter and using a long knife to pry open the till, all without success. He hastily departed the Fresh Slice location and was immediately chased by A.P.( 1 ) and a number of other staff members. [ 4 ] He was observed to have gotten into a vehicle at the intersection of 104 and 144 in Surrey, and the vehicle was operated by his mother.

Shortly thereafter, his mother apparently found out what he had done, pulled over, and S.H. left and ran off. [ 5 ] The pre-sentence report indicates that S.H. has had a troubled family background, including a biological brother who died of an overdose, a history of both parents using alcohol and drugs, a history of selling drugs in the downtown Vancouver Eastside at the age of 19, after being shot by a police officer at the age of 18, and thereafter connected with his parents later in his life. His father was a retired postal worker who relapsed into using crack cocaine, and S.H. followed suit thereafter.

He was incarcerated from 2012 to 2015 and became addicted to Suboxone while in custody. He relapsed on heroin when released in 2015. [ 6 ] He has been in a relationship with a woman since 2014, who is employed as a care aid for brain injured persons, and has two children of her own. [ 7 ] S.H. has a historical use of MDMA, acid, crack cocaine, cocaine and heroin. He has an extensive criminal history and the significant number of entries would make S.H. indeed a prolific offender.

He acknowledges that he became involved in property crime to fuel his addiction to drugs. [ 8 ] A psychological assessment was undertaken of S.H. and I have had the full benefit of reading that report dated May 11th, 2016. S.H. was fully cooperative with the preparation of the report and he disclosed and assured the writer in both the psych and PSR reports that he had had enough of being engaged in the criminal lifestyle. He self-disclosed that he had been historically sexually abused by someone for a number of years as a child, and has not addressed that nor sought any professional assistance.

S.H. has hepatitis C. He denied being depressed. His testing showed a score in the one percentile range for vocabulary language. He denied any thoughts of self- harm. The writer of the report noted that he was conducive and assured the writer that he was wishing to put his criminal past behind him and start a new life, and was receptive to treatment and therapy. [ 9 ] Formal findings conclude an opiate dependence and crack cocaine dependence which is in remission because he is in custody, a reading disorder, Attention Deficit Hyperactivity Disorder and Anti-Social Personality Disorder.

Risk assessment measures were assessed with a conclusion that he is at a low-moderate risk for violence and a high risk for general criminal activity. [ 10 ] The court was presented with a handwritten letter of support from his mother. This is the same person who picked him up after he pulled the knife at Fresh Slice and only thereafter stopped when, he said, she knew that he did what he did.

However, of note to the issue of his mother being a good community support, when the RCMP investigated the matter his mother denied that she had knowledge about the incident, and it took the RCMP to show his mother, through video surveillance, what had occurred just before the Fresh Slice incident, and also that her licence plate was reported and provided after the Fresh Slice event. Thereafter, and only then did she relent and acknowledge her knowledge and participation in what had transpired. That is not a good community support for S.H.

This is the same woman about whom in his pre-sentence report, he self-reports the historical background of her drug use when he was growing up. Her letter commented about her son as happy doing chores and he is happy now seeking what he calls "a normal life." [ 11 ] The court was presented with a multi-page letter from his current girlfriend. [ 12 ] Crown counsel seeks to rely upon the codified principles of sentencing, including deterrence, denunciation and rehabilitation. [ 13 ] Defence counsel reviewed a series of five cases, none of which were close to the factual basis before me.

I acknowledge that no two fact patterns are identical, however, I found little guidance in the cases provided to me by defence counsel because the case law that she sought to rely upon included offences including a sole employee alone on duty, a robbery at 4:00 a.m. in the morning, a robbery of a pharmacy with the use of physical disguises, an aboriginal offender and thus sentencing has an additional component for consideration. None of the cases provided to me provided much guidance. [ 14 ]

Section 718 of the Criminal Code codifies the principles of sentencing that must be taken into consideration which include deterrence, general and specific deterrence, denunciation, protection of the public, rehabilitation, reparation and the promotion and recognition of a sense of responsibility by an offender, including acknowledging the harm done to the victims and to the general public. [ 15 ]

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

Further, s. 718.2 sets out additional considerations that should be made in determining the sentence to be imposed which should include considerations of ethnicity, abuse, the age of the victim, whether there was an abuse of a position of trust, the impact upon the victim, if it was terrorism; and that if a sentence should be imposed, it should be similar within a range of similar offenders in similar circumstances, and that a sentence, if consecutive, should not be unduly lengthy, that there should be no deprivation of liberty upon an offender if less onerous sanctions are available and appropriate, and that all other sanctions outside of imprisonment have been carefully considered.

[16] I am mindful of the decision of R. v.

M. (C.A.), (SCC), [1996] 1 SCR 500, a 1996 decision of the SupremeCourt of Canada wherein retribution was specifically addressed as a consideration including at paragraph 80 wherein the Supreme Courtstated: …an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of theoffender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normativecharacter of the offender's conduct… retribution requires the imposition of a just and appropriate sentence. [17] Sentences for each offence are in the form of a range.

Indeed, there is no one fact pattern that will match another, hence therequirement in the codified provisions of the Criminal Code of Canada to ensure that all of the principles of sentencing as set out aboveare considered, weighed and balanced carefully. [18] The offence to which S.H. has entered a plea of guilty is indeed a violent offence and it included the use of a weapon.

In R. v.Brogan (1999), BCCA 278, a 1999 decision of the British Columbia Court of Appeal, at paragraphs 10 and 11 the British ColumbiaCourt of appeal succinctly set out: The age of the offender, his previous criminal experience, the level of violence, the number of offences, the level of premeditation,whether the perpetrator was disguised or not, the type of weapon used and how it was used, the possibility of rehabilitation, therequirement of deterrence in a particular community, are some of the factors which serve to distinguish one fact pattern from another.

Section 718.2 imposes a principle of consistency. Since no two offences are ever entirely the same, the

section mandates that the courtdetermine a general range for similar offences for similarly situated offenders. Offences and offenders can be generally categorized but amultitude of factors... will distinguish the details. [19] In Brogan, the court concluded that an appropriate range would be between two to nine years. [20] In R. v.

Marshall (2008), BCCA 506, a 2008 decision of the British Columbia Court of Appeal, a sentence of 27 months wasimposed with a fact pattern of an accused having 14 prior convictions, a threat of a weapon being produced, but no weapon actuallybeing produced, and there was, regrettably, physical violence to the victim. [21] In R. v.

McPherson (2003), BCCA 183, a 2003 decision of the British Columbia Court of Appeal, a young accused who wasintoxicated brandished a screwdriver to rob a 16-year-old victim of $30 from an ATM, and in that the British Columbia Court of Appealimposed a sentence of 27 months, which was upheld. [22] In the further British Court of Appeal decision of R. v. McDonald (2006), BCCA 317, a 2006 decision, the Court of Appealreduced the sentence to four years for three robberies where in each offence a knife was brandished. In that matter, Mr. McDonald,similar to S.H., was a heroin addict with an extensive criminal record.

However, for Mr. McDonald there was a significant 13-year gapfrom the date of his prior conviction and entry. [23] I have also considered the British Columbia Court of Appeal decision of R. v. Anderson (2007), BCCA 462, a 2007 decision,wherein the Court of Appeal imposed a four-year sentence for a robbery with a knife, and Mr. Anderson in that matter was on a CSO atthe time of the robbery.

I am mindful that S.H. at this time, as an aggravating factor, was on probation. [24] In considering the sentence to impose, and in addition to considering case law and carefully applying the relevant provisions ofthe Criminal Code, the court must carefully consider both the aggravating and mitigating factors unique to that offender. Again, inBrogan at paragraphs 10 and 11, the Court of Appeal has succinctly set out those factors that this court must carefully consider. [25] Acknowledged aggravating factors include S.H. has an extensive criminal record, and the step-up principle must be considered.

S.H. was on probation at the time of the offence. He brandished a knife and it was a knife long enough that the young victim described itas being the length of a banana.

It was a very definitive, implicit threat to the victim in the brandishing of the knife. [26] Mitigating factors include, that counsel submit, that this was an early guilty plea, that he expressed empathy for the victim andgeneral remorse, that he has disclosed a history of sexual abuse as a child, and that he has family support. [27] I do not find that his family support is strong and consider it neutral, given the historical contents of his family background,including his mother, and of course the role that his mother played in obstructing this criminal investigation. [28] I am mindful in considering the principles of proportionality, the degree of responsibility of the offender and the principles ofsentencing. [29] Counsel agree that S.H. was in custody, as of last Wednesday, for six months and 17 days, and with enhanced credit at 1.5, as ofMay 17th he would receive credit of nine months and 26 days.

This is a joint submission that he would receive an additional 18 monthsin custody to be followed by a three-year probation order. [30] I have carefully considered the principles of denunciation and deterrence. I have considered the standards of this community. Ihave also been mindful of the principle and the guiding principles of rehabilitation; however, I am putting less emphasis on the principleof rehabilitation, given S.H.'s extremely lengthy, prolific criminal record entries and his age. He is not a young man. [31] I have carefully considered the joint submission.

The case law provided to me by defence counsel regrettably did not provideme guidance. I am mindful of the decision of the British Columbia Provincial Court in the Surrey Registry in the decision of R. v.MacKenzie (2015), BCPC 0382, wherein Mr. MacKenzie was sentenced to a period of three years of incarceration to be followed by aprobation order. Those oral reasons that I gave provide a more current review of the sentencing principles of robbery in that offence.

[ 32 ] That being said, I will accept the sentencing submission as a joint submission. However, Mr. H., you are put on formal notice, I find that overall the deterrence in the period of incarceration proposed to be light. I will accept it. Mr.

H., by my comments you are put on notice that you are aware that I will accept the joint submission, albeit I find it light, and you are to be followed thereafter by a three- year probation order. [ 33 ] There will be a s. 109 mandatory lifetime firearms ban. [ 34 ] There will be a mandatory DNA order to follow. [ 35 ] Terms of the probation order as follows: Keep the peace and be of good behaviour; appear before this court as and when required to do so. [ 36 ] Within 72 business hours of your release you are to report in person to your probation officer and at that time provide your probation officer with your current residential address and telephone number, and do not change that address or telephone number without the prior written consent of your probation officer. [ 37 ] You are to report thereafter when directed, however, all reportings will be required to be in person. [ 38 ] You are required to attend, participate in and complete any and all such counselling, assessments and treatment as so directed by your probation officer, including but not limited to violence prevention, anger management, counselling, substance abuse programs and including, if so directed, residential treatment. [ 39 ] You may not possess any weapons as defined by the Criminal Code of Canada including firearms, imitation firearms, ammunition and explosives, save and except knives only to be used for the immediate preparation and consumption of food and in the actual course of lawful employment. [ 40 ] You are to have no contact directly or indirectly with A.P.( 1 ), and A.P.( 2 ). [ 41 ] You are not to go within a one block radius of any known, or may become known to you, residence, workplace, place of school and place of worship of A.P.( 1 ) and A.P.( 2 ). [ 42 ] You are to abstain absolutely from the possession and consumption of alcohol and those drugs as defined by the Controlled Drugs and Substances Act , save and except if you have on you at all times a valid prescription duly authorized to you by a physician licensed to practice in the Province of British Columbia. [ 43 ] You are not to go within a one-block radius of 14357 104 Avenue, Surrey, British Columbia. [ 44 ] You are to keep a copy of these terms and conditions on you at all times when you are outside your place of residence. (REASONS FOR SENTENCE CONCLUDED)