R. v. Durrive Date:, 2011 BCPC 130

Citation: R. v. Durrive Date: 20110513 2011 BCPC 0130 File No: 212674-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ALEXANDER MARINO DURRIVE EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. BAGNALL Counsel for the Crown: M. Booker Counsel for the Defendant: V. Desroches Place of Hearing: Vancouver , B.C. Date of Hearing: May 13, 2011 Date of Judgment: May 13, 2011 [ 1 ] THE COURT: Alexander Durrive is to be sentenced today respecting three offences.

Informally, I can set them out as possession of a handgun for a purpose dangerous to the public peace, possession of a loaded handgun without authorization or licence, and possession of a controlled substance, in particular, cocaine. The charges all arose from events which occurred on April the 30th, 2010. [ 2 ] Mr. Durrive entered pleas of guilty to these three counts on March the 15th, 2011, which was the first of three days scheduled for the trial of these and two other charges.

Submissions respecting sentence were made on May the 4th, 2011, and I reserved my decision respecting sentence until today. [ 3 ] The circumstances which gave rise to the charges are as follows. Mr. Durrive went to a high-end jewellery store in Downtown Vancouver just before five o'clock in the afternoon on April the 30th, 2010. The store is always locked, it is staffed with a security guard, and customers must ring or buzz at the front door to be allowed entry. There were other customers in the store on the occasion when Mr.

Durrive went there. [ 4 ] He was allowed entry after a discussion with the security guard and a request that he remove his sunglasses. He did remove his

sunglasses and went into the store. During the time that he was in the store, he kept his right hand in his right pocket. He indicated to staff an interest in purchasing a watch as a gift for a relative. [ 5 ] The staff were somewhat suspicious of Mr. Durrive and they declined to take any watches out of their locked case. Mr. Durrive was described by the staff as nervous, somewhat red in the face, and shaking. It was noted by the staff that his left hand appeared to be unclean or dirty. It was also noted that Mr.

Durrive was wearing what appeared to be a brand new shirt because there was a little plastic tag indicating the size of the shirt which was on the back of the collar of the shirt and there were creases evident still in the shirt. [ 6 ] One of the salespersons saw what looked like the outline of a handgun in Mr. Durrive's right hand which, as I have indicated, he never removed from his pocket. There was some communication between the staff and the security guard. Concerned that a robbery was imminent, the security guard went outside the store to telephone 911 while Mr. Durrive was still in the store.

The security guard gave a detailed description of Mr. Durrive to the dispatcher. [ 7 ] Mr. Durrive, shortly after that, left the store and he walked west on West Georgia Street in Vancouver. He was approached within two to three minutes and approximately two to three blocks by police officers who were responding to the 911 call. These two officers happened to know Mr. Durrive from previous occasions. They hailed him and asked him to stop so that they could speak with him, but he ultimately fled. One of the officers saw the grip of a handgun in Mr. Durrive's pocket. [ 8 ] Mr.

Durrive ran away from the officers until he was boxed in in a parking lot. He was not compliant with the officers' directions even then. When they threatened to fire a Taser at him and it appeared that that was about to occur, he finally did lie down and become more compliant. [ 9 ] The officers found a handgun in his right pocket. It was loaded with nine cartridges in the magazine. There was a small quantity of cocaine found on Mr. Durrive as well. [ 10 ] It is somewhat disturbing that after he was arrested, Mr.

Durrive said to the officers who had chased him, and I am quoting what the Crown told me, he said, "If I didn't respect the two of you, I would have clipped you," and clipped, of course, is a reference to being shot. [ 11 ] Mr. Durrive has a criminal record which began in 2004. The convictions on his record, I am not going to list all of them, the record has been filed in these proceedings, but the convictions that are directly relevant to the charges that I must address are as follows. [ 12 ] On September the 9th, 2005, Mr.

Durrive was convicted of possession of stolen property, dangerous driving, and flight from the police. He received a one-day sentence on each count, having spent five months in custody, and he was placed on probation for a year. [ 13 ] On May the 29th, 2006, he was convicted of possession of a controlled substance. He was sentenced to one day incarceration having served seven days in custody. [ 14 ] On September the 22nd, 2006, he was convicted of possession of a weapon for a purpose dangerous to the public peace. In this case it was a knife.

He was sentenced to be incarcerated for two days having spent two months in custody. [ 15 ] On January the 31st, 2007, he was convicted of two charges, possession of a controlled substance and carrying a concealed weapon. In this case, the weapon was a prohibited form of a knife. He was sentenced on both of these charges to serve 10 days in custody having been in custody already for four days. [ 16 ] On December the 10th, 2007, he was convicted of trafficking in a controlled substance.

He received a one-day sentence having spent 87 days in custody and the required order was made under s. 109 for a period of 10 years so that order would obviously have been outstanding when the charges arose which concern the court today. [ 17 ] On June the 24th, 2008, he was convicted of carrying a concealed weapon. This was another knife which was by its nature a prohibited knife. He received a sentence of one day having spent 12 days in custody and he was placed on probation for six months. [ 18 ] On July the 16th, 2008, he was charged with breach of a probation order.

The particular condition in question was a condition that he possess no weapons. He was found in possession of a large machete. The sentence was one day in custody. Mr. Durrive had spent 11 days in custody at the time of his sentencing. [ 19 ] On November the 27th, 2008, Mr. Durrive was convicted of trafficking in a controlled substance and possession of a controlled substance.

On these two charges, he received a sentence of three months incarceration having spent 15 days in custody which was considered as if it were 30 days. [ 20 ] On December the 15th, 2008, he was convicted of possession of a prohibited weapon. He was seen apparently engaging in a drug transaction and he was arrested. When he was searched pursuant to that arrest, a loaded Glock handgun was found in the waistband of his trousers. [ 21 ] The sentence which resulted was 10 months incarceration. Mr. Durrive had spent one month in custody which the court considered as if it were two months.

In addition, under s. 110, he was prohibited from possessing any of the weapons listed in that

section for a period of 10 years. [ 22 ] In addition to these convictions and others, Mr. Durrive has been convicted of breaching probation orders five times. [ 23 ] The Crown takes the position that the court in this sentencing proceeding must focus on general deterrence and denunciation in all of the circumstances and that the appropriate range of sentence is four-and-a-half to five-and-a-half years. I note that the minimum sentence with respect to Count 4 on the Information, possession of the loaded handgun, would be three years in custody.

[ 24 ] Mr. Durrive is 47 years old. He has experienced a great deal of loss in the last six years. One of his three children died in an accident in 2005. His parents succumbed to cancer, one in 2006 and the other parent in 2009. He lost the second of his three children in 2010, just a matter of days before the events occurred which concern us today. [ 25 ] On his behalf, it is said that he has been depressed over many years and on occasion suicidal, and that he was in that state on April the 30th last year.

I was told that he was considering ending his own life either directly or in the fashion known as "suicide by cop." [ 26 ] I was told that Mr. Durrive was, in fact, in the jewellery store to look for a watch and not to rob the store. He had over $700 in cash on his person at the time. It is notable, of course, that Mr. Durrive was apparently interested in Rolex watches and $700 would not be adequate to purchase a watch of that sort. [ 27 ] I was told and I accept that Mr. Durrive has made productive use of the time he has been in custody.

Letters filed on his behalf make it clear that his emotional stability is improving and that he has been attempting to deal with the loss of the members of his family. [ 28 ] Mr. Durrive addressed the court after counsel made submissions on his behalf. He told me that he is not the man that he was and that he wishes to have "another chance" to be with his daughter. [ 29 ] Mr. Durrive's counsel suggested that the minimum sentence available here which would be three years is the appropriate sentence. [ 30 ] I certainly accept that Mr. Durrive was grief-stricken on April the 30th, 2010.

I cannot accept, though, that he went into the locked jewellery store wearing a shirt with the size tag still on it and carrying a loaded handgun for the purposes of purchasing a Rolex watch as a gift for his father-in-law. The suggestion that he was considering "suicide by cop" is utterly inconsistent with his actions and, in addition, with his comment to the police officers who arrested him after he was apprehended. [ 31 ] The fact is, though, that Mr. Durrive did not commit a robbery. He left the store.

He fled from the police and he was uncooperative and created a situation of great danger while he was uncooperative, but ultimately he began to obey their directions. But for these two choices that Mr. Durrive made, and they are significant, the situation might have had extremely tragic results. [ 32 ] Having said that these choices that Mr. Durrive made were significant, I do not ignore the incredible danger that he did create by his other actions. There are many obvious aggravating aspects to the circumstances. Mr. Durrive was on two court orders not to possess weapons.

The weapon that he possessed was the same sort of weapon that he possessed the last time that he was convicted of this sort of offence. I will not list the other aggravating circumstances. They are obvious. [ 33 ] There are a few mitigating aspects. I have already referred to the letters which have been filed which suggest that there may be some hope for Mr. Durrive's rehabilitation, but given his record and the fact that he was prohibited from possessing any firearm at the time, the minimum sentence is not appropriate with respect to Count 4 on the Information.

The other counts to which he has recorded pleas of guilty are going to be in effect subsumed into the sentence which will result on that count. [ 34 ] The appropriate sentence here is at the lower end of the range suggested by the Crown. That sentence is four-and-a-half years. Mr. Durrive has been in custody for one year. He will therefore serve three-and-a-half years and sentence will be allocated as follows. [ 35 ] On Counts 1 and 4, he will serve on each count three-and-a-half years, those sentences concurrent one with the other. On Count 5, he will serve six months.

That sentence will also be concurrent with the other two sentences. [ 36 ] I will make the required order under s. 109 for a period of Mr. Durrive's life. [ 37 ] I will order forfeiture of the firearm that was seized from him. [ 38 ] There will be no surcharges with respect to these matters. [REASONS FOR SENTENCE CONCLUDED]