R. v. Armitage, 2019 BCPC 311

Citation: R. v. Armitage 2019 BCPC 311 Date: 20191118 File No: 21419-1 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ZACHARY ARMITAGE AND JAMES LEE BUSCH ORAL REASONS FOR SENTENCE (RE THE ACCUSED ARMITAGE) OF THE HONOURABLE JUDGE R. CUTLER Counsel for the Crown: S. Rupertus Counsel for the Accused: R. Alberto Place of Hearing: Colwood , B.C. Date of Hearing: September 30, 2019 Date of Sentence: November 18, 2019 [ 1 ] THE COURT: The offender is before the court to be sentenced for escaping lawful custody contrary to s. 145 of the Criminal Code .

The circumstances, while perhaps perplexing, are not particularly complicated. [ 2 ] In July 2019, the offender was an inmate in a minimum security prison serving a sentence of approximately 14 years for

numerous offences including a violent aggravated assault and a violent robbery. At the time of the escape, he had served over eight years of the sentence and a parole hearing was scheduled to be heard within two months in September 2019. On July 7, 2019, while walking by the water with another inmate on the corrections facility's property, the two prisoners decided to escape by walking along the shoreline during low tide. [ 3 ] The two were at large for approximately two days before being arrested.

During that period, there was a manhunt for the escaped prisoners and, given the inmates' previous violent records, there was understandably great concern in the community. The Crown does not allege that the offender committed any offences while he was unlawfully at large, although at the time of the offender's arrest, he was found to be in possession of drug paraphernalia.

Since his arrest, the offender has been held at a maximum security institution continuing to serve the remainder of his sentence. [ 4 ] Given the offender's prior violent record and his history of escaping lawful custody, including four prior convictions, I was perplexed as to why at the time of his escape the offender was serving his sentence at a minimum security institution.

This situation was particularly troubling as the information provided to the Court indicated that the offender had recently escaped in 2016 and less than two years later, in February 2018, he had been assessed as a medium security or moderate risk to escape on the security reclassification scale.

However, a week later, that assessment had been overridden to minimum security or low risk to escape and, two months after the reassessment, he was transferred to the minimum security facility at William Head Institution on Vancouver Island from where he escaped. [ 5 ] At the earlier hearing of this matter, I asked the Crown to provide the Court further information explaining the reasons for the offender being held in a minimum security facility.

Crown counsel has since provided the Court with the internal report prepared within Corrections Services Canada recommending an override of the initial assessment and promoting the offender's transfer to the minimum security prison at William Head. The report provides an extensive assessment of the offender's positive efforts and progress to rehabilitate himself and the opinion that the offender presented a low escape risk. The transfer was part of a long-term gradual reintegration plan.

His case management team did not believe he posed a risk to escape or to attempt to escape. [ 6 ] The offender's escape after his transfer to a minimum security institution is understandably disconcerting to the public. The public is entitled to expect that those incarcerated for violent criminal conduct and who have an extensive and recent escape history are rarely, and only with solid reasoning, placed in a position where escaping incarceration may be achieved by merely walking along the shoreline at low tide.

And, when such an escape occurs, the public ought to be provided a full explanation of the process leading to the decisions made by those responsible. It is essential the public and the courts have complete confidence in our corrections institutions. [ 7 ] Hopefully, this incident has resulted in Corrections Services Canada reviewing its practices to better avoid such situations in the future. I will not say any more on the topic as this is not the forum to address any shortcomings of our corrections agencies. [ 8 ] The maximum sentence for this offence is 24 months.

The Crown seeks a sentence in the upper range, in excess of 16 months. Counsel for the offender submits a sentence of approximately six months and no higher than nine months would be appropriate in the circumstances. [ 9 ] It must be underlined that this offence is not a prison breach involving a break from a prison by the use of force or violence, which is prohibited under s. 144 of the Criminal Code and provides for a maximum sentence of 10 years' incarceration.

It is also worth noting that this was not a situation involving a breach of institutional rules or privileges at the lower end of the spectrum of committed escapes, nor does it fall in the more serious category of a planned escape from a fortified edifice or facility. [ 10 ] In reviewing the jurisprudence in this area, a recent appellate court decision, R. v. Park , 2016 MBCA 107 , addressed the offence of being unlawfully at large and the general ranges for sentencing such offences.

The Court stated at paragraph 45: In conclusion, upon considering these cases, it seems that lower sentences of three months or less are generally imposed where the circumstances point to an accused “overstaying” a pass or curfew. Sentences of four to six months are usually given in circumstances where the accused has been at large for a longer period and/or escaped from a minimal custodial facility.

Sentences over six months are generally reserved for those accused persons with a prior record for being unlawfully at large, or sometimes in situations where an accused has committed a serious crime while at large. [ 11 ] I should indicate that while determining the range of sentencing may be a helpful starting point, the Court must be mindful that ranges established for sentencing for a particular offence are only guidelines as the Court must consider all the factors and circumstances in a particular case and apply the various principles of sentencing, which are set out in the Criminal Code and the jurisprudence to arrive at a fit sentence.

In this regard, sentencing is an inherently subjective and highly individualized exercise tailored to the gravity of the offence, the blameworthiness of the offender, the harm caused by the crime, and the particular circumstances of the offender. The Court must assess the specific circumstances of the offence and the offender. The Court must review the nature of the offence and address all aggravating and mitigating factors. [ 12 ] It is trite to state that the sentence in these sorts of cases must be meaningful to deter both the offender before the court and any other inmates who may be contemplating an escape.

The primary consideration in sentencing an offender for escaping lawful custody is general deterrence, with a view to preserving the integrity of the custodial system. In addition, where, as in this case, a repeat offender is involved, specific deterrence is an essential consideration. ( R. v. Preddy , 2011 BCCA 324 ) [ 13 ] To protect the administration of justice, it is imperative the Court ensure jail sentences, perhaps the most significant order the Court may issue, are obeyed.

As well, it is important to recognize and support the difficult work of those employed at corrections institutions and the responsibilities they are tasked with at the various facilities across Canada to ensure incarcerated offenders, who have been removed from the community, do not attempt to escape.

General deterrence demands that inmates are fully aware and recognize that escaping lawful custody will result in further penal sanctions to those they were serving at the time of the escape. [ 14 ] Specific deterrence is of particular concern in this matter given this offender's prior history of escaping lawful custody. The jurisprudence indicates that prior convictions for escaping lawful custody are particularly aggravating in these cases ( R. v. Preddy ) .

[15] The offender has been convicted of escaping lawful custody on four prior occasions with the last resulting in a sentence of 90days' imprisonment. As well, since being in custody on his current sentence, he escaped in 2016 from a healing lodge nine days after hisarrival. No criminal charges were laid on that occasion, although it was recorded on his institutional record.

This last escape occurredapproximately two years before the escape that brings him before the Court on this occasion. [16] The offender must understand in no uncertain terms that he is to cease this activity and that any further escapes will be met withincreasingly severe penalties. [17] With this in mind, there are mitigating circumstances supporting a lower sentence than otherwise might have been imposed.

Theoffender has entered an early guilty plea and, as a result of the escape, he has now had his scheduled parole hearing cancelled, and willlikely be spending more time in custody serving his current sentence than might otherwise have been the case. [18] As well, this case requires consideration of Gladue factors. The offender's experiences being raised as an Indigenous personhave impacted his past and current personal circumstances.

These factors are helpful in providing context both for evaluating specificinformation relating to this offender and understanding the reckless decision made by the offender to escape. [19] The offender is a 30-year-old Indigenous first time federal offender serving a 14-year sentence imposed on May 27, 2011. Heexperienced a troubled childhood with transiency, family breakdown, and was the victim of family violence. He engaged in substanceabuse at the age of 12. The government child protection agency was engaged with the offender from age 11 to adulthood.

The offenderlacked stability and consistency in both his residence and education. He did not complete high school. [20] Past assessments of the offender indicate that there are concerns with his emotional management and his ability to adhere to onesolid plan. Reports indicate his mode of speaking, his demeanour, and his inability to remain focused give the appearance of someonemuch younger than his 30 years. He suffers from attention deficit hyperactive disorder for which he has received medication in the past.As well, he has been diagnosed with oppositional defiant disorder.

He has been assessed as possessing poor decision-making skills and isplagued by impulsivity and a lack of maturity.

It has been recommended that the offender needs to re-engage in a maintenance programand should begin addressing his past trauma through a personal counsellor. [21] Despite these disadvantages, he has taken positive strides in his personal development during his incarceration and has gainedinsight into the precipitating factors of his offending. [22] It is important to indicate that the offender is not entitled to credit for time served as his custodial status since his arrest on thisoffence was not as a result of him being charged for this offence. [23] Moreover, it would be counterintuitive and counterproductive to not impose a sentence consecutive to his current sentence.

Aconcurrent sentence will provide little deterrence for other inmates who may be contemplating an escape, particularly if they are of theunderstanding that the ramifications would simply be to serve the sentence for the unlawful escape concurrently with the sentence beingserved at the time of the escape (R. v. Preddy). [24] With this in mind, the Court must be particularly mindful of the totality principle in determining a fit sentence. The Court mustensure that when imposing a consecutive sentence to an earlier sentence, the cumulative sentence is not overly harsh to the offender.

Thesentencing judge is required to take a "last look" back at the earlier sentence and make any appropriate adjustments so that theconsecutive sentence is not unduly crushing to the offender. [25] While the totality principle is usually applied when a court is sentencing an individual simultaneously for numerous offences, itapplies equally when the Court is determining an appropriate sentence which will apply consecutively to an unexpired sentence stillbeing served by the offender, but only to the unexpired portion (R. v. Park). [26]

Section 718.2(

c) of the Criminal Code is applicable to the Court's considerations in this matter. In this regard, “[t]he unexpiredportion of the prior sentence can address some of the public protection and rehabilitation concerns of the sentencing court with respect toan offender being sentenced for a new offence” (R. v. Park, para 10). Our Court of Appeal in R. v. Bueger (BK) (1994), (BC CA), 48 BCAC 266, stated: A lesser sentence on the current offense may suffice with the knowledge that the accused will be isolated from society because of parolerevocation on a previous sentence.

Also, the additional time in custody on account of revocation may allow for the completion ofprograms for rehabilitation and skill training and thereby lessen the requirement for what would otherwise be a longer sentence. (para 21) [27] Similarly, the Ontario Court of Appeal in R. v.

Johnson (F), 2012 ONCA 339, indicated that the sentencing judge must: … determine how much weight to give to the existing remaining sentence by assessing whether the length of the proposed sentence plusthe existing sentence will result in a “just and appropriate” disposition that reflects as aptly as possible the relevant principles and goalsof sentencing in the circumstances. (para 25) [28] The Court must be mindful of the prospects of the offender's rehabilitation and that the sentence being proposed not be so heavyas to crush the offender and his motivation to reintegrate with society upon his release.

I note that the offender's warrant expiry date forhis current sentence is March 30, 2025. [29] Based on the offender's prior criminal record, in particular, the numerous prior escapes, a sentence in excess of one year andeven at the higher end of the range as sought by Crown might be appropriate. However, when one considers the various mitigatingfactors, the offender's personal circumstances, and the totality principle, I am satisfied that a sentence of one year is appropriate in thiscase and I am so ordering.

The one-year sentence will be served consecutive to his current sentence. [30] It is hoped that this sentence will deter other inmates from contemplating escaping lawful custody and, as well, act as adeterrent for this specific offender before me. At the same time, it should allow the offender to be motivated to continue in his efforts to

rehabilitate himself while making it clear to the offender that any further escapes will result in a further significant sentence. [ 31 ] Lastly, given his past violent conduct and his continued persistence to escape lawful custody, I believe it is appropriate and in the best interests of the administration of justice to make an order in Form 5.04 of the Criminal Code authorizing the taking of samples of bodily substances from the offender for the purpose of registration in the DNA national databank. (REASONS FOR SENTENCE CONCLUDED)