R. v. Sorbara Date:, 2017 BCPC 77

Citation: R. v. Sorbara Date: 20170309 2017 BCPC 77 File No: 219353, 244836 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. JASON KELLY SORBARA REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: L. Gault Counsel for the Defendant: M. Fingas Place of Hearing: Vancouver , B.C. Date of Hearing: February 21, 2017 Date of Judgment: March 9, 2017

INTRODUCTION [ 1 ] Jason Sorbara entered guilty pleas to the offences of threatening to burn Judge Hamilton’s home and threatening to cause bodily harm to Michael Haynes. A sentencing hearing was held on February 21, 2017 and the matter was adjourned for reasons and sentence. [ 2 ] At the sentencing hearing, Crown counsel argued that a fit and appropriate sentence was a 5 month custodial sentence for the threat to Judge Hamilton followed by a 2 month custodial sentence for the threat to Mr. Haynes. The Crown also seeks a probation order and ancillary orders.

The Crown opposes a conditional sentence order arguing that a conditional sentence order would not meet the purpose and principles of sentencing. [ 3 ] Counsel for Mr. Sorbara argues a fit and appropriate sentence would be a global custodial sentence in the range of 4-6 months to be served in the community by way of a conditional sentence order. Counsel does not oppose placing Mr. Sorbara on probation or granting the ancillary orders. [ 4 ] The task for this court is identify a fit and appropriate sentence and to consider if the sentence could be served in the community by way of a conditional sentence order.

CIRCUMSTANCES OF THE OFFENCES [ 5 ] On September 12, 2016 Mr. Sorbara was placed on a 6 month conditional sentence order for the offence of mischief. A term of the order required Mr. Sorbara to meet with his conditional sentence order supervisor. [ 6 ] Mr. Sorbara did not meet with his supervisor as directed and therefore his conditional order was suspended. On September 15, 2016 a warrant was issued for his arrest and on October 17, 2016 the Vancouver Police located and arrested Mr. Sorbara. For reasons that are not clear, Mr.

Sorbara was not held in Vancouver, rather, he was transported to the Surrey Provincial Court. [ 7 ] Mr. Sorbara remained in Surrey cells until he appeared before Judge Hamilton at about 4:30 p.m. At that time Mr. Sorbara was without counsel and a review of the transcript shows there were discussions as to why he was appearing in Surrey. [ 8 ] The decision was made to remand Mr. Sorbara to appear the next day in Vancouver Provincial Court. When Mr. Sorbara realized that he would be returned to Vancouver the following exchange took place: THE ACCUSED: Why should I do that? I just spent the whole fucking weekend.

THE COURT: Okay. That’s it. You’re going to appear in court tomorrow for a bail hearing in Vancouver. THE ACCUSED: Why? THE COURT: Because that’s what’s happening. THE ACCUSED: You’re a fucking idiot. THE COURT: Yeah, okay. THE ACCUSED: I’m gonna fuckin’ find your fuckin’ house and then burn it down. THE COURT: That’s a problem. [ 9 ] Mr. Sorbara was transported to Vancouver and on October 21, 2016 he was released on an Undertaking for the allegation of having breached his conditional sentence order. Of note is, the charge for threatening Judge Hamilton had not been sworn by the date of Mr.

Sorbara’s release. [ 10 ] Mr. Sorbara’s next interaction with the authorities occurred on October 24, 2016. On this date, Mr. Haynes was working as a security guard at a local mall when he noticed Mr. Sorbara enter through the east doors and walk west in the mall. Mr. Haynes watched Mr. Sorbara and he noticed that he was acting strangely. Mr. Haynes was concerned for others in the mall as he felt that Mr. Sorbara was likely under the influence of drugs. [ 11 ] Mr. Haynes approached Mr. Sorbara and asked him to leave the mall. There was a brief verbal altercation and at one point Mr. Haynes blocked Mr.

Sorbara’s way. Eventually Mr. Sorbara made his way towards the exit and prior to leaving he told Mr. Haynes that he was going to come back and shoot him [ 12 ] A short time later, Mr. Sorbara re-entered the mall. Mr. Haynes approached Mr. Sorbara who produced a syringe and he told Mr. Haynes that if he came near him that he would stab him. Mr. Haynes moved away and called the police and Mr. Sorbara left the building. [ 13 ] The police responded to the area, located Mr. Sorbara and arrested him. As a result of being arrested and charged Mr.

Sorbara’ s conditional sentence order was terminated and he served the remainder of that sentence. He also consented to remain in custody on the instant charges. VICTIM IMPACT [ 14 ] I have read Judge Hamilton’s victim impact statement where he describes that the event was startling but without lasting

impact. He also commented that the event resulted in a period of anxiety within his family home. MR. SORBARA’S BACKGROUND [ 15 ] Mr. Sorbara is 29 years old. He was born in Guelph, Ontario. His grandparents, on his mother’s side were First Nations and they were residential school survivors. According to his counsel Mr. Sorbara does not have a strong connection to his First Nations heritage. [ 16 ] By way of family, Mr. Sorbara’s mother passed away in 2009. His father still lives in Ontario as does his sister who is a dentist. Mr. Sorbara has regular contact with them and he has their support. [ 17 ] Mr.

Sorbara’s parents divorced when he was a young child. He lived with his mother in a trailer park and this is where Mr. Sorbara was first exposed to drugs. He tried marihuana when he was 9 years old and by the time he was 15 he had used MDMA and cocaine. Mr. Sorbara left home when he was 16 and he has completed schooling to the mid-grade 12 level. [ 18 ] In 2007 Mr. Sorbara suffered a head injury in a motor vehicle accident which has resulted in lasting memory difficulties and tinnitus. While being treated for his head injury Mr.

Sorbara was prescribed pain killers which according to his counsel evolved into a heroin addiction. [ 19 ] Mr. Sorbara has worked at a number of labour jobs. He has worked in a plastic factory, in the fire proofing industry and in construction. Mr. Sorbara has been unemployed for the last couple of years. [ 20 ] As for his criminal history, Mr. Sorbara has a youth conviction in 2003. His first adult conviction was in 2006 and thereafter his record is fairly consistent until 2011 at which point there is a 2 year break. His record recommences in 2013 and then stops in 2014 and recommences in 2016. [ 21 ] Mr.

Sorbara has convictions for: assault, carrying a weapon, failing to comply with a recognizance, possession of a narcotic, assault with intent to resist arrest, mischief, theft, breach of probation and mischief. I note his record contains 9 convictions for failing to comply with court orders and at least 2 occasions where he committed offences while bound by probation. [ 22 ] With respect to the conditional sentence order that Mr. Sorbara was on when he threatened Judge Hamilton, a condition of the order was a requirement that he reside at Back to Basics which is a residential recovery house.

On the imposition of the conditional sentence order Mr. Sorbara failed to spend a night at the recovery house and it was only when released on bail did he go to a recovery facility. He did not remain at the recovery house as he left in a few days owing to a conflict with another resident. [ 23 ] Mr. Sorbara has tried to address his addiction without success. He has sought help from the following organizations: Onsite, Harbour Lights, Knight Castle Recovery, It’s Up To You Recovery, and other facilities in Ontario.

PURPOSE AND PRINCIPLES OF SENTENCING [ 24 ] The purpose and principles of sentencing are found in sections 718 - 718.2 of the Criminal Code .

Section 718 of the Code reads: The fundamental purpose of sentencing is to contribute to, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. Sentencing Objectives [ 25 ] In considering the circumstances of the offences and Mr. Sorbara’s personal circumstances, I am of the view that the primary sentencing objectives are denunciation and deterrence with some weight being given to Mr. Sorbara’s rehabilitation. [ 26 ] Through a denunciatory sentence this Court expresses society’s condemnation and abhorrence for the offences committed.

The principle of deterrence stems from the view that the certainty of a meaningful sanction will be an example to others who are inclined to commit crime thus resulting in a reduction of criminality. [ 27 ] The import of denunciation and deterrence in the circumstances of the instant case, is highlighted with the recognition that, those working in the justice system, be they police officers, probation officers, sheriffs, lawyers or judges must be free to perform their function without fear or harm.

This allows for the system to operate fairly thus ensuring that the peace, order and safety of our community is maintained. As such, criminal conduct that interferes or is likely to interfere with the administration of justice must be strongly denounced and deterred. [ 28 ] With respect to rehabilitation, I recognize Mr. Sorbara has made several attempts at overcoming his addiction and despite this I believe there are several reasons justifying the imposition of a sentence that supports his rehabilitation. Specifically, Mr. Sorbara is

relatively young, there are some breaks in his record, he has the support of family, and he has expressed a desire to rehabilitate himself.

Section 718.1 – Proportionality [29]

Section 718.1 of the Code mandates any sentence imposed must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. The import of proportionality was recently commented on in R. v. Safaarza-dehMarkhali, 2016 SCC 14, 2016 SCC14 where at paragraph 70 the court stated: 70 Proportionality in the sense articulated at s. 718.1 of the Code -- that a sentence be proportionate to the gravity of an offence andan offender's degree of responsibility -- is a fundamental principle of sentencing.

As LeBel J. stated for a majority of the Court in R.v.Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37, proportionality is "the sine qua non of a just sanction". It is grounded inelemental notions of justice and fairness, and is indispensable to the public's confidence in the justice system. LeBel J. went so far as toopine that "proportionality in sentencing could aptly be described as a principle of fundamental justice under s. 7 of the Charter": para.36 (emphasis added); see also R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 21.

LeBel J. also, however, recognized thatthe "constitutional dimension" of proportionality in sentencing is the prohibition of grossly disproportionate sentences in s. 12 ofthe Charter: para. 36. [30] In the circumstances of the threat against Judge Hamilton, the seriousness of the offence is found in the target of the threat, aswell as, the open nature of the threat, specifically a public courtroom. I mention this because such conduct serves to denigrate the justicesystem in the eyes of those present.

Despite these observations, I note the threat was not uttered with the intention of influencing thecourse of justice. In terms of moral responsibility, I observe Mr. Sorbara’s threats were impulsive and uttered when he was withdrawingfrom drugs. [31] As for the threat against Mr. Haynes, the seriousness of the threat is heightened given the context of the comments and Mr.Haynes, as a security guard, was highly visible with little protection. As for the degree of responsibility, I note that Mr.

Sorbara wasunder the influence of drugs at the time of his offence and therefore his moral responsibility is somewhat attenuated.

Section 718.2 – Other Sentencing Principles [32] Additional sentencing principles are found in

section 718.2 of the Code. The portions that apply to the instant case are: (

a) a sentence should be increased or reduced to account for any aggravating or mitigating factor related to the offender or theoffence. (

d) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

e) all available sanctions should be considered other than imprisonment that are reasonable should be considered for all offenderswith particular attention to the circumstances of aboriginal offenders.

Section 718.2 (a) – Aggravating and Mitigating Factors [33] I find the following to be aggravating, Mr. Sorbara’s criminal record which is lengthy and varied. Further, Mr. Sorbara wasbound by court orders at the time of his offences, and his offence was committed against a justice system participant. [34] Mr. Sorbara’s guilty plea is substantially mitigating. His guilty plea has not only saved the state the time and expenseassociated with prosecuting him, but he has also saved the witnesses the significant inconvenience associated with testifying. Finally, theguilty plea is an acknowledgment of his wrong doing and an implied expression of remorse.

Section 718.2 (d) – Combined Total of Sentences [35] The sentences imposed must be done with consideration for the aggregate total of custodial time. In this regard, if the courtaccedes to the sentences urged by the Crown Mr. Sorbara will have served an effective continuous custodial sentence of 13 months. Thisis broken down as follows, 6 months was the time remaining on the conditional sentence order, 5 months for threatening Judge Hamiltonand 2 months for threatening Mr. Haynes.

Section 718.2 (e) – Mr. Sarbora’s Aboriginal Heritage [36] The purpose of s. 718.2 (

e) is to reduce the over representation of First Nations person in our prison system and to encouragesentencing judges to consider restorative sentencing options. As such a sentencing judge must consider the unique or systemic factorswhich may have contributed to bringing an offender before the court and to consider what the appropriate sanction maybe given theoffender’s heritage: R. v. Gladue, (SCC), [1999] 1 S.C.R. 688. [37] I take judicial notice of the historical mistreatment of First Nation persons and the links to marginalization and criminalwrongdoing.

Specifically, I take judicial notice of the impact of, colonialism, displacement, and residential schools: R. v. Ipeelee, 2012SCC 13 , [2012] 1 S.C.R. 433. DECISION [38] I have carefully considered Mr. Sarbora’s circumstances and the circumstances of the offences. I am of a view that uttering athreat against a participant in the justice system is a serious offence, however, in the instant matter I have considered the context of thethreat, the aggravating and mitigating circumstances, and I am satisfied that imposing a total sentence of 75 days will address the relevantsentencing objectives.

As such, the record will reflect actual pre-sentence time served of 47 days with a credit of 71 days thus leaving abalance of 4 days. [39] With respect to the offence against Mr. Haynes, I find that the imposition of a conditional sentence order, to be served

consecutively to the above sentence, followed by probation will satisfy the requisite degree of denunciation while assisting Mr. Sorbora with his rehabilitation. [ 40 ] Accordingly, Mr.

Sarbara will be placed on a 2 month conditional sentence order with the following terms and conditions: – keep the peace and be of good behaviour; – appear before the court when required to do so by the court; – report to a supervisor within two working days of your release from custody at 275 East Cordova Street Vancouver BC and thereafter, when required by the supervisor and in the manner directed by the supervisor; – remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; – notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation; – you must not have any direct or indirect contact with Judge R.

Hamilton or Mr. Michael Haynes; – you must not attend at any residence, workplace or education institute known to you to be that of Mr. Michael Haynes; – you must not attend at any residence, or education institute known to you to be that of Judge R. Hamilton; – you must not possess any weapons as defined by

section 2 of the Criminal Code ; – while outside your place of residence you must not possess any knives unless you are immediately preparing or consuming food or immediately engaged in employment; – you must reside at a residence operated by Reaching Out Supportive Recovery Facility or any other recovery facility that your supervisor may direct; – you must obey all rules and regulations of your residence; and – you are to abstain from the possession and consumption of those drugs as defined by the Controlled Drugs and Substances Act except those drugs for which you have a medical prescription. [ 41 ] At the conclusion of your conditional sentence order you will be bound by a probation order for a period of 16 months.

The terms and conditions of your probation order are as follows: – you must keep the peace and be of good behaviour; – appear before the court when required to do so by the court; – notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. – within two working days of having completed your conditional sentence order you must report to a probation officer located at 275 East Cordova Street Vancouver BC and thereafter when and where required by your probation officer; – you must not have any direct or indirect contact with Judge R.

Hamilton or Mr. Michael Haynes; – you must not attend at any residence, workplace or education institute known to you to be that of Mr. Michael Haynes; – you must not attend at any residence, or education institute known to you to be that of Judge R. Hamilton; – you must not possess any weapons as defined by

section 2 of the Criminal Code ; – while outside your place of residence you must not possess any knives unless you are immediately preparing or consuming food or immediately engaged in employment; – you are to abstain from the possession and consumption of those drugs as defined by the Controlled Drugs and Substances Act except those drugs for which you have a medical prescription; and – you must attend, participate in and successfully complete any counselling that you may be directed to by your probation officer.

This can include, substance abuse counselling and psychological counselling. [ 42 ] I have declined to impose the sentence requested by the Crown because the combined total would be unduly harsh, and there is little to assist with Mr. Sarbora’s rehabilitation. ANCILLARY ORDERS DNA [ 43 ] Pursuant to

section 487.051(3) of the Code, the Crown applies for an order that Mr. Sorbara provide a sample of his DNA. I must therefore consider if obtaining a sample of Mr. Sorbara’s DNA is in the best interests of the administration of justice. Factors to

consider include, Mr. Sorbara’s criminal record and the impact that an order would have on Mr. Sorbara’s privacy and security. [ 44 ] Accordingly, I note Mr. Sorbara has a lengthy criminal history, and I also note the taking of a sample is minimally intrusive with the results protected by statue. As such, I am satisfied that the best interests of the administration justify the taking of a DNA sample. Weapons Prohibition [ 45 ] After considering Mr. Sorbara’s background, his criminal record and his struggle with addiction I am satisfied that is not desirable in his interests or the interests of society for him to possess weapons. [ 46 ] As such and pursuant to

section 110 of the Code, Mr. Sorbara is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of ten years. ____________________________ The Honourable Judge R.P. Harris Provincial Court of British Columbia