R. v. Davidson, 2011 NSPC 14

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Davidson, 2011 NSPC 14 Date: March 21, 2011 Docket: 2210542, 2217207, 2217208 Registry: New Glasgow Between: Her Majesty the Queen v. Jeremy Logan Davidson Judge: The Honourable Judge Del Atwood Heard: February 23, 2011 in New Glasgow, Nova Scotia Written decision: March 21, 2011 Charge:

Section 334 (b)(ii) Criminal Code of Canada Section 348(1) (

b) Criminal Code of Canada Section 348(1) (a) -463 Criminal Code of Canada Counsel: Jody McNeill, Counsel for the Crown Douglas Lloy, Counsel for the Defence The Court : [Orally] [ 1 ] The Court has for sentencing Jeremy Logan Davidson who has entered guilty pleas to a charge of breaking into a dwelling and committing therein the indictable offence of theft, para. 348(1) (

b) of the Criminal Code , and a charge of attempt break and enter with the intent to commit the indictable offence of theft, para. 348(1) (a)- 463 (a). Both of those offences involved a dwelling house and are therefore indictable. And, finally, there is a

summary-proceeding charge of theft of merchandise, property of Sobeys of a value not exceeding $5,000, sub- para. 334 (b)(ii). [ 2 ] The Court has a pre-sentence report that describes Mr. Davidson’s current

educational efforts. Mr. Davidson graduated from the Northumberland Regional High School in June of 2010. He is currently attending the Nova Scotia Community College Akerley Campus in the Halifax Municipality and is taking the welding program. It is a six-month course, and it is anticipated that Mr. Davidson will be graduating in February of 2011. His plans are to take a high- pressure welding course as well as a commercial diving course in order to be fully certified as a welder. The Court takes those facts into account in the imposition of sentence here today. The Court also recognizes Mr.

Davidson has no prior criminal record. [ 3 ] The principles of sentencing are set out statutorily in Sections 718, 718.1 and 718.2 of the Criminal Code :

Section 718.1 is the fundamental principle proportionality: Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 4 ] 718.2 of the Criminal Code states that a court that imposes a sentence shall also take into consideration the following principles: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (

v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

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

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 5 ] Suffice it to say that none of 718.2 of paragraph (a)(

i) through (

v) is applicable here. There is no evidence before the court that Mr. Davidson is an aboriginal offender.

[6] Section 348(1)(

d) of the Criminal Code prescribes a maximum penalty for break and enter, if the offence is committed in relationto a dwelling-house, of imprisonment up to imprisonment for life. There is no mandatory minimum sentence. [7] Pursuant to

Section 463(

a) of the Criminal Code, Everyone who attempts to commit or is an accessory after the fact to the commission of an indictable offence for which on conviction, anaccused is liable to be sentenced to imprisonment for life is guilty of an indictable offence and liable to imprisonment for a term notexceeding fourteen years. [8] As per. S. 787 of the Code, the general penalty for a

summary conviction offence is a maximum fine of $2,000 or a sentence ofimprisonment of six months or both. The court takes into consideration those ranges of penalties in considering the imposition ofappropriate sentences with respect to the charges before the court. Obviously, the most serious offences here are the offences involvingthe break and enter and the attempt to break and enter. [9] The Crown has referred to the leading authority of R. v. Zong (1986), (NS CA), 72 N.S.R. (2d) 432 (A.D.). The Court is cognizant of the outcome in the case of R. v. Leaver (1986), (NS CA), 75 N.S.R. (2d) 95.

The court isalso familiar with the decision out of the Nova Scotia Supreme Court, Appeal Division, as it was constituted then, in R. v. DonaldChristopher Keans [1991] N.S.J. No. 21, as well as the most recent decision out of our Court of Appeal in R. v. Adams (2010), 2010NSCA 42 , 291 N.S.R. (2d) 206. [10] At paras. 38 and 42 of the Adams decision, Bateman J.A. of the Nova Scotia Court of Appeal reemphasized the three-year benchmark for break and enter prescribed by the Court of Appeal of this Province.

Bateman J.A. made the appropriate observation that that three-year benchmark is a sliding scale and noted that the sliding scale maydescend to a two-year level in cases involving individuals who do not have prior records. [11] In this particular case, the court is of the view that the mitigating factors are Mr. Davidson’s young age. Although he is not a young person within the meaning of the Youth Criminal Justice Act, his date of birth of March 4th, 1992, would have had him at 18 years of age at the time of the commission of these offences. The Court recognizes andaccords full credit to Mr.

Davidson for his timely guilty plea. The Court recognizes that Mr. Davidson is currently engaged inendeavouring to improve his level of education in order to enter the workforce. [12] The aggravating circumstances in this particular case are particularly serious, and I am focusing here on the break and enter and the attempt. The court finds as a fact that Mr. Davidson and the individualswith whom he was an accomplice– Ms. Rae, Ms. Rankin and Mr. MacKenzie– engaged in a significant degree of preparation andcalculation in the commission of those two offences. Particularly aggravating is the level of Mr.

Davidson’s intrusion into the residenceof Ms. Johnson. Mr. Davidson is implicated extensively in converting the property stolen from the Johnson property into cash. In thecourse of doing so, Mr. Davidson passed himself off as a family member of Ms. Johnson’s. Mr. Davidson impersonated otherindividuals in order to divert suspicion from himself when he went to various retail merchants and sought to exchange for cash therecently purchased merchandise he had stolen from the Johnson home. [13] This was not a case of a random break and enter. The Johnson residence was targeted by Mr.

Davidson and the others with whom he was involved, specifically because of the fact that Mr. Davidson had insideinformation from Ms. Rae (who was an acquaintance of one of the members of the Johnson family) that led him to conclude, indeedcorrectly, that this was a residence that was vulnerable to break and enter. [14] In the court’s view, the attempt break and enter is sufficiently disconnected in time as not to form part of a continuing offence. This is not a situation of Mr.

Davidson being involved in a series of break and enterson the same date in the same locale, essentially taking advantage of an opportunity that might present itself, say, in the course of a stringof break and enters in a single commercial premises where there are a number of businesses under one roof, or a string of cottage breakand enters involving unattended seasonal residences that happen to be in close proximity to each other. [15] In this particular case, Mr.

Davidson chose to return to the Johnson residence as a result of a calculation that that residence was vulnerable to unlawful entry and was a trove of readily moveable propertythat Mr. Davidson believed he would be able to convert into cash. The fact that on that second occasion Mr. Davidson was not able togain entry had nothing to do with Mr. Davidson having had second thoughts. Instead, it had to do with the fact that the homeowner leftthe property locked. [16] The Court takes into account the sentencing decision of this court from last

December in the case involving Anthony Demtri Robson. Although it is indeed correct, as Mr. Lloy has pointed out, that Mr. Robson,unlike Mr. Davidson , had a lengthy Youth Justice Court record, the distinctive feature of Mr. Robson’s crime was that it was essentiallyrandom. It occurred while Mr. Robson was under the influence of an intoxicant, and involved no degree of sophisticational planning. Basically, Mr. Robson walked in the back door of an occupied residence where he had no business being. After engaging the occupantsof that residence in a conversation for a brief period of time, Mr.

Robson proceeded to leave that residence with the purse of ahomeowner. Basically, a grab and dash: a crime of spontaneity and opportunity, which is not the case with Mr. Davidson’s calculatedand planned conduct. [17] In the court’s view, the break and enter into the Johnson residence was a serious offence involving a high degree of calculation and preparation. The court, as well, is entitled to draw the common-senseinference that residential break and enters result typically in high degrees of victim impact. Home owners have a rightful expectationthat they will be safe and secure in their own homes.

It is common knowledge that victims of break-and-enter crimes typically endure aprofound loss of expectation of privacy, security and safety in their homes. Additionally, Mr. Davidson’s degree of responsibility isextremely high. The seriousness of the offence is extremely high. [18] I turn myself to consideration of the principles set out in

Section 742.1 of the Criminal Code dealing with the imposition of conditional sentences. If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752, a terrorism offence or acriminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or anoffence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and issatisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent withthe fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising theoffender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’scompliance with the conditions imposed thereunder. [19] I apply the principles set out in R. v.

Proulx (2000), 2000 SCC 5 , 140 C.C.C. (3d) 449 (S.C.C.). In deciding whether to impose a conditional sentence, I must not proceed by way of a rigid two-step process whereby thelength of the term of imprisonment is fixed, and then the decision is made whether to impose a conditional sentence. While a two-stageprocess is involved in the decision-making process here, at the first stage I consider merely whether to exclude the two possibilities of apenitentiary term or a non-custodial term.

In making this preliminary determination, I need only consider the fundamental purpose andprinciples of sentencing to the extent necessary to narrow the range of sentences for this offender. If the first-stage analysis admits of thepossibility of a conditional sentence, it would be at that point that I ought to consider the principles of sentencing in a comprehensiveway in determining whether to impose a conditional sentence. [20] In this particular case, in applying the principles as set out in R. v.

Proulx, it is the court’s view that a penitentiary sentence is indeed necessary in this case; therefore, the court excludes from consideration thepossibility of a conditional sentence. In the court’s view, applying the principles of sentencing set out in R. v. Proulx and R. v. Adamsgiven Mr. Davidson’s high degree of responsibility in two very serious offences, in circumstances involving an invasion or unlawfulentry into an individual’s private dwelling, the need for denunciation and deterrence is sufficiently high as to warrant the imposition of apenitentiary term.

In addition, the court is of the view that applying the principle of consecutivity to the attempt break and enter countinevitably gives rise to the imposition of a significant penitentiary sentence. [21] If you could stand up please, Mr. Davidson. In relation to count #1, the charge of break and enter into the dwelling house of Cathy Johnson, the court imposes a sentence of two years in a federal institution. Inrelation to the charge of attempt break and enter into the residence of Ms. Johnson, the court imposes a sentence of one year, to be servedconsecutively.

The court would, in relation to the first count, have contemplated the imposition of a sentence of three-years’incarceration. However, taking into account the mitigating factors, including your age and lack of prior record, it will be two years inrelation to count 1, 348(1)(b); one year consecutive in relation to the 348(1)(a)-463(

a) offence. In relation to the charge of theft ofmerchandise which occurred in the aftermath of the break and enter and the attempt break and enter, although the court would havecontemplated imposing a sentence of three months consecutive; however, I take into account the totality principle, and, applying theprinciples of totality as set out in para. 718.2 (

c) of the Code, as interpreted by our Court of Appeal in R. v. Adams, the court will imposea sentence of one day in jail concurrent - basically not adding to the overall sentence, and therefore the sentence of the court is three-years’ incarceration. There will be a DNA collection order as well and that will be applicable to the 348(1)(

b) offence. That’soccurrence number 2217207. [22] Given the duration of the sentence imposed by the court here today, the court is satisfied that the imposition of the victim-fine surcharges would work an undue hardship on Mr. Davidson, and therefore, inrelation to all of the counts, victim fine surcharges are waived.

[ 23 ] Anything further in relation to Mr. Davidson, counsel? [ 24 ] Mr. Gorman : No, Your Honour. [ 25 ] Mr. Lloy : No, Your Honour. [ 26 ] The Court : That’s all for Mr. Davidson, sheriff, thank you.