R. v. Anderson, 2020 BCPC 265

Citation: R. v. Anderson 2020 BCPC 265 Date: 20200508 IN THE PROVINCIAL COURT OF BRITISH COLUMBIA File No: 224024-1 Surrey Registry File Nos: 61808-1, 62151-1, 62311-1, 62409-1 Richmond Registry REGINA v. DAVID ROBERT ANDERSON File Nos: 52553-4-C, 52553-6-C Vernon Registry REGINA v. DAVID ROBERT ANDERSON DESIREE DENISE KATHLEEN FISHER ORAL REASONS FOR SENTENCE (Re Accused Anderson) OF THE HONOURABLE JUDGE HEWSON Crown Counsel appearing by teleconference: A. Ross Defence Counsel appearing by teleconference: J.R. Avis Place of Hearing: Kelowna , B.C.

Date of Hearing: March 27, 2020 Date of Judgment: May 8, 2020 [ 1 ] THE COURT: Mr. Anderson has pleaded guilty to four crimes committed in Richmond and Surrey in the summer and fall of 2017, and to 11 crimes committed in Vernon at the end of the first week of January 2018. I will describe the specific crimes later in these reasons for sentence. [ 2 ] The Crown seeks a lengthy jail sentence. With respect to the charges arising in Surrey and Richmond, the Crown seeks sentences that, if served consecutively, would total between 22 and 28 months' incarceration.

In addition, there would be ancillary orders, fines, and a driving prohibition. With respect to the offences arising in Vernon, the Crown seeks a jail sentence of between 33 and 36 months. The Crown submits that the sentence for certain driving offences in Vernon should be consecutive to the sentences for certain property crimes in Vernon, and that the sentences for offences committed in Vernon should be consecutive to the sentence for the offences committed earlier in Richmond and Surrey. The Crown seeks a probation order to follow any jail sentence. [ 3 ] Mr.

Anderson submits that the sentence for the crimes committed in Richmond and Surrey should be 12 months, and that the

sentence for the Vernon offences should be 30 months. If those sentences were served consecutively and he was granted credit for time spent on remand, Mr. Anderson suggests that he would receive no new time and be released. [ 4 ] In the course of their careful submissions, counsel raised a number of issues. They include:

a) which sentences should be served consecutively and which sentences should be served concurrently;

b) is Mr. Anderson's drug addiction an aggravating, mitigating, or neutral factor;

c) is it appropriate to order that Mr. Anderson have no contact with his co-accused as a condition of a probation order;

d) is it appropriate to banish Mr. Anderson from the City of Vernon as a condition of a probation order; and

e) is a condition of probation prohibiting Mr. Anderson from attending or loitering in the parking lot of any fitness centre, arena, or recreation centre too vague. [ 5 ] In order to address those issues, I will set out Mr. Anderson's circumstances as related to me by his counsel, Mr. Avis, and the circumstances of the offences committed in Richmond, Surrey, and Vernon, as related to me by Crown counsel, Ms. Ross. I will review the range of sentences imposed in British Columbia for these crimes, but only briefly, because counsel are in agreement with respect to them.

I will also review the victim impact statements filed by the Crown on behalf of the many victims of these offences. [ 6 ] Mr. Anderson is 34 years old. He was born in Toronto but raised for most of his adolescence in White Rock, B.C. His parents separated when he was 13. His father now lives in Toronto where he is a manager in the retail automotive business, and his mother lives on Mayne Island. Mr. Anderson's sister lives in New Westminster. According to Mr. Anderson, he had a good upbringing and enjoys the support of his family. Mr.

Anderson has a Grade 10 education and a history of employment as a car salesman when he was younger. He can no longer find employment in that line of work as a result of his record of criminal convictions. [ 7 ] That criminal record is quite lengthy. His CPIC record and his JUSTIN conviction list were marked as Exhibit 6 on the sentence hearing. Almost all of his convictions have been registered since 2011. In May 2012, he received an effective sentence of two years less a day for 18 different identity and property offences similar to those before the court today.

His last reported conviction, obstructing a peace officer, was registered about three months before the first of the offences he committed in Richmond and Surrey. [ 8 ] Mr. Anderson points to his drug addictions to explain his record of criminal offences. He says that he sought treatment for his drug addictions when he was much younger and that he completed substance abuse management courses in 2018 and early 2019 while he was in custody. He has now been prescribed suboxone and reports that his addictions are under control. [ 9 ] Upon his release from custody, Mr.

Anderson plans to live with friends named Tony and Sandra Pacholczyk while he seeks employment and a permanent residence. Mr. Pacholczyk has provided a letter to the court stating his willingness to assist Mr. Anderson. They live in Surrey. [ 10 ] I will describe the offences committed in the summer and fall of 2017 in Surrey and Richmond, and then the offences committed in January 2018 in Vernon. None of the circumstances are in dispute. [ 11 ] On June 19, 2017, at 6:15 p.m., Mr. Anderson broke into a vehicle owned by John Quan. Anderson was wearing latex gloves, black clothes, and a black ball cap.

He opened the vehicle trunk and took a black bag containing sunglasses, a work identification pass, shoes, and other items. The Crown seeks a sentence of 60 days' jail followed by probation. [ 12 ] On October 21, 2017, Mr. Anderson went to Ann-Louise Jewellery. He presented identification and a credit card belonging to Zachary Allan Campbell, whose wallet had been stolen from his vehicle two days before. Anderson asked about buying a watch and made a credit application using the name Zach Campbell. He said the watch was for his fiancée.

The jewellery store staff offered a credit line of $7,500, which was enough for two watches. Mr. Anderson received two watches with a value of $7,649.98 by fraudulently impersonating Mr. Campbell. The Crown suggested that a sentence of between 18 and 24 months' jail followed by probation would be appropriate. [ 13 ] Mr. Campbell's car was broken into again two days after the offence. It is not suggested that Mr.

Anderson was responsible for the second incident, but a second incident suffered by the same victim within several days suggests the frequency with which this type of offence is committed. [ 14 ] On November 10, 2017, the dashcam of a car belonging to Chaojie Li recorded a video of Mr. Anderson casing the vehicle and then opening the trunk. He has pleaded guilty to mischief by damaging the vehicle in the course of the break-in. Items were stolen, including sunglasses. When the dashcam video was circulated among the RCMP's Surrey Crime Reduction Team, four officers identified Mr. Anderson.

The Crown seeks a sentence of 60 days' jail. [ 15 ] With respect to the Vernon charges, I was provided with an agreed statement of facts setting out the circumstances. That was very helpful and I will rely on it in setting out the circumstances in these reasons. [ 16 ] At approximately 6:30 p.m. on January 3, 2018, Sarah Sewchuk's vehicle was parked at a Fitness West Gym in Vernon. The rear passenger window was smashed and her purse was stolen. It contained identity documents, credit, and debit cards. [ 17 ] At approximately 6:00 a.m. on January 5, 2018, Mariah Esau's vehicle was parked at the same gym.

The vehicle window was smashed and her Michael Kors purse and wallet were stolen. Her purse contained her identity documents, $200 in cash, credit and debit cards, and health cards for herself and for her daughter Larrah. A witness at the gym saw a white Jeep drive away. [ 18 ] Shortly later that same day, around 7:30 a.m., Pamela van Kleek's vehicle was parked at the Vernon Recreation Centre. The

driver side window was smashed and Ms. van Kleek's purse was stolen. It contained her identity documents, credit, and debit cards, blank cheques, and address book, along with her EpiPen. Also at around 7:30 a.m. on January 5, Judy Goplen's vehicle was broken into. Like the vehicle belonging to Pamela van Kleek, it was parked at the Vernon Recreation Centre. A laptop computer, tote bag, identity, and business documents, data for her business, and a bottle of wine were stolen from the vehicle. Ms.

Goplen's business was called the Cobblestone Clinic. [ 19 ] Later that day at 7:30 p.m., Ryan Williams' vehicle was parked at the Priest Valley Arena. The Priest Valley Arena is next to the Vernon Recreation Centre. The front passenger window was smashed and Mr. Williams' laptop and laptop bag were stolen. [ 20 ] The next day, January 6, 2018, at approximately eight o'clock a.m., Marion Deboersap was parked at Kal Tire Place in Vernon. Like the Vernon Recreation Centre, Fitness West Gym, and the Priest Valley Arena, Kal Tire Place is a sports and recreation facility serving the local community. When Ms.

Deboersap came out of Kal Tire Place, she found a male with his hood up trying to get into her driver's door. She confronted him. He pulled the hood over his face and got into a white Jeep Cherokee. Ms. Deboersap noted the licence plate number and recorded the video of the Jeep Cherokee leaving the parking lot. She gave a copy of the video to the police. [ 21 ] Later on January 6, 2018, just before closing time, Mr. Anderson and Desiree Fisher, his co-accused, entered the Hudson's Bay Store in Vernon. They selected a mattress, box spring, and bedding products. Mr.

Anderson applied for and obtained credit using the identity documents of Joshua Watts. Those documents had been stolen from Mr. Watts in Surrey in October 2017. Anderson and Fisher purchased $2,699.98 of merchandise and told the store staff they would return later to pick it up. [ 22 ] Still on January 6, 2018, at approximately seven o'clock p.m., Stephanie Brenner's truck was parked at the Iron Heart Gym. It was broken into and her Louis Vuitton purse was stolen. The purse contained her wallet, identity documents, credit and debit cards, and her MacBook computer.

The gym's video surveillance showed a white Jeep Cherokee circling the parking lot and stopping for several minutes. About two hours later, Ms. Brenner was in the Best Buy parking lot. Best Buy is located about 250 metres from the Iron Heart Gym. She saw a white Jeep Cherokee that she thought was similar to the vehicle that she had seen on the gym's video surveillance. She called the police and started to follow the white Jeep Cherokee. The Jeep then accelerated, running a red light and failing to stop at a stop sign, before heading up Silver Star Road. The police tried to locate the Jeep Cherokee but could not.

However, at 9:30 p.m., Ms. Brenner was back in the Best Buy parking lot. The white Jeep Cherokee pulled in and she saw it. Ms. Brenner called the police to let them know. [ 23 ] The Jeep Cherokee parked and Ms. Fisher got out and went into the store. Mr. Anderson stayed in the vehicle. Ms. Fisher used Mariah Esau's identity documents to complete credit applications in Ms. Esau's name. Ms. Fisher used the credit to fraudulently purchase $3,676.36 of electronics equipment from Best Buy, including a large TV and speakers. Mr. Anderson was a party to this offence. [ 24 ] Mr.

Anderson left the Jeep Cherokee and knocked on the front window of the store to get Ms. Fisher's attention. Ms. Fisher quickly left the store without the merchandise. Ms. Brenner told the police that Anderson and Fisher were leaving. [ 25 ] When Constable Heideman drove into the Best Buy parking lot in a fully-marked police car, the white Jeep Cherokee fled up Silver Star Road for the second time that evening. This time Constable Beaulieu was able to intercept it. The white Jeep Cherokee came up behind the officer's police vehicle.

The officer activated his emergency lights to get the oncoming traffic to pull over for their safety. Constable Beaulieu thought the white Jeep Cherokee was going to hit his police car, but the Jeep narrowly missed him and fled. The police could not locate it again until the next morning. [ 26 ] Around two o'clock a.m. on January 7, 2018, Constable Beaulieu located the white Jeep Cherokee parked outside a residence in Vernon. The police located Mr. Anderson and Ms. Fisher inside the residence. Ms. Fisher identified herself, but Mr. Anderson told the police his name was Fred McKave. Mr.

McKave's firearms licence had been stolen in Langley in 2017 and was later located inside the white Jeep Cherokee. [ 27 ] The police seized the Jeep and discovered that it had been fraudulently purchased from a dealership in the Lower Mainland. Mr. Anderson had used the stolen identification documents of James LaPierre. Mr. LaPierre's wallet had been stolen while he was inside a gym on November 20, 2017. He discovered that a $50,000 automobile bank loan had been obtained in his name when he was checking his credit report. [ 28 ] The police searched the Jeep.

The fingerprints of both Anderson and Fisher were found inside it. Police also found many of the articles that had been stolen from victims in Vernon over the preceding days, as well as a licence plate belonging to Diane Sorace, a Royal Bank bank card in the name of Vance Jefferson, and a laptop in a laptop bag with a chequebook in the name of Ryan Williams. Police also found some items that might be used for breaking into vehicles. [ 29 ] Mr. Anderson had not been arrested because he gave the police a false name.

At 1:30 p.m. on January 7, he went to The Stor-it Place and fraudulently rented a U-Haul truck using the stolen identification of Joshua Watts. [ 30 ] At 2:45 p.m. on January 7, Constable Ternan called the cellphone number given to the Hudson's Bay store by Mr. Anderson when he applied for credit in the name of Joshua Watts. Mr. Anderson answered. He claimed to be Josh and said that he would be at the Hudson's Bay store soon to pick up the mattress. At 4:15 p.m., Mr. Anderson and Ms. Fisher drove the U-Haul truck to the Best Buy store. Ms.

Fisher went in to attempt to pick up the TV and electronic equipment she had fraudulently purchased the night before while Mr. Anderson waited in the truck. The store staff stalled, because they knew the police were on the way. Several police officers responded in separate police vehicles. They attempted to box in the U-Haul. Mr. Anderson put the U-Haul in reverse and rammed one police vehicle. He then drove forward and rammed a civilian's parked vehicle, pushing it forward almost a full parking space. [ 31 ] He put the U-Haul back into reverse and rammed the first police vehicle again.

He was then able to escape the parking lot. Ms. Fisher was arrested inside Best Buy. Mr. Anderson fled southbound on Highway 97. Constable Taylor saw the U-Haul truck and pulled over to lay out a spike belt. Mr. Anderson swerved to avoid the spike belt, but contacted it with the driver side front tire of the U-Haul truck. He continued driving south on Highway 97 towards downtown Vernon. [ 32 ] Constable Ternan called Mr. Anderson again on the cellphone. Anderson thought he was speaking with a friend named Colton

and said that he would not stop for the police. Anderson told Colton he wanted heroin and cash before the police caught him. Anderson pulled off Highway 97 onto Old Kamloops Road. Two police vehicles followed him at a distance, while Constable Taylor laid out the spike belt again. Anderson approached in the U-Haul truck and crossed the centre line, steering directly at Constable Taylor. The officer jumped into the ditch to avoid being hit by the U-Haul truck. The U-Haul truck struck the open driver's door of Constable Taylor's vehicle. The police officers followed Mr.

Anderson down Okanagan Landing Road towards Ellison Provincial Park. He finally lost control of the U-Haul and spun off the road with its rear end in the ditch. A police officer drove his vehicle into the front passenger side of the U-Haul to immobilize it. [ 33 ] Mr. Anderson was finally arrested without further incident. Mr. Anderson asked the police why they would not chase him. [ 34 ] Highway 97, Old Kamloops Road, and Okanagan Landing Road are all busy, well-travelled routes through the City of Vernon. [ 35 ] The police searched the U-Haul. They found a laptop bag with a computer and camera inside the bag.

They also found 19 grams of heroin, 15 grams of marihuana, related drug paraphernalia, and an iPhone under the seat.

The iPhone was the phone that Constable Ternan had called. [ 36 ] With respect to the fraud of Best Buy, the fraud of the Hudson's Bay Company, and the fraud of the Stor-It Place, the Crown suggests that sentences of 24 months in jail concurrent are appropriate. [ 37 ] With respect to the possession of the identification documents of Joshua Watts, Fred McKave, Sarah Sewchuk, Mark McDonell, Pamela van Kleek, and Stephanie Brenner, the Crown suggests that a sentence of 24 months' jail concurrent to the sentence on the fraud offences is appropriate. [ 38 ] With respect to the theft from Stephanie Brenner's vehicle, the Crown suggests that a sentence of four months' jail concurrent is appropriate. [ 39 ] With respect to the offence of possession of property obtained by crime, the white Jeep Cherokee, the Crown suggests another 24-month jail sentence concurrent is appropriate.

With respect to the possession of the stolen property of Stephanie Brenner, Pamela van Kleek, Fred McKave, Mariah Esau, Larrah Esau, Judy Goplen, the Cobblestone Clinic, Ryan Williams, and Mark McDonell, the Crown suggests again that a 24-month jail sentence concurrent to the other property offences is appropriate. [ 40 ] Finally, the Crown suggests that a 24-month jail sentence concurrent to the other property offences is appropriate for the offence of possession of the credit card of Sarah Sewchuk. [ 41 ] The Crown suggests that the penalties for the driving offences should be consecutive.

The Crown suggested sentences of nine to 12 months concurrent to each other, but consecutive to all other counts, are appropriate for the offence of dangerous driving and flight from police.

Finally, the Crown suggests that a penalty of four months' jail concurrent to the driving offences, but again consecutive to the property offences, is appropriate for the offence of failing to stop with intent to escape liability in the Best Buy parking lot. [ 42 ] The sentences suggested by the Crown would total between 33 and 36 months before the consideration of presentence custody. [ 43 ] Victim impact statements were filed.

Many of them speak eloquently about the impact of theft of personal property. [ 44 ] Stephanie Brenner wrote: One of the items taken was my purse which I inherited from my mother who passed away a year prior. I used this purse as my day-to-day bag as a way to keep my mother's memory with me. This bag was irreplaceable. [ 45 ] Mariah Esau wrote: The damage to my vehicle was over $1,000. I had to pay for it all. It was not covered. I had $200 cash in my purse.

It was a Christmas present from my parents. [ 46 ] Counsel agree that the range of sentences reflected in the Crown's sentencing position are within the range of sentence for these types of offences in British Columbia. [ 47 ] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to contribute 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 stated objectives. The objectives that are important in this case are:

a) denunciation – this is the condemnation of conduct that has encroached on our community's basic code of values and for that reason should be punished;

b) general deterrence – this is an attempt to discourage other potential offenders and to educate the general public;

c) specific deterrence – this is an attempt to discourage Mr. Anderson from committing offences in the future through the fear of further punishment;

d) rehabilitation – this can be the best protection the community has and is usually the main objective for youthful offenders; however, it will normally not be the primary objective where the offender lacks significant remorse; and

e) reparation – this is an attempt to return the community and the victims to the position they were in before the offences were committed.

[ 48 ] In pursuing these objectives, there are important principles that must be applied. They include:

a) proportionality – the sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of Mr. Anderson;

b) restraint – Mr. Anderson should not be deprived of liberty if less-restrictive sanctions may be appropriate and reasonable in the circumstances;

c) totality – Mr. Anderson should not be punished by combined or consecutive sentences that are unduly long or harsh; and

d) parity – Mr. Anderson's sentence should be similar to the sentences imposed on similar offenders in similar circumstances; however, parity of sentencing is secondary to a fit sentence and to a uniform approach to sentencing. [ 49 ] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. In Mr. Anderson's case, the aggravating features of the identity theft offences were expressed well by Associate Chief Judge Dohm in R. v. Adebayo , 2007 BCPC 433 . He said at paragraph 6: [6] Identity theft offences are very serious.

They are becoming far too prevalent in our society, particularly given the technological era we now live in. They are difficult to detect, investigate and prosecute, particularly when the victims are from other countries, as was the case here. Parliament has recently increased the maximum sentence for fraud and has indicated it will be introducing legislation to deal with these types of offences more effectively. [7] Identity theft offences have serious and lasting repercussions, both financially and emotionally, on completely innocent victims. The victim impact statements attest to that fact.

Besides the financial losses often associated with identity theft, the victims must also spend significant amounts of time and money taking steps to prevent further violations of their identities, and there always remains the concern of when the next violation will occur. [8] Persons like the accused who partake in identity theft offences have made a conscious decision to opt out of all the systems the rest of society must operate in. These people must have some level of intelligence and an understanding of how all the systems work.

They have weighed the costs and decided to take significant steps to partake in these offences. Society needs protection from these individuals and their schemes. Denunciation and general deterrence are paramount considerations in determining the appropriate sentence for identity theft criminals. [ 50 ] The aggravating features of the dangerous driving offences are equally stark. Mr. Anderson's driving performance ran the gamut of potentially deadly driving conduct. He ignored traffic controls, speeding through intersections, against stop signs or red lights.

He ignored the lawful direction of police officers to stop his vehicle, swerving around spike belts and police cars on roads that are typically crowded and well travelled. He used a U-Haul truck as a battering ram in the Best Buy parking lot. He used the same truck as a weapon on Old Kamloops Road, forcing Constable Taylor to jump out of the way and damaging the door of his police car. The police pursuit only ended when he lost control of the truck and drove into a ditch near Ellison Park. In total, his conduct showed an absolute disregard for the safety of others. [ 51 ] It is also aggravating that Mr.

Anderson has a criminal record for a series of similar offences in Surrey. [ 52 ] One of the issues raised by counsel was whether Mr. Anderson's addiction to drugs was an aggravating, mitigating, or neutral factor. Mr. Anderson was well aware of his addiction. He had received counselling many years ago when he was a younger man, and he participated in substance abuse management courses when he was first taken into custody on these charges. He has accepted a prescription for suboxone.

However, there is little or no evidence to suggest he has taken any steps to address his addiction while out of custody in more recent years. Many members of the public in both Vernon and the Lower Mainland suffered losses and violations of their personal privacy in order for Mr. Anderson to pay for drugs. [ 53 ] Addictions are an illness. It is hard to imagine anyone choosing to become addicted to a drug like heroin. However, our communities offer supports and services for people who choose to seek help for their addiction illness.

Not making any effort to accept the help offered by the community is a choice too. [ 54 ] While in the community, he appears to have chosen not to address his addictions. When a man reaches Mr. Anderson's age and knows that his addictions have caused him to commit offences in the past like the offences he has already been convicted of, his addictions amount to an explanation rather than a mitigating factor. [ 55 ] I am satisfied that Mr.

Anderson's guilty pleas should be considered in mitigation of sentence, as well as his efforts to attend substance abuse management and other programming while in custody. [ 56 ] Other issues raised by counsel related to the specific wording of conditions for the probation order that might be imposed on Mr. Anderson. Specifically, the issues are whether a no-contact condition with Ms.

Fisher, a banishment condition, a condition that he abstain from drugs and alcohol, and a condition that he not attend certain parking lots are appropriate. [ 57 ] Probation has traditionally been viewed as a rehabilitative sentencing mechanism. Although a probation order may have punitive effects, punishment is not the dominant purpose of such an order nor is it an inherent aspect of the order. Even as the primary purpose of a probation order is rehabilitative, it is inevitable that some conditions will result in some restriction of liberty.

Probation orders are designed not only to rehabilitate offenders and reintegrate them into the community, but to protect those same communities. Offenders will frequently feel the conditions of a probation order as a negative consequence of their offence; that is not prohibited. What is prohibited is a term of probation imposed for primarily punitive purposes. [ 58 ] In that context, I am satisfied that it is appropriate to order that he have no contact with Ms. Fisher and that he not attend or loiter in the parking lots of gyms, arenas, or recreation centres. Ms. Fisher was his partner in crime.

A condition that will break up that

partnership will serve to protect the community and to reduce the likelihood that Mr. Anderson strays from the path of lawful conduct.The parking lots of gyms, arenas, and recreation centres were the locations that Mr. Anderson chose to commit the majority of hiscrimes. The reason seems clear; these are places where people can be expected to leave their cars for long enough to break into them. Itwill assist Mr. Anderson's rehabilitation to avoid those locations. [59] The banishment condition proposed by the Crown is different. The offences committed by Mr.

Anderson could just as easilyhave been committed south of Vernon in Lake Country, or north of Vernon in Armstrong or Enderby. Banishing Mr. Anderson fromVernon will do nothing to rehabilitate him. It will do nothing to protect the wider community either, if the community is seen assomething bigger than the City of Vernon. Banishing an offender like Mr. Anderson really just amounts to pushing the problem up ordown the highway. No one is really protected. [60] The Crown seeks a condition that he abstain from drugs and alcohol. I have already said that Mr.

Anderson's addictions are notmitigating factors in his circumstances. At the same time, I have recognized that he suffers from an illness. Unless he is successful inmanaging his addictions, a condition requiring that he abstain would criminalize a relapse. I am not prepared to impose such a conditionin Mr. Anderson's case. [61] The most significant issue is whether or not the sentences should be concurrent or consecutive. Mr. Anderson appeared to acceptthat the sentences for the offences committed in Vernon should be consecutive to the sentences for the offences committed in Richmondand Surrey in 2017.

I will say no more about that. That leaves the question of whether or not the sentences for the driving offences inVernon should be consecutive to the property and identity theft sentences. The decision about whether to impose consecutive orconcurrent sentences turns on the question of whether the acts constituting the offences were part of a linked series of acts within a singleendeavour. [62] In R. v. McCrea, [2008] B.C.J. No. 1079, our Court of Appeal adopted the reasoning in R. v. Gummer (1983), (ON CA), 38 C.R. (3d) 46. Mr.

Justice Martin stated that concurrent sentences do not necessarily have to be imposed where the offencesconstitute invasions of different legally-protected interests. He wrote at paragraph 13: We do not consider the rule that sentences for offences arising out of the same transaction or incident should normally be concurrentnecessarily applies where the offences constitute invasions of different legally-protected interests, although the principle of totality mustbe kept in mind. [63] As implied by Mr.

Justice Martin, consecutive sentences can raise the requirement for consideration of the totality principle. [64] In R. v. Li, 2009 BCCA 85 at paragraph 28, the Court of Appeal held: Thus, there is a two-stage approach to sentencing an offender convicted of multiple offences. The first stage is to determine theappropriate sentence for each offence, and decide whether the individual sentences should be made consecutive or concurrent. Ifconsecutive sentences are imposed, then the second stage is to determine whether the sentences, in the aggregate, offend the totalityprinciple.

If the sentence, as a whole, is unduly harsh or disproportionate, then the length of the individual sentences should be adjustedin order to arrive at an appropriate … sentence. … [65] After considering the law as explained in McCrea and Gummer, I am satisfied that the legally-protected interests threatened bythe driving offences are entirely different than the legally-protected interests infringed by the identity theft and property offences. Oneset of offences threatens the physical safety of the users of the road, including police officers.

The other set actually violated the privacyand ownership interests of the victims.

It follows that the sentences for the driving offences should be consecutive to the sentences forthe identity theft and property offences. [66] Having considered all of those factors, I have concluded that the just sentence for each of the individual offences is as follows,and Madam Clerk, I am going to read this fairly quickly, but I can pass this to you in writing if that is helpful. [67] On Richmond Information 61808-1, Count 1, the break-in and theft from the vehicle belonging to John Quan, two months' jail. [68] On Surrey Information 224024-1, Count 2, driving while prohibited, a $500 fine and a one-year driving prohibition under s. 98 ofthe Motor Vehicle Act. [69] On Richmond Information 62409-1, Count 2, fraudulent personation of Zachary Allan Campbell, 20 months' jail concurrent tothe sentence on Richmond Information 61808. [70] On Richmond Information 62151-1, Count 2, the offence of mischief by damaging a car door belonging to Chaojie Li, twomonths' jail concurrent to the sentences on Richmond Information 61808 and Richmond Information 62409. [71] There will be a probation order that will attach to those four informations and I will speak to the conditions of that order afterimposing sentence on the Vernon offences contained on Information 52553-C-6.

The sentences on the Vernon information will beconsecutive to the sentences on the Richmond and Surrey informations. [72] With respect to the Vernon information, I have concluded that the appropriate sentence for each offence is: • on Count 5, as a party to the offence of defrauding Best Buy, a sentence of 24 months' jail; • on Count 6, the fraud at the Hudson's Bay store, a sentence of 24 months' jail concurrent; • on Count 7, the fraud at The Stor-it Place, a sentence of 24 months' jail concurrent; • on Count 8, the possession of ID documents from six victims, a sentence of 24 months' concurrent;

• on Count 9, the theft from the vehicle of Stephanie Brenner, a sentence of six months concurrent; • on Count 10, the possession of the white Jeep Cherokee obtained by crime, a sentence of 24 months' concurrent; • on Count 14, the possession of property belonging to nine victims obtained by crime, 24 months' jail concurrent; • on Count 20, the possession of bank cards belonging to Sarah Sewchuk, 12 months' concurrent; • on Count 15, dangerous driving, 12 months' jail consecutive to all other counts, but concurrent to Counts 16 and 17; • on Count 16, flight from police, 12 months' jail consecutive to all other counts but concurrent to Counts 15 and 17; • finally, on Count 17, failure to stop with intent to escape liability, six months' jail consecutive to all other counts, but concurrent to Counts 15 and 16. [ 73 ] The total sentence before the consideration of presentence custody would be 56 months.

Mr. Anderson has served, counsel agree, 854 days of presentence custody. He is entitled to credit of 1.5 days for each day of presentence custody, or 1,281 days. Expressed in terms of months, he is entitled to 43 months' credit. [ 74 ] When the 43 months' credit is deducted from the 56-month total, Mr. Anderson has 13 months' new time. [ 75 ] The purpose of the totality principle is to ensure that a series of consecutive sentences, each of which is properly imposed in relation to the offence to which it relates, is in total just and appropriate.

If the total sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if the effect of the total sentence is to impose on the offender a crushing sentence not in keeping with his record and prospects for rehabilitation, the total sentence should be reduced. [ 76 ] I am satisfied that, despite the highly troubling nature of the most serious of Mr. Anderson's crimes, a sentence of 13 months' new time on top of the time spent in presentence custody might offend the totality principle.

Accordingly, I will adjust the sentence on Richmond Information 62409-1, Count 2, fraudulent personation of Zachary Campbell, from 20 months' jail to 18 months' jail concurrent to the sentence on Richmond Information 61808. Mr. Anderson must serve a sentence of 11 months' new time. [ 77 ] Following his release from custody, Mr. Anderson will be on probation. One probation order will attach to all informations before the court.

The term of the probation order will be two years. [ 78 ] THE CLERK: On the driving charge, as well? [ 79 ] THE COURT: Except for the drive while prohibited. [ 80 ] The conditions of the probation order will include the compulsory conditions. These are drawn from your picklist, Madam Clerk. [ 81 ] 2001: You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change of employment or occupation. [ 82 ] 2002: You must have no contact or communication, directly or indirectly, with Stephanie Brenner, Mariah Esau, Pamela van Kleek, Rick van Kleek, Judy Goplen, Diane Sorace, Sarah Sewchuk, Ryan Williams, Marion Deboersap, Joshua Watts, Mark McDonell, Fred McKave, and Desiree Fisher -- sorry, and William Ho, Zachary Allan Campbell, and Chaojie Li. [ 83 ] 2005-1: You must not go to any place where any of the people that I have just named lives, works, attends school, worships, or happens to be.

If you see them, you must leave their presence immediately without any words or gestures. [ 84 ] 2619: You must not possess any identification documents, including credit cards, debit cards, cheques, negotiable instruments, driver's licences, birth certificates, social insurance cards, mail, invoices, or bills other than ones in your name. The exceptions are as follows:

a) items lawfully issued in the names of your immediate family members; and

b) for purposes immediately and directly related to your employment. [ 85 ] 2620: You must not possess any account information, credit or debit card data, or any electronic storage medium, including any credit or identification card with a data strip or security chip, that contains personal information other than your account information or data. The exceptions are as follows:

a) account information or data lawfully issued in the names of your immediate family members; and

b) for purposes immediately and directly related to your employment. [ 86 ] 2617: You must not possess any tools or instruments capable of use for criminal activity, including pry bars, screwdrivers, bump keys, bolt cutters, pliers, blow torches, grinders, night vision goggles, slim jims, and lockpicks. The exceptions are as follows:

a) while on your property;

b) while at work or going directly to and from work. If asked, you must provide your probation officer with the details of your location and hours of employment;

c) with the prior written permission of your probation officer. You must carry the permission, which may be in electronic format, when you possess any of these items outside your residence. [ 87 ] 2624-2: You must not occupy the driver's seat of any motor vehicle. The exceptions are as follows:

a) while at work or going directly to or from work. If asked, you must provide your probation officer with the details of your employment including the hours and location;

b) when going directly to or returning directly from a healthcare facility because of a medical emergency. If asked, you must provide your probation officer with proof of your attendance at the facility;

c) with the prior written permission of your probation officer.

You must carry the permission, which may be in electronic format, when occupying the seat of a motor vehicle. [ 88 ] You must immediately provide a copy of any written permission from your probation officer, which may be in electronic format, to any peace officer who finds you in the driver's seat of a motor vehicle. [ 89 ] 2626: You must not enter any motor vehicle, other than public transportation, unless the registered owner is present in the vehicle, or you have in your immediate possession the prior written permission, which may be in electronic format, of the registered owner or your employer to be in the vehicle.

You must immediately provide a copy of the permission, which may be in electronic format, to any peace officer who finds you in a motor vehicle. [ 90 ] The next condition, Madam Clerk, I am going to ask that you free type.

You must not attend or loiter in any parkade or parking lot that services any fitness centre, arena, or recreational centre. [ 91 ] 2104: You must report in person to a probation officer at the Surrey South Community Corrections within two business days after your release from custody, unless you have obtained, before your release from custody, written permission from the probation officer to report elsewhere or within a different timeframe.

After that, you must report as directed by your officer. [ 92 ] 2201: When first reporting to your probation officer, you must provide them with the address where you live and your phone number. You must not change your address or phone number without prior written permission from your officer. [ 93 ] Finally, Count 17 of Information 52553 is a secondary designated offence. With respect to that count, I will order that Mr. Anderson provide a sample of his DNA for registration in the National DNA Data Bank.

This order is valid until executed and may be executed while he is in custody. [ 94 ] On Count 16 of Information 52553, there will be a two-year driving prohibition pursuant to s. 320.24(4) of the Criminal Code . [ 95 ] Lastly, I will make an order under s. 491.1(1) of the Code for the forfeiture of all items listed on the exhibit report. [ 96 ] Ms. Ross -- [ 97 ] MS. ROSS: Yes, Your Honour. [ 98 ] THE COURT: -- is there anything that you need to bring to my attention? [ 99 ] MS.

ROSS: No, I emailed the draft order, so hopefully that will make its way to you with the attached exhibit report. [ 100 ] THE COURT: Thank you. [ 101 ] MS. ROSS: For -- and the Crown will stay the outstanding counts. [ 102 ] THE COURT: Thank you. [ 103 ] MS. ROSS: As well as the remaining waiver file, 62311, the outstanding waiver file is stayed as well. (REASONS CONCLUDED)