R. v. D.R.U. Date:, 2015 BCPC 209

Citation: R. v. D.R.U. Date: 20150617 2015 BCPC 0209 File No: 230494-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. D.R.U. EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE F. HOWARD Counsel for the Crown: N. Gill Counsel for the Defendant: R. Vachon Place of Hearing: Vancouver , B.C. Date of Hearing: June 17, 2015

Date of Judgment: June 17, 2015 [ 1 ] THE COURT: The accused has pled guilty to three counts on Information 230494-C-2. Count 1 is the offence of breaking and entering a dwelling house at ****** Street with the intent to commit robbery; Count 2 is robbery of Kenneth Rodriguez; Count 3 is unlawful confinement of Kenneth Rodriguez. All offences occurred at the same time in the course of an incident that occurred on May 15th, 2013. [ 2 ] As to the circumstances, very briefly, the accused is one of three individuals who pushed their way into a one-bedroom apartment of the complainant Rodriguez at ****** Street.

It was approximately 11 to 11:30 p.m. on May 15th, 2013. Mr. Rodriguez is a 67-year-old gentleman; he has partial deafness having the lost the hearing in one of his ears and suffers sometimes from double vision. [ 3 ] The accused and his accomplices gained access to the apartment building by pushing Mr. Rodriguez's buzzer, saying that they were friends. He let them into the building; they went up to the third floor; as they arrived on the third floor, Rodriguez already had the door to his suite open. [ 4 ] All three of these gentlemen pushed their way into the suite.

They wore hoodies with the hoods up so it was difficult for Rodriguez to get a good look at them all. One was carrying a can of bear spray; the other had a knife. It appears that the accused was not carrying these weapons. He was, in fact, the person who was rummaging through the apartment looking for money. [ 5 ] It is common ground that once inside, the accomplice carrying the knife brandished it at Rodriguez, told him to get down on the ground, told him not to look at them, and kept the knife pointed at him until he actually went down to the floor.

Eventually Rodriguez was told to get up and move over to the table, but keep his head down and not look at them. While on the floor, every time he did move his head, Mr. Rodriguez indicated that he was punched or kicked in reaction to that. [ 6 ] The apartment was ransacked, the men went through every room in the house, they were saying, "Where's the money? Where's the money?" Rodriguez directed them to one spot where there was some cash, but they kept asking him, "Where's the rest?

Where's the rest?" [ 7 ] At one point, one of the individuals threatened to cut off Rodriguez's fingers or to chop off his fingers, and then towards the end, one of the individuals said, "Let's kill this guy." After that remark was made, the parties, in fact, left Mr. Rodriguez and removed themselves from the apartment. [ 8 ] Mr. Rodriguez called the police right away and they attended.

He declined any ambulance assistance indicating that he was not hurt. [ 9 ] The robbers took the following: $690 in cash, a collection of unique coins, a statue of an eagle, a radio shaped like a car, small binoculars in a black case, Mr. Rodriguez's wallet with cash, his driver's licence, social security card, Visa card and other identification, his cellphone, some liquor bottles, and some cigarettes.

They also took a black bag which they used to carry the loot away with them. [ 10 ] During the course of looking through the apartment, the accused opened a drawer of a cabinet and took out a small plastic box that had some items in it. He dumped that box out onto the table, and inside the box there were a few items: earphones, packaging, and a recharger plug.

The phone itself, was on a separate location on the table. [ 11 ] We know that this accused was the person that pulled this box out of the drawer because he left fingerprints on the box; in the end, it was verified that he had left three separate prints on that box, and, hence, he has been successfully identified as one of the culprits in this break and enter. [ 12 ] Rodriguez did not know any of the three parties who came into his residence.

As to the reason for the break and enter, through his counsel, the accused has indicated that Rodriguez had a reputation of sorts for selling liquor at any time of day or night from his suite. Persons who wanted to contact him needed only to push his buzzer, give a name or say they were a friend, and he would let them in. He would conduct a quick transaction with them and then send them on their way. This explains how it was so easy for the accused and his accomplices to get into the apartment. [ 13 ] The photos of the suite in question, Mr.

Rodriguez's suite, especially Photos 7836, 7837 and 7841, reveal that Mr.

Rodriguez had substantial quantities of coke and other pops lined up on one of the shelves, far more than one would think a single individual could drink, but more importantly, in one of the closets, dozens and dozens of boxes of Budweiser beer stacked from floor almost to the top of the ceiling, I don't know if that is a closet or a hallway, but again it was more beer than any one individual could possibly consume. [ 14 ] In addition, in his initial statement to the police, I am advised that Rodriguez told them that there actually was $30,000 cash in the suite that the suspects had not located, although I understand that subsequently, he resiled from this claim.

At any rate, this aspect of the story is significant only to the limited extent that it provides us with a better understanding of why the accused and his friends decided to pick on the Rodriguez suite and why they were in there demanding money from him. [ 15 ] The police, as I have noted, were able to match the fingerprints on the plastic box to this accused. Based on that match, they were able to get a search warrant for the accused's residence which they executed on May 23rd, 2013. They found the accused in his residence, and they also found the binoculars in the small black case that belonged to Mr.

Rodriguez. They were located in the accused's kitchen. [ 16 ] With respect to the impact of these events upon Mr. Rodriguez, he suffered no injuries during the break and enter and has, I am advised by the Crown, indicated no interest in providing a victim impact statement in this particular case. [ 17 ] As for the length of time that has passed between the time that the accused was arrested on May 23rd and the entry of the guilty

plea, although it may seem like a long time, I am satisfied that that passage of time was not the fault of the accused. [ 18 ] He was arrested, of course, on May 23rd, 2013; he appeared in Provincial Court for a preliminary inquiry on February 28th, 2014; he entered a consent committal which took him to the Supreme Court. He appeared January 2015 for his first trial date, but at that time, there were still some outstanding disclosure issues relating to the fingerprint evidence that had arisen at the initial forensics examination of the apartment.

That evidence had significant weaknesses in it which defence counsel was very concerned about. [ 19 ] Some material came through just before the January 2015 trial date that helped to clarify the issue, but defence counsel then needed to speak to a forensics expert and fingerprint expert of her own, which she did. [ 20 ] By the time the second trial date came along, May 25th, 2015, the Crown had new reports to file which were far more professional, if I can put it that way, and presented an accurate picture of the fingerprint analysis process whereas the initial report had not. [ 21 ] So at that time, the accused did not proceed to trial given the strong evidence that was present and elected back down to Provincial Court in order to put the pleas before me, and, of course, that has occurred today. [ 22 ] I turn now to the accused and his personal circumstances.

I do have before me multiple pre-sentence reports prepared for this accused including two in 2005, one in 2012, and one in 2014, and I also have the advantage of a lengthy Gladue report prepared December 17th, 2012. [ 23 ] These reports have all assisted with informing me as to the personal circumstances regarding the accused's background. I am not going to refer to that background in great detail because it is clearly set out in the reports, including the Gladue report. [ 24 ] Very, very briefly, he is of native descent.

His family comes from the Campbell River area or an aboriginal community located in the Campbell River area. His mother, his maternal grandmother, and other members of his family were all products of the residential school system. [ 25 ] Life in his grandmother's home and his mother's home when they were young was fairly abusive and marked by alcohol abuse. His mother, in fact, married a non-aboriginal male. Both of them drank heavily.

There was a great deal of quarreling, yelling, verbal abuse, and physical abuse in that relationship as his mother was basically defending herself against this abusive male, and, in fact, she ended up being convicted of attempted murder of her husband and was sentenced to three years in jail. [ 26 ] At this point in time, the accused was sent to live with his maternal grandmother.

Eventually his mother returned to the scene, and he went back to live with her; however, she had her own severe issues that led her to attempt suicide on more than one occasion and the accused had the unfortunate experience of watching her slowly die from alcohol poisoning and cirrhosis of the liver. [ 27 ] He has three siblings. His brother is currently involved in the criminal justice system. His oldest sister is the only one to have escaped the circle of despair within this family and other aboriginal families and is reasonably successful living in Surrey with her own family.

His other sister died when she was 15 years of age from alcohol poisoning. She died just after the accused's mother died of cirrhosis of the liver which was in 2003. Since that point in time, the accused's life has been in turmoil. His youth court record starts in 2003, 2004, and continues quite extensively unabated right up until the time he became an adult. [ 28 ] He acknowledges that he is dealing with a serious alcohol issue of his own. He has been to recovery programs; sometimes they have worked for a short while, sometimes they have not.

Obviously he has not succeeded in the long run at this point in time. [ 29 ] He has a girlfriend or common-law partner who struggles with the same problem. Together they have two children, one was born just very recently while the accused has been in custody pending this hearing. They both appear to be quite keen to recover their children from the care of the Ministry of Family and Child Services. They go to recovery together or apart: then one of them slips off the wagon and the other gets dragged down with them.

So it has been an on and off-again process for both of them, but it is clear to me that they both are keen to somehow get their lives back in order and re-establish their relationship with their own children. [ 30 ] The accused, when he is not in jail serving a multitude of short jail sentences, works mostly doing labour jobs.

He is not on social assistance, and he appears to be fairly adept at finding employment. [ 31 ] He has also taken steps, in the more recent past, to look at more intensive recovery centres, including those that might focus on aboriginal clientele. [ 32 ] I am going to turn to the criminal record in this case. As I have indicated, it started when he was a youth, the adult record appears to start in 2007. There are numerous short-term sentences for breach of probation, breach of undertaking.

Indeed, about 70 percent of this record appears to be breaches of undertaking and probation orders, but he does have a few serious jail sentences, including in 2007. This was a six-month conditional sentence for theft over. It didn't last too long before it was suspended a couple of times in 2007, although I don't see on the record that it was ever terminated. [ 33 ] The next serious conviction is an assault in February 2009. He was sentenced in June 2009, and he received what looks to me to be an effective sentence of approximately one year in jail.

I am advised that that was actually an assault that occurred within the prison, so it was an institutional incident. The convictions were for assault with a weapon and assault causing bodily harm, both relating to the same incident. [ 34 ] The only other conviction for an offence of violence occurs in December 2012. For this "assault PC", he received a conditional sentence of 195 days. He appears to have completed that conditional sentence without incident. It was a sentence that was imposed concurrently with a possession of stolen property conviction as well.

I am advised that this "assault PC" incident relates to a difficult arrest when the accused was being attacked and bitten by a police dog.

[ 35 ] Those are the only two entries for crimes of violence except that there is, in relation to that "assault PC", a charge of possessing a weapon for a dangerous purpose which, of course, is of concern given the circumstances in the present case. [ 36 ] Since that conviction, there has been one further theft of a motor vehicle and then a number of breaches of undertaking and probation orders. [ 37 ] In terms of the sentencing positions by the Crown and the defence, they are agreed that the appropriate range would be between high provincial jail time and low federal jail time. [ 38 ] Crown counsel has provided me with authorities indicating that sentences in the range of three years may be appropriate, although I think the facts in those cases are somewhat more egregious than the facts that are before me. [ 39 ] I also have received from defence the recent decision, R. v.

Stewart , 2014 BCSC 1770 . In this particular case, the court was dealing with two males who burst into a woman's apartment, knocking her to the floor; one had a pistol, the other had a shotgun; both guns were pointed at the woman. It appears, in the end, that the assailants thought there might be a marihuana grow-op in the basement, but they were unable to find anything of significance. [ 40 ] During the course of this decision, Mr.

Justice Weatherill reviews many cases involving similar facts, that is break and enter into residences while people are home (home invasion type offences) and the sentences that are handed out in those circumstances. [ 41 ] In that case, he imposed a sentence of three years on one of the individuals. That, of course, involved the firearm matter for which there had to be a mandatory consecutive sentence of one year.

The other sentence imposed on the co-accused was for two years jail. [ 42 ] So I am satisfied that the range proposed by Crown and defence is appropriate, and the question is what is to be done in the present case. The aggravating features before me include the fact that the accused broke into a private dwelling with two people assisting him; his partners in crime carried weapons, pepper spray, and a knife, and used the knife to threaten the complainant into submission. They unlawfully confined the complainant, Mr. Rodriguez, although I do note that this was for quite a brief period.

I don't think this incident would have lasted much more than 15 minutes before the suspects all fled.

Section 348.1 (

a) of the Criminal Code requires me to consider this circumstance as an aggravating factor; that is, the accused broke into this private dwelling home, when he knew that there was a person in the home. [ 43 ] In terms of the record, that is, of course, of some concern to the court as an aggravating circumstance, but I do again note that convictions for crimes of violence are minimal and yielded sentences in the range of six months and one year. [ 44 ] In mitigation, the accused has pled guilty; he has accepted responsibility for his actions.

Although it was not an early guilty plea, I again acknowledge that I don't think that was really any fault of the accused. [ 45 ] The principles of sentencing are, of course, set out in s. 718 to 718.2 of the Criminal Code .

The overriding principle is contained in s. 718.1 : A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 46 ] There is no question that breaking into a private dwelling home and threatening the homeowner with weapons and confining that homeowner against his will for even a brief period of time is a very serious offence. [ 47 ] With respect to the degree of responsibility of the offender, here, one is looking at the moral culpability of the accused in relation to this offence, and it is at this stage, as I understand it from the authorities, R. v.

Ipeelee and R. v. Gladue , it is here that one looks at and takes into account, if appropriate, the aboriginal background of the accused. [ 48 ] In this particular case, I am satisfied that there are circumstances in the accused's background that clearly require me to consider the principles set out in Gladue and Ipeelee , and the best reference I have for summarizing those circumstances is in the Gladue report at page 15: Over the course of preparing this report, a number of Gladue principles and factors became apparent. 1. D.R.U. is an aboriginal man of Kwakwaka'wakw Tsimshian, and Haida descent. 2.

He has lived his life disconnected from his traditional community. [ 49 ] I pause to note that that requires some explanation. The community from which his family originates appears not be very cohesive in any real or traditional sort of way, so it would be difficult for him to -- there doesn't appear to be an aboriginal community or reserve upon which he could live with this particular group, but, of course, the main issue that I have to take a look at is the impact that life had upon his parents and grandparents, not just upon him. [ 50 ] Resuming from p. 15: 3.

He has expressed a willingness to address the underlying factors that have contributed to the matters before the court.

A number of adverse impact factors that affect aboriginals in general are present in D.R.U.’s personal life, including: • substance abuse, personally, in the immediate family, extended family, and community. • family or community breakdown: • Indian residential school, his grandfather, mother, aunt, and uncle attended Indian residential school and experienced physical, spiritual, cultural, and in the case of J. [that is his mother], sexual assault, trauma. • The family was also impacted by excessive alcohol misuse and family violence. • The family's traditional home at ******* was abandoned in 1968 and the band members, including D.R.U.'s family, moved to other villages and urban centres.

Today, the band maintains administrative offices in Campbell River, B.C., but has no reservation, housing, or other programs to provide to band members. • Many of D.R.U.'s aboriginal cohorts and his younger sister have died from alcohol, drugs, violence. • Sexual abuse, reportedly his mother at residential school and violence; D.R.U.'s mother was allegedly the victim of domestic abuse in each of her relationships.

She was convicted of the attempted murder of his father. • Intergenerational effects flowing from residential schools reported, example: alcohol and drug abuse, violence, low educational achievement, poverty, unemployment, suicide and suicidal ideation, reported depression in the family. • Involvement in the criminal justice system. [ 51 ] That I think is a fairly accurate

summary of this accused's life and the lives that his parents and grandparents and family members lived as aboriginal persons in this particular province. [ 52 ] As Crown counsel has fairly conceded, with this background, the accused has faced many barriers, difficult barriers that the average person in our community does not have to face.

The degree of moral culpability of the accused, is, to some extent, diminished by the background from which he comes. [ 53 ] I agree with the Crown that, in the present case, the principles of deterrence and denunciation are very important ones, so much so that there is a pressing need for a jail sentence of some kind to be imposed. [ 54 ] Rehabilitation of the accused is also of pressing concern in this situation. I recognize that the accused has attempted to deal in the past with his alcohol issues: he has not always been successful, he has had some moments of sobriety.

So it is possible that he can choose success in this regard, and I am satisfied that he is actually keen to do so because, if he is not successful in his rehabilitation, then he is not going to get his children back and that has to be a strong motivating factor. [ 55 ] So taking into account the principles of deterrence, denunciation, rehabilitation, the criminal record of the accused, the aggravating circumstances of the offence, the guilty plea of the accused, his personal aboriginal circumstances, I am satisfied that a sentence of two years less a day is the appropriate sentence in this case. [ 56 ] I am not prepared to send this young aboriginal man into a federal prison at this point in his life.

The record, in my view, does not call for it nor do the offences before me.

Although I have, in fact, called them serious, they are, in terms of break and enters when people are home, at the bottom end of the scale, with the victim receiving no injuries and the parties entering and leaving fairly quickly. [ 57 ] So the global sentence will be, in effect, be two years less a day; however, he needs to be given credit for time served, and the parties are agreed upon the amount of credit that should be granted in this case; they have calculated that credit to be 425 days. [ 58 ] Interestingly, if I deduct 365 days from that, I ended up with 60 days which is equivalent to two months, so I am going to give him credit for one year and two months, and the remaining sentence will be 10 months less a day. [ 59 ] So the sentence will be as follows: Time credited, one year and two months, plus 10-months-less-a-day imprisonment. [ 60 ] There will be a probation order to follow, that probation order will be for three years. [ 61 ] Terms of probation order as follows: He is to keep the peace and be of good behaviour. [ 62 ] He is to report to a probation officer in person within 72 hours of his release from custody at 275 East Cordova Street, Vancouver, B.C., or elsewhere as may be directed by a justice of the peace or a Corrections officer or a peace officer and thereafter as, when, and where directed by the probation officer. [ 63 ] He is to reside at an address approved of by the probation officer, including any residential treatment centre that is considered appropriate by the probation officer.

In this regard, I note that the accused has indicated a willingness to attend residential treatment centres, so this is, in effect, with his consent. [ 64 ] During the first year of this order, if he is not residing in a residential treatment centre or recovery home, he is not to be outside of his residence between the hours of 9 o'clock in the evening and 6 in the morning unless he is in possession of written permission from his probation officer to be outside the residence during the curfew hours for a specified period of time and for a specific purpose. [ 65 ] During the final two years of the probation order, there will be no curfew.

[ 66 ] At the direction of the probation officer, he is to take all reasonable steps to obtain a position in a residential recovery home or treatment centre, including but not limited to the Tsow-Tun Le Lum Recovery Society located in Lantzville, B.C. on Vancouver Island, the Hey-way'-noqu' Healing Centre, and/or the Kackaamin Family Development Centre residential treatment program which would accommodate his common-law wife's attendance as well. [ 67 ] He is to keep his probation officer apprised of all of his efforts to obtain a bed or room in such treatment centres or recovery homes. [ 68 ] He is not to possess any weapons as defined in the Criminal Code of Canada. [ 69 ] He is not to possess any knives outside of his residence or place of lawful employment save and except when he is in the process of actually preparing or consuming food. [ 70 ] He is to have no contact direct or indirect with Kenneth Rodriguez. [ 71 ] He is not to attend inside the area bounded by East Hastings Street on the north, Clark Drive on the east, 1st Avenue on the south, and Commercial Drive on the west save and except that he may travel on Commercial Drive so long as he is in a public transit vehicle and so long as he does not get off of that vehicle within the restricted area. [ 72 ] He is to take such counselling as may be directed by the probation officer, including substance abuse and other life-skill counselling programs as may be considered appropriate. [ 73 ] I have not put in a no-alcohol term.

I am just looking at all of the breaches, and I am going to make a wild guess that most of them relate to alcohol. That is a very difficult thing for him to do obviously which is why I put him on a curfew for the first year so that would hopefully keep him out of trouble in the evenings. [ 74 ] I will make this order: He is not to attend inside any business establishment whose primary business purpose is the sale and distribution of alcohol, including B.C. Government Liquor Stores, other liquor stores, bars, pubs, and other such premises. [ 75 ] So are there any questions? [ 76 ] Mr.

D.R.U., any questions? [ 77 ] THE ACCUSED: No. [ 78 ] THE COURT: Okay. There are lots of terms here that you have to pay attention to, but, in particular, you have to work with your probation officer at getting into a good program for yourself.

I have mentioned a couple of aboriginal-based programs, but I actually don't know whether they cost money or not, so some of them might be -- [ 79 ] THE ACCUSED: Is it all right to include, like, I have a say in where I go or what I do because it's been a problem in the past where my probation officer seemed to think she knows what's right for me and this is [indiscernible] -- [ 80 ] THE COURT: She may. [ 81 ] THE ACCUSED: -- outcome of her idea. [ 82 ] THE COURT: I think what you need to take into account is that they do have the ability to say which is or which is not a good recovery place.

Trust me, we are very familiar with some of these places. We know some of them are just no good, some of them are so-so, some of them are excellent, so if she says, "No, that's not a good enough place. You have to go someplace else," then you should be listening to her. If you have an insurmountable problem, you can come to court and apply to me to take a look at this situation and see if I can't resolve it. [ 83 ] You can't just ignore her.

If you ignore her or if you walk away from a residential treatment centre that she or he has sent you to, you will be in trouble and you will be back in jail. [ 84 ] If the place is not working for you, if you are in a centre that is not working for you, you have options. You can once again make an application to the court. You don't walk away, just don't do that. You come to court and you apply for permission to move to another place. Otherwise, the probation officer gets to approve the location. I have given him or her that right.

You might have a difference of opinion with her, but you can't just -- but you have to deal with that difference of opinion in court. You just put the matter down for hearing. [ 85 ] Okay.

There is going to be a DNA order. [ 86 ] Pursuant to s. 109(2), I am prohibiting him from possessing any firearm other than a prohibited firearm, a restricted firearm, and any crossbow, restricted weapon, ammunition, explosive substance for a period of 10 years after his release from prison. [ 87 ] And I am prohibiting him from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. [ 88 ] I appreciate that his life is going to be somewhat difficult once he is out of jail and he might well in fact have to apply for social assistance if he is ever going to be able to pay for a recovery bed, so I am going to exempt him on the surcharges. (REASONS CONCLUDED)