R. v. Hemmerling Date:, 2017 BCPC 10

Citation: R. v. Hemmerling Date: 20170113 2017 BCPC 10 File No: 23429 Registry: Salmon Arm IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ADOLF ALBERT EDWARD HEMMERLING REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. D. MORGAN Counsel for the Crown: Ms. Armstrong Counsel for the Defendant: Mr. Smith Place of Hearing: Salmon Arm , B.C. Date of Hearing: November 29, 2016 Date of Judgment: January 13, 2017 [ 1 ] Mr. Hemmerling has entered a guilty plea to the charge of intentionally or recklessly causing damage by fire or explosion to a

dwelling house owned by Elizabeth Kiss, contrary to s. 434 of the Criminal Code . Circumstances of the Offence [ 2 ] In the evening of December 20, 2015, the police received a call from the accused’s relative, Melissa Schoenhaltz, who reported that the accused was renting a room in her home, had been drinking, and was threatening to hurt someone. She also said he was threatening to destroy the home, and that he said he “would not go out without a bang” and “was going to take some cops down”. [ 3 ] The police arrived and entered the residence. The complainant motioned towards another room.

The police could hear the accused yelling obscenities and saying for them to leave the premises. The accused then came into view and was holding a knife to his own throat. [ 4 ] The police cleared the residence. It was clear to the police the accused was intoxicated. The accused again demanded for the police to leave and also said he wanted the police to shoot him. The accused said he was going to kill police officers, grabbed a second knife, and started counting down, apparently to give the police officers time to leave before he attacked.

The police decided to exit the residence in an attempt to de-escalate. [ 5 ] The accused continued to threaten to kill the police officers and again started to count down and started to advance toward the police. The police repositioned outside of the residence. The accused yelled that he had a 12 gauge shotgun and buckshot. The police evacuated the neighbours. The accused came out onto the porch, still holding a knife to his throat and again threatened to charge at the police officers. One officer approached with a Taser and the accused went back inside the residence.

While inside the residence the accused was raging and swearing. The objects of his anger were his relative who had called the police, and the police officers themselves. [ 6 ] A recurring theme in his raging was that he had cancer and only a few months to live and therefore did not care if he died and would take police officers with him. I pause here to note that there was no information put forth on the sentencing hearing in regards to the offender having cancer. [ 7 ] The offender also grabbed random nearby items claiming they were guns, in an apparent effort to have the police shoot him.

Eventually the police did shock Mr. Hemmerling with a taser. The accused managed to shake off the effects of the taser and re-entered the house. A police officer with a police dog kicked in the back door in an effort to distract the accused and thereby effect an arrest but the effort was unsuccessful. The accused then exited the home again and was tasered a second time and again managed to fight off its effects and went back into the residence. [ 8 ] The accused began threatening to burn the house down and said he would thereby compel, in his words, “the heroes” to try to save him and he would then kill them.

He tried to start a fire but the police managed to extinguish it. He started a second fire and the police again managed to extinguish it after kicking in a door to do so. [ 9 ] Mr. Hemmerling set a third fire that the police were unable to extinguish. The offender was still yelling that he would kill the police officers when they came into the residence. As the fire accelerated within the home, the offender called for the police to come in. At one point a police officer tried to pull Mr. Hemmerling out through a window but he threatened to stab the officer in the throat.

The flames were intense and the offender managed to get free and run back into the house. He then came back to the window and the police officers were able this time to pull him through the window and take him 50 feet away from the house just as the burning residence started to collapse. [ 10 ] The police officers took Mr. Hemmerling to the psychiatric ward.

He continued to threaten the officers and said he would kill one of the officers and the officer’s family, and told the second officer that he would kill that officer when he met with him face-to-face. [ 11 ] Photos of the home were entered as exhibits showing the house entirely engulfed in flames. The home was completely destroyed. [ 12 ] A victim impact statement was filed by the owner of the home, Elizabeth Kiss and her spouse, Tom La Porte.

Their statements make clear that, in addition to the stress and grief one would expect as a result of having their rental property burned to the ground, they also suffered a significant financial loss, given the insurance company refused to pay on the basis of a clause in the contract that apparently excludes any claim above $5,000 if the damage is caused by a tenant. Not only have this couple lost their monthly rent of $800, but they estimate the replacement cost of the residence to be $150,000. The victims are seniors. Mr.

La Porte is retired and living on a pension and Elizabeth Kiss has a small accounting practice that is seasonal, operating primarily during tax season. [ 13 ] The insurance company provided a letter stating that they suffered a loss of $3,429.90 as a result of the offender’s actions. Circumstances of the Offender [ 14 ] The court was assisted by a Presentence Report and a Presentence Psychiatric Assessment. [ 15 ] Mr. Hemmerling is 47 years old. He was adopted at birth and had an unremarkable upbringing.

He grew up on a farm in Alberta and reports that his adoptive parents treated him well and that he was not abused or neglected. He has one stepsister and two stepbrothers. He remains distant from his siblings and has not seen them in person for over a decade. [ 16 ] The Presentence Report indicates that he last completed grade 8 and that he self-reports as not being a good student and being challenged academically. He says he began smoking marihuana at age 13 and skipping school.

He reported that he attempted to return to school as an 18-year-old but was suspended and never returned. [ 17 ] However, in the Psychiatric Presentence report he self-reports as having completed grade 9 and upgrading his education by attending what he refers to as “Okanagan University” to complete his GED and says he also took courses in marketing, small business

and advertising. [ 18 ] There is no reference in either of the reports, or otherwise, in regards to Mr. Hemmerling ever having any significant work experience. [ 19 ] Mr. Hemmerling has been designated as A Person with Disabilities for social assistance purposes, and when not in custody receives social assistance in the amount of $900 per month. [ 20 ] Mr. Hemmerling reports that he came to Salmon Arm when he was 18 years old. Shortly after, he met his common-law spouse and began a 12 year relationship. The union produced three children who are now all adults.

The Ministry for Children and Family Development [MCFD] were continuously involved with the couple. In 2003 he was convicted of assaulting one of his daughters who was then 10 years old and his relationship with his common-law spouse ended. MCFD did not permit him to live with his children. He states he is on speaking terms with two of his three children but says his estranged daughter struggles with drug addiction and has distanced herself from him. [ 21 ] The author of the Presentence Report makes the following observation: Family relationships are a criminogenic factor for Mr. Hemmerling. Mr.

Hemmerling was engaged in conflict with his niece (Melissa Schoenhaltz) at the time of the current offence and many of his family members’ substance misuse influence his own. Family dysfunction combined with feelings about his childhood expose Mr. Hemmerling to negative emotions for which he is unable to cope. According to collaterals, Mr. Hemmerling was living in downtown Salmon Arm for several years without issue prior to 2014. Once Melissa Schoenhaltz began living with Mr. Hemmerling, Dave Byers [Salvation Army] claims he would only receive contact from Mr. Hemmerling during times of crisis. Eventually Mr.

Hemmerling chose to give up his place in Salmon Arm, and he and Melissa relocated to Eagle Bay. Dave states he lost all contact with Mr. Hemmerling and did not hear from him until after the fire in December 2015. [ 22 ] The report also indicates that from 2006 until 2014, Mr. Hemmerling volunteered his time and services at the Salvation Army. He is reported to have put in close to 100 hours a month as a volunteer, and was a faithful servant of the facility throughout much of this period. Mr. Byers, the Salvation Army Community Services Coordinator, reports that everybody at the local food bank respected Mr.

Hemmerling. Mr. Hemmerling would often receive small construction side jobs through the Salvation Army which kept him busy outside of his volunteering. He received an additional $200 a month from the Salvation Army. [ 23 ] In a detailed and informative reference letter, Mr. Byers reports that the people at the Salvation Army New Hope Community Church knew Mr. Hemmerling, whom he refers to as ‘Al’, for about 10 years, and first came to know him when he was living in a tent not too far from the food bank.

He goes on to say: We helped him get a place here in Salmon Arm, and Al was grateful for our help, he wanted to give back. Give back he did. During that time he volunteered with us and was putting in an average of over 100 hours a month, for about eight years. He was one of our most faithful volunteers, when we needed something done Al was there; from food drives to mowing lawns, to cleaning, to repairing what was broken, as well as shoveling snow, Adolph (Al) was always helping. On many occasions Al and I were the only ones to show up to events, as he would never say no.

Al was a likable man and people still ask to this day if I have heard from Al, wanting and hoping one day he will come back to us. Mr. Byers concludes his letter by stating: We all like Al, and there will always be a volunteer position here for Al, and if there is anything I can do on this please let me know. [ 24 ] The Presentence Report indicates Mr. Hemmerling has a history of documented mental health issues, including suicide attempts, hospitalizations and psychiatric care. Mr.

Hemmerling self-reports that he suffers from schizophrenia, depression and anxiety. [ 25 ] However, the Psychiatric Presentence Report sets out as Mr. Hemmerling’s psychiatric diagnoses, the following: 1. Alcohol Use Disorder (in remission in controlled setting: jail); 2. Marijuana Use Disorder (in remission 25 years according to self-report); 3. Unspecified Personality Disorder (mixed personality features; borderline, dependent, antisocial features). [ 26 ] Prior to moving in with Melissa Schoenhaltz, Mr. Hemmerling had obtained some stability in his life after attending Miracle Valley Treatment Center in 2005.

Given his long and successful stint at volunteering with the Salvation Army beginning in 2006, it would appear that Mr. Hemmerling was successful in keeping his alcohol and drug use under control. [ 27 ] In 2014 when he began living with his relative, Melissa Schoenhaltz, any stability he enjoyed came to an end. He self-reports as “slipping into party mode” with Melissa and her friends. He reports he and Melissa established a brief sexual relationship. At some point the relationship turned to one of roommates and Melissa’s boyfriend also moved in. [ 28 ] Mr.

Hemmerling admits using marijuana and crack cocaine, however describes his drug use as a “recreational”. However, the probation officer who completed the Presentence Report believes Mr. Hemmerling may not be particularly forthcoming about his misuse of illegal drugs leading up to the offence. Melissa Schoenhaltz states Mr. Hemmerling regularly used illegal drugs throughout the time she lived with him. [ 29 ] Mr. Hemmerling reports that Melissa’s boyfriend did not pay his third of the rent, resulting in arguments about money. Mr.

Hemmerling also says that his housing, interpersonal, and financial situation was very stressful, and in November 2015 he voluntarily entered the psychiatric unit in Vernon stressed out by a toothache and paranoid thoughts.

[ 30 ] It was shortly after he was discharged, that the index offence occurred. He states that he recalls another argument between himself, Melissa and her boyfriend, and that after feeling insulted he drank whatever alcohol he could find in the house and recalls becoming more enraged prior to his memory blacking out. He reported to the psychiatrist that he could tell he was going to have a psychotic break and therefore told Melissa to call 911. [ 31 ] The psychiatrist states that it appears Mr.

Hemmerling does not have a major mental disorder, but that his behaviour is more accurately explained by an ‘immature personality organization and alcohol addiction.’ [ 32 ] Mr. Hemmerling has a criminal conviction history. In 1991 he was convicted of possession of property obtained by crime and received a $500 fine. In 2003 he was convicted of assault and received a suspended sentence and probation for 12 months. In 2005 he was convicted of using a stolen credit card and received a suspended sentence and 12 months’ probation. [ 33 ] Mr.

Hemmerling has expressed a desire to attend the John Howard Society Creekside Addictions Recovery Program at Howard House in Vernon BC. The Program Coordinator for the Creekside Addictions Recovery Program states that if there is a room available upon his release he will be able to move in that day. However, information was also provided indicating there is a heavy demand during the winter months for access to the program and that there was a concern as to where Mr. Hemmerling would find accommodation in the interim. Sentencing Position of the Crown [ 34 ] Crown counsel Ms.

Armstrong submits the appropriate sentence is within a range of two to three years jail. She says that if the sentence is not a federal sentence, then a lengthy period of probation should follow the custodial portion of the sentence. [ 35 ] The Crown provides and relies on the following case law: • R. v. Day , 2013 BCCA 172 ; • R. v. Kaufman , 2009 BCCA 165 ; • R. v. Keber , 2005 BCCA 543 ; • R. v. Allard , 1999 BCCA 481 ; • R. v. Clifford , 2015 BCSC 875 ; Sentencing Position of the Defence [ 36 ] Mr. Smith, counsel for Mr.

Hemmerling, concedes the case law provided by the Crown establishes the usual range of two to three years for offences of this type. [ 37 ] Notwithstanding this recognition, Mr. Smith says the particular circumstances of the offender are such that a sentence of time served, followed by a lengthy period of probation, not only addresses the principles of denunciation and deterrence, given the lengthy period of pre-sentence custody already served, but will enable long term supervision that will best address the goal of rehabilitation and the protection of society. [ 38 ] Mr.

Hemmerling has been in custody since the offence date of December 20 th 2015. [ 39 ] As of today’s date of January 13, 2017, he has served 389 days. If credit is given at the usual rate of 1.5 days for each day served, he has served the equivalent of 584 days, or 19 months and 6 days. [ 40 ] Mr. Smith points out that Mr. Hemmerling has done well on previous community supervision and functions much better when subject to structure in his life. [ 41 ] The Defence provides and relies on the following case law: • R. v. Shore , 1999 BCCA 227 ; • R. v. Mirzakhalili , 2009 ONCA 905 ; • R. v. Fehr , 2013 MBQB 226 .

The Law [ 42 ] The Criminal Code sections 718 to 718.2 , which relate to the purpose and principles of sentencing, govern this sentencing proceeding.

The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. [ 43 ] This purpose is achieved by imposing just sanctions that have one or more of the following objectives: to denounce unlawful conduct, to deter the individual offender and other persons from committing offences, to separate offenders from society where necessary, to assist in rehabilitating offenders, to provide reparations for harm done to victims or to the community and to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [ 44 ] A sentence is to be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 directs that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances.

[ 45 ] A review of the case law shows much emphasis is to be put on denunciation and deterrence, along with the goal of rehabilitation. [ 46 ] In R. v. Day (above), the BC Court of Appeal upheld Mr. Day’s sentence of two years less a day followed by two years’ probation, for two counts of recklessly causing damage by fire or explosion contrary to

section 434 of the Criminal Code . Although it was clear that Mr. Day had mental health problems, a psychiatric assessment was done and the psychiatrist’s opinion was that it was not Mr. Day’s mental health that caused him to set fire to the camper he was living in on his family’s property, but rather it was his alcohol consumption. Mr. Day had a lengthy criminal record, primarily for breach related offences and had no prior arson related convictions.

At paragraph 18, Kirkpatrick J.A., on behalf of the court, concluded as follows: [18] In my opinion, the sentence imposed was not a substantial and marked departure from sentences customarily imposed on similar offenders in similar circumstances. This was a very serious offence that, as the judge noted, had the potential for erratic and unforeseen consequences. It is apparent from Dr. Lax’s report that Mr. Day’s mental illness did not cause him to commit the arson and it cannot be said his moral culpability was reduced as a consequence of his mental illness. Nonetheless, the judge recognized that Mr.

Day consciously attempted to avert disaster by alerting his family to the fire and took that into account in fashioning the sentence. Mr. Day has a very poor record of community supervision and has not taken advantage of the many opportunities offered in the past for rehabilitation. He has an extensive record of 32 convictions, including two breaches of conditional sentence orders, three convictions for violent offences, and two convictions for obstructing police. He was on probation at the time he committed the arson. He had been unemployed for some time.

He has routinely aggravated his mental health status by failing to see his psychiatrist and indulging in alcohol and illicit drugs. He no longer has the support of his family, for reasons directly related to his putting them at risk of harm. These were all factors considered by the judge in arriving at sentence. [ 47 ] In R. v. Kaufman (above), the BC Court of Appeal upheld the total sentence of two years less a day followed by 3 years’ probation for Mr. Kaufman who eventually admitted to having set two fires; the first in 2004 and the second 2007.

On both occasions he set a mattress on fire and was motivated by difficulties he was experiencing in his personal relationships. There was evidence he intended and expected the fires to be discovered quickly and the damage to be limited. On the first occasion he had researched on the Internet how to set a “safe, controlled fire”. He knew his fiancée’s parents, who lived upstairs, were home and expected them to discover the fire quickly. He remained on the front lawn until the fire was discovered. [ 48 ] On the second occasion, when he determined no one had discovered the fire, he called 911 himself.

The trial judge determined a sentence emphasizing personal deterrence and denunciation was required. [ 49 ] Mr. Kaufman particularly emphasized on his appeal the fitness of the lengthy period of probation. At para. 14, Groberman J.A., for the court, stated the following: 14. The accused does not now take issue with the fitness of the period of incarceration, but does say that the lengthy period of probation was unfit. I disagree. The lengthy period of probation was in keeping with the trial judge’s concerns about recidivism. As this court remarked in R. v.

Keber , 2005 BCCA 543 at para. 7 : It is not uncommon for lengthy periods of probation to be imposed in cases where offenders have been convicted of arson and where there are concerns about rehabilitation and the protection of the public. [ 50 ] The case of R. v. Allard , the BC Court of Appeal noted the offender’s sentence of two years less a day and three years’ probation, after he had served 13 months in presentence custody, which made the effective jail sentence slightly over four years, was towards the upper end of the range. Nevertheless the Court of Appeal upheld the sentence. [ 51 ] Mr.

Allard had been in a relationship with a woman and relations had become strained. The woman told Mr. Allard to leave her home and he threatened to harm her and to damage her property. Later the same day when the woman and her two children were absent from the home, Mr. Allard intentionally set fire to the home causing substantial damage as well as the death of several household pets. [ 52 ] The sentencing judge noted the lack of remorse and was of the view that Mr.

Allard remained a danger and threat to the woman, her children, and her property, and imposed a sentence that focused on specific deterrence and protection of the public. [ 53 ] In R. v. Clifford (above), Justice Macintosh sentenced Mr. Clifford to three years for his arson conviction, and 10 months to be served concurrently on a conviction for mischief. Mr.

Clifford, a veterinarian without a criminal conviction history, was found to have been motivated out of revenge against his ex-spouse and her family as a result of having failed in the courts to gain custody over his son. [ 54 ] Justice Macintosh noted that rather than trying to continue to resolve the dispute in the courts, the offender took justice into his own hands. Mr. Clifford’s setting of fires to 16 trees in an orchard and the burning of his ex-spouse’s parents’ garage and contents, was found to have been carefully planned.

He had bought a night vision monocular and drove 6 to 7 hours to the complainant’s property in order to perpetrate the crime. [ 55 ] At paras. 18 and 19 of the Clifford decision, Mr. Justice Macintosh referred to the case law presented, several of which are the same cases I have been referred to, and determined that although they all contain facts that are useful for consideration and other facts that make them distinguishable, all of them lead to the conclusion that arson is always viewed with the utmost concern. [ 56 ] In the case relied on by the defence of R. v.

Fehr (above), the offender set fire to his own residence using an accelerant. He had a criminal record that included two prior convictions for arson, both related to his own property. There was evidence that presented Mr. Fehr as a highly troubled man who urgently needed psychological intervention. [ 57 ] He had made several prior unsuccessful suicide attempts. The psychiatric report noted the offender was experiencing increasing severe psychotic symptoms consistent with a diagnosis of schizophrenia, and that his psychotic disorder related to the previous arsons. Mr. Fehr was assessed at a high risk to reoffend.

[ 58 ] In short, the court categorized Mr. Fehr as an arsonist who suffers from mental health concerns. With regards to the primary sentencing principles in a case of arson, the court, at page 6 in the third paragraph from the top, stated: Without question, crimes of this nature demonstrated total disregard for the lives and safety of neighboring persons, and their respective properties. Additionally, the safety of those employed in fighting fires and paramedic services must also be mixed into such considerations. As was stated in Fewer [ R. v. Fewer , 2004 N.J. No. 433 (N.L. Prov. Ct.) ]: 36.

The primary principles of sentencing that must be applied in all cases of arson are those of general deterrence and denunciation. Arson obviously causes property damage; however, the seriousness of this offence extends well beyond any property damage that might occur. Fire is inherently dangerous and difficult to control. Setting fire to a building can have unintended and fatal consequences. There are various individuals in our society that have the unenviable task of being required to respond to fires. They risk their lives every time they do so.

Arsonists recklessly place the lives and safety of such individuals at risk. Therefore, the sentences imposed for this offence must reflect this factor. At the bottom of page 7 the court in Fehr stated: …There is no question that Fehr suffers from psychological and addiction issues that must be addressed. I’m satisfied that there is a strong likelihood that this fire was ignited because of those issues and was indicative of a possible suicide attempt.

At the second paragraph on page 8 the court determined the appropriate sentence as follows: In the circumstances of this case, I believe that a sentence of incarceration of two years less a day is appropriate, particularly given Fehr’s related criminal record for arson. Indeed, a higher sentence could well be warranted given those prior convictions. However, because Fehr’s unique issues related to emotional/mental health and addictions, he would be best served by engaging in treatment and being monitored over an extended period of time by probation services.

This is made possible by the imposition of the two-year probation order. [ 59 ] In the case relied on by the defence of R. v. Shore (above), the offender was found to have been intoxicated and upset with the captain of a sailing vessel with whom she had a brief relationship. She drank to the point of blackout and set fire to the boat, using gasoline as an accelerant, causing substantial damage. She was convicted of intentionally or recklessly causing damage by fire contrary to

section 434 of the Criminal Code . The issue before the Court of Appeal was whether the sentencing judge erred by not imposing a conditional sentence. Both counsel for the Crown and counsel for the defence made submissions to the sentencing judge that a conditional sentence order would be the appropriate sentence. The sentencing judge determined a conditional sentence order was a sentencing option and that placing the offender on a conditional sentence would not endanger society.

However, the judge concluded that a conditional sentence would not adequately denounce the crime, and sentenced the offender to two years less a day jail time followed by three years’ probation. [ 60 ] The BC Court of Appeal disagreed that a conditional sentence would not have the appropriate deterrent and denunciatory effect and changed the sentence to a two-year less a day conditional sentence order followed by two years’ probation. [ 61 ] I note that a conditional sentence is no longer a sentence that is available for this offence. [ 62 ] In R. v.

Mirzakhalili (above), the Ontario Court of Appeal determined that a conditional sentence order was an inappropriate sentence for a father and son who followed through on their plan to blow up and burn down their own store for insurance purposes using gasoline as an accelerant, notwithstanding they knew people were working late in the adjoining shop in a strip mall. The Ontario Court of Appeal court determined the appropriate sentence would have been a custodial sentence of two years less a day.

However the court noted that given the passage of time for the appeal process, and the offender’s compliance with their conditional sentences up to the date of the Court of Appeal’s decision, and the good reports of rehabilitation, the appropriate sentence at the time of the Court of Appeal’s decision was 12 months’ custody for both respondents. Decision [ 63 ] As in the Day case, Mr. Hemmerling’s actions on December 20, 2015 were not caused by a mental illness but rather were related to his heavy alcohol consumption.

Although I accept he may be a person more prone to erratic behaviour and poor decisions when he drinks and/or uses illicit drugs, this is something that Mr. Hemmerling would surely know about himself. [ 64 ] The psychiatric assessment establishes that Mr. Hemmerling’s mental health issues are primarily related to alcohol abuse. His diagnosed alcohol use disorder is likely exacerbated by his use of illicit street drugs including his admitted consumption of crack cocaine. [ 65 ] I fully recognize that Mr.

Hemmerling has personal characteristics that may combine to make it a challenge for him to lead a successful life and make good decisions when he decides to consume alcohol or use street drugs.

However, he has proven he can abstain from both, and be a significantly contributing member of society when he does so. [ 66 ] Given his erratic behaviour was brought on by his self-induced intoxication, I cannot find that his moral culpability was reduced as a result of any mental illness. [ 67 ] A primary aggravating factor in this case is the on-going confrontation with the police leading up to the setting of the fires, and the continued efforts he made to set the house ablaze, not being successful until the third attempt, the previous two fires having been extinguished by police officers. Mr.

Hemmerling’s stated intention to force the police to come and rescue him from the fire and thereby put themselves at risk, not only from the fire, but also from his actions toward the police at both resisting their rescue efforts, and his repeated threats to personally cause them harm, is a significantly aggravating factor. [ 68 ] The mitigating factors include his guilty plea, genuine remorse, and rehabilitation that he has started while in custody, and his

plan for continued rehabilitation upon his release. [ 69 ] His long history of volunteering at the Salvation Army and the strong character reference written by the Salvation Army representative showing that Mr. Hemmerling can be a significantly contributing member of society when he has his alcohol use disorder in remission (by not drinking) is also a significantly mitigating factor that I take into consideration. [ 70 ] The appropriate sentence for Mr. Hemmerling must denounce the conduct and deter Mr. Hemmerling and others from like behaviour, but also for Mr.

Hemmerling’s rehabilitation and to best protect society, the sentence must also include long-term supervision. The evidence provided is that Mr. Hemmerling does very well when subject to community supervision. [ 71 ] The sentence will be two years less a day followed by three years’ probation. Mr. Hemmerling will be credited 1.5 days for every day he has spent in presentence custody. As of January 12, 2017, he has been in custody for 389 days and will be given a credit of 584 days. Consequently, he will serve a further 146 days in custody.

I confirm here that even if my calculations of his presentence custody are shown to be incorrect, the over-all sentence is two years less a day, less time served at a 1.5 to 1 credit. [ 72 ] The conditions of his probation will be as follows: 200 You shall keep the peace and be of good behavior. You shall appear before the court when required to do so by the court.

You shall notify the court or your 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. 201A Within 72 hours after completion of this or any other jail sentence, you shall report in person to the probation office located at # 101 – 6th St., NE Salmon Arm BC., and after that you shall report as when directed by the probation officer. 203A When first reporting the probation officer, you shall inform him/her of your present residential address and phone number, and you shall not change your address or phone number at any time without first obtaining the written consent of the probation officer. 208 You shall have no contact or communication directly or indirectly with Elizabeth Kiss or Tom La Porte. 211A You shall not attend at, or be within 100 meters of any place which you know or believe to be the residence, school or workplace of Elizabeth Kiss or Tom La Porte. 215 You shall not possess or consume any illegal drug or controlled substance within the meaning of

section 2 of the Controlled Drugs and Substances Act . Any prescription drugs that you possess or consume must only be those which are specifically prescribed to you by a qualified medical practitioner or dentist. 215 For the first 12 months of your probation, you shall not possess or consume any alcohol. 222 You shall not possess any weapon as defined in

section 2 or item listed in

section 109 of the Criminal Code or any imitation thereof. 225 You shall not possess any knife outside your residence, except for the purpose of preparing or eating food, or for purposes directly and immediately related to your employment. 227 You shall attend, participate in and successfully complete, any assessment, counselling or program as directed by the probation officer.

Without limiting the general nature of this condition, such assessment, counselling or program may relate to: anger management, alcohol or drug abuse, psychiatric and psychological health, and a full-time attendance program for alcohol or drug abuse, and you shall comply with all rules and regulations of any such assessment, counselling or program. 233 Within the first six months of your probation, and under the direction and supervision of the probation officer, you shall successfully complete 25 hours of community work which may be completed for the benefit of the Salvation Army. 239 You will not have in your possession any lighter, matches or other incendiary device. [ 73 ] I also make the following ancillary orders: [ 74 ] Pursuant to

section 738 of the Criminal Code , I order you to pay restitution to Elizabeth Kiss in the amount of $50,000. [ 75 ] I pause here to note the victim impact statement provides the victim's own estimate of the cost of replacement at an amount much higher than this, but there is no supporting evidence. I can conclude the loss is at least $50,000. I note it is unlikely the offender will ever be in a position to pay this amount, and consequently I make this a stand-alone order of restitution and not as a condition of probation.

The victim is at liberty to enforce this restitution order in civil court, and also to pursue further civil action for loss they suffered that is over and above this restitution order. [ 76 ] Pursuant to

section 738 of the Criminal Code , I order you to pay restitution to Family Insurance Solutions in the amount of $3,429.90. [ 77 ] Pursuant to section 109(3) of the Criminal Code you are prohibited from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substances, for life. [ 78 ] The charge Mr. Hemmerling has been convicted of is a DNA secondary designated offence. Given the circumstances of the offence, and Mr. Hemmerling's criminal conviction history, Mr. Hemmerling is ordered, pursuant to

section 487.051 of the Criminal Code , to provide a sample of his DNA for purposes of registration in the national DNA databank. The Honourable Judge R. D. Morgan

Provincial Court of British Columbia