R. v. Schneider Date:, 2016 BCPC 268

Citation: R. v. Schneider Date: 20160906 2016 BCPC 268 File No: 238307-3C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. RANDOLPH GLADWIN SCHNEIDER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: Isobel Keeley Counsel for the Defendant: Kasandra Cronin Place of Hearing: Vancouver , B.C. Date of Hearing: June 3, 2016 Date of Judgment: September 6, 2016

Introduction [ 1 ] Mr. Schneider entered guilty pleas to the following offences: 1. Break and enter to a dwelling house and committing an indictable offence to wit theft. 2. Robbery of M.K. 3. Having his face masked with the intent to commit an indictable offence (robbery of M. K). 4. Sexual assault of L.T. 5. Having his face masked with the intent of committing an indictable offence (sexual assault of L.T.). [ 2 ] Crown counsel argues a fit and appropriate sentence is a global custodial sentence of 5 - 7 years less credit for time served.

The Crown is also seeking ancillary orders with respect to a DNA order, a weapons prohibition, and a requirement that Mr. Schneider comply with the Sex Offender Information Registry Act. Crown is also seeking a restitution order. [ 3 ] Counsel for Mr. Schneider argues that a fit and appropriate sentence would be a sentence that, after considering the time that he has already served, results in a sentence remaining of two years less one day followed by 3 years of probation. [ 4 ] The task for this court is to impose a sentence that is fit and appropriate in all of the circumstances.

Circumstances of the offences Break and enter (Count 1) [ 5 ] On November 11, 2014, at 7:00 a.m., J.E. was working on her computer while in her apartment. At one point J.E. looked outside to her patio and she saw a male later identified as Mr. Schneider. [ 6 ] Mr. Schneider was naked expect for a red wig. He had one hand on the patio door. He was looking at J.E. as he masturbated. J.E. got up and ran to a bedroom and woke up her roommate. She then placed her body against the door to that room. [ 7 ] Mr. Schneider opened the sliding glass door and made his way to the bedroom containing J.E. and her roommate. Mr.

Schneider tried to open the door but because of J.E.’s efforts he was only able to partially open it. [ 8 ] J.E. and her roommate heard Mr. Schneider yell, “Let me pee in your mouth and then I’ll leave”. Mr. Schneider’s speech sounded slurred and it appeared that he was asking or begging. [ 9 ] Mr. Schneider next retreated from the door and left the suite. Prior to leaving the suite he stole a pair of underwear and the computer that J.E. had been working on. The approximate value of the computer was eight hundred dollars.

Robbery of M.K. and having his face masked (Counts 5, 6) [ 10 ] At 11:30 p.m., on January 31, 2015, M.K and her friend were waiting for a bus when Mr. Schneider approached them from behind. He was wearing a multi coloured balaclava that covered his entire face and head, except for his eyes. He had a 6-8 inch knife that was taped to his chest. [ 11 ] Mr. Schneider said to the women, “I just want you to pee on me and no-one’s gonna get hurt.” The woman with M.K screamed and M.K. pushed her satchel towards Mr. Schneider as Mr. Schneider leaned in towards her. [ 12 ] Mr.

Schneider cut the satchel from M.K.’s shoulder and took it running west and turning into nearby gardens. The police were called and the bag was located as was M.K.’s cell phone. The cell phone was damaged and the items that were in M.K’s satchel were missing and never recovered. Sexual assault of L.T., and having his face masked (Counts 8, 9) [ 13 ] On February 15, 2015, at 8:00 a.m., L.T. was at Stanley Park watching a running event. At that time she entered the woman’s washroom. As she moved towards an empty stall Mr. Schneider confronted her within the confined area. [ 14 ] At the time Mr.

Schneider was wearing a white nylon mask with cut-out eye holes. The mask covered his entire face. [ 15 ] According to L.T. Mr. Schneider said something that sounded like, “peeing in the mouth” and that he was not going to, “take no for an answer.” L.T. screamed and swore at Mr. Schneider who immediately began to flee from the washroom. When Mr. Schneider

was exiting he accidently bumped L.T. [ 16 ] With respect to the facts of the incident involving L.T., counsel agree that when the facts are considered collectively that the offence of sexual assault is made out. Arrest of Mr. Schneider [ 17 ] Shortly after the events involving L.T., the police went to Mr. Schneider’s residence and while speaking to him through the door Mr. Schneider fled by jumping out of the window. [ 18 ] A search warrant was obtained and executed. Inside the apartment the police located a mask similar to what had been worn during the assault of L.T.

Also located were, 69 pieces of women’s underwear, a black open face balaclava, M.K’s bank card and notes as well as drawings with the theme of a woman urinating in a man’s mouth. See: Exhibit 1, tab 1. [ 19 ] Mr. Schneider was arrested on February 16, 2015, and he has been in custody since that date. Victim impact J.E - victim of the break and enter [ 20 ] J.E.’s victim impact statement is found in Exhibit 1 at tab 3. In it, J.E. describes how she moved to Vancouver in order to start college.

She outlined how the events forced her to leave college, sell her condominium and move back with family. [ 21 ] She suffers from anxiety and depression. She has lost trust in humanity and is suspicious of male strangers. She finds re- visiting the offence to be painful. M.K - victim of the robbery [ 22 ] M.K’s victim impact statement is found in Exhibit 1 at tab 4. In her statement M.K outlined how she feels vulnerable in public and feeling fearful. The events resulted in her having to replace all of her identification as well as having to change the locks on her residence.

L.T. - victim of the sexual assault [ 23 ] L.T.’s victim impact statement is found in Exhibit 1 at tab 6. A review of her statement makes is clear that the assault had a profound impact on L.T’s emotional well-being and her sense of security and safety.

Her words regarding her emotions as they relate to the offence are particularly poignant and they read: Utter terror, overwhelming fear for safety, nervousness, anger, feeling of loss, frustration, trapped, regret, helplessness, feelings of abandonment, loneliness, cry easily, stressed. [ 24 ] As a result of the assault, L.T. has changed her life style in that she no longer goes to Stanley Park and she has altered her work routine in order to avoid being alone. She now takes medication to help her cope and attends counselling sessions. Mr. Schneider’s personal circumstances [ 25 ] Mr. Schneider is 43 years old.

He was adopted at 6 months of age and he lived in West Vancouver. Mr. Schneider described his adoptive father as abusive reporting that he was a disciplinarian using broomsticks and hard objects. [ 26 ] Due to behaviour issues Mr. Schneider was dismissed from school when he was 10 years old. He then and much later reports having completed schooling to the level of grade 10. His work history is limited and in this regard he sporadically worked in construction.

He was last employed in 2012 at a pizza restaurant where on his own admission he spent most of his time selling cocaine out of the back of the restaurant. [ 27 ] Mr. Schneider’s behaviour caused difficulties at home and he was placed into foster care at 14. He lived in four different placements and at 16 he left the care of the Ministry. [ 28 ] Mr. Schneider has been in two long term relationships and he has no close friendships. His last long term relationship was with Pauline Walton. She was interviewed by the police and she confirmed Mr. Schneider’s fascination with women urinating and defecating on him.

She also confirmed that Mr. Schneider’s drug use increased his sex drive. She reported that he has never forced her to unwillingly engage in sex and that he has never been violent with her. [ 29 ] According to Ms. Walton, Mr. Schneider has come home with women’s clothing. He explained to her that he found some of the clothing while binning, but did acknowledge stealing some of the underwear. [ 30 ] The pre-sentence report documented Mr. Schneider’s long history of problematic and sexually inappropriate behaviour. At a young age, Mr.

Schneider was masturbating in front of his peers, urinating out of windows, throwing urine at peers and saving his urine. Mr. Schneider made obscene phone calls to his mother and he drilled holes in a bathroom in order to watch his grandmother urinate. Mr. Schneider estimated that while using drugs that he masturbated approximately 10 times per day. He acknowledged extensive use of pornography and being sexually stimulated by urine. [ 31 ] As a teenager attempts to have Mr. Schneider participate in sex offender therapy was unsuccessful.

He reports that he does not believe in programming while in custodial centres and that he is not prepared to take counselling while in custody as he has a fear of being targeted.

[ 32 ] Mr. Schneider has used illicit drugs for the majority of his life. He first used crystal methamphetamine when he was 12 years old. Between the ages of 14 and 18 he regularly used crystal methamphetamine and then again when he was 24. He restarted using crystal methamphetamine about 4 years ago and reports he used it to wean himself off of crack cocaine which is his drug of choice. [ 33 ] As for Mr. Schneider‘s criminal background, Ms. Dobranski, the probation officer who prepared Mr. Schneider’s pre-sentence report, observed the following about Mr. Schneider’s criminal record: Mr.

Schneider has been steadily involved with the criminal justice system since the age of thirteen and has a total of eighty-one convictions. He has an eclectic criminal history comprising of noncompliance, drug offences, property offending, violence and sexual offending. He has not been deterred by custodial or community sentences. [ 34 ] A review of Mr. Schneider’s criminal record found at Exhibit 1, tab 2, confirms Ms. Dobranski’s observations. I note a gap in his record between 1997 and 2003. I also observe that Mr. Schneider’s longest custodial sentence was 6 months. [ 35 ] As for Mr.

Schneider’s compliance with community supervision, Ms. Dobranski noted: Mr. Schneider has an extremely poor history of noncompliance while on community supervision. He has been convicted of breaching his community supervision orders twenty-one times and he has committed new offences during most of his supervision periods. During the subject’s last period of community supervision, he routinely missed appointments and was not receptive to any assistance or programming to address his risk factors.

He was referred to the Self-Management and Recovery Program for support with his substance misuse, but only attended one session. He does not appear to be a good candidate for community supervision. [ 36 ] A pre-sentence psychological assessment was prepared for sentencing. The purpose was to assess Mr. Schneider for the presence of a mental disorder and/or paraphilia to identify his treatment needs, possible probation conditions and his risk. [ 37 ] With respect to the above, Dr. Mordell was of the opinion that Mr.

Schneider did not show signs of a major mental illness such a psychosis or a serious mood disorder. Testing did confirm Mr. Schneider suffered from a learning disability. [ 38 ] During the assessment Mr. Schneider indicated that his release plan was to find housing, avoid substances and marry his girlfriend. Mr. Schneider commented that he is supportive of community supervision and that he welcomes conditions that have someone looking out for him. [ 39 ] Mr. Schneider’s risk of future sexual violence was evaluated and the conclusion was, if Mr.

Schneider was able to abstain from substances and participate in treatment then the risk was moderate, but it would be high if Mr. Schneider started using substances. In this regard, Dr. Mordell stated: Mr. Schneider’s risk was estimated to be moderate if he is able to abstain from substance use and participates in treatment, though it would be high if he begins using substances again. His risk level suggests a high need for treatment.

In addition to substance use the presence of stress and an inability to have his sexual needs gratified in a consenting relationship are likely to increase his risk, while his successful participation in treatment may lower his risk. If Mr. Schneider were to re-offend sexually, it appears most likely that he would similarly approach unfamiliar women and potentially increase the level of coercion. He may also engage in non-contact offences such as voyeurism or exhibitionism, which could then escalate to approach behaviours as in his current offences.

Based on his self- report and past behaviour, the use of physical violence in the commission of a sexual offence appears less likely but still possible under the conditions of crystal methamphetamine use. Mr. Schneider also presents a risk for more general offending if he begins using substances again. Purpose and principles of sentencing [ 40 ] The purpose and principles of sentencing are found in ss. 718 – 718.2 of the Code . Plainly stated, these sections codify the intention and rational for imposing particular sentences. [ 41 ]

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

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

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

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

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 42 ]

Section 718.1 directs that a sentence must be proportionate to the gravity of the offence and the degree of offender responsibility. [ 43 ]

Section 718.2 sates in part:

A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, … (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (

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

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

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

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 44 ] In the instant case Mr. Schneider’s criminal record demonstrates that previous sentences have failed to deter him or rehabilitate him. I am of the opinion that his situation is similar to that discussed in R. v.

Kory 2009 BCCA 146 and therefore protection of the public through a denunciatory sentence is mandated. [ 45 ] Despite my comments, I appreciate any sentence imposed must be proportional and not so long that any chance at rehabilitation is lost. In the circumstances and despite my view that Mr. Schneider’s prospects are minimal, I do recognize the small gaps in his criminal record. [ 46 ] The offences committed by Mr. Schneider were serious. In support, I observe the offences for which he is being sentenced have the maximum sentencing range from life to ten years imprisonment. [ 47 ] I find Mr.

Schneider’s moral culpability to be high. Although under the influence of crystal methamphetamine he had the ability to bring a mask, bring a knife and to escape thereafter. Moreover, Mr. Schneider had, prior to his offences, the self-awareness that his use of crystal methamphetamine created circumstances where he could not control his sexual urges. Aggravating circumstances [ 48 ] Mr. Schneider committed the break and enter when he knew that the dwelling house was occupied. Such conduct not only is terrifying for the occupants but substantially increases the potential for violence. [ 49 ] Mr.

Schneider being armed with a knife when he committed the robbery posed a risk. I say this knowing the knife was not directly used against the victim, however, the mere presence of the knife in circumstances where Mr. Schneider was under the influence of crystal methamphetamine amplified the risk. [ 50 ] Mr. Schneider’s criminal record: In addition to his various convictions Mr. Schneider has multiple convictions for break and enter, a conviction for sexual assault and convictions for violence. [ 51 ] The location where Mr.

Schneider assaulted L.T.: In this regard, he chose a woman’s bathroom which is a location where there must be privacy and a feeling of security. His actions violated that security and privacy not only for L.T. but for any woman who learns of this matter. Mitigating factors [ 52 ] Mr. Schneider entered guilty pleas at an early opportunity. I am told that the trial of this matter would have taken several weeks and required numerous witnesses. The guilty pleas saved the expense of prosecuting the case, but more importantly, it saved the victims from having to come to court and re-visit the trauma they have suffered.

For these reasons the guilty pleas are substantially mitigating. [ 53 ] At sentencing Mr. Schneider did express some remorse; however, I give it minimal weight given his minimizing of the offences as noted in the pre-sentence report. Discussion [ 54 ] The offences committed by Mr. Schneider were serious and although no physical harm occurred all of the victims were severely traumatized. Mr. Schneider targeted vulnerable women in that they were out at night, in a restroom, or young and in their own home. [ 55 ] Mr. Schneider’s actions were for his gratification without consideration of or sympathy for his victims.

He has an extensive record and efforts to rehabilitate have failed. [ 56 ] Despite my comments above, I recognize no physical harm occurred and that although any sexual assault is serious; as pointed out by Crown, the sexual assault in the instant matter is at the low end of the scale. [ 57 ] I have also carefully considered the able submissions of Mr. Schneider’s counsel, however, I am of the view that the suggested sentence would not properly protect the community given Mr. Schneider’s non-compliance with previous orders and his demonstrated lack of follow through with recovery.

Nevertheless, I am also of the view that the global sentence at the high end of the range sought by

the Crown would not only destroy any chance of rehabilitation but would also be disproportionate with the circumstances of the offences. Sentences [58] After considering all of the submissions and the cases that have been filed I impose the following sentences: For count 1: Break and enter, I sentence Mr. Schneider to imprisonment for 2 years. Count 5: Robbery; I sentence Mr. Schneider to imprisonment for 1 year. Count 6: Face masked with intent to commit robbery, I sentence Mr. Schneider to imprisonment for 6 months. Count 8: Sexual assault; I sentence Mr. Schneider to imprisonment for 8 months.

Count 9: Having his face masked while committing a sexual assault; I sentence Mr. Schneider to imprisonment for 6 months. [59] All sentences are to be consecutive to each other. The total sentence imposed is 4 years and eight months. After considering allof the factors including Mr. Schneider’s personal circumstances I find that the total sentence does not offend the totality principle. [60] Finally from the sentence imposed the record will reflect: Mr.

Schneider has served 1 year, 6 months and 3 weeks in pre-trialcustody and at enhanced credit of 1.5 days for every day served he is to be credited with an additional 9.5 months for a total time of 2years, three months and three weeks. Accordingly, Mr. Schneider’s remaining custodial time is 2 years, four months and one week. Ancillary Orders [61] Pursuant to s. 487.051, Mr. Schneider must provide a sample of his DNA. [62] Pursuant to s. 490.012, I order in Form 52 that Mr. Schneider comply with the Sex Offender Information Registry Act for aperiod of 20 years. [63] Pursuant to s. 109 of the Criminal Code, Mr.

Schneider is prohibited from possessing any firearm, cross-bow, prohibitedweapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, and explosive substances for life. Restitution and victim fine surcharge [64] Mr. Schneider was on disability prior to his incarceration. He has been in custody for over a year and a half. Prior to beingimprisoned Mr. Schneider lived a very meagre existence likely spending all of his money on drugs. Additionally, and because of Mr.Schneider’s status and background, I do not see a realistic possibility of him ever being able to satisfy a restitution order.

As such, andafter considering R. v. Fitzgibbon, (SCC), [1990] 1S.C.R. 1005, I am declining to issue an order for restitution. [65] As for the victim fine surcharge, it is payable forthwith on all counts and in default 1 day in jail which is to be servedconcurrently to the sentences just imposed. _____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia