R. v. Stevenson Date:, 2015 BCPC 256

Citation: R. v. Stevenson Date: 20150923 2015 BCPC 0256 File No: 24027-C-7 Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANDREW ZACHARIAS STEVENSON ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE HEWSON Counsel for the Crown: S. Patola Counsel for the Accused: K. Wyllie Place of Hearing: Nelson , B.C. Date of Hearing: September 22, 2015 Date of Judgment: September 23, 2015

[ 1 ] Mr. Stevenson has pleaded guilty to eight different offences that were committed in the West Kootenays on five different dates in March and April, 2014. The first pair of offences were the robbery at Johnny's Grocery in Robson, BC on March 7, 2014, during which he used an imitation firearm. The second pair of offences were the robbery of the Kootenay Savings Credit Union in Castlegar, BC on March 11, 2014, during which he again used an imitation firearm. The third pair of offences occurred one month later on April 11, 2014, when he committed a robbery at the Kootenay Currency Exchange in Nelson BC.

During that offence he discharged a sawed off shotgun. The sawed off shotgun was a prohibited firearm. On April 18, 2014, Mr. Stevenson broke into two pharmacies in Castlegar, BC and stole prescription drugs. Finally, on April 25, 2014, Mr. Stevenson committed the robbery of the Nelson and District Credit Union in Nelson, BC using the sawed off shotgun, a prohibited firearm. [ 2 ] In these reasons for sentence, I will address Mr. Stevenson's background, as well as the circumstances of the various offences, and the impact of the offences on Mr. Stevenson's victims.

I will then review the law that applies in this case, including the law with respect to mandatory minimum sentences and the proper approach to sentencing an offender for multiple offences. Finally, I will review the aggravating and mitigating factors in this case, and explain how I have arrived at what I conclude is a just sentence. [ 3 ] There has been a great deal of interest about this case in our community. At the conclusion of this sentence hearing, I intend to ask that a copy of my reasons for sentence be posted for the public on the Provincial Court's website.

Circumstances of the Offender, and of the Offence [ 4 ] Andrew Zacharias Stevenson is 35 years old. He was raised in a stable, supportive home in Castlegar, BC. His mother passed away in 2006. His father, who continues to be supportive of him, had a heart attack last week and is still hospitalized. He has two older siblings, with whom he is still in contact. [ 5 ] Mr. Stevenson dropped out of school in grade 10, and has an extensive work history in various general construction and labor jobs. He was on income assistance at the time of his arrest. [ 6 ] Mr.

Stevenson has two children, aged six and nine, who are currently in the care of their mother. [ 7 ] Since the age of 12, Mr. Stevenson has suffered from rheumatoid arthritis. He reports using marijuana and alcohol at age 13. By the age of 17, he was drinking alcohol daily. He was convicted of impaired driving at the age of 19 and again at the age of 25. He stopped drinking alcohol after his second conviction for impaired driving. As a result of his arthritis, his hip was replaced at the age of 26. [ 8 ] When he stopped drinking alcohol at the age of 25, in 2007, he became addicted to oxycodone.

The oxycodone was prescribed for him to control the chronic pain of his rheumatoid arthritis. In about 2009, his prescription was changed from oxycodone to long- acting morphine. Around the end of 2012, Mr. Stevenson's consumption of morphine outstripped his prescribed supply, which forced him to buy medication off the street. At the height of his addiction he was using about $300 worth of morphine per day. Johnny's Grocery [ 9 ] On March 7, 2014, witnesses saw Mr. Stevenson entered Johnny's Grocery in Robson, BC. He was wearing dark clothing, gloves and a balaclava.

When he entered the store, he pulled what appeared to be a sawed off shotgun from a duffel bag he was carrying. He approached the clerk, Mr. George Pipke, and told him to open the drawer of the cash register. While Stevenson was taking money out of the drawer, another customer walked in. Mr. Pipke, showing great presence of mind, signaled to the other customer to leave immediately, and the customer did so. Mr. Stevenson took about $600 from the drawer, and walked out. Kootenay Savings and Credit Union [ 10 ] On March 11, 2014, at around 1:20 PM, Mr. Stevenson robbed the Kootenay Savings Credit Union in Castlegar.

An employee of the bank observed Mr. Stevenson outside, and saw him pull his hood down to mask his face. That employee warned others that they were about to be robbed. Mr. Stevenson walked into the bank and produced what appeared to be a sawed off shotgun. He told the bank employees to back away from their tills, into a corner of the bank. He took approximately $2,500 in US funds, plus some coins, and left through a side door. [ 11 ] Two of the employees of the Kootenay Savings Credit Union filed Victim Impact Statements.

One employee describes suffering from anxiety and a fear of people wearing hoodies, and grinding her teeth. Another describes being unable to fall asleep at night and having difficulty dealing with confrontation, in the wake of the robbery committed by Mr. Stevenson. Kootenay Currency Exchange [ 12 ] One month later, on April 11, 2014, Mr. Stevenson committed a robbery at the Kootenay Currency Exchange in Nelson, BC. He had arrived on a bicycle, with his face covered. He was armed with a sawed off shotgun, and fired the shotgun to break open a latch on a door inside the Currency Exchange.

The staff of the Currency Exchange had sought shelter behind another locked, steel door. Mr. Stevenson threatened to shoot them as well. He left the Kootenay Currency Exchange with $4,116.44. [ 13 ] Members of the staff at the Kootenay Currency Exchange also filed Victim Impact Statements. Like the members of the staff at the Kootenay Savings Credit Union, they describe feeling intimidated when seeing someone wearing a hoodie. One member of the staff describes feeling responsible for her employer's loss, as she was the one that Stevenson made hand over the money.

If I could, I would tell her she bore no responsibility for what Stevenson did, but that is unlikely to be much comfort to her.

Shoppers Simply Pharmacy and Pharmasave Drugs [ 14 ] One week after the robbery at the Kootenay Currency Exchange, Mr. Stevenson broke into two pharmacies in Castlegar. Both pharmacies were ransacked, and prescription medication was stolen. It appeared that Mr. Stevenson was looking for narcotic medication, including oxycodone. After his arrest, police executed a search warrant at his residence and recovered the stolen prescription medication. Nelson and District Credit Union [ 15 ] On April 25, 2014, just after 2:00 PM, Mr. Stevenson committed the robbery of the Nelson and District Credit Union.

When he entered the bank, there were more than two dozen people inside, including employees and customers. He was dressed in black with his face covered, and had a sawed off shotgun. The witnesses described Mr. Stevenson as agitated, swearing and yelling. He pushed the tellers toward the vault. Mr. Stevenson took $55,200 out of the tills inside the bank.

Witnesses outside the bank saw him get on a bike and ride down the hill past the Courthouse and Nelson City Hall to the parking lot of the Canadian Wholesale Club, where he jumped into the passenger seat of a car. [ 16 ] Witnesses at the Nelson and District Credit Union filed Victim Impact Statements describing anxiety, flashbacks and sudden anger similar to those experienced by the witnesses at Kootenay Savings Credit Union and the Kootenay Currency Exchange. [ 17 ] Deputy Chief Burkhart and Cst. Slomba of the Nelson Police Department arrived on the scene almost immediately. Cst.

Slomba saw the vehicle that Stevenson had entered leaving the parking lot, and followed it in hot pursuit. Stevenson's vehicle, which was being operated by another person, drove at high speed through Nelson. It crossed Highway 3, failing to stop at a stop sign, and continued along Blewett Road until it reached the bridge over the Kootenay River near Bonnington. An RCMP officer had stretched a spike belt across the road at the north end of the bridge. The Stevenson vehicle stopped, and Stevenson jumped out of the passenger seat. Mr. Stevenson pointed the sawed off shotgun at Cst.

Slomba, and then jumped off the bridge. He was badly injured in the fall. [ 18 ] The police arrested Mr. Stevenson at the scene. They found the loaded sawed off shotgun a few feet from where he was lying on the riverbank. The shotgun was shortened to a length that made it a prohibited weapon. The ammunition in the shotgun magazine was the same type of ammunition that was later seized at Mr. Stevenson's residence. The butt end of the shotgun matched an impression taken by Cpl. Bodnarchuk from the inside of the Kootenay Currency Exchange on April 11, 2014.

He was wearing a particular brand of shoes, and the tread pattern of those shoes matched tread impressions taken by Cpl. Bodnarchuk at Johnny’s Grocery and the pharmacies in Castlegar. [ 19 ] The description of the shotgun carried by Mr. Stevenson was consistent at all of the robberies. However, the Crown is not able to prove that the shotgun carried at Johnny's Grocery on March 7 or the Kootenay Savings and Credit Union on March 11 was the same one that was in his possession at the time of his arrest. Consequently, there might be a reasonable doubt whether it was a functioning firearm. As a result, Mr.

Stevenson was charged with using an imitation firearm on those two dates. [ 20 ] Mr. Stevenson has cooperated in the preparation of a Pre-Sentence Report and a psychiatric assessment. The Pre-Sentence Report indicates that Mr. Stevenson appears to be motivated to participate in counselling aimed at managing his addictions, but lacks insight into the work and commitment it will take. [ 21 ] The psychiatric assessment concludes that Mr. Stevenson's risk to reoffend is intricately linked to his ability to control his addictions.

In the event that he relapses into addiction, the likelihood of offending behavior is assessed to be high. The author of the psychiatric assessment concludes that addictions counseling should be set as a priority. [ 22 ] Mr. Stevenson claims to be unable to remember any of the offences except the break and enters in Castlegar, as a result of the quantity of drugs that he was consuming. Following the submissions of his counsel, Mr. Stevenson addressed the court and the members of the public present in the gallery.

He said that he was sorry for what he had done to the people of this community, and for the shame that he had brought upon his family. Like the authors of the Pre-Sentence Report and psychiatric assessment, I conclude that his remorse is genuine. Positions on Sentence [ 23 ] Crown Counsel takes the position that the appropriate sentence for the offences committed on all five dates might be 19.5 years, but that such a sentence must be tempered by the totality principle.

In a very careful submission, Crown Counsel submits that, after taking into account time served in custody prior to sentencing, the appropriate sentence would be 9.5 years of new time. [ 24 ] In addition, Crown Counsel asks that I make certain orders ancillary to sentencing, including orders that the offender provide a sample of his DNA, that he be prohibited from possessing firearms, that he provide restitution and that he have no contact with certain named individuals. [ 25 ] Counsel for Mr.

Stevenson, in his thoughtful submissions, submitted that a fit sentence might be a total of eight years, before credit for time served in custody prior to sentencing. [ 26 ] Counsel for Mr. Stevenson observed that Mr. Stevenson had been in custody for 515 days since his arrest, but that 100 days of that time were attributable to a sentence that he served following his conviction for escaping from lawful custody last fall.

As a result, counsel submitted that he had effectively served 415 days of pre-sentence custody, and might be granted credit at the rate of 1.5 days for every day spent in custody, which would result in pre-sentence credit of 622 days. Crown Counsel agreed with that calculation. [ 27 ] I have spoken about credit for pre-sentence custody. This is sometimes referred to as dead time. It arises because Mr. Stevenson was denied bail, and has been in custody awaiting sentencing for 515 days. [ 28 ] In R. v.

Summers , 2014 SCC 26 , the court stated at para. 79 that the onus is on the offender to demonstrate that he should be awarded enhanced credit as a result of his pre-sentence detention. Furthermore, generally speaking, the fact of pre-sentence detention is

sufficient to give rise to an inference that the offender has lost eligibility for parole or early release thereby justifying the enhanced credit. [ 29 ] The conditions in which a prisoner is held while awaiting trial or sentencing are more onerous than the conditions in which an offender is held while serving a sentence. A prisoner in pre-sentence custody is not eligible for remission or early release, and does not have the opportunity to engage in programming or counselling. In the West Kootenays, prisoners are often returned from the correctional centre in which they are being held for court appearances here.

They are transported in small, locked compartments inside a Sherriff’s vehicle. Mr. Stevenson, in particular, has been unable to access medical care while in pre-sentence custody. [ 30 ] One of the objectives of sentencing is to impose similar punishments on similar offenders in similar circumstances. Granting credit for pre-sentence custody is a way of accomplishing that objective. [ 31 ] Counsel for Mr. Stevenson did not oppose the ancillary orders sought by the Crown.

The Law Applicable to This Case [ 32 ] 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 on offenders. In robbery cases, the courts have consistently maintained that general deterrence, the deterrence of others who might consider committing robbery, is the prime consideration. Mandatory Minimum Jail Sentences [ 33 ] Many of the legal issues that arise in this case flow from the fact that the law provides for mandatory minimum jail sentences for most of the offences committed by Mr. Stevenson.

In addition, the law requires that some of those mandatory minimum jail sentences be served consecutively to all other sentences to be imposed. [ 34 ] For example, the offences of robbery using a prohibited firearm, contrary to section 344 (1) (

a) of the Criminal Code and charged in Count 1 (the Nelson and District Credit Union) and Count 3 (the Kootenay Currency Exchange) call for mandatory minimum jail sentences of five years on each count.

The offence of unlawfully discharging a prohibited firearm at a place knowing another person was present in the place and charged in Count 4 (the Kootenay Currency Exchange), also calls for a mandatory minimum jail sentence of five years. [ 35 ] In addition, the offences of using an imitation firearm while committing robbery, contrary to section 85 (2) of the Criminal Code and charged in Count 6 (the Kootenay Savings Credit Union) and Count 8 (Johnny's Grocery), call for mandatory minimum jail sentences of one year consecutive to all other sentences.

Relationship of Mandatory Minimum Sentences to the General Principles of Sentencing [ 36 ] Depending on various factors, sentences can be consecutive, which means they are served one after the other, or concurrent, which means they are served at the same time. In cases like this one, where an offender is being sentenced for multiple serious offences carrying lengthy mandatory minimum sentences, the imposition of consecutive sentences can result in total sentences measured in decades.

In such a case, it must be remembered that mandatory minimum sentences do not reduce the importance of the other substantive principles of sentencing. As Willcock J.A. noted in R. v. Burleigh , 2015 BCCA 245 at para. 16 , "minimum sentences must be understood in relation to the whole sentencing system, including the principles of proportionality and totality as codified in sections 718.1 and 718.2 (

c) of the Criminal Code .” [ 37 ] Sections 718.1 and 718.2 of the Criminal Code say that: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: … (

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; [ 38 ] In Burleigh , supra , Willcock J.A. referred to the decision of Prowse J.A. in R. v. Joseph , 2010 BCCA 525 and a passage that spoke of the recommended approach for sentencing of multiple offences. Thus, there is a two-stage approach to sentencing an offender convicted of multiple offences. The first stage is to determine the appropriate sentence for each offence, and decide whether the individual sentences should be made consecutive or concurrent.

If consecutive sentences are imposed, then the second stage is to determine whether the sentences, in the aggregate, offend the totality principle. If the sentence, as a whole, is unduly harsh or disproportionate, then the length of the individual sentences should be adjusted in order to arrive at an appropriate global sentence. [ 39 ] There are different ways to adjust the sentence in order to arrive at a just and appropriate global sentence. Clayton Ruby, in his book Sentencing (Markham, Ont.: LexisNexis Canada Inc., 2012) at para. 2.60, points to three ways in which the totality principle can be satisfied:

1. By making sentences that would normally be consecutive concurrent; 2. By making individual sentences shorter than they would normally be; or 3. By applying a single concurrent term for all the charges under consideration. Determining the appropriate sentence for each offence [ 40 ] A starting point for the determination of an appropriate sentence is a consideration of the sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 41 ] I have had the benefit of books of authorities provided by Crown Counsel and by Counsel for Mr. Stevenson.

Each book contains a number of sentencing cases, and many of the cases review numerous other cases to determine the range of sentence for robbery in British Columbia. I am satisfied that in this province the sentencing range for cases where young men have committed robbery with violence or threats of violence is two to nine years.

In arriving at sentences within that range, the courts have considered factors such as the age of the offender; the offender's previous criminal experience; the level of actual violence; the number of offences; the degree of premeditation; the use of a disguise or mask; the type of weapon used and the manner in which it was used; the possibility of rehabilitation; and the need for general deterrence in a particular community. [ 42 ] In considering the offences committed by Mr. Stevenson, I find the following factors to be important: 1.

The crimes were premeditated, involving in some cases the use of bicycles and cars to escape the scene. 2. The offender disguised himself by the use of masks or hoodies. 3. There were multiple offences, in multiple locations, over a span of 49 days. 4. The victims of the robberies were bank employees and innocent bystanders. Banks are particularly vulnerable to crimes of this nature. The robbery of a bank in daylight is a terrible violation of the public's feeling of security, and the crime presents clear and obvious risks to the lives of employees and innocent bystanders.

Many of the victims have suffered ongoing, lasting effects. 5. The offender’s use of a prohibited weapon or an imitation weapon is a factor, but the weight to be given to it is limited because the offender will be punished separately for the two offences contrary to section 85 (2). 6. The offender has a dated record of prior criminal convictions. 7. The offender was not motivated by greed, but was driven to feed an addiction.

Addictions are not an excuse for committing crimes, but I cannot escape the reality that the degree of responsibility of an offender who commits crimes to support an addiction will generally not be as high as that of an offender who commits crimes solely for greed. 8. The offender has pled guilty, and in so doing has spared the victims of his crimes the stress and anxiety of testifying about them in court. 9. The offender is a young man with a supportive family with some prospect of rehabilitation despite his limited insight into the work required to overcome his addictions. 10.

Finally, the offender's remorse is genuine, and he shows some understanding of the harm he has done to his victims. Imposition of Sentence [ 43 ] There must be a sentence of incarceration, but before imposing that sentence, I will speak about the ancillary orders. [ 44 ] The Crown seeks an order that Mr. Stevenson pay restitution. Restitution orders advance the goal of rehabilitation by promoting direct accountability by the wrongdoer to the victim.

Restitution orders also promote public acceptance of and support for the criminal justice system by recognizing the specific harm done to victims and by providing a convenient and inexpensive route by which victims may gain at least some redress for that harm. [ 45 ] However, an order for restitution must be realistic in relation to the circumstances of the accused and must be directly associated with the sentence imposed as the public reprobation of the offence. The means of the offender have to be considered. At the conclusion of these reasons for sentence, Mr. Stevenson will start a long jail sentence.

He has no assets, and no ability to pay. I will decline to make a restitution order against him. [ 46 ] The remaining orders will be as follows: [ 47 ] DNA order: Mr. Stevenson must attend within the place in which he is incarcerated by Friday, October 2, 2015, at 4:00 PM and thereafter as may be necessary in order for a sample or samples of his bodily substances to be taken for purposes of registration in the national DNA databank, in accordance with the provisions of

Part XV of the Criminal Code . This order applies to Counts 1, 3, 5, and 7 and is valid until executed. [ 48 ]

Section 109 firearms prohibition: Mr. Stevenson is prohibited from possessing

a. any firearm, other than a prohibited firearm or restricted firearm and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years, and b. any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 49 ] The firearms prohibition applies to Counts 1, 3 and 4. [ 50 ] No-contact order: Pursuant to

section 743.21 (1), Mr. Stevenson is prohibited from communicating, directly or indirectly, with Krista Kalmikoff, except through legal counsel. [ 51 ] Victim Surcharge: you must pay a victim surcharge in the amount of $200 for each offence, totaling $1,600, within two years. [ 52 ]

Section 491 forfeiture order: Pursuant to section 491 (1) (

a) I am satisfied that the shotgun and ammunition seized by the police was used in the commission of an offence and I order that it be forfeited to Her Majesty to be disposed of in accordance with the directions of the Attorney General, as defined in

section 2 of the Criminal Code . [ 53 ] I must now return to consideration of the term of incarceration. After taking into account the law and factors discussed above, I find that the appropriate sentences for each of the individual offences would be as follows: Count 1: robbery of the Nelson and District Credit Union - six years jail. Count 2: break and entry into two pharmacies in Castlegar - six months jail, consecutive to all other sentences. Count 3: robbery of the Kootenay Currency Exchange - six years jail.

Count 4: discharging a firearm during the Kootenay Currency Exchange Robbery - six years jail, concurrent with the sentence on Count 3 but consecutive to all other sentences. Count 5: robbery of the Kootenay Savings Credit Union - two years jail, consecutive to all other sentences. Count 6: use of an imitation firearm during the robbery of the Kootenay Savings Credit Union - one year jail, consecutive to all other sentences Count 7: robbery of Johnny's Grocery - two years jail, consecutive to all other sentences.

Count 8: use of an imitation firearm during the robbery of Johnny's Grocery - one-year jail, consecutive to all other sentences. [ 54 ] Were sentence to be imposed in that manner, the total sentence would be 18.5 years before consideration of time served prior to sentencing. In my view, a sentence of that length for these offences and for this offender would be unduly long or harsh. It must be adjusted to arrive at an appropriate global sentence. It will be adjusted by ordering that the sentences on some of the counts be served concurrently with the sentences on others. [ 55 ] Mr.

Stevenson, would you please stand? [ 56 ] I have concluded that a just sentence to impose upon you is: Count 1: robbery of the Nelson and District Credit Union - six years jail Count 2: break and entry into two pharmacies in Castlegar - six months jail, concurrent with Counts 1, 3, and 4 Count 3: robbery of the Kootenay Currency Exchange - six years jail, concurrent with Counts 1, 2, and 4 Count 4: discharging a firearm during the Kootenay Currency Exchange Robbery - six years jail, concurrent with Counts 1, 2, and 3 Count 5: robbery of the Kootenay Savings Credit Union - two years jail, concurrent with Count 7, but consecutive to all other counts Count 6: use of an imitation firearm during the robbery of the Kootenay Savings Credit Union - one year jail, consecutive to all other counts Count 7: robbery of Johnny's Grocery - two years jail, concurrent with Count 5, but consecutive to all other counts Count 8: use of an imitation firearm during the robbery of Johnny's Grocery - one-year jail, consecutive to all the counts [ 57 ] The total jail sentence, before consideration of time served prior to sentencing, is 10 years.

Counsel have agreed that, having served 415 days of pre-sentence custody, Mr. Stevenson should be granted credit in the amount of 622 days. I will give him credit for 20 months pre-sentence custody. That credit will be applied to Counts 1, 3 and 4. [ 58 ] Therefore, I order that the amount of new time that Mr. Stevenson must serve because of the crimes he committed in March and April, 2014 is eight years and four months.

________________________ R. Hewson Provincial Court Judge