R. v. Lam Date:, 2017 BCPC 175

Citation: R. v. Lam Date: 20170612 2017 BCPC 175 File No: 242359-1, 242359-2-A Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PHILLIP YAT SHING LAM REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.P. HARRIS Counsel for the Crown: I. Keeley Counsel for the Defendant: M. Fingas Place of Hearing: Vancouver , B.C. Date of Hearing: May 17, 2017 Date of Judgment: June 12, 2017 INTRODUCTION

[ 1 ] The offender, Mr. Lam, pled guilty to break and enter (2 counts), robbery, and breach of a recognizance. A sentencing hearing was held and the Crown argued that a total sentence of 8 - 9 years was required however after applying the totality principle the Crown argued for a sentence in the range of 5½ - 7 years. Counsel for Mr. Lam argued that a fit sentence was time served after pre-sentencing credit of 18 months and probation for 3 years. The task for this court is to identify a sentence that is fit and appropriate in all of the circumstances. CIRCUMSTANCES OF THE OFFENCES 1.

Information 19915 C2 (Count 7 - Break and Enter) [ 2 ] On July 19, 2015, at approximately 4:00 am a passenger in a vehicle called 911 and reported seeing a male smash out a window and enter a store in the 900 block of West Georgia Street. [ 3 ] Within 4 minutes of the 911 call, the police arrived, the suspect was gone and it was determined that a break and enter had occurred to the Dior Store.

Investigation revealed that the suspect had entered by using a sledge hammer and that 45 purses were stolen with a total value of $273,720.00 (two hundred seventy three thousand seven hundred twenty dollars). [ 4 ] Investigation also revealed the suspect was a male who was wearing a dark hoodie and dark pants. Blood droplets were located inside the store and sent to the police laboratory. DNA was extracted from the blood and eventually matched to Mr. Lam. 2. Information 19915 C2 (Count 1 - Break and Enter) [ 5 ] On August 29, 2015, the police stopped Mr.

Lam who was driving a Toyota truck with stolen license plates. Inside the truck the police located a sledge hammer, gloves and a balaclava. Based on these findings the police suspected that Mr. Lam was responsible for breaking into high end retail outlets and as a result they placed him under surveillance. [ 6 ] On September 16, 2015, the police watched Mr. Lam purchase a large sledge hammer. [ 7 ] On September 21, 2015, at 1:20 am, the police followed Mr. Lam as he drove from his home to various locations. Of note, is during the surveillance the police noticed that Mr.

Lam had placed a stolen license plate on the rear of his vehicle. [ 8 ] The police continued following Mr. Lam and at 4:59 am he stopped in the 900 block of West Georgia Street. Mr. Lam exited his vehicle and started smashing the glass to the Gucci store with a sledge hammer. [ 9 ] Mr. Lam gained entry to the store and exited with 6 purses. The value of the purses was $11,000.00. Mr. Lam was arrested with the assistance of a police dog. Police searched Mr. Lam’s truck and they located a stolen license plate, runners, a balaclava, a grey hoodie and a screw driver with a modified tip.

Damage to the store was $20,000.00. [ 10 ] The police interviewed Mr. Lam and he originally denied involvement in the matter. He eventually confessed to the offence and stated he had money problems. [ 11 ] Mr. Lam appeared in court and was released on a recognizance with some of the following conditions; a requirement to keep the peace and be of good behaviour, an area restriction, a prohibition from possessing tools and a curfew. 3. Information 242359 (Count 1 - Robbery) [ 12 ] On February 22, 2016, Mr.

Lam threw a small canister device, later determined to be a smoke grenade into the Holt Renfrew store on Dunsmuir Street in Vancouver. He then made his way into the store via a different set of doors and he started grabbing a number of Christian Dior purses. Ms. Wong, who was an employee, asked Mr. Lam what he was doing and in response he displayed a canister that had string hanging from it. Police later determined that the canister was a smoke grenade. [ 13 ] Upon seeing the canister Ms. Wong backed away and notified security. Mr. Lam then fled from the store with 6 purses. Security pursued Mr.

Lam and when they approached him a struggle ensued. During the struggle Mr. Lam placed a security officer in a head lock and gouged his eye. Eventually Mr. Lam was handcuffed and taken back to the store. [ 14 ] In total 6 purses were stolen with a value of $31,800.00 (thirty one thousand eight hundred dollars). All of the purses were recovered; however, 2 were damaged and could not be sold. [ 15 ] Once back at the store Mr. Lam was placed in a holding room. While in the room he continually tried to move his hands from the handcuffed position of behind his back to the front of his body.

He was also observed using a small piece of metal in an effort to defeat the locking mechanism on the handcuffs. Mr. Lam was searched and located was a smoke grenade and a small amount of crystal methamphetamine. [ 16 ] The police eventually arrived and Mr. Lam was transported to the police station where he was interviewed. In addition to dealing with Mr. Lam, police experts were called to the scene to deal with the smoke grenades. This was necessary because the labels had been removed and therefore the police were required to ensure that they were not explosive devices. [ 17 ] During his interview Mr.

Lam expressed that the stolen items were covered by insurance and that the employees who might have been traumatized by the events would be entitled to Workers Compensation. 4. Information 242359 A2 (Count 1 - Breach of Recognizance) [ 18 ] Shortly after his arrest for the robbery Mr. Lam was released on a recognizance with several terms and conditions including a curfew. On May 7, 2016, the police conducted a curfew check at Mr. Lam’s residence. Mr. Lam did not present himself at the door and his mother advised that he had gone out earlier in the day and had not come home.

The time of the check was at 2:13 am whereas his

curfew required him to be at his residence at 9:00 pm. PRE-SENTENCE CUSTODY CALCULATION [ 19 ] Counsel agree Mr. Lam is entitled to a pre-sentence custodial credit calculated on the basis on 1.5:1 for every day in custody. As such, Mr. Lam has been in custody since his arrest in May of 2016 for breach of his recognizance. Accordingly, and after considering the time he spent in custody in September 2015, and February 2016, Mr. Lam’s actual pre-sentence time is 13 months 4 days, which entitles him to a credit of 19 months 21 days. MR. LAM’S BACKGROUND [ 20 ] Mr. Lam is 41 years old.

He had a stable up-bringing wherein his parents were hard working and frequently away from the home. As such, Mr. Lam had little supervision and he began associating with a negative peer group. According to the pre-sentence report it was this association that contributed to his early criminal record. [ 21 ] With respect to his criminal record, Mr. Lam accumulated youth convictions during the years 1992, 1993 and 1995; these were for property offences. As a youth, the maximum sentence that he received was 4 months secure custody. Thereafter and as an adult, Mr.

Lam was convicted of break and enter in 1996, possession of stolen property in 2000 and in 2001. As an adult Mr. Lam’s longest custodial sentence was 21 days. [ 22 ] In 2001, Mr. Lam made changes in his life. He disassociated himself from negative peers, he went back to school and he enlisted with the Army Reserves where he worked with the 15 Field Artillery Unit until 2015. [ 23 ] With respect to schooling, Mr. Lam started taking general studies at Kwantlen Polytechnic University, and thereafter obtained a Diploma in Business & Logistics. Upon completing his schooling Mr.

Lam tried to find employment suited to his education. Unfortunately, Mr. Lam’s criminal record prevented him from gaining meaningful employment. [ 24 ] In 2015, Mr. Lam was no longer working with the Army Reserves, he was unable to find employment and he became disappointed and spiraled downward until arrested for the instant matters. Ms. Cantelon, the probation officer who authored Mr. Lam’s pre-sentence report observed: Phillip’s plan when he left the reserves was to find a civilian job where he could put his education to use.

Previously he had applied to have his criminal history pardoned and was waiting for parole boards decision. Phillip explains the process of applying for the pardon took longer than he expected and with his criminal history he was not able to find employment as easily as he anticipated. With no means of supporting himself, Phillip went on social services. Feeling disappointed and depressed Phillip started drinking associating with negative influences and eventually relapsed.

In order to support his crystal methamphetamine dependence Phillip committed the crimes currently before the courts. [ 25 ] Since being in custody, Mr. Lam has, attended weekly meetings with Alcoholics Anonymous and Narcotics Anonymous, completed his high school graduation requirements and completed 3 self-directed workbooks on Criminal Addictive Thinking, Socialization and Relapse Prevention. He has had no difficulty in the institution and has been working in the kitchen. [ 26 ] The court has reviewed the psychological assessment that was prepared by Dr. Kropp, a registered psychologist. Under the heading,

Summary and Recommendations, Dr. Kropp stated: Mr. Lam’s crimes appear to have resulted from a combination of stress and depression related to unemployment, influence of antisocial associates, and disinhibition associated with stimulant abuse and mental illness. His past history also suggests that he might possess some antisocial and entitlement attitudes. Therefore, in order to manage his risk for future offences, it is recommended that the following risk factors be monitored carefully:

(1) His substance use/abuse;

(2) His mental health, with careful attention to any signs that his mood is deteriorating or he is beginning to experience psychotic symptoms;

(3) His employment situation, since frustration in this area directly contributed to his crime;

(4) Any relationships with antisocial acquaintances;

(5) His social isolation, which could in turn lead to further problems with depression and substance abuse. The most likely recidivistic scenario would involve Mr. Lam experiencing disappointment in his pursuit of employment and relationships, causing him to gravitate back towards substance use and an antisocial lifestyle. It is recommended that Mr. Lam continue to be availed of addictions counselling and resources such as narcotics anonymous, access to supportive counselling in the community, and psychiatric follow-up if he begins to experience psychotic symptoms.

He would also benefit from vocational counselling and assessment. It is my impression that Mr. Lam is strongly motivated to attend whatever programs are accessible. PURPOSE AND PRINCIPLES OF SENTENCING [ 27 ]

Section 718 of the Criminal Code sets out the purpose of sentencing and lists sentencing objectives that will help achieve the stated purpose. In this regard s. 718 reads: 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 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 and or to the community. Objectives of the sentence imposed [28] In my view, the primary sentencing objectives in the instant matter are denunciation and deterrence. As such, through thesentence imposed this court will express societies’ abhorrence for the crimes committed by Mr. Lam. Further, any sentence imposed willserve to deter others; including Mr. Lam from committing similar offences. [29] In addition to denunciation and deterrence, I find the rehabilitation of Mr.

Lam to be an important but lesser objective. I arriveat this conclusion because of Mr. Lam’s demonstrated ability to turn his life around. In this regard he spent 14 years living a productivelaw abiding lifestyle. I also arrive at this perspective because of the pre-sentencing rehabilitative steps that he has taken, as well as hisstated desire to embark on a positive pathway.

Proportionality [30] A fundamental principle of sentencing is found in s. 718.1 of the Code which states: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [31] A proportional sentence is a fundamental principle of sentencing. In operation, the more serious the crime and itsconsequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. [32] The offences committed by Mr. Lam were serious. The maximum penalty for break and enter is imprisonment for 10 years.

The maximum penalty for robbery is imprisonment for life and the maximum penalty for breach of recognizance is 6 monthsimprisonment. [33] Mr. Lam’s moral culpability is high, however, I accept Dr. Kropp’s observations that Mr. Lam’s offences appear to have beencaused by a combination of “stress and depression related to his unemployment, influence of antisocial associates, and disinhibitionassociated with stimulant abuse and mental illness.” In my view, these factors do not reduce Mr. Lam’s culpability rather they assist inunderstanding his actions and what rehabilitative tools might assist.

Nevertheless, I do observe that the robbery occurred within thecontext of a failed attempt to steal. [34]

Section 718.2 sets out other sentencing principles and reads 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 offenceor the offender, and, without limiting the generality of the foregoing, …. (

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 tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. AGGRAVATING AND MITIGATING FACTORS Aggravating factors [35] The planning and premeditation related to the break and enters is aggravating. In this regard, Mr. Lam acquired the tools for hiscrimes, he also acquired stolen license plates and he pre-selected his targets.

Finally, the break and enters targeted high end itemswherein significant property damage occurred. [36] As for the robbery, the fear and disruption that Mr. Lam’s actions caused is aggravating. I do not find that Mr. Lam originallyset out to commit a robbery, rather, the events evolved to a robbery after his attempted diversion failed. [37] A further aggravating factor is the robbery was committed while Mr.

Lam was bound by a recognizance of bail wherein he wasrequired to keep the peace and be of good behaviour and he was also prohibited from being in the geographic location where the robberyoccurred. [38] Lastly, Mr. Lam’s criminal record, although dated, is somewhat aggravating. Specifically, he has convictions for propertyoffences and for a break and enter. Mitigating factors

[ 39 ] I find the following to be mitigating. Mr. Lam’s guilty pleas are significantly mitigating. His guilty pleas not only saved the state the time and expense associated with a prosecution but he has saved numerous witnesses the inconvenience associated with appearing in court. [ 40 ] I find Mr. Lam’s remorse to be mitigating. In this regard, he addressed the court wherein I found him to be genuinely remorseful. I also note Dr. Kropp’s report wherein he commented on Mr. Lam’s remorse and stated, “He expressed considerable remorse for his crimes.

He indicated that he accepts sole responsibility for his crimes and he wishes he could change the past.” [ 41 ] Mr. Lam’s positive steps towards rehabilitation are also mitigating. While in custody Mr. Lam has taken several programs to assist in his rehabilitation. He has also developed a plan for support in the community and he is focused on applying himself towards employment where a criminal record will not be a significant obstacle. Sentences for similar offences [ 42 ] Counsel provided the court with the following authorities; R. v. J.J.Q.G., 2013 BCCA 51 ; R. v. Evans, 2011 BCCA 479 ; R. v.

Gill, 2006 BCCA 127 ; R. v. Kiloh, 2003 BCSC 407 ; R. v. Thompson, 2008 BCCA 350 ; R. v. Arbuthnot, 2009 MBCA 106 ; R. v . Buczel, 2015 ONCJ 378 ; R. v. Ward, 2006 BCCA 153 ; R. v . Evans , 2011 BCCA 271 ; R. v . Morris, 2003 BCCA 271 . [ 43 ] In considering the cases, I am mindful that sentencing is an individualized exercise and that offenders are distinct unto themselves. I have also observed the numerous distinctions between the facts contained in the cases provided and the facts of Mr. Lam’s offences. Robbery [ 44 ] The range of sentence for robbery is imprisonment for 2 - 9 years: R. v.

Gill , 2006 BCCA 127 ; R. v. Thompson , 2008 BCCA 350 . [ 45 ] While acknowledging the sentencing range for robbery, I also observe the range is associated to those cases where the offender set out with the distinct plan of committing a robbery, in contrast, Mr. Lam did not set out with the intention to commit a robbery. [ 46 ] I also note, that sentencing ranges are not inflexible and there may be circumstances justifying a departure from the range: R. v. Nasogaluak, (2010), 251 C.C.C.

(34) S.C.C. 293. Break and enter [ 47 ] With respect to the sentencing ranges for the offences of break and enter, counsel provided the court with; R. v. Evans , 2011 BCCA 479 , and R. v. Buczel , 2015 ONCJ 378 . Both cases do not discuss ranges, however, I note in Evans , the offender was sentenced to 6 months for a commercial break and enter.

Although the sentence for the break and enter was not the subject of the appeal, I do note in the reasons from the court that the sentencing judge concluded that Evans was a career criminal. [ 48 ] As for Buczel, the case is of little assistance as the offender was being sentenced for a series of break and enters to dwelling houses. In my view, the case is distinguishable and of little assistance. Break and enter to a dwelling house is substantially more serious than a break and enter to a commercial premise.

Support for this view is noted by the fact that the maximum sentence for break and enter to a dwelling house is life imprisonment; in contrast, the maximum sentence for break and enter to commercial premise is 10 years. [ 49 ] Having presided over several matters involving break and enters to commercial premises, I am aware that sentences range from a suspended sentence to low federal penitentiary sentences. ANALYSIS [ 50 ] In the circumstances of this case, the sentence imposed must protect society and contribute to the respect for the law while maintaining a just and peaceful society.

It is my view the sentences imposed will denounce and deter while assisting Mr. Lam with his continued rehabilitation. [ 51 ] These objectives will be achieved by imposing a prison sentence for the offences of robbery and breach of recognizance followed by probation for the break and enters. The intention behind the probation is to a small degree, denounce and deter, while closely supervising and controlling Mr. Lam’s long term rehabilitation. [ 52 ] In arriving at an appropriate sentence, I am mindful the nature of the break and enters committed by Mr.

Lam would typically attract a custodial sentence, however, in the unique circumstances of Mr. Lam’s rehabilitative efforts coupled with the mitigating factors I am of a view that the probation imposed (including strict conditions) will protect the public while achieving the purpose and principles of sentencing. SENTENCES [ 53 ] After considering all of the facts and circumstances I impose the following sentences: Information 19915 C2 (Count 7 - Break and Enter) I suspend the passing of sentence and place Mr. Lam on probation for 3 years.

The terms and conditions of the probation order are as follows: • keep the peace and be of good behaviour; • not to attend the Fairmont Hotel in the City of Vancouver, in the province of British Columbia or, any retail outlets operating

under the name of Christian Dior, Gucci or Holt Renfrew in the province of BC; • you must not have any contact directly or indirectly with Selena Wong, or Bernard Nicolas; • you must not attend at any residence, work place or education institute known to you to be that of Selena Wong, or Bernard Nicolas; • appear before the court when required to do so by the court; • notify the court or the 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; • within 24 hours of your release from custody you must report to a probation officer at 275 East Cordova Street, Vancouver, BC, and thereafter when and where directed but not less than once in person every three weeks; • for the first 12 months of this order you must reside at a residential treatment or recovery house and not change that residence without the approval of your probation officer; • you must obey all rules and regulations of your residence; • for the first 16 months of this order you must not be outside your place of residence between the hours of 8:00 pm and 6:00 am seven days per week; unless you are in the immediate company of a representative from your residence, or with the written permission of your probation officer provided the written permission is carried on your person; • you must present yourself at the doorway of your residence to any peace officer, correctional officer or probation officer who attends for the purpose of ensuring your compliance with your curfew; • while outside your place of residence you must not possess any tools unless you are travelling directly to and from your employment or immediately engaged in your employment; • you are not to possess any weapons as defined by the Criminal Code ; • you are not to possess or consume alcohol; • you are not to possess or consume those drugs as defined by the Controlled Drugs and Substances Act, except those drugs for which you have a medical prescription; • you are to attend, participate in and successfully complete any counselling that your probation officer directs you to; this can include but not limited to substance abuse counselling and psychological counselling; • if directed by your probation officer, you must attend at any mental health facility and participate in all assessments, treatment and counselling.

In the event that you do not consent to any recommended treatment you must immediately report to your probation officer and thereafter as and when directed; • at the direction and to the satisfaction of your probation officer you must complete 200 hours of community work service, such community work service must be completed on or before September 1, 2018; and • while outside your place of residence you must carry a copy of this order on your person at all times. Ancillary Order DNA Pursuant to

section 487.051(3) of the Criminal Code and after considering the circumstances of the offence, Mr. Lam’s background as well as his privacy and security of the person it is my view that the best interests of the administration of justice justify making a DNA order. Victim Fine Sur-charge Payable on or before June 1, 2019. Information 19915 C2 (Count 1 - Break and Enter) I suspend the passing of sentence and place you on a three year probation order concurrent to the probation just imposed.

The terms and conditions are as follows: • keep the peace and be of good behaviour; • not to attend the Fairmont Hotel in the City of Vancouver, BC, any retail outlets operating under the name of Christian Dior, Gucci or Holt Renfrew in the province of BC; • you must not have any contact directly or indirectly with Selena Wong, or Bernard Nicholas; • you must not attend at any residence, work place or education institute known to you to be that of Selena Wong, or Bernard Nicholas;

• appear before the court when required to do so by the court; • notify the court or the 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; • within 24 hours of your release from custody you must report to a probation officer at 275 East Cordova Street, Vancouver, BC, and thereafter when and where directed but not less than once in person every three weeks; • for the first 12 months of this order you must reside at a residential treatment or recovery house and not change that residence without the approval of your probation officer; • you must obey all rules and regulations of your residence; • for the first 16 months of this order you must not be outside your place of residence between the hours of 8:00 pm and 6:00 am seven days per week; unless you are in the immediate company of a representative from your residence, or with the written permission from your probation officer provided the written permission is carried on your person; • while outside your place of residence you must not possess any tools unless you are travelling directly to and from your employment or immediately engaged in your employment; • you are not to possess any weapons as defined by the Criminal Code ; • you are not to possess or consume alcohol; • you are not to possess or consume those drugs as defined by the Controlled Drugs and substances Act, except those drugs for which you have a medical prescription; • you are to attend, participate in and successfully, complete any counselling that your probation officer directs you to; this can include but not limited to substance abuse counselling and psychological counselling; • if directed by your probation officer you must attend at any mental health facility and participate in all assessments, treatment and counselling.

In the event that you do not consent to any recommended treatment you must immediately report to your probation officer and thereafter as and when directed; and • while outside your place of residence you must carry a copy of this order on your person at all times. Ancillary Order DNA Pursuant to

section 487.051 (3) of the Criminal Code and after considering the circumstances of the offence, Mr. Lam’s background as well as his privacy and security of the person it is my view that the best interests of the administration of justice justify making a DNA order. Victim Fine Sur-charge Payable on or before June 1, 2019 Information 242359 (Count 1 - Robbery) For the offence of robbery, I sentence Mr. Lam to custody for one day with the record reflecting actual time served of 13 months 4 days with a credit of 19 months 21 days. As such, his effective sentence is 19 months 21 days. Ancillary Order DNA Pursuant to

section 487.051 (2) of the Criminal Code the offence of robbery is a primary designated offence and I therefore order that a sample of Mr. Lam’s DNA be collected. Weapons Prohibition Pursuant to s. 109 (3) of the Criminal Code , Mr. Lam is prohibited from p ossessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life. Victim Fine Sur-charge Payable on or before June 1, 2019 Information 242359 A2 (Count 1 - Breach of his recognizance) For the offence of breaching his recognizance I impose a concurrent sentence of 1 day with the record reflecting time served of 2 months. Victim Fine Sur-charge Payable on or before June 1, 2019

____________________________ The Honourable Judge R.P. Harris Provincial Court of British Columbia