Regina v. RSA Date:, 2012 BCPC 416

Citation: Regina v. RSA Date: 20121024 2012 BCPC 0416 File Nos: 88514-2C; and 88514-5AC Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RSA ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE BULLER BENNETT Counsel for the Crown: G. Barnes Counsel for the Accused: J. Percival Place of Hearing: Port Coquitlam , B.C. Date of Hearing: October 24, 2012

Date of Judgment: October 24, 2012 [ 1 ] THE COURT : RSA is before me on two Informations. [ 2 ] The first one in time is 88514-2C. He has pleaded guilty to Count 1, that on or about the 16th day of April, 2012, at or near Coquitlam, in the Province of British Columbia, he did by deceit, falsehood, or other fraudulent means, deprive Hudson’s Bay Company carrying on business as Zeller’s of money and property, contrary to s. 380(1) of the Criminal Code . [ 3 ] He pleaded guilty to Count 3 that on the same date and at the same place he did fraudulently personate Jasbir Rai (phonetic) with intent to gain advantage for himself, contrary to s. 403(1) (

a) of the Criminal Code . [ 4 ] He pleaded guilty to Count 4 that on the same date and at the same place he did without lawful excuse present identity documents that relate or purport to relate in whole or in part to other persons, contrary to s. 56.1 of the Criminal Code . [ 5 ] Finally, he pleaded guilty to Count 7 that on the same date and at the same place he did have in his possession a credit card or a forged or falsified credit card, an RBC Avion Visa, the property of Jonathan Hamlin, knowing that the said credit card was obtained by the commission in Canada of an offence contrary to s. 342(1) of the Criminal Code . [ 6 ] The circumstances of the offences are as follows. [ 7 ] Just before 6:00 p.m. on August 16th, 2012, the Loss Prevention Officers at the Zeller’s store in the Coquitlam Centre mall saw RSA in the store.

It is not clear whether it was a civil or a criminal "no go", but RSA was not welcome in the Zeller’s store. As a result, the Loss Prevention Officers arrested him. I note for the record that he did resist. [ 8 ] Upon searching RSA and doing further investigation, the police officers who attended found a variety of credit cards and other documents in his possession. [ 9 ] In going back over the day and various transactions, the police were able to track that RSA used a credit card not in his own name to purchase $3,000 in MasterCard gift cards.

When he was confronted by the police, RSA said that his name was Jasbir Rai and gave a date of birth of 1960-05-10. In fact he maintained that identity of Mr. Rai with some degree of commitment on his part. The police officers confronted him and said, "No, that’s not your name" and he maintained that he was Mr. Rai. Ultimately, police officers were able to confirm RSA’s identity as not being Mr.

Rai. [ 10 ] Apparently in a conversation with police, RSA admitted having used $300.00 worth of cocaine that day. [ 11 ] In the search, police officers found a B.C. driver’s licence in the name of Jagpal, they found a Visa card and a Fitness World membership card in the name of Mizutti (phonetic).

Ultimately, as I have stated, it took some persuasion, but RSA did give his true name because he had his true driver’s licence with him. [ 12 ] Upon further search, the police officers found an Avion Visa card in the name of Jonathan Hamlin which had been used to buy a gift card which I believe was in the amount of $946.00. [ 13 ] The police officers found a variety of other pieces of identification and credit cards that were not in RSA’s name.

They were in the names of Sangha, Jagpal, and a variety of others. [ 14 ] So those are the circumstances of the offences. [ 15 ] RSA was released on bail and part of the conditions of his bail included that he not leave his recovery house without at least two people from the recovery house being with him. [ 16 ] RSA pleaded guilty to Count 1 on Information 88514-5AC that on or about the 8th day of June, 2012, at or near Coquitlam, in the Province of British Columbia, being at large on a recognizance entered into before a justice or a judge, and being bound to comply with a condition of that recognizance as directed by a justice or a judge, did fail without lawful excuse to comply with the following condition or direction: you may not leave this residence or any other residence to which you are directed unless you are in the immediate company of a minimum of two other residents and a senior person from that centre, contrary to s. 105(3) of the Criminal Code .

The release date was May 28th, 2012. [ 17 ] On June 8th, 2012, RSA came to the attention of the police under some very suspicious circumstances. He was arrested at a gym in Coquitlam. He was not in the company of two other residents and a senior person from his recovery house, hence the guilty plea. [ 18 ] I have the benefit of a pre-sentence report that sets out RSA’s criminal record. It sets out convictions starting in 1983; the most recent convictions are in 2009 in Surrey for possession of stolen property and fraud.

For the possession of stolen property he was given a sentence of two years and two months, and a consecutive 18 month sentence for the fraud. [ 19 ] I think that rather than reading the number of convictions into the record, I will read the

summary of assessment out of the pre- sentence report: The subject states he was first arrested at approximately age 16 and this officer had confirmed this information. Records reveal he had served four federal sentences as well as numerous provincial sentences and therefore he has been in and out of custody on a consistent basis for the past 30 years. He has a lengthy criminal history which includes convictions for property offences, drug offences, motor vehicle offences, obstruction and non-compliance.

[ 20 ] Crown suggests given the principles of sentencing of denunciation and protection of the public, I should impose penitentiary terms of three years. Crown further submitted in support of its position that there are real victims in these types of offences of identity theft and fraud and certainly theft in and of itself. [ 21 ] Crown pointed out that the pre-sentence report is not positive. RSA was given a chance on bail and failed very quickly. RSA however has been in custody since June 8th, 2012, so he has accrued a considerable amount of time in pre-trial custody. [ 22 ] I will read into the record the

summary and proposed interventions from the pre-sentence report because I think it properly summarizes RSA’s background: Before the Court stands [RSA] for sentencing. He has served four federal sentences and records indicate he has spent the majority of his life incarcerated and/or under community supervision. His court history includes convictions for but is not limited to non-compliance, property offences, fraud, obstruction, and drugs. The subject reports being raised in a middle class home where he was provided all the necessities of life.

He reports no history of sexual or physical abuse during his childhood years, however, he states he was sexually abused at approximately age 18 while serving his first jail sentence. He reveals he has met with clinical therapist Irene Peterson in the past to address this abuse and appears he is willing to continue to continue her meetings with him. The subject reports having an unhealthy and unstable relationship with is family and states he feels guilty for hurting them. He states he is falling apart while in custody and insists he is motivated to change his behaviour.

Records indicate he has been provided numerous opportunities to amend his lifestyle but has been unsuccessful. Documents do not indicate the subject is associated with any criminal organization or gangs however the subject’s Community Corrections file reveals he has a history of associating with individuals who engage in substance abuse and criminal activity. The subject is adamant he will not associate with negative peers upon release and suggests he can refrain from substance abuse.

Upon release, the subject plans to reside with his mother in Surrey, but he was unwilling to provide her contact information in order for this officer to confirm his potential residence. He revealed he has remained of no fixed address for the majority of his life and frequently resides with others who engage in substance abuse. The subject reports he has struggled with cocaine and crack cocaine for the majority of his life and has not completed any residential treatment program to address this addiction.

He states he supports his drug habit through proceeds of crime and tends to engage in substance misuse to forget about his personal problems. Based on this response, it appears the subject may have poor problem solving skills and poor coping skills. During the interview for his report, the subject stated he felt bad for the victims and insists he realizes it was wrong. When questioned further, he was unable to identify the impact his behaviour may have had on the victims and/or community. The subject’s attitude and receptiveness to previous interventions appears to be abysmal.

Records indicate he re-offended while under community supervision and frequently failed to report as directed. Documents also reveal he has a history of failing to attend court and tends to provide misleading information to his probation officers. The subject’s Community Corrections file revealed his whereabouts frequently remained unknown while under supervision, therefore it does not appear the subject is suitable for community supervision. [ 23 ] RSA is currently 47 years old.

I understand from submissions of counsel and from RSA, who I might say is a very articulate individual, that much of his substance abuse comes from the sexual abuse he suffered while serving a sentence at Oakalla. He has started and did start counselling with Ms. Peterson to deal with all of the issues arising out of the incidents of sexual abuse. The cocaine and crack cocaine addiction arises out of unresolved feelings about the sexual abuse. [ 24 ] I understand that the counselling with Ms. Peterson has been very effective for RSA. Ms.

Peterson has even taken it upon her own to see RSA while he is in custody. [ 25 ] Very much to his credit, RSA has completed a variety of programs while in custody. He has told me that when he went back into custody he decided that he wanted to take advantage of the programming that was available to him because to be quite blunt RSA is burnt out. He is fed up with the life of crime and his lifestyle up to the time that he went back into custody. He feels guilty for how he has hurt his family.

He has two adult children that he has very little contact with. [ 26 ] I think upon reading the letter that he wrote to the Court it might be fair to say that he is a burnt out criminal and burnt out drug addict and he wants to change. He started that change while in custody. [ 27 ] He has completed two parts of the Cognitive Behavioural Therapy at North Fraser, one of them is the Criminal and Addictive Thinking program; the other one is Socialization, and these are I might add multi-part programs. Then, he has also completed the Essential Skills of Success programming while in custody at North Fraser as well.

This has to do with employment skills, living skills, developing healthy relationships and substance abuse education. So, he has been very busy while in custody. [ 28 ] Not only that, he has been able to have contact with spiritual advisors while in custody.

He has also been able to develop a plan for the future that upon his release he will attend or reside at program called the Launching Pad Addiction Rehabilitation Society and when he is finished there, he intends to go to Tso-tom-Lelum in Lantzville on Vancouver Island to attend their program for persons who have suffered sexual abuse and resulting substance abuse. [ 29 ] So for the first time in his life according to RSA, he wants to deal with what has caused all of his criminal record which is the trauma resulting from the sexual abuse and then the drug addiction to self-medicate the trauma.

He has for the first time developed a game plan and taken advantage of programming while in custody. This is the longest he has ever been clean: five months.

[ 30 ] There are mitigating circumstances. I understand that some of the money has been returned to the rightful owners. RSA pleaded guilty very early on and has taken significant steps towards his own rehabilitation. He has served four-and-a-half months in pre- trial custody and as I have already said he has made considerable effort to start and plan his rehabilitation. [ 31 ] There are aggravating circumstances, however. I understand that back in April of 2012 this was a slip that resulted in a crime spree. He committed serious offences in my view.

While not a spree in terms of number of days, it was spree in terms of number of offences. There are, as Crown pointed out, real victims. RSA has a history of ignoring Court orders and his record speaks for itself. I understand from calculating his release dates from his sentence out of Surrey he was just recently released from custody. The pre- sentence report is not entirely positive, however, I weigh that against the significant steps that RSA has taken towards his own rehabilitation while in custody. [ 32 ] I do not think at this point a further jail sentence would act to deter RSA.

He has done federal time four times. However, I have to consider the principles of sentencing that apply. In this case it is denunciation to start with to denounce these offences as harmful, not only to the individuals involved, but to the community as well. These are serious offences that need a strong response from the courts. I also have to consider protection of the public. When RSA has a slip, he commits serious offences with serious effects on individuals and the community. [ 33 ] I also have to consider rehabilitation.

Can he be trusted in the community to take on his own rehabilitation and not endanger the public notwithstanding his rather abysmal response to Community Corrections? No. [ 34 ] The overriding principle in my view however is promotion of a safe community and respect for the law. It does not matter in my view whether you are clean and sober or whether you are under the influence of drugs. You are still responsible for what you do.

I can understand how difficult it would be for someone like RSA who appears to be making great strides towards his own rehabilitation to now be held responsible for misguided actions he took while he was high to support a drug habit. Nonetheless, people are still responsible for their actions. [ 35 ] Given the criminal record notwithstanding the considerable efforts on RSA’s part, he is facing penitentiary time. I cannot see any other proper, lawful and fit sentence in the circumstances.

I agree with Crown counsel in their submissions that a global three year penitentiary term is appropriate given the serious aggravating circumstances but also bearing in mind the mitigating circumstances. [ 36 ] So on all counts, there will be penitentiary terms of three years concurrent with each other, less time served of four-and-a-half months leaving a balance of two years and seven-and-a-half months to be served.

On the breach, the sentence is a consecutive six month sentence less four-and-a-half months for time served, leaving a balance of one-and-a-half months consecutive to be served. [ 37 ] I will order a DNA sample with respect to -- I believe it is mandatory on all four but nonetheless there will be DNA samples assigned to all counts on 88514-2C. I will also order a DNA sample on Count 1 on 88514-5AC given the criminal record. [ 38 ] Victim surcharges are waived. [ 39 ] The outstanding counts on the breach, I do not think we – [ 40 ] MS.

BARNES: Stay of proceedings. [ 41 ] THE COURT: And outstanding on the C2? [ 42 ] MS. BARNES: Yes, on the substantive yes, stay those too please. And is Your Honour directing that the Sheriffs do the DNA today before he leaves here? I think that’s -- [ 43 ] THE COURT: Yes, that is usually what happens. (ORAL REASONS FOR JUDGMENT CONCLUDED)