R. v. Graham Date:, 2017 BCPC 295

Citation: R. v. Graham Date: 20171003 2017 BCPC 295 File No: 24714-1, 245978-1, 248496-1 Registry: Vancouver File No: 80322-1, 80322-3-A Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. DARREN PATRICK GRAHAM EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE T. GOVE Counsel for the Crown: L. Gauld Counsel for the Defendant: N. Arbabi, Articled Student (as Agent for K. Neurauter) Place of Hearing: Vancouver , B.C.

Date of Hearing: October 3, 2017 Date of Judgment: October 3, 2017 [ 1 ] THE COURT: Darren Graham has pled guilty to four counts on four different Informations. I will deal with them chronologically. 1. November 24, 2016, breaking and entering of a dwelling house at 2 Renaissance Square, New Westminster. This Information is by indictment. The incident occurred at three o'clock in the morning. It was recorded on close-circuit TV. The accused entered the building in question, used a pry bar to break into three mailboxes damaging them and stole mail. 2.

June 16th, 2017, breaking and entering of a vacant house at 797 East 18 th Avenue, Vancouver. The police were observing the accused, saw him enter the house. He was arrested inside. 3. July 23rd, 2017, breaking and entering of a residential condominium complex at 499 Drake Street, Vancouver. 6:32 a.m., the accused forced open the door of the complex, broke into mailboxes, and stole mail. This was captured on CCTV. 4. July 23rd, 2017, so in other words the same day, two breaches of bail. He was on bail for earlier offences.

The facts are the police caught him rummaging through a car on Granville Street in Vancouver. He had identification in the name of someone else on him contrary to a court order. He was, as mentioned, absent without leave from Luke 15 Recovery House. He has been in custody since. [ 2 ] The accused is 38 years old. He is from Ontario. His criminal record goes back to Ontario where he was a youth when first convicted. The record starts in 1998. The record continues in Ontario when he became an adult and then in British Columbia when he moved here in 2002. His record is mostly property offences, some drug offences.

There are some assaults. His modus operandi in many of the cases has been similar to here, breaking into apartments to steal mail from mailboxes. [ 3 ] Over the past 19 years, the accused has 100 convictions plus the ones he is now being sentenced for. These 100 convictions are spread out over that time. He has received short jail sentences. He has been on probation almost continuously for 19 years. He has been on a number of conditional sentence orders. Mostly they have been breached. I have had the accused before me since his arrival in Vancouver.

In sentencing him, I have sent him to recovery programs and to jail. He has been, up until now, on the Downtown Community Court Case Management Team where he has had significant resources available to him to address his housing, mental health, and addiction. [ 4 ] The Crown's position on this sentencing is that the time has come for the accused to be sentenced to a lengthy period of jail to protect the community from this prolific chronic offender. The numerous programs, conditional sentence orders, probation orders used in the past have had no effect on his offending.

The Crown submits that, globally, I should sentence him to between 18 and 24 months to be followed by a probation order. [ 5 ] The accused says that he has the offer of support from the John Howard Society, I have that letter that has been filed; that he has prospects of employment with his brother, painting; that he has housing arranged for at Reaching Out Recovery, that letter has been filed; that he has attempted to address his addiction issues and will do so upon release. He has taken and been credited with nine short courses whilst he has been on remand at the Pretrial Centre. The accused is bright.

He has got a Grade 12 education plus one year of postsecondary. He is on income assistance. [ 6 ] He has been in custody for 92 days and should, therefore, be credited with that with time-and-a-half enhancement, and the defence submits, that he should be, at this point, released and placed on a conditional sentence order. [ 7 ] As mentioned, the accused has been before me many times. He is a bright affable young man. He is, unfortunately, addicted to drugs. In the past, I was told by him that it was crystal methamphetamine. I am not sure if it is today, but likely.

He has been offered many programs, residential and community, apparently with little success in stopping his drug use. I note, as I have said, he has taken some programs at the Pretrial Centre and that he is to be commended for doing so. [ 8 ] He has and expresses good intentions for changing his ways. Unfortunately, he has not yet met with success. Hopefully, one day he will. The court accepts that his drug addiction is a medical issue and will not likely be successfully addressed in the criminal justice system or by the court.

Also, the addiction will only be addressed when the accused is prepared to make significant changes in his life and lifestyle. All the court can do for the accused is to push or coerce him into programs that he may accept and to receive help. This has been done for almost 20 years. [ 9 ] The court also must look to the protection of the public -- the protection of the community from criminal conduct. Once an offender's record gets to what the accused's now is, over 100 convictions, although his rehabilitation remains a goal, an important goal, more emphasis must be put on the protection of the public.

The accused is no longer a suitable candidate for a community sentence order. He has been on them in the past with no demonstrable change in his offending. A short period of incarceration has also not been successful. At this point in time, a more substantial period of custody will protect the public while the accused is out of the community and, hopefully, give him the push to accept help that is being offered to him to address his addictions once he is released. [DISCUSSION RE TIME IN CUSTODY] [ 10 ] My calculation is that the accused has been in custody on these charges for 92 days.

I am going to give him credit for 138 days. [ 11 ] The sentence may be looked at as globally, but will be broken down by me as follows. I will also order probation upon his release and I will put that only on the Vancouver residential breaking and entering for administrative ease should it be necessary to have

him back before the court on that file. [ 12 ] So on File Number 245978, which is the June 16, 2017, break and enter of the vacant house, he is sentenced to 138 days, being one day plus a 137 days' times credited. [ 13 ] On 80322, Count 1, where on July the 23rd, 2017, there was a breach of bail, that is the leaving of Luke 15, he is sentenced to 30 days, one day in addition to 29 days' times credited. [ 14 ] Also on File 80322, Count 3, which is, again, the July 23rd, 2017, breach of bail by possession of identification documents he is also sentenced to 30 days, one day in addition to 29 days' times credited. [ 15 ] On 80322, November 24th, 2016, that is the breaking and entering of the residence in New Westminster; and, on 248496, the July 23rd, 2017, breaking and entering of the residence in Vancouver, he is sentenced to 12 months which I will state is 365 days, 227 days plus 138 days' times credited. [ 16 ] On the Vancouver charge only, in other words, only on 248496, upon his release he will be on probation for a period of 12 months: to keep the peace and be of good behaviour; to report to a probation officer at 275 East Cordova forthwith upon his release from custody and thereafter as directed; to reside where directed by the probation officer and obey the rules; to attend for counselling or such similar programs as directed by the probation officer and complete counselling or programs to the satisfaction of the probation officer; to not be in the 700 block of East 7th Avenue, Vancouver, including the buildings and laneways; to not be in the 400 block of Drake Street, Vancouver, including the buildings and laneways; to not be at 2 Renaissance Square, New Westminster; to not possess any identification documents unless they are in your own lawful name; and to not possess any tools outside your residence unless being used during the course of lawful employment. [ 17 ] With respect to all of these Informations and counts, the victim surcharge is waived. [ 18 ] MS.

GAULD: And, Your Honour, will there be DNA orders on all the B and E's? [ 19 ] THE COURT: There is. With respect to the breaking and entering charges a DNA order is made, primary. [ 20 ] MS. GAULD: I believe that, with regards to the 245978, it is probably a secondary, but if you could make the order on all of them, that would be what the Crown would prefer. [ 21 ] THE COURT: All right. To assist the clerk, I was just -- it is the two residential breaking-and-entering's are primary and you are saying 245978 would be secondary? [ 22 ] MS.

GAULD: Yes. [ 23 ] THE COURT: Thank you. [ 24 ] THE ACCUSED: Did I give you a letter, Judge Gove? [ 25 ] THE COURT: I did get a letter from you, yes. [ 26 ] THE ACCUSED: What -- what -- what -- oh, could I -- what copy of the letter was it? [ 27 ] THE COURT: Which copy of the letter? [ 28 ] THE ACCUSED: Because I submitted several to my lawyer. I am just wondering what copy that you got because there was one that was not intended to go to you.

I am just wondering what copy it was. [ 29 ] THE COURT: I have got a letter in which you talked about -- you are basically giving me some suggestions as to how we might change Community Court. It did not -- it did not deal -- [ 30 ] THE ACCUSED: Change Community Court? [ 31 ] THE COURT: You were talking about the services that were being provided there. [ 32 ] THE ACCUSED: For Community Court? [ 33 ] THE COURT: Yes. [ 34 ] THE ACCUSED: I -- no, I -- I -- I gave a letter to be given to you for -- for this sentencing, for court. [ 35 ] THE COURT: Well, I -- sorry.

I also have a letter that is in this package that is -- well, it deals specifically with the sentencing today. It starts off, "As you can see by my record, I have had a long struggle with addiction," is that the letter you are talking about? That is the letter that you wanted me to see? [ 36 ] THE ACCUSED: Is that -- is that -- well, which copy of it was it? [ 37 ] THE COURT: Well, I do not know, Mr. Graham. Here. Show this to Mr. Graham. I do not know whether there were other versions. That is the version -- [ 38 ] MS. ARBABI: Is this the one?

[ 39 ] THE ACCUSED: Yes. [ 40 ] THE COURT: Okay. [ 41 ] MS. GAULD: And, Your Honour, I direct a stay with regards to anything left outstanding for this man on today's list. I think that is -- [ 42 ] THE COURT: Good luck on your release. [ 43 ] THE ACCUSED: I would like to address the court for a minute. I -- I -- I am -- I feel very bad that you have taken this position with me today. I do not think that it is at all going to be helping me and I, also, was not at all offered any services at the Community Court when I was there.

In fact, I -- if -- if anything, I was -- you know, I was not treated at all, Judge Gove, to any services. I asked to be -- to have mental health services provided for me which were not. Okay. So I mean I -- you know, I -- I am struggling. I am not a violent offender and it is -- it is no service to me. My stuff right now in storage I am going to lose, all my stuff from my apartment. [ 44 ] I do not know how that that is going to be of benefit to me. Okay. I do not know how that is going to benefit society. There is more drugs in jail right now. People are dying in jail more than they are dying out here.

I do not understand, you know, what -- you know, I have employment and stuff like that. I do not understand, you know -- my struggle is not to go to jail for a period of time and then to get out. I am -- I am still going to be left with me still trying to stay clean.

So I -- I -- I -- [ 45 ] THE COURT: Right. [ 46 ] THE ACCUSED: -- fail to recognize, you know, the -- how this is at all going to help me -- [ 47 ] THE COURT: No, I -- [ 48 ] THE ACCUSED: -- and now I am going to lose my stuff and everything. [ 49 ] THE COURT: No, I am not surprised that you are -- I do not expect you to be happy, but as I tried to explain, maybe I should have done it more thoroughly, I tried to explain, at a certain point, my obligation is to protect the public.

You have had 20 years in and out of jail. [ 50 ] THE ACCUSED: I -- I have a lot of success, Judge Gove. [ 51 ] THE COURT: Oh, I know you have. [ 52 ] THE ACCUSED: I have had -- the last - [ 53 ] THE COURT: I know you have. [ 54 ] THE ACCUSED: -- the last 10 years, I spent nine years clean and sober. [ 55 ] THE COURT: I know you have had some success, but I am telling you, at this point in time, my obligation is to protect the public and I am hoping that when you get out -- [ 56 ] THE ACCUSED: I am going to be left with the same as today.

I am not going to have any other -- I mean how am I going to be any different from me spending a period of time in jail and getting out? I am still not going to be able to learn how to live clean out here. [ 57 ] THE COURT: Well, I think you can. I think you are smart enough to figure that out. [ 58 ] THE ACCUSED: Well, it is not going to be of any use. [ 59 ] THE COURT: Good luck. [ 60 ] THE ACCUSED: Well, it has got nothing to do with luck. Luck is a false god, sir. [ 61 ] THE COURT: Well -- [ 62 ] THE ACCUSED: So -- [ 63 ] THE COURT: -- I hope you do well, Mr. Graham.

You are -- [ 64 ] THE ACCUSED: Well, you are sending me to jail for any period of time is not the solution, so thanks. [ 65 ] THE COURT: Thank you. [REASONS FOR SENTENCE CONCLUDED]