R. v. McCarthy, 2019 BCPC 137

Citation: R. v. McCarthy 2019 BCPC 137 Date: 20190626 File No: 250450-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Division) REGINA v. DEREK JAN MCCARTHY REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.P. HARRIS Counsel for the Crown: F. Malik Counsel for the Defendant: T. Tso Place of Hearing: Vancouver , B.C. Date of Hearing: April 26, 2019 Date of Sentence: June 26, 2019 I. INTRODUCTION [ 1 ] Mr. McCarthy pled guilty to robbery and using an imitation firearm while committing the indictable offence of robbery.

A sentencing hearing was held and the court has had the benefit of a pre-sentence report, a psychological assessment, case authorities, letters of support, and able submissions of counsel.

[ 2 ] The Crown seeks a sentence of 2 years for the robbery and pursuant to s. 85 (3) (

a) of the Criminal Code , the mandatory minimum of 1 year to be served consecutive to any other sentence. The Crown recognizes the totality principle and argues that a fit sentence is a sentence of 2 years less enhanced credit of 128 days for time served resulting in a sentence in the range of 18 to 24 months followed by a lengthy period of probation. [ 3 ] The defence argues the circumstances justify a 6 months sentence for the robbery and 1 year consecutive for the use of an imitation firearm; however and owing to the totality principle, the sentence should be reduced to 1 year plus probation for 3 years. II.

CIRCUMSTANCES OF THE OFFENCE [ 4 ] On March 2, 2018, Mr. McCarthy entered a pharmacy and he approached 2 staff members. Mr. McCarthy pointed a black handgun at them and he directed them to crawl down, put their hands up, and unlock the safe. [ 5 ] One of the staff members told Mr. McCarthy that the safe was unlocked. Mr. McCarthy then told the staff member to remove all of the narcotics from the safe, however, the staff member was too frightened to comply, so Mr. Chan, the pharmacist, took over. Mr. Chan complied with Mr. McCarthy’s demands and filled a bag with narcotics from the safe.

While this was going on Mr. McCarthy was saying if anyone did anything or called the police that someone would get hurt. Mr. McCarthy also said, “I will shoot you if you touch the alarm. I will shoot your if you don’t get on the ground. I will shoot you if you don’t put your hands in the air.” [ 6 ] Mr. McCarthy then asked about the surveillance system’s hard drive. Neither, Mr. Chan or the staff member knew where the hard drive was located. Mr. McCarthy then asked where the rear exit was and he fled out of the rear of the business. [ 7 ] At the commencement of the robbery, Mr.

McCarthy had a mask on the top of his head and during the robbery he lowered it to cover his face. Obtained in the robbery were 2,941 products, comprising of, Hydromorphone, Clonazepam, Codeine, Percocet, Ritalin, Fentanyl and others. The value was over $2,000.00. [ 8 ] Counsel for Mr. McCarthy explained his client committed the robbery in order to commit suicide. Specifically, upon receiving the drugs, Mr. McCarthy went to his residence and consumed all of the drugs, and fell into a deep sleep. III. MR. MCCARTHY’S CIRCUMSTANCES [ 9 ] Mr. McCarthy is 41 years old. He was raised in Surrey, BC.

He did not suffer abuse and his parents were loving. While growing up Mr. McCarthy witnessed turbulence in his parents’ relationship. They ultimately divorced when Mr. McCarthy was 25 years old. [ 10 ] Mr. McCarthy has had a long-standing drug addiction. He attributes his drug addiction to an incident that occurred when he was 17 years old whereby a police officer punched him. Although not injured, Mr. McCarthy sees this event as the start of his drug activity. [ 11 ] As for his drug use, Mr. McCarthy was using heroin by the time he was 18 years old.

Thereafter, he attended treatment and he reached periods of sustained abstinence only to have life events disrupt his sobriety. Such events that triggered his drug use include, a job loss, a break-up, the loss of his dog, and the failure of his small grow business. [ 12 ] Despite the setbacks, Mr. McCarthy regularly returned to treatment. In this regard, he attended treatment when he was 22 and thereafter in 2005 and 2006. He has also received treatment from Dr. Sakakibara, an addictions doctor. [ 13 ] Since June of 2018, Mr. McCarthy has been a resident at Reaching Out Supportive Recovery Society.

Their Executive Director, Mr. Cavanagh, prepared a letter in support of Mr. McCarthy wherein he commented on Mr. McCarthy’s change in thinking, his advancement in the program and his motivation to make positive changes. [ 14 ] Letters were also filed from Travis Heath and Owen Matlew, residents of Reaching Out Supportive Recovery Society, and they speak to Mr. McCarthy’s caring and generous nature and his serious approach to recovery. [ 15 ] Janice Nicol, Concurrent Disorder Clinician, at Vancouver Mental Health and Substance Use Clinic also provided a letter. In her, letter Ms. Nicol states: Mr.

McCarthy is, in my opinion, someone who has a sincere desire to end his dependence on addictive substances and change his life for the better. He is very open to suggestions of ways to help himself, and very respectful of the counselling process. His trauma history has been a barrier which his is working hard to overcome. [ 16 ] From the above, it is clear that Mr. McCarthy is motivated to manage his addiction and he has achieved sustained periods of success only to have his sobriety compromised by life challenges. In essence, his sobriety (like many) is fragile. [ 17 ] As for education and employment, Mr.

McCarthy has completed his grade 11 studies and he has taken some marketing courses at BCIT. He has his Level 3 Occupational First Aid and a forklift operator’s certificate. Mr. McCarthy worked at BCIT from 2008 to 2014, however, he lost his employment because he was missing work in order to pick up his methadone. Mr. McCarthy has been unemployed for 3 years and he is on disability. [ 18 ] Mr. McCarthy plans to pursue his Construction Safety Officer Certificate and to start his own business.

Areas that appeal to him include licensed cannabis growing and the dog kennel business. [ 19 ] According to the psychological assessment, Mr. McCarthy does not suffer from a mental illness. Despite this, his personality makes it difficult for Mr. McCarthy to abstain from drugs. In this regard, Dr. Brown writes: It appears that Mr. McCarthy’s functioning has been significantly affected by Cluster B personality symptoms. He does not appear to have been previously diagnosed with a personality disorder, but his difficulties seem largely related to borderline personality traits (fear

of abandonment, unstable interpersonal relationships, identity disturbance, impulsivity, recurrent suicidal behaviour, affective instability, chronic feelings of emptiness, and inappropriate intense anger). In my opinion, he has had lifelong difficulty regulating his emotions and coping with distress, and this would have predisposed him to substance abuse. Additionally, these traits make it difficult for him to remain abstinent from drugs, as he copes poorly with stress and setbacks. [ 20 ] As for recommendations, Dr. Brown suggests: In my opinion, Mr.

McCarthy would benefit from a residential substance use treatment program, however, he also requires specific treatment to address his emotional dysregulation or he will remain prone to relapsing to substance abuse. The type of treatment required is Dialectical Behavioral Therapy. This treatment is available at private clinics in Vancouver, but will be more difficult to find in correctional or public mental health settings. Once Mr.

McCarthy has completed any custodial sentence (or ordered residential treatment), I would recommend that he is referred back to Forensic Psychiatric Services for a treatment consultation and referral. [ 21 ] Mr. McCarthy’s criminal record begins in 1999 and it contains 15 convictions. He has 11 theft convictions and convictions for flight from a police officer, improper storage of a firearm, and robbery. Of note is, Mr. McCarthy has a 9 year gap in his criminal record; (September 2006 to October 2015). IV.

FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING [ 22 ] The fundamental principles of sentencing are in s. 718 of the Criminal Code : 718. The fundamental purpose of sentencing is 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;

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 acknowledgement of the harm done to victims and to the community. [ 23 ]

Section 718.1 of the Code states that the fundamental principle of sentencing is: s. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 24 ] Proportionality is the sine qua non of a just sentence. It is where the sentence imposed reflects the seriousness of the offence balanced against the degree of moral blameworthiness ( R. v. Ipeelee, 2012 SCC 13 , at paras. 36-37 ). [ 25 ] Recently, in R. v. Carte, 2017 BCSC 2421 Madam Justice DeWitt-Van Oosten commented on achieving a proportionate sentence.

At paragraph 65, she observed: [65] Achieving a proportionate sentence is a case-specific determination, requiring a multi-factoral analysis tailored to the individual circumstances of the offence and the offender: R. v. Nur , 2015 SCC 15 at para.43. All relevant factors must be considered. [ 26 ]

Section 718.2 of the Code contains additional principles. The relevant portions read: 718.2 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…, (

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

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 should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. V. ANALYSIS a. Objectives of the sentence [ 27 ] In the instant case, I conclude that denunciation and deterrence are the primary sentencing objectives with some focus attributable to Mr. McCarthy’s rehabilitation. As for denunciation, it is incumbent upon this court to express society’s condemnation for Mr.

McCarthy’s conduct. [ 28 ] As for deterrence, those that work with within the pharmaceutical industry are deserving of protection. Such protection is partially achieved by demonstrating that robberies committed against vulnerable pharmaceutical employees will result in stiff penalties. [ 29 ] I have given weight to Mr. McCarthy’s rehabilitation because of his demonstrated motivation, his measured success, and the 9

year gap in his criminal record which signifies an ability to conduct himself in a pro-social manner. b. Seriousness of the offence and degree of moral blameworthiness [ 30 ] The offences committed by Mr. McCarthy are serious. Specifically, while possessing an imitation firearm and while wearing a mask (at times), he threatened to shoot innocent pharmacy employees. The maximum penalty for robbery is life imprisonment and the penalty for committing an indictable offence while armed with an imitation firearm is a mandatory minimum sentence of 1 year that must be served consecutive to any other sentence.

These sentences reflect the seriousness of Mr. McCarthy’s offences. [ 31 ] Turning to Mr. McCarthy’s level of moral blameworthiness, I appreciate his actions were driven by his long standing drug addiction and his emotional state, however, I have difficulty accepting that Mr. McCarthy’s state was such that his moral blameworthiness was substantially reduced.

I am of this view because, he was functioning to such a degree that he equipped himself with the items necessary for the robbery, he targeted the location, and if he was intent on taking his life, it makes little sense that he wanted to conceal his identity with a mask or by taking the surveillance recording. c. Aggravating and mitigating factors [ 32 ] The degree of planning is aggravating. Mr. McCarthy prepared by arming himself with an imitation firearm and a mask. He then targeted a pharmacy where he knew that the drugs were in the safe.

Finally, he turned his mind to exiting at the rear and to removing video evidence from the surveillance system. Mr. McCarthy’s previous record for robbery is also aggravating. Lastly, the level of violence is aggravating. Mr. McCarthy pointed an imitation firearm at the employees, he had them crawl and he threatened to shoot them. [ 33 ] Mr. McCarthy’s guilty plea and genuine remorse are substantially mitigating. In this regard, he has saved the state the expense associated with a trial and he has saved the victims from being further traumatized by re-visiting the events. Also mitigating is Mr.

McCarthy’s rehabilitative efforts. He is in a recovery house, he is working on his addiction and he has demonstrated a sincere motivation to control his addiction. Finally, Mr. McCarthy has the support of others and his pre-sentence report is positive. d. Range of sentences [ 34 ] With respect to the sentencing range for robberies involving violence and the factors to be considered, Madam Justice Ryan made the following comments in R. v. Brogan, 1999 BCCA 278 , at paragraphs 10 to 11 : [10] We have been given a number of cases where robbery with violence has been committed by young men such as Mr. Brogan.

An analysis of the range produced by these cases is that the sentencing range is somewhere between 2 and 9 years. The age of the offender, his previous criminal experience, the level of violence, the number of offences, the level of premeditation, whether the perpetrator was disguised or not, the type of weapon used and how it was used, the possibility of rehabilitation, the requirement of deterrence in a particular community, are some of the factors which serve to distinguish one fact pattern from another. None of the cases drawn to our attention fits Mr. Brogan's situation exactly, none could. [11]

Section 718.2(

b) provides that: ...sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This

section imposes the principle of consistency. Since no two offences are ever entirely the same, the

section mandates that the court determine a general range for similar offences for similarly situated offenders. Offences and offenders can be generally categorized but a multitude of factors, as I have mentioned, will distinguish the details. Thus, in this case the range can at best be said to be between 2 and 9 years. [ 35 ] In R. v. Davidson, 2009 BCCA 485 , the appellant’s 4 year robbery sentence was reduced to an effective sentence of 2 years.

The circumstances of the offence are; the appellant entered a drug store, approached a clerk and pointed to what appeared to be a firearm that was tucked into his shorts. He then demanded that the clerk fill a bag with Dilaudid. The appellant was 25 years old and a drug addict. He committed the offence because he had been unable to obtain his methadone and therefore resorted to Dilaudid which is a synthetic form of heroine. The appellant had a lengthy criminal record, including a Youth Court conviction for robbery.

The court held that the sentence of 4 years was unfit considering the relatively young age of the appellant, the possibility of rehabilitation, that his longest previous sentence was 9 months and the absence of aggravating factors such as, “...use of a disguise, use of actual violence, or commission of the offence while on probation or under court restraints.” [Para. 29]. [ 36 ] I have also considered the Court of Appeal’s review of similar robbery cases in Davidson . Specifically, R. v. Gill, 2006 BCCA 127 , R. v. Rosov, 2006 BCCA 276 , R. v. Lackey, 1999 BCCA 549 , and R. v. P.T.C., 2001 BCCA 473 .

Counsel for Mr. McCarthy relies on R. v. Ignacio, 2016 BCPC 225 and R. v. Marks, 2016 BCCA 480 . [ 37 ] In Ignacio , the offender was sentenced to a global sentence of 12 months and probation for 2 years. He was convicted after trial of 2 counts of robbery, 2 counts of committing an indictable offence while wearing a mask, and 2 counts of committing an indictable offence while using an imitation firearm. The offences involved the offender masking his face producing an imitation handgun and robbing an individual on the street.

The second robbery involved the offender masking his face producing an imitation handgun and robbing a store of cigarettes and transit tickets. The offender was 20 years old, he did not have a criminal record, he was remorseful and his personal circumstances and his personality contributed to the offences. [ 38 ] In Marks , the offender’s appeal of a 12-month sentence was dismissed on the basis that the sentence was not unfit. The circumstances of the offence are, the offender entered a gas station, produced an imitation handgun, demanded money and threatened to shoot the victim.

The offender pled guilty to robbery while armed with an imitation weapon. The offender was 18 at the time of the offence, his offence was driven by a desire to pay off drug debts, he had been on strict bail for 3 years and he had made significant efforts at turning his life around.

VI. CONCLUSION [ 39 ] I have considered defence counsel’s sentencing position and despite a requirement to impose the least restrictive sanction that is appropriate in the circumstances, I conclude that the sentence purposed by defence counsel would not achieve the requisite degree of denunciation and deterrence. My view on this point is driven by the seriousness of the offence, the degree of responsibility, and the aggravating factors.

I am also of the view that Marks and Ignacio are highly distinguishable in that both involved young first time offenders. [ 40 ] I acknowledge that the range of sentence for robbery with violence is between 2 and 9 years. I appreciate this sentencing range is not inflexible and there may be circumstances justifying departing from the range. I am of the view that Mr.

McCarthy’s progress, prospects, and mitigating circumstances justify imposing a sentence that is below the range. [ 41 ] With the above in mind, I am of the view that a fit and appropriate sentence for the robbery is 14 months less time credit of 128 days thus leaving a balance of 299 days. Consecutive to the robbery sentence, I impose a sentence of 1 year for the offence of using an imitation firearm while committing an indictable offence. Thereafter, Mr. McCarthy will be on probation for 2 years. In my view the sentences imposed balance denunciation and deterrence while supporting Mr.

McCarthy’s reintegration and rehabilitation. [ 42 ] Finally, I have considered the totality principle and in my view the total of the sentences imposed will not be crushing or disproportionate. VII.

PROBATION ORDER [ 43 ] Keep the peace and be of good behaviour; • you are to have no contact directly or indirectly with, Cynthia Widder, Megan O’Loughlin, June Wong, Karen Au, Jonathan Chan, Khara Carabuean; • you are not to attend any residence work place or education institute known to you to be that of Cynthia Widder, Megan O’Loughlin, June Wong, Karen Au, Jonathan Chan, Khara Carabuean; • you must not attend the MacDonald’s Pharmacy located at 2188 West Broadway, Vancouver, nor must you attend any retail outlet operating under the name of Pharmasave in the province of British Columbia; • you must report to a probation officer at 275 East Cordova Street, Vancouver within 2 business days of your release from custody and thereafter as and when directed by your probation officer; • you are to appear before the court when required to do so by the court; • you must notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or your probation officer of any change of employment or occupation; • you are to abstain from the possession and consumption of those drugs as defined by the Controlled Drugs and Substances Act, except those drugs for which you have a medical prescription; • you must not possess any weapons as defined by

section 2 of the Criminal Code ; • you must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the probation officer; • having consented, you must attend at the direction of your probation officer for a psychiatric intake, assessment, counselling or treatment program through Forensic Psychiatric Services or elsewhere, as directed by your probation officer; and • while outside your residence you must not possess any knife, except for the immediate preparation or eating of food. VIII. ANCILLARY ORDERS a.

Weapons prohibition [ 44 ] Pursuant to s. 109 of the Criminal Code , Mr. McCarthy is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, and explosive substances for life. b. DNA [ 45 ] The offence of robbery is a primary designated offence. I therefore order that a sample of your DNA be taken. ____________________________ The Honourable Judge R.P. Harris Provincial Court of British Columbia