R. v. Lorntsen, 2016 BCPC 114

Citation: R. v. Lorntsen 2016 BCPC 114 Date: 20160322 File Nos: 26161-1; 26198-2-KC Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. File No: 26161-1 CODY AUBREY LORNTSEN D.B.M. File No: 26198-2-KC SHIEAN NIOME-ROBYN BLACKKETTLE CODY AUBREY LORNTSEN DYLAN JOSEPH TYLOR ALEC REASONS FOR SENTENCE OF CODY AUBREY LORNTSEN OF THE HONOURABLE JUDGE J. T. DOULIS Counsel for the Crown: A. Gal-Or Counsel for C. Lorntsen: K. Surcess Place of Hearing: Quesnel , B.C. Date of Hearing: March 22, 2016 Date of Judgment: March 22, 2016 [ 1 ] THE COURT: These are my oral reasons for sentence in the matter of Cody Aubrey Lorntsen , who entered guilty pleas on

March the 4th, 2016 on Quesnel Informations 26161 and 26198-2-KC. [ 2 ] As with any oral reasons, I reserve the right to edit these reasons prior to publication. Although, the process will not involve a change in the decision or the reasoning. [ 3 ] On March the 4th, 2016, Cody Aubrey Lorntsen entered a guilty plea to Count 1 on Information 26161 charging him with breaking and entering a commercial premise and committing an indictable offence of theft over $5,000, contrary to s. 348(1) (

b) of the Criminal Code . This offence occurred in Quesnel, B.C., on April 17, 2015. The items stolen were two all-terrain vehicles.

I should add that this offence was allegedly committed with a co-accused, D.B.M. [ 4 ] Also on March 4th, 2016, Cody Aubrey Lorntsen entered a guilty plea to Counts 2 and 3 of Information 26198-2-KC by which he is charged under Count 2 with assaulting D.B.M., contrary to s. 266 of the Criminal Code and under Count 3 as amended, with carrying or possessing a weapon for purpose dangerous to the public peace or for the purpose of committing an offence, contrary to s. 88(1) of the Criminal Code . The offences occurred in Quesnel, B.C., on August the 21st, 2015. The weapons Mr.

Lorntsen possessed were two knives and a flashlight. [ 5 ] The Crown proceeded by indictment on Information 26161-1 and summarily on Information 26198-2-KC. [ 6 ] My findings of fact with respect to the circumstance of the offence and offender have been gleaned from the submissions of counsel and the exhibits filed on the March 4th, 2016 sentencing hearing. As I proceed and prior to passing sentence, I invite you to bring to my attention any material fact you believe is inaccurate or anything I say you believe is misconstrued. If I agree with you it may influence my decision as to the appropriate sentence.

Circumstances of the Offence on Information 26161-1 [ 7 ] On April 17th, 2015 in Quesnel, Cody Aubrey Lorntsen, who I will refer to as Mr. Lorntsen, and D.B.M. broke into the business premises located at 2180 Gassoff Road, Quesnel, British Columbia. They cut through a chain link fence and stole two all- terrain vehicles that were stored in the outside business compound. One of the ATVs was valued at $6,700 plus tax, the other at $25,299 plus tax. Ultimately, the ATVs were recovered. [ 8 ] The police investigated the break, enter and theft. They identified Mr. Lorntsen and D.B.M. as the persons responsible.

At the time, Mr. Lorntsen and D.B.M. were in a relationship. The police arrested and detained Mr. Lorntsen and D.B.M. They released D.B.M. without her having given a statement. Mr. Lorntsen gave a partial statement. He said he was having an issue with the company he was keeping and that D.B.M. was one of those people who was dragging him down the path on which he was travelling. [ 9 ] Two weeks later, an RCMP officer observed Mr. Lorntsen and D.B.M. walking together in the west side of Quesnel. Mr.

Lorntsen denied to the RCMP that the offence was motivated by any financial shortcomings or his need to support a drug addiction. Mr. Lorntsen and D.B.M were both arrested and charged under Information 26161-1. Only Mr. Lorntsen has entered a guilty plea to the offence. Position on Sentence on Information 26161-1 [ 10 ] The Crown seeks a jail sentence of 60 days on Count 1 of Information 26161-1 plus one year probation. The Crown submits the sentence should be served consecutively to any sentences imposed on Information 26198-2-KC.

Break and entry and committing an indictable offence not in a dwelling house is a secondary designated offence pursuant to s. 487.04 of the Code and the Crown requests an order that DNA samples be taken from the offender. The defence takes the position the appropriate sentence on Count 1 of Information 26161 is 45 days to be served concurrently with any and all sentence imposed on Information 26198-2-KC. Circumstances of the Offence on Information 26198-2-KC [ 11 ] On April 21st, 2016, D.B.M. came to the RCMP detachment in Quesnel accompanied by her boyfriend C.B. and her mother J.M.

D.B.M. said immediately she needed a restraining order. She claimed to have been assaulted. D.B.M. met with and spoke to Constable Ribeiro who noted she had a black eye along with other bruising to the face consistent with someone being assaulted. Constable Ribeiro took photographs of D.B.M.'s injuries. These photographs are marked as Exhibit 1 in the sentencing hearing. The police investigated the offence and took statements from D.B.M., C.B. and Dylan Alec. [ 12 ] The offence occurred at C.B.'s residence where D.B.M. was staying. D.B.M. described C.B. as her boyfriend. By August 21st, 2015, D.B.M. and Mr.

Lorntsen had obviously parted company. In the early morning hours of August 21st, 2015, Dylan Joseph Tylor Alec and Shiean Blackkettle and R.D. were in Mr. Lorentson’s residence. At some point, the decision was made to go to C.B.’s residence. Mr. Alec claims he was peer pressured to tag along and that Mr. Lorntsen gave him a canister of bear mace. On August 21st, 2015, Mr. Alec was 23 years old and Ms. Blackkettle was 21. [ 13 ] C.B. said that at 3 a.m. he received a telephone call from Ms. Blackkettle. She left a message stating she was coming to his house.

I gathered he relayed this message to D.B.M. who told him to lock the door. At 4:30 a.m. Cody Lorntsen, Ms. Blackkettle, Mr. Alec went to Mr. C.D.’s residence. It is unclear how they gained entry into the house. [ 14 ] Ms. Blackkettle and Mr. Lorntsen entered in a room where D.B.M. and C.B. were sleeping. Ms. Blackkettle grabbed D.B.M. by the hair and repeatedly punched her on the head. Ms. Blackkettle yelled at her, "Fight me. Fight me, you little pussy." D.B.M. refused to fight fearing this would only intensify the beating. [ 15 ] D.B.M. said Mr. Lorntsen was holding a baton which Mr. Lorntsen denies.

He does agree he was holding a flashlight. C.B. and Mr. Alec say Mr. Lorntsen was wearing a white bandana covering his nose and mouth. Mr. Lorntsen was wearing a black sweater that D.B.M. had given him. Mr. Alec stood by the door holding a canister of bear mace. Mr. Alec says he did not actually go into the room where the offences occurred. He waited by the door because he said that is what Mr. Lorntsen instructed him to do.

[ 16 ] When C.B. first saw the offenders, he was naked and tried to cover himself; D.B.M. was clothed. Mr. Lorntsen said to C.B., "C.B., stay out of it." The fight moved to the kitchen of the residence where D.B.M. claims that Mr. Lorntsen punched her in the face. Neither Mr. Alec nor C.B. saw Mr. Lorntsen punch D.B.M. They identified Ms. Blackkettle as the person doing the punching. Both Mr. Lorntsen and Mr. Alec deny punching anyone in this altercation. [ 17 ] The offenders were trying to get D.B.M. out of the house. Mr. Lorntsen took off his sweater and wanted to fight C.B. Ms.

Blackkettle wanted D.B.M. to kiss her feet. She also wanted to take pictures of D.B.M.'s injuries to show to someone by the name of M.M. D.B.M. called her mother J.M. to come and pick her up. Her mother arrived quickly. About the time she arrived, Mr. Lorntsen, Ms. Blackkettle and Mr. Alec were leaving C.B.’s residence. Mr. Alec said that as the offenders were leaving, they were laughing and saying that D.B.M. got what she deserved. [ 18 ] Ms. Blackkettle walked over to D.B.M.'s vehicle. D.B.M. yelled out to her mother to stay in the vehicle and not get out. The offenders left in a jeep. Mr.

Alec said he was disappointed with himself for going along with the group. D.B.M. said she did nothing to deserve this beating. Her guess as to motivation was that Mr. Lorntsen was calling her a rat and if she spoke to the police, he would get more people to beat her up. [ 19 ] Mr. Lorntsen was arrested and charged with the offences under Information 26198-2-KC. Upon being searched incidental to the arrest, the police found Mr. Lorntsen had two large knives one in each of his left and right-front pockets. After the police had given Mr. Lorntsen his 10(

a) and 10(

b) Charter rights, Mr. Lorntsen said, "I never touched anybody." [ 20 ] The Crown submits that whether or not Mr. Lorntsen touched D.B.M., he certainly did aid and abet the assault. [ 21 ] To the victim and witnesses, Mr. Lorntsen appeared to be carrying a baton. [It was later identified as a flashlight.] The Crown says it can be inferred from the circumstances; Mr. Lorntsen was carrying a flashlight for the purpose dangerous to the public peace or for the purpose of committing an offence. Mr.

Alec claims the assault occurred because people were upset with D.B.M. because, "She was sleeping with everyone's dad." Also he says D.B.M. owed a lot of money to drug dealers in town. Positions on Sentencing on Information 26198-2-KC [ 22 ] On Information 26198-2-KC, the Crown is seeking a 90-day jail sentence on each of Counts 2 and 3 to be served concurrently with each other and consecutive to any jail sentence imposed on Information 26161-1. The Crown also seeks a 12-month probation order and a DNA order. For all counts to which Mr.

Lorntsen pled guilty on both informations, the Crown proposes a total jail sentence of 150 days, plus one year probation plus a DNA order. [ 23 ] In addition to the mandatory prohibition conditions under s. 732.1(2) (a), (a.1), (

b) and (

c) of the Criminal Code , the Crown seeks conditions relating to reporting, residing, counselling, prohibiting drug and alcohol consumption, prohibiting the possession of weapons and prohibiting the contact with the Crown’s civilian witnesses. [ 24 ] The offence under s. 88(1), that is a possession of a weapon for the purpose dangerous to the public or for committing an offence, attracts a discretionary firearm prohibition under s. 110 of the Criminal Code and, if made, an s. 491 mandatory forfeiture order.

Pursuant to s. 487.04 of the Criminal Code , the s. 88(1) and the s. 266 offences are secondary designated offences and the court may, on application by the prosecutor, order samples from the offender. [ 25 ] The Crown says that it is asking for such little jail time on Information 26198-2-KC because Ms. Blackkettle and Mr. Alec received partial discharges for their

part in the assault on D.B.M. Neither Ms. Blackkettle nor Mr. Alec had a criminal record at the time of the sentencing; moreover, at the time of the offence, they were very young adults. [Ms. Blackkettle was 21 and Mr. Alec was 23.] [ 26 ] The defence argues the appropriate jail sentence is 45 days on each of Counts 2 and 3 to be served concurrently with each other and concurrently to any jail sentence imposed on Information 26161. The defence does not oppose the probation and DNA orders.

Victim Impact Statement [ 27 ] The Crown has not provided a victim impact statement on either information beyond D.B.M.'s statement to the police and the photographs of her injuries. [ 28 ] With respect to the break and entry offence, I understand the stolen ATVs were recovered and returned to their owner. I have been provided no information with respect to any monetary value of property damage incurred with the break-in into the chain link fence. Criminal Record [ 29 ] Mr. Lorntsen was born on June 30th, 1986. He has a criminal record which the defence admitted.

The criminal record has been marked as Exhibit 2 in these proceedings. [ 30 ] Mr. Lorntsen's record shows that while a youth, he was convicted of the following offences: on September 12, 2000, mischief under $5,000, contrary to s. 430(4) for which he received six months' probation. Mr. Lorntsen would have been 14 years old by my calculation. On April 10, 2001, when he was not yet 15 years old, Mr. Lorntsen was convicted of (1) theft over $5,000, contrary to s. 334 (

a) of the Criminal Code for which he received a sentence of 35 days' open custody, plus 14 months' probation; (2) taking or occupying a vehicle or vessel without the consent of the owner, contrary to s. 335(1) of the Criminal Code for which he received a sentence of 14 days' open custody; and (3) possession of a controlled substance, contrary to s. 4(1) of the Controlled Drugs and Substances Act for which he received 20 hours' community service. [ 31 ] On July 9th, 2002, when he was 16, Mr. Lorntsen was convicted of assault, contrary to s. 266 of the Criminal Code for which he received 12 months' probation.

[ 32 ] On September the 17th, 2002, Mr. Lorntsen was convicted of possession of property obtained by crime over $5,000 for which he received a 90-day open custody and one year probation. [ 33 ] On November 28th, 2006, when he was 20 years old, Mr. Lorntsen was convicted of the following offences, (

a) robbery, contrary to s. 344(

b) for which he received a 60-day jail sentence; (

b) possession of a weapon, firearm for the dangerous purpose or for the purpose of committing an offence, contrary to s. 88 of the Criminal Code for which he received a 60-day jail sentence to be served concurrently with that imposed for robbery; (

c) breach of recognizance for which he received a jail sentence of seven days; (

d) theft under $5,000, contrary to s. 344 (

b) of the Criminal Code for which he received a sentence of 12 days; and (

e) wilfully obstructing a peace officer for which he received a jail sentence of seven days. The sentence imposed on Mr. Lorntsen on November 28, 2006, provided for a total of 95 days in jail, less 68 pre-sentence custody, and a 12-month probation order. The offences occurred on four different occasions between September 11th, 2006 and October 26, 2006 and were charged on four different informations. [ 34 ] Mr. Lorntsen has no further convictions until February 2nd, 2016, when he pled guilty to theft over $5,000 and received a 90- day jail sentence by Judge Keyes. Circumstances of the Offender [ 35 ] Mr.

Lorntsen is 29 years old. He was raised in Quesnel and is one course short of graduating from high school. He has two children ages four and two. I understand that Mr. Lorntsen is separated from his children's mother with whom he is on good terms. Prior to his detention, Mr. Lorntsen would see his children weekly and speak to them regularly on the telephone. He is financially obligated to support them. [ 36 ] Prior to his detention last summer, Mr. Lorntsen was employed by CNC Wood Products in Quesnel. Mr.

Lorntsen worked side by side with C.B. for three years and thought of him as a friend. [ 37 ] Upon his release from custody in the fall of 2015, Mr. Lorntsen began working at Poppy's Pizza on a casual basis. He was hired by West Fraser Sawmill in Quesnel until January 11th, 2016, when he was detained in Prince George Regional Correctional Centre on Information 43963. Mr. Lorntsen pled guilty to the offence of theft over $5,000 and sentenced by Judge Keyes on February 2nd, 2016 to 90 days in jail less pre-sentence custody between January 11th and February the 2nd, 2016, credited at 1.5. Mr.

Lorntsen said he is scheduled to be released upon March 6th, 2016. I understand that he was actually released on March 7th, 2016. [ 38 ] The only submission counsel for the defence made with respect to Information 26161 is that Mr. Lorntsen's co-accused, D.B.M. is proceeding to a preliminary inquiry with respect to this matter on March 31st, 2016.

He does not challenge the Crown's version of the facts giving rise to the charge of break, and entry and committing theft. [ 39 ] The following are the only submissions the defence has made with respect to the Crown's version of the facts giving rise to the offences under Information 26198-2-KC: (

a) Mr. Lorntsen was carrying a flashlight not a baton; (

b) Mr. Alec's statement, as read by the Crown, was largely self-serving; and (

c) Ms. Blackkettle appears to be the primary instigator who did a significant amount of harm. Ms. Blackkettle had her own reasons for wanting to assault D.B.M. Mr. Lorntsen does not offer any information as to what those reasons may be. Mr. Lorntsen does not offer any explanation for his participation in these offences. [ 40 ] Ms. Surcess, on Mr. Lorntsen's behalf, argues that a global sentence of 45 days in jail for all counts and all information before this court is fit, given the impressive nine-year gap between these offences and Mr. Lorntsen's previous convictions.

She reiterates that the co-accused on the Information 26198-2-KC received conditional discharges. Mr. Lorntsen thought his criminal record did not include any convictions for assault, but it does appear there was one conviction from when he was a youth. Ms. Surcess also says that Mr. Lorntsen was under the influence of drugs and alcohol which is mitigating. [ 41 ] Since his detention in Prince George Regional Correctional Centre on January 11, 2016, Mr. Lorntsen has been in drug and alcohol counselling with a counsellor named L. This is the first time Mr. Lorntsen has received drug and alcohol counselling.

He recognized that alcohol in particular and drugs in general are at the root of his offences. The alcohol has acted as a gateway to more serious drugs and illicit substances. His problems with alcohol and drugs have led Mr. Lorntsen into restarting criminal behaviour after a nine-year gap of good behaviour. Mr. Lorntsen wanted to take responsibility for these offences before the court and the one in Prince George as soon as possible.

In fact, he wanted to take responsibility for the offence on Informations 26161 and 26198-2-KC on February 2nd, 2016 in Prince George, but the Prince George Crown declined the waiver. [ 42 ] Since he has been in PGRCC, Mr. Lorntsen has taken and finished the "Healthy Relationships" course. He is waiting to take the C.O.R.E. program. He is working in the laundry and he has started the "Substance Abuse Awareness" program in custody. He says he has taken a practical math course to complete his high school education. He is also attending sweats, church and working out daily.

He is proud of the fact he has avoided all violence that is taking place in PGRCC. [ 43 ] Mr. Lorntsen is actively working on his plans for release so he can continue his sobriety. He recognizes he needs to be clean and sober to be a proper father to his two children. He recognizes that staying sober is a daily struggle and is committed to staying sober when out of custody by attending AA meetings and continuing drug and alcohol counselling. Mr. Lorntsen has lined up work at the West Fraser Sawmill to commence upon his release. Mr.

Lorntsen states that he was arrested on January 11th, 2016, and subsequent detention was a turning point where he was either going to turn towards sobriety, lead a lawful life, be a good father to his children or go the other way and spend the rest of his life in and out of jail and end up dead. [ 44 ] Counsel is there anything I have said thus far that you are of the view is not accurate with respect to your submissions? [ 45 ] MS. SURCESS: No, Your Honour. [ 46 ] THE COURT: I know you are somewhat handicapped there. [ 47 ] MR. GAL-OR: To the best of my knowledge.

[48] THE COURT: Those will be my findings of fact in which I will base my sentencing decision. Principles of Sentencing [49] In R. v. Berner, 2013 BCCA 188 , Madam Justice Ryan for the unanimous court held at paragraph 9 that: The purpose of sentencing is to protect the public through sanctions a court imposes upon a person found guilty of committing anoffence. [50] According to s. 718 of the Criminal Code: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance 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 acknowledgment of the harm done to victims and to the community. [51]

Section 718.1 of the Criminal Code codifies the proportionality principle which requires a sentence to be proportionate to thegravity of the offence and the degree of responsibility of the offender. The Supreme Court of Canada in R. v. Knott, 2012 SCC42 §47 and R. v. Pham, 2013 SCC 15 §8, comment that s. 718 generally and 718.1 in particular take into considerationthe correctional imperative of sentence individualization. It requires a sentencing judge to tailor a sentence that is fit to the offender andthe crime.

Section 718.2(

a) requires the sentencing judge to consider all aggravating or mitigating circumstances relating to the offenceand the offender.

Section 718.2(a) (ii) indicate that the evidence the offender, in committing the offence, abused the offender's spouse orcommon-law partner shall be deemed an aggravating circumstance. [52] A criminal record is typically an aggravating factor because it shows a person conducting him or herself in a manner, contraryto the law for an extended period of time. Premeditation or planning of an offence and serious consequence to the victim are alsoaggravating factors.

An early guilty plea is generally a mitigating factor that may decrease the sentence. [53] Other mitigating factors include the fact there are minimal consequences to the victim, cooperation, and the authorities and theyouthful age of the offender. (See: Desjarlais et al, 2006 BCSC 888 , at para. 53) [54]

Section 718.2 codifies the parity principle which requires the sentence to be similar to sentences imposed on similar offender forsimilar offences in similar circumstances. [55] The Crown asserts the appropriate global sentence for offences for which Mr. Lorntsen has entered a guilty plea is a jail term of150 days, plus probation plus a DNA order. The defence argues for a global jail term of 45 days. They point to the conditionaldischarge granted to Ms. Blackkettle and Mr. Alec on Information 26198-2-KC as a basis for a more lenient sentence for Mr. Lorntsen.

In this regard, I find the words of Madam Justice Newbury in R. v. Gillespie, 2015 BCCA 290. She notes at paragraph 8: … that each offender must be judged on his or her own circumstances and that the fact that a co-accused may have received a lessersentence that was inappropriate should not result in [the] co-accused's receiving a similarly inappropriate sentence. [56]

Section 718.2(

c) codifies a totality principle which requires a judge to ensure that when imposing a consecutive sentence, thecombined sentence should not be unduly long and harsh, and s. 718.2(

d) and (

e) codify the restraint principle which holds “an offendershould not be deprived the liberty if less restrictive sanctions may be appropriate in the circumstances and that all available sanctionsother than imprisonment are reasonable in the circumstances should be considered for all offenders with particular attention to thecircumstance of Aboriginal offenders.” [57] In terms of the s. 348(1) (

b) offence, the maximum jail sentence is 10 years. There is no statutory minimum. In Farrell, 2004BCCA 631, the Court of Appeal upheld a 60-day intermittent jail sentence, after Mr. Farrell's guilty plea, to one count of break and entryinto a commercial premise. Mr. Farrell assisted another man in removing a safe from a Pemberton Station Pub; loaded it into his pickuptruck, and drove it away. That case suggests, but does not clearly indicate, this was Mr. Farrell's first criminal conviction. [58] In R. v.

Nickles, 2013 BCCA 151, the offender pled guilty in Provincial Court to several offences which had occurred in lessthan four months. After a three-day hearing, the judge imposed a global sentence of eight months jail, which reflected an effectivesentence of 18 months' jail less 10 months for the pre-sentence custody plus probation (which including a curfew) and a DNA order. Themost serious offence, a conviction under 348(1) (b), related to the offender's break and entry into a coffee shop and theft of a cashregister.

For this offence, the sentencing judge imposed a jail sentence of nine months plus one day. [59] The other offences were two counts of breach of court orders, two counts of escaping lawful custody and one count ofobstruction. Mr. Nickles appealed the sentencing judge's refusal to impose a conditional sentence. In arguing the sentence for the s.348(1)(

b) offence was fit, the Crown in Nickles relied on the R. v. Kelter, 2010 BCCA 252 , in which the court imposed an 18-month jail sentence for a 28-year-old accused with a long record of property offences and R. v. Falkenberg, (BCCA),the B.C. Court of Appeal imposed a 20-month jail sentence on a 25-year-old offender who was on probation at the time of one of twobreak and enters and who had a record of property offences.

[60] In R. v. Tanasescu, 2011 BCCA 47 , the Court of Appeal upheld a custodial sentence of two years less a day beforepre-sentence credit, plus two years' probation imposed after guilty plea to one count of break and entry and committing theft. Mr.Tanasescu broke into Starwatch Audio Video in Kelowna from where he stole a 55-inch television set, a laptop and a computer monitor. The loss and damage to the property totalled $9,925. He was 27 years old and had a lengthy criminal record. [61] In R. v.

Gilliland, 2014 BCCA 399, the Court of Appeal upheld a four-year jail sentence imposed on an Aboriginal offender forsix offences associated with the break-in and theft of lawn equipment from an equipment yard. The offender had a lengthy criminalrecord and was sentenced after a seven-day trial. [62] Robinson, 2014 BCSC 2557, was a sentencing after a jury trial found the offender and his co-accused guilty of a break and enterand theft. The offender broke into a business premise at night, removed some bikes and wetsuits.

At the time of sentencing, Mr.Robinson, the offender, was 51 years old with a lengthy criminal history. Mr. Justice MacKenzie stated at paragraph 8: … the principles of denunciation, general and specific deterrence, and the necessity to separate Mr. Robinson from society are theparamount sentencing principles I must consider. [63] He sentenced Mr. Robinson to 19 months in custody less time served followed by two years' probation. Mr. Robinson'syounger co-accused Mr. McColm was sentenced to nine months in jail time served. Mr. McColm's criminal history was far lesssignificant than Mr. Robinson's.

The Crown took the position the proper range of sentence in that case was 12 to 18 months. Mr.McColm had no prior convictions for break and entry or robberies, only a theft under $5,000 in 2010 with a conditional sentence of 90days and three other dated convictions for theft under 5,000. Mitigating and Aggravating Circumstances [64] Mr. Lorntsen's prior criminal convictions for theft and robbery are aggravating. With respect to the nine-year gap in Mr.Lorntsen's criminal history, I have taken guidance from R. v. Georgiev, 2014 BCCA 246.

In the Georgiev decision, Madam JusticeSaunders, for the unanimous court, discussed how a sentencing judge might consider an accused criminal record. She said: [21] Mr. Georgiev says that the judge erred in principle in the characterization of and treatment of his prior criminal record. He says thejudge’s description of the record as demonstrating “a pattern of ongoing criminality” is inaccurate.

He says, further, that the gap in hiscriminal record between the convictions in 2003 and convictions in 2011 on the firearms charges (the drug convictions came in 2012)should have been considered as a mitigating factor on sentence and his demonstrated capacity to be conviction-free for a substantialperiod of time is a positive feature of his profile, not a negative feature. He refers to R. v.

Mulvahill (1991), (BC CA),69 C.C.C. (3d) 1 (B.C.C.A.), in which Madam Justice Southin, referring to sentencing concepts that have been applied by this court,referred as the “gap” principle to the proposition that “if a man with a criminal record has not had any convictions for a number of years,he is to be treated if not as a first offender, then almost as a first offender”. [22] I do not consider the statement by Madam Justice Southin in Mulvahill as indicating that a gap in prior offences must be viewed as amitigating factor, or in the least neutral, when sentencing for subsequent offences.

It seems to me that the effect of a gap in a criminalrecord depends on the context. For example, the nature of the offences, the circumstances of the offender, and any intervening eventsthat render the record more or less relevant will affect the weight given to a prior criminal record. While I acknowledge a significant gapin offending may have the effect recognized by Madam Justice Southin, it is not invariable and the effect of a “gap” on the appropriatesentence is fact intensive. [65] Mr. Lorntsen and D.B.M. cut their way through a chain link fence securing and stealing valuable vehicles.

I conclude this wasnot a spontaneous crime. It takes some planning and tools to break through a chain link fence and make off with two ATVs. Mr.Lorntsen does not offer an explanation for this offence. He denied to the arresting officer it was motivated by drugs or debt. I concludefrom this denial the offence is motivated by greed. [66] I accept Mr. Lorntsen’s nine-year gap in his criminal record and his ability to hold employment indicates there is a realpossibility of his rehabilitation. Mr. Lorntsen's early guilty plea is mitigating.

This is particularly true in light of his post-offenceconduct in taking responsibility for this and other offences and seeking and participating in counselling, education upgrading and otherpro-social activities. Mr. Lorntsen has demonstrated insight into his need to address the underlining basis for his offending throughcounselling and other programming. Information 26198-2-KC - Assault [67] The maximum jail sentence under s. 266 of the Criminal Code is six months where the Crown proceeds summarily as they havedone in this case. There is no statutory minimum.

The range of sentence for assault simplicitor under s. 266 reflects a wide variety ofcircumstances under which this offence is known to occur. Mr. Lorntsen offers no explanation for his actions giving rise to the assaultcharge. D.B.M. speculates that Mr. Lorntsen thought she was a rat and threatened her that if she spoke to the police, he would get morepeople to beat her up. Mr. Alec says people were upset with D.B.M. for sleeping with everyone's dad and she owed, "A lot of money todrug dealer in town." Mr.

Alec says that immediately following the assault, the offenders were laughing and saying D.B.M. got what shedeserved. All I can glean from this evidence is that D.B.M. was being punished for something. Aggravating Factors [68] In this case, I find the following factors are aggravating. a. D.B.M. is Mr. Lorntsen's former girlfriend, and hence, the principles under s. 718.2(a)(2) are relevant; b. Mr. Lorntsen involved and encouraged two young accomplices who had no criminal records. Even if Ms. Blackkettle was anenthusiastic participant in the assault, Mr.

Lorntsen was eight years her senior and ought to have dissuaded rather than aided her in thisoffence;

c. The assault occurred in D.B.M.'s residence in the early hours of the morning when C.B. and D.B.M. were in bed and at the time whenmost people would be expected to be asleep; d. The assault was premeditated and did not rise spontaneously; e. C.B., the owner of the residence, was Mr. Lorntsen's friend and co-worker; f. D.B.M. suffered injuries in the form of facial bruises and a black eye; g. Mr. Lorntsen wore a white bandana across his face presumably to mask his identity. Since Mr.

Lorntsen was well known to D.B.M.and C.B. and wearing a sweater D.B.M. had given him, this attempt to disguise himself was ineffective; h. Mr. Lorntsen has a criminal record which included convictions for violent offences; i. Mr. Lorntsen was on bail on Information 26161 at the time of the offence; j. Although, Mr. Lorntsen did not engage in the same level of physical violence as Ms. Blackkettle, he did not provide D.B.M. withassistance either. In fact, he told C.B. to stay out of it.

I find his failure to intervene to assist her or to intervene on her behalf anaggravating factor to be taken into account on sentencing. (See R. v. MacDonald, 207 BCCA 606, CanLII). [69] I have considered whether Mr. Lorntsen's possessing weapons ought to be an aggravating factor on the assault charge. I refer toR. v. Johnson, 2015 MCCA 50, in which the Manitoba Court of Appeal considered whether the use of an imitation firearm is anaggravating circumstance in a robbery under s. 344(1)(

b) when the accused is convicted of an additional offence using an imitationfirearm under s. 85(2)(a). The question the appellate court asked was whether the use of an imitation firearm as an aggravating factor inthe robbery and also sentencing for the use of an imitation firearm in the same robbery would result in an accused being sentenced twicefor this one factor. The jurisprudence diverges in its views on this issue. [70] I am mindful of R. v. Desmond, 2011 BCSC 698, in which Mr.

Justice Schultes said at paragraph 25: In identifying aggravating factors, it is important not to rely on factors that are part of the offence itself, thus counting them twice to thedetriment of the offender. [71] Similarly, in R. v. Holt, 2014 BCSC 2170, Madam Justice Warren said at paragraph 59: I turn now to the determination of an appropriate sentence for Mr. Holt in the absence of the three-year mandatory minimum. First, inidentifying aggravating factors, it is important not to rely on factors that are part of the offence itself, thus counting them twice to thedetriment of the offender.

For this reason, I do not consider the fact that the gun was loaded to be an aggravating factor as that is anelement of the offence. [72] So, in fairness to Mr. Lorntsen, I will not consider his possession of weapons as an aggravating factor on the assault charge ashe has already pleaded guilty to the offence of possessing a weapon for a purpose dangerous to the public peace or for the purpose ofcommitting an offence. Mitigating Factors [73] Mr. Lorntsen entered an early guilty plea. There is a significant mitigating factor.

A plea rendered it unnecessary for the victimof the offence to experience the trauma of testifying. Ms. Surcess submits that Mr. Lorntsen was intoxicated by alcohol and drugs at thetime of the offences charged under Information 26198-2-KC. She says this is a mitigating factor in sentence. Although, self-inducedintoxication may be a defence to specific intent offences such as the s. 88(1) offence for which Mr. Lorntsen was charged, it does notafford an excuse to general intent offences such as assault. Moreover, it is rarely accepted as a mitigating factor in sentencing. [74] In R. v.

Carlick, 2011 BCSC 1392, Madam Justice Fisher states in her reasons for sentence, on a manslaughter case thatintoxication is not a mitigating factor. The accused in that case was aware that alcohol was a disruptive force in his life. [75] In Letourneau, 1996 ABCA 309 , the Alberta Court of Appeal said unequivocally that intoxication is never amitigating factor. In R. v. C.G.C., (NS CA), the Nova Scotia Court of Appeal said, “this Court has neverconsidered intoxication as a mitigating factor in sentencing.” [76] R. v.

Craig, 2005 BCCA 484 is oft-cited for the proposition that intoxication does not reduce moral blameworthinessand is not a mitigating factor. In that case, Mr. Craig stabbed and seriously injured his estranged spouse in the presence of theirdaughter. The attack was unprovoked. He cited extreme intoxication at the time as a mitigating circumstance on sentencing. MadamJustice Kirkpatrick said: … I am not persuaded that the respondent's intoxication is a significant mitigating factor. He had been drinking to excess but that did notcause him to do what he did.

It may have reduced his inhibitions, but it did not reduce his moral blameworthiness for his violent attackand the injuries he caused to the victim. [77] In R. v. Roach, 2012 BCSC 2035 , Justice Schultes commented at paragraphs 36 and 37, the passage in Craig would applyequally to a cocktail of street drugs as to drinking and that drug abuse explains the offender's behaviour, but it does not excuse it orreduce his moral blameworthiness. [78] Although Mr. Lorntsen argues his state of intoxication was mitigating, I have no information as to his degree of intoxication.

Ihave not been told the kind or quantity of liquor or drugs Mr. Lorntsen consumed before participating in the assault of D.B.M. I have notheard any comments from witnesses as to Mr. Lorntsen's state of intoxication at the time of the assault. I am not persuaded in this casethat Mr. Lorntsen's voluntary consumption of drugs and alcohol, which resulted in his intoxicated state and subsequent behaviour, is

mitigating in sentencing. In other words, I do not find him less culpable because of his intoxication. The seriousness of Mr. Lorntsen'soffences against D.B.M. are not somehow lessened by his intoxication. The offences were not spontaneous: Mr. Lorntsen armed himselfwith weapons, he covered his face with a bandana, he gave Mr. Alec some bear mace, he travelled in the middle of the night to Mr.C.B.'s residence and told Mr. C.B. to stay out of it. The

Section 88 Offence [79] The maximum sentence under s. 88 of the Criminal Code where the Crown proceeds summarily, as they have done in this case,is a fine in the amount of $5,000 or six months' jail or both. There is no minimum sentence. The aggravating mitigating factors set outwith respect to Count 2 on Information 26198 apply to this count as well. [80] A further aggravating factor in this case was Mr. Lorntsen gave another weapon, the bear mace to Mr. Alec and told him tostand by the door. Mr. Lorntsen took weapons to C.B.'s residence to carry out the assault on D.B.M.

Still, despite having two knives inhis pockets, there is no suggestion he brandished those knives while the assault was ongoing.

Section 718.2(

c) Concurrent versus Consecutive Sentences [81] One of the salient issues in a sentencing hearing is whether the jail sentences the court intends to impose should be servedconsecutively or concurrently. I am required to fix an appropriate sentence that reflects the specific circumstances of the offences forwhich Mr. Lorntsen has been convicted as well as his unique circumstances. [82] In R. v. Li, 2009 BCCA 85 , the B.C.

Court of Appeal held that the test for whether sentences should be concurrent orconsecutive is whether the acts constituting the offence were part of a linked series of acts within a single endeavour. The issue ofconcurrent versus consecutive sentence involve factual assessments of the degree to which the circumstance of the offences areinterconnected or separate. The offences for Information 26161 and 26198-2-KC are separate and distinct. They occurred on differentdays. They involve different victims and very different acts of criminal conduct.

There is no clear nexus offences in time and space tojustify between the offences to justify an imposition of a concurrent sentence for the break and entry, charged under Information 26161,and the assault and the possession of the weapon for a dangerous purpose under Information 26198-2-KC. [83] However, as between the assault and the possession of a weapon for a dangerous purpose, I find the acts giving rise to these twooffences were sufficiently interconnected to attract a concurrent sentence.

Totality Principle [84] As a sentencing judge, I must consider the appropriateness of the consecutive sentences for the purpose of the two Informationsin light of the totality principles. As explained in Li, this is a two-step process: [28] Thus, there is a two-stage approach to sentencing an offender convicted of multiple offences. The first stage is to determine theappropriate sentence for each offence, and decide whether the individual sentences should be made consecutive or concurrent.

Ifconsecutive sentences are imposed, then the second stage is to determine whether the sentences, in the aggregate, offend the totalityprinciple. If the sentence, as a whole, is unduly harsh or disproportionate, then the length of the individual sentences should be adjustedin order to arrive at an appropriate global sentence. See R. v. P.P.H., 2003 BCCA 591 .

Step One: The Appropriate Sentence [85] In determining the appropriate sentence, I have taken into consideration the oral submissions of Crown and Defence in thecontext of the goals, principles and objectives of the sentencing principles set out in s. 718 to 718.2 of the Criminal Code. I haveconsidered the circumstances surrounding the commission of the offences as well as Mr. Lorntsen's personal circumstances, includinghis family and work history. I have also considered his criminal record, his bail status at the time of the offences and his early guiltypleas.

I have considered the impact on the victim and the jurisprudence to which I have referred in this decision. Information 26161-1: Break and Entry [86] For the offence of break and entry of a non-dwelling place and committing an indictable offence, contrary to s. 348(1)(

b) of theCriminal Code, the Crown argued for a 60 days jail consecutive to any other sentence imposed today followed by a one-year period ofprobation and a DNA order. The defence argues 45 days in jail concurrent to all other jail sentences imposed today. [87] In my view, a 60-day jail sentence is at the lowest substratum of the rock bottom range of sentence for an indictable offence forbreak and entry and theft of two motor vehicles from a commercial premise by an offender with a prior conviction for theft and robbery. Notwithstanding Ms.

Surcess' able argument to the contrary, anything less is demonstrably unfit. Accordingly, I find a 60-day jailsentence proposed by the Crown of this offence is fit, but barely so. Assault under Information 26161 [88] For the offence of assault, contrary to s. 266, the Crown proposes a 90-day jail sentence followed by a probation term for oneyear. The defence argues a 45-day jail sentence is appropriate. There is a wide range of sentences in assault cases as they are generallyfact driven. Although, Mr. Lorntsen was not D.B.M.'s spouse, they had been in a relationship. Mr.

Lorntsen participated in a brutalattack on her in circumstances characteristic of a home invasion. At the time of the assault, D.B.M. was in bed in her own residence. [89] In considering the fit sentence, I considered a number of the authorities relevant to domestic assaults. I refer you to R. v.Donnelly, 2010 BCSC 1786, a decision of Justice Joyce in which he says at paragraph 28: Spousal assault is a very serious matter, and a sentence for a serious spousal assault must impress upon the offender and others theabhorrence with which society ought to view violence committed [in] a person's home.

All persons have a right to feel safe within their

home, from their spouses as well as from strangers. If it is to act as a deterrent to others, the sentence for a serious spousal assault mustimpress upon others who might be inclined to engage in similar conduct that, if they are convicted, they will receive a punishment that ismore than simply a partial denial of one's liberty. [90] The assault was unprovoked without any clearly articulated motive. In my view, the focus of sentence needs to be denunciation,deterrence and public protection. The 90-day sentence proposed by the Crown for the assault on D.B.M. is at the very low end of what Iconsider appropriate.

Despite Ms. Surcess' able submissions on Mr. Lorntsen's behalf, a 45-day jail sentence for this offence is wellbelow the acceptable range and demonstrably unfit. Possession of a weapon for dangerous purposes [91] For the offence under s. 88(1) of the Criminal Code of possessing a weapon for a dangerous purpose or to commit an offence,the Crown seeks a sentence of 90 days to be served concurrently with the sentence for assaulting D.B.M. Mr. Lorntsen has a priorconviction under s. 88(

c) for possessing a weapon, a firearm, for a dangerous purpose or for the purpose of committing an offence, forwhich he received a 60-day jail sentence. In the circumstances, a step-up principle ought to be applied, a measured increase on Mr.Lorntsen's prior sentence for this offence is appropriate. Accordingly, I find a 90-day jail sentence a fit sentence for the s. 88(1) offence. There is a sufficient nexus in terms of time and space with the assault that the sentence for these two offences ought to be servedconcurrently.

Step 2: The Aggregate Sentence [92] I have determined that the appropriate sentences for the three offences before the court, I must now consider the cumulativeeffect to determine if a global sentence is just and appropriate. I find that an aggregate jail sentence of 150 days for the three offences,for which Mr. Lorntsen has entered a guilty plea, although at the extreme low end, is still just and appropriate. It is by no means undulyharsh or disproportionate for these offences committed by this offender in the circumstances of these offences.

Accordingly, the 60 dayjail sentence on Information 26161-01 (Section 348(1) (

b) break and entry and theft) and the 90 day jail concurrent sentences onInformation 26198-2-KC (assault and possession of a weapon for a dangerous purpose) will be served consecutively. No furtheradjustments are required to ensure the cumulative sentence does not exceed Mr. Lorntsen’s overall culpability. Presentence Custody [93] Mr. Lorntsen has been in custody on Information 26198-2-KC from August 21st, 2015 to September 22nd, 2015 and fromMarch the 7th, 2016 to date. The Crown and defence agree Mr. Lorntsen should receive enhanced credit for the time served in pre-sentence custody based on R. v.

Summers, 2004, SCC 26, at a rate of 1.5 to one for a total of 60 days. Probation [94] In considering the appropriate period of probation, I have considered the purposes of probation orders is to rehabilitate theoffender and to protect the public from the offenders in the community:

Section s. 732.1(3)(

h) of the Criminal Code; R. v. Proulx, 2000SCC 5 , [2000] 1 SCR 61, §§31-34; R. v. Shoker, 2006 SCC 44 , §§10, 13. Shoker was recently applied in R. v.Voong, 2015 BCCA 285, at §§37-43, the Court noted that while a probation order has primarily a rehabilitative objective, the statutoryterms of "protecting society" and "reintegration into the community" mean that such orders are not limited to this objective. See: R. v.Maxmenko, 2015 BCSC 2224. [95] Mr. Lorntsen recognizes that it is time to change if he is going to lead a productive life. His rehabilitation will benefit fromstructure, constraint and support.

Community Corrections can provide a framework to monitor and strengthen Mr. Lorntsen'scommitment to rehabilitation and his goal of becoming addiction free, employed, a good father and a good citizen. Moreover, theprobation term can afford the public at large and D.B.M., in particular, with a measure of protection while Mr. Lorntsen reintegrates intothe community after serving a custodial sentence. [96] As to the conditions of probation, I am guided by s. 732.1(2) and (3) of the Criminal Code subject to certain conditions.

Section 732.1(3) empowers the court to impose such other reasonable conditions as the court considers desirable for facilitating theoffender's successful reintegration in the community. In Shoker, Justice Charron speaking for the majority said, at paragraph 13: Reasonable conditions will generally be linked to the particular offence but need not be.

What is required is a nexus between theoffender, the protection of the community and his reintegration into the community. [97] In my view, an 18-month period of probation is appropriate in these conditions, including those requested by the Crown, withthe addition of a six-month' curfew. DNA Order [98] The offence of a break and entry is a secondary designated offence within the meaning of s. 487.04 of the Criminal Code. Thismeans I have the discretion to order the taking of DNA samples from Mr. Lorntsen. Ms. Surcess did not argue this was not appropriate. Mr.

Lorntsen has not established the impact of this order, including his privacy or liberty, would be grossly disproportionate to thepublic interest in protecting society which is served by these kinds of orders. I find Mr. Lorntsen's existing criminal record and theseriousness of these offences justify a DNA order pursuant to s. 487.051 of the Criminal Code. The Crown has not sought adiscretionary firearms prohibition. [99] So, Mr.

Lorntsen, you have entered guilty pleas on the following three offences: break and entry into a commercial premisesand committing an indictable offence, namely theft over $5,000; assaulting D.B.M., contrary to s. 266 of the Code, and carrying orpossessing a weapon for a dangerous purpose to the public peace or for the purpose of committing offence, contrary to s. 88 of theCriminal Code. I accept your pleas and I find you guilty of those offences.

[ 100 ] I sentence you to 60 days' jail on Count 1 on the Information 26161 for the break and entry into the commercial premises and theft of the ATVs. The sentence has already been served as you now have 60 days credit in pre-sentence custody. [ 101 ] I sentence you to 90 days' jail on Count 2 of Information 26198 for assaulting D.B.M.

This sentence will be served concurrently with the following sentence under which is the sentence on Count 3 of Information 26198-2-KC. [ 102 ] I sentence you to 90 days for possessing a weapon for the purpose dangerous to the public peace or for the purpose of committing an offence. This 90-day jail sentence will be served concurrently with Count 2 on Information 26198-2-KC. [ 103 ] To be clear, the sentence on both counts on Information 26198-2-KC are to be served consecutively with the sentence for break, and entry and theft on Information 26161, which sentence has now been served by way of Mr.

Lorntsen's pre-sentence custody. [ 104 ] There will be 18-month term probation on the three counts on all Informations, following your custodial sentence. The terms will be as follows: a. You shall keep the peace and be of good behaviour. b. You shall appear before the court when required to do so by the court. c. You shall 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. d.

Within 72 hours after completing your jail sentence, you shall report in person to the probation office in Quesnel, and after that, you shall report as and when directed by the probation officer. e. When first reporting to the probation officer, you shall inform him or her of your residential address and phone number, and you shall not change your address or phone number at any time without first obtaining the written consent of the probation officer. f. You shall remain in the Province of British Columbia unless you first obtain the written consent of your probation officer. g.

For the first six months of this probation order, you shall obey a curfew by being inside your residence or the land on which your residence is located between the hours of 10 p.m. and 6 a.m. each day except as follows: i. When traveling directly to, or returning directly from, your place of employment, or while in the course of your employment. You shall provide the Probation Officer with written proof of employment; ii.

When traveling directly to, or returning directly from, an educational institution at which you are enrolled, or while in the course of classes or extracurricular activities approved by the Probation Officer at such educational institution. You shall provide the Probation Officer with written proof of your educational enrollment, your attendance at classes and your involvement in extracurricular activities; and/or iii. In the event of your own medical emergency and then only when traveling directly to or returning directly from a hospital emergency ward. h.

You shall present yourself at the door to your residence when a peace officer or a probation officer attends for the purpose of determining your compliance with the curfew and the conditions of this order. i. You shall respond personally and immediately to the telephone when a peace officer or a probation officer makes a telephone call to your residence for the purpose of determining your compliance with the curfew and condition of this order. j.

When you are permitted to be absent from your residence, you must carry a copy of the probation officer's written approval and produce it on the demand of the peace officer. k. You shall have no contact or communication directly or indirectly with D.B.M., C.B., J.M., K.G., D.H., C.H., L.H., R.L., R.M. and E.M. [Crown Witnesses on Information 26198-2-KC]. l. You shall not attend at or be at anyplace which you know to be the residence, school or workplace of D.B.M., C.B. or J.M. except with the written consent of your probation officer. m.

You shall not possess or consume any alcohol, intoxicants or illegal drugs except prescribed for you for your use by a physician. n. You shall not enter any liquor store or wine or beer store, and you shall not enter any bar, pub, lounge or any other licensed premises from which minors are excluded by law. o. You shall not possess any weapons as defined in s. 2 of the Criminal Code . p. You shall not possess any knife outside your residence except for the immediate preparation or eating of food or for the purposes directly or immediately related to your employment. q.

You shall not possess any tools or instruments capable for use of criminal activity except for the purpose of work and then only when immediately engaged in work or travelling to and from work. r. You shall make reasonable efforts to seek and maintain employment approved by the probation officer. If on any occasion you report to the probation officer you are not actually employed, you shall provide the probation officer a report describing the efforts you have made to find employment since your last report. Such report may be verbal or written at the discretion of the probation officer.

s. You shall attend, participate in and successfully complete any assessment, counselling, treatment program or other program as directed by the probation officer. Without limiting a general nature of this condition, such assessment, counselling and program may include: iv. anger management, v. alcohol or drug abuse, vi. spousal abuse prevention, vii. such full-time attendance program as may be directed by the probation officer, and you shall comply with all rules, regulations of any such assessment, counselling program. t.

You must carry a copy of this probation order with you at all times when you are in public. If you are stopped by a peace officer for any reason, you shall immediately provide the peace officer with a copy of the document without being requested to do so. [ 105 ] Pursuant to s. 487.051(3) (

b) of the Criminal Code , I make an order in the Form 5.04 authorizing the taking of a number of samples of bodily substances by any peace officer for the province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration from Cody Aubrey Lorntsen by April 15th, 2016. [ 106 ] With respect to the victim fine surcharge, as Mr. Lorntsen is going to be in jail a little longer, I am going to order it payable forthwith, and in default, one day in jail served concurrently with the sentence already imposed today. (REASONS FOR SENTENCE CONCLUDED)