R. v. Yaman, 2020 BCPC 184

Citation: R. v. Yaman 2020 BCPC 184 Date: 20200806 File Nos: 178537-1, 178537-3-A, 179201-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. FARAH JAMES ROBERT YAMAN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: S. Bakken, by teleconference Counsel for the Accused: P. Firestone, by teleconference Place of Hearing: Victoria , B.C. Date of Hearing: July 16, 2020 Date of Sentence: August 6, 2020 [ 1 ] THE COURT: Farah Yaman is here today for sentencing on two counts of break and enter contrary to s. 348(1) (

b) of the Criminal Code , and one count of breach of a release order by being absent from a treatment facility without reasonable excuse. Mr. Yaman has entered a guilty plea on all three counts.

[ 2 ] At issue in this sentence hearing is the length of custodial sentence to be imposed upon Mr. Yaman in light of his many convictions, including for break and enter, balanced against his long-term significant drug addiction disorder and his stated desire and prospects for treatment. The concern over the length of Mr. Yaman's sentence is all the more pressing at this time, it is submitted, because of Mr. Yaman's fear of custodial institutions given his health and the COVID-19 pandemic. [ 3 ] Mr. Yaman is 37 years of age.

His criminal record, including the offences for which he is being sentenced today, will now include 21 convictions for break and enter, the vast majority of which involved residential break-ins. Mr. Yaman has been convicted of numerous other convictions, but the cognate offences are a critical factor in this sentence hearing. The Crown submits, given this record, that Mr. Yaman's sentence should be one that emphasizes the sentencing objectives of deterrence and denunciation as well as the safety of the public. The Crown does not dispute that Mr.

Yaman is still capable of rehabilitation, but argues that that objective should carry much less weight at this juncture. The Crown seeks a sentence in the vicinity of four years. [ 4 ] Acknowledging that the sentencing objectives of deterrence and denunciation must play a significant role in this sentence, Mr. Yaman nonetheless urges this court still to give significant weight to his prospects for rehabilitation, an outcome that would amply meet at least one purpose of sentencing and that is to prevent his future criminal offending. What is different this time, it is submitted, is that Mr.

Yaman's abject fear of contracting COVID-19 while in custody, coupled with the significant support he has from his mother, uncle, and other counsellors as well as his recent insight into his offending behaviour all combine to make him a better candidate for rehabilitation now than at any time before. As Steven Kelly, addictions counsellor at VIRCC, puts it in his April 16, 2020, letter, at this juncture Mr.

Yaman is "in a strong place for making changes in his life." [ 5 ] The circumstances underlying these two most recent break and enter offences are outlined in detail in the agreed statement of facts entered in this sentencing. The offences involved two separate incidences of break and enter into residences in and around the Victoria area. In the first, the subject of Information 178537-1, a person Crown identifies as Mr. Yaman was seen by witnesses entering a home through a broken window. Other witnesses including police saw a person, found later to fit Mr.

Yaman's description, leave the area and eventually discard items, including a backpack ultimately found to contain items belonging to the homeowner, before finally being apprehended by police at a bus shelter. Mr. Yaman pleads guilty to this offence while maintaining it is a meaningful plea as identity would have been in issue at trial. [ 6 ] Mr. Yaman was arrested and released on this charge of break and enter. Given his lengthy record of cognate offences and breaches, Mr. Yaman's release would have been hard-fought, however, the court appears to have been persuaded that Mr.

Yaman could safely be released to the New Vision Society residential treatment program. That sadly proved wrong as Mr. Yaman absented himself from the treatment facility without notifying his bail supervisor. While at large, Mr. Yaman committed a second break and enter. [ 7 ] As regards this second instance, Mr. Yaman pleads guilty to breaking into and entering a residence in Oak Bay on December 29, 2019, as described in Information 179201-1. This offence occurred around 5:30 p.m. The homeowners came home while Mr. Yaman was inside their residence.

Unsurprisingly, though not perhaps wisely, the homeowners confronted Mr. Yaman. One of the residents was injured, though there is no allegation of assault by Mr. Yaman. It is simply the case that break and enters into residential homes are by their nature dangerous, all the more as homeowners will, from time to time, defend their property. Mr. Yaman was ultimately surrounded by neighbours as he attempted to flee the area and was then taken into custody by police where he has since remained. [ 8 ] At 37 years of age, Mr.

Yaman has, by his counsel's submission, been addicted to crack cocaine for more than half of his life. Certainly, Mr. Yaman's criminal record, which starts as a youth in 1997, would attest to a long-term struggle with addiction fuelled in large part, it seems, by criminal offences such as breaking and entering and trafficking, albeit very early on. For the most part over the last 23 years, Mr.

Yaman has demonstrated a pattern of offending largely by breaking and entering into homes, and in some instances businesses, and committing breaches, but then spending successively longer and longer periods in the community without offending before being sentenced to yet again more custodial time. Mr. Yaman has been sentenced for as long as three years for the offence of break and enter. In his last sentencing on March 31, 2017, Mr. Yaman received a sentence of two years for break and enter, plus probation. [ 9 ] Mr. Yaman's long-term use of crack cocaine has, it is submitted, compromised his lungs. Moreover, Mr.

Yaman advises he also suffers from asthma. These facts cause him to fear the worst were he to become infected with the COVID-19 virus. [ 10 ] While in custody this last time awaiting the ultimate disposition of these charges, Mr. Yaman has achieved some clarity, he maintains, around his drug abuse disorder. He credits the institution's psychologist, Dr. Alexander, with helping him to achieve this clarity. Mr. Yaman says he now appreciates and understands that a lot of his behaviour is a function of self-hatred arising out of poor self-esteem. As Mr.

Yaman frankly admitted in court, there are few antecedents in his developmental years that could account for his offending behaviour though, of course, when a person becomes drug addicted that alone can account for much criminal behaviour. Neither causes offending behaviour, but either or both can serve to contextualize the commission of offences. [ 11 ] By all accounts, Mr. Yaman comes from a stable home.

His mother, age 70, who sat in court throughout this sentence hearing, has always been supportive and has the means, I am told, to continue to support him, including by paying for high-end residential treatment. Mr. Yaman's father has now passed away. He was, as I understand it, a man worthy of his son's respect. Indeed, Mr. Yaman bemoaned that his father, unlike himself, never stole from anyone. Mr. Yaman submits that his latest relapse around Christmas of 2019 was driven in part by memories of his father who, it is said, passed away some years ago during this time of year. Alongside his mother, Mr.

Yaman has the support of a maternal uncle who lives some distance away, but is prepared to provide Mr. Yaman with work and shelter. Mr. Yaman's uncle is educated and clearly understands the particular condition of his nephew. [ 12 ] In addition to family supports, Mr. Yaman provides letters of support from members of his counselling community. I have mentioned Mr. Kelly, an addiction counsellor at VIRCC. Mr. Kelly writes that he met Mr. Yaman, who he calls Rob, a few years ago and became re-acquainted with Mr. Yaman during this recent detention. Mr.

Kelly writes that since coming into custody last December 29, 2019, Mr. Yaman has been persistent and consistent in his desire to make changes to his thinking and behaviour. He says that Mr. Yaman has become "emotionally connected" and "able to connect his choices to the outcomes he endures."

[ 13 ] Mr. Kelly observes that, in his view, at least, Mr. Yaman is contrite, exhibiting, at least initially, feelings of despair and hopelessness over the fact his addictions had come full circle. By that what is meant is that the addiction brought Mr. Yaman back into custody yet again. Mr. Kelly writes also that Mr. Yaman has connections and supports in the twelve step community. He is alive to the fact that there are people still willing to help him recover. Mr. Yaman is, as far as Mr. Kelly is concerned, ready, willing, and quite suitable for residential treatment once released. Mr.

Kelly closes by indicating Mr. Yaman has his support in his recovery and he hopes others, such as this court, will also support in that recovery. [ 14 ] Other letters in support include a letter from Mr. Yaman's twelve step sponsor who is convinced of the sincerity of Mr. Yaman's desire for sobriety, as well as a letter from the housing manager at the Umbrella Society, an outreach program here in Victoria, indicating support for Mr. Yaman in his request for recovery. [ 15 ] It is the case, as is evident from Mr. Yaman's criminal record, as well as the evidence of his most recent employment, that Mr.

Yaman is capable of reasonably lengthy periods of sobriety. While sober and in the community, Mr. Yaman has shown he can work at a skilled level. He is, as I say, evidently able to sustain sobriety, yet when Mr. Yaman relapses, as he described it himself during this hearing, when under the influence of alcohol and drugs, he is another person. While he knows right from wrong even then, the alcohol and drugs change him. He becomes a person that cares not a whit for others or himself. He is driven only by the urge to get and consume more drugs.

This, I believe, is not an uncommon feature of drug addiction but, of course, it is also what makes such addiction not just a health issue or even a mental health issue. The offending behaviour becomes dangerous to the whole of the community. [ 16 ] While I am sentencing Mr. Yaman on two break and enters today, I have but one victim impact statement, that from one of the residents of the Oak Bay home Mr. Yaman broke into last December 29, 2019. As I have mentioned, it is unsurprising, given the time of the break-in, that the residents came home just as Mr. Yaman was inside robbing them.

A small set-to occurred resulting in injury to one of the homeowners. Mr. Yaman bears responsibility for this, not as an intentional assault, but as a not unexpected result of breaking into residential homes, particularly around dinnertime. Some people, wisely or unwisely, will confront an intruder at their risk, if not the intruders. The victim in this case describes the impact of the break-in. He writes that both he and his wife continue to have general feelings of insecurity around their home and now feel anxious about the security of their home when they leave it. [ 17 ] Mr.

Yaman, you have been sentenced many, many times for the offence of break and enter. I do not need to lecture you on the impact this offence has on its victims. While you are under the influence of drugs and seeking to acquire drugs, you have frankly admitted you do not care about the impact your actions have on your victims. Here today, while you are sober and in the presence of family, you should now reflect on that impact. Imagine your own family experiencing this horrific intrusion into the sanctity of their home. Imagine a stranger plundering your home and your personal belongings.

Imagine the impact for yourself if you are unable to empathize with the plight of others. Victims of this offence describe feeling violated as if their home was a personal extension of their being. "Home," whatever that is, is a form of sanctuary much needed and frankly deserved by everyone. The violation of that sanctuary merits appropriate punishment to both discourage the offence and to denounce it in no uncertain terms. [ 18 ] Mr. Yaman does not seriously disagree that the sentencing objectives of deterrence and denunciation must be given considerable weight in this sentence. This is, after all, Mr.

Yaman's 21 st conviction for break and enter. Mr. Yaman does not, for example, seek a time served sentence. Rather, in this sentence hearing, Mr. Yaman seeks a sentence of two years. He submits that more weight should be given to his rehabilitation than the step-up principle. When given credit for time served at the rate of one-and-a-half days for each day in remand, Mr. Yaman would still serve 305 days. [ 19 ] By way of contrast, the Crown seeks a step up from prior sentences to a sentence of some four years concurrent on both counts of the break and enters and a further 30-day concurrent sentence on the breach.

Acceding to the Crown's sentencing submission would see Mr. Yaman transferred to a federal facility, an outcome that causes him great concern given the steps that will have to be taken to ensure his safety as well as the safety of others as a result of the pandemic. [ 20 ] The issue in this sentencing hearing, then, is, as I had noted at the outset, the length of sentence. The question is whether, despite Mr.

Yaman's criminal record and his repeated pattern of release, relapse, and reoffending, this court should nonetheless still place primacy on the sentencing objective of rehabilitation recognizing that a drug free Mr. Yaman offers the best chance of protecting the public against his reoffending. [ 21 ] In determining an appropriate sentence, the court is governed by the sentencing objectives and principles set out in s. 718 , 718.2 , and 718.2 of the Criminal Code . These provides as follows.

Firstly, that: 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 … Those include to denounce unlawful conduct; to deter the offender and others from committing offences; to separate offenders from society, where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and finally, to promote a sense of responsibility in offenders and an acknowledgment of the harm done to victims or to the community. [ 22 ] Other relevant sentencing provisions include s. 718.2 (

a) through (

e) which provides that when a court imposes a sentence, it has to take into consideration a number of principles including that a sentence should be increased or reduced to account for any relevant aggravating and mitigating circumstances relating to the offence of the offender; that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, that being the parity or the uniformity principle; that where consecutive sentences are imposed, the combined sentence should not be unduly harsh, that being the totality principle; that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances; and finally, that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders with particular attention, of course, to the circumstances of Aboriginal offenders. [ 23 ] The fundamental principle of sentencing is set out in s. 718.1 and that is that the sentence must be proportionate both to the gravity of the offence and the degree of responsibility of the offender.

[24] The objectives a court chooses depends on the circumstances of the offence and the offender. The offences here are grave. Thebreak and enters speak for themselves, but it is notable that Parliament considers the offence so egregious the Code provides for amaximum life sentence. It is also egregious in this circumstance that Mr. Yaman broke into the Oak Bay residence while out on bail. Itwould not have been an easy bail to secure and the bail was one granted, I have no doubt, only because Mr. Yaman committed toattending residential treatment. Regardless of his complaints about that facility, Mr.

Yaman compounded his legal difficulties bybreaking into the Oak Bay home. Mr. Yaman's many, many cognate offences are also an aggravating circumstance in this sentence. [25] On the other hand, the guilty pleas, particularly in regard to the earlier break-in, are meaningful and mitigating. No matter thestrength of the Crown's case, the pleas do save the public the expense of a hearing, and the victims the trauma of reliving the crimes.Other mitigating circumstances, counsel submits, include Mr.

Yaman's genuine remorse, his sincere desire to be free of addiction, hisinsight into his offending behaviour, and his supports in the community. [26] Although neither aggravating nor mitigating, Mr. Yaman does point to the COVID pandemic and its impact on the prisonpopulation as a factor to be considered in this sentencing. Mr. Yaman had prepared an affidavit outlining a number of issues affectinghim while incarcerated at VIRCC because of the pandemic.

He apparently referenced his inability to speak to counsel privately, theabsence of COVID testing in the jails, the lack of personal protective devices, his own health situation were he to contract COVID, andthe cancellation of various programs and visits. [27] In response, the Crown filed a letter dated July 14, 2020, written by Ms. Kolishaw, Acting Deputy Warden at VIRCC,responding in detail to each of these allegations. Rather than file the affidavit of his client and have Mr. Yaman cross-examined byCrown, Mr. Firestone simply alluded to some of Mr.

Yaman's complaints, but is content to submit only that the effect of COVID-19 hasleft his client in some confusion as to what is or is not the state of affairs at VIRCC at present. As Mr. Yaman has elected not to put intoevidence his specific concerns about COVID at VIRCC, I make no finding in that regard. The only evidence before me is evidencedisputing Mr. Yaman's claim. [28] Both Crown and Mr. Yaman are content to simply accept that there is some misapprehension on Mr. Yaman's part about theimpact of COVID at VIRCC.

I do accept, and Crown concedes, that any person incarcerated in a custodial facility at this time willharbour quite rational fears about contracting COVID. It is the case that those overseeing provincial custodial facilities in BritishColumbia appear to be doing all that can be reasonably done to safeguard prisoners and staff. Still, no system can guarantee againstinfection. [29] I accept, also, that Mr. Yaman is particularly concerned because of his health or the state of his respiratory system, at any rate.This, it is submitted, along with the counselling of Dr.

Alexander, at least until the COVID crisis, is partly what motivates Mr. Yaman towant to change. This, and the support of his family and counselling community, it is submitted, is what makes Mr. Yaman a goodcandidate for rehabilitation at this time and the reasons why this court should accept his desire for change to be genuine. If accepted, thethrust of Mr. Yaman's submissions is that a federal sentence would be counterproductive.

All of his supports are here in this community.His best chance of success is here, as well. [30] Relying on the step-up principles, the Crown advocates for a much lengthier sentence in the range of four years. Crown points toa previous sentence imposed on Mr. Yaman of up to three years for the offence of break and enter and submits that the sentencingobjectives of deterrence and denunciation command a greater sentence today. [31] In support of its sentencing submissions, the Crown relies on R. v. Blake, [1994] B.C.J. No. 1162; R. v. Goodwin, 2012 BCPC439; and R. v.

Legault, 2003 BCPC 467, all of which support a range of sentence of three to five years for the offence of break and enterin somewhat similar circumstances. Of these cases, R. v. Goodwin stands out as being most on point. In Goodwin, as in this case, theaccused was in a residence when the owners came home. As well, Mr. Goodwin had been convicted numerous times for this offence. Inthe Goodwin sentencing, after having been convicted 16 times for break and enter, Mr.

Goodwin received a sentence of just over fouryears. [32] While the imposition of a sentence that fits within the range of sentences for similar offenders committing similar offences insimilar circumstances does address the sentencing principle of uniformity, it is the case, as Mr. Yaman submits, that courts are not boundby the range of sentencing. Mr. Yaman relies on a lengthy review of the principles of uniformity of sentence of Romilly J. in R. v.Nakamura, 2012 BCSC 327. There, among others, Justice Romilly cites the decision of the Manitoba Court of Appeal in R. v.

McPhee(1981), (MB CA), 23 C.R. (3d) 78, as stating that uniformity in sentence is secondary to a fit sentence. [33] Here, the question is what is a fit sentence for Mr. Yaman. I agree, also, with Mr. Yaman that the cases supporting the Crown'srange of sentencing invariably place little or no weight on the sentencing objective of rehabilitation. In this case, Mr. Yaman submits thatthere is a real possibility of rehabilitation. In the end, the matter of a fit sentence for Mr. Yaman comes down to a simple question, canthe court be satisfied of the sincerity of his desire to change, to embrace rehabilitation?

If so, a two-year sentence with a focus on hisrehabilitation would not, in my view, be unfit. Two years, despite having received a three-year sentence for this offence before, is still asignificant period of custody. [34] There is, I accept, merit to the Crown's submission favouring a step-up, but that can be moderated by a finding that the defendantsincerely desires change. On the one hand, the fact Mr.

Yaman is a chronic long-time offender with a pattern of periods of sobrietyfollowed by offending behaviour and custody would, as Crown submits, make him an unlikely candidate for rehabilitation at this time,though that is always a worthy goal. On the other hand, Mr. Yaman has demonstrated an ability to live in the community while sober.Unsurprisingly, as a long-term addict, he relapses, but the periods of sobriety are more sustained over time. [35] Today, Mr. Yaman faces a new fear: that of contracting COVID-19 while in custody.

I will say this fear is not fanciful while atthe same acknowledging, as I understand it, that Corrections B.C. is doing as much as can be done even in the community to guardagainst such an eventuality. Still, I accept the fear is not irrational or baseless. Even if the risk is small, Mr. Yaman's physical healthsuggests that the outcome could be dire, perhaps fatal. I accept that this risk combined with his family support, his counselling, and newinsight into his offending behaviour and the ongoing support of his counselling community has motivated Mr. Yaman to want to change

if for no other reason than to minimize his time in custody at the very least to avoid a period of federal custody. [ 36 ] As best I am able to ascertain, including by listening to Mr. Yaman's comments at the end of the submissions, the desire to change is sincere. Certainly, that is the view of at least one seasoned counsellor at VIRCC as well as others in the 12-step community, and Mr. Yaman's own family. Mr. Yaman's family and community supports make the possibility of change achievable. If Mr.

Yaman is able to obtain sobriety, and to continue counselling, the chances of his reoffending are decreased, one hopes, to the point of no further offending. A significant purpose of sentencing is thereby achieved.

In these circumstances, a significant custodial sentence that does not foreclose and, in fact, fosters rehabilitation will also serve to restore the balance between the offender and the victims in the community. [ 37 ] For these reasons, I accept that this is a case where, even despite the record of offending, the court can place significant weight on the sentencing objective of rehabilitation and still arrive at a fit sentence. Given his record, the range of sentencing, and previous sentences, Mr. Yaman must serve no less than the maximum provincial sentence.

He could serve more if I disregard his time served to date and yet remain in a provincial custodial facility, but I take Mr. Yaman at his word that he wants to change. His family and community stand ready to support him in the near future. [ 38 ] As such, I find a fit sentence is a global sentence of two years less a day minus credit for time served. This sentence will be followed by a 24-month probation order where the focus is on rehabilitation with some protective provisions such as no-go and no- contact orders build in. For these reasons, Mr.

Yaman, I intend to impose a global sentence of two years less a day on all these matters and I will do it as follows: On Count 1 of Information 178537, the break and enter on October the 1 st of 2019, which is contrary to s. 348(1) (

b) of the Criminal Code , I hereby sentence you to two years less a day which I will express as 729 days in custody. [ 39 ] On Count 2 of Information 179201, the charge of break and enter on December 29, 2019, I sentence you to two years less a day, or 729 days, in custody to be served concurrently with my sentence on Information 178537. On Count 1 of the same information, 179201, I sentence you to 30 days in custody to be served concurrently with these other sentences. [ 40 ] Mr. Yaman, you have been in custody now for some time and you are entitled to credit in the amount of 424 days.

That time will be deducted from my sentence today leaving you with 305 days to serve. [ 41 ] Upon your release, you will be placed on probation for a period of two years and I will set out the conditions of your probation now. [ 42 ] Before doing that, however, I will deal with the mandatory ancillary DNA order. A conviction for the offence of break and enter contrary to s. 348(1)(

b) of the Code is a primary designated DNA offence and, as such, I make a DNA order. I do order that a correctional officer at the facility that you are serving your sentence having authority under the Criminal Code will take a sample from you of your bodily substance and thereby extract a sample of your DNA which will be placed on the national DNA databank. [ 43 ] There is also a mandatory firearms order under s. 109 of the Criminal Code , and I will make that order now, as well. That is for life at this point in time.

You are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, explosive substance.

As I say, that is a lifetime ban with regard to those matters. [ 44 ] I am going to deal with the probation order now which, as I say, is 24 months. [ 45 ] The mandatory conditions of the probation order are that you must keep the peace and be of good behaviour, attend at court when required to do so by a court, and advise the court or a probation officer in advance of any change of name or address. [ 46 ] I am going to ask the Crown about the no-contact/no-go orders. Are you looking for a no-contact/no-go? [ 47 ] MS. BAKKEN: Your Honour, with respect to that, my submission on those conditions would be that Mr.

Yaman not be found on Clare Street in Victoria, British Columbia; as well, not to be found on Carrie Street on Victoria, British Columbia; and that the court would include no-contact conditions for S.C., B.N., J.C., K.L, as well as not to attend their home, work, school, or residence and that is a standard condition there, Your Honour. [ 48 ] THE COURT: I might have to -- you named those names off quickly. I have to dig out the informations. [ 49 ] MS. BAKKEN: I can read them and spell them if that would assist. [ 50 ] THE COURT: It might because I think the informations are buried in here somewhere -- [ 51 ] MS.

BAKKEN: Okay, sure. [ 52 ] THE COURT: -- so I have got the no go's. [ 53 ] MS. BAKKEN: So the first name, Clare Street is spelled C-l-a-r-e. Carrie Street is spelled C-a-r-r-i-e. S.C. is spelled S.C. B.N. is B.N. J.C. is J.C. K.L. is K.L. [ 54 ] THE COURT: Okay. So -- [ 55 ] MR. FIRESTONE: Your Honour, I am sorry to interrupt. In terms of the no-go orders, I wonder if a block could be mentioned and, again, this is artificial because I am not in court. I would just normally walk over to Mr.

Yaman and ask him whether he has any legitimate business, that is legitimate, obviously, in the areas that -- the streets can be very long. I do not know Clare Street. The other street I do know. So I do not know if Mr. Yaman has any reason to be on those streets, legitimate -- [ 56 ] THE ACCUSED: I will just steer clear those streets.

[ 57 ] MR. FIRESTONE: -- but could you name a block instead of the entire streets? [ 58 ] THE COURT: All right. Mr. Yaman, sorry. [ 59 ] THE ACCUSED: I do not have any reason to be -- not that I can think of right now. So I will just stay clear of those streets. [ 60 ] THE COURT: These are not main thoroughfares or anything like that. [ 61 ] MS. BAKKEN: Your Honour, Carrie Street is two blocks long and Clare Street is a single block. [ 62 ] THE COURT: Right, so -- [ 63 ] MR. FIRESTONE: All right, sorry. [ 64 ] THE COURT: -- there you go. Okay. So there is -- [ 65 ] MR. FIRESTONE: Thank you, Your Honour.

I am sorry. [ 66 ] THE COURT: Yes, there is no go Clare Street, no go to Carrie Street both in Victoria, British Columbia. [ 67 ] THE ACCUSED: All right. [ 68 ] THE COURT: You are going to get a copy of this order in any event, Mr. Yaman, but you have got the no go and no contact. [ 69 ] THE ACCUSED: Yes. [ 70 ] THE COURT: I do not think you are going to have any difficulty with the no contact. I do not have to explain -- [ 71 ] THE ACCUSED: Oh. [ 72 ] THE COURT: -- the consequences of breaching this order to you. [ 73 ] MR.

FIRESTONE: I will make sure I go through that with him -- [ 74 ] THE COURT: Right. [ 75 ] MR. FIRESTONE: -- after court today when he calls me, Your Honour. [ 76 ] THE COURT: Yes, okay. There is also -- all right. [ 77 ] THE ACCUSED: Thank you. [ 78 ] THE COURT: So there is a reporting requirement. It is going to be 2104, Mr. Clerk -- [ 79 ] THE ACCUSED: Okay. [ 80 ] THE CLERK: Thank you. [ 81 ] THE COURT: -- and Mr. Yaman, that provides that you must report in person to a probation officer at 836 Courtney Street here in Victoria, British Columbia.

You will do that within two days -- [ 82 ] THE ACCUSED: Yes. [ 83 ] THE COURT: -- after your release from custody -- [ 84 ] THE ACCUSED: Yes. [ 85 ] THE COURT: -- unless you have obtained, before your release from custody, approval from the probation officer to report elsewhere or within a different timeframe, and you will report thereafter as directed. [ 86 ] There is also a 2202, Mr. Clerk, and Mr.

Yaman, that provides that when you report to the probation office, you will advise that person with your residential address -- [ 87 ] THE ACCUSED: Yes. [ 88 ] THE COURT: -- and you will not change that address without first advising your probation officer so that person knows where you are residing at all times during the probation order. [ 89 ] There is a 2401, as well, Mr. Clerk. [ 90 ] That provides that you will not possess or consume alcohol or any other intoxicating substances, except those prescribed to you by a medical physician. [ 91 ] There is a 2406 -- [ 92 ] THE ACCUSED: Okay.

[ 93 ] THE COURT: -- and that provides that you will not have on your person any drug paraphernalia including needles, et cetera. [ 94 ] There is a counselling provision, 2501, and that provides that you will attend at, participate in, and successfully complete any intake, assessment, or counselling program that may be directed by your probation officer. That, clearly, will include alcohol or drug addiction and mental health counselling if that is ordered. [ 95 ] THE ACCUSED: Okay. [ 96 ] THE COURT: I will ask the Crown if there is any other issues on counselling? [ 97 ] MS.

BAKKEN: Your Honour, I would ask the court to consider imposing the counselling condition that includes the recommendation for a full-time treatment program. [ 98 ] THE COURT: Okay, all right, that makes good sense. So, 2502, Mr. Clerk. [ 99 ] That is a consent order, though. [ 100 ] MS. BAKKEN: It is. [ 101 ] THE COURT: Yes. [ 102 ] MS. BAKKEN: Yes. [ 103 ] THE COURT: Mr. Firestone -- [ 104 ] MR. FIRESTONE: You know, Your Honour, this is a -- [ 105 ] THE COURT: -- I know you are -- I know -- I know and -- [ 106 ] MR. FIRESTONE: -- very difficult for me to do this -- [ 107 ] THE COURT: No, but -- [ 108 ] MR.

FIRESTONE: -- this way. I am not -- as a civil libertarian, I am against Roger orders and -- [ 109 ] THE COURT: It is not a Rogers -- sorry, Mr. -- just -- [ 110 ] MR. FIRESTONE: No, it is a -- I -- sorry, I apologize. [ 111 ] THE COURT: Sorry, please -- [ 112 ] MR. FIRESTONE: Go ahead. [ 113 ] THE COURT: -- please bear with me. Okay. It is not a Rogers order, but I know that what you -- your submissions on behalf of Mr. Yaman in court were that he was going to do whatever was necessary to do to engage in treatment with respect to his drug addiction. [ 114 ] MR.

FIRESTONE: All right. [ 115 ] THE COURT: So -- [ 116 ] MR. FIRESTONE: I am sorry to do it this way, Your Honour. Can you ask Mr. Yaman directly because I cannot do it any other way, whether or not he is prepared to consent? I will give him advice to consent, but he has to make the decision, not me. [ 117 ] THE COURT: Mr. Yaman, are you prepared to consent to an order that you attend residential treatment if required to by your probation officer? [ 118 ] THE ACCUSED: Yes. Yes, I will. I agree. [ 119 ] THE COURT: Right. [ 120 ] THE ACCUSED: Yes. [ 121 ] MR. FIRESTONE: There we go.

Thank you. [ 122 ] THE COURT: Yes, okay, and so 2502, having consented in court, Mr. Yaman, you must attend, participate in, and complete any intake, assessment, program, treatment, or a full-time live-in treatment program as directed by your probation officer, and that may include treatment or programming for alcohol or drug addiction. So you must know this is your last chance, Mr. Yaman. You must know that. [ 123 ] THE ACCUSED: I do, and thank you. [ 124 ] THE COURT: All right. [ 125 ] THE ACCUSED: -- and, you know what, I am grateful.

Thank you so much, Judge, for taking a chance on me and I am not going to let you down, okay?

[ 126 ] THE COURT: Well, do not -- [ 127 ] THE ACCUSED: Thank you. [ 128 ] THE COURT: Well, and not to mention your mom who I think -- [ 129 ] THE ACCUSED: Well, definitely my mom. [ 130 ] THE COURT: -- must be getting pretty tired of this. Yes, okay.

There is a 2617 -- [ 131 ] THE ACCUSED: Thank you. [ 132 ] THE COURT: -- as well, because of the nature of the offence, and that provides that you will not possess any tools or instruments capable of use for criminal activity, including pry bars, screwdrivers, bump keys, bolt cutters, pliers, blowtorches, grinders, night-vision goggles, slim jims, lockpicks, et cetera.

The exception will only be while on your property or while at work or going directly to and from work and, if asked, you will have to provide details -- your probation officer, I am sorry, with details of your location and hours of employment. [ 133 ] THE COURT: I do not imagine that Mr. Yaman is going to be able to pay the victim impact surcharges on these matter, Mr. Firestone. I have not heard about that. [ 134 ] MR. FIRESTONE: No, I ask that it be waived. [ 135 ] THE COURT: Any other conditions on the probation order? [ 136 ] MS.

BAKKEN: My only submission, Your Honour, was perhaps to have a period of curfew for at least part of the beginning of the probation order just to sort of temper his release into the community and provide for some controls. I know the offences were not committed at nighttime, but just, given his significant cognate history, it might be appropriate. Otherwise, I have no further submissions. [ 137 ] MR. FIRESTONE: Your Honour, that is not necessary. These B and E's were at 5 p.m.

You have already heard my submission that these were a desperate act of somebody who did not think it through as obviously these people were going to come home. If he is out, he is out, in my submission. This is not about a nighttime problem. [ 138 ] THE COURT: Yes, I do not disagree, although I understand why the Crown would ask for it. No, I am not going to do that, but I will waive the victim impact surcharges because I know that Mr.

Yaman is not going to be in a position to pay the -- it is really basically about $500 within 60 days of his release from custody and so -- are these by indictment, by the way, the two break and enters? [ 139 ] MR. FIRESTONE: Yes. [ 140 ] MS. BAKKEN: They are, Your Honour. [ 141 ] THE COURT: Yes, right.

So $500, and so -- [ 142 ] THE ACCUSED: So what about -- can I just -- [ 143 ] THE COURT: -- I am going to waive the victim -- [ 144 ] THE ACCUSED: So what if I -- [ 145 ] THE COURT: I am going to waive the victim impact surcharge. [ 146 ] THE ACCUSED: Okay. [ 147 ] THE COURT: Yes, you need to -- you need to focus -- [ 148 ] THE ACCUSED: Okay, well, I will just leave it at that. [ 149 ] THE COURT: -- on getting better. [ 150 ] THE ACCUSED: Okay. Yes, I know that. [ 151 ] THE COURT: Right? [ 152 ] THE ACCUSED: I am going to. [ 153 ] THE COURT: I know you are. [ 154 ] MR.

FIRESTONE: Excuse me -- [ 155 ] THE ACCUSED: That is my intention. [ 156 ] MR. FIRESTONE: -- Mr. Yaman, just listen to the judge, please. [ 157 ] THE COURT: Okay, I think that is it. [ 158 ] MS. BAKKEN: There is the matter of the outstanding information, Your Honour, I believe that is 178537-3-A and the Crown

will direct a stay of proceedings on that information at this time. [ 159 ] THE COURT: Right, okay. [ 160 ] MR. FIRESTONE: And, Your Honour, I would just ask you, because it is a bit artificial, if Mr. Yaman could call me in the office when he is available, please. [ 161 ] THE COURT: He will. All right. [ 162 ] MR. FIRESTONE: Thank you, Your Honour. I thank my learned friend. [ 163 ] MS. BAKKEN: Yes, thank you, Your Honour. [ 164 ] THE COURT: Good luck, Mr. Yaman. (REASONS FOR SENTENCE CONCLUDED)