R. v. Cakurda Date:, 2012 BCPC 497

Citation: R. v. Cakurda Date: 20120518 2012 BCPC 0497 File Nos: 192758-2C 194037-2C, 194038-2BC Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PETER MIKE CAKURDA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. B. HICKS Counsel for the Crown: J.W. Lees, Q.C. Counsel for the Defendant: I. Ferbey Place of Hearing: Surrey , B.C. Date of Hearing: May 18, 2012

Date of Judgment: May 18, 2012 [ 1 ] THE COURT: Peter Mike Cakurda has pled guilty to three offences: First, that on February 4th of 2012, he stole sunglasses from Sears valued at $150; secondly, that on April 24th of 2012, he drove a motor vehicle while disqualified under s. 259(4) of the Criminal Code ; and third, on April 24th of 2012, he had possession of a stolen motor vehicle valued under $5,000. The Crown has proceeded by indictment on that charge. [ 2 ] The pleas and submissions were made on May 11th, and I adjourned the sentencing to today to consider the appropriate sentence. [ 3 ] Mr.

Cakurda was detained on these charges. The Crown is proposing a global sentence exceeding six months conventional jail and probation with counselling, as well as a three-year driving prohibition, and the Crown opposes a conditional sentence order. [ 4 ] Mr. Ferbey, on behalf of Mr. Cakurda, recognizes that there are hurdles to overcome for a court to impose a conditional sentence order, but proposes a jail sentence globally of less than six months, or perhaps a shorter added jail sentence on the theft charge and a consecutive conditional sentence order on the other offences.

He agrees there is value in probation, and the driving prohibition sought by the Crown is appropriate. [ 5 ] The theft offence from Sears of sunglasses on February the 4th of 2012 was a conventional shoplifting. Mr. Cakurda was apprehended and the goods recovered. A flap of heroin was found on his person and he was thereafter released. On April 24th of 2012, police had surveillance on a stolen vehicle at a parking lot. Mr. Cakurda was seen to drive that vehicle away. He was pulled over. He ran and was pursued by police and arrested. He was resistant during that arrest process.

The vehicle was reported stolen approximately two days earlier. The ignition of the vehicle had been damaged. [ 6 ] Mr. Cakurda has been in custody since April 24th, a period which I calculate to total 25 days. [ 7 ] Mr. Cakurda has a substantial criminal history despite his young age. He is 25 years of age at this time. He has five past property offences, the last being in January of 2010 for which he received an effective 18-month jail sentence and probation for 18 months. That probation order was likely in effect at the time these offences were committed.

The probation order also covered a conviction for dangerous driving for which he received 12 months, likely concurrent, and the Crown argues that the circumstance of an offence like that aggravates the driving while prohibited charge which he faces here. [ 8 ] He has been placed on conditional sentence orders three times in the past. He has breached two of those orders; one of those was terminated before expiration. The most recent conditional sentence order imposed April 20th of 2011 was a three-month conditional sentence order, followed by a one-year probation order for a breach of an earlier probation order.

He was on that probation order at the time of these offences. He has two other breach convictions in addition to the conditional sentence breaches earlier referred to. [ 9 ] He has a conviction for assault, entered January 18th of 2010, for which he received an effective 90-day jail sentence. [ 10 ] The Crown argues that the persistent criminal conduct, despite ongoing court supervision orders, requires a denunciatory and deterrent sentence. General and specific deterrence both continue to be issues on the sentencing here today. [ 11 ] Mr. Cakurda is, as I have said, 25 years old.

He was born in the Czech Republic, came to Canada about 15 years ago. He is a landed immigrant here. He has a Grade 11 education. I am informed that after arrival in Canada he was doing well until his father's suicide in 2003. His mother then abandoned Mr. Cakurda. He has been cared for by a cousin, Eva, for the past two years. She filed an affidavit on his behalf for the purposes of a bail hearing. In that affidavit she confirmed the above information. She also noted that Mr. Cakurda has a significant drug addiction, which she is attempting to help him with.

He had applied for and was likely to have a place available in the Creekside Daytox program beginning sometime in May. She refers to continuing grief that he has over the loss of his father and his mother. [ 12 ] A letter filed confirms there is a bed available for Mr. Cakurda at New Vision Supportive Housing Society were he to be released into the community. [ 13 ] Mr. Cakurda has some limited past work experience. His circumstances are complicated by his immigration status. A removal order was made against him but it was stayed on December 1st of 2011.

He is subject to compliance with strict terms under that stay of proceedings, including requirements that he not commit a criminal offence. A statement appears with that document to the effect that he will be removed if he is convicted of an offence and sentenced to a term of imprisonment in excess of six months. [ 14 ] Counsel for Mr. Cakurda brought to my attention the decision of the Court of Appeal in this province in R. v.

Martinez-Marte, in which the Court of Appeal noted the implications of a sentence on an offender's immigration or removal status is a relevant consideration in determining a fit sentence. [ 15 ] Mr. Cakurda's past history demonstrates that significant custodial sentences for property offences, most recently an 18-month sentence in 2010, and sentences served in the community on conditional sentence orders, most recently the three-month order in 2011, have had no deterrent impact.

He has continued to offend right up to April 24th, 2012, and in violation of two probation orders. [ 16 ] Requirements for imposition of a conditional sentence order include the determination that a sentence of less than two years would be appropriate. I am satisfied that in the case of the offences I am dealing with, that a sentence globally in that range would not be appropriate, and in any event the Crown is not seeking the imposition of a sentence beyond two years less a day. [ 17 ] However, I also have to be concerned for the security of the community and the purpose and principles of sentencing.

A conditional sentence order in these circumstances in my view does not meet either of those considerations. A conventional jail sentence

with probation, in my view, is appropriate. That properly addresses the impact of past history where deterring Mr. Cakurda has not succeeded through a variety of sentencing options, and although rehabilitation is significantly important for a man of his young age, nevertheless at this stage, with this background, rehabilitation is something that will have to at least commence within an institutional setting. [ 18 ] The issue then is what an appropriate global sentence should be. Early guilty pleas, the determination Mr.

Cakurda has expressed to address his addiction issues, the steps taken to set up a plan, albeit not one which can be undertaken at this time, and the fact of the addiction, are considerations. I also take account of the support of his cousin Eva.

I am conscious of his perilous immigration status. [ 19 ] Deterrence, general and specific denunciation, the safety of the community are dominant sentencing concerns here. [ 20 ] I have referred to his young age and his motivation, and any sentence that I impose should not overwhelm the motivation that he has expressed to get on with a recovery program. [ 21 ] The most serious offence here is the possession of stolen motor vehicle charge. He has past similar offences. The other offences before me are somewhat less serious.

Considering the past history, in my view, an appropriate global sentence would be in the range of ten months' incarceration with a two-year probation order to follow. That provides, in my view, a proper balance of the issues here. [ 22 ] I will sentence Mr.

Cakurda as follows: On Information 192758-C2, which is the theft from Sears on February 4th of 2012, I impose a four-month custodial sentence; on Information 194037-C2, that is possession of a stolen motor vehicle on April 24th of 2012, he will have credit for 25 days of pre-sentence custody, I impose a consecutive five-month sentence; on Information 194038-BC2, which is breach of a probation order on April 24th, 2012, of driving while prohibited, I just want to make sure, I apologize, that is Count 1 on 194038-BC2.

On that offence of driving while disqualified on that date in which he had the stolen motor vehicle in his possession, in respect to that matter I impose a five-month concurrent sentence. There will be a three-year driving prohibition under s. 259 of the Criminal Code in respect to that charge. [ 23 ] There will be a probation order in respect to all of these matters for a period of two years. The conditions are that Mr. Cakurda keep the peace and be of good behaviour. He is to report to a probation officer forthwith following his release and thereafter as directed by the probation officer.

He will reside where directed by the probation officer.

He is not to change that address without the prior written approval of the probation officer. [ 24 ] He will attend, participate in and complete to the satisfaction of the probation officer in the assessment, treatment or counselling that may be directed by the probation officer, including residential treatment if so directed by the probation officer. [ 25 ] He will complete 40 hours of community work service before the end of the fifth month of the probation period, to the satisfaction of the probation officer. [ 26 ] During the first six months of the probation period he will be bound by a curfew.

He will not be outside of his place of residence between the hours of ten o'clock in the evening and six o'clock in the morning, seven days a week, unless he has the prior written approval of the probation officer, in which case he will carry that with him and produce it on request of a peace officer or probation officer, or in the event of a medical emergency involving himself or a member of his immediate family. [ 27 ] He will not possess tools except at a workplace for the purpose of lawful employment. [ 28 ] He will seek and maintain employment and/or attend an educational or vocational program as directed by the probation officer. [ 29 ] Mr.

Cakurda is not to be inside a private motor vehicle unless the registered owner is present. [ 30 ] He is to abstain absolutely from the possession or consumption of alcohol or non-prescription drugs or substances controlled under the Controlled Drugs and Substances Act unless he has a medical prescription for that substance in his name. [ 31 ] He will not possess weapons as described in the Criminal Code . [ 32 ] The victim fine surcharges are waived. [ 33 ] MR. LEES: A stay of proceedings on the remaining Information 194038. (REASONS FOR SENTENCE CONCLUDED)