R. v. Maxwell Date:, 2010 BCPC 100

Citation: R. v. Maxwell Date: 20100428 2010 BCPC 0100 File No: 30879-1; 31006-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. VINCENT SILAS MAXWELL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. J. BRECKNELL Federal Crown Counsel: J. Sutton Provincial Crown Counsel: G. McDonald Defence Counsel: J. Deuling Place of Hearing: Prince George , B.C.

Date of Judgment: April 28, 2010 [ 1 ] Vincent Silas Maxwell comes before the court today to be sentenced on two Informations: first of all, 31006, in which he has pled guilty to possession of heroin; and second of all, 30879, in which he has pled guilty to three counts of break and enter of various residences in Prince George. All of these offences occurred within approximately a 36-hour period in late November 2009. [ 2 ] Mr. Maxwell has a previous criminal history.

It is a lengthy criminal history and does have some serious offences on it, including a previous break and enter, various drug charges, some charges of violence, and many charges of breaching court orders. [ 3 ] Now, with a criminal history like his, given his young age of 26, it is very concerning that he might well think it a lifestyle choice to continue down a path of crime; however, I note that Mr. Maxwell has had no convictions on his record since January of 2007, almost three and a half years ago, and his last previous offence occurred on October 29th, 2006, well over three and a half years ago.

So for a long time he has been off the radar so far as the criminal justice system is concerned. [ 4 ] The offences to which he has pled guilty were with regard to the break and enters easily solvable from the part of the police because Mr. Maxwell took no efforts whatsoever to obscure the fact that he entered the residences leaving behind at various locations fingerprints or palm prints and a distinctive set of shoe prints, which were later matched to him upon his arrest. [ 5 ] In addition says his counsel, Mr.

Maxwell instructs that while these offences were taking place he was high on drugs, not concerning himself with anything other than obtaining products from the various households to continue to fuel his drug habit and the nature of what was stolen from each of the three houses supports that position. In one location, Mr. Maxwell stole a television set and some jewellery; in another, he stole a computer, games, some cash, and some shotgun ammunition; and the third, he stole some computer equipment. [ 6 ] It is not set out clearly from the submissions of counsel, but not long after those items were stolen Mr.

Maxwell was found coming out of a drug house in the city getting into a taxi. That taxi was followed, it was stopped, Mr. Maxwell was arrested, and obtained from him were both cocaine and heroin. He has pled guilty to the heroin possession. Quite clearly the amounts that were taken

from him at the time of his arrest on those charges were strictly for his own use, .31 of a gram of crack and a total of .62 grams of heroin. [ 7 ] Counsel for the Director of Public Prosecution says that the value of those drugs in total was somewhere around $200, and perhaps this is sad commentary on how little other people's possessions are worth once they are sold to a fence, but that is the situation that Mr. Maxwell found himself in on the days in question. [ 8 ] As I said earlier, Mr. Maxwell is 26 years of age. He is from the Nisga'a First Nation.

He has lived in a variety of locations around British Columbia. In any sentencing of a First Nations person I must keep in mind the provisions of Gladue , although in these circumstances Gladue does not apply from the perspective of whether or not Mr. Maxwell should be incarcerated as even his own counsel recognizes that that is a requirement. It also directs me to keep in mind that First Nations people suffer a systemic discrimination in our community and that somewhat is substantiated in Mr. Maxwell's case by virtue of the fact that he has had a poor school and work record.

He has been disadvantaged. [ 9 ] However, having said that, Mr. Maxwell has during previous times of incarceration worked on his education and he is now a few courses short of getting the equivalent of his Grade 12 graduation certificate. [ 10 ] Once his prison sentence is finished, Mr. Maxwell is hopeful of either finding work in his home community, which is the Terrace/Greenville area of Northwestern British Columbia, or alternatively going to work in the oil patch.

Those are laudable goals because work is important to most people in our society and if nothing else solid work earning an income would be of a benefit to Mr. Maxwell's child, who no doubt he is anxious to support if he is able to obtain funds in order to do so. [ 11 ] The Provincial Crown takes the position that for the three break and enter offences Mr.

Maxwell should be sentenced to four years in prison. [ 12 ] The Director of Public Prosecution counsel says for the possession of the heroin it should be one month in jail, either concurrent or consecutive depending on what the court does with the other sentence. [ 13 ] Mr. Maxwell has been in custody for approximately four months, which on the old two-for-one basis, which he is still entitled to, he will get eight months' worth of credit.

So says the Crown, he should be sentenced to a further 40 to 41 months in prison. [ 14 ] Defence counsel acknowledges that break and enter of a residence is a very serious charge. Just in case Mr.

Maxwell is not aware of it up until now, the maximum penalty for the break and enter of a person's residence is life imprisonment so the courts do treat it very seriously and for very good reason. [ 15 ] Our society historically has recognized that a person's home is their castle and that another person entering into that closed space to deprive the owner of property is committing a very serious offence. [ 16 ] Despite that, defence counsel suggests that I should give Mr.

Maxwell a sentence of one year in prison on each of the three counts of break and enter to be served consecutively for a total of three years with the drug offence being added in on a concurrent basis and with credit for the eight months' credit for custody leaving Mr.

Maxwell to serve 28 months. [ 17 ] The Crown points out that the British Columbia Court of Appeal has in recent years suggested a range of sentence for break and enter of a residence particularly where they are done in serial fashion to be between four and seven years. [ 18 ] That certainly is a fairly standard set of prison terms, but the Crown quite frankly advises the court that they were unable to provide the case law in that regard and without that case law I would be uncertain in this sentencing as to what criminal record for previous break and enters those other sentences people might have had as compared to Mr.

Maxwell. [ 19 ] Nevertheless, Mr. Maxwell has to be sentenced keeping in mind the principles and purposes of sentencing, which in my view requires me to focus in this case on the following principles; first of all I must denounce Mr. Maxwell's conduct, not so much for the possession of heroin, which is illegal and deserving of criminal penalty, but that is in many respects from Mr.

Maxwell's prospective more of a illness issue as opposed to a criminal issue. [ 20 ] Unfortunately, in order to obtain the drugs he was at the time requiring, he had to go about stealing from other people and that needs to be denounced. [ 21 ] I need to specifically deter Mr. Maxwell.

If I do not do so, once he is released from prison he will set about again to commit crime to support his drug habit and if he feels that the previous penalty was easily served and not much of a penalty then the idea of breaking and entering into other people's homes would not deter him. [ 22 ] I have to give some consideration to general deterrence, but frankly who I am trying to generally deter; drug addicted people looking for their next high who do not have much regard for how they get to that point by either committing crimes like break and enters, carjackings, robberies, et cetera?

I think it is hard for the court to generally deter criminals who are already in a drug-induced state and the average member of the public does not need to be deterred because they do not go around breaking into people's houses. [ 23 ] I also have to keep in mind that Mr.

Maxwell is still a very young man, he is only 26, and in those circumstances his rehabilitation must have a high priority, particularly in light of the fact that he has some educational capacity, he has some intention to find work in the legitimate workforce, he has other people who he is legally responsible for, namely his child, and if you strip away his criminal record it is clear to me that much of it is due to drugs, and if he can escape from them he is quite likely to be able to escape from further criminal behaviour. [ 24 ] Keeping all of that in mind and looking at the nature in which these offences were committed, I consider that the appropriate penalty must be a concurrent sentence with regard to all of the matters.

I do so because it appears to me from the submissions made by counsel and the nature of the offences that what Mr. Maxwell was up to on the days in question was a person who was either high on

drugs or in need of drugs committing offences one after another to secure enough assets to obtain more drugs, and then going to obtain the drugs, at which time he was arrested. It was in effect a spree and, as such, in my view concurrent time is appropriate. [ 25 ] Mr. Maxwell, please stand up, sir.

With regard to Information 31006, the possession of heroin, Count Number 2, Madam Clerk, there will be a sentence of 30 days in jail. [ 26 ] Now, Madam Clerk, I am going to do the math and I am going to give you the total at the end so you can record it. [ 27 ] With regard to the break and enters I consider an appropriate sentence for those three break and enters to be 42 months in jail concurrent one with the other. I start with the 42 months in jail, sir, and I deduct from that the eight months' credit you are already entitled to.

So on each of the break and enters, Madam Clerk, it will 34 months in custody. [ 28 ] On the drug offence it will be one day in custody plus time served. [ 29 ] There will be a DNA order requiring Mr. Maxwell to provide a sample of his DNA to the DNA National Databank. Break and enter of a residence is a primary designated DNA offence, therefore it is mandatory. [ 30 ] I will waive the victim fine surcharge because Mr. Maxwell will no doubt be in custody for at least the next year and a half or so.