R. v. Hornby Date:, 2015 BCPC 270

Citation: R. v. Hornby Date: 20150930 2015 BCPC 0270 File No: 35145 - 1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GEOFFEREY JOHN LAST and CHRIS ANDREW HORNBY REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M.J. BRECKNELL (RE: SENTENCING OF CHRIS ANDREW HORNBY) Counsel for the Crown: A. Shroff Counsel for the Defendant: L. Cooper Place of Hearing: Prince George , B.C.

Date of Hearing: July 22, 2015 Date of Judgment: September 30, 2015 INTRODUCTION [1] The Defendant, Chris Andrew Hornby, pleaded guilty on June 29, 2015 to the following Counts on Information 35145 whichoccurred on October 10, 2011:

a) Count 1: the lesser included offence of being Unlawfully in a Dwelling House contrary to

section 349 of the Criminal Code, and

b) Count 2: assault with a weapon contrary to

section 267 of the Criminal Code. [2] The Crown seeks the following alternative periods of incarceration: a three-year sentence in a penitentiary, a 90 dayintermittent sentence, or a timed served sentence; with a Probation Order to follow the latter two alternatives. In addition, the Crownseeks a lifetime firearms prohibition pursuant to

section 109 of the Criminal Code and a DNA order pursuant to

section 487.051 of theCriminal Code because assault with a weapon is a primary designated offence. [3] The Defence takes no position with regard to the firearms prohibition or the DNA order but seeks a suspended sentence with aProbation Order to include community work service. [4] In light of the offences that Mr. Hornby has pleaded guilty to, a Conditional Sentence Order is not available. OFFENCE CIRCUMSTANCES [5] During the sentencing of Mr. Hornby’s co-accused, Geoffrey John Last (Mr. Last), the offence circumstances weresummarized by the Crown and largely agreed to by Defence counsel. The Court’s

summary of those circumstances were set out inparagraphs 5 through 10 of the decision, reported at 2015 BCPC 63 , 2015 BCPC 0063, as follows: [5] At the time surrounding the date of the offence Mr. Last and Mr. Hornby were engaged in a drug culture based criminal lifestyle. Some people who knew them at the time believed they were members of a local criminal gang. [6] On the day of the offence the Complainant, Mr. S., his brother and a woman friend of Mr. S.’s were at his residence. Thewoman departed and was later followed by Mr. S. and his brother to another location where Mr.

S. had a physical altercation with athird-party known to him and the woman. [7] After the altercation between Mr. S. and the third-party concluded the third-party called Mr. Hornby (who brought along Mr.Last) to his residence. The third-party alleged that Mr. S. had attempted to beat him with a hammer and he instructed Mr. Hornby andMr. Last to attend at Mr. S.’s residence to teach him a lesson. Mr. Last obtained a baseball bat and Mr. Hornby procured a taser beforethey departed. [8] Mr. Last and Mr. Hornby went to Mr. S.’s apartment. They covered the peep hole and banged on the door until Mr. S. openedit. Mr.

Last hit Mr. S. with the baseball bat with an overhand swing and struck him several other times about the head and arms. Mr.Hornby tasered Mr. S. and punched him in the stomach. [9] Although they were not charged with any offences against Mr. S.’s brother, it is alleged that he was also assaulted and told byMr. Last and Mr. Hornby not to mess with the third-party or he would be a dead man. [10] As Mr. Last and Mr. Hornby were finishing their assault on Mr. S. the third-party arrived at the residence with the woman andshe called 911. Mr. Last and Mr. Hornby departed.

The baseball bat and the taser were never recovered. [6] During Mr. Hornby’s sentencing hearing the Crown submitted an Agreed Statement of Facts and a Statement of Facts asexhibits. Those documents provided a great deal more detail of the circumstances then the

summary provided by the Crown during Mr.Last’s sentencing. They set out some facts that were not described in Mr. Last’s hearing or which were different than the facts alleged inthat hearing in the following ways:

a) Mr. Hornby assaulted R.S. by punching him several times and assaulted R.S.’s brother by pushing him away before Mr. Laststruck R.S. with the baseball bat;

b) although Mr. Hornby took the taser into his possession from a woman who accompanied him, he did not apply it to R.S.;

c) during the assault R.S. lost consciousness;

d) after the assault on R.S. concluded, Mr. Last further assaulted R.S.’s brother and threatened to kill him;

e) as Mr. Hornby and Mr. Last were leaving the residence. Mr. Last threatened the witnesses who were present;

f) Mr. Last turned himself in and was arrested on January 23, 2012; and

g) Mr. Hornby was arrested on a warrant in February, 2012. He provided an alibi defence on April 5, 2013, which was later determined to be false. VICTIM’S INJURIES [ 7 ] As a result of the assault upon him, R.S. required treatment at the emergency ward of the University Hospital of Northern British Columbia. [ 8 ] The attending doctor noted a number of significant blows to the head and neck including contusions and hematomas, some of which required stitches.

There were no fractures to the jaw, neck or thorax. [ 9 ] The doctor expressed concern about one large hematoma and open laceration to R.S.’s head opining that it was inflicted with considerable force and was “a potential life-threatening injury”. [ 10 ] Mr. S. was discharged after approximately six hours at the emergency ward but required several further medical follow-ups as a result of persisting pain and other related symptoms. VICTIM IMPACT STATEMENT [ 11 ] In his Victim Impact Statement, which was not provided to the Court when Mr. Last was sentenced, R.S. further described his injuries as follows:

a) he was in extreme pain for two years resulting from the blows to his head and his doctor says the pain will last for the rest of his life;

b) he has damage to his cervical vertebrae and lost the feeling on the left side of his body for over a year; and

c) he is no longer able to run or enjoy active outdoor recreation with his family. [ 12 ] R.S. also claimed restitution and financial compensation for a variety of things, including lost employment income, medical and associated expenses, physical injuries and mental stress. Unfortunately for R.S., such a request cannot be considered by the Court in this venue. If R.S. wishes to pursue such compensation he must make a claim in civil court. CASE HISTORY [ 13 ] Mr. Hornby’s co-accused, Mr. Last, entered a guilty plea to Count 2 on November 20, 2013, after proceeding through a preliminary inquiry.

A sentencing hearing on his matter was held on December 18, 2014 and he was sentenced on March 25, 2015. Mr. Last received a suspended sentence and a Probation Order for three years which included a no contact order with Mr. Hornby, a prohibition from coming to Prince George, and a considerable number of community work service hours. [ 14 ] Mr. Hornby initially agreed to dispense with a preliminary inquiry and go straight to trial in the Supreme Court. On November 23, 2013, he indicated his intention to enter a guilty plea and re-elected to have his matter returned to the Provincial Court.

At the sentencing hearing date on December 18, 2014, he announced that he wished to withdraw his guilty pleas. His guilty pleas were withdrawn on December 30, 2014 He then entered new guilty pleas on June 29, 2015 and came before the Court for sentencing on July 22, 2015. DEFENDANT’S CRIMINAL RECORD AND RELATED MATTERS [ 15 ] Mr. Hornby has a limited but serious criminal record. On February 15, 2011, he was sentenced to a 12 month Conditional Sentence Order and a 10 year firearms prohibition for firearms offences that occurred in late 2009.

He was serving the Conditional Sentence Order when he committed these offences. [ 16 ] During the time that Mr. Hornby has been on bail for these matters there has been one allegation of breach of bail which occurred on June 17, 2015. The Bail Supervisor noted that Mr. Hornby’s compliance was concerning until he received a warning of possible breach charges. Subsequently his reporting to the Bail Supervisor improved. [ 17 ] The Crown advised that Mr. Hornby had 68 contacts with the Royal Canadian Mounted Police (RCMP) between December 2012 and June 2015 but did not elaborate on the nature of those contacts.

DEFENDANT’S CIRCUMSTANCES [ 18 ] Mr. Hornby’s personal history was detailed in Defence counsel’s submissions and Mr. Hornby’s letter to the Court. [ 19 ] Mr. Hornby is now 24 years old and was 20 at the time of the assault on R.S. He is of Aboriginal heritage inherited through his maternal grandmother who is a member of the Nak’azdli First Nation. Through that side of his family he has had exposure to Aboriginal culture including attending feasts, potlatches, and learning about drums. [ 20 ] His parents separated when Mr.

Hornby was five years old and his mother commenced a common-law relationship a few years later. He experienced physical abuse at the hands of various caretakers and his biological father during his childhood and teen years.

[ 21 ] Mr. Hornby has a cognitively impaired older brother of whom he was very protective while they were growing up. This sometimes resulted in physical conflicts with people who were tormenting his brother. [ 22 ] He suffered a number of serious physical injuries while growing up including:

a) when he was five years old he was struck in the head by a vehicle tire and wheel assembly. He did not receive any medical treatment at that time;

b) when he was approximately 12 years old he was beaten up by a gang of youths until he lost consciousness;

c) when he was 13 years old he was struck in the abdomen by a baseball bat wielded by a relative and suffered broken ribs; and

d) when he was 14 years old his father kicked him in the face with steel toed boots. [ 23 ] When Mr. Hornby was approximately 15 years old he was kicked out of school and his home and went to live on the streets in Prince George where he became involved in the drug culture and remained in that lifestyle for several years. [ 24 ] Mr.

Hornby described being the victim of three separate home invasions since the events involving R.S. and that on each of those occasions he was assaulted. [ 25 ] In the recent past he has suffered some family losses including his grandfather, brother and step-father. [ 26 ] He has been in a relationship with his girlfriend for three years and they have resided together for two years in Hixon, a rural hamlet approximately 60 km from Prince George. [ 27 ] Mr. Hornby has held various types of employment over the years including working as a roofer, a flooring installer, and now in an auto wrecking yard.

DEFENDANT’S STATEMENTS TO THE COURT [ 28 ] In both his letter to the Court and his statement prior to sentencing Mr. Hornby said the following about the attack on R.S.:

a) he is remorseful on a daily basis about what happened to R.S.;

b) he has trouble sleeping and has nightmares over his criminal behaviour and he has contemplated suicide;

c) he has abandoned the use of drugs and alcohol;

d) he has learned from his mistakes and is trying to improve himself but recognizes it is not something that can be done overnight; and

e) he has moved to a rural area to get a peaceful new start. REFERENCE LETTERS [ 29 ] Defence counsel submitted several reference letters in support of Mr. Hornby. [ 30 ] Mr. Hornby’s recent employer described him as a hard worker, respectful, able to work well on his own, and an asset to their company. [ 31 ] Mr. Hornby’s girlfriend’s grandmother has known him for two years. She described Mr. Hornby as trying to get ahead.

She also stated that he has advised her that he is remorseful for his criminal behaviour, he doesn’t associate with anyone now, other than friends and family, and that he likes living in the country where he has pets. She also opined that he does not consume alcohol or drugs anymore. [ 32 ] Mr. Hornby’s mother described him as having matured over the past three years and that he has been compliant with his bail terms. She said that he has lived in the same home with his girlfriend and their pets for two years. She noted that he has become respectful, responsible, hard-working and knows that he has done wrong.

THE LAW Criminal Code [ 33 ] The relevant sections of the Criminal Code are: a) 718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct;

(

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. b) 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. c) 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to theoffence or the offender,… (

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

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders,with particular attention to the circumstances of aboriginal offenders. d) 267 Every one who, in committing an assault, (

a) carries, uses or threatens to use a weapon or an imitation hereof, or (

b) causes bodily harm to the complainant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on

summaryconviction and liable to imprisonment for a term not exceeding eighteen months. e) 349(1) Every person who, without lawful excuse, the proof of which lies on that person, enters or is in a dwelling-house withintent to commit an indictable offence in it is guilty of an indictable offence and liable to imprisonment for a term not exceeding tenyears or of an offence punishable on

summary conviction. Case Law [34] The Crown relied on the following cases in support of its submissions:

a) R. v. Elliott 2015 BCCA 295

b) R. v. Oates 2015 BCCA 259

c) R. v. Last 2015 BCPC 63 , 2015 BCPC 0063

d) R. v. Hockley 2013 BCSC 113

e) R. v. Nakamura 2012 BCSC 327

f) R. v. Dunn 2011 NBCA 19

g) R. v. Loring 2009 BCCA 166

h) R. v. Ross 2009 BCSC 1831

i) R. v. Forrster 2004 BCSC 1310

j) R. v. Proulx 2000 SCC 5 , [2000] 1 S.C.R. 61

k) R. v. Johnson

l) R. v. Hill (BC CA), [1995] B.C.J. No. 214 [35] Defence counsel relied on the case of R. v. Aqqiaruq 2009 NUCJ 26 in support of his submissions. SUBMISSIONS The Crown [36] The Crown submissions on sentence can be summarized as follows:

a) the case law presented supports the imposition of a substantial jail sentence in the circumstances of this case;

b) the actions of Mr. Hornby amounted to a home invasion and to address the applicable sentencing principles a period of incarceration must be imposed;

c) a jail sentence is meant to be punitive whereas a Probation Order is meant to be rehabilitative and in these types of cases jail should only be rejected in exceptional circumstances;

d) although Mr. Hornby is entitled to consideration of the Gladue factors and principles when they are applied to serious violent offences, such as in this case, the type of penalty for Aboriginal and non-Aboriginal offenders are very similar. [ 37 ] The Crown acknowledged that the following were mitigating factors in Mr. Hornby’s favour:

a) he entered a guilty plea, albeit somewhat late in the process;

b) there were some issues surrounding the conduct of the trial;

c) he originally consented to trial in Supreme Court thereby avoiding a preliminary inquiry; and

d) he was a youthful offender at the time although this was not his first offence. [ 38 ] The Crown submitted that the following were aggravating factors:

a) he was serving a Conditional Sentence Order at the time of this offence;

b) there was some planning and pre-meditation although limited in nature;

c) he and Mr. Last were armed with very serious weapons, a baseball bat and a taser;

d) the attack was on an unsuspecting and unarmed victim and caused serious harm;

e) the attack occurred in a residence and concluded with threats to the other occupants not to call the RCMP;

f) the attack was a form of vigilantism;

g) after the attack he had contact with the RCMP but remained at large until his arrest; and

h) he provided a false alibi to mislead the RCMP and the Crown. [ 39 ] In dealing with the issue of parity of sentence as described in

section 718.2 (

b) of the Criminal Code and how it might apply to Mr. Hornby and Mr. Last the Crown submitted the following:

a) he pled guilty to two offences while Mr. Last only pled guilty to assault with a weapon;

b) he entered a very late guilty plea, over two years later than Mr. Last did;

c) at the time of the attack on R.S. he had a greater criminal record than Mr. Last and was serving a Conditional Sentence Order;

d) his employment has been quite spotty compared to Mr. Last’s;

e) Mr. Last was prepared to be a witness against Mr. Hornby and he had been cooperative with the Crown on another criminal matter that resulted in a substantial sentence for the offender. The Defendant [ 40 ] Defence counsel’s submissions can be summarized as follows:

a) as an Aboriginal person Mr. Hornby’s attachment to place is very important to him, something that did not apply to Mr. Last;

b) as a result of the abuse he experienced during his upbringing Mr. Hornby learned that he could avoid being a victim by carrying an aggressive posture;

c) as a result of his upbringing he learned to see violence as an acceptable response to conflict;

d) his motivation behind participating in the attack had more to do with personal issues and helping out a friend than it was related to being involved in a criminal gang lifestyle;

e) by pleading guilty to being unlawfully in a dwelling house and not a break and enter the cases which apply sentencing principles

for a “home invasion” do not apply;

f) his compliance with directions while on bail improved over time; and

g) a suspended sentence with probation can have a denunciatory effect if strict terms are imposed. DISCUSSION [ 41 ] Unlike Mr. Last who pled guilty only to Count 2, assault with a weapon, Mr. Hornby pled guilty to both Count 2 and the lesser included offence with regard to Count 1 of being unlawfully in a dwelling house as opposed to the originally worded charge of break and enter. [ 42 ] Had Mr. Hornby pled guilty to Count 1 as worded on the Information the provisions of

section 348.1 of the Criminal Code would apply as an aggravating factor in sentencing because it would have satisfied the definition of what is commonly referred to as “home invasion”. Nevertheless, a plea to be unlawfully a dwelling house makes Mr. Hornby’s involvement more similar to the cases presented by the Crown than the circumstances involving Mr. Last at his sentencing. [ 43 ] However, there are enough similarities between this case and that involving Mr. Last that some of the analysis applied in that case has application here.

In paragraphs 41 through 47 in Last I said the following: [41] Despite that situation it is clear from the case law that in circumstances such as occurred in this case “rehabilitation must take a second place to the principles of protection of the public, denunciation and deterrence…” ( N.P.D . at paragraph 23). [42] Depending on the nature of the case, sentencing courts often refer to a sentence as falling within a “range” which is based on previous case law and directions from the appellate courts.

However, the appellate courts also make it clear that the concept of a “range” does not preclude a different type of sentencing. [43] In any case the facts surrounding circumstances of the offence, circumstances of the offender and the offender’s criminal history, if any, are critical to the sentencing process. [44] Given that every case must be decided upon its own merits and own set of circumstances, all the purposes and principles of sentencing set out in

section 718 through 718.2 must be given due consideration in each case. [45] In paragraph 42 of Bernier the Court of Appeal stated: 42. A “range” does not preclude on grounds of deterrence or denunciation or the gravity of the particular offence a sentence different from that “range”. Nor does a “range” preclude a lesser sentence if some special circumstances warrant such a course. When considering any particular case similar to R. v. D.H.W. or to R. v. N.P.D. or to this case, trial judges and this court will have in mind those sentences as part of the “range”.

The “range” is not conclusive. [46] In paragraph 92 of M.(C.A.) Lamer C.J.C. said: 92. It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime; see Mellstrom, Morrissette and Baldhead . Sentencing is an inherently individualized process and the search for single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. [47] In paragraph 24 of Whicher, Hall, J.A. reminded sentencing judges not to ignore rehabilitation, particularly of younger offenders when he said: 24. Regard must be had to the nature of the offence and the history and prospects of the offender.

Where younger people are involved; the courts will endeavor, if at all possible, to foster the possibility of rehabilitation. In the long run, if the young person can be turned away from the course of repeated offences, then the interests of society will be served.

Courts must also impose sentences that adequately mark society’s disapproval of the offender’s breach of societal norms and that will deter both the individual offender and others minded to offend, from conduct harmful to the fabric of an orderly society. [ 44 ] The Crown provided a much more extensive Book of Authorities to the Court than was provided with in Last . The cases provided support the Crown’s position on sentencing particularly as it applies to the issue of Mr. Hornby being an Aboriginal person where Mr. Last was not.

The one case provided by Defence counsel was of very limited assistance. [ 45 ] Given the fact that Mr. Hornby and Mr. Last stand as co-accused on the Information and in light of the provisions of

section 718.2 (

b) of the Criminal Code a

summary of how Mr. Hornby’s and Mr. Last’s circumstances compare and contrast is relevant to arrive at a just and appropriate sentence here. [ 46 ] Mr. Last’s parents separated when he was very young and he was raised by his mother until his teen years. He then resided with his father in Prince George for a time period concurrent with when he became involved in criminal activity. Mr. Hornby’s parents separated when he was young and his mother remarried a few years later. His upbringing was dysfunctional and he both witnessed and was subjected to violence quite frequently. [ 47 ] Mr.

Last attempted suicide on three occasions as a youth and has been treated for depression since 2012. Mr. Hornby suffered a

number of physical assaults while growing up including head injuries that were not medically treated. [ 48 ] Mr. Last was 25 of the time of the attack on R.S. while Mr. Hornby was 20. Mr. Hornby is an Aboriginal person and Mr. Last is not. [ 49 ] Mr. Last was a heavy user of marijuana until 2012 but he has ceased that activity. Mr. Hornby acknowledges use of both alcohol and drugs but ceased that activity at a date not disclosed to the Court. [ 50 ] Both Mr. Last and Mr. Hornby had very minor criminal histories before October 10, 2011, although Mr. Hornby was actually serving a sentence at the time.

Once the RCMP became involved in the matter Mr. Last turned himself in January 2012, but Mr. Hornby had contact with the RCMP but then remained at large until he was arrested on a warrant in February 2012. [ 51 ] Both Mr. Last and Mr. Hornby were involved at a very low level with members of criminal gangs for several years. Since 2012, Mr. Last has held continuous employment in which he is receiving training for a career. Mr. Hornby has had sporadic and varied employment during the same time period. [ 52 ] Mr.

Last was cooperative with both the RCMP and the Crown and entered a guilty plea after the preliminary inquiry concluded. He also assisted the authorities with regard to a very serious criminal matter resulting in a significant period of incarceration for the perpetrator. [ 53 ] Mr.

Hornby initially provided a false alibi, elected to have his matter go to Supreme Court and then re-elected to have the matter returned the Provincial Court, entered a guilty plea to certain Counts only to apply to withdraw his pleas on the date fixed for sentencing and then later again agreed to plead guilty when it became apparent that Mr. Last may testify against him. [ 54 ] With regard to the attack on R.S. I find the following to be aggravating factors:

a) there was an invasion of R.S.’s privacy in a residence;

b) there was some planning and premeditation in carrying out the assault;

c) the baseball bat and the taser were both capable of causing serious bodily harm;

d) R.S. sustained potential life threatening injuries;

e) at the time of the assault Mr. Hornby was serving a Conditional Sentence Order for a weapons offences;

f) Mr. Hornby was engaged in a criminal gang lifestyle although at a very low level;

g) Mr. Hornby pled guilty to two Counts on the Information; and

h) there was a lengthy time gap between the assault and when Mr. Hornby finally accepted responsibility for his involvement in the matter. [ 55 ] The following are mitigating factors:

a) Mr. Hornby was relatively youthful at the time of the assault on R.S.;

b) although he was a party to the attack on R.S., his direct involvement was far less than that of Mr. Last as it concerns the injuries to R.S.;

c) he has entered into a stable relationship and has distanced himself from his former associates with regard to both lifestyle and geography;

d) he has found some employment and has maintained a generally prosocial lifestyle since the assault; and

e) he has cease the use of drugs and alcohol. [ 56 ] Given Mr. Hornby’s initial misleading of the RCMP and his on-again/off-again decisions surrounding accepting responsibility in this matter, I am unable to conclude that his guilty pleas should carry much, if any, mitigation weight. [ 57 ] After considering the aggravating and mitigating factors, Mr. Hornby’s personal circumstances, his limited criminal record, the circumstances of the offence, the Counts that he has pled guilty to and his Aboriginal heritage, I conclude that it is necessary to impose a sentence different to that given to Mr. Last. [ 58 ] Mr.

Hornby’s actions must be denounced in the strongest of terms. In addition, both Mr. Hornby and others must be deterred from similar activity and the community’s view of how the public should be protected from similar violent behaviour must be acknowledged. [ 59 ] It cannot be ignored that at the time of these events Mr. Hornby was quite young and although he was living in a criminal lifestyle environment he was not yet a habituated offender.

Furthermore, his Aboriginal heritage and the chaotic nature of his upbringing require the Court to give careful consideration to the Gladue factors. [ 60 ] Finally, it must be recognized that although Mr. Last pled guilty to only assault with a weapon while Mr. Hornby pled guilty to

both that offence and being unlawfully in a dwelling house. But, Mr. Hornby’s direct involvement in the injuries suffered by R.S. was considerably less. [ 61 ] As such, Mr. Hornby should receive a similar sentence to that given to Mr. Last with regard to Count 2, assault with a weapon, but should also receive a separate, but concurrent, sentence with regard to the lesser included offence in Count 1, being unlawfully in a dwelling house. [ 62 ] With regard to Count 1 a period of incarceration is appropriate.

In all the circumstances of this case a sentence of approximately six months in a provincial jail would be just and appropriate. However, Mr. Hornby is entitled to receive credit for the 36 days he is already served in custody which would provide a credit of 54 days. [ 63 ] Keeping in mind that Mr. Hornby now has employment which looks to be regular and full-time, an appropriate remaining period of incarceration would be approximately three months or 90 days. In light of Mr. Hornby’s employment situation it would be appropriate for him to serve the sentence on an intermittent basis.

DECISION Ancillary Orders [ 64 ] As part of the sentence, the Crown has sought various ancillary orders. [ 65 ] Count 2 is a primary designated DNA offence.

Pursuant to s. 487.051(1) of the Criminal Code , I make an order in Form 5.03 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 in the National DNA Databank from Chris Andrew Hornby no later than October 15, 2015. [ 66 ] Pursuant to s. 487.051(4) of the Criminal Code , I further make an order in Form 5.041 that Chris Andrew Hornby shall attend on or before October 15, 2015 between the hours of 9:00 A.M. and 4:00 P.M. at the Royal Canadian Mounted Police Detachment, at 455 Victoria Street, Prince George, B.C., and submit to the taking of the samples. [ 67 ] Count 2 also attracts a mandatory firearms prohibition pursuant to s. 109 of the Criminal Code .

This is Mr. Mr. Hornby’s second such prohibition. Chris Andrew Hornby is prohibited from possessing any firearm, crossbow, restricted weapon, prohibited weapon, prohibited device, ammunition, prohibited ammunition and explosive substances for life. SENTENCE [ 68 ] Mr. Hornby, on Count 1 of the Information, I impose an intermittent sentence of 90 days incarceration with a Probation Order in the following terms:

a) You are to serve 90 days of imprisonment. You must serve this term intermittently from 6 PM on Friday to 6 PM on Sunday on consecutive weekends starting on October 2, 2015 at the Prince George Regional Correctional Center in Prince George BC., except for the weekend of December 25 - 27, 2015

b) At all times when you are not in custody on this order and until your sentence has been served in full you are on probation with the conditions set out below, i. you shall keep the peace and be of good behaviour; ii. you shall appear before the court when required to do so by the court; iii. you shall notify the court or your Probation Officer in advance of any change of name or address and probably notify the court or your Probation Officer of any change of employment or occupation; iv. on each occasion when the part of the intermittent jail sentence is to be served, you shall arrive at the place where the sentence is to be served on time and in an entirely sober condition and not under the influence of any controlled substance within the meaning of the Control Drugs and Substances Act. [ 69 ] On Count 2 there will be a concurrent suspended sentence with a Probation Order for three years with the following terms and conditions:

a) You shall keep the peace and be of good behavior.

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) You shall report in person to the Probation Officer no later than 4:00 pm, September 30, 2015 at the Probation Office located at #101-250 George Street, Prince George, B.C., and after that you shall report as and when directed by the Probation Officer.

e) After your first reporting to the Probation Officer further reporting may include reporting by telephone, at the discretion of the Probation Officer .

f) When first reporting to the Probation Officer, you shall inform him/her of your present 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.

g) You shall have no contact, directly or indirectly with Geoffrey John Last or R. S.

h) You shall not possess or consume any alcohol or any controlled substance within the meaning of

section 2 of the Controlled Drugs and Substances Act, except as prescribed for you by a physician.

i) You shall not enter any liquor store, beer and wine store, bar, pub, lounge or other business premises from which minors are excluded by the terms of their license.

j) You shall attend, participate in and successfully complete any assessment, counselling or program as directed by the Probation Officer. Without limiting the general nature of this condition, such assessment, counseling or program may include and relate to anger management and alcohol and drug abuse and you shall comply with all the rules and regulations of any such assessment, counselling or program.

k) You shall make reasonable efforts to seek and maintain employment approved by the Probation Officer. If on any occasion that you report to the Probation Officer and you are not actually employed you shall provide the Probation Officer with a report describing the effort you have made to find employment since your last report. Such report may be verbal or written in the discretion of the Probation Officer.

l) Under the direction and supervision of the Probation Officer you shall successfully complete 75 hours of community work,

i) which shall be performed at a rate of no fewer than 5 hours per month commencing after the intermittent sentence in Count 1 has been served. [ 70 ] If Mr. Hornby breaches the Probation Order on Count 2, I would urge the Crown to have him brought before me so that consideration may be given to imposing the suspended sentence. [ 71 ] The Victim Fine Surcharge will apply. __________________________ M. J. Brecknell Regional Administrative Judge Northern Region Provincial Court of BC