R. v. McBride Date:, 2015 BCPC 138

Citation: R. v. McBride Date: 20150401 2015 BCPC 0138 File No: 3523-2-C Registry: McBride IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL JAMES McBRIDE ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE S. K. KEYES Counsel for the Crown: G. G. R. McDonald Counsel for the Defendant: K. Sommerfeld Place of Hearing: McBride , B.C. Date of Hearing: April 1, 2015 Date of Judgment: April 1, 2015 [ 1 ] THE COURT: Mr. McBride appears for sentencing today on several offences which occurred in April 2014. Mr. McBride

pleaded guilty to fraudulently obtaining food or beverage from the Sandman Inn in McBride, possessing stolen property over $5,000, specifically, a car belonging to V. S., and Mr. McBride was found guilty on October 22, 2014, of robbery, theft of automobile, and assault with a weapon. Circumstances [ 2 ] Mr. McBride was facing charges in Alberta and had been released on bail there. He decided to go to the Vancouver area, planning, I am told, to commit suicide by jumping off the Capilano Suspension Bridge. He stole Mr. S.'s Chrysler Intrepid and began driving into B.C.

He had been hanging around in McBride after Mr. S.'s car ran low on gas. He went to the Sandman Inn and ordered bacon and eggs, orange juice and beer, and did not pay for it. The value of the loss was about $25. [ 3 ] Mr. McBride was trying to get some gas to get on his way. Mr. McBride told me that he went to steal some gas, but he discovered that in B.C., you have to pay for your gas before you can fill up. He said he considered robbing the grocery store to get money to get gas but, after walking through the store, decided against it.

He was, as he said, looking for an opportunity. [ 4 ] When he saw the Mustang belonging to Ms. L., he found his opportunity. He saw some people in the bank using the ATM machine and assumed correctly that one of them was the owner. He parked Mr. S.'s Chrysler Intrepid next to Ms. L.'s Mustang, went quickly round behind it, looked at it, and decided to steal it. The keys were in it. Mr. McBride got into it and began to go through the motions of putting it into reverse and stealing it. [ 5 ] Meanwhile, Ms.

L. had observed his actions from inside the bank through the glass door, and while the door was open, she ran outside to prevent the theft. She ran up to the car, grabbed the door, and opened it. Ms. L. was standing in the open door well while Mr. McBride was proceeding to steal her car. She yelled at Mr. McBride to get out of her car and reached in toward him with the intention of pulling him out or putting his head into the steering wheel. Mr. McBride did not look at her. He put the car into reverse and drove backwards. Ms. L. was caught by the driver's door and thrown backwards into the street.

She was struck hard enough that her shoes came off. Then her legs were run over by the front tires of the Mustang, and Mr. McBride drove off. He was later caught by the police as he drove down the highway. Victim Impact [ 6 ] Ms. L. has provided a victim impact statement to the Court. This offence has caused her enormous hurt and grief and continues to do so. For the first month after the incident, she was obliged to use crutches, and then she used a cane for another three weeks or so. She had to attend the hospital daily to have her dressings changed.

She suffered headaches and dizziness and has an injury to her right shoulder which continues to require treatment. She says she has problems sleeping and has anxiety attacks sometimes.

While she used to be a social person, she says that now she does not answer the phone unless she knows who it is, and she stays home a lot. [ 7 ] She loved the Mustang because it was a gift from her father, and she is glad it was returned to her in one piece, but every time she sees it, she is reminded of the incident. [ 8 ] Financially she suffered because she lost a month's work and has spent considerable funds travelling to Alberta to get medical appointments to treat her injuries. Pre-sentence Report [ 9 ] I have the benefit of the pre-sentence report prepared by Mr.

Weisbrodt, as well as an update to that report. According to the information provided by Mr. McBride, he was raised by his mother after his parents separated, and he tended not to abide by the rules she set when he was young. He indicated he associated with a negative peer group and started drinking alcohol at about 12 or 13 years old. He reported that he struggles with alcohol use and would have a difficult time abstaining if he were directed to do so. [ 10 ] As an adult, he was gainfully employed until he was charged with the offences in Alberta in February 2014 which resulted in him fleeing from Alberta.

Psychiatric or Psychological Report [ 11 ] I have had the benefit of a psychological risk assessment report prepared by Dr. Kimberly Kreklewetz prepared in connection with Mr. McBride's guilty pleas to the food fraud and possession of stolen property. At the time that this report was prepared, Mr. McBride had not been found guilty of the charges involving Ms. L., so although those circumstances are mentioned in the report, they do not appear to have been considered in the risk assessment. [ 12 ] She also noted, that is Dr.

Kreklewetz noted, that she had not checked with any collateral sources of information and had only Mr. McBride's self-report to go on. [ 13 ] She noted that Mr. McBride had grown up in an alcoholic family and that he drank heavily himself. She says he has attempted suicide on several occasions in the past. He was involved in a motorcycle accident that caused an organic brain injury in 2012 which required lengthy hospitalization and rehabilitation. Mr. McBride did not continue with the rehab, preferring to return to work. [ 14 ] Dr. Kreklewetz found that Mr.

McBride suffered from an organic brain injury and had suffered from recurrent moderate depression. She noted that he complained that the medication he is on, Seroquel, helps to reduce his anxiety but "dumbs him down" and makes him feel as though he does not have emotions. [ 15 ] I note that Mr. McBride made remarks about having a lack of emotion during his testimony, but at the time, he attributed his lack of emotion to his brain injury. Dr. Kreklewetz does not comment on Mr. McBride's hypothesis about the source of his trouble with his emotions, presumably because he did not advance it to her.

[ 16 ] She did conclude that Mr. McBride poses a low to moderate risk to reoffend but cautioned that her assessment would change if he were found guilty of the charges outstanding in Alberta. Range of Sentence [ 17 ] Crown counsel has provided me with three cases relevant to the robbery: R. v. Muncey , 2014 BCSC 855 ; R. v. Gill , 2006 BCCA 127 ; and R. v.

Tait , 2009 BCPC 70 . [ 18 ] Both Muncey and Gill reiterate the very large range of sentence available for cases of robbery, essentially from two years for offences and offenders on the lower end of seriousness to sentences five years and over for those with relevant criminal records and more serious circumstances. [ 19 ] The sentencing process is a very particularized matter because no two situations or two offenders are entirely alike. Submissions of Counsel [ 20 ] Mr.

McDonald for the Crown submits that a sentence of two years, all sentences concurrent, less time served, followed by probation, would serve the interests of justice. He advised me that Mr. McBride has been in custody since April 6, 2014, the day of these events. That makes 361 days. If I grant enhanced credit of 1.5 days for each day actually served in custody, that amounts to 542 days already served. Therefore, if I were to impose a two-year sentence, that would be two times 365, 730 days. That means 188 days' new time. [ 21 ] Mr. Sommerfeld for Mr.

McBride agrees that two years would be an appropriate sentence, although I do not take his agreement on that length of sentence to be a joint submission in the sense of a negotiated arrangement. He does point out that although Mr. McBride regrets putting Ms. L. and the other witnesses to the stress of a trial, he benefitted from hearing their evidence and the Court's decision in coming to a better understanding of what had really happened and, in particular, the gravity of what he did. Statement of Mr. McBride [ 22 ] Mr. McBride spoke to me about his desire to apologize to Ms.

L. for the trauma his behaviour had inflicted upon her. He also apologized to the people of McBride noting, quite poignantly, that they reside here, most likely, to escape from this sort of thing. [ 23 ] Mr. McBride says that he has applied and been accepted to Guthrie House, a correctional facility on Vancouver Island where he hopes to serve the remainder of his sentence.

At Guthrie House, he will be able to specifically address his addiction issues and other problems that led him to the place that he arrived at on April 6, 2014. [ 24 ] He says that although he feels much better than he did when he committed these offences, he is not “fixed” and he wants to learn how to manage his addictions and his emotions so that he can avoid trouble when he is in the community again. He advised me that the program takes about six months, and he wants a sentence that will be long enough to allow him to finish it, approximately nine months' new time.

Aggravating Factors [ 25 ] With respect to the possession of Mr. S.'s car and the theft of Ms. L.'s Mustang, the purpose for which they were stolen was to escape prosecution for offences in Alberta. Mr. McBride says he intended to kill himself in Vancouver, but if he had really intended to kill himself, he could have done so without stealing other people's things and without running down Ms. L. These actions by Mr. McBride were premeditated in the sense that they were done deliberately for an ulterior motive. [ 26 ] With respect to the robbery of Ms. L., again, it was premeditated in the sense that Mr.

McBride had been consciously looking for an opportunity to get a car or to get money. As he said, he had been hanging around in McBride for a day and a half looking for an opportunity to rob someone. He had considered robbing the grocery store. He went to the parking lot near the bank in order to steal a car. [ 27 ] Regarding the assault with a weapon, I view it as very aggravating that Mr. McBride hit Ms. L. with the car deliberately. He knew she was there. He knew reversing would hit her, and he did it anyway.

It does not take a rocket scientist to know that she could have been killed. [ 28 ] I am satisfied that Mr. McBride knew that hitting someone with a car at speed could kill them, but he did it anyway. It is pure luck that the injuries to Ms. L. were not any more serious than they already were. Mitigating Factors [ 29 ] With respect to the food fraud, it is clear that this was simply a matter of Mr. McBride's poverty at that moment, and we do not punish people enormously for poverty in this country. [ 30 ] Mr. McBride has reached the age of 39 without having a criminal record of significance.

I note that he has a dated conviction for impaired driving, but I do not find that relevant to this offence but, rather, relevant to the addiction to alcohol from which he suffers. [ 31 ] Finally, I am impressed with Mr. McBride's apparent insight into the impact his behaviour has had on others and his determination to improve himself. Appropriate Sentence [ 32 ] In view of the aggravating factors I have noted, the principles of denunciation and deterrence require, in my view, that Mr. McBride serve a sentence in the range of two to three years. Given that Mr.

McBride has no criminal record of significance and that he

was a productive member of society before these events occurred, a sentence at the lower end of that range would be appropriate. However, I am of the view that society will benefit from a sentence that encourages Mr. McBride to rehabilitate himself as opposed to simply punishing him. It appears to me that Mr. McBride is on that road already, and I am of the view that a sentence which is of sufficient length to facilitate his attempts at rehabilitation is good for Mr. McBride and for society as a whole. [ 33 ] If Mr.

McBride can carry on his road to self-management, there is every reason to hope that he will return to being the productive member of society that he once was. [ 34 ] A probationary term of two years to follow that sentence will help to keep Mr. McBride on the straight and narrow until his habits of self-regulation are well established. [ 35 ] So the sentences I impose are as follows: - possession of Mr. S.'s stolen Chrysler Intrepid - 30 days; - food fraud at the Sandman - seven days; - theft of the automobile belonging to Ms. L. - 90 days; - robber of Ms.

L. - two years three months, less time served of 542 days; that leaves 298 [sic] days left to serve; - assault with a weapon on Ms. L. - two years three months, less time served of 542 days, which leaves 298 days. [ 36 ] Counsel can check my math. I am of the view that the possession of Mr. S.'s car, the food fraud, and the offences involving Ms. L. and her car were all part of a single enterprise, one single course of events. Sometimes that is called a "spree" in the cases that refer to that kind of sequence. It is not intended to mean that it was fun.

It is intended to mean that it was all part of one particular problem. They were all motivated by a desire to flee Alberta with the intention of flinging himself off the Capilano Suspension Bridge. [ 37 ] As such, I am satisfied that the interests of justice will be served by making all of the sentences imposed concurrent. [ 38 ] That sentence will be followed by probation for two years. The provisions will be as follows. [ 39 ] Madam Clerk, on the pick list, we will start with 100P. [ 40 ] When you are released, Mr. McBride, you shall keep the peace and be of good behaviour.

You shall appear before the court when required to do so by the court. 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. [ 41 ] 102P, Madam Clerk. Within 72 hours after completing your jail sentence, you shall report by telephone to the probation officer at -- actually, change that. I think that given where Mr.

McBride is likely going to be, we will do this differently. [ 42 ] You shall report in person at the probation office located nearest to the place of your release from custody, and after that, you shall report as and when directed by your probation officer. [ 43 ] 105P. When first reporting to your probation officer, you shall inform him or her of your present residential address and phone number, and you shall not change your address or phone number at any time without first providing written notice to your probation officer. [ 44 ] 116P.

You shall have no contact or communication, directly or indirectly, with L. L. [ 45 ] 140, Madam Clerk. You shall not enter or remain in any motor vehicle, other than public transportation, unless the registered owner of the vehicle is present in the vehicle. [ 46 ] 131. You shall not possess any weapon as defined in s. 2 of the Criminal Code , and for your information, Mr. McBride, a weapon can be anything at all. A book is not a weapon, but if I brandish it at you or hit you with it, it is. Similarly, a car is not a weapon unless it is used as one.

Do you understand? [ 47 ] THE ACCUSED: Yes. [ 48 ] THE COURT: 142P. 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, counselling, or program may include and relate to alcohol or drug abuse, a full-time attendance program for alcohol or drug abuse, and you shall comply with all rules and regulations of any such assessment, counselling, or program. [ 49 ] In view, Mr. McBride, that you say you have prepared a letter of apology for Ms.

L. but you have been unable to give it to her this point, I am going to order that there will be a provision -- you are under a no-contact order -- [ 50 ] THE ACCUSED: Right. [ 51 ] THE COURT: -- but I am going to order a provision that you do provide an apology, so this is how it will be. [ 52 ] 145P, Madam Clerk. You shall apologize to L. L. in the manner that you are directed by the probation officer, to the satisfaction of the probation officer, no later than April 30, 2015. Do you understand? [ 53 ] THE ACCUSED: Okay. Yes.

[ 54 ] THE COURT: Okay. Now -- [ 55 ] MR. McDONALD: Your Honour, something that counsel didn't address with you, but -- [ 56 ] THE COURT: Ancillary orders? [ 57 ] MR. McDONALD: Yes. With respect to assault with a weapon and the robbery, they are both by indictment. Mandatory 109 orders and primary DNA it is required be ordered. [ 58 ] THE COURT: That is right. I will make a DNA order. It is a DNA database order, Mr. McBride. You are probably not familiar with it, but you will become so. [ 59 ] 161 is the code, Madam Clerk.

Pursuant to s. 487.051(1) of the Criminal Code , I make an order in Form 5.03 authorizing the taking of the 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 Michael James McBride by April 30, 2015. [ 60 ] Generally, Mr. McBride, it is done by taking a pinprick from your finger or a swab from the inside of your mouth.

It is not an invasive procedure. [ 61 ] Next, there is a mandatory firearms prohibition order, but it does not just prohibit firearms, so listen. [ 62 ] 164, Madam Clerk -- and it is 10 years, Mr. McDonald? [ 63 ] MR. McDONALD: Yes, 10 years, first conviction. [ 64 ] THE COURT: Okay.

You are prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substance for a period of 10 years, and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. [ 65 ] When you think restricted firearm, think handgun. There are many other things, but that is obvious, for life. [ 66 ] Anything further, Counsel? [ 67 ] MR. McDONALD: Actually, I just want to make sure I heard you correctly.

The two years three months less time served of 542 days I think was clear, but I wasn't sure if you said 298 days' new time or 278. [ 68 ] THE COURT: I said ninety-eight. Have I done the math correctly? [ 69 ] MR. McDONALD: Well, adding 90 to 188, I come to 278, but I'm in Your Honour's hands. [ 70 ] THE COURT: Well, I imposed two years three months, so three months is 90 days added to two years. That is how I did it, but I could have calculated it wrong. Perhaps we all need calculators. [ 71 ] MR. McDONALD: Well, I was an Arts major. I . . . [ 72 ] THE COURT: Let's get out our pencils. [ 73 ] MR.

McDONALD: I come to 278, but I -- [ 74 ] THE COURT: Okay. [ 75 ] MR. McDONALD: -- I emphasize I was an Arts major, philosophy no less. [ 76 ] THE COURT: I think that is right. I think I had 830 as the number. Okay. Yes, you are right, Mr. McDonald. It is 278. So 278 new days. [ 77 ] MR. McDONALD: Thank you. [ 78 ] MR. SOMMERFELD: Thank you, Your Honour. (REASONS FOR SENTENCE CONCLUDED)