R. v. Leboe Date:, 2014 BCPC 320

Citation: R. v. Leboe Date: 20141127 2014 BCPC 0320 File No: 36387-1 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RYAN EVERETT LEBOE ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: G. Baines Counsel for the Defendant: B. Movassaghi Place of Hearing: Port Alberni , B.C. Date of Hearing: November 27, 2014 Date of Judgment: November 27, 2014

[ 1 ] THE COURT (Orally): Ryan Everett Leboe has entered a plea of guilty for unlawfully possessing a controlled substance, to wit: marihuana, in an amount not greater than 30 grams; that offence was on the 22nd of June 2014. [ 2 ] Crown has outlined the circumstances with respect to this matter. No issue is taken with respect to those circumstances; accordingly, I find them to be the facts.

They are sufficient to support both the plea as well as the finding of guilt with respect to this offence. [ 3 ] The circumstances are somewhat unique and, I am going to suggest, also somewhat troubling. [ 4 ] Essentially, Mr. Leboe was serving an intermittent sentence at the local detachment of the RCMP in Port Alberni. At one o'clock in the morning he was observed in his cell with a lit cigarette, which had a distinctive odour. It was determined by the guards to have a smell very similar to burnt marihuana. A closer examination revealed in fact that the cigarette was a marihuana cigarette.

Somehow when he had been admitted into the local lockup to serve part of his intermittent sentence, approximately two days before, the existence of a lighter and a bag containing roaches of marihuana and two pills in his possession remained undiscovered. These items were found following a strip search that occurred once Mr. Leboe had been detected smoking the marihuana in his cell. [ 5 ] The criminal record of Mr. Leboe is a very unenviable one. He has had a significant number of convictions since 2004, including two robbery charges as I recall.

There have been a number of breaches, as well as other convictions for property thefts. There was an assault with a weapon back in 2013; he was sentenced to serve 90 days of jail time at the time of that disposition. And most recently, he was granted an intermittent sentence; in an application heard just prior to this matter, it was collapsed so that it would run as consecutive time. [ 6 ] Mr. Leboe is presently also serving time on another matter, which, as I read his record, was imposed on the 23rd of October 2014. [ 7 ] Crown has referred me to the case of R. v.

Jody Kathleen Bronson , Port Alberni Registry File Number 40164-1, a decision rendered by the Honourable Judge Doherty on November 1st, 2007. In that particular case the accused had secreted marihuana into the jail. Although not specifically mentioned in the reasons for judgment, but based upon inquires made by Crown counsel in this matter to his associate, who acted as Crown in the Bronson matter, I understand that the facts in that matter were that the offender, Bronson, had intended on selling the marihuana in jail. [ 8 ] That is not the situation in this case. There is no indication that Mr.

Leboe had any intention of selling the marihuana. [ 9 ] In the Bronson matter, the Crown sought custodial time for the drug smuggling into the jail; Judge Doherty imposed a custodial sentence of eight months. [ 10 ] In my view, in this matter, an eight month sentence would be inappropriate, notwithstanding Mr. Leboe's record. [ 11 ] He made two very bad choices. One was bringing the marihuana into the jail setting. For that he offers, not by way of excuse, but rather as an explanation, that he forgot that the marihuana was with him.

More egregious was the fact that having managed to get into the jail with that marihuana, he then chose to smoke it. [ 12 ] I am told that Mr. Leboe has suffered a brain injury, and since then he has made bad choices; also I am told that he had a productive life prior to being injured. Back some years ago he apparently had fairly steady employment for a number of years in the construction and logging industries. He was laid off in 2004 and has been struggling with a drug addiction issue since that time. [ 13 ] Defence is seeking a conditional sentence order, with the prospect that Mr.

Leboe, if he is serving a jail sentence in the community, will be able to enter into a residential rehab program at Maple Ridge. I am told that a rehab bed is available when he is released from custody. It does not appear that there is a problem with him assuming that bed at the end of any custodial sentence that I may impose upon him. [ 14 ] He clearly is in need of some rehabilitation. However, there is also a clear case for both specific and general deterrence.

This is a matter which requires an appropriate response from the courts, in order to give a clear indication to other individuals who choose to participate in this type of offence and in these circumstances that it must be considered by and dealt with very seriously by the courts. [ 15 ] I am of the view that a 60 day custodial sentence is appropriate in this case. I will impose that 60 day sentence. It will run consecutively with any time being served, on his existing sentence; he will then have an additional 60 days. [ 16 ] He has been in jail now for how long?

I am just thinking of his financial circumstances. [ 17 ] MR. MOVASSAGHI: Oh, he's been in since October -- well, since that -- maybe a little before -- October 24th was his last sentence, he went in nine days before that, so. [ 18 ] THE COURT: Well, does Crown have a submission on that? [ 19 ] MR. BAINES: Not today. [ 20 ] THE COURT: All right. So he does not have any money, is that right, he doesn't have any income? [ 21 ] MS. MOVASSAGHI: He's not working. [ 22 ] THE COURT: He does not have any money?

[ 23 ] MR. MOVASSAGHI: Not right now, no. [ 24 ] THE COURT: So he is unable to pay. Following the decision in R. v. Bailey , [2013] B.C.J. No. 2760 , I will make an immediate payment order. He does not want time to pay, and he is prepared to default, is that correct? [ 25 ] MR. MOVASSAGHI: Yes, Your Honour. [ 26 ] THE COURT: All right. I will accept his default, and impose the one day sentence in lieu of payment of the victim fine surcharge, and that will run concurrently with the jail sentence that I have imposed upon him today. [ 27 ] All right. [ 28 ] MR.

MOVASSAGHI: Thank you, Your Honour. [ 29 ] THE COURT: All right, so that is all, and Crown stayed the 13-KB, is that correct? [ 30 ] MR.

BAINES: Yes, thank you. [ 31 ] THE COURT: Thank you. [ 32 ] THE CLERK: Can I just confirm, you said the consecutive sentence -- pardon me, the intermittent sentence that was being converted to straight time was consecutive, as well, consecutive to any sentence - [ 33 ] THE COURT: Yes. [ 34 ] THE CLERK: -- currently being served, as well? [ 35 ] THE COURT: Yes, so he will have to serve the collapsed intermittent sentence, and then when that is completed, he will serve the sentence that I have just imposed upon him. All right? [ 36 ] MR. MOVASSAGHI: Yes, thank you, Your Honour. [ 37 ] THE COURT: Mr.

Leboe, good luck in your rehab. When you get an opportunity to get into that program, it is a chance to turn yourself around and get back into the mainstream. [ 38 ] MR. MOVASSAGHI: Thank you, Your Honour. [ 39 ] MR. BAINES: Thank you, Your Honour. [ 40 ] THE COURT: Thank you. (REASONS CONCLUDED)