R. v. Melnychuk Date:, 2017 BCPC 107

Citation: R. v. Melnychuk Date: 20170203 2017 BCPC 107 File No: 3665-2-KC; 3701-1 Registry: McBride IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL VINCENT MELNYCHUK REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. J. BRECKNELL Counsel for the Crown: G. McDonald Counsel for the Defendant: C. Carleton Place of Hearing: McBride , B.C. Date of Hearing: February 3, 2017 Date of Judgment: February 3, 2017 [ 1 ] THE COURT: This is my decision on the matters of Regina versus Melnychuk.

[2] Mr. Melnychuk is a 36-year-old regular substance abuser. He was raised in a loving family, but turned to alcohol, and laterdrugs, in his teenage years and in his adult life. He has tried various forms of treatment and counselling to deal with these issues, withoutprolonged success. He is not presently engaged in counselling with regard to the matters that he is struggling with. [3] Once his court matters are resolved, Mr. Melnychuk intends to find work in Alberta. That plan may be interfered with due to alack of a driver's licence and monies owed to ICBC. [4] Mr.

Melnychuk has a related criminal history to the events before the court. He has three assault convictions; two of thoseagainst spouses. He has five previous breaches of court orders. He has one previous conviction for possessing an unauthorized weapon. [5] In the past he has served many short jail sentences, probation orders, and a conditional sentence order for the weapons offence. [6] The circumstances of the events before the court are as follows.

Information 3665-KC-2, the police began to investigate Mr.Melnychuk for various offences, after he and his former spouse raised cross allegations concerning assaultive behaviours. Somethingwhich Mr. Melnychuk minimized, both at the time of the events, and subsequently in the presentence report. Based on the informationprovided by the Crown, the assaults of his former spouse included striking her, choking her, and attempting to suffocate her. This is thethird offence that Mr.

Melnychuk has been convicted of involving spousal assaultive behaviour. [7] His former spouse, in her complaint to the RCMP, also made them aware that Mr. Melnychuk was in possession of a number ofillegal items at his residence. When the police gained entry to the residence, they found, among other things, ammunition; a rifle barrel;a .22 calibre rifle, which had been altered to allow acceptance of a homemade silencer, although it was trigger-locked; a police scanner,and lock-picking instruments. [8] This is the second conviction for Mr.

Melnychuk, under s. 92 of the Criminal Code, for possessing restricted or prohibitiveitems without licencing. [9] The offence of a breach of bail occurred in the summer months of 2016. Mr. Melnychuk was found by the police operating amotor vehicle, and when he was pulled over, he was found to have open alcohol in his possession. He has pled guilty to the offence ofbeing in possession of alcohol when he was prohibited by court order from doing so. This, of course, is yet another breach, in addition tothe ones he already has on his record. [10] Crown counsel points to the cases of R. v.

Nur, 2015 SCC 15 , [2015] 1 SCR 773, and R. v. Ball, 2014 BCCA 120, insupport of the submission that when taking all of the issues into account concerning sentencing for the weapons offences, the court mustkeep in mind that sentences for s. 92 offences and s. 117 offences should be consecutive, and in the case of s. 117 offences, should be inthe range of six to 12 months, as described in Ball. [11] Using that information, and the other offences to which Mr. Melnychuk has pled guilty, the Crown says that Mr.

Melnychukshould be sentenced to a global sentence of between two and three years in the penitentiary, broken down somewhat in the sense asfollows. [12] The assault, one to four months; possession of the firearm without a licence, two to three years; possession of the weapon whileprohibited from doing so, six to 12 months; and the breach of bail, 30 days. [13] Crown also seeks a DNA order for the assault, which is Count 1 of Information 3665-KC-2; and a s. 109 lifetime firearmsprohibition, because Mr.

Melnychuk is already serving a 10 year s.109 prohibition, and the offences in Information 3665-KC-2 requiresuch an order. [14] Defence counsel in his submissions says that Mr. Melnychuk was not completely aware, as he should have been, about theterms of reference of the previous s. 109 prohibition. He also submitted that Mr. Melnychuk, in a sort of unsophisticated fashion,believed he could get away with possessing the weapon by finding a way to use it quietly, and that is the reason why he built theattachment and the silencer for the weapon. [15] Defence counsel also points out that at the time of the arrest, Mr.

Melnychuk was not carrying this weapon around thecommunity, it was not loaded, or in any way dangerous to members of the public immediately, such as the facts in Nur and Ball present. Defence counsel says Mr. Melnychuk has not been shown to be in possession of that weapon for a menacing purpose. In fact, he wastreating it somewhat safely by keeping it in his possession with a trigger lock. [16] Mr.

Melnychuk has a son of 10 years of age, who is a positive motivation for him not to want to spend a great deal of time inprison separated from him, and that that is a reason that defence counsel submits that a conditional sentence order may be appropriatehere. [17] Defence counsel submits that Mr. Melnychuk was not menacing at all, but rather should be considered to be of frail character.

Defence counsel says that a collective sentence of a conditional sentence order for approximately one year, or if jail is necessary, a totaljail sentence of approximately four months would be appropriate. [18] There are mitigating factors in this case. Mr. Melnychuk has entered a guilty plea to these events, thereby saving thecommunity the expense of trying him on the matters. Secondly, there is no actual use of a weapon at the time of his arrest, it was in hisresidence, and although readily available to him, was at least somewhat safely confined by the trigger lock, and that Mr. Melnychuk has,according to Mr.

Carleton, some employment prospects coming up that he might be able to avail himself of in the spring. [19] Aggravating factors in this case include the fact that this is Mr. Melnychuk’s third spousal assault conviction. It is his secondconviction for being in possession of weapons without proper authorization. He was in breach of a s. 109 10-year firearms prohibitionand based on the presentence report author's notes, he appears to have a lack of acceptance or understanding of his level of participationin the events at hand, and the seriousness of those events.

[20] I do agree with defence counsel that the circumstances here are not nearly as serious as Nur or Ball, where those convictedpersons were actually in possession of loaded handguns in the community, pacing about where the public may become endangered. Iam, however, also guided by the Court of Appeal's decision in Ball that the sentences on s. 92 and s. 117 must be consecutive as betweenthe two of them. [21] Defence counsel points out that Mr.

Melnychuk has served a conditional sentence order before, but in counter to that, it mustalso be reminded that he has returned to criminal activity since he served the conditional sentence order, not only on these occasions, buton one previous occasion after the conditional sentence order was served. All of those implications fit into the sentence I am about toimpose on Mr. Melnychuk. [22] First of all, dealing with the ancillary orders, Madam Clerk, there will be a s. 109 order, and I believe Mr. McDonald thatapplies to the 92 or the 117 conviction? [23] MR.

McDONALD: The 92, and I think the 117 is -- would be a 110 -- [24] THE COURT: Okay. [25] MR. McDONALD: -- that's discretionary, I'm not sure. [26] THE COURT: So, the 92 is the 110 -- is the 109? [27] MR. McDONALD: Just give me a moment and I'll advise the court. Actually because it's by indictment, the 117 I think is theone. Just give me a moment. The 117 one is also a mandatory one. [28] THE COURT: Okay. Mr. Melnychuk, please stand up, sir. [29] 165, Madam Clerk.

Sir, you are prohibited from possessing any firearm, crossbow, restricted weapon, prohibited weapon,prohibited device, ammunition, prohibited ammunition or explosive substances, for life. [30] In addition, there should be a DNA order for the spousal assault. This is the, as I said, the third conviction for a spousal assault,the fourth conviction for assault overall. It is a secondary offence, Madam Clerk, so it is number 162: Pursuant to s. 487.051(3)(

b) ofthe Code, I make an order in Form 5.04 authorizing the taking of a number of samples of bodily substances by any peace officer for theProvince of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration, from MichaelVincent Melnychuk, by February 28, 2017. [31] Now, dealing with sentence.

First of all, I am going to set out what I believe the appropriate sentences would be, then I amgoing to discuss whether or not a conditional sentence is appropriate in this case. [32] On file number 3665-KC-2, Madam Clerk, Count 1, the charge of spousal assault, in my view the appropriate sentence therewould be 90 days in custody. I note that, because this is the third spousal assault that Mr.

Melnychuk has been convicted of, and thecircumstances of those assaults. [33] Count Number 2, possession of the firearm without the proper licencing or authorization, in my view the appropriate sentencethere would be 180 days in custody, consecutive to the 90 days, because in my view that offence is separate and different from theassault. [34] On Count Number 4, possession of the firearm while you were prohibited, in my view the appropriate sentence there would be270 days in custody.

In my view, those days must be consecutive as well, because the decision in Ball requires that. [35] On 3701, Count Number 1, breach of the bail, in my view, the appropriate sentence there would be 30 days in custody; thatwould be consecutive as well, because it occurred on a different day, in different circumstances. [36] By my math, that totals 570 days, which is less than two years in custody. [37] The next question I must answer, sir, is whether or not you should be serving your sentence as a conditional sentence in thecommunity. I have reviewed the test, as required of me, set out in the decision of R. v.

Proulx, a decision of the Supreme Court ofCanada, which can be found at 2000 SCC 5 , [2000] S.C.J. page 6, a decision of Chief Justice Lamer. The first question I haveto ask myself, are there any minimum terms of imprisonment? The answer to that is no. Second question I must ask myself is, am Iimposing a sentence more than two years in custody? The answer to that is no. So based on those two no's, I now must go to the twoother portions of the test, to decide whether or not serving the sentence in the community is appropriate.

I must be satisfied that servingthe sentence in the community would not endanger the safety of the community, and I must be satisfied that serving the sentence in thecommunity would be consistent with the fundamental purposes and principles of sentencing, as set out in s. 718 to 718.2. [38] I have considered those factors, sir, and I have determined that serving the sentence in the community would not be in the publicsafety, and it would not be consistent with the sentencing principles because, in particular, the possession of this weapon and in themanner in which it was possessed by you, not only was a breach of your previous order not to possess firearms, but that a firearm wouldhave been available to you for your use, had you so decided and, in addition, you have already had the opportunity to serve a conditionalsentence order, but you returned to criminal behaviour after that, indeed increased criminal behaviour, and as such the 570 days incustody will be served in a provincial prison.

There will be no probation to follow. [39] MR. CARLETON: With -- would the court consider a non-reporting, simply no contact with -- [40] THE COURT: No. [41] MR. CARLETON: -- with Ms. B.?

[ 42 ] THE COURT: No. Please go with the sheriff, sir. (REASONS FOR SENTENCE CONCLUDES)