R v Clark et al Date:, 2014 BCPC 186

Citation: R v Clark et al Date: 20140822 2014 BCPC 0186 File No: 36941-C-2 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOEL MILTON CLARK JOHN R.HAWKINS and JOSHUA BOWSER REASONS FOR SENTENCE (RE ACCUSED CLARK) OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. J. BRECKNELL

Counsel for the Crown: C. Malfair Counsel for the Defendant: Mr. Clark: R. Climie Place of Hearing: Prince George , B.C. Date of Hearing: August 15, 2014 Date of Judgment: August 22, 2014 INTRODUCTION [ 1 ] Joel Milton Clark (Mr. Clark) is to be sentenced having earlier pleaded guilty to Count One on Information No. 36941-C-2 on a charge arising on December 10, 2012 of break and enter of a dwelling house and committing an indictable offence therein, contrary to Section 348(1) (

b) of the Criminal Code . [ 2 ] Mr. Clark is the third of three co-accused to be sentenced arising from the events of December 10, 2012, the others being John R.

Hawkins who pleaded guilty to the same break and enter charge and a further offence of having his face masked while committing an indictable offence and received a sentence of eight years in a penitentiary and Joshua Bowser who pleaded guilty to the same break and enter charge and a further offence of assault with a weapon and received a sentence of three years in prison followed by three years of probation. [ 3 ] The Crown seeks a sentence of four years in prison (less credit for time served), a DNA order and a lifetime firearms prohibition.

Defence counsel does not oppose the DNA or firearms orders but seeks a three year prison sentence (less time served) followed by a two year probation order. THE LAW [ 4 ] Given the approach taken by counsel in their submissions it is important to initially address the law prior to turning to the other factors to be considered in arriving at a just and fit sentence for Mr. Clark. The Criminal Code [ 5 ] The following provisions of the Criminal Code were relied on by counsel and have application here: a) Section 348(1) Every one who (

a) breaks and enters a place with intent to commit an indictable offence therein; is guilty (

d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life,

b) Section 348.1 If a person is convicted of an offence under

section 98 or 98.1, subsection 279(2) or

section 343, 346 or 348 in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence, (

a) knew that or was reckless as to whether the dwelling-house was occupied; and (

b) used violence or threats of violence to a person or property.

c) Section 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 ofthe harm done to victims and to the community.

d) Section 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

e) Section 718.2 (in part) 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 aggravatingor mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (iii.1) evidence that the offence had a significant impact on the victim, considering theirage and other personal circumstances, including their health and financial situation, shall be deemed to be aggravating circumstances; (

e) all available sanctions other than imprisonment that are reasonable in thecircumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. Case Law [6] Counsel provided or referred to the following cases:

a) R. v. Bernier 2003 BCCA 134

b) R. v. Drydgen 2013 BCSC 1876

c) R. v. Wright (2006) (ON CA), 216 C.C.C. (3d) 54 OCA

d) R. v. Vickers 2007 BCCA 554

e) R. v. Brossault 2009 BCSC 464 [7] Both counsel spent considerable time in their submissions dealing with the issues surrounding the topics of proportionality,gravity of the offence and Mr. Clark’s degree of responsibility. Given that there are three accused involved, each with their ownparticular personal circumstances, criminal record and involvement in the events of December 10, 2012, it is incumbent upon the Courtin properly assessing s. 718.1 to, in effect, compare and contrast Mr. Clark circumstances with the other two co-accused. EVIDENCE Personal Circumstances [8] Mr. Clark’s personal circumstances are set out in the Pre-Sentence Report and can be summarized as follows:

a) he is 28 years old and is one of four siblings. His father was a successful businessman and all thechildren enjoyed a good childhood with many amenities;

b) he enrolled in the mechanics apprenticeship program in Grade 11 but was eventually expelled fromschool. However, he continued his apprenticeship at a local college and came withinsix months of completion before dropping out;

c) he has worked at a variety of mechanic related employment when not in custody. He also has skills inother areas and has several options for employment in a variety of areas and locations upon his release fromcustody. He also speaks several languages;

d) he began dabbling in drug use while in high school. In 2005 his father died unexpectedly whichresulted in self- destructive behaviour including increased drug and alcohol abuse. Thisbehaviour has continued, with some periods of sobriety, ever since and is strongly related to his involvement in criminal behaviour. His mother died of cancer in December 2012 soon after he wasincarcerated on this matter;

e) he has actively participated in a variety of activities while in custody on this matterincluding counselling concerning his grief over the loss of his parents, completion of all18 of the Essential Skills to Success programs offered through the correctional center, completion of the Substance Abuse Management program and he has quit smoking.

[ 9 ] Mr. Hawkins’ personal circumstances as described in the sentencing decision of him found at 2013 BCPC 143 can be summarized as follows:

a) he is a 55 year old member of the Tahltan Nation but was raised in a non-aboriginal environment. He suffered a severe burn injury as an infant but his upbringing was otherwise uneventful;

b) he has a poor education proceeding only as far as Grade 7;

c) he was shot in the head in 1990 and continues to suffer lingering effects from the injury including requiring prescription medication to assist in maintaining himself in an appropriate fashion and deficits in his comprehension and his numerical and literacy skills;

d) he has held a variety of different types of employment but that employment has been sporadic due to the nature of his criminal history;

e) he has had drug and alcohol substance abuse problems throughout his teenage and adult life but has had periods of sobriety. [ 10 ] Mr. Bowser’s personal circumstances as described in the sentencing decision of him found at 2014 BCPC 178 can be summarized as follows:

a) he is a good, upstanding member of the community who has participated fully in trying to assist family members and others;

b) he has held regular employment and excelled in sports;

c) he acted heroically in saving a family of snowmobilers when their snow machine went through the ice;

d) he suffered a terrible tragedy when his sister was killed in a highway accident and he had to identify her body. That resulted in him becoming severely depressed and perhaps developing Post Traumatic Stress Disorder;

e) he attempted self-medication as a result of his depression, first with alcohol and subsequently with various drugs which led him into the drug culture lifestyle. Criminal Record [ 11 ] Mr.

Clark’s criminal record dates back to 2002 with 38 convictions including one assault causing bodily harm, one assault with a weapon, two assaults, three threatening’s or harassment, one counselling an indictable offence not committed, eight property offences, two mischiefs, one drug offence, two obstructions of a peace officer, one alcohol-related driving offence, ten driving while prohibited offences and six breaches of court orders. [ 12 ] In the days before his involvement in this matter Mr. Clark had pleaded guilty to assault with a weapon.

He had been incarcerated for approximately four months and, as such, was released on a time served basis. In the course of dealing with sentencing submissions on that matter Mr. Clark, through his counsel, told the Court that he ordinarily resided in Squamish, B.C. and was employed as a heavy-duty mechanic. He also advised he attended a drug rehabilitation program in Squamish, had lived a productive life there for two years, but had returned to Prince George to assist his mother with her illness and fell into drug use and bad behaviour with his twin brother.

He was released from custody on December 9, 2012. [ 13 ] Mr. Hawkins’ criminal record was summarized in his sentencing proceeding as follows: [14] Mr. Hawkins has a very lengthy and serious criminal history. He has 71 convictions, including a conviction for manslaughter, two break and entering convictions, four assault convictions, one assault causing bodily harm conviction, one aggravated assault conviction, ten offences for weapons and firearms, and numerous offences related to alcohol and vehicle operation throughout the years. [ 14 ] Mr.

Hawkins had been released from custody a matter of days before December 10, 2012. [ 15 ] Mr. Bowser had no criminal record prior to the events of December 10, 2012. The Events of December 10, 2012 [ 16 ] On December 10, 2012 Mr. Clark, Mr. Hawkins and Mr. Bowser went to a rural residence at approximately 10:15 p.m. under

the cover of darkness. Their purpose was to enter the residence and steal money, financial information, and banking cards that Mr. Bowser knew to be present as a result of some previous employment he had with the owner of the residence. [ 17 ] The three perpetrators attempted to force entry at both the back and front doors and were eventually able to gain entry into the residence when Mr. Clark broke a window on the front door and an unlocked it. Their entry to the residence was captured on video which also showed Mr. Bowser to be masked, Mr. Hawkins to be wearing a bandana and Mr.

Clark’s face to be uncovered. [ 18 ] There were three men in the residence. Mr. Bowser deployed bear spray in the direction of one man in the living room and then he moved into the bedroom where he deployed the bear spray in the direction of two other men. One person in the residence, Mr. A., was a 51 year old quadriplegic who is confined to his bed. The other two men were Mr. A.’s personal attendants. [ 19 ] Mr. Hawkins did not enter the bedroom. There is a dispute between counsel as to whether or not Mr. Clark did. After the bear spray was deployed Mr.

Bowser grabbed a fanny pack containing financial information and bank cards belonging to Mr. A. The three perpetrators then departed the residence having been inside for approximately one minute. [ 20 ] After leaving Mr. A.’s residence Mr. Clark, Mr. Hawkins and Mr. Bowser went to a local convenience store where attempts were made to obtain some cash utilizing Mr. A.’s bank cards and financial information from the fanny pack. Some cash was obtained, although in none of the three sentencing procedures was the amount accurately specified nor was there any acknowledgment of where the cash went. [ 21 ] Mr.

Clark was arrested on December 12, 2012. Mr. Hawkins was arrested on December 21, 2012. Mr. Bowser was not arrested until May 1, 2013. All three remained in custody until their respective sentencings. VICTIM IMPACT [ 22 ] As detailed in the Pre-Sentence Report, Mr.

A. suffered several serious consequences as a result of the crimes perpetrated against him. [ 23 ] As a result of being bear sprayed he had immediate discomfort and pain to his eyes and an adverse reaction to his respiratory system which, as a result of his disability, resulted in the collapse of a lung on two occasions, resulting in a weeklong hospitalization. [ 24 ] In addition, he suffered emotional distress as to why a person like him with disabilities would be terrified in such a manner.

He wishes increased protective measures for himself and says he no longer trusts people either at home or on the street. [ 25 ] In addition, both his front and back doors were damaged during the home invasion resulting in repairs to the front door which cost approximately $2,600.00 and replacement of his backdoor which will cost an additional $2,000.00 plus labour. SUBMISSIONS Crown [ 26 ] The Crown prefaced its submissions by stating that Mr.

Clark’s involvement in this case is less aggravating than many of the cases involving s. 348.1 because although it was a home invasion there was no confinement, torture or extortion of the occupants and, as such, the Court need not consider the very serious range of sentences discussed in Bernier and Wright . [ 27 ] The Crown also acknowledged that there was a third party who was, in large part, the directing mind of the events of December 10, 2012. That person, who the Crown acknowledges is a local drug dealer and a person of violence and ill repute, contended that both Mr. Bowser and Mr.

Clark owed him a drug debt. He was the one who supplied the bear spray and directed the three perpetrators to Mr. A.’s house upon finding out from Mr. Bowser that there may be money there. Mr. Hawkins’ was sent along as the enforcer or “muscle”. Mr. Clark had been staying at the third party’s residence since his release from custody the day before and the vehicle used to travel to Mr. A.’s residence was borrowed from that person. [ 28 ] Both Mr. Bowser and Mr. Clark contended that they were under a form of duress to carry out the third party’s wishes for fear of violent physical repercussions. Mr.

Bowser identified the third party but Mr. Clark has specifically declined to identify the person he was being directed by and under obligation to. [ 29 ] In arriving at its position on sentencing the Crown’s submissions can be summarized as follows:

a) mitigating factors include Mr. Clark was neither masked or in possession of a weapon, he entered a guilty plea and his successful and diligent undertaking of programming while custody awaiting sentencing;

b) aggravating factors include Mr. Clark participated in a home invasion, he has a lengthy criminal history including prior convictions for violence, he had been released the very day before committing these offences, he knew or was reckless to the fact that Mr. Bowser came armed with bear spray and he came into the bedroom with Mr. Bowser to complete the theft;

c) Mr. Clark was equivocal in his acceptance of responsibility claiming he was unaware of what he Mr. Hawkins and Mr. Bowser were to be doing other than collecting on a drug debt even though he acknowledged he was told that he owed money to his drug supplier and when they arrived at the residence Mr. Bowser and Mr. Hawkins were masked and attempts are made to force open the doors to the residence;

d) Mr. Hawkins has the most serious criminal history of the three people involved. Mr. Bowser had no

criminal history. As such, Mr. Clark’s sentence should fall somewhere between those received by the others;

e) Mr. Hawkins has very little in the way of redeeming social qualities. Mr. Bowser is of otherwise good character with a pro-social background and family support who readily admitted his participation in the offence and expressed remorse. Mr. Clark has a lengthy criminal record with little solid history of pro-social activity indications of pro-criminal associations and attitudes and has been less genuine in his remorse and, as such, a longer sentence than Mr. Bowser’s is warranted in the circumstances;

f) based on the decision of R. v. Summers 2014 SCC 26 and R. v. Carvery 2014 SCC 27 , Mr. Clark has been denied the opportunity for early parole while on remand and therefore should be entitled to pretrial credit of 1.5 days for each day in custody pursuant to section 719 (3.1) of the Criminal Code . Defence [ 30 ] Defence counsel submissions on behalf of Mr. Clark can be summarized as follows:

a) he fell into serious drug abuse following the death of his father and has struggled with that ever since;

b) he has had a solid employment history when out of custody;

c) he has worked diligently during this most recent time in custody in taking all the programs available to him, maintained sobriety and has quit smoking;

d) he is suitable for community supervision as indicated in the Pre-Sentence Report. He is clearly capable of being rehabilitated;

e) he has the support of a drug and alcohol counselor who lives in Squamish and is like a parent to him. He wishes to help that person who is in ill health;

f) he was coerced into participating in the home invasion by a drug culture person who claimed he owed a drug debt and who told him to participate or he would receive a beating. This is a common practice in Prince George by drug dealers to collect debts through beating, torturing and confining customers who have not paid;

g) he is remorseful and embarrassed about his participation particularly in light of the injuries caused to Mr. A., a circumstance he had no knowledge of prior to going to Mr. A.’s residence;

h) his participation in the home invasion was limited and much less culpable than either Mr. Hawkins or Mr. Bowser. He did not wear a disguise and he was not in possession of a weapon nor is there any evidence that he knew about the bear spray before it was deployed by Mr. Bowser;

i) he did not assault anybody and did not enter the bedroom during the home invasion. He was largely a bystander;

j) he did not obtain any of the proceeds of the crime but both Mr. Bowser and Mr. Hawkins obtained monies utilizing Mr. A.’s bank cards;

k) he has a serious criminal record but he has no convictions for break and enters. Despite that criminal record, he is the least culpable of the three perpetrators and he should receive the least serious sanction;

l) he is prepared to pay restitution to Mr. A. for the damage done to his property; an important consideration as described in s.718 of the Criminal Code ;

m) his culpability, his circumstances and criminal history cumulatively suggest a sentence far less than those in Bernier and Wright and less than that in Drydgen would be appropriate . DISCUSSION [ 31 ] The sentencing of any person before the Court is an individualized process in which consideration must be given to the particular circumstances of the offence, the particular circumstances of the offender and the offender’s criminal history. [ 32 ] In order to determine a fit sentence for this offence, the first task is to determine the nature of the offence to which Mr. Clark has pled guilty. Mr.

Clark participated in the break and enter of a dwelling house in which indictable offences were committed, namely robbery and assault causing bodily harm. Given that the place broken into and entered was Mr. A.'s residence, the maximum penalty is life imprisonment. [ 33 ] In addition, because the residence was occupied at the time of the break and enter, the aggravating circumstances described in s. 348.1 come into play. Mr. Clark participated in a home invasion. Although his counsel suggested Mr. Clark's participation was considerably less than that of Mr. Bowser and Mr.

Hawkins, the fact remains he was a party to the offence as described in s. 21 of the Criminal Code . [ 34 ] Although the leading case concerning home invasions is Bernier, the Crown is not asking the Court to impose a sentence within the range suggested by the Court of Appeal in that case. The Crown acknowledges that the appropriate consideration of Mr. Clark's

personal circumstances, his criminal history and his level of participation in the matter should result in a sentence somewhat less than described in Bernier . [ 35 ] The approach suggested by the Crown was addressed by Mr.

Justice Joyce in Broussault where he said at paragraph 86: [86] What I take from all of this is that the Court of Appeal has suggested that the majority of cases of "home invasion" will fit somewhere in the range of 5 to 8 years, depending upon the circumstances of the particular offences said to constitute home invasion and the circumstances of the particular offender but that there will be cases that fall on either side of that general range.

A case may warrant a sentence in excess of that range because of particularly egregious circumstances concerning the offence or particular high moral blameworthiness on the part of the offender, and the lack of any mitigating circumstances.

Other cases may warrant a sentence under the usual range because the circumstances of the offence are not egregious, and/or the circumstances of the offender are exceptional, such as the lack of any significant record, the youth of the offender, aboriginal status, evidence of remorse and a clear potential for the rehabilitation of the offender. [ 36 ] Based on the facts alleged and the submissions made, the aggravating factors in this case are:

a) Mr. Clark participated in a home invasion which had very serious consequences for Mr. A., both physically and emotionally;

b) Mr. Clark was an active participant in the criminal activity. He was the one who initiated the tactical step of breaking the window on the door to gain entry when forcing the doors did not work;

c) Mr. Clark's criminal record of 38 convictions spanning 12 years is not enviable particularly when compared to the lack of criminal history of Mr. Bowser. Despite Defence counsel's assertions to the contrary Mr. Clark's criminal record is quite similar to that in Drydgen ;

d) Mr. Clark participated in the matter almost immediately after being released from custody in circumstances where he had told the Court at the previous sentencing proceeding that he was leaving immediately for the lower mainland;

e) Mr. Clark's acceptance of responsibility is clearly equivocal and his explanation of his level of participation is vague and disingenuous. That diminishes the effectiveness of his expression of remorse for the events. [ 37 ] On the other hand, there are several mitigating factors including;

a) Mr. Clark has entered a guilty plea thereby saving the victims the trauma of testifying at a trial;

b) Mr. Clark was both unarmed and unmasked during the events;

c) Mr. Clark has made very diligent efforts while in custody to improve himself in many areas of his life;

d) Mr. Clark has expressed a wish to pay restitution for the damage done to Mr. A.'s residence. [ 38 ] In considering the provisions of s. 718 to 718.2 of the Criminal Code it is clear from the case law that the primary considerations in cases such as this are denunciation, deterrence and protection of the public. [ 39 ] It is a fundamental tenant of our criminal law that the public must be protected from crime whenever possible and particularly from crime which invades their own residence. [ 40 ] However, there are other factors that must be considered. Mr.

Clark has taken impressive steps while in custody to prepare himself for a successful pro-social reintegration in the community upon his release. [ 41 ] In addition, Mr. Clark has expressed the desire to reimburse Mr. A. for his out-of-pocket expenses resulting from the damage to property perpetrated by all three accused. [ 42 ] The offence here was grave. Invasion of a person's residence attracts a maximum sentence of life imprisonment. However, the nature of this home invasion and Mr.

Clark's direct involvement in it suggests a sentence much less than the maximum and even less than the range of sentence discussed in Bernier . [ 43 ] Mr. Clark's involvement in and responsibility for the offence is quite similar to that of Mr. Hawkins and somewhat less than that of Mr. Bowser. However, even though Mr. Bowser carried the weapon used, Mr. Clark still bears responsibility as a party to the offence. [ 44 ] In the end of the analysis the position of Crown for a sentence of four years is, on the face of it, more than warranted for Mr. Clark.

However, it does not adequately recognize the mitigating factors determined by the Court to apply here. [ 45 ] Mr. Clark has been in custody for 619 days. He is entitled to credit of 1.5 days for each day in custody which results in the

credit of 929 days. [ 46 ] Given Mr. Clark's diligent efforts to make improvements in his life during this time in custody and his desire to pay restitution for the damage done, the appropriate sentence here would be 1216 days or approximately 40 months. [ 47 ] That means Mr. Clark has to serve an additional 287 days or approximately 9 1/2 months. [ 48 ] The jail sentence will be followed by a Probation Order of three years. The length of the Order is in large part determined to allow Mr. Clark plenty of time to pay the restitution to Mr. A. ORDERS [ 49 ] The offence of break and enter a dwelling house is a primary designated DNA offence. Therefore, pursuant to s. 487.051(3)(

b) of the Criminal Code I make an order in Form 5.04 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 from Joel Milton Clark by September 12, 2014 . [ 50 ] In addition, the offence requires a mandatory prohibition under s. 109 of the Criminal Code . This is the second time Mr.

Clark has faced such a prohibition and therefore, he is prohibited from possessing any firearm, crossbow, restricted weapon, prohibited weapon, prohibited device, ammunition, prohibited ammunition and explosive substances for life. [ 51 ] The appropriate period of imprisonment in this case is 1216 days. Mr. Clark will receive credit for 929 days leaving remaining sentence to be served of 287 days. [ 52 ] Following the term of imprisonment Mr. Clark will be on a Probation Order for a period of three years the following terms and conditions: (

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

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) Within 48 hours after completing your jail you shall report in person to 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 providing written notice to your Probation Officer. (

g) You shall have no contact or communication, directly or indirectly, with John R. Hawkins, Joshua Bowers, H. I., G. P., or R. A. (

h) You shall not attend at, or be within 150 kilometers of Prince George, British Columbia. This term will commence 72 hours after your release from custody. (

i) You shall not attend at, or be within 25 meters of any place which you know to be the residence, school or workplace of H. I., G. P., or R. A. (

j) 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. (

k) 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 liquor license. (

l) You shall not possess any tools or instruments capable of use for criminal activity except for the purposes of work and then only when immediately engaged in work or travelling to and from work. (

m) 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: (

i) alcohol or drug abuse (ii) a full-time attendance program for alcohol or drug abuse and you shall comply with all the rules and regulations of any such assessment, counselling or program.

(

n) You shall pay restitution in the sum of $5,000.00 to the Clerk of the Court for the benefit of R. A. such restitution to be made by monthly installments of $200.00 each, payable on the 1 st day of each month commencing two months after your release from custody and continuing on the 1 st day of each month until such time as the restitution is paid in full. (

o) You must carry a copy of this Probation Order with you at all times when you are in public. If you are stopped by a Peace Officer for any reason you shall immediately provide the Peace Officer with a copy of this document without being requested to do so. __________________________ M. J. Brecknell Regional Administrative Judge Northern Region Provincial Court of BC