R. v. Malek Date:, 2014 BCPC 155

Citation: R. v. Malek Date: 20140522 2014 BCPC 0155 File No: 38307-2-C Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID THOMAS MALEK ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P.M. DOHERTY Counsel for the Crown: R.L. Ellsay Counsel for the Defendant: E.K. Chesterley Place of Hearing: Courtenay , B.C.

Date of Hearing: May 22, 2014 Date of Judgment: May 22, 2014 [ 1 ] THE COURT: David Thomas Malek is before the court on Indictment 38307-2-C. He is charged: . . . on or about August 22, 2013, at or near Courtenay, in the Province of British Columbia, did rob Corey CHRISTENSEN of money contrary to Section 344(1) (

b) of the Criminal Code . [ 2 ] The defendant pled guilty to the charge and a pre-sentence report was ordered. It reveals that he was born in 1985. It describes his background and his family relationships, education, vocation, employment. The author remarks that Mr. Malek's employment history is substantial and speaks to his strong work ethic as described by himself and his father. It is noted that he has child support to pay and he is behind on his monthly payments. He has a history of alcohol and drug misuse that began when he was approximately 15 years of age.

His drug of choice has always been alcohol, and he has often used marihuana and cocaine. He reported his last use of alcohol and cocaine was approximately eight months ago. [ 3 ] With respect to previous counselling, Mr. Malek reported that in March of 2013, he successfully completed a 30-day residential treatment program at Northern Addictions Centre in Grande Prairie, Alberta. He was required to follow up his 30-day residential treatment program in a phase that was supposed to be five months long.

The follow-up phase consists of the client making weekly telephone contact with a follow-up counsellor to provide ongoing support to clients as they return home and back to work. He made three contacts out of a planned 21. [ 4 ] He has a minor criminal record: a failure to provide a sample in 2004. [ 5 ] It is interesting that when the reporter spoke to Mr. Malek, Mr. Malek stated he would be willing to comply with any condition the Court deems appropriate, although he does not believe one-on-one substance abuse counselling would be a useful intervention.

He did show remorse for the victim, and the author of the pre-sentence report makes some recommendations in relation to any probation order that might follow his incarceration. [ 6 ] Crown, in the course of submissions, says that general and specific deterrence are significant factors to be considered here. Mr.

Ellsay says the Court of Appeal of this province has remarked on occasion and specifically that lone night workers in establishments such as the 7-Eleven are vulnerable and require protection of the Court by way of the imposition of a custodial sentence. [ 7 ] I would add, too, that this is a small community, not like a larger metropolitan centre where a case of this kind might go almost unnoticed. People of a like mind here will sit up and take notice of the sentence that is imposed.

To that extent, the argument of general deterrence has merit. [ 8 ] As to specific deterrence, it may well be needed considering the fact that the accused did not follow up on his rehab program, although there is evidence before the Court that after this charge was laid a few months after his rehabilitation, he had changed his ways and was involved in counselling.

He is working, and he is attending AA and has a sponsor, and there were some supportive letters filed in these proceedings that say that that is, in fact, the case. [ 9 ] I realize there are more than general and specific deterrence principles set out in the Criminal Code , and while rehabilitation is a factor to be highly regarded, it is a principle of sentence that does not necessarily trump other principles. Each case must be viewed on its own merit. [ 10 ] Mr. Malek's chances of rehabilitation seem good. Certainly, with this case hanging over him, he changed his life.

How permanent that will be will be a test that he will have to face afterward. [ 11 ] On the date in question, he needed money for drugs. At 1 a.m. he entered the 7-Eleven here in Courtenay. There was a lone clerk on duty. There were no other customers. This man leapt over the counter and grabbed the clerk and held him while the cash drawer was opened. The clerk thought the accused had a weapon, although I hasten to point out that he did not. Nonetheless, with the physical confrontation, that is robbery with violence, even though the violence was minimal.

That sort of behaviour simply must be deterred, both in a general and specific sense. [ 12 ] I am of the view that a custodial sentence is necessary given the circumstances of the case, although I am not satisfied that the range suggested by Crown is necessary. [ 13 ] Subsequent to his release, he is placed on probation for a year.

He is to report upon his release to a probation officer and thereafter as directed; to reside where directed and not change that address without agreement of the probation officer; to attend for counselling as directed by your probation officer, specifically substance abuse assessment and counselling and the substance abuse management core program; not to consume alcohol; not to possess or use illegal drugs as defined by the Controlled Drugs and Substances Act , except those prescribed to you by a dentist or physician licensed to practise in British Columbia; not to have any contact, direct or indirect, with Corey Christensen; and not to attend the 7-Eleven store at 450 Ryan Road in Courtenay; not to possess any firearms, imitation firearms, ammunition, explosives, or weapons. [ 14 ] There will be a 10-year 109 firearms prohibition, and there will be a DNA order. [ 15 ] Mr.

Malek, you are sentenced to a term of imprisonment of nine months. [ 16 ] The victim impact surcharge is payable forthwith, and you may do any time concurrent with the sentence imposed.

(REASONS CONCLUDED)