R. v. Browne Date:, 2011 BCPC 393

Citation: R. v. Browne Date: 20111102 2011 BCPC 0393 File Nos: 188034-1; 185354-2-C; 181188-1; 18118-4-A; 188404-1-K; 187425-1; 188966-1-T Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GATER ALBERT BROWNE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K.W. BALL Counsel for the Crown: M. Wray Counsel for the Defendant: J. Currie Place of Hearing: Surrey , B.C. Date of Hearing: October 3, 2011 Date of Judgment: November 2, 2011 [ 1 ] THE COURT : These are oral reasons for sentence in the case of R. v.

Browne. [ 2 ] On October the 3rd, 2011, Albert Gater Browne made elections for Provincial Court proceedings where necessary, and then entered guilty pleas on seven separate Informations, all under the Criminal Code as follows: Information 185354, a guilty plea to Count 3, possession of a stolen vehicle with a value in excess of $5,000 contrary to s. 355(a); and Information 181188, guilty pleas to Count 1 on August 11th, 2009 theft of a motor vehicle contrary to s. 334 and Count 3, an allegation of possession of break and enter instruments; and Information 188966-1-T, a guilty plea on Count 1, obstruction of a peace officer on June the 17th, 2010 contrary to s. 129(a); Information 188404, a guilty plea on Count 2, assault of Leanne From between the 12th and 17th days of April 2011 contrary to s. 266; Information 187425, guilty pleas to Count 1, dangerous driving on April 22nd, 2011 contrary to s. 249(1)(

a) and Count 3, leaving the scene of an accident for the purpose of escaping civil or criminal liability contrary to s. 252(1)(b); and Information 188034, guilty pleas to possession of a stolen motor vehicle on May 5th, 2011 with a value in excess of $5,000, to dangerous driving of that vehicle contrary to s. 249(1)(a), to possession of a loaded prohibited or restricted handgun without being the holder of an authorization, licence or registration certificate contrary to s. 95(1) and to possession of methamphetamine contrary to s. 4(1) of the Controlled Drugs and Substances Act ; and Information 181188-4-A, a guilty plea to a breach of curfew on February 24th, 2011.

[ 3 ] Mr. Browne faces a significant cumulative federal sentence and the issue to be decided in this case is the length of that sentence. The conviction under s. 95 of the Criminal Code calls for a three-year minimum sentence for a first offence. THE CIRCUMSTANCES OF THE OFFENCES : [ 4 ] With respect to Information 185354, the police were already surveilling another individual at a residence when they observed Mr. Browne arrive at that residence driving a stolen vehicle referred to in that Information.

The vehicle, a Ford F-350 pickup truck had been reported stolen earlier on the day when the accused was stopped by police. Inside the truck there was extensive and visible ignition column damage with an unrelated key jammed into the vehicle ignition. [ 5 ] With respect to Information 181188, police were called at 3:20 in the morning by a neighbour who was observing Mr. Browne using a hacksaw to cut an anti-theft device from the steering wheel of a motor vehicle.

Both the door locks and the ignition were damaged by Browne and he was identified by his fingerprints left inside the vehicle. [ 6 ] With respect to Information 188404, the victim Leanne From and Mr. Browne had been in an intimate relationship. On August 17th, 2011 she had reported an assault that day and an assault from April the 12th, 2011 which together involved choking and punching in her face and arms. As a result of these assaults Ms. From sustained bruises and other marks on her face, neck and body. [ 7 ] With respect to Information 187425, on April 22nd, 2011 police were actively searching for Mr.

Browne for the purpose of executing a warrant for his arrest. Initially, a surveillance team from the Gang Task Force Firearms team located the accused and began to follow the vehicle he was driving. Coincidentally, a uniformed police officer in an unmarked police vehicle noticed Mr. Browne and Mr. Browne noticed the officer at the same time. The officer activated the emergency lights and siren on his vehicle and Mr. Browne sped away, driving in a dangerous manner, passing through a left-turn bay and driving in excess of 80 kilometres an hour in a posted 50- kilometre-an-hour zone.

The officer concluded that the high-speed chase was a danger to public safety and stopped the pursuit and called for the assistance of the “Air 1" helicopter. [ 8 ] A few minutes later another police officer observed Mr. Browne driving through red lights and stop signs without stopping, turning from inappropriate lanes, passing over double solid highway lines, all in such a manner that other vehicles on the road were forced to stop to avoid collisions with the vehicle then driven by Mr. Browne. Eventually the vehicle driven by Mr. Browne collided with a vehicle driven by Mr.

Winfield and occupied by three other passengers. Mr. Browne did not stop after the collision but continued to drive and left the scene of the accident at a high rate of speed. Fortunately, neither Mr. Winfield nor his passengers suffered a serious injury. [ 9 ] With respect to Informations 188034 and 181811-4-A, on May the 5th, 2011 at approximately 1:21 a.m. the attention of a police officer driving south on King George Boulevard in Surrey was drawn to an Audi motor vehicle then driven by Mr.

Browne, which turned south in front of the police vehicle without yielding the right of way, causing the officer to brake suddenly to avoid a collision. The police officer queried the licence plate on the vehicle and was advised by dispatch that the plate had been previously terminated as stolen. The officer then initiated a pursuit with emergency lights and siren, which pursuit reached speeds of 120 kilometres an hour on 64th Avenue. That is twice the posted speed limit. [ 10 ] Eventually, Mr. Browne ended up on 72nd Avenue and there police deployed spike belts to slow or stop the vehicle driven by Mr. Browne.

The spike belts were successful in deflating the two driver's side tires on the vehicle driven by Browne. Mr. Browne drove his vehicle into a cul-de-sac the entry of which was then blocked by a police vehicle. Notwithstanding two deflated tires, Mr. Browne drove around a fence, through a shallow ditch, across the lawn of the backyard of a home in the cul-de-sac in an effort to escape. When he attempted to drive the Audi around the home, the Audi collided with the corner of the home and the Audi became trapped between the home and a fence. [ 11 ] Mr.

Browne then tried to run from the scene but was physically arrested by police officers. A Louis Vuitton "man purse" was located on the ground beside the vehicle, which purse was apparently discarded by the accused. The purse contained a Ruger SR9 mm. pistol which was fully loaded, with a round in the chamber ready to be fired. The purse also contained a BlackBerry and Palm cell phone. The photos stored on those devices showed Mr. Browne holding the Ruger pistol and the purse. On further investigation it was determined that the Ruger pistol was previously stolen from a residence in Delta.

A quantity of methamphetamine was also found in the possession of Mr. Browne. All of the foregoing events in relation to these Informations occurred when Mr. Browne was outside his residence after 1:00 a.m., a clear breach of the curfew to which he was then subject. [ 12 ] Finally, with respect to Information 188966-1, on June 17th, 2010 an Abbotsford police officer located Mr Browne in a fast food restaurant and attempted to arrest him on a then outstanding warrant. Mr. Browne fled from the officer in a vehicle, driving at a high rate of speed. CIRCUMSTANCES OF THE OFFENDER : [ 13 ] Mr.

Browne has a significant criminal record which began in [year] with a mischief charge. There are seven convictions for theft-related offences or possession of stolen property, including possession of stolen motor vehicles, two convictions for assault and a conviction for assault causing bodily harm. He also has convictions for flight from a peace officer, escaping lawful custody and two additional convictions for dangerous driving, as well as an additional obstruction charge. The last sentence imposed on him was in 2006, which was a federal sentence of 32 months.

There was no mandatory minimum sentence included in that latter sentence. [ 14 ] Mr. Browne is 32 years old. He is the father of four children, aged 13, 11, ten and two-and-a-half years. He has had visits from the youngest child about once a week while he has been in custody. The 11-year-old lives in Enderby and he has seen her irregularly. He has a ten-year-old daughter from a different relationship whom he has not seen since he was arrested. Mr. Browne is said to be close to his parents. He is working on the completion of a GED and a life skills program.

He had been employed in the past for four years building concrete foundations for residential and commercial construction. That was followed by a three-year stint as a tattoo artist working in Langley, British Columbia.

[15] The explanation offered for a number of the offences which make up Mr. Browne's criminal record is that he was engaged as amember of a criminal gang for a period of seven years. In May of 2010 he fell in love with a woman who required that he leave the ganglifestyle as a condition leading to marriage, and he tried to do so. He was then a target of a shooting attempt on his life. He was shot, butsurvived.

His fiancée, however, was killed in that shooting incident. [16] His reaction to the shooting incident, the death of his fiancée and the ongoing warnings by police that his life was in dangercaused him to be very unsettled and he began to use drugs, particularly methamphetamine, on a daily basis as a coping mechanism. Some of the offences for which he is now charged were committed during a period of heavy drug use. While in custody he has takensome culinary training and hopes to continue preparation for a career as a chef. It is submitted he is genuinely remorseful.

He hopes tospend his future free of gang affiliations and drugs while contributing to the lives of his children. POSITIONS OF COUNSEL ON SENTENCE: Crown's Sentencing Position: [17] Crown counsel reviewed the potential sentences available for guilty pleas, noting the pleas themselves, which were early in thiscase, were a mitigating factor in sentencing. It was submitted, however, that the mandatory minimum three-year sentence required by s.95 of the Criminal Code should not be considered as a basic sentence but rather applicable only to the "best" offender. The decision ofthe Supreme Court of Canada in R. v.

Morrisey 2000 SCC 39 at paragraph 75 is instructive, where in a concurring judgment MadamJustice Arbour wrote: To the extent possible, mandatory minimum sentences must be read consistently with the general principles of sentencing expressed, inparticular, in ss. 718, 718.1 and 718.2 of the Criminal Code. [citing W (L.M.) supra at paragraph 22] By fixing a minimum sentence,particularly when the minimum is still just a fraction of the maximum penalty applicable to the offence, Parliament has not repudiatedcompletely the principle of proportionality and the requirement, expressed in s. 718.2(b), that a sentence should be similar to sentencesimposed on similar offenders for similar offences committed in similar circumstances.

Therefore in my view, the mandatory minimumsentences for firearms-related offences must act as an inflationary floor, setting a new minimum punishment applicable to the so-called“best” offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentence imposedon all but the very worst offender who has committed the offence in the very worst circumstances.

The latter approach would not onlydefeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencingdesigned to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions. [18] The mandatory minimum sentence must be considered the beginning point or floor for a sentence involving possession of thefirearm. The accused is not a "best" offender in my judgment, because the unregistered Ruger was illegally obtained by the accused andcarried into a public location fully loaded.

This is clearly an aggravating factor. Possession and use of firearms for illegal activities inSurrey, British Columbia is a significant ongoing problem for the security, safety of the public. The Ruger in the hands of Mr. Brownewas a deadly threat to all persons in that community, including police officers who were attempting to arrest him when the Ruger wasfound.

When found, the Ruger was ready to fire. [19] Crown counsel submitted that taking all of the offences before the court into account, that a range of four to six years was withinthe range of a fit and proper cumulative sentence for the offences to which the accused has pled guilty. Defence Sentencing Position: [20] Ms.

Currie, for the defence, submitted that a sentence of less than four years with credit for approximately five months spent incustody was satisfactory. [21] I have considered the submissions of counsel, the circumstances of the offences and the offender, as well as the principles ofsentencing out in ss. 718, 718.1, 718.2, and in particular s. 718.2(

e) of the Criminal Code.

I am also mindful of the passage from R. v.M. (C.A.), (SCC), [1996] 1 S.C.R. 500 at 566 where the former Chief Justice Lamer wrote: The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencingagainst the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needsand current conditions of and in the community. [22] In the case before me, denunciation, deterrence both general and specific, as well as protection of the public must be theparamount sentencing considerations.

Mr. Browne has begun to address rehabilitation, but the path to successful rehabilitation willoccupy some considerable time in the future. [23] Taking all the aforesaid into account, balancing the aggravating and mitigating factors as well as the submissions of counsel, thecumulative sentence shall be four years and six months.

The sentence shall be comprised of a sentence of four years and six months onInformation 188034, Count 1, three years, Count 6, four years and six months concurrent with Count 1, Count 7, three months concurrentwith Counts 1 and 6. [24] All of the subsequent sentences are concurrent with the sentence for Information 188034 as follows: Information 185354 Count3, two years; Information 187425 Count 1 two years, Count 3 two years; Information 181188-4-A, Count 1 60 days; Information 188404five months; Information 181188, Count 1 two years, Count 3 six months; and Information 188966-1, Count 1 three months. [25] There will be an order pursuant to s. 487.051 for the taking of bodily substances reasonably required for the purposes of DNAanalysis as several of the offences in this case are secondary designated offences. [26] There will also be an order under s. 109(2) of the Criminal Code banning Mr.

Browne from possessing any firearm or otheritems mentioned in that subsection for a period that ends ten years after the release of Mr. Browne from prison. Pursuant to s. 109(2)(b)Mr. Browne is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, prohibited

ammunition for life. There will also be an order under s. 259 that Mr. Browne is prohibited from driving for a period of five years following the end of the sentence of imprisonment. In relation to Information 188034 Count 6, I order the forfeiture of the firearm. [ 27 ] Given the length of time that Mr. Browne has been in custody until today and the time he will spend in custody in the future, the victim fine surcharge is waived. [ 28 ] Ms. Currie, I wanted to address very quickly the amount of time that your client has been in custody. I had it at five months; is that still correct? [ 29 ] MS.

CURRIE: I believe so. Mr. Browne, does that sound accurate to you? [ 30 ] THE ACCUSED: I've been in since May 3rd. [ 31 ] MS. CURRIE: I believe when we did the calculations at the last appearance we were at five months. Perhaps my friend can assist as to exactly when we did the submissions. [ 32 ] MS. WRAY: From May the 5th, so as of October the 3rd he had five months, as of tomorrow -- [ 33 ] THE COURT: He will have credit then for the five months on a one-to-one basis. [PROCEEDINGS] [ 34 ] THE COURT: There was one of the counts, Mr. Browne, that simply got left out when I was reading the reasons.

It related to Information 188034; it was Count 2. That will simply be a one-year concurrent sentence on Count 2. It doesn't change anything. (REASONS FOR SENTENCE CONCLUDED)