R. v. Hooke; Plamondon, 2021 MBPC 34

CITATION: R. v. Hooke; Plamondon, 2021 MBPC 34 IN THE PROVINCIAL COURT OF MANITOBA Brandon Centre BETWEEN: Her Majesty the Queen ) A. Millo and A. Gingera ) for the Crown - and - ) ) Chad Hooke ) A. Claros ) for the Accused Accused ) ) ) Mathieu Plamondon ) T. Walker ) for the Accused Accused ) ) ) Reasons for Decision ) Delivered: August 30, 2021 at ) the City of Brandon, ) in the Province of Manitoba Hewitt-Michta, P.J. INTRODUCTION [ 1 ] The accused were co-conspirators in a scheme that gave rise to the interprovincial transport of stolen restricted firearms for purposes of trafficking. Mr.

Hooke stole the firearms from his stepfather’s home in Brandon and Mr. Plamondon used his connections in the criminal realm to facilitate the sale of those firearms in Edmonton. [ 2 ] Weeks before their joint trial was set to commence, Mr. Hooke entered guilty pleas to theft over $5000.00 and weapons trafficking. There is an agreed statement of fact with respect to Mr. Hooke’s involvement. At the conclusion of his trial, I convicted Mr. Plamondon of conspiracy to commit the indictable offence of weapons trafficking, possession of weapons for purposes of trafficking, and weapons trafficking ( See R. v.

Plamondon, 2021 MBPC 21 ). Mr. Plamondon subsequently pled guilty to disobeying a court order for persistently contacting a crown witness in violation of a no contact order while he was in custody awaiting trial on the substantive charges. [ 3 ] At issue is the appropriate sentence for each offender. The crown pressed for total sentences of six years for Mr. Hooke and 12.5 years for Mr. Plamondon. Counsel for Mr. Hooke urged a sentence of three years concurrent on all charges. Mr.

Plamondon’s lawyer advocated a sentence of three years concurrent on the substantive offences and 30 days consecutive for the breach. [ 4 ] Sentencing is necessarily an individualized assessment. The Court’s fundamental objective is a sentence for each of the accused that is proportionate to the gravity of their offending and degree of responsibility. Principles of restraint, parity, and totality are secondary to proportionality but important considerations in this case as well.

CIRCUMSTANCES OF THE OFFENCES [ 5 ] Mr. Hooke and Mr. Plamondon became acquainted through the illicit drug trade in Brandon. Mr. Hooke had access to firearms. He showed Mr. Plamondon guns and the conspiracy to sell firearms for profit was borne. [ 6 ] Mr. Hooke ultimately stole 18 firearms from locked safes in his stepfather’s home, many of which were semi-automatic restricted handguns. Mr. Plamondon took possession of some of those guns in Brandon. He took photos and communicated offers to sell firearms in Alberta. It is clear from all the evidence presented at trial that Mr.

Plamondon knew he was offering the firearms to criminals for nefarious purposes. [ 7 ] Mr. Hooke conned his stepfather into loaning him a truck, with which he and Mr. Plamondon jointly transported the firearms to Edmonton. They briefly worked together including meeting with potential buyers at a hotel in Edmonton. The relationship soured and Mr. Plamondon double-crossed Mr. Hooke, taking possession of the firearms and selling them to a buyer at the Fantasyland Hotel at West Edmonton Mall to the exclusion of Mr.

Hooke. [ 8 ] A critical mistake – forgetting one of the handguns in a hotel room – sparked the investigation that culminated in their arrest. [ 9 ] While incarcerated pending trial, Mr. Plamondon was subject to a no contact order with his former girlfriend. She was a material witness in the crown’s case against Mr. Plamondon. He repeatedly contacted the witness in violation of that order. He asked her whether she was attending court. He told her not to attend court. He said his lawyer would “ cut [her] up bad ”. He asked if the crown had spoken to her. He got a friend to call her.

She received a text message directing her not to trust the crown attorney and not to attend court. Investigation identified 147 calls to the witness between March 23 and November 6, 2020 totalling 27.5 hours. GRAVITY OF THE OFFENCES [ 10 ] I state the obvious when I say these offences are serious. The penalties available and prescribed by the Criminal Code speak to Parliament’s view of the solemnity of firearms offences. Jurisprudence from courts across the country confirms the gravity of gun-related crimes. [ 11 ] Firearms are fundamentally dangerous.

The 18 guns stolen and trafficked in this case were primarily semi-automatic restricted handguns capable of lethal force and selected specifically because of their appeal in the criminal realm. The accused intended or would have reasonably foreseen that the firearms would end up in the hands of unsavoury characters for illicit purposes. Most of the firearms remain unrecovered. The quasi-obstructive nature of Mr. Plamondon’s breach offence compounds the gravity of that matter as well. VICTIM IMPACT [ 12 ] Grant Hooke suffered a loss in terms of his gun collection.

Whatever the specific financial implications, he obviously invested time and money amassing a collection in which he and his daughter took pride. Chad Hooke’s breach of his stepfather’s trust no doubt intensifies the emotional impact of the violation. [ 13 ] There is secondary victimization occasioned by the accused’s actions. One of the stolen handguns sold in Alberta surfaced months later in Prince Albert, Saskatchewan. A complainant reported someone pointed the firearm at the head of another person.

Police found it loaded and unsecured in a residence along with young children and evidence of illicit drug use. [ 14 ] Mr. Hooke and Mr. Plamondon released lethal weapons into disreputable hands and most are unrecovered. I am not sentencing the accused based on speculative predictions about how someone might use those guns, but their actions contribute to societal fear about illicit firearm possession and gun violence.

AGGRAVATING FACTORS APPLICABLE TO BOTH ACCUSED [ 15 ] Some of the aggravating and mitigating factors in this case are specific to one accused and I will deal with those factors in the context of the individual circumstances of each offender.

Several aggravating factors apply to both accused. • The dangerous nature of the particular firearms. • The scale of this operation, specifically the quantity of firearms and the interprovincial transport for the purpose of trafficking. • Neither accused held a valid firearms license. • Greed motivation – they intended to sell the firearms for profit. • Premeditation – they conspired, planned, and prepared, including careful selection of dangerous firearms that would appeal to a criminal market. • Knowledge or reasonable foreseeability the firearms would end up in the criminal realm. • Some of the firearms were loaded and two were discharged, one by Mr.

Plamondon in a video promoting its sale and one by Mr. Hooke, accidentally in an occupied residence. • Fifteen firearms are unrecovered and pose an ongoing potential risk to public safety.

CIRCUMSTANCES OF THE OFFENDERS Chad Hooke Personal Circumstances [ 16 ] Mr. Hooke is almost 38-years-old. His parents divorced when he was young. His mother re-married. Mr. Hooke reports his stepfather, the victim of the theft offence, was an abusive alcoholic prompting the dissolution of the blended family. Mr. Hooke’s mother was his primary caregiver and remains supportive. He currently enjoys a positive relationship with his biological father and is interested in some day relocating to join him in New Brunswick, where he hopes to pursue a fresh start. [ 17 ] Mr. Hooke played sports at an elevated level.

He has good employment history. He completed post-secondary education receiving a Firefighter-Paramedic diploma from the Manitoba Emergency Services College and had employment in that field for two years. [ 18 ] Mr. Hooke began using marijuana as a teenager accelerating to cocaine use in his twenties. Recreational drug use escalated to addiction a year prior to these offences. His partner and the mother of their two children similarly struggled with drug abuse. [ 19 ] The Pre-Sentence Report indicates Mr.

Hooke acknowledges the serious nature of these offences; describes his motivation as supporting his drug addiction; denies any sophisticated pre-planning; and styles both his common-law partner and the co-accused as negative influences. [ 20 ] Manitoba Corrections assesses Mr. Hooke as high risk to reoffend. The assessment is a predictive tool and his actual risk may be higher or lower. Aggravating Factors Specific to Mr. Hooke [ 21 ] There are some aggravating factors specific to Mr.

Hooke’s involvement. • The theft of firearms involved a breach of his stepfather’s trust. • He stored dangerous firearms in a residence he shared with his partner and their young children. Mitigating Factors [ 22 ] There are several mitigating factors. • His criminal record is limited and unrelated. • He entered guilty pleas weeks before trial (i.e. not early) as part of a plea bargain with the crown. • He articulated remorse during Pre-Sentence Report preparation and in court. • He completed an addictions assessment and some counselling in the community and participated in several programs while in custody.

Gladue Considerations [ 23 ] Mr. Hooke identifies as M é tis. He is proud of his heritage. His mother facilitated some cultural exposure during his formative years and he demonstrated some interest in learning about and participating in M é tis culture. There is no familial involvement with residential schools. Mathieu Plamondon Personal Circumstances [ 24 ] The defence commissioned a private Gladue Report completed by an independent author / researcher who interviewed Mr. Plamondon. That report does not include a risk assessment. [ 25 ] Mr. Plamondon is 34-years-old.

His parents divorced when he was nine years of age. He describes his biological father as an abusive alcoholic. Mr. Plamondon witnessed and experienced serious domestic violence and describes pulling his father off his mother at a young age to protect her. He reports sexual abuse by a family friend over several years. His mother re-married. Mr. Plamondon was an adult when that marriage dissolved. Mr. Plamondon bounced between several family members throughout his childhood. [ 26 ] Mr.

Plamondon has limited education, which seems to result from transience and negative experiences including some related to his ancestry, such as bullying and a feeling of never fitting in. He did not finish high school. [ 27 ] Addiction is a long-standing issue for Mr. Plamondon. As a teenager, he reports escalating quickly from beer to crystal methamphetamine. He attended treatment for the first time at age 15. He completed other treatment programs both in and out of custody.

His mother reports he suffered a head injury in a car accident at age 16 and did not heed cautions against exacerbating the injury by consuming alcohol or drugs. Mr. Plamondon self-reports diagnoses of epilepsy and Post Traumatic Stress Disorder. [ 28 ] Mr. Plamondon is single. He may be a father to one child but paternity is unconfirmed and he is not involved. The defence filed several letters of support for Mr. Plamondon indicating there are some family and community supports available to Mr. Plamondon should he choose to avail himself of them once released from custody.

Aggravating Factors Specific to Mr. Plamondon [ 29 ] There are several aggravating factors unique to Mr. Plamondon. • He has an extensive and related criminal record. • He was subject to a court-ordered firearms prohibition at the relevant time. • He was on statutory release at the time of his involvement. Mitigating Factors [ 30 ] It is challenging to identify mitigating factors for Mr. Plamondon. He did make some admissions that spared court time during his trial. He acknowledged some responsibility and voiced some remorse when he spoke at his sentencing hearing.

He participated in some programming while in remand custody. Gladue Considerations [ 31 ] Mr. Plamondon identifies as Red River Cree M é tis. His father attended a Catholic boarding school where he experienced abuse that Mr. Plamondon believes traumatized his father, contributing to his alcoholism and abusive tendencies. Mr. Plamondon in turn experienced violence, dislocation, neglect, and trauma in his family of origin. He witnessed alcohol abuse during his formative years and turned to substance abuse early in life to cope with his own distress.

While he bears responsibility for many poor decisions along the way, it is easy to recognize a nexus between his background and his criminal involvement. PRINCIPLES OF SENTENCING [ 32 ] Denunciation, deterrence, and public safety are the paramount considerations in cases involving dangerous firearms ( see R. v. Nur , 2015 SCC 15 ). The sentences imposed on Mr. Hooke and Mr. Plamondon should reflect the seriousness of their criminal actions and communicate society’s condemnation.

The Court works to protect the public by separating dangerous individuals from society and by demonstrating to the accused, and others, that those who engage in the trafficking of illicit and dangerous firearms risk harsh consequences. [ 33 ] Rehabilitation is a secondary but relevant consideration, particularly applicable to Mr. Hooke who is essentially a first offender. SENTENCING CASELAW [ 34 ] The crown referred me to several sentencing cases. Each bears a similarity of sorts with the case at bar and each is distinguishable in many respects. I considered the cases.

I will summarize them but see no value in exhaustively analyzing them. They support the crown’s argument that penitentiary sentences of eight to 10 years are within an accepted range even for relatively youthful first offenders who plead guilty. [ 35 ] In R. v. Cater 2012 NSPC 38 , the Court convicted the accused after trial and sentenced him to eight years for unauthorized possession and trafficking of four firearms to criminal associates for illicit purposes when he was 18. The accused had a limited and unrelated criminal record. [ 36 ] In R. v.

Abdullahi 2021 ONCA 82 , the Ontario Court of Appeal endorsed a 10-year sentence for a 25-year-old first offender convicted after trial of criminal organization offences, unauthorized possession, and conspiracy to transfer firearms involving 10 to 15 firearms, many of which remained unrecovered at the time of sentencing. [ 37 ] In R. v. Winchester , 2014 ONSC 2591 , a 23-year-old accused with no prior criminal record pleaded guilty to firearms offences related to possessing, conspiring to transfer, transferring, and possessing for purposes of transferring. He received a sentence of eight years.

Winchester used his firearms license to purchase 43 handguns at the direction of a co-conspirator who sold the firearms as part of a commercial trafficking enterprise. In R. v. Marakah , 2015 ONSC 1576 , Winchester’s 24-year-old co-conspirator who was convicted after trial and had a limited unrelated youth record, received a sentence of nine years for his instrumental role in the distribution chain of the enterprise. [ 38 ] The crown filed two unreported oral decisions from the Manitoba Provincial Court. In R. v.

Finlayson (May 16, 2011), LeMaistre, ACPJ (as she then was) endorsed a jointly recommended sentence of eight years for the 41-year-old accused with a limited criminal record who entered guilty pleas to trafficking firearms on three occasions. He admitted responsibility upon his arrest and everyone accepted his motivation related to his own drug use. He stole 16 guns from his employer of which only seven were recovered and two were used in shooting incidents. [ 39 ] In R. v.

Seniuk (March 2, 2021), Sholdice, J imposed a sentence of eight years after the accused entered guilty pleas to break, enter and steal firearms as well as possession of firearms for purposes of transferring. The accused was 19-years-old at the time of the offences and had no criminal record though he was on bail for a pending theft charge. The case involved 37 firearms all of which were restricted handguns and assault rifles, seven of which were later located at seven different crime scenes. The rest of the firearms were unrecovered at the time of sentencing.

Moral Culpability [ 40 ] Sentencing necessarily centers on the moral culpability of the offenders, which in this case is substantial.

[ 41 ] Chad Hooke and Mathieu Plamondon each played a key role. Without Mr. Hooke, there were no firearms and without Mr. Plamondon there were no connections through which to sell the firearms. [ 42 ] The accused conspired which is to say they schemed and planned and prepared. They were not always brilliant or successful in their execution and their operation lacked sophistication at times but in other respects, they were organized and devious. Mr. Hooke pilfered the guns avoiding detection by his stepfather. He transferred some handguns to Mr. Plamondon thereby facilitating Mr. Plamondon’s marketing efforts. Mr.

Hooke secured the vehicle used to transport the firearms between provinces. Mr. Plamondon reached out to his criminal associates in Alberta. He sent text messages, photographs, and videos essentially advertising the firearms. He used coded language. He participated in the transport of the firearms and coordinated meetings with prospective buyers in Alberta.

When his primary buyer fell through, he pivoted and identified alternatives. [ 43 ] Both offenders exercised significant control over the guns and both participated in their transport from Manitoba to Alberta. [ 44 ] The activity related to the enterprise, particularly the preparation prior to travelling to Edmonton, took place over several weeks so there was time and opportunity to reconsider.

They persisted. [ 45 ] While their own drug use likely motivated their involvement in this scheme, it is apparent greed and the expectation they would make a generous profit incentivised their actions. [ 46 ] Exacerbating Mr. Plamondon’s moral blameworthiness is his particular knowledge of the type of people he was offering the firearms to; that he double-crossed Mr. Hooke taking the firearms and trafficking them on his own; as well as his efforts after the fact to frustrate the prosecution of these charges by repeatedly contacting a material witness in violation of a no contact order.

It is clear from the cell phone extraction evidence that Mr. Plamondon appreciated the illicit nature of his actions and that the foray into firearms trafficking was supplementary to his entrenchment in the drug subculture. [ 47 ] Mr. Plamondon’s Gladue considerations do serve to diminish his moral culpability, but it remains high. PARITY [ 48 ] The parity principle is concerned with consistency and fairness. Similar offences committed by like offenders in comparable circumstances should generally garner analogous sentences.

Parity does not supersede individualization in sentencing but it is an important consideration in this case because the crown recommended disparate sentences for Mr. Hooke and Mr. Plamondon. [ 49 ] Several factors distinguish Mr. Hooke from Mr. Plamondon and justify some disparity in sentence. • Mr. Hooke is effectively a first offender, while Mr. Plamondon has a lengthy criminal record evidencing a long standing commitment to a criminal lifestyle and diminished prospects for rehabilitation. • Mr. Hooke has the mitigation of pleading guilty. • The crown’s sentence recommendation for Mr.

Hooke is driven by exigencies in the crown’s case that did not exist in the case against Mr. Plamondon. • Mr. Plamondon was on parole at the time of the offences. • Mr. Plamondon severed the relationship with Mr. Hooke in Edmonton and trafficked the firearms alone compounding his degree of responsibility. SENTENCES [ 50 ] Weighing all of these considerations, I am persuaded that a total sentence of six years is appropriate for Mr. Hooke and that a total sentence of 10.5 years is appropriate for Mr. Plamondon.

Chad Hooke [ 51 ] But for the crown’s recommendation arising from the plea bargain driven by exigencies in its case against Mr. Hooke, I would have imposed a total sentence of eight years. In my view, a total sentence of six years is low considering the pressing need for a denunciatory and deterrent sentence proportionate to the gravity of the offending. The three-year sentence recommended by defence counsel is far too low to achieve the important sentencing objectives at play in this case.

When experienced counsel more knowledgeable about the intricacies of the evidence and realities of the case arrive at a reasonable plea arrangement, the Court should strive to respect it even where, as here, it is not a joint recommendation. A six-year sentence gives maximum credit for the guilty plea even though it came close in time to the trial date. Given the minimal prior record and Mr.

Hooke’s articulated remorse, I have some confidence there are realistic prospects for his rehabilitation. [ 52 ] While this is a case where consecutive sentences could reasonably be considered, I am imposing concurrent sentences of six years on the weapons trafficking charge and four years on the theft over $5000.00 charge. Concurrent sentences of that duration better reflect the gravity of the offences than reduced consecutive sentences. Counsel agree Mr.

Hooke is entitled to credit for his pre-trial custody, which amounts to 427 days enhanced at 1.5 to 641 days credit. [ 53 ] Additionally, I make the following ancillary orders. • A lifetime

section 109 CCC prohibition order. • A DNA order – sample to be obtained in custody.

• Order of Forfeiture of all offence related items. • Waiver of costs and surcharge. Mathieu Plamondon [ 54 ] But for Mr. Plamondon’s Gladue factors as well as parity considerations, I would have imposed a final sentence much closer to the 12.5 years recommended by the crown based on the gravity of the offences and his extensive prior criminal record. Having heard all of the evidence presented at his trial and having reviewed all of the materials filed in this matter, I believe Mr. Plamondon poses a very serious ongoing risk to public safety.

Protection of the public demands a lengthy penitentiary sentence, as do considerations of proportionality, deterrence and denunciation. [ 55 ] Mr. Plamondon’s story is tragic. Things happened before he was ever born and throughout his formative years that are not fair and were not his fault. Those events contribute, along with his own poor decisions, to where he finds himself today. There is no reasonable alternative to a lengthy term of incarceration but a meaningful reduction in the length of incarceration is appropriate to acknowledge the Gladue considerations.

While some disparity in sentencing is justified, a sentence for Mr. Plamondon twice as long as that for Mr. Hooke would be too disparate. [ 56 ] Because of the close nexus between the charges, concurrent sentences are reasonable on the firearms related offences with a consecutive sentence on the discrete breach offence. I am imposing a sentence of 10 years concurrent on the conspiracy and trafficking charges and a concurrent sentence of six years on the possession charge.

I would have imposed a one-year consecutive sentence for the breach, given its gravity, but I reduce that sentence to one of six months bearing in mind totality. The total sentence is 10.5 years. [ 57 ] Mr. Plamondon is entitled to enhanced credit for his pre-trial custody. While his behaviour was not exemplary, he has been in custody throughout the Covid-19 pandemic including spending time at Brandon Correctional Center during an outbreak. His pre-trial custody amounts to 727 days enhanced at 1.5 to 1,091 days credit. [ 58 ] Additionally, I make the following ancillary orders. • A lifetime

section 109 CCC prohibition order. • A DNA order – sample to be obtained in custody. • An order of forfeiture with respect to all offence-related items. • An order prohibiting contact or communication with Nicole Harkness pursuant to

section 743.2(1) CCC. • Waiver of costs and surcharge. “original signed by Judge Hewitt-Michta” Judge S. Hewitt-Michta