R. v. M.Q. Date:, 2011 BCPC 394

Citation: R. v. M.Q. Date: 20110914 2011 BCPC 0394 File Nos: 6067-2-C; 5150-1-T; 5151-1-T Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M.Q. EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: R. Edwards Counsel for the Defendant: D. Walsoff Place of Hearing: North Vancouver , B.C. Date of Judgment: September 14, 2011 [ 1 ] THE COURT: M.Q. is before the court having pleaded guilty on three different Informations. The first Information arises October 14th, 2010, and alleges robbery of a jewellery store in a local mall.

The second offence involves driving while prohibited. That offence arises March 11, 2011, in Burnaby. The third offence arises April 20th in Burnaby and it alleges that he stole from a Mr. D. while armed with an offensive weapon being an imitation black semiautomatic handgun. [ 2 ] The circumstances of the first offence are that on October 14 at the Capilano Mall at about 10:25 in the morning, M.Q., along with an older male who is unknown and alleged to be the mastermind and three other youthful adults, participated in a robbery of the jewellery store.

One remained in a getaway car while the other four entered the mall. [ 3 ] They entered the store and leapt over the jewellery cases. Two female staff, who were present and are the complainants in the Information, retreated to the back of the store. They were not menaced or touched in any way. Only the older unknown male had his lower face covered. [ 4 ] Two of the men were carrying what were believed to be large screwdrivers which they used to break open the backs of the jewellery cases. M.Q. and another male followed them scooping up what jewellery they could and placing it in bags.

One of the perpetrators was apprehended as he left the store. Another was chased into a nearby store where he brandished but did not discharge

pepper spray. That male then ran out of the mall following the other two, got into the getaway car, and left the scene. [ 5 ] $62,300 in merchandise was recovered from a bag at the scene. However, over $200,000 in jewellery was never recovered. The circumstances also indicate that M.Q. was involved in planning that robbery for at least a couple of days ahead, engaging in texting with the other perpetrators. [ 6 ] With respect to the driving while prohibited, M.Q. was reporting to his probation officer on March 11th. He does not possess a driver's licence at all.

In any event, he attended to report to his probation officer and was observed by the police driving to that appointment. [ 7 ] On April 20th, while he was on bail for the first robbery, the police began investigating a series of cellphone store robberies. They had information about a suspect vehicle and some descriptions. On April 20th, the police spotted the suspect vehicle with five male occupants. [ 8 ] There are a number of photographs showing the activities of these perpetrators over the course of the day.

They met up at the Royal City Centre in New Westminster where they went to a dollar store and bought gloves, bags, and bandanas. Those items were found in the car in which two of the accused were arrested. [ 9 ] They are then surveilled to Canadian Tire where they were observed buying pepper spray. They attempted to buy a pellet gun, but there was only a display model. They then went to the Coquitlam Canadian Tire store where they bought the pellet gun. They were then surveilled to a lane behind a strip mall. [ 10 ] There was a Telus cellphone store in the mall.

M.Q. left the vehicle and went and looked around in the front of the shop. He was observed to be on his cellphone. He then left the store and went back to the car. Two males remained in the car. M.Q. moved to a spot across the street to watch the store. He was seen to still be on his cellphone. [ 11 ] Two men then left the car, went into the store wearing black jackets with their hoods up and bandanas pulled up over their faces. They entered the store. They put the gun to the clerk's head and neck, demanded to get the iPhones they had in stock. They took the clerk into a storage room where he was locked in.

M.Q. and the others were arrested outside of the store. $13,000 in iPhones were recovered and $285 in cash. [ 12 ] The licence plate of the vehicle being used was obscured by a piece of paper and M.Q.'s fingerprints were found on that piece of paper. [ 13 ] The victim from the first jewellery store robbery provided a victim impact statement. She talks about how she was hoping to have a good day at her store and instead ended up terrified. She had a great deal of difficulty getting over the event and was very nervous and upset for a considerable period of time. [ 14 ] Mr.

D., the victim of the cellphone robbery, talks about how he has had the occasional bad dream and the occasional bad memory and he says that the moment will never fully go away. He said he will always be slightly on edge, that he has been to a level of fear no one should bear and he will always remember having a gun held to his neck.

He then says: I think that it would be difficult for people who commit crimes like this to really care about how it affects others, but maybe knowing that this one event has changed me as a person will help you in the future. [ 15 ] The position of the Crown in this matter is that M.Q. should receive a sentence of incarceration of 18 months less time served which should be followed by probation including an intensive supervision and support order for 18 months with the ISSP for the first 12 months.

Counsel for M.Q. urges the court to impose a deferred custody and supervision order followed by probation including an ISSP. [ 16 ] The accused to my understanding, and I may stand to be corrected at the end, has been in custody now since May 11th which is just short of four months. [ 17 ] As to the circumstances of these offences, they each involve a high degree of criminality. In particular, each involved planning and deliberation. Weapons were brandished and used in the first robbery and, in the second, a pellet pistol, which appears to be an actual firearm, was brandished and held against the victim's neck.

With respect to the second robbery, M.Q. was clearly fully involved in the planning and preparation of that offence. It appears that he had a directing hand in the events as they unfolded at the store. [ 18 ] It goes without saying that it is a significant aggravating factor that this was committed while he was on bail for a robbery that itself was very serious.

His bail was an undertaking which provided that he was to report, reside where directed, not possess any weapons, carry a copy of his undertaking, abide by a curfew, attend school, "Not to be in the company or associate with persons whom you know to be involved in criminal activities," or in possession or under the influence of controlled drugs or substances; to attend for treatment and counselling and obey the terms of an intensive support and supervision order. [ 19 ] It is clear that M.Q. was not complying with many of those terms.

The drive-while-prohibited was a brazen and flagrant disregard for his suspension and lack of license. His activities, as will be seen from the presentence report and other information, demonstrate an ongoing disregard for his bail order and the fact that he does not possess a valid licence. One of the documents reflects that over the last two years, he has received 15 violation tickets. [ 20 ] The mitigating factors are that M.Q. is 17 years old. He is youthful. He has no prior criminal history. He has entered guilty pleas on all these matters. He has stated his remorse and accepted responsibility.

He has expressed a desire to change his ways. However, I have concerns that his behaviour demonstrates something to the contrary and that he remains enamoured of the criminal gang lifestyle, and that those attitudes are now entrenched. [ 21 ] A pre-sentence report was ordered for the first robbery and an update was ordered for the sentencing on the second. M.Q. was

born in Afghanistan. His mother died at birth. His biological father is unknown. His mother, N.Q. was a nurse in the hospital where he was born and adopted him. She eventually immigrated to Canada leaving him there when he was approximately 18 months to three years old. He was then brought to Canada. [ 22 ] In the presentence report, it indicates that as a child, he was diagnosed with attention deficit disorder and that the family had problems getting him to follow the rules of the home. In January of 2011, when he was on bail, the family had to confront him about sneaking out past his curfew.

He informed them at that time that he was going out to be with his girlfriend. [ 23 ] His schooling has always been a challenge for him. He was enrolled in the Storefront Alternative Program, but lost his placement due to lack of attendance. I gather he is working on grades 10 and 11. He reports that he does not consume alcohol nor does he use drugs. [ 24 ] With respect to his response to Corrections, the youth worker indicated that his reporting was inconsistent and he required redirection. He is noted to have been in violation of his curfew.

On September 17th, 2010, he was stopped at two o'clock in the morning by the police. He, of course, was unable to produce a driver's licence and gave a false name to the police. [ 25 ] When Ms. Soare, his youth worker, confronted him with that information, he denied it. When the police went to arrest him for the curfew violation, he was not at home. They came back after ten o'clock and they then had to come back even later to arrest him. On February 7th, 2011, a teacher at the school witnessed him driving to school.

And, we have the police observing him driving to his reporting appointment. [ 26 ] In the updated portion of the presentence report, the only significant change is that M.Q.'s girlfriend is apparently pregnant with his child. [ 27 ] At the evaluation and recommendations at page 3 of the update, Ms. Soare, the youth worker, says as follows: If the court were to impose a period of custody, it is recommended that the court impose closed custody. While in closed custody, M.Q. would be assigned a care team and he can begin to work on addressing his negative behaviour.

If it appears that M.Q. has made the appropriate progress, he can make an application to the court requesting open custody. If he were to be sentenced to open custody today, he would have access to the community and this does not appear to be appropriate at this time. [ 28 ] There were also s. 34 reports ordered and prepared, the first being a psychosocial history. This history indicates that there have been problems with M.Q.'s behaviour since he came to Canada as a young boy.

He has had difficulties with learning and has a learning disability which has been apparent throughout his elementary and into his high school years. [ 29 ] His family, and in particular his mother and older sister, were interviewed. At page 7, his mother reported as follows: M.Q. asked N.Q. for a cellphone last year and she got him a phone and put the contract in her name. M.Q. racked up some very big bills and when he was confronted by N.Q., initially would not say anything or respond to her.

This upset N.Q. and the confrontation escalated into an altercation whereby her nose was broken by M.Q. and the police were called. N.Q. did not want charges laid, just wanted to scare M.Q. M.Q. did apologize and informed the police that he felt really bad about what he had done. [ 30 ] I note that at the time that this incident occurred, M.Q. was living a lavish lifestyle supported by the proceeds of crime: According to his sister, the Q. family has been very supportive with M.Q., but they appear unable to stand up to him.

They have accommodated M.Q. and allowed him to participate in many anti-Muslim practices such as smoking, drinking, getting a tattoo, and having sex, but they drew the line with M.Q. getting his ears pierced. According to N. [phonetic], the girlfriend is 24 years old and is pregnant. N. states that M.Q. lied about his age stating he was much older than he is. [ 31 ] At page 8, his mother stated that in the past, M.Q. was just looking to have his family get him out of custody, but now he is trying to prepare the family for his possible longer term of incarceration and being accountable for his past actions.

That last passage indicates some insight on behalf of M.Q. with respect to the current predicament he finds himself in. [ 32 ] The psychiatric report indicates that M.Q. was forthright about how he became involved in a criminal lifestyle and he provided details about the kind of lifestyle he was living over the year or so leading up to the robberies. He talks about driving luxury cars, having money, and being attractive to females.

It evidences a gradual indoctrination by others already involved in criminal activity from about the age of 14 on. [ 33 ] M.Q. expressed to the doctor how sorry he was he had disappointed his mother, how he saw his lifestyle as a fake one, and that he was tired of being paranoid and wanted to make some changes. In

summary, M.Q. is saying all of the right things and, according to the doctor, appears sincerely motivated to change. [ 34 ] The doctor said that in conversation with M.Q., he appeared to be of average intelligence. However, testing reflects that he is either low average or borderline in his cognitive and intellectual abilities and is moderately depressed. [ 35 ] At page 8 of the report, it indicates that although he was told many times not to do so, he was engaging in antisocial and criminal talks with male peers in the Youth Forensic Psychiatric Facility.

The doctor described him as demonstrating continuing criminal preoccupations. [ 36 ] At page 9 of 10, Dr. Riar states as follows, and this is a quote: In the issue of future risks of engaging into similar activities, it is somewhat difficult to answer with his renewed insight. I believe that he should be given the benefit of the doubt at this moment where he wants and claims to do better by not engaging into similar activities as in the past. In failing so, he should be dealt with harshly to give him a message that his behaviours cannot be tolerated any more.

Looking at his history and his continued criminal preoccupation while his stay on the unit, it does not predict a better outcome and he islikely to return to the similar lifestyle, but as mentioned earlier, he is very much motivated to better in life and time will tell if he is ableto turn himself around. [37] Defence counsel relied on the decision of R. v. J.R.L. from the Nova Scotia Court of Appeal, 2007 NSCA 62, and in particular, apassage at paragraph 48 where the court addresses the fact that the new Youth Criminal Justice Act is aimed at reducing the unacceptablyhigh level of youth incarceration that occurred under the Young Offenders Act. [38] It notes that the

preamble to the new legislation states clearly that the youth justice system should reserve its most seriousinterventions for the most serious crimes and thereby reduce its over-reliance on incarceration. [39] The case goes on to indicate, and this is quoting from the introduction by the Minister of Justice in the Legislature: The new youth justice legislation recognizes that non-custodial sentences can often provide more meaningful consequences and be moreeffective in rehabilitating young persons. [40] I also take into account that, of course, it is clear that general deterrence is not a principle which is given any weight in youthcriminal justice sentencing proceedings. [41] The Crown relies on a number of authorities, the first being R. v.

P.W., a decision of my sister Judge Rae, 2001 BCPC 134, 2001 BCPC 0134, where she determined the range for robberies committed by young persons to be anywhere between ninemonths and three years. In that matter, 15 months was imposed for robbery. [42] The Crown also relied on R. v. B.(S.E.), a decision of our Court of Appeal reported at (BC CA), 47 B.C.A.C.299; The Queen v.

S.S. and A.R., a decision of the Ontario Court of Appeal from February 2008 reported at 2008 ONCA 140; and R. v.O.(J.), a decision of the Ontario Court of Justice from 2009 reported at 2009 ONCJ 224. [43] In my view, a custodial sentence is appropriate in this matter for both offences. I have considered the principles set out in ss. 38and 39 of the Youth Criminal Justice Act in this regard. Both are violent offences. I have considered all the alternatives to custody raisedwhich might be reasonable in the circumstances.

I find there is no reasonable alternative or combination of alternatives available at thistime to M.Q. other than incarceration followed by probation. [44] I also find that M.Q. is not likely to comply with court orders if he were to be released directly into the community. It is clearthat his family, which is where he would live, are unable to direct or control his behaviour. No alternative placements were put beforethe court. [45] I am taking into account M.Q.'s limited cognitive abilities. It is obvious that he is easily influenced by people in the communitywho put him to work committing their crimes.

It is clear because of his entrenched attitudes that specific deterrence must be addressedand that meaningful consequences must be imposed that will promote his rehabilitation and reintegration into society. [46] I am hopeful that my sentence will strike an appropriate balance, as Dr. Riar said, "in giving him the benefit of the doubt" withwhat has been identified as his high risk to reoffend and entrenched antisocial beliefs and conduct and associates. [47] I have taken into account that M.Q. turns 18 in six weeks time. I have considered that the sentence I impose must be aproportionate one, and I hope it is.

These are two very serious and violent robberies. The accused's degree of responsibility in each issignificant and, in particular, with respect to the second in time. [48] The sentence I am imposing I consider to be the least restrictive and most likely to rehabilitate this youth in his circumstances andto promote a sense of responsibility. I have taken into account that he entered early guilty pleas to each of these matters. I accept that hetakes responsibility for his offences and is remorseful for them.

I have also had to give consideration to the totality of the sentence in hiscircumstances. [49] M.Q., if you will stand. [50] With respect to the robbery at the Capilano jewellery store, I am imposing a sentence of time served of four months and you willbe then placed on probation for a period of three years. [51] With respect to the second offence, and that is the robbery of the cellphone store, I am imposing a custody and supervisionorder.

The custody portion will be for eight months and that will be in closed custody followed by four months of supervision in thecommunity. [52] So you are ordered to serve eight months in custody to be followed by four months to be served under supervision in thecommunity subject to conditions.

If you breach any of the conditions while you are under supervision in the community, you may bebrought back into custody and required to serve the rest of the second period in custody, as well. [53] You should also be aware that under other provisions of the Youth Criminal Justice Act, the court could require you to serve thesecond period in custody, as well.

The periods in custody and under supervision in the community may be changed if you are or becomesubject to another sentence. [54] That custody and supervision order will be followed by an ISSP order for a period of one year and, by my calculations, thatshould then be followed by probation for a period of four months. [55] THE CLERK: The ISP is four months, Your Honour? [56] THE COURT: No, no, the ISSP is for one year, probation for four months to follow.

[ 57 ] So the probation orders and ISSP orders are concurrent. [ 58 ] Now, I am going to ask counsel just to make sure that my calculations were correct there. So on the first one, it is just probation with time served. On the second, eight months in custody, four months supervision, that is 12 -- oh, I guess then it should be probation -- ISSP for one year and probation for one year to total three. [ 59 ] MR. WALSOFF: Right. [ 60 ] THE COURT: Okay. [ 61 ] MR. EDWARDS: Yes. [ 62 ] THE COURT: Okay, that is where I -- I thought that that was wrong. Okay. [ 63 ] Now, in terms of the terms for the probation.

You will keep the peace and be of good behaviour. [ 64 ] Sorry, these terms will also be on the ISSP. [ 65 ] Appear before the court when required to do so by the court. [ 66 ] You are to report within 72 hours of your release from custody to the Youth Court worker at 301, 224 West Esplanade in North Vancouver, British Columbia, and thereafter as and when directed by the Youth Court worker. [ 67 ] You are to reside as directed by the Youth Court worker and obey all of the rules and regulations of that residence.

You are not to change your residence without the prior permission of the Youth Court worker. [ 68 ] You will attend school or such other vocational or educational day program as directed by your youth worker. [ 69 ] You are not to be outside your residence between the hours of 10:00 p.m. to 6:00 a.m. daily and you must remain in your residence during those hours except with the written permission of your youth worker. Such permission must be carried on your person and presented upon request of a peace officer. [ 70 ] You are to participate in and cooperate with the curfew monitoring program.

You are to present yourself at your front door upon the request of any peace officer or staff of the curfew monitoring program in order to ensure you are compliant with your curfew. [ 71 ] You are not to possess any knives except while preparing or consuming food. [ 72 ] You are not to possess any weapons as defined by the Criminal Code of Canada. [ 73 ] You are not to possess any bear spray, pepper spray, mace, or other forms of oleoresin capsicum spray. [ 74 ] You are not to possess latex gloves or any kind of mask, bandanas, scarves, or other type of face covering. [ 75 ] Are you seeking that term, Mr.

Edwards? [ 76 ] MR. EDWARDS: No. [ 77 ] THE COURT: We will not include that one. [DISCUSSION RE NO-CONTACT LIST] [ 78 ] MR. EDWARDS: If Your Honour wishes to revise the list in regards to the first robbery, it should be just J.B., M.S., A.A., D.F., S.E., and J.H., and all those other people I do not think are necessary – [ 79 ] THE COURT: Okay. [ 80 ] MR. EDWARDS: -- because there is no way he would even know who they are – [ 81 ] THE COURT: All right. [ 82 ] MR. EDWARDS: -- if he ran across them. [ 83 ] THE COURT: All right. So the personal contact will involve just the names that Mr.

Edwards has stated. [ 84 ] MR. EDWARDS: And I will spell them and get the spellings to my – [ 85 ] THE COURT: Right, and then – [ 86 ] MR. EDWARDS: -- to the clerk. [ 87 ] THE COURT: -- I am going to include – [ 88 ] MR. EDWARDS: B.G., V.K., N.N., T.Y. or R.D.

[ 89 ] THE COURT: Okay. [ 90 ] MR. EDWARDS: Is that right? [ 91 ] THE COURT: Yes. [ 92 ] Then, again, you are not to attend to any known place of residence, place of employment, or school of -- and that will -- that term will apply to all of the no-contacts of the no-contact term. I am not going to state those all again.

All right. [ 93 ] You are not to be found on the premises of Capilano Mall in North Vancouver, British Columbia. [ 94 ] You are not to be found within a one-block radius of Pacific Coastline Telus Store at 204B, 3430 Brighton Avenue in Burnaby, British Columbia. [ 95 ] You will attend as directed by your Youth Court worker for psychiatric and/or psychological counselling. [ 96 ] You are to carry a copy of your court orders on your person at all times and you are to produce it upon demand of a peace officer. [ 97 ] You are to carry picture identification in the name of M.Q. on your person at all times and you are to produce it upon demand of a peace officer. [ 98 ] You are not to be found in any private motor vehicle for any purpose whatsoever except in the presence of the registered owner or with the written permission of the registered owner. [ 99 ] You are not to operate a motor vehicle. [ 100 ] You must not have in your possession any cellphones or BlackBerries. [ 101 ] While you are in the community, you are not to have in your possession any electronic mobile communication device including but not limited to iPads or any other portable computer that could be used for communication either by an email account or Skype. [ 102 ] The firearms prohibition, what length of time pursuant – [ 103 ] MR.

EDWARDS:

Section – [ 104 ] THE COURT: -- to s. 51(1)? I think it is at least two. [ 105 ] MR. EDWARDS: On the day it was made, "not earlier than two years after the young person has completed the custodial portion of the sentence." So two years after the 12-month, I guess, custodial sentence. [ 106 ] THE COURT: All right. So it will be for that period of time. [ 107 ] You did not have any submissions on the DNA, Mr. Walsoff? [ 108 ] MR. WALSOFF: No. [ 109 ] THE COURT: All right. [ 110 ] MR. EDWARDS: It is primary designated, I believe. [ 111 ] THE COURT: All right.

So, M.Q., you will be required to provide a sample of your DNA. [ 112 ] And that applies on a primary basis, Crown, to both robbery convictions? All right. [ 113 ] MR. EDWARDS: Just one question. I do not know if Your Honour was giving him any extra credit for what appears to be approximately 126 days that he already served that you attributed to the first robbery? Was that just on a straight one-for-one or – [ 114 ] THE COURT: It is on a straight one-for-one – [ 115 ] MR.

EDWARDS: Okay. [ 116 ] THE COURT: -- but I have taken into account that a four-month sentence for that first robbery is on the low end – [ 117 ] MR. EDWARDS: Yes, okay. [ 118 ] THE COURT: -- but that is why I have just given him the straight four months. [ 119 ] MR. EDWARDS: And then – [ 120 ] THE COURT: That takes into account the fact that he got no remission and it was not the one-third/two-third custodial – [ 121 ] MR. EDWARDS: Thank you, and so the probation order conditions – [ 122 ] THE COURT: Are the same as the ISSP.

[ 123 ] MR. EDWARDS: So all the – [ 124 ] THE COURT: Right. [ 125 ] MR. EDWARDS: -- that Madam Registrar does not have any problem, and then I will do the spellings for her and leave them for her before I leave court. [ 126 ] THE COURT: Mr. Walsoff. [ 127 ] MR. WALSOFF: The drive-while-prohibited? [DISCUSSION RE SENTENCE ON INFORMATION 5067-C-2] [ 128 ] THE COURT: Well, I will just do one day. [REASONS FOR SENTENCE CONCLUDED]