R. v. M.S.S., 2011 BCPC 185

Citation: R. v. M.S.S., J.B. and A.S.A. Date: 20110323 2011 BCPC 0185 File No: 55762-2-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M.S.S. J.B. A.S.A. ORAL REASONS FOR SENTENCE (Re: MS.S. and J.B.) OF THE HONOURABLE JUDGE J. C. CHALLENGER Counsel for the Crown: R. Edwards Counsel for M.S.S.: J. Buchanan Counsel for J.B.: A. Rogers Place of Hearing: North Vancouver , B.C. Date of Judgment: March 23, 2011 [ 1 ] THE COURT: These are my reasons on sentence in the matter of M.S.S. and J.B. [ 2 ] These two offenders pleaded guilty to one count of robbery.

The offence occurred at Peoples Jewellers in the Capilano Mall on October 14th, 2010. These two offenders, in the company of a youth and an unidentified adult known only as J., entered the store at approximately 10:25 a.m. Mr. A., the co-accused, was the getaway driver. [ 3 ] All the males who entered the store were in dark clothes except for Mr. S., who had a lighter-coloured garment on his upper body. They were all wearing hoodies with caps. The male J. had a bandanna or surgical mask over his face. [ 4 ] Mr.

B. and J. used what are believed to be large screwdrivers to smash the backs of the display cases while Mr. S. and the youth followed behind, gathering diamond jewellery items and watches and placing them in bags. There were two staff members present who were able to push the panic button and who then retreated to the back of the store. They were not touched or threatened in any way. [ 5 ] Two men working near the outside of the store called Security. An attempt was made to apprehend the four males as they left the store. [ 6 ] Mr. S. was apprehended and held for police.

A can of pepper spray was found in the bag of jewellery and watches he was carrying. Mr. S. says, and the Crown does not contest, that he did not know the weapon was in the bag, and the bag had been given to him by J. $62,300 worth of jewellery was recovered from the bag Mr. S. was carrying. [ 7 ] Mr. B. was followed into a nearby store. He threatened the civilians who followed him with the pepper spray, which caused them to back off. He then fled the mall, discharging the pepper spray as he did so. [ 8 ] All of the perpetrators left the mall through a rear exit and got into the waiting car being driven by Mr.

A. $202,000 worth of goods were not recovered, and repairs to the cases cost $2,800.

[ 9 ] The mall houses a daycare and a play centre, and at the time of the offence seven babies and toddlers were passing by the jewellery store and had to seek refuge in a nearby store. All were affected by the pepper spray. [ 10 ] Mr. S. was interviewed by police after his apprehension and eventually confessed and named his co-perpetrators. He knew J., who is believed to be the instigator, only by his first name. Mr. S.'s assigned role was to keep watch, but in the heat of the moment followed the others over the counters. He says he became involved through Mr.

A. and had known about the plan for approximately a week. [ 11 ] Mr. B. was arrested the next day on October 15th and has been in custody since. He was granted bail, but was unable to perfect it. [ 12 ] Mr. S. has no criminal history. Mr. B. has a conviction as a youth entered September 7th, 2010, for an assault which occurred October 22nd, 2009. That offence involved him punching another youth twice in the face on the SkyTrain. He received a nine-month probationary term, and so was newly on probation at the time of this offence. [ 13 ] A Pre-Sentence Report was ordered for each of these offenders. For Mr.

B. a psychological report was also ordered. [ 14 ] The victim impact is set out in the Pre-Sentence Reports as follows. One complainant reported that she was in a state of shock after the robbery and had to consult her physician and take a few days off work. She reported that upon her return she was unable to perform her duties because of continued trauma. Consequently, she quit her job shortly thereafter. She advises she does not wish to submit a formal Crown victim impact statement.

She does however support the imposition of protective conditions. [ 15 ] The other complainant recalled that although she was traumatized by the robbery, she felt the only solution to conquering her fear was to return to work immediately. She has not sought assistance in response to the emotional distress, adding she does not want to dwell on the incident in spite of recurring feelings of anxiety. She too is in favour of protective conditions. This complainant submitted a victim impact statement to the court which outlines how fearful she and the other complainant were at the time of the robbery. [ 16 ] Mr.

S.'s antecedents and personal circumstances are as follows. He is currently 21. He was born in Afghanistan, but he and his family were displaced by war in 1992. They were able to live in Pakistan and then immigrate to Canada in 2003. [ 17 ] Mr. S. lost a brother to illness, apparently a treatable illness, while in Pakistan, and later lost his mother to cancer shortly before they immigrated. His father suffered a stroke after arriving in Canada and also suffers from a blood disorder which requires transfusions. I am told Mr. S. contributes significantly to the care of his father.

He has three brothers, one of whom is married, and other extended family in the area, and enjoys their ongoing pro-social support. [ 18 ] A book of letters from his family and friends attest to his otherwise good character. These letters also speak about the challenges he has faced throughout his life, including some significant injuries sustained in recent years. [ 19 ] Mr. S. graduated from high school in 2008 but did not achieve his Dogwood certificate until June 2009.

He had planned on becoming an automobile mechanic, but suffered a serious injury to his arm and hand in 2007 which necessitated a long period of recovery. He is now enrolled in an auto body repair course which commences in May of 2011. He has had some part-time work in his earlier years in high school, but has not worked since the time of the injury to his hand and arm. However, he recently found employment at a food store. He also suffered from herniated discs from April to July of 2010.

He is otherwise in good health and has no substance abuse issues. [ 20 ] In the Pre-sentence Report under "Assessment" and then "Attitude and Receptiveness to Proposed Interventions", it says as follows: The subject states he now recognizes that his choice of peers directly influenced his behaviour. Burnaby Community Corrections bail supervisor Chris Wiebe advises that the subject has reported reliably, and to his knowledge has complied with all the terms of his bail order. Mr. S. accepts responsibility for his actions and accepts any sanctions imposed by the court including abiding by a curfew.

He cited concern that he will miss an opportunity to attend college should he receive a jail sentence. Mr. S. explains that a hand injury in 2007 prevented him from going to school, working and participating in sports, which led to considerable unstructured time. He started frequenting a nearby mall, where he encountered the co-accused that he knew from the mosque. He was introduced to the other two co-accused and began spending time with them against the advice of his family. The subject says he participated in the offence reluctantly after making several attempts to extricate himself from the planned robbery.

He advises the act was not for financial gain; rather, he gave in to peer pressure rather than lose face with his associates. He says he will likely regret his actions for the rest of his life, adding he dwells on his stupidity "every night before he goes to sleep". He recognizes that his offending negatively impacted the victims and says he is fortunate nobody, including himself, was hurt. Further, he acknowledges the disappointment, shame and worry he has caused his family. He says he is now more prudent about who he associates with. [ 21 ] Mr.

B. reports that he was recruited through the youth who is a co-perpetrator. He said he had met J., the adult ringleader, on only two occasions. He also reported that it was J. who provided all of the other perpetrators the screwdrivers, pepper spray and bags. It is to Mr. B.'s credit that he did not discharge any pepper spray into the face of any civilians. Nevertheless, he certainly used that weapon to effect his escape. [ 22 ] Mr. B. reported that he wanted money so he would not have to ask his mother, who is very hardworking and supports his siblings as well, for any money.

He says he wants to obtain his Grade 12 education, and there are various reports that he is either interested in carpentry, or going into real estate, or pursuing some kind of post-secondary education. He acknowledges that he is to some extent depressed.

[ 23 ] There were a number of letters of support filed on his behalf by family and friends, attesting to his otherwise good character and his remorse. [ 24 ] The Pre-Sentence Report reflects that Mr. B. is 18. He was raised by his mother after his father was deported when he was three. His father was deported for being involved in criminal behaviour and Mr. B. has had no contact with him since. He has two siblings who also still live at home with him. His counsel advised that he had been abused by his father before his father left Canada. However, there is no suggestion of this from Mr.

B. in the Pre-Sentence Report or psychological report. [ 25 ] His upbringing was otherwise unremarkable. He attended regular school until Grade 10, when he was transferred to an alternate school due to truancy. He has now been expelled as a result of his incarceration. [ 26 ] Mr. B. has never been employed. He has no health or substance abuse issues. [ 27 ] The Pre-Sentence Report reflects problematic reporting and non-compliant behaviour while on bail for the 2009 assault. It also reflects that while in custody he has demonstrated a pattern of immature and non-compliant behaviour.

According to the psychological report he said, "The guards have no respect for us, so I have no respect for them." [ 28 ] His attitude and understanding is also set out in the Pre-Sentence Report. It states as follows: Mr. B. informs having much time to think about his offence. He states that he realizes the impact of his action on his victims and identifies that they were likely traumatized. He states that he is remorseful for his actions. It should be noted, however, that Mr. B. required a few prompts to identify how the victims may have been impacted. Mr.

B. was also able to reflect on his family and how his actions have impacted them. He feels that he let his entire family down and ruined his family's reputation. Mr. B. states that he failed to realize the impact that his actions would have, focusing only on monetary gains. He states that he is confident he has learned his lesson. [ 29 ] According to submissions of his counsel, he expressed remorse and concern for the victims in his statement to the police given after his arrest. [ 30 ] The psychological report indicates as follows, on page 3: According to Mr.

B. he was "pressured into" his involvement in the robbery by two "older guys", one of whom was in his early twenties and the other in his forties. He acknowledged that he "grabbed some watches" in the jewellery store, and that as he was running away he discharged some Mace. He then handed the watches over to the older ringleader, who he has not heard from since. He explained that he was "fucked over" by the older individual, and that he is now being "made an example of" by the court.

He initially indicated that "nobody was hurt" but when asked further about this he acknowledged that the event might have been frightening for the victims, and that he "feels shitty about it". [ 31 ] It was explained that he made those comments to the psychologist because the ringleader was not caught and will not be prosecuted. [ 32 ] Under "Summary and Recommendations" it says as follows: Mr. B. appears to have had little structure and support during his childhood, and notably absent was a strong male role model.

As a result he appears to have gravitated towards antisocial peers who have offered him a place of belonging. Thus it appears that he has developed rather strong, oppositional, angry and antisocial attitudes that place him at risk for further crime. He has now been convicted of two violent offences, and he appeared to minimize the seriousness of both during our interview. He did not appear to have significant empathy regarding the victims of either offence. His willingness to discharge Mace during the index offence is further evidence of possible empathy deficits.

It appears that his response to correctional intervention thus far has not been good. He missed several probation appointments while being supervised in the community, was on probation during the index offence. Further, it appears that he has been defiant towards correctional staff during his current incarceration. Mr. B. appears to be rather immature and impressionable, with poorly-formed plans for the future. This places him at risk to be easily influenced by others with nefarious intentions. It appears that he has low self-esteem and will continue to associate with those who make him feel accepted.

He has virtually no employment history and no known source of legal income. It is unclear to me how Mr. B. plans to support himself in the future. Having outlined the major risk factors in this case, it is important to note that I detected considerable potential in Mr. B. He impressed as an intelligent and somewhat insightful young man who could improve upon his circumstances. Although I don't think his plans for future education have been thought out in any detail, I see no reason why he could not achieve his stated educational and vocational goals should he apply himself. Further, it appears possible that Mr.

B. might benefit from supportive counselling to address his low esteem and other symptoms of depression and anxiety. Those working with him should make every effort to provide strong guidance, structure and support. He must be diverted away from his current peer network towards more pro-social activities. That being said, his oppositional attitudes and immaturity will likely mean that change will occur slowly, so those working with Mr. B. should be prepared for relapses and further unreliable behaviour. Overall, I believe that he presents a moderate risk for violence and crime in the short term.

However, if he should follow through with his plans to return to school I would be more optimistic about his long-term prognosis. [ 33 ] The Crown's position with respect to Mr. S. is that a sentence of eight months to two years less a day and two to three years

probation is appropriate. Defence asks the court to consider a lengthy suspended sentence. [34] With respect to Mr. B., the Crown says a longer sentence is required to reflect the fact of his previous conviction and that he wason probation at the time of this offence. Defence asks the court to consider a sentence of 10 to 12 months with credit at 1.5 for the fourmonths he has served to date in custody. [35] The principles of sentence are set out in s. 718, 718.1 and 718.2 of the Criminal Code. One of the principles I must keep clearlyin mind is that these are both youthful adult offenders. For Mr.

S., this is the first time he has been before the court. For Mr. B., it is hisfirst adult conviction, and of course he has only one conviction as a youth. Therefore, I must give significant weight to the prospects fortheir rehabilitation. [36] The nature of the offence is one which brings it within the category of offences defined by s. 752 of the Code, making it a seriouspersonal injury offence. As a result, a conditional sentence is no longer available according to s. 742.1 of the Criminal Code for theoffence of robbery. The offence of robbery carries a maximum life sentence.

It is one of the most serious offences in our CriminalCode. [37] In this robbery there was no gratuitous physical violence or threats to the victims. Nevertheless, the robbery was planned anddeliberate. Each of the offenders willingly participated in this very serious offence. Mr. S. had second thoughts on the morning of theoffence. He had the opportunity to decline, but instead he chose to go along. The sole motivation for Mr. B. is admittedly greed, and forMr. S. it is difficult to accept that he would not have expected to profit to some degree.

It was a significant loss to the business of over$200,000 in merchandise. That would have been much higher but for the bravery of some civilians who acted to apprehend Mr. S. [38] There was significant risk to members of the public who were frequenting a busy commercial mall. As has been illustrated, anumber of infants and small children were affected by Mr. B.'s discharge of the pepper spray, and all in the mall must have been terrifiedat the prospect of what might occur. [39] The aggravating factors with respect to Mr.

B. are, of course, that he was very recently placed on probation at the time of thisoffence, and was in violation of a specific term of that probation not to possess any weapons. He also brandished and used the pepperspray to effect his escape. [40] With respect to mitigating factors, each entered early guilty pleas and should receive credit for that. Both are youthful; both areimmature. [41] For Mr. S., there are clear and very positive prospects for his rehabilitation. The Pre-Sentence Report prepared is a positive one.

I accept that he feels sincere remorse for his behaviour and clearly understands the seriousness of his offending behaviour. In my viewthere is little need for specific deterrence for Mr. S. I also note that much to his own detriment, he identified the other perpetrators inthis matter when he was interviewed by police. [42] With respect to Mr. B., his prospects for rehabilitation are less clear but still present. He appears to lack sincere remorse andunderstanding of the gravity of the offence. In my view some significant weight must be accorded to specific deterrence with respect toMr.

B., given the attitude he has displayed in custody and the findings in the psychological report and the Pre-Sentence Report. [43] All counsel referred to a number of different cases in their submissions before me. Crown referred first to R. v. B.E.P., a decisionof our Court of Appeal from [1999] reported at 1999 BCCA 278 , 125 B.C.A.C. 310. Madam Justice Ryan writing for the courtsaid at paragraph 10: We have been given a number of cases where robbery with violence has been committed by young men such as Mr. B.

An analysis ofthe range produced by these cases is that the sentencing range is somewhere between 2 and 9 years. The age of the offender, hisprevious criminal experience, the level of violence, the number of offences, the level of premeditation, whether the perpetrator wasdisguised or not, the type of weapon used and how it was used, the possibility of rehabilitation, the requirement of deterrence in aparticular community, are some of the factors which serve to distinguish one fact pattern from another. [44] In that case Mr. B. was 30 years of age.

He wore a mask and carried a pellet gun and robbed two gas stations late at night. In thesecond he grabbed a customer and put her head to the counter, put his gun to her head, and threatened to kill her if the clerk did notrespond to his demands for money. He had a minor record for two offences of false pretence. Mr. B. received an eight-year sentence. [45] The Crown relied most heavily on the case of R. v. Ferguson and Whitefish, reported 2009 BCPC 73 , [2009] B.C.J.448. That is a decision of my sister Judge Baird Ellan. That matter also involved robbery of a jewellery store in North Vancouver.

Thetwo accused were two of six perpetrators. Approximately $33,000 in goods were received as a result of their inability to obtain access tothe jewellery cases. [46] Mr. Ferguson was 18 and was cooperative when arrested. He implicated the other perpetrators. He had nine convictions as ayouth. However, all of those were dealt with on one occasion. He demonstrated poor performance on probation and was noted to beinvolved with criminally-active members of his community. [47] Mr. Whitefish was 20. At the time of the robbery he had one outstanding charge which had not yet been dealt with.

Both ofthose youths were Aboriginal. Both were pressured to some degree to participate in the matter. My sister Judge Baird Ellan considered anumber of cases. At paragraph 30 she cited R. v. L.J.Z., [2004] B.C.C.A. 445, and said as follows: . . . the Court viewed planning, the use of secondary getaway cars, bringing of weapons, and assigning of roles as aggravating factors. The case involved several robberies including one in which the accused used a hammer to rob a jewellery store.

The Court notes theeffect on passers by in the mall, and emphasizes protection of the public, denunciation and deterrence because jewellery stores areattractive targets.

[48] At paragraph 46 she said as follows: The fact is they each participated with a large group of other people in an organized, violent, alarming, dangerous and serious criminaloffence, punishable by a maximum sentence of life imprisonment. They may have been at the lower level in terms of the planning of theoffence, but the sentences suggested by the Crown are at the very low end of the range, for this kind of offence, in my view.

I am also particularly concerned about general deterrence to others who find themselves in similar situations, from being enticed orpressured to engage in serious offences of this kind, for whatever reason. Although others had more involvement in organizing theoffence, and perhaps held some sway over these offenders, these defendants are being sentenced with all those mitigating features inmind. The need for general denunciation and deterrence overrides the need for rehabilitation in this case. [49] Mr. Ferguson received a 14-month term of incarceration and Mr. Whitefish, a 10-month term of incarceration.

Each had a two-year probation order to follow their jail terms. [50] The Crown also relied on R. v. Colville, a decision of my brother Judge Smith, reported [2006] B.C.P.C. 580. In that matter ayoung male addict robbed a gas station brandishing a knife and received a sentence of 18 months. [51] Mr. S.'s counsel relied on Ferguson and Whitefish. He also cited R. v. Koop, a decision of our Court of Appeal, [2008] B.C.C.A.140. In that matter a two-year less a day term of institutional incarceration was replaced by a two-year less a day conditional sentence.

Itinvolved two brothers who robbed a gas station and a convenience store on the same evening. The younger was 20, the older 24. Neither had a record. They made threats that they had guns, but in fact only possessed pepper spray. [52] Mr. Buchanan also relied on R. v. Priest, reported at (ON CA), [1996] O.J. 3369, a decision of the OntarioCourt of Appeal. In that matter a 19-year-old and another broke into a convenience store and stole $2,700 worth of goods. The offenderthere had no criminal record. The trial judge imposed a one-year sentence. That sentence was set aside on appeal.

In paragraphs 17through 24, the court sets out the principles respecting youthful first offenders: 17. The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offencesand offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspendedsentence and probation or a very short term of imprisonment followed by a term of probation. In R. v. Stein (1974), (ON CA), 15 C.C.C. (2d) 376 (Ont.

C.A.) at page 377, Martin J.A. made it clear that in the case of a first of-fender, the court shouldexplore all other dispositions before imposing a custodial sentence: It is the view of the Court that the sentence imposed upon the appellant does reflect an error in principle. In our view, before imposing acustodial sentence upon a first offender the sentencing Court should explore the other dispositions which are open to him and onlyimpose a custodial sentence where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate.

Inour view, this offence does not fall within the category of offences where a custodial sentence is the only appropriate sentence to beimposed upon a first offender, nor are there other circumstances which require the imposition of a custodial sentence. [Emphasis added]. 18. As the Stein case shows, it has been an important principle of sentencing in this province that the sentence should constitute theminimum necessary intervention that is adequate in the particular circumstances.

This principle implies that trial judges considercommunity-based dispositions first and impose more serious forms of punishment only when necessary. These principles have now beencodified in the recently proclaimed sections 718 and 718.2 of the Criminal Code.

Section 718(

c) instructs that separation of offendersfrom society is an appropriate objective of sentencing "where necessary".

Section 718.2(

d) directs that an offender should not bedeprived of liberty "if less restrictive sanctions may be appropriate in the circumstances". 19. The principle embodied in now s. 718.2(

e) was of particular significance in this case. It provides that "all available sanctions otherthan imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to thecircumstances of aboriginal offenders". Although these sections had not been proclaimed when the appellant appeared before JudgeCloutier, the provisions to a large extent codify existing practice and principles in this province, especially in relation to first offenders.See R. v. Salituro (1990), (ON CA), 56 C.C.C. (3d) 350 (Ont. C.A.) at page 373 per Galligan J.A. 20.

The duty to explore other dispositions for a first offender before imposing a custodial sentence is not an empty formalism whichcan be avoided merely by invoking the objective of general deterrence. It should be clear from the record of the proceedings, preferablyin the trial judge's reasons, why the circumstances of this particular case require that this first offender must receive a sentence ofimprisonment. The trial judge had no material before him from which he could possibly have made this determination.

His reasons arebarren of any lawful justification for such a radical departure from this well-established principle especially in the case of a youthful firstoffender. 21. With the increase, in 1985, in the age limit to which the Young Offenders Act applies, the range to which the term "youthfuloffender" can properly be invoked in the ordinary courts is somewhat more narrow. However, the term "youthful offender" refers notsimply to chronological age and must include some consideration of the offender's maturity.

This again highlights the need to obtaineither a presentence report or other clear statement of the offender's background to ensure that the appropriate sentencing principles arebrought to bear. The trial judge had no information concerning the offender's maturity, character, behaviour or any other information toassist in properly characterizing his level of maturity, save for his chronological age. Nevertheless, the fact that the appellant was only 19years of age was sufficient, in the absence of any other evidence, to conclude that this appellant was a youthful offender.

See R. v.Osbourne (1994), (ON CA), 94 C.C.C. (3d) 435 (Ont. C.A.). 22. The rule laid down by this court is that ordinarily for youthful offenders, as for first offenders, the objectives of individualdeterrence and rehabilitation are paramount. See R. v. Demeter and Whitmore (1976) (ON CA), 32 C.C.C. (2d) 379(Ont. C.A.). These objectives can be realized in the case of a youthful offender committing a nonviolent offence only if the trial judgegives proper consideration to alternatives to incarceration. First Sentence of Imprisonment

23. Even if a custodial sentence was appropriate in this case, it is a well-established principle of sentencing laid down by this courtthat a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather thansolely for the purpose of general deterrence. In R. v. Vandale and Maciejewski (1974), (ON CA), 21 C.C.C. (2d) 250(Ont. C.A.) the Court had to consider the appropriate sentence for two youths who, like this appellant, were 19 years of age and hadcommitted break and enter.

Unlike this appellant, the accused in Vandale and Maciejewski had committed several offences whichresulted in substantial property loss. There, as here, the trial judge stressed general deterrence. This court reduced the sentences of fiveand six months for the two accused to sentences of 30 days jail and two years probation. Martin J.A. adopted the following statement ofprinciple from R. v. Curran (1973), 57 Cr. App.

R. 945 per MacKenna J. at pp. 947-8: As a general rule it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionate to the gravity ofthe offence, and imposed as this sentence was, for reasons of general deterrence, that is as a warning to others. The length of a first sentence is more reasonably determined by considerations of individual deterrence; and what sentence is needed toteach this particular offender a lesson which he has not learnt from the lighter sentences which he has previously received. [Emphasisadded] 24.

Martin J.A. also stated that this emphasis on individual deterrence rather than general deterrence was particularly applicable in thecase of a youthful first offender. Those statements of principle were binding on the trial judge in this case and should have been applied.He should not have imposed a sentence, to paraphrase MacKenna J., that was very long, disproportionate to the gravity of the offence,and imposed as a warning to others. [53] Mr. B.'s counsel relied on a number of cases. The first is R. v. M.K., a decision of my brother Judge Stansfield reported at [1996]B.C.J. 2540.

That matter involved three perpetrators, all of whom had previous records. All had been on bail or probation and all wereinvolved equally in the offence. They were youths and each was sentenced to a 12-month open custody sentence, followed by 18 monthsprobation. [54] Counsel also cited R. v. Kouznetsov, 2010 BCCA 585 , [2010] B.C.J. 2720. In that matter a sentence of two years,comprised of one year for robbery and one for use of a firearm was imposed on a 60-year-old offender with health issues and with alimited criminal history. [55] Also cited was R. v. Wallwork, [2009] B.C.J. 177.

That involved a 19-year-old offender who received a 42-month sentence. Italso involved the robbery of a jewellery store. That offender had a much more significant record than either of the offenders before menow. [56] In all the circumstances, I find I cannot accede to Mr. S.'s submission that he receive a suspended sentence in this matter. I agreewith my sister Judge Baird Ellan that the need for denunciation and deterrence of other like-minded young men who find themselvesfaced with the choice of participating in such a serious offence outweighs his interest in rehabilitation.

It is unfortunate, in my mind, thatconditional sentences are no longer available for youthful adult offenders such as these. In particular, Mr. B. is much more likely to havehis antisocial and criminogenic factors crystallized by this period of time in custody than receive any support with respect to hisrehabilitation. [57] Taking into account all of the foregoing facts, the circumstances of each accused and the case law and balancing all theprinciples of sentence, I will impose the following sentences. [58] Mr. S., if you will stand. Mr.

S., I am imposing a sentence of nine months in your matter, to be followed by probation for twoyears. [59] Mr. B., if you will stand. Mr. B., in your case I am imposing a sentence of 14 months, plus probation for three years. I will hearargument shortly about the time you should be credited for until now. You can be seated again. [60] Pursuant to provisions of the Criminal Code, this being a primary designated offence, each will provide their DNA. Each willalso be bound by a s. 109 firearms prohibition for a period of 10 years.

You are not to be in possession of any firearm, crossbow,prohibited weapon, restricted weapon, imitation weapon, prohibited device, ammunition, prohibited ammunition, explosive substance orall such things, and any related authorizations, licences and registration certificates. [61] Any to surrender, Mr. Buchanan? [62] MR. BUCHANAN: No. [63] THE COURT: All right. I am sorry, Mr. B.'s counsel? [64] MS. ROGERS: Yes. [65] THE COURT: Any to surrender? [66] MS. ROGERS: No. [67] THE COURT: All right.

With respect to the probation, the terms for each will be that they are to keep the peace and be of goodbehaviour and appear before the court when required to do so by the court. They are to report in person within 72 hours of their releasefrom custody to the probation office at 100-233 West 1st Street, North Vancouver, and thereafter as and when directed by the probationofficer. You are to reside as directed by the probation officer, and do not change that residence without the prior written permission ofthe probation officer. [68] You are not to attend to the Capilano Mall.

You are to have no contact direct or indirect with J.H. or S.E. or A.S.A. or with each

other. So in Mr. B.'s order he is to have no contact with Mr. S. and Mr. S. is ordered to have no contact with Mr. B. I will hear from the Crown as to whether or not there are other no contacts they wish. You are not to attend any residence or place of employment at which you know J.H. or S.E. to work or reside. [ 69 ] You will attend and successfully complete any course of schooling or vocational training as may be directed by your probation officer. You will seek and maintain employment as directed by your probation officer.

You are not to be found in possession of any knives except for the immediate preparation or consumption of food, or such knives as are necessary to carry out the duties of your employment at your place of employment. You are not to be found in possession of any tools outside your place of residence or outside your place of lawful employment. [ 70 ] You will attend for, accept and complete any counselling that may be directed by your probation officer.

You will abstain absolutely from the possession or consumption of any drugs or substances scheduled in the Controlled Drugs and Substances Act , save and except according to a medical prescription, and then only according to the dosage prescribed. (REASONS FOR SENTENCE CONCLUDED)