R. v. Newman Date:, 2014 BCPC 410

Citation: R. v. Newman Date: 20140123 2014 BCPC 410 File Nos: 57184-10-BC, 59622-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. HOSEPH WILLIAM NEWMAN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: J. Riddle Counsel for the Defendant: M. Smith Place of Hearing: North Vancouver , B.C. Date of Hearing: January 23, 2014 Date of Judgment: January 23, 2014

[ 1 ] THE COURT: These are my reasons on sentence regarding Joseph William Newman. Mr. Newman pled guilty on October 2, 2013, to one count of robbery of Sukhpal Singh Sra arising on February 11, 2013, in North Vancouver contrary to s. 344 of the Criminal Code . The Crown proceeded by indictment. The maximum sentence prescribed is life imprisonment. There is no minimum jail penalty, but a conditional sentence order is not available. [ 2 ] The charges were not sworn until June of 2013. He entered his plea, as noted, October 2, 2013.

Sentencing proceedings commenced on December 10, 2013, and continued on January 8, 2014, in the First Nations Court setting here in North Vancouver. At that time, both his mother and grandmother were present and I see that they are -- at least his mother is again present today. At the time of his plea, the court ordered a Pre-Sentence Report with a psychological assessment and Gladue component. [ 3 ] The circumstances of the offence are that at approximately 6:00 p.m. Mr. Newman went to a home in the 200 block of West 4th Street in North Vancouver and asked them to call him a cab.

He later flagged the cab on a nearby street and got into the front passenger seat. He told the driver he wanted to go the Mission Reserve. [ 4 ] Once they were in motion, he produced two knives from his jacket which the driver estimated to be eight inches and six inches in length. He pointed them at the driver's chest and told him to give him all his money or that he would stab him. He also at one point threatened to kill him. He told the cab driver not to get out of the vehicle. The cab driver noted two other knives in one of the pockets of the accused. [ 5 ] The cab driver then told Mr.

Newman he had to pull over and stop in order to get his money out. As soon as he stopped the cab, he got out and fled on foot. Mr. Newman got out the other side and fled on foot in the opposite direction. Mr. Newman was identified through surveillance footage from the taxi. According to the taxi driver, he was highly intoxicated at the time of the offence and the cab driver believed that he was on drugs.

It is of note that he was taken home by the police on February 9th for being intoxicated in a public place. [ 6 ] The taxi driver believed at the time that his life was at risk and he was terrified during the offence. He missed two shifts of work, but reports that he has no ongoing issues. Antecedents of the Offender [ 7 ] Mr. Newman is currently 23 years of age. He is a member of the Squamish Nation and has spent his life on the North Shore. His father is a longshoreman and his mother is a homemaker. [ 8 ] All of his recent ancestors on both sides of his family were placed in the residential school system.

The intergenerational impact of that has been significant. The family suffers from alcoholism, addiction, neglect, poverty, and violence. The mother is the last surviving sibling in her family. Most have passed due to suicide or health issues related to Gladue factors including alcoholism. [ 9 ] Mr. Newman experienced seven deaths of close friends or family between 2005 and the date of the offence. A close friend and an uncle passed in a time period recent to the offence before the court, both due to alcohol abuse. [ 10 ] Mr. Newman is the second of four siblings.

His oldest brother is also involved in the criminal justice system and has spent most of his adult life in custody. He has two younger siblings who were placed in foster care and are currently doing well. [ 11 ] Both his mother and father are alcoholics. He experienced significant violence in his family home which involved his father, his mother, his older brother, and himself. When out of custody, Mr. Newman generally lives with his parents. When he is not able to live with them, he is homeless. [ 12 ] The Pre-Sentence Report notes that his peers are also involved in substance abuse and criminal behaviour.

His mother relies on him for support and care. Mr. Newman wishes to live at home to assist her. I infer from all the information before me that they have, to some extent, a co-dependent and dysfunctional relationship. [ 13 ] Mr. Newman has a three-year-old son. He states that he wants to be involved in his son's upbringing and he does have some contact with his child and, when able, he provides some support for that child. [ 14 ] Mr. Newman achieved a Grade 10 education. However, he has significant issues in school.

He recalls being separated from other children during classes and that he felt social isolation and stigma as a result and that this still impacts his self-esteem. He has worked sporadically in labour kinds of jobs. [ 15 ] The reports note that he has had ongoing anger management issues; that on one occasion he was hospitalized due to a suicide risk; and that he has in the past engaged in self-harm involving cutting himself. [ 16 ] Under "Conclusions" in the psychiatric report, it states as follows [as read in]: Mr.

Newman is a 23-year-old male of First Nations descent who is before the courts on charges related to robbery. Results of the present assessment indicate an absence of major mental illness either in the form of a major depressive, psychotic, or anxiety disorder at this time. Mr. Newman does report a history of significant depressed mood that appears to occur in the context of significant life stressors such as death and loss of a loved one, relationship conflict, and chronic substance abuse.

His depression does not appear to be severe or chronic and tends to resolve when away from life stress including presently while incarcerated. Mr. Newman presents with a significant alcohol dependency disorder in addition to marihuana and cocaine abuse. Indeed, substance abuse has been chronic and persistent throughout his adolescence and young adulthood. With regard to personality functioning, evidence suggests that Mr. Newman presents

with an antisocial personality disorder, i.e., repeated criminal behaviour, lacking remorse, irresponsibility, impulsivity, and recklessdisregard for safety of self or others. Despite this, he does not appear to be chronically and highly entrenched into criminal culture. Rather, he has some orientation to valuing and leading a more prosocial life that consists of employment. His criminality occurs,however, in the context of excessive substance abuse and mood/cognitive instability. Results of cognitive testing conducted as part ofthe present assessment indicate that Mr.

Newman has significant cognitive and intellectual deficits and disabilities. Testing indicates thathe likely meets the criteria for a mild to moderate intellectual disability given his below average IQ scores. In order to receive a positivediagnosis, however, adaptive functioning assessments are required, i.e., formal assessments that evaluate an individual's ability tofunction and adapt in the community. This was not completed as part of the present assessment. Mr.

Newman's early life experiences ofneglect, lack of parenting/supervision, and limited prosocial success and support were no doubt critical factors in the emergence of hiscriminality and drug abuse. It is a relative lack of experience and success in prosocial lifestyle and thus any attempts to live moreprosocially (i.e., gainful employment, residential stability, and healthy relationships) are typically short-lived. There are also strongsuggestions that Mr.

Newman has suffered from the neuro-developmental disorder, fetal alcohol syndrome, as there is evidence that hismother abused alcohol throughout much of her pregnancy with Mr. Newman. Consistent with an FAS diagnosis, Mr. Newman presentswith some of the physical features of FASD. Individuals with FASD also often present with cognitive and learning disabilities as well asattention and impulsivity, all of which are prominent for Mr. Newman. On the issue of prognosis, Mr. Newman is high risk for futurecriminal offending.

His risk is indicated by the presence of the following factors: a chronic history of violence (some of which issevere), a history of non-violent crime, early initiation of crime and violence, school/vocational problems, substance abuse problems,relationship problems, intellectual disability, personality disorder, victimizations, and problems with compliance. Clinical risk concernsinclude poor insight, poor responsiveness to intervention and management, and instability. Mr.

Newman has no clear achievable plan forcontrolling his risk and is likely to re-immerse himself into his lifestyle of partying and substance abuse thereby increasing his risk. Mr.Newman's risk pertains mostly to violence and breach-oriented offences. [17] The report also found that Mr. Newman's full scale IQ score was between 54 and 64. [18] Mr. Newman has a criminal history. It commences in 2003. His first conviction was for an assault which arose November 2nd, 2002, and was dealt with September 12th, 2003, and he received probation for one year.

Throughout 2004 and 2005, there are four offences, three of them property offences and one failure to comply. The next significant offence was March 13th, 2005, which was robbery and it was dealt with December 12th, 2005. He received an 18-month ISSP. [19] Throughout 2006 and up to December, there are three breaches and one property offence. On December 17th, 2006, he committed an assault with a weapon which was dealt with January 29th, 2007. He received a deferred custody and supervision order for six months.

On February 15, 2007, while serving that previous sentence, he committed a robbery which was dealt with June 28th, 2007. He received secure custody for eight months consecutive to the time he was then serving after the termination of his earlier deferredcustody and supervision order. [20] Throughout 2008 and 2009 and into 2010, there are a number of mischiefs and breaches. On September 2, 2008, he committed a break and enter, but that was not dealt with until April 14th, 2010. He was ordered to make restitution in the amount of almost $6,000 and received a conditional sentence of 12 months.

On June 25th, that conditional sentence was suspended. [21] Throughout the balance of 2010 and into the middle of 2011, there are a number of breaches and property offences. On June 3,2011, he committed an assault with a weapon. He was sentenced for that matter on December 15, 2011. He received a six-month jailterm. He was also placed on probation for three years. [22] In the fall of 2011 and through the spring and summer of 2012, there were a number of other breaches, mischiefs, a threatening,a drug offence. Those were all dealt with on October 19, 2012.

He received a short jail sentence after having served 60 days' timeserved. In early 2013, there are three breaches of probation. The Law [23] This court recently dealt with a similar offender and a similar offence, although the victims were young adult males who wererobbed on a trail; see R. v. Lambert, unreported, North Vancouver Registry Number 58400-1 and 56143-14, judgment date November 13,2013.

In that matter, the court set out some of the legal principles involved in the imposition of sentence in matters involving aboriginaloffenders and offences of violence at paragraphs 35 to 45. [24] The cases considered were R. v. Gladue, (SCC), [1999] S.C.J. No. 19; R. v. Wells, 2000 SCC 10; and R. v.Ipeelee and Ladue, 2012 SCC 13; R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61; R. v. Browning, 2006 BCSC 1478; R. v.Chiasson, 2007 BCCA 360; R. v. Anderson, 2007 BCCA 462; R. v. Soosay, 2012 ABPC 220; R. v. Sutherland, 2010 ONCJ 103; R. v.Ramalho, 2004 BCCA 617; R. v. M.S.R., 2002 BCCA 268 , [2002] B.C.J.

No. 845. [25] Mr. Lambert was 20 years of age and had been found to suffer from fetal alcohol spectrum disorder. He, too, had a very limitedcognitive capacity. He had been in care for most of his childhood and had the benefit of numerous resources which had not served toassist him in controlling his often aggressive behaviour. [26] Mr. Lambert had little, if any, understanding of his difficulties and was not willing to engage in any further counselling orprogramming. He did not accept responsibility and there was an absence of remorse.

A sentence equivalent to 34 months was imposed. [27] In this matter, the Crown relied on R. v. Johnny, 2008 BCSC 1126, a decision of Mr. Justice Hinkson, Chief Justice of BritishColumbia, as he then was, which involved the stabbing of a taxi driver in the neck by a youthful adult aboriginal offender. At paragraphs27 to 35, the court canvassed various authorities respecting the robbery of taxi drivers which establish that they are to be viewed asparticularly vulnerable victims and general deterrence must be given significant weight in the determination of an appropriate sentence.

A sentence of 42 months was imposed.

[ 28 ] The Crown also submitted the case, R. v. Jeff , 2010 BCSC 1800 , and R. v. Awasis , 2010 BCCA 213 , to support the range of sentence suggested taking into account Mr. Newman's reduced moral culpability due to his experiences as an aboriginal person. [ 29 ] Counsel for Mr. Newman relied on R. v. Soosay , a case considered by the court in Lambert , supra .

That case involved a youthful adult offender with diminished cognitive functioning due to fetal alcohol syndrome disorder and the court concluded that the principles of denunciation and deterrence must be given less weight when dealing with such offenders, although the offenders' challenges do not "relieve the court of the need to address deterrence" by way of a period of incarceration. [ 30 ] Counsel for Mr. Newman also relied on R. v. Harper which was also considered in Lambert , supra . [ 31 ] The aggravating factors in this matter are that the taxi driver is a vulnerable victim. Mr.

Newman brandished two knives and was carrying four knives on his person. He made threats to kill the victim. Mr. Newman was on probation for assault with a weapon. The weapon used in that matter was a baseball bat. He has difficulties with compliance on that order and in the past. He has a criminal history for violence and is considered a high risk to reoffend. [ 32 ] The mitigating factors are that he entered what I will consider to be an early guilty plea and that he accepts responsibility.

He does state that he is remorseful and that he wishes to remain sober and clean and to participate in raising his young son. The offence was unplanned and unsophisticated. He was highly intoxicated at the time. Furthermore, he did not pursue the taxi driver once the taxi driver got out and fled on foot. [ 33 ] As a result of the Gladue factors I have already outlined, he must be seen to have a lesser moral culpability and that is in combination with the cognitive challenges he faces. He is also a relatively youthful adult offender. [ 34 ] Mr.

Newman was taken into custody on August 13, 2013, and has now spent 163 days or the equivalent of five and a half months in custody and should be credited for that time. Positions of Counsel [ 35 ] Counsel for the Crown asks the court to consider the principles of general deterrence and denunciation and protection of the public through separation of this offender. They also, however, recognize that there is still a prospect for Mr. Newman's rehabilitation, although he also requires specific deterrence. [ 36 ] The Crown accepts that Mr.

Newman's culpability is reduced due to his cognitive issues and the Gladue factors. However, they say the protection of the public must still be given significant weight. They submit a sentence of two and a half to three years, so a federal sentence, is appropriate and ask the court to require a DNA sample on the primary grounds and a lifetime firearms ban. [ 37 ] Counsel for Mr. Newman accepts the principles of sentence as identified by the Crown must be considered and given weight. However, they ask the court to temper the length of the custodial sentence due to the mitigating factors outlined above.

They suggest a sentence of one year plus a lengthy period of probation is appropriate. [ 38 ] Mr. Newman does not have as serious a criminal history as Mr. Lambert. He has greater insight and recognizes that he needs help and sincerely wishes to live a prosocial life. He says he is motivated to do so in order to be a parent to his son. Although he presents as someone who is at high risk to reoffend, I find that the risk he poses is less serious than that of Mr. Lambert. [ 39 ] Mr. Newman demonstrates some insight into his many challenges, feels remorse, and wishes to change his ways.

He recognizes the need to engage in treatment and counselling. However, I find that he does not have the tools to help himself as he lacks the mental capacity to follow through on his own with any form of treatment. He will also require counselling and other programming suitable for a person with his cognitive issues. [ 40 ] As noted in Lambert at paragraph 48: Having found that this offender's moral culpability and responsibility is greatly reduced due to his mental capacity, it makes the task of determining a just and appropriate sentence a difficult one in these circumstances: see R. v. M.N.J., 2002 YKTC 15 .

At paragraph 57, the court said: What is not available is an alternative to incarceration in a mainstream institution. What is needed to address the rehabilitation of this First Nations offender, and many other offenders who suffer from fetal alcohol syndrome disorder or other deficits in cognitive functioning, who find themselves in conflict with the law, is a specialized healing lodge where they can access and benefit from long term programming specifically developed to meet their needs. I have no such option available to me.

Those comments apply equally here. [ 41 ] Both this offender and his mother have a simplistic understanding of the dynamics of addiction. As an example, they each hold the belief that because he does not prefer the kind of alcohol his mother drinks and because she only drinks on weekends and paydays, he will not be tempted to consume alcohol if living in the family home.

I conclude that residing in the family home is unlikely to contribute to this offender's rehabilitation and indeed is highly likely to contribute to his continued substance abuse and resulting criminal behaviour. [ 42 ] In coming to a determination of the appropriate sentence for Mr. Newman, I must temper the need to protect the public and, in particular, to deter the robbery of taxi drivers with the mitigating factors relating to this offender's particular background. I find there remains a reasonable prospect for Mr. Newman's rehabilitation with the necessary supports in place.

I will impose a sentence which, in my view, is the most lenient available considering the circumstances of this offence and this offender.

[ 43 ] Mr. Newman, if you will stand. [ 44 ] There will be a sentence of 18 months. I am granting you credit for five and a half months so the further time in custody will be 12 and a half months. [ 45 ] You will provide a sample of your -- you can be seated again.

You will provide a sample of your DNA and, pursuant to s. 109(3) of the Criminal Code , you are prohibited from possessing any firearms, crossbows, prohibited weapons, restricted weapons, imitation weapons, prohibited devices, ammunition, prohibited ammunition, explosive substance, or all such things and any related authorizations, licences, and registration certificates for life. Do you have any such items to surrender? [ 46 ] He is indicating he does not. [ 47 ] Following that sentence, you will be placed on probation for a period of three years.

The terms of that probation will be that you are to keep the peace and be of good behaviour and appear before the court when required to do so by the court. [ 48 ] You will report in person within 72 hours of your release from custody to a probation officer at 100, 233 West 1st Street in North Vancouver and report thereafter as and when directed. [ 49 ] You must reside as directed by your probation officer only at a residential treatment or recovery program. [ 50 ] When residing in residential treatment or recovery, you must obey all rules and regulations including any curfew. [ 51 ] You are not to be found in any taxi. [ 52 ] You are to abstain absolutely from the possession or consumption of alcohol or 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. [ 53 ] You will attend for, accept, and complete to the satisfaction of your probation officer any counselling or other programming, and you will attend to any Forensic Psychiatric Outpatient Clinic at the direction of the probation officer for any assessments, counselling, or treatment. [ 54 ] You will apply for the benefits available to you under the Community Living British Columbia Program. [ 55 ] Those are the terms.

Any comments or concerns about the probationary terms? [ 56 ] MS. RIDDLE: Crown is seeking a no-contact order, Your Honour, with the cab driver. [ 57 ] THE COURT: Yes, do you want that both in custody and out? [ 58 ] MS. RIDDLE: Probably not required in custody. [ 59 ] THE COURT: Right, okay. [ 60 ] So you are to have no contact direct or indirect with Sukhpal Singh Sra. [ 61 ] MS. RIDDLE: And, Your Honour, do you have before you the probation order that is currently in effect?

Because he is on a three-year probation order that will still be in effect, I think, when he is released. [ 62 ] THE COURT: I do not think I brought that into court. [ 63 ] MS. RIDDLE: Just looking at it, I can hand up my copy. The only conflict that I can see is the last condition allows him to consume alcohol with restrictions which would be in conflict with the abstain. [ 64 ] THE COURT: I think we have come to a point with Mr. Newman that, for my period of probation, I think the abstention should be absolute.

I am requiring at this stage and we can change it in due time, but I am requiring at this stage that he reside only at treatment for the three years of his probation. [DISCUSSION RE ABSTENTION CONDITION] [ 65 ] THE COURT: So I am going to amend condition 14 on that order to provide that you are to abstain absolutely from the possession or consumption of alcohol or 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. [ 66 ] MS.

RIDDLE:: And, Your Honour, if there was not an order for no knives or weapons, could there be -- or, sorry, a condition that they are -- [ 67 ] THE COURT: Oh, yes, thank you. All right. [ 68 ] You are not to possess 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 and, again on the probation, there will be a term that you are not to possess any weapons or imitation weapons as defined by the Criminal Code of Canada. [ 69 ] MS.

RIDDLE: Thank you, and just with respect to the reside condition, I may not have made a thorough note as to whether there was as part of that condition that he abide by the rules.

[ 70 ] THE COURT: I think I did state that he is to abide by the rules and regulations. [ 71 ] MS. RIDDLE: Thank you. [ 72 ] THE COURT: All right. So now what are we doing with the -- [ 73 ] MS. RIDDLE: The outstanding -- [ 74 ] THE COURT: There is your order back, Ms. -- [ 75 ] MS. RIDDLE: Thank you. [ 76 ] THE COURT: -- Riddle. [ 77 ] MS. RIDDLE: I am directing a stay of proceedings on the outstanding breach charges in Information 57184. [ 78 ] MR. SMITH: There is just the victim fine surcharge, Your Honour, and it is prior to the amendment and he is going to be in custody. [ 79 ] THE COURT: Yes, I will waive the victim fine surcharge. [REASONS FOR SENTENCE CONCLUDED]