R. v. M.E.W. Date:, 2011 BCPC 267

Citation: R. v. M.E.W. Date: 20111014 2011 BCPC 0267 File No: 56505C2; 55985 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M.E.W. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: R. Riddle Counsel for the Defendant: L. Helps, P. Barkaskas Place of Hearing: North Vancouver, B.C. Date of Hearing: October 12, 2011 Date of Judgment: October 14, 2011 [ 1 ] The defendant has pled guilty to two indictable offences, one a residential break-in and the second an armed robbery. Both are punishable by a maximum sentence of life imprisonment.

The Crown seeks a global jail sentence in the federal range and opposes a conditional sentence on the basis that the defendant poses a danger to the community and that a conditional sentence will not address the principles of denunciation and deterrence. [ 2 ] Defence submits that the time the defendant has spent in custody should be attributed to the robbery and that Mr. W. should receive a conditional sentence order on the break-in, with a 3 year probation order.

As a condition of the conditional sentence order, it was submitted, the defendant would attend an aboriginal based residential treatment program, and then go to VisionQuest, another residential treatment program, after that. [ 3 ] It is important to note at the outset that the defendant has spent a total of 187 days, or at a minimum the equivalent of 6 months in custody, before his sentencing date. Any sentence I impose must encompass that time.

Facts [ 4 ] On December 10, 2010 at about 3 a.m. the defendant entered a residence at 265 W 5 th St. in North Vancouver through an unlocked door while the residents lay sleeping in their beds. They awoke to hear liquor bottles being rattled and doors opening and closing on the floor below them. They called 911. Police attended soon after and found the defendant coming out the patio door with an X-box. He tried to flee but was stopped by a police dog and taken into custody by force after continued resistance. He had a DVD from the premises down his pants.

The police observed that he was intoxicated, and he admitted to consuming at least a case of beer. In a later interview he apologized and indicated he was drunk at the time. Defence counsel have indicated that he was also under the influence of crack cocaine. [ 5 ] Many of the items missing from the residence were not recovered despite a thorough search of the adjacent area by the police, suggesting that perhaps another person was involved with Mr. W. While the facts raise this possibility, I note that he did not identify any

other person to the police. The submission on his behalf is that he may have been prevailed upon by another party to obtain property to pay for his acquisition of drugs. [ 6 ] After his arrest, Mr. W. stayed in jail by consent until being released 10 days later on a recognizance requiring him not to consume alcohol and to comply with a curfew. [ 7 ] About six weeks later, on February 4, 2011, Mr. W. was arrested on a breach of his curfew. This had been discovered while police were investigating an allegation of a domestic altercation with his girlfriend, Ms. J.

Charges did not arise out of the altercation but it was discovered that Mr. W. was not at home when he was supposed to be, though he was just doors away. [ 8 ] Mr. W. had a bail hearing and was released again on February 8, 2011 with his mother acting as surety. He was to live with her, abstain from alcohol, attend Stepping Stones, and have no contact with Ms. J. or attend her residence. [ 9 ] Rhonda J. and Mrs. W. were both present at the sentence hearing. It was observed in submissions that when Mr. W. was breaking his curfew at Ms.

J.’s residence he was 5 doors down from where he should have been, at his mother’s. Of course, he was in violation of the no contact order with Ms. J. [ 10 ] Two and a half months later, on April 27, 2011, police responded to a call to Ms. J.’s residence at 1:05 a.m. Her neighbours reported a disturbance, and when the police arrived, Ms. J.’s son, Jacob Tallio, told them that Mr. W. had been there drinking with his mother. They became intoxicated and got into an argument. Mr. Tallio’s sister and her boyfriend removed Mr. W. from the residence. [ 11 ] At 3:25 a.m., Mr.

W. returned to the J. residence, climbing in the window and getting into bed with Ms. J., again violating his bail conditions. Mr. Tallio called the police and Mr. W. was arrested, after trying to jump off a balcony, and again resisting arrest. [ 12 ] Between leaving and returning to the J. residence Mr. W. committed the second offence, a robbery of the 7-11 at 304 West 3 rd St. in North Vancouver, at 1:27 a.m. He entered the store with a hood over his head and a hammer concealed in his jacket. There were two clerks on duty. Mr. Pico, the victim, saw Mr.

W. enter and come to counter, putting his hand into clothing and lifting up his shirt. Before he saw anything further, he had a sense that something was about to happen. He said “one second” to Mr. W., turned away and pressed an alarm that alerted the police to a crime in progress. He then retreated to the cooler, where his co-worker was as well. From there they heard a loud sound. The video from the store discloses that almost immediately as Mr. Pico retreated, Mr. W. used his hammer to attempt to break the lottery ticket display case, but failed.

He then went behind the counter, opened a cupboard, and stole cigarettes and a lighter. He left the hammer behind. [ 13 ] Items from the robbery were found at Ms. J.’s residence after Mr. W.’s arrest. In a later interview he apologized to Mr. Pico and said he could go back to work without worrying that Mr. W. would return, he had just been having a hard time recently, or words to that effect. [ 14 ] Mr. Pico has not returned to work, although the Crown cannot link that to this incident. In fact no Victim Impact information was offered beyond that obtained in the initial interview from Mr.

Pico, and none for the residents of the home Mr. W. broke into. When interviewed Mr. Pico was tearful and scared and said he did not want to go back to work, he thought immediately when he saw Mr. W. pulling up his shirt that he was in danger, perhaps astutely, and he thought of his family and children. He pressed the panic button three times, while watching Mr.

W. take items from the store, although I note that the police responded quickly. [ 15 ] I can surmise, though I am not told, that the homeowners are affronted at least, likely alarmed that someone would enter while they slept, and likely feel a sense of violation and victimization. It seems unlikely they will continue to leave their door unlocked. Offender [ 16 ] Mr. W. is 34. He has a criminal record that may be described as short but related. He was convicted of domestic assault and three break-ins and a breach in 2008, and received a total of 9 months in jail on the latter four offences.

He violated parole and was recommitted on June 10, 2009, then finally released on December 20, 2009. [ 17 ] It is somewhat remarkable that his criminal record did not commence until three years ago. I say remarkably because in light of the serious nature of these charges, and his record, it is unusual that he did not commence his criminal activities until the age of 30 or so. I am told that these activities started after the failure of his marriage, and the commencement of a crack cocaine habit. [ 18 ] Mr. W. is a member of the Squamish Nation.

He has had struggles with drugs and alcohol, but only since his recent incarceration has he admitted a crack cocaine addiction. He has also only recently come to admit or recognize that he was the subject of sexual abuse at age 14. These insights have occurred after he was brought into custody following the most recent offence, and I am told Mr. W. has become motivated to work on these issues that are said to underlie his substance issues and criminal lifestyle. [ 19 ] As both Ms. Riddle and his counsel ably pointed out, he is entitled to consideration under

section 718.2 (

e) of the Criminal Code . Ms. Barkaskas provided a helpful submission addressing the factors that the court is directed to consider by the well known case of R. v. Gladue . [ 20 ] Mr. W. was raised by his mother in what is described as extreme poverty, until his mother achieved status as a band member in 1985 and they were permitted to live on the reserve. His father was a residential school survivor and subjected the family to anger and emotional abuse. His mother, who attended court at the sentencing, was elected to the band council and has served 4 terms now. [ 21 ] Mr.

W. has the incentive of two children aged 10 and 7, to whom he would like to pass down the native traditions of his heritage, when he has earned the right to do so. The Longhouse and sacred ceremonies have been handed down in his family, but as a result of both the residential school experience and bans on native ceremonies that were in place until the 1950s, that heritage was interrupted, as

was Mr. W.’s exposure to them. He has nonetheless had the benefit of learning these traditions from his grandfather since then. In fact he was initiated into the long house at 17 months. [ 22 ] Mr. W. himself chose to interrupt that tradition at 13, feeling it was too much responsibility for him to accept at that time. He embarked upon what was described as a normal but less onerous lifestyle, one which did not require him to abstain from illicit substances. These issues, over the years have caused Mr. W. to experience depression and suicidal thoughts, both before and while in his addiction.

It was the desire for drugs and alcohol driven by these issues that motivated these offences. [ 23 ] After his most recent incarceration he has become ready to continue on the path of his heritage, to put on his mask, as it is described, and to address the personal issues that caused him to take a path that was contrary to that. I am also told that he has a dual diagnosis, that is, mental or emotional challenges as well as drug addiction. According to Ms. J. he has recently threatened suicide. This may have contributed to his mindset when these offences occurred.

Time in Custody [ 24 ] Counsel agree that the defendant has spent 187 days in custody as of the sentencing date. Of those, pursuant to

section 719, it is agreed that 82 days are not eligible for enhanced credit, and 105 are. [ 25 ] In considering whether to grant enhanced credit, I am asked to consider that Mr. W. has not been allowed to have contact with Ms. J. for the entire period he has been in jail, although there was no order preventing that. It is said that this has hindered his support and rehabilitation while in custody. [ 26 ] In addition, defence counsel has pointed out that Mr.

W. waited, on the waiting list, at North Fraser Pretrial Centre from his arrest in April, to attend Substance Abuse Management, which he completed on September 29, 2011. While in custody he has also gone to AA, and attending as much as the limited programming that has been available to him as he can. [ 27 ] The Crown says there is nothing unique in Mr. W.’s circumstances that would qualify him for enhanced credit and points out that he had been able to avail himself of programs while in custody. [ 28 ] I agree that Mr. W. does not stand out in terms of offenders’ circumstances.

The only basis on which he might qualify for enhanced credit would be if it was universally available on the basis that pre-trial custody does not qualify for earned remission. That is a matter of legal debate, but I do not understand it to represent the prevailing view in BC at this time, nor was it advanced before me. The basis on which Mr. W. sought enhanced credit was the uniqueness of his circumstances. [ 29 ] I see no reason to give Mr. W. more credit than the 187 days that he has actually served. Those amount to the equivalent of a 6 month and one week sentence, at this point.

Cases [ 30 ] The primary cases cited on sentencing relating to these offences were R. v. Bernier , 2003 BCCA 134 and R. v. Brogan , 1999 BCCA 278 . These cases set a wide range of sentences, but only provide a guideline. Essentially, the cases establish that the task of the court is to assess the aggravating and mitigating features and assign a sentence at the appropriate place on the spectrum within the range. Aggravating Factors [ 31 ] I must consider that Mr. W. was out on bail conditions for the serious charge of a residential break-in when he committed the robbery.

He’d had some time in, before his release, brief time, but he left on a promise to comply with conditions. He nonetheless breached and essentially ignored those conditions, several of them. He went to Ms. J.’s, he drank, he violated his curfew. He breached in this fashion because of his drug addiction, I am told. [ 32 ] Mr. W. also physically resisted the police on both occasions when they tried to arrest him. He is physically aggressive, or at least resistant, while under the influence of drugs or alcohol. [ 33 ] The robbery was what I would call, and have already called, an armed robbery.

He demonstrated that he had a weapon, the clerk retreated after perceiving that, he produced and used a weapon on the cabinet or case. I accept that he did not make a threatening gesture to the clerk other than raising his shirt, but the fact that the clerk was perceptive is not something for which Mr. W. can claim credit. He had conceded that if someone had physically intervened things might have deteriorated, and that is a reasonable inference given the facts before me. [ 34 ] This was a robbery of a convenience store, late at night, of a vulnerable victim.

It is comforting that there was an alarm close at hand, but again Mr. W. does not get credit for that. For what he knew the clerks were there alone without security or ready access to police assistance. [ 35 ] In relation to the break-in, the same is true. It was an occupied dwelling late at night. Mr. W. does not appear to have taken any steps, as some do, to ensure that no one was at home. He, and perhaps someone else, just entered. I would characterize it as brazen, but unsophisticated. Nonetheless, it was no doubt alarming for the sleeping residents. Mr.

W.’s prior break-ins are said to have been done at night through open doors or windows. So they are opportunistic, but somewhat calculated. Mitigating Factors [ 36 ] Mitigating factors include the fact that Mr. W. has pled guilty. I note that this plea occurred while he was in custody and in the

face of what appears to have been strong cases against him on both counts. [ 37 ] I agree that I should consider the gap in his record from the release in December 2009 until the first of these offences. I also consider the fact that his record arose fairly recently, when it appears the historical issues he had not dealt with came to the surface. In addition, Mr.

W. was remorseful from the outset on both offences, and on the robbery, he expressed a desire not to have the store clerk testify. [ 38 ] The robbery was characterized by both counsel as technical, and I am advised that it took some time to iron out a position between counsel on the appropriate characterization of the offence.

In the end, it appears that counsel were jointly able to agree that the offence should be characterized as at the low end for robberies, and that although the BC Court of Appeal recognizes that convenience store employees are vulnerable and often work alone, in this case, there was another clerk present, Mr. W. was not in his right mind, being significantly impacted by alcohol and crack cocaine, so it was less calculated than in some of the cases, and he did not exhibit overt violence in the presence of the victims. [ 39 ] I am urged to look at Mr.

W.’s commitment to rehabilitation through the lens of his history, and his demonstrated remorse for both offences. In both, he apologized immediately afterwards. It is submitted that the gravity of his actions has been brought home to him, and he is willing to do the work necessary to rehabilitate himself and put this kind of behaviour behind him.

Principles [ 40 ] The Criminal Code and case law dictates that I consider not only general and specific deterrence and denunciation, but also rehabilitation, the principle that a sentence must be commensurate with the gravity of the offence and degree of responsibility of the offender, and parity with similar offenders. In Mr. W.’s case, he is entitled to consideration under

section 718.2 (e), that is, I am required to consider all reasonable alternatives to incarceration, in particular, having regard to his aboriginal experience. [ 41 ] It is submitted by the defence that the aims of denunciation and deterrence have been achieved by the time already spent in custody by Mr. W.. He has already made progress on rehabilitation which will address the aspect of protection of the public.

He is prepared to comply with the conditions of a sentence in the community in order to satisfy the other aims of sentencing. [ 42 ] Crown Counsel says the defendant poses a risk to the community and that there are programs available in custodial setting that can address that risk, and expresses concern that the existing support system for Mr. W., in particular his mother and Ms. J., is not particularly stable. Conclusion [ 43 ] The primary principles in these two offences, in my view, are those of denunciation and deterrence.

Another relevant principle is that of retribution, related to the sentiment that the sentence must reflect the gravity of the offence and society’s condemnation of it. These are serious offences of personal violation, in each case punishable by life imprisonment, as a maximum. That characterization must be tempered by compassion for Mr. W.’s background and personal challenges, according to the Criminal Code and the case law. [ 44 ] The law as I understand and interpret it dictates a global sentence of no less than 30 months for Mr. W.. From that, he is entitled, by law, to a deduction of 6 months and one week.

That leaves a remaining balance of 24 months less one week. That is in the range eligible for a conditional sentence order. [ 45 ] However, I am of the view that a sentence in the community, at this point, will not satisfy the applicable principles. In particular, and as well, despite the commendable work that Mr. W. has done, I am not satisfied that his addiction will not prevail, even if he is released into a residential treatment setting. [ 46 ] Whether or not that is the case, however, my ultimate view is that however commendable Mr.

W.’s recent resolve may be, and again I do commend him for that, he must pay his debt for these serious offences, in the sense of serving a sentence that appropriately denounces, deters and serves the aim of retribution, before he embarks upon his personal path of rehabilitation, and hopefully, reparation. [ 47 ] The sentence is 30 months, less time served of six months plus one week. Mr. W. will therefore serve a further 103 weeks in jail. I decline to impose probation following that.

He will do the work that he needs to do, when he is released, if he truly desires to be a role model for his children, and show his family that he will travel on his true native path. [ 48 ] Mr. W. will provide a DNA sample while he is in custody and will be subject to a firearms prohibition under

section 109 for the requisite period for a first such offence. _______________________________ The Honourable Carol Baird Ellan Provincial Court Judge