R. v. Carmichael Date:, 2011 BCPC 317

Citation: R. v. Carmichael Date: 20111018 2011 BCPC 0317 File No: 56511-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RICHARD THOMAS CARMICHAEL ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: R. Edwards Counsel for the Defendant: D. Walsoff Place of Hearing: North Vancouver , B.C. Date of Judgment: October 18, 2011 [ 1 ] THE COURT: I will have you keep standing now, Mr. Carmichael.

If I were to design a sentence that was directed toward your rehabilitation, I might be in agreement with you and your mother's submissions as to what is the appropriate setting or the length of it, et cetera.

The difficulty I have with that is that you did spend some time in the provincial system on the last occasion, two years less a day, and you got your earned remission, I am sure, and got out, and then a couple of weeks later these offences occurred. [ 2 ] But in the meantime, you had this probation order that Judge Rodgers put in place that would have permitted you to do exactly what you are saying you will do now. That would have been the time to do it. You did not do it.

It allowed for residential treatment; it allowed for counselling; you had a supervising probation officer; you had all of the supports in the community that you could have had that would have assisted you to go on toward rehabilitating yourself instead of going back into an institution. [ 3 ] But unfortunately, instead of that, even as you acknowledge in your own letter, you went out very shortly after your release and you committed these two further offences within a short period of time on the same date, on April 29th, 2011, two break-ins of commercial premises, proceeded with by indictment.

They carry maximum sentences of, I think it is 10 years, and well within the range of what the Crown is seeking. [ 4 ] However, that is not the first of these kinds of offences. The ones to which Judge Rodgers sentenced you in '09 were similar, or one or two of them were very similar to this break-in to the car dealership where you took the vehicle that had been dropped off, used that vehicle to drive up to Edgemont liquor store, this being the April 29th offences, and steal liquor, you said to the police, to sell for

diapers. Well, if you are thinking that you need to support your child and that is actually your motivation, I suppose you break into a drugstore and steal the diapers, not the liquor. That does not make any sense to me. [ 5 ] You have a very young infant child, but you are in no position to have a child, because you have not done the work that you need to do to rehabilitate yourself when you are on the outside.

And when you are on the inside, you need to make use of all of the programs that are available to you, which you have been doing, and that is good. [ 6 ] The reason you were detained in April of 2011 is because -- or shortly after that -- is because of the record and the fact that you were released very shortly prior to that. You have done what you could while you were in custody, and you get some credit for that, clearly. But I have to look back at your record, and it dates back to 1998 with consistent entries through the end of the '90s, many entries in '99, 2000.

You did some federal time in 2002, and that was a while back now. You made use of some programs there. They have probably changed. I think they have been somewhat enhanced. And the fact that you have done it before and it did not work is not necessarily indicative of what the appropriate sentence should be here. [ 7 ] You have break-ins on April 26th, 2002 -- these are the offences dates: November 4th, 2005; September 21st, 2006; September 15th, 2006; September 21st -- actually, that is the same one. So just two in September of 2006 and then, yes, another one on September 19th, 2006, it seems.

September 18th, 2006. It looks like there were quite a few in 2006, and if I am reading this correctly, I am just going by the offence date because I do not think they duplicate those. And May of 2008, two, the 13th and 20th; perhaps, three, it is hard to tell. And then the ones to which Judge Rodgers sentenced you in 2009, occurring October 18th and May 11 th : There are a number of break-ins. I probably have not counted them correctly, but you are a prolific person breaking into premises, and I have to take that into account. I do not know if some of them were residential, some of them were business premises.

Where it is a business premise, it is less serious. If it is a residence, it is life imprisonment as a maximum. So it is not quite as serious here, and I take that into account. [ 8 ] Nonetheless, it is not appropriate yet for you to be released into the community for one reason or another. I am not inclined to adjourn it over to get reports on you because I would not be persuaded by them, even if they emphasized your rehabilitation, to let you out on a conditional sentence order. It is just not appropriate in the circumstances, given your record. [ 9 ] Mr.

Walsoff has said all that can be said on your behalf, and so have you and so has your mother, but what I have to look at are all the other principles of sentencing that I have got to deal with, not just your own rehabilitation. You know, the effect on the public of your continued re-offending, the effect on the shop owners, the expense to which they will have no doubt been put to put things back in order, the expense to the system in processing you, and protection of the public.

And also in your case, unfortunately, the factor of isolation of the offender comes into play, because if you are out for a short time and you cannot do what you are given the opportunity to do while you are out, then I have no faith in the fact that you will not continue to reoffend at this point if I release you.

So I have to give you the appropriate sentence that matches the nature of the offences, you as an offender, and addresses all the principles of sentencing in a balanced way. [ 10 ] I agree [with the Crown] that, particularly in light of what I know about the systems or the settings, that you are close enough to the realm of federal time at this point, even with the time you have spent, that it is appropriate to give you a federal sentence now. The advantage of that is you actually can get out earlier if you do really well on it, as I understand it.

That is not the reason I am imposing it, but the programs there are such that you can do a concentrated rehabilitative program if you want to. [ 11 ] THE ACCUSED: Your Honour, at this point I would actually really like to ask for a provincial sentence. Last time I was in federal, I was assaulted quite badly. Since I have been in this time, I have been beat up twice by guys from Kent that are on their way back to Kent, and there is some issues there that I'm not exactly sure what happened but – [ 12 ] THE COURT: They deal with those issues in the setting.

That is not persuasive enough for me in the circumstances. [ 13 ] THE ACCUSED: But putting me into segregation for the next two years isn't going to be good for anybody. There's going to – [ 14 ] THE COURT: It will teach you abstinence. [ 15 ] THE ACCUSED: Pardon me? [ 16 ] THE COURT: It will teach you abstinence. [ 17 ] THE ACCUSED: Yes, but it's going to put me into – [ 18 ] THE COURT: In any event, those classification issues are not something the court has to concern itself with necessarily, if the sentence I impose is in the appropriate range.

And given the nature of the offences, the prior records, and all of the circumstances, in my view, it is appropriate for you to serve a further two years at this point. [ 19 ] It will be, therefore, a two-year federal sentence. I will take into account the six months less 10 days that you have served. The sentence, therefore, is actually two-and-a-half years less 10 days minus the time served. That is for record-keeping purposes.

You will serve a further two years or whatever portion of that you need to serve until you see parole, and then you will have all of the resources in the community that you need so that you can do your work. The time to do that work is after you have served your debt to society for the offences that you have committed. Do not commit more offences. Go out and do the work that you have to do. You have to get to the root of the problem, whatever it is, that keeps you committing these offences and going the wrong way in your life. I do not know what that problem is, but you have to do something about it.

Good luck to you, sir. [ 20 ] Ancillary orders, Mr. Edwards? [ 21 ] MR. WALSOFF: Victim fine surcharge? [ 22 ] THE COURT: Well, that will be waived. Thank you.

[ 23 ] MR. EDWARDS: A DNA application. Now, I do not have the copy of the conviction

summary report. I think he is given a DNA – [ 24 ] THE COURT: Well, even if he has done it before, he – [ 25 ] MR. EDWARDS: They won't take it again, if he has already done it. [ 26 ] THE COURT: I think they do. [ 27 ] MR. EDWARDS: Oh. I was under the impression they didn't, but ... [ 28 ] THE COURT: But I think it is a -- I think it is secondary. [ 29 ] MR. EDWARDS: It's secondary. [ 30 ] THE COURT: Okay. Then, if it is a secondary DNA, I will not order it. So there will not be DNA, and I do not think there are any other ancillary orders with this type of offence. [ 31 ] MR.

EDWARDS: None that I'm seeking. [ 32 ] THE COURT: Okay. Thank you. [ 33 ] MR. EDWARDS: If there are any. [ 34 ] THE COURT: Again, good luck to you, sir. [ 35 ] THE ACCUSED: Thank you. [ 36 ] MR. EDWARDS: Thank you, Your Honour. [ 37 ] THE COURT: Thank you, Mr. Walsoff. (REASONS FOR SENTENCE CONCLUDED)