R. v. Crittenden Date:, 2010 BCPC 348

Citation: R. v. Crittenden Date: 20101129 2010 BCPC 0348 File No: 57266-2C Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RONALD ALLAN SHANE CRITTENDEN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.B. CARYER Counsel for the Crown: J. Hempstead Counsel for the Accused: D. Silverman Place of Hearing: Chilliwack, B.C. Date of Hearing: June 30, October 13, 19, November 29, 2010 Date of Sentence: November 29, 2010 [ 1 ] THE COURT : The accused has been found guilty by me on two counts.

The first is breaking into a residence on Silver Skagit Road on the 15th of January, 2010 near Hope, and the other is breaching a probation order by being in contact with a Rosa Ochoa. [ 2 ] The circumstances are that a police officer responded to an alarm at the residence on Silver Skagit Road early in the morning. He did not see anything untoward. The house itself was not vacant, but had been left by the owners who are elderly.

I believe the husband was in a care home and I think the wife was also in some sort of a residence, so they were not actually living in the residence at the time it was broken into, but they had it alarmed; there was an alarm company. [ 3 ] Constable Eden (phonetic) was sent out, arriving shortly after the alarm went off -within minutes. It may well be that somebody was inside the residence at the time the officer was there. If I remember correctly, the officer made a reference to his sixth sense -- " spidey feelings" -- that he was concerned that there was something untoward.

It was still darkish out, after all it was the middle of January, and he left the premises. [ 4 ] The RCMP received a phone call later that day from neighbours who were assisting in taking care of the residence and upon attendance found it had been broken into and to some degree there was some damage inside. The alarm itself had been pulled out of the wall and thrown onto the floor which cost the owners of the property some $370.00 to repair.

Obviously, they were traumatized. [ 5 ] There were a number of -- I guess I will call them toy trains -- but some were I think mementos of a career by the elderly gentleman who had worked for CP Rail over his career. He had received these sorts of things I gather as part of his employment and in recognition of his years of service. He collected them. Anyway, they were stolen and it was upsetting to this elderly couple to say the

very least. [ 6 ] Also a fire extinguisher had gone off in the residence. I am not prepared to find that it was done on purpose. That was one of the key pieces of evidence against Mr. Crittenden. When he was found by Constable Eden a short distance away, walking on the road, in the company of Ms. Ochoa, he had around his neck a fire extinguisher, kind of like a pendant. It had some yellow powderish substance on it and it was consistent with the powder substance in the residence. I am not satisfied that he did it on purpose. I have no idea. [ 7 ] At any rate, I found Mr.

Crittenden guilty based on those pieces of evidence and the evidence of Ms. Ochoa. She testified that he told her had broken into the residence, that he had made a list of these train models and that he intended to sell them. In fact his fingerprints were found on that list and all of that evidence pointed irrefutably to Mr. Crittenden's guilt in being involved in the break and enter. [ 8 ] Crown suggested at the time I found him guilty that he would be seeking six to eight years in prison for Mr. Crittenden based on his criminal record. [ 9 ] Mr.

Silverman sought some time to mount his defence to the Crown's position on sentencing and was suggesting to the Court that the appropriate range of sentence is three to four years, based on the cases that Mr. Silverman cited to me in Court today from the Court of Appeal of British Columbia. Mr. Silverman suggests that the lower end of the range is appropriate, i.e. three years. [ 10 ] Mr. Silverman and Mr. Hempstead acknowledge that Mr. Crittenden should be given credit for time served in custody. He has been in jail since the 15th of January, 2010. That is approximately ten-and-a-half months.

This is before the legislation change with respect to the usual standard of two-for-one. Were I not to give him credit of two-for-one from that time, I am satisfied that that would be a reversible error based on the recent decisions in the British Columbia Court of Appeal. Accordingly, I am going to give Mr. Crittenden credit for ten-and-a-half months in custody times two which is 21 months. [ 11 ] The cases that were cited by the Crown are the decisions of R. v.

Arsenault, 1999 BCCA 578 which I guess would be considered one of the seminal cases mainly for the reference if you will in para . 7 of that decision that says as follows: [7] It sometimes seems to be lost sight of that a break and enter of residential property is a very serious offence from the point of view of the victims of that offence.

It can in some circumstances have a shattering effect upon people but, short of those extreme cases, it is a significant invasion of their privacy and of their sense of having a refuge that is immune from intrusion. [ 12 ] That is almost trite to make comment upon, however, it does seem to this Court that on occasion some courts seem to have lost sight of the fact that a break and enter into somebody's private residence is an extremely serious offence.

It is an offence that carries with it a tremendous impact on the victims of the offence, not only on the specific victims who own the property or may even be residing or occupying the premises at the time, but it also has a significant impact on the community in that it shakes even the neighbours' sense of security. It shakes the community sense of safety in their own residences and in their own neighbourhoods. These sorts of crimes go a long way to impacting what the community feels about the quality of life in their community. [ 13 ] When somebody such as Mr.

Crittenden and people like him, who although they are addicted to drugs, use criminal activity to support their habit, it has to be made clear to them, not only Mr. Crittenden, but to others, that if you are going to break into people's homes and you are addicted to drugs, you are going to pay a penalty. [ 14 ] Mr. Crittenden has 77 convictions on his criminal record that I counted. There are 25 break and enters that I counted as well as other property offences, offences of robbery and armed robbery.

He has received I think a maximum sentence served of four years although he has been given time consecutive to some of them and in 1989, for example, there were two counts of armed robbery for which he received four years. There was the use of a firearm, two charges, for which he received one year on each charge, consecutive, and possession of stolen property for which he received one year consecutive. So I do not know if that was five years or that was six years in 1989, but that is the longest sentence Mr. Crittenden has received. [ 15 ] Mr. Hempstead has argued that Mr.

Crittenden's history, his age, and his apparent inability to rehabilitate himself, suggests that his sentence should be somewhere in the range of eight years imprisonment on these charges. [ 16 ] In R. v. Arsenault , supra , the offender was 45 years of age, had a criminal history and 20 break and enter convictions; 37 convictions over a period of 26 years. Not as prolific as Mr. Crittenden, but almost the same number of break and enters. Mr. Arsenault was sentenced to four years. [ 17 ] Crown cited the decision of R. v. Alexander , 2008 BCCA 181 . In that case, Mr.

Alexander was found to be lurking in the bedroom of the female occupant of the premises and she was understandably upset by that. Mr. Alexander had a number of prior convictions and had been apparently warned by the court a couple of years before that that the Crown had argued that perhaps a life sentence should be considered for him as there appeared to be no evidence of any real possibility of rehabilitation. He was sentenced to five years in 1997 and then on the matters in January of 2005, was sentenced to three years, so he obviously did not learn from the five years.

The matter before the Court of Appeal in 2008 suggests he had not learned from anything in 2003 or 2005. He did a robbery in 2003. In that particular case, the sentence of eight years was imposed by the trial judge and the Court of Appeal considered that to be certainly within the appropriate range for an accused person by the name of Alexander. [ 18 ] I do not think that Mr. Crittenden's record or the circumstances of this offence are as serious as the case in Alexander , supra . Quite frankly, I think the Court of Appeal was correct in upholding the eight year sentence on Mr.

Alexander, but I do not think that that necessarily applies to Mr. Crittenden, although he has more convictions. It would appear Mr. Alexander's were more serious and he had been given more time for break and enters which Mr. Crittenden has not. [ 19 ] Further, Mr. Crittenden's last break and enter was I believe in 1999, although he has been active, there is no question about it. He moved out from the east in 2004 to the Chilliwack are and has been basically consistent since then getting involved in trouble with property related offences.

[ 20 ] Crown also cited the decision of R. v. Cardinal , 2005 BCPC 232 , a decision of Judge Hogan. Mr. Cardinal had a First Nations background and Judge Hogan took that into account. Judge Hogan gave Mr. Cardinal one year's credit for pleading guilty and "sparing the victims in dragging this matter out" and sentenced Mr. Cardinal to six years, which in effect was a seven year sentence. [ 21 ] Mr. Silverman cited the decision of R. v. Craig , 2010 BCCA 174 a decision of Madam Justice Levine, Mr. Justice Chiasson , and Mr. Justice Frankel which was written by Mr. Justice Chiasson . In this case, Mr.

Silverman acknowledged that there might have been some -- although I cannot understand why -- but some credit if you will that Mr. Craig had broken into a residence to protect, if you will, the honour of a friend of his. This apparently was an abusive boyfriend; Mr. Craig kicked in the door and punched him in the head. Then there was another assault matter for which he was also being sentenced.

Crown has suggested that indeed this being a separate type of offence it is a little bit different including the fact I gather that this was a guilty plea and further that in the circumstances of this offence it was more or less an assault as opposed to a break and enter although of course it was technically a break and enter. [ 22 ] Mr. Craig in that case was given a sentence of four years. Mr. Craig I gather was of Métis heritage and the court took into account his First Nations background. [ 23 ] In the case of R. v.

Hayes , 2006 BCCA 452 , another decision cited by the defence, there were I think residential break and enters. He was given a sentence of four years by Judge Pothecary of the Provincial Court. He was 51 years old, a long-term heroin addict. He broke into a residence where people were present.

There were a number of offences to which he pleaded guilty and the Court of Appeal upheld the sentence of four years, suggesting that protection of the public is one of the paramount sentencing considerations when an accused person who was at that point in their life probably not necessarily beyond rehabilitation but getting close to the point. [ 24 ] In the decision of R. v. Faulkner , again a four year sentence was imposed in the Provincial Court. The accused had pleaded guilty to four charges of breaking and entering a dwelling house, the garage area of a business and an apartment complex.

This was a chronic offender with more than 60 convictions over 26 years and an untreated cocaine addiction. He had only been out 11 days from jail when he committed these offences. He had a horrendous record. He was 44 years of age and as to rehabilitation, as the court said he was a very experienced criminal practitioner and stated "rehabilitation is really up to the applicant and I do not think it was wrong for the judge to assign the weight that he did in respect of the sentencing factors which was general deterrence, denunciation, and of course protection of the public." [ 25 ] In this case with Mr.

Crittenden I agree that those are the primary factors for the Court to take into consideration. [ 26 ] In the decision of R. v. Kory, 2009 BCCA 146 , the offender broke into a residence that was occupied by two disabled adults and their caregiver was upstairs. Kory blocked the access to the disabled victims from the caregiver by blocking the door. He went in, stole a bunch of things, could not take it all at once and when he came back for some more that he had stashed outside, he was arrested by the police.

He was 40 years of age; he had a lengthy history; his record contained convictions for 36 offences, approximately half of Mr. Crittenden's , nine of those when he was a young offender. I see nothing in Mr. Crittenden's record actually that suggests a youth record; there may have been. There were eight break and enters and 14 thefts and possession of stolen property. The effective sentence in the Court of Appeal's view was four years for Mr. Kory. He was in pre-trial custody for six months. The trial judge credited him for one year.

The Court of Appeal increased the sentence to three years giving him an effective sentence of four years. [ 27 ] In R. v. Penney , 2010 BCCA 307 , Mr. Penney was being followed by the police. It would appear that he was under surveillance and known to the police. He went to a couple of residences and eventually went into the back door of a residence, banged the door and cracked the wooden door frame. There was an occupant in the house. She called 9-1-1; hurt herself when she slammed the door, not surprisingly. Mr.

Penney was 42 years old, there were 16 or 17 convictions for various versions of breaking and entering and his longest sentence has been four years. Mr. Penney was sentenced to an effective sentence of four years. The Court of Appeal upheld that. The Court of Appeal made a comment at para . 13 as follows: [13] In this case it is notable that Mr. Penney is a mature man, he has a long record for such offences including ones that have attracted sentences of 2 years and 4 years incarceration, he appears to have planned the offence as he visited another house first, and he created harm to the occupant of the house.

Previous sentences have done little to deter Mr. Penney from offending and the judge was entitled to consider a relatively stern response was appropriate, so as to demonstrate to Mr. Penney, and persuade him he should refrain from similar behaviour when he is released again. 1999. The sentence of one day is virtually derisory and meaningless. If the Crown at trial had asked for a sentence in a range beyond four years, I would have given serious consideration to imposing such a sentence in order to provide some substantial period of protection to the public. However, four years is within the range of fitness.

In respect of the April 13 offence, I would grant leave to appeal, set aside the sentence of one day, and impose a sentence of four years. I would issue a warrant of committal in respect of that sentence. [ 28 ] Again, Arsenault , supra , was cited including that seminal quote about the fact of the impact of break and enters on the citizens who are victimized by these criminals. [ 29 ] In the case of R. v. Groleau , 2010 BCCA 363 , Mr. Groleau pleaded guilty to break and enter. He had spent seven months in custody. He was sentenced to 36 months reduced to 22 months after giving him credit.

The effective sentence was of three years and four months and that was upheld by the court of Appeal. He had an extensive criminal record which dated back to 1984, ten years after Mr. Crittenden starts. He was on probation for a prior conviction for break and enter related offences. His record, relatively uninterrupted, consisted of 58 convictions prior to the date, 38 prior break-and-enter convictions, two attempted break and enters, and other property related offences.

At para . 12 the Court of Appeal said: [12] The sentencing judge considered the purposes and principles of sentencing, including deterrence, denunciation, and Mr. Groleau's rehabilitation, but concluded that the paramount concern to be addressed was the need for the protection of the public. [ 30 ] Mr. Groleau had attended the Burnaby Centre for Mental Health and Addiction at the time. He had an opportunity for that when he was sentenced. There were no errors found. [ 31 ] In the decision of R. v. Thomas , 2009 BCCA 233 , Mr. Thomas broke into four different houses during the daylight hours while

the residents were away from their homes. The homes were in every case ransacked and left in a mess. None of the property was recovered. He stole a number of items. He was 36 years old; he had long-standing substance abuse problems particularly with alcohol and crack cocaine; he had 23 prior criminal convictions, ten for breaking and entering. His most recent convictions occurred in April 2007. He had been sentenced to an effective sentence of 29 months.

The Court of Appeal sentenced him to a further four years in custody consecutive to the sentence in April 2007 and an order that a DNA sample be taken. [ 32 ] Mr. Crittenden it should be noted was on probation when he committed the offences that are before me. He was on probation for theft, possession of stolen property -- two convictions for that -- drug convictions, a breach of recognizance, fraud and possession of break and enter tools. He had received eight days in jail plus 112 days time served. He had two years probation for that and was obviously on probation.

He had been out for about three months when he committed this offence. [ 33 ] This is really just a numbers game. The Crown has sought a sentence of eight years and I think that that does not fit truly with the cases that are before me, particularly the Alexander , supra , case. [ 34 ] Given the circumstances of Mr.

Crittenden's criminal history, the fact that he was on probation at the time, and the fact that he has had a relatively consistent run of criminal offences since 1984; I have heard that he was not given much of a chance as a youth, but the reality is that at 52 years of age now it is up to him to turn himself around. I have to be concerned with deterrence to Mr. Crittenden and deterrence to others of like mind who wish to break into people's homes and steal their things.

I also have to be concerned about protection of the public. [ 35 ] Accordingly, I am satisfied that an appropriate sentence in this case would be a sentence of six years which is 72 months. If I take off the 21 months for credit that gives Mr. Crittenden a further 51 months in jail, which is just a little bit over four years and accordingly I sentence him to 51 months in jail from today's date. [ 36 ] I have made the order for provision of a DNA sample, and I have made the separate stand alone compensation order. [ 37 ] With respect to the breach charge of his probation order, I am sentencing Mr.

Crittenden to five months in jail to be served concurrently with the sentence on the break and enter. ________________________ R.B. Caryer Provincial Court Judge