R. v. Rautenberg Date:, 2011 BCPC 259

Citation: R. v. Rautenberg Date: 20110927 2011 BCPC 0259 File No: 58212-3C Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JORG RAUTENBERG BAN ON DISCLOSURE Pursuant to s. 486.4(1) and 486.5(1) of the C.C.C. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE MACKAY Counsel for the Crown: J.D. Hempstead Counsel for the Accused: D.H. Albert Place of Hearing: Chilliwack , B.C. Date of Hearing: September 27, 2011 Date of Judgment: September 27, 2011 [ 1 ] THE COURT : Mr. Rautenberg is now before me for sentencing.

I have convicted him of the assault of Sandy Allen, one of a number of counts he faced in this matter. [ 2 ] The Crown is urging me to impose a sentence of between 12 and 18 months’ jail, followed with a probation order for a period of two years with a number of conditions. Most of the conditions are not controversial, they would mirror the conditions that were imposed on Mr. Hill who was at one time the co-accused of Mr. Rautenberg and who pleaded guilty in July. [ 3 ] Crown also seeks a DNA order.

This is a secondary offence, but under the circumstances of the commission of this offence, the Crown is justified in asking that I make a DNA order. [ 4 ] Mr. Rautenberg comes before the Court with a criminal record that includes convictions for various offences but, by this time, the most recent offence is approximately nine years old. There are convictions for drug offences, including trafficking offences in 2001, and possession for the purposes of trafficking in 2002.

There is a forcible confinement from 2000 that appears to be from a quick glance at the record the most serious prior offence, but according to Mr. Albert's submissions he has managed to stay out of trouble largely up until this incident took place for the period since his last conviction. [ 5 ] Mr. Rautenberg is 47 years old, born in Germany, now a Canadian citizen. He arrived here when he was a teenager. His mother

died shortly after arrival and he was then raised by an aunt and uncle. He has grade ten from high school and he has worked since leaving high school in labour and demolition. He is an automotive technician. Most recently he has worked as a trucker. He has three daughters with one woman he was married to. Those daughters are now either in their late teens or early twenties. He also has an eight- year-old son who lives in Manitoba with his mother. [ 6 ] Mr.

Rautenberg has spent the last year and a few weeks, I suppose to be precise about it, in custody awaiting the resolution of these charges. [ 7 ] I am told by Mr. Albert that the circumstances were oppressive. He was initially double-bunked. He found himself stigmatized because one of the charges he faced was sexual assault. [ 8 ] Whether or not it had anything to do with that, he was stabbed in the head while he was in jail and consequently separated from the general population. So he has done what used to be referred to as "hard time," that is, placed in segregation and in protective custody.

He has started a lawsuit, I am told, about that and is most anxious that he turn the corner on this

chapter of his life. [ 9 ] According to instructions given to Mr. Albert, he does not have per se problems with drug or alcohol, he has never considered himself addicted, and therefore does not need counselling, in his view. [ 10 ] Mr. Albert, to summarize his submissions, says that given the length of time since the last offences committed by Mr. Rautenberg, and the circumstances of this offence, specifically that really at the end of the day Mr.

Allen was not left with any lingering physical injury, a sentence of three to six months would be appropriate, factoring all these things into account. [ 11 ] He agrees that probation is appropriate and, as I understand his submissions, does not take great issue with most of the conditions that are proposed by Crown, excepting again that Mr. Rautenberg does not admit to needing counselling. Also, because his client is a hunter, Mr. Albert asked that I not impose a lifetime ban on firearms. [ 12 ] In my view, the circumstances of this assault, while they did not leave a lingering physical mark or effect on Mr.

Allen, were nonetheless very serious. Mr. Rautenberg clearly assaulted Mr. Allen in the course of trying to intimidate him; classic "bully behaviour". Beyond that, really: to call it "bully behaviour" is an understatement. This was a prolonged attempt at intimidation that, although leaving no lingering physical injuries to Mr. Allen, in my view would have necessarily had a deep psychological and emotional effect on anybody. So I take that into account. [ 13 ] It is true that Mr. Rautenberg is before the Court having kept himself out of trouble for a number of years. I do factor that into account as well.

Otherwise, I would be inclined to impose a sentence of something in the upper range of what the Crown proposes. It is my view really -- to cut to the chase here -- that a three to six month sentence would not reflect the serious nature of the circumstances. [ 14 ] I am of the view, that a sentence of 12 months’ imprisonment, taking all factors into account, particularly the factors I must consider under the Criminal Code , R.S.C. 1985, c. C-46, and the principles of sentencing, would be the appropriate sentence here. [ 15 ] I have considered Mr.

Albert's submissions about granting some time or something more than one-to-one time to Mr. Rautenberg in view of the circumstances that he has been enduring the last year and without getting into any kind of a rigid or precise formula, I can say that I have factored that into account in the imposition of the 12-month sentence. I am not going to specify any more than that, but had he not been subjected to those conditions, I would be inclined again to impose something in a higher range between perhaps 15 and 18 months as the Crown sought in terms of the top end of the range.

So the sentence will be 12 months. [ 16 ] He has, of course, been in custody for more than 12 months, so to make the sentence a lawful sentence, it will be a sentence of time served plus one day, but the record will reflect 12 months. [ 17 ] In addition, there will be a period of probation for a term of two years.

The conditions will be as follows: 1. keep the peace and be of good behaviour; 2. you will appear before the Court when required to do so by the Court; 3. you will notify the Court or your probation officer in advance of any change of name or address and promptly notify the Court or the probation officer of change of employment or occupation; 4. you will report in person to a probation officer within 72 hours of your release from custody at the office of Chilliwack Community Corrections on Wellington Avenue, Chilliwack, B.C. and thereafter you will report as and when directed by the probation officer, in the manner directed by the probation officer; 5. you will inform your probation officer of your residential address and telephone number and not change that address or telephone number without prior written notice to your probation officer; 6. you shall have no contact or communication, directly or indirectly, with Vernon Hill, C.J., Joseph Sandy Allen, Julia George, John Alphonse George, Anna Rajic; 7. you shall not possess any weapons as that term is defined in s. 2 of the Criminal Code . [ 18 ] I have taken into account what you said about his self-diagnosis of his lack of drug problems, Mr.

Albert, and with respect, I am going to impose a prohibition on him: 8. you are not to possess or consume any alcohol or non-prescribed drugs. [ 19 ] If in fact he has no drug problem, then that tells me that he has got a severe psychological problem that has caused him to view

the world in such a way that he committed these acts or thought he had the right to commit these acts. If that is not due to a drug problem, then something else is bedevilling him which leads me to pronounce some counselling conditions that I will get to in a moment. Nevertheless, there is going to be that prohibition in place. [ 20 ] The other thing that I stress is that it is a self-diagnosis, and people with drug and alcohol problems are notoriously the last people in the world to realize that they have drug and alcohol problems.

If he can convince the probation officer that he is dealing with that he does not have those problems, then the probation officer will be able to relieve him of onerous or unnecessary conditions in that regard. [ 21 ] I am going to pronounce the counselling condition that is similar to Mr. Hill’s: 9. You shall attend for, participate in, and complete to the satisfaction of your probation officer any counselling or program as directed by the probation officer.

Without limiting the generality of this condition such counselling or program may in the discretion of the probation officer include counselling for alcohol or drug abuse, residential treatment for alcohol, drug abuse and/or counselling for anger management. [ 22 ] I have considered the case the Crown has made for a DNA order and I am convinced that given the nature of the evidence and circumstances that a DNA order, although it is a secondary offence, is warranted in these circumstances. I will make that in the usual terms. [ 23 ] As to a firearms prohibition, Mr.

Hempstead asked for a lifetime prohibition – [SUBMISSIONS BY COUNSEL] [ 24 ] THE COURT: Nevertheless, it is somewhat academic because I am in agreement with the Crown that it is appropriate here. I make the prohibition order under s. 109; it will be for life.

After two years, as I understand the way things settle down, he can continue to hunt with bow and arrow, but under the circumstances I am convinced it is the proper order to make and I do make that. [ 25 ] There will be a forfeiture order for the firearms and the ammunition that were seized. [SUBMISSIONS BY COUNSEL] [ 26 ] THE COURT: Two further conditions: you will not attend at the residence, school or workplace of any of the named individuals that you are to have no contact with, as may be known to you or may become known to you.

Further, you will not attend at or within a radius of 100 metres of 8150 Aitken Road in Chilliwack. _______________________ R.C. MacKay Provincial Court Judge