R. v. Colling and Unger Date:, 2012 BCPC 536

Citation: R. v. Colling and Unger Date: 20120716 2012 BCPC 0536 File No: 58516-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NICHOLAS WILFRED COLLING and RODNEY ALLEN UNGER ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. W. JARDINE Counsel for the Crown: L.E. Stevens Counsel for the Defendant: S. Paterson

Place of Hearing: Chilliwack , B.C. Date of Hearing: July 16, 2012 Date of Judgment: July 16, 2012 [ 1 ] THE COURT : I will commence my reasons for sentence this morning and then I will adjourn to 1:30 p.m. to complete them, giving me an opportunity to reflect on the lengthy submissions of Ms. Paterson and the written submissions provided by Mr. Waldock filed with the Court as at July 13th, 2012.

The Facts [ 2 ] Following a trial in which the accused testified in which findings of credibility were made, I made findings of fact with respect to both Count 1 and Count 3 as it pertains to both Nicholas Wilfred Colling and Rodney Allen Unger. [ 3 ] The facts disclose that the two of them, on the 3rd day of October, 2010, at Boston Bar in the Province of British Columbia, entered onto the mill site of J.S. Jones and entered into the whole log chipper building where the two of them were found on the attendance of Constable Thackray and Mr.

Thomas, the security officer and the mill representative. [ 4 ] They did not seek permission to go into the property from Mr.

Thomas or any person, but had gone into that building with a series of tools as are disclosed in the exhibited photographs and with the intent of determining on the facts before me what it was that was still of value that they could salvage for the purposes of metal salvage from that place. [ 5 ] On the basis of the evidence before me, the only reasonable inference to be drawn was that the two of them knew what they were doing was wrong and knew they were, by the taking of the tools and by the use of the tools, embarking on a process of either assessing what they intended to take, or embarking on the task of taking, metal objects for scrap they salvaged from that place.

In particular, it is noted that this was during the late afternoon. There was noise at the site. [ 6 ] As a result of the noise, they had attracted attention and the police were called. When the police were called, Mr. Thomas who attended in company with Constable Thackray onto the premises through the gate, went to the area below the chipper. He could hear Constable Thackray yelling at Messrs. Colling and Unger the command, "Come out with your hands up; this is the RCMP". He observed two heads at the opening at the side of the chipper building.

He honked and the two men went back into the building; they came out; they were arrested. Mr. Unger, within moments of being stopped by the officer, said "I was wrong and I apologize". [ 7 ] What is clear from the area of the machinery in the whole log chipper building is that other persons had already helped themselves to a considerable quantity of copper from the machinery. [ 8 ] The Crown conceded at the time of trial and concedes at this point that the break into the whole log chipper building was a constructive break, pursuant to the law, and that the attempt at theft inside the whole log chipper by Messrs.

Colling and Unger caused "no known damage or loss of property". [ 9 ] What is clear is that the work done by previous thieves to the machine or electric motor, and the mischief committed by Messrs. Colling and Unger, had reduced the value of the chipper from around $10,000 to a value of $1,000. On the evidence before me, there is no victim impact attributable to Mr. Colling or Mr. Unger as to the costs to J.S. Jones by their actions on the 3rd of October, 2010. There is, however, the fact that metal theft from that mill site within a time span leading to October of 2010 cost the corporate owner J.S.

Jones some $400,000 to repair. [ 10 ] We are then in the circumstance where the Crown submits we consider this an attempt theft combined with a breaking into a commercial premise and that, given the prevalence of the offence of metal theft in the community, is an aggravating factor from a factual perspective. [ 11 ] That theory of the Crown is confronted by Ms. Paterson's submission where she says the moral blameworthiness of her clients should be assessed, having regard to the fact that their actions led to no economic damage to the complainant due to them being caught in a short period of time.

She says that is an ameliorating factor and that the Court should find that that is a mitigating factor in the imposition of a fit and proper sentence in the case at bar. [ 12 ] The other relevant factual aspects for the purposes of determining the fit and proper sentence is reflected in Exhibit 1, the criminal record of Mr.

Colling at this sentencing, which discloses that he has, from a relevant perspective, a conviction on the 30th of April, 2008, in Chilliwack for the offence of theft under $5,000, and a conditional sentence order for a period of one year imposed at that time; that subsequent to that there was on the 24th of September, 2009, a conviction here in Chilliwack, in the Province of British Columbia, for assault with a weapon and he was given a suspended sentence and probation for 18 months.

He was therefore on probation at the time of this activity in October of 2010. [ 13 ] The other factually relevant features which are not aggravating features but which reflect his character and the ability of the Court to be satisfied that he would comply with probation and otherwise comply with court orders such that the Court should consider a conditional sentence order under s. 742 of the Criminal Code , is the fact that he has two other convictions for which he is awaiting sentence.

One which is before The Honourable Judge Dickie involving scrap metal theft; and the other a weapons offence for which he is to be sentenced I am told by another jurist of this Court on August 31st, 2012. [ 14 ] Those are not aggravating features but they reflect the fact that he is in a position where he is facing sentencing on three matters this year.

[15] Mr. Unger is in a completely different circumstance. Mr. Unger's criminal record discloses that he has one set of charges whichresulted in convictions and sentence on the 4th of May, 2009, here in Chilliwack.

He was given credit on a two-for-one basis of pre-sentence custody of something in the range of 102 days, just over three months, on possession for the purposes of trafficking, possessionof property obtained by crime, and possession of a firearm contrary to s. 92(1) of the Criminal Code. [16] It would appear that there was no probation order imposed and he was, at the time of these matters I am told, in a positionwhere he has had no work. He had been living on welfare. He was living on Columbia Valley Road. He is separated and living on hisown.

He has animals that he looks after, and is not working. [17] It is significant that on the evidence before me, Mr. Unger took the initiative on the date of the offences and his testimony,combined with Mr. Colling's testimony, was such that it is apparent that he had information about the mill, he supplied the tools, and hewas the one initiating the attendance on that premise for the purposes of accessing metal.

He is therefore, having regard to s. 718.1 ofthe Criminal Code, the person with the most moral blameworthiness. [18] Before I leave the factual determination to consider and reflect on the purpose and principles of sentencing, I will address oneargument made by Ms. Paterson. [19] Ms. Paterson submits that the moral blameworthiness of her clients in this matter was minimal. She says I can find with respectto the fact that there is no economic damage done to the complainant. The economic damage done by Messrs.

Colling and Unger is niland that is therefore an ameliorating or mitigating factor leading the Court to consider a conditional sentence order for each of her clients,both Mr. Colling and Mr. Unger. [20] With respect, that is not what s. 718.1 provides. A sentence according to the Criminal Code "must be proportionate to thegravity of the offence and the degree of responsibility of the offender". In considering those words, I am driven to consider the languageof Mr. Justice Lamer (as he then was before he was Chief Justice) in R. v.

M.C.A., (SCC), [1996] 1 S.C.R. 500 at pp.557 and 558. [21] When we talk about moral blameworthiness and the principle of proportionality and the context of a fit and proper sentenceinvolving the principle of restraint, there are two factors to be considered. One is the moral culpability, the moral blameworthiness. Inthis case it is high in my view. The reason it is high is because everyone in the community, no matter whether they are in the courts orworking for Telus or working for Shaw or working for Bell or working for any other utility such as Hydro, is conscious of the costs ofmetal theft in the community.

What that means is that there is foreknowledge, there is forewarning of the fact that metal theft is aproblem. That is the moral blameworthiness issue. [22] However, s. 718.1 has two prospects to it and where Ms. Paterson is correct is in the gravity of the offence portion because thegravity of the offence must be regarded in relation to the "consequential harm caused by the offender in the instant case" and to thatextent Ms. Paterson is correct. [23] The gravity of this offence must be measured having regard to the fact that there is no attributable economic loss to J.S. Jonesby the activities of Messrs.

Colling and Unger because they were caught before they had done any significant removal on October 3rd. They were stopped in the midst of their activity. This is not a circumstance where they stopped on their own. They were stopped by theattendance of the security guard and the police. That said, the moral blameworthiness I say is significant; the gravity of the offence isnot. [24] So from the proportionality principle, we are in a position where this is not the most serious of the offences, but the moralblameworthiness of Mr. Colling and Mr.

Unger is at an elevated status. [25] I think that is an appropriate place for me to break, having made those factual determinations for the purposes of determiningthe fit and proper disposition. We will adjourn until 1:30 p.m. Thank you. [PROCEEDINGS ADJOURNED] [PROCEEDINGS RECONVENED] [26] I will continue my reasons for sentencing as it pertains to Mr. Nicholas Wilfred Colling and Mr. Rodney Allen Unger. The Positions of the Parties The Defence Position [27] As I understand the submissions of Ms. Paterson on behalf of Mr. Colling, her lengthy submissions related to Mr.

Colling's rolein the offence on which he is to be sentenced because of course a judicial stay was entered on Count 3 at the conclusion of theproceedings last day. [28] Ms. Paterson submitted that given his circumstances of being 51 years of age; married; with Hepatitis C and chronic arthritis; adisability pension arising out of a back injury suffered in a motor vehicle accident where his vertebrae is thinning; that the fit sentence tobe imposed by the Court, having regard to the lack of economic damage done to the complainant, is that of a conditional sentence order. [29] Now, Ms.

Paterson did not address the length of the prison term to be allowed to be served in the community, but submitted thatif there are other ways of punishing an offender dealing with general deterrence, that it is better from the perspective of the Court, thecommunity, and this offender; that he be permitted to serve his sentence in the community, both from a cost-effective basis and from arehabilitative perspective. [30] Mr. Colling has asserted at trial and he asserts again today that there was no criminal intent on his behalf. That is not the

finding of fact at trial nor is it my conclusion as to the roles of Mr. Colling and Mr. Unger when they attended to the mill site on October3rd, 2010. To the contrary, they were reckless and their intent was to access metals for the purposes of taking them to a scrap metaldealer for the purposes of getting funds. [31] With respect to Mr. Unger, he was born July 7th, 1960, and he lives on Columbia Valley Road. He is separated from his wife. He has some grandchildren and he sees his family. He was raised in Washington State in the United States of America, returning toCanada some nine years ago.

He has conducted himself as a car salesman for employment. He came to Canada and from December of2003 to December of 2006 he was involved in managing a warehouse for a trucking company. He had his own landscaping business in2006 up to his incarceration it would appear somewhere in early 2009. He has not worked since he was released from jail in 2009. He iscurrently on welfare. He tells me as well he has a ruptured disc. One wonders about the weight of the tools and the nature of the workto salvage metals if one has a bad back. [32] Ms. Paterson, on behalf of Mr.

Unger, submits that a two-month conditional sentence is the fit and proper sentence due to hisapology and the lack of severity of the offence. It is common to both the case of Mr. Colling and Mr. Unger that Ms. Paterson has takenthe view that a period of incarceration is warranted given the nature of the offence and the findings of fact of the Court. She has notmade a submission that a suspended sentence and probation or a fine is a means of dealing with the general deterrence aspect here. [33] She is relying solely on the finding of Mr. Justice Lamer (as he then was) in R. v.

Proulx, 2000 SCC 5 , [2000] 1S.C.R. 61 in the Supreme Court of Canada in which he said that a conditional sentence is available for all offences in which the statutoryprerequisites may be satisfied and that the principle of deterrence could be met by the imposition of onerous terms including house arrestor strict curfews. The Crown's Position [34] Crown counsel, Mr. Waldock, has filed a written submission; Ms. Stevens has not departed from it.

It is his submission withrespect to this matter that the appropriate range of sentence is from zero to ten years, a conditional sentence or real jail, and theappropriate sentence in terms of Messrs. Colling and Unger is in the range of four to six months. He is however submitting that the fitand proper disposition does not involve a conditional sentence order and the reason for that is, he is submitting that in the case of Mr.Colling, he has by his record demonstrated that he poses a risk; and in the case of Mr.

Unger, with respect to the nature of this offenceand a conditional sentence is appropriate, it may be that the Court might consider significant house arrest. The logistics of a significanthouse arrest for a residence in the country such as at Columbia Valley Road poses problems from a logistical perspective in terms ofensuring compliance with the terms and conditions and that of course is one of the issues to which I must address myself here.

The Purpose and Principles of Sentencing [35] The fundamental principle of sentencing is set out in s. 718.1 in that the sentence must be proportionate to the gravity of theoffence and the degree of responsibility of the offender. [36] As I indicated during the course of argument by counsel, it is my view with respect to this matter that the gravity of the offenceis not the most significant but the degree of responsibility of the offender is at an elevated level. [37] I say that because of the nature of the premises, the fact that we are dealing with a mill site which was bounded on the highwayside by a significant fencing and gating perspective, and the circuitous route by which the parties entered the premises were donespecifically to avoid detection.

Moreover, the nature of the premises and the carrying of the tools of the nature found by the Court in thisinstance was such that there was a significant amount of effort put in by both Mr. Unger and Mr. Colling to attend upon this place for thepurposes of acquiring, or planning to acquire, the property of J.S. Jones. Therefore, I am of the view that the degree of responsibility ofthe offender as I have indicated is of an elevated factor.

I say so having regard to the intentional risk-taking of these offenders,notwithstanding the fact that the consequential harm caused would not have been of a significant or grave factor. [38] We are therefore to incorporate a principle of restraint to the imposition of a sentence in such a case to arrive at just anappropriate punishment and nothing more which is the language of the Supreme Court of Canada in R. v. M.C.A., supra, at pp. 557-558. [39] I will deal next with the forceful submissions by Ms.

Paterson that a conditional sentence order is appropriate in the case at bar. [40] I am of the view, with respect to the purpose and principles of sentencing, that in order for the Court to impose just sanctions inthis case that denounce the nature of the unlawful conduct and deter these offenders and other persons in a general sense fromcommitting offences, where they are accessing mill sites and taking metals away from mill sites, whether they have been operating sitesor are in some form of disarray being auctioned or sold off, is such that there has to be a general deterrence. [41] I am not of the view that the emphasis in the sentencing of this case will involve the rehabilitation of either of these offenders.

They are not young; they are both middle aged; they are 51 years of age and 52 years of age; they are in a position where both of themhave since 2008 involved themselves in criminal activity. [42] I am therefore of the view that trying to provide reparations through these two men who are having difficulty working and apromotion of a sense of responsibility in the offender is one which must be given less weight at sentencing.

We therefore come back tothe question of punishment to deter and the imposition of a conditional sentence. [43] It is correct that Chief Justice Lamer (as he is retired and is no longer with us) has indicated that conditional sentences canprovide general deterrence. He did so in Proulx, supra, and he made it abundantly clear that there is no presumption that conditionalsentences are inappropriate for specific offences. [44] However, with respect to Mr. Colling, it is my view that a conditional sentence is inappropriate.

I say that because the safety ofthe community, which is one of the criteria to be considered by a sentencing judge, refers only to the threat imposed by a specificoffender and not to a broader risk of undermining respect for the law. In the case of Mr. Colling, I say so because it involves his criminal

activity since 2008. [ 45 ] Justice Lamer used this language: "A trial judge in sentencing must apply the following consideration, that 'safety of the community' includes consideration of the risk of any criminal activity including property offences". Those are Justice Lamer's words, not mine, and I would adopt them for the purposes of Mr. Colling's sentencing here today. [ 46 ] Therefore in considering the danger to the community, I must consider the risk of the offender re-offending and the gravity of the damage that could ensue.

The risk should be assessed in light of the conditions that could be attached to the sentence and the danger that Mr. Colling might pose may be reduced to an acceptable level through the imposition of appropriate conditions if I thought he would follow the Court order. But he committed this offence while on probation and he is in a position where I cannot have any confidence whatsoever that Mr. Colling will comply with a conditional sentence order given the fact that he committed this offence while on probation. [ 47 ] In the case of Mr. Unger, the question is somewhat more difficult. Mr.

Unger was not on probation at the time of this matter and he does not have a lengthy criminal record. He does not have the number of convictions that Mr. Colling has. He made an immediate apology to the police officer. His intent was obvious from the nature of the tools that he carried and the work on which he had started. He was stopped by the police attendance. He does have a record.

He has no real roots in the community, and there is little prospect of him rehabilitating himself because he has no prospects for employment, he has not worked for the past three years, and there is evidence that he has been turning to salvaging in order to gain extra monies above his welfare monies. [ 48 ] From the prospective of Mr. Unger, therefore, the only issue is whether or not from a logistical perspective he is in a position to comply with a house arrest provision.

While it would appear that he is living in rented premises, he is trying to work at the premises for the purposes of working off the payment of rent and he has little prospect for real work in the community. He has therefore been going out and salvaging metals for the purposes of topping up the welfare payments. [ 49 ] In the context of this circumstance, I am not of the view that I can impose the type of conditions that would be sufficient to enable him to serve a conditional sentence in the community.

I am reminded of the fact that Justice Lamer said that house arrest or severe curfew conditions should be the norm, not the exception. [ 50 ] In light of the logistics and the nature of this accused and the nature of the offence and his circumstances, I am not of the view a conditional sentence is appropriate for him. [ 51 ] Having regard to the overall aspects of sentencing, I must of course have regard to s. 718.2. [ 52 ]

Section 718.2(

b) provides that the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, that the offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. [ 53 ] It is common to the argument of both Mr. Waldock and Ms. Paterson that jail is appropriate. The difference between their two positions is that Mr. Waldock submitted -- and that is echoed by Ms.

Stevens today -- that incarceration, in other words "real jail", is appropriate in the context of this matter. He is joined by Ms. Paterson, but Ms. Paterson says that the jail sentence should be permitted to be served in the community under a conditional sentence order. They are therefore both of the view that a period of incarceration is a fit sentence. The question is whether or not a conditional sentence should be imposed. I have already dealt with that issue. [ 54 ] What then is the fitting disposition?

Well, having regard to s. 490(9)(c), I will deal first with what we will call the ancillary orders. [ 55 ] There will be an order with respect to the exhibits in the possession of the Royal Canadian Mounted Police which were not filed all of them in Court but an order pursuant to s. 490(9)(

c) that the grinder, the Ryobi electric saw, the large blue bolt cutters, the large straight pry bar, the hand tools, the backpack and the burlap sacks will be returned to Mr. Unger. I do not know how you could be in a position to argue with that, Ms. Paterson, unless Mr. Colling possessed some of those items and that would put you in an untenable conflict. [ 56 ] In addition, there is a disclaimer with respect to the flashlight which was seized by the police, and pursuant to s. 490(9)(c), the flashlight will be returned to J.S.

Jones or their representative. [ 57 ] In addition, having regard to the provisions of the Criminal Code dealing with the imposition of sentence, I am of the view that the fit and proper sentence here for each of these offenders for the following reasons is three months. [ 58 ] In the case of Mr.

Colling, I impose the sentence of three months because in my view he was on probation, his record is such that he poses a risk in the community; he carried the tools in; he was aware; he has made a subsequent apology to the Court today; he has roots in the community; he has family; he has health concerns; but he is facing other sentencing matters, and three months is a fit and just sentence in my view. [ 59 ] With respect to Mr.

Unger, the three month sentence is based on the fact that he took the initiative; he was the one who found the route to go into the mill; he was aware; he indicated that it is his practice to go and speak to property owners in order to salvage; he is aware of the intent; he was stopped by the police in the course of the work; he has a minor record; he has no real roots in the community; he has with respect to the matter family in Washington State in the United States of America and he cannot attend because of immigration problems due to his drug conviction; he has not worked for the past three years; and there is evidence he has been turning to salvaging to top up his welfare. [ 60 ] In light of ss. 718.1 and 718(

a) and (

b) and the fact that I am of the view that I have to place a lesser emphasis on rehabilitation and that protection of the public is really not an issue. We are dealing with general deterrence here and that reparation and promotion of

responsibility are also of lesser importance and significance to this sentencing. I am of the view that the fit and proper sentence for Mr. Unger is three months. [ 61 ] I have come to that conclusion because of the lack of damage done. Had there been significant damage done to that machine, I would be of the view that the Crown's suggested range of some four to five months would have been appropriate, but given the nature of what I will call the gravity of the offence, I am of the view that a lesser sentence of three months is fit. For those reasons the sentence will go on that basis. [ 62 ] MS.

STEVENS: Thank you, Your Honour. [ 63 ] THE COURT: Thank you for your assistance, counsel. [ 64 ] MS. PATERSON: Your Honour, is it possible to delay my clients going into custody until, for instance, tomorrow to give them a chance to take care of the animals, and so on, in their care? [ 65 ] THE COURT: No, he can make arrangements through friends for the purposes of getting the cats. He should have come today knowing exactly what might happen. So, as much as I would like say yes, no, we will have the imposition of the sentence be today. Thank you. (ORAL REASONS FOR SENTENCE CONCLUDED)