R. v. Manulik Date:, 2012 BCPC 540

Citation: R. v. Manulik Date: 20121009 2012 BCPC 0540 File No: 60295-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TOMASZ MANULIK ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE BULLER BENNETT BAN ON PUBLICATION Pursuant to s. 486.4(2) Criminal Code of Canada Counsel for the Crown: R. Browning Counsel for the Accused: K. Neurauter Place of Hearing: Port Coquitlam , B.C.

Dates of Hearing: September 5, 13, 17 & 25, 2012 Date of Judgment: October 9, 2012 [ 1 ] THE COURT : Earlier this year, Mr. Manulik pleaded guilty to a charge on Information 60295-1 that between the 1st day of February, 2000 and the 13th day of March, 2000, at or near Coquitlam, in the Province of British Columbia, he did procure A.J. T. to become a prostitute, contrary to s. 212(1) (d)of the Criminal Code . [ 2 ] Between February 1st and March 13th of the year 2000, Mr. Manulik who was 23 years old at the time, attempted to persuade Ms. T., who was 19 years old at the time, to engage in prostitution.

He had three conversations with her in person and there were two telephone messages. Throughout, Mr. Manulik encouraged Ms. T. to engage in prostitution to make some money. He set out the prices that she would charge for various sexual acts and also told her how to find customers. [ 3 ] I should point out that there was no violence involved and this was not a boyfriend/girlfriend relationship. Rather, they had met each other on the internet. [ 4 ] Ms. T. did not go on to engage in prostitution. Ms. T. did provide a victim impact statement. She does remember the incident with Mr.

Manulik but there has been no lasting impact on her. She has moved on and attributed much of what happened to her youth. [ 5 ] Turning now to Mr. Manulik. [ 6 ] It is important to understand the history of the charge given it was about 12 years ago. Back in May of 2000, Mr. Manulik was arrested and released on an undertaking to an officer in charge. The matter went through the system and he elected trial by Provincial Court judge. His first trial date was February 16th, 2001. [ 7 ] In January 2001, Mr.

Manulik did not appear for the trial confirmation hearing and ultimately a bench warrant was issued on January 29th, 2001. Mr. Manulik was in Ontario. He went to Ontario to simply avoid the court process. He appeared in British Columbia in August of 2004. He was released by a judicial justice on an undertaking without conditions. To March of 2005 there were interim appearance dates and ultimately the matter was set for trial on the 29th and 30th of March, 2005. [ 8 ] On March 29th, 2005, Mr. Manulik entered a guilty plea and there were reports ordered with a returnable date for later on in the summer.

In August 2005, Mr. Manulik's counsel went off the record and in September of 2005, a bench warrant was issued for Mr. Manulik. That warrant was outstanding until June 14th, 2012 when Mr. Manulik was arrested roadside in Ontario. He was brought back to British Columbia by the Sheriff Services. [ 9 ] Mr. Manulik now is 35 years old. He has a Grade 10 education and some trades training. While in Ontario he became a family man. He has a common law partner; he has a 12-year-old stepson and a six-month-old daughter. He is the sole financial support for his family.

He has worked I gather quite successfully doing renovations and carpentry work. [ 10 ] About a year and a half ago, Mr. Manulik was diagnosed with several mental health issues including but not limited to post traumatic stress disorder, ADD, and multiple personality disorder. [ 11 ] His mother resides in the Lower Mainland and has been very faithful in coming to court with him. [ 12 ] Back in 1993 when Mr. Manulik was 17 years old, he started using crack cocaine and alcohol to the point of abusing both. In 2001 he started using methamphetamine, however very much to his credit Mr.

Manulik has been clean from drugs since December 13th, 2007. He has work available in British Columbia and he can live with his mother in Surrey. He intends to move his family out to British Columbia. [ 13 ] At the time of committing the offence back in 2000, Mr. Manulik did not have a criminal record, however, he has convictions in 2006 for theft over $5,000 and mischief over $5,000 as well as property obtained by crime under $5,000. There have been two breaches of the probation that was ordered as part of his sentence in 2006.

He has convictions in 2010 and 2012 for breaching his probation which I understand has to do with failing to pay a restitution order amongst other things. [ 14 ] Crown says that the sentence should be jail in the range of 12 to 24 months less time served, that it should not be a conditional sentence order given the obvious flight to Ontario. I should impose time served at the rate of one-to-one varying the usual two-to-one. I just put out for the record that this offence predates the Truth in Sentencing Act .

Crown also seeks a DNA order. [ 15 ] Defence counsel says that the sentence should be jail in the range of three to six months, followed by probation. Defence counsel asks me to consider time served as being sufficient to meet the principles of sentencing, and to impose probation aimed at rehabilitation. [ 16 ] Mr. Manulik is very sorry for what he did do and according to the author of the pre-sentence report would be outraged if someone said these sorts of things as he said to his own daughter.

He understands now after spending time in custody that he has hurt not only his family, but himself and others, and is most regretful and remorseful for what he did do. [ 17 ] Mr. Manulik, I give you credit for the fact that you have pleaded guilty which is very much in your favour, sir. You were young back in 2000 and you did not have a criminal record. You suffered from an addiction and it appears that you had some undiagnosed mental health issues. You are sorry for what you did do and I know now you understand the seriousness of what you did do.

You have not committed similar offences. [ 18 ] There are though factors that work against you. They are called aggravating factors when it comes to sentencing, sir. Although

this was classified as an attempt, it is a serious offence that you would not want to have happen to your own daughter. People in the drugtrade and in prostitution prey on vulnerable young people and simply use them as if they were pieces of property. Of course I infer fromall that I have heard you attempted to recruit Ms. T. to help support your drug habit. [19] It is important to impose a sentence that denounces what you did do and to deter others from committing these sorts ofoffences.

I am satisfied that time served addresses individual deterrence or will deter you, sir. [20] Crown relied on several cases and I will just go through them very briefly for the record. [21] The first is R. v. Brazeau, [1998] B.C.J. No. 2045, a decision of our Court of Appeal. Ms. Brazeau pleaded guilty to threecounts of procuring a person for prostitution and she was given a sentence of two years less a day. The sentence was upheld on appealbecause of Ms.

Brazeau's criminal record for related offences and she was also on probation at the time of committing the procuringoffences. [22] The basis for the appeal was the disparity in the sentencing imposed on the co-accused who was given six months. The co-accused was given credit for the longer time spent in pre-trial custody so the Brazeau, supra, case as it affects Ms. Brazeau is somewhatdistinguishable on the facts. [23] The next case is R. v. Lacusta, [1986] B.C.J. No. 454 a decision of our Court of Appeal. This was an appeal of a 12-monthsentence of imprisonment.

It was a conviction for one count of attempting to procure a person for prostitution. It was a 13-year-oldcomplainant I understand. The sentence itself was upheld; it was not found to be unfit. [24] The next is R. v. Rezaie, (ON CA), [1996] O.J. No. 4468 a decision of the Ontario Court of Appeal. Mr.Rezaie was convicted of several sex offences and much of the decision has to do with parole and pre-trial custody. Of interest was Mr.Rezaie's attempt to flee Canada. He jumped bail and ended up in the United States for some period of time.

This case is somewhatdistinguishable on the facts and goes more to credit for time served. [25] The next is R. v. Sarjoo, [2009] O.J. No. 2753 a decision of the Ontario Court of Justice. In this case, there was a guilty plea toone count of aggravated assault. The time served was credited on a one-to-one basis for a variety of reasons including the rather brutalnature of the attack.

There also was the fact that this was a very vulnerable complainant; so somewhat distinguishable on the facts aswell. [26] Defence asks me as I have already stated to consider time served plus probation, pointing out in particular that this was anattempt offence and defence has properly pointed out that time served has acted as a deterrent to Mr.

Manulik, also he has remained cleansince 2007, really on his own initiative. [27] I find the Lacusta, supra, decision the closest on its facts and I find guidance in the reasoning of the Court. [28] Given the circumstances of the offence and also of the offender and weighing the aggravating factors and the mitigating factorsas well as the principles of deterrence and denunciation, in my view in considering all of the factors that I have just mentioned, one yearjail is appropriate.

It is required to address the principles of sentencing as well as the aggravating and mitigating circumstances. [29] In my view, a conditional sentence order would not be appropriate given the flight to avoid the court process and the subsequentbreaches of probation. [30] Turning now to the issue of credit for time served under s. 719 of the Criminal Code. As I have already stated, this offencepredates the Truth in Sentencing Act. [31] Mr. Manulik has served 118 days since he was picked up in Ontario.

Although I am mindful of the reasoning set out in theSarjoo, supra, decision particularly at paras. 37 and 38, that was a decision of the Ontario Court of Appeal. [32] Defence counsel has referred to the decision of R. v. Orr, a decision of our Court of Appeal at 2008 BCCA 76 , [2008]B.C.J. No. 282 and also the R. v. Vedres decision [2012] B.C.J. No. 1056 a decision of our Court of Appeal. In both of those cases ourCourt of Appeal has made it very clear that it is an error to not impose two-for-one credit. [33] Therefore, I do apply the two-for-one pre-trial custody credit. So there will be a credit of 236 days.

So time served MadamRegistrar is 118 days, time credited is 236 days, so the balance to be served on the sentence is 129 days. [34] Following that Mr. Manulik you are on probation for a period of one year. During that time, sir, you must: 1. Keep the peace and be of good behaviour. 2. Report to the Court when required to do so. 3. Within 72 hours of your release from custody you will report to a probation officer in this building and report thereafter as andwhen directed by your probation officer. 4.

You will give your probation officer your home address and you will not change that address unless you have prior permissionfrom your probation officer. 5. Under the direction of and to the satisfaction of your probation officer, you will take counselling and programming which mayinclude but is not limited to forensic psychiatric and psychological assessments and treatment. 6. You will abstain absolutely from the possession and consumption of non-prescription drugs.

7. You will have no contact of any sort with A.J.T. [ 35 ] Those are the terms on your release. [ 36 ] Because I know sir you have been in custody for a period of time and you will continue to be in custody, I will waive any surcharges if there are any. [ 37 ] There will be a DNA sample and I am not going to impose any weapons prohibitions. The circumstances of the offence do not require that in my view. (ORAL REASONS FOR SENTENCE CONCLUDED)