R. v. A.I.D. Date:, 2015 BCPC 386

Citation: R. v. A.I.D. Date: 20151130 2015 BCPC 0386 File No: 61371-3-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A.I.D. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: L. Ashton Counsel for the Defendant: J. Allingham Place of Hearing: North Vancouver , B.C. Date of Hearing: November 30, 2015 Date of Judgment: November 30, 2015

[ 1 ] THE COURT: These are my reasons for sentence in the matter of A.I.D. who goes by the name, J.D. Mr. D. has now pled guilty to four counts, all arising May 27th, 2014, in Lions Bay. The first count is the break and enter of a dwelling house; the second count is the use of an imitation firearm in the course of a robbery; the third count is having his face masked with the intent to commit an indictable offence; and the final count is theft of an automobile from the break and enter. [ 2 ] This offence was committed by four perpetrators.

There were two adult co-accused, a male and a female who were apparently in a relationship, as well as this adult offender, Mr. D., and one male youth. The female adult knew the male who resided in the home which was targeted. She had apparently provided escort services to him in the past and, through that relationship, came to believe he had a safe in the home. [ 3 ] Those two adults, the male and female, recruited Mr. D. and the male youth to assist them. They all attended the residence at approximately 1:00 in the morning. Mr.

D. and the other adult male entered the home through a window and made their way to the master suite. The male victim heard them coming, opened the door, and saw them approaching the bedroom. He returned to the bedroom to awaken his wife. The two men were masked with balaclavas and Mr. D. was seen to be holding a handgun which turned out to be an imitation. That weapon was given to him by the other adult male. The male victim was struck and pushed on the bed next to his wife. Both were bound with duct tape and rope and covered with blankets. [ 4 ] Mr.

D. guarded the victims while the other adult male ransacked the home looking for property to steal. At one point, the male victim's wallet was located and the PIN numbers for his credit cards were demanded and given. Those credit cards were then given to the female adult and the youth who were waiting outside in a vehicle. They left the scene and made their way to various ATMs and withdrew $2,200 in total. [ 5 ] Mr. D. and the other adult male remained in the home for four hours. During this time, the two homeowners continued to be bound and covered with blankets.

At one point, the male was freed so he could show them how to open the safe which had been located. The safe was opened and approximately $5,000 cash was taken from it. [ 6 ] In addition to the money and the credit cards, the perpetrators took two laptops and an iPad. They also took the SIM card from the male victim's cellphone, approximately $500 in liquor, an air purifier, landline phone batteries, a generator, passports, and a suitcase to carry away the various items they had taken. Finally, this accused and the other male adult drove away in the victims' vehicle. [ 7 ] Mr.

D. drove the other male perpetrator to that person's home, dropped him and the suitcase off, and then he and the youth took the stolen vehicle, and dumped it in Vancouver. [ 8 ] There have been victim impact statements filed by both the male and female victim. It can come as no surprise that they have suffered significant emotional trauma as a result of this incident. They continue to experience fear and have lost any sense of security in their home. They have suffered the monetary loss I have outlined.

As well, they lost a great deal of time because they had to purchase new computers, which both of them use for their work, as well as new phones and have them reconfigured. They have also had to go to extra expense to install a sophisticated security system in their home. [ 9 ] They describe the other adult male as being very violent and aggressive during the course of the robbery. He was screaming and threatening to cut off their fingers and burn down their home. They described Mr. D. as being empathetic and composed.

He responded at one point to the female when she said that the tape or ropes were too tight by loosening them for her. [ 10 ] Mr. D. turned himself in to the police on December 11th, 2014, and has remained in custody since that time. Once in police custody, he was cooperative and polite. By December 13th, had a provided a full confession. During the course of those statements, he is described as being emotional, remorseful, and apologetic. [ 11 ] He described to the police that he thought the target home was a drug dealer's house. He said he engaged in this offence because he needed money for rent.

When he returned to the male adult perpetrator's home afterwards, he was paid $1,000 and the youth was paid $300. He was surprised to hear the total amount of cash that was actually obtained. [ 12 ] A presentence report has been prepared in this matter which outlines the accused's history and, certainly, it is a tragic one. He suffered ongoing neglect and abuse from the time he was a child and right through his teen years. There were 11 intakes by social workers for violence and neglect. He has been in and out of care since age three and has been in numerous placements.

At one point, he was placed with family in Mumbai, India, where he suffered sexual abuse. [ 13 ] This offence occurred two days before his 19th birthday, just at a time when he was aging out of care. I assume that as of June 1st, 2014, he would have been without resources in the community. After turning 19 and up to the time he went into custody, he was living with friends or with one particular friend and his mother and she has filed a letter of support for Mr. D. in court. [ 14 ] Mr. D. is working on his grade 12 education.

He has already achieved his grade 11 education primarily through self-study in custody, but also out of custody. He has had little employment experience in his life to date. There is every reason to believe that Mr. D. is intelligent and could do well in society. However, it is also apparent that at this stage in his life he lacks the ability to follow through with commitments to education or employment or even just basic tasks in life. [ 15 ] Mr. D. has a very limited criminal history. His criminal history does not commence until 2012 when he would have been 16 or 17 years of age.

There are two theft-unders and a possession of break-in instruments and 13 breaches of bail or probation. His only adult conviction is from 2013. He was sentenced just before this offence occurred on May 16th, 2014, for one count of theft-under and was placed on probation. He was, therefore, newly on probation at the time of this offence. [ 16 ] He has no substance abuse issues, no cognitive or developmental issues and has not been diagnosed with any mental health conditions. I infer that he has psychological and emotional issues which likely have to do with attachment and trauma. Since being in

custody, he has been noted to be acting out in that he is non-compliant and also aggressive with others. He reports having been aggressed against in custody by other inmates who view him as, I suppose, a "rat" having given a full statement to the police. [ 17 ] Since coming into contact with the criminal justice system he has been non-compliant with community dispositions or orders on release.

As I noted earlier, it appears he is lacking in coping or life skills because he did not follow through with applying for social assistance, which he could have obtained commencing on his 19th birthday, leaving him in a situation where he had no money for rent at the time of this offence. [ 18 ] I infer from all of the information before me that he is immature and needs significant education in life skills. I also infer that he has not had very much exposure to people living positive and prosocial lifestyles.

He has only recently begun seeing a psychological counsellor in custody and I expect it will take him some period of time to work through the issues he is facing as a result of his deplorable upbringing. [ 19 ] The aggravating factors in this matter are, first, the statutory aggravating factors set out in s. 348.1 as this was an occupied residence and the offence involved the use of violence. The offence was planned and deliberate. The offenders were masked and Mr. D. brandished an imitation firearm during the course of the offence.

The victims were bound with restraints and covered with blankets and various threats were made against them. The perpetrators remained in their home for four hours which must have been utterly terrifying. [ 20 ] It is also aggravating that Mr. D.'s sole motivation for this offence was greed. He described to the probation officer that he saw it as an easy way to make money. [ 21 ] In mitigation, Mr. D. is to be given credit for an early plea and the full mitigation that goes with that.

From the beginning of when he turned himself into custody, he has accepted responsibility for his offending and has been remorseful. Today in court, he described himself as ashamed of his behaviour. He was a follower, not one of the masterminds of this offence. He is a youthful adult. He was just 18 turning 19 at the time of this offence. He does not appear to have entrenched antisocial behaviours which is illustrated by his very limited criminal record. It would appear he has positive prospects for rehabilitation. [ 22 ] The Crown position is that a five-year global sentence is appropriate.

They ask the court to impose four years for Count 1, the break and enter, to be followed by one-year consecutive, which is the mandatory minimum, for the use of the firearm during the commission of the robbery. They suggest a six-month concurrent sentence for having his face masked and a 30 to 60-day sentence for the theft of the vehicle. [ 23 ] Defence counsel suggests a global sentence of three years is appropriate.

That would be six-and-a-half months of new time for the break and enter plus 12 months' consecutive for the use of the firearm for a total of 18.5 months of new time, in addition to what they ask the court to impose for time served being a total of 17-and-a-half months, taking into account 11-and-a-half months of actual time served and enhanced credit of six months. Both counsel agree that Mr. D. should be given enhanced credit at 1.5 for his time in custody.

Defence counsel also suggests a six-month sentence concurrent for having his face masked and 30 to 60-days concurrent for the theft of the vehicle. [ 24 ] Both counsel provided books of authorities to the court. The Crown relied on R. v. Brossault , [2009] B.C.J. No. 682 ; R. v. Drydgen , 2013 BCSC 1876 ; which involves the same male adult offender that Mr. D. was involved with in this offence; and R. v. Stewart , 2014 BCSC 1770 . [ 25 ] Defence counsel relied on R. v.

Davidson , 2009 BCCA 485 , a decision of our Court of Appeal, for the proposition set out at paragraph 20 with respect to how the court should approach the sentencing of youthful adult offenders. They also provided R. v. Anderson , 2014 BCSC 2546 ; R. v. Quinlan , 2015 BCPC 116 ; R. v. Tkachuk , 2014 BCSC 1780 ; and R. v. Gounder , 2010 BCPC 394 . [ 26 ] In R. v. Brossault , Mr.

Justice Joyce, in analyzing the cases setting out the range, said at paragraph 86: What I take from all of this is that the Court of Appeal has suggested that the majority of cases of "home invasion" will fit somewhere in the range of five to eight years, depending upon the circumstances of the particular offences said to constitute home invasion and the circumstances of the particular offender but that there will be cases that fall on either side of that general range.

A case may warrant a sentence in excess of that range because of particularly egregious circumstances concerning the offence or a particularly high moral blameworthiness on the part of the offender, and the lack of any mitigating circumstances.

Other cases may warrant a sentence under the usual range because the circumstances of the offence are not egregious, and/or the circumstances of the offender are exceptional, such as the lack of any significant record, the youth of the offender, aboriginal status, evidence of remorse, and a clear potential for the rehabilitation of the offender. [ 27 ] In general, these cases make clear that the range of sentence is from five to eight years and the primary principles of sentence in such matters are general deterrence and denunciation.

The cases also establish that where the court is dealing with a youthful adult with no or a limited criminal history and positive prospects for rehabilitation the range is from three to four years globally where the use of a weapon is involved. The range is slightly higher at four to five years where there is the use of a firearm or imitation firearm. [ 28 ] I have considered all the principles of sentence including, as noted, the statutory aggravating factor which applies in this matter. I have considered the circumstances of this very serious offence and the circumstances of Mr. D.

I have also considered similar sentences for similar offences and similar offenders, and all of the aggravating and mitigating factors. [ 29 ] I am faced with balancing the need for denunciation and general deterrence of these kinds of very serious offences, which have such a devastating effect on the victims, with the specific deterrence and rehabilitation of this youthful adult offender.

I have taken into account his lesser moral culpability in that he was a follower, but I have balanced that with the fact that he was involved for greed alone and, even after being involved in this offence and having seen the impact which it had on the victims, he immediately made his way after dumping the car to the home of the adult male offender to take his pay. [ 30 ] I do accept that he is sincerely remorseful for his conduct on that day and that he has accepted full responsibility. I have taken

into account the mitigation which should be attributed to the sentence for his very early plea and that he is youthful with positive prospects for rehabilitation. I have balanced that with the very serious nature of this offence and Mr. D.'s previous lack of compliance with his bail and probation. [ 31 ] I find that in all the circumstances, a global sentence of four years is appropriate.

There will be a three-year sentence for the break and enter on Count 1; there will be a one-year sentence consecutive for the use of the firearm on Count 2; there will be a six-month sentence on Count 7 for having his face masked, concurrent; and a three-month concurrent sentence for theft of the automobile. [ 32 ] There will be granted a total of 17-and-a-half months of credit for time served comprised of 11-and-a-half months' actual time served and six months' enhanced credit. This results in a sentence of new time of 30-and-a-half months going forward from today. [ 33 ] Mr.

D. will be required to provide a sample of his DNA, and I did not get the length of time on the s. 109 firearms? [ 34 ] MS. ASHTON: I believe it is 10 years. [ 35 ] THE COURT: Ten years. [ 36 ] So, for a period of 10 years, Mr. D., you are not to be found in possession of any firearm, crossbow, prohibited weapon, restricted weapon, imitation weapon, prohibited device, ammunition, prohibited ammunition, explosive substances, or all such things and any related authorizations, licences, and registration certificates. Any such items to surrender? [ 37 ] MR.

ALLINGHAM: No, thank you. [ 38 ] THE ACCUSED: Thank you. [ 39 ] THE COURT: All right. Well, Mr. D., I wish you good luck. I hope you use your time wisely. I am sorry to have to impose this sentence. [ 40 ] THE ACCUSED: All right. [ 41 ] MR. ALLINGHAM: Thank you. [REASONS FOR SENTENCE CONCLUDED]