R. v. Valliers Date:, 2014 BCPC 78

Citation: R. v. Valliers Date: 20140507 2014 BCPC 0078 File Nos: 22346-1 22500-1 48164-2-C Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LORNE STEVEN VALLIERS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C.D. CLEAVELEY Counsel for the Crown: Mr. Stephen Lawhead

Counsel for the Accused: Mr. Donald Campbell Place of Hearing: Kamloops, B.C. Dates of Hearing: March 19, March 31, and April 30, 2014 Date of Judgment: May 7, 2014 A Corrigendum was released by the Court on May 7, 2014. The corrections have been made to the text and the Corrigendum isappended to this document. [1] Over the course of two days in late April, 2013, Mr.

Valliers, who was on a downward crack cocaine spiral, committed theoffences of uttering a forged cheque, theft over $5,000 (his employer being the victim of both), and robbery of a convenience store whilearmed with a knife. [2] The Crown, focusing on denunciation and deterrence, seeks a jail sentence of 15 to 18 months and two years probation. Ancillary orders sought include a weapons prohibition pursuant to s. 109 and the mandatory DNA order. [3] The Crown quite properly conceded that this was a “crime spree” because of Mr. Valliers’ drug addiction.

The Crown alsosaid that the pre-sentence report prepared on behalf of Mr. Valliers is positive and that “he has done everything he can, to make a badsituation better.” [4] The Crown provided me with two robbery sentencing cases, R. v. Stubbs, 2007 B.C.J. No. 291 and R. v. Brogan, 1999 BCCA278 , 1999 B.C.C.A 278. [5] In Brogan, the Court of Appeal said that an analysis of the range, produced in the cases which had been presented to them, wassomewhere between two and nine years in jail.

The factors to be taken into account include: the age of the offender, his previouscriminal experience, the level of violence, the number of offences, the level of premeditation, whether the perpetrator was disguised ornot, the type of weapon used and how it was used, the possibility of rehabilitation, and the requirement of deterrence in a particularcommunity. [6] In Stubbs, the trial judge focused on deterrence and the protection of the public and sentenced Mr. Stubbs to three years in jail. The facts of Stubbs are somewhat more serious than those before me.

Stubbs grabbed the clerk while brandishing the knife and hethreatened other customers who came into the store. In addition, Mr. Stubbs had a record for assault, break and enter and commitassault, two theft unders, break and enter, failing to attend court, breach of undertaking, two possession of stolen property convictions,possession for the purpose of trafficking, a breach and uttering threats. Mr. Stubbs was on probation at the time of the offence and wasalso bound by a peace bond. The trial judge also took into account the number of local robberies. [7] Mr. Campbell, on behalf of Mr.

Valliers, focused on rehabilitation, and submitted that I should consider a suspended sentence. No case authority was presented which would support such a sentence. Alternatively, if such a sentence is unavailable, then a jailsentence of four to six months would be appropriate. [8] The circumstances of the three offences are as follows. In April of 2013 Mr. Valliers began working, as a truck driver, for amoving company in Calgary. In late April, Mr. Valliers was driving a transport truck with two trailers, loaded with cargo valued atapproximately $73,000, from Calgary to Vancouver. In Revelstoke, Mr.

Valliers accepted a cheque, made payable to his employer, for$109.00. Mr. Valliers forged the cheque and used the money for drugs. When the truck and contents did not arrive in Vancouver, theowner contacted the police in Enderby, who were able to track down one trailer to a local community centre, and found that most of thegoods were gone. Further investigation found the truck and other trailer at an address in Enderby. Again, the cargo was being sold tofuel Mr.

Valliers’ drug addiction. [9] I understand that most of the cargo from the truck and trailers has been recovered. [10] While these investigations were ongoing, the police became aware of a robbery at a gas station/convenience bar in Enderby. Amale had entered the store, pulled a knife with a 6’ blade, grabbed $40 cash from the register and left in a truck. The police were able toobtain the licence plate number of the truck and within a short time were able to identify Mr. Valliers as the suspect. The police went tothe residence of Tina Williams, Mr. Valliers’ former common law partner, and shortly thereafter, Mr.

Valliers came outside and admittedhis involvement in the robbery. Mr. Valliers also said that he had been using crack cocaine for days and that he was “sorry he stuck theknife in the kid’s face.” [11] Ms. Williams subsequently told the police that she drove Mr. Valliers to the store so that he could buy cigarettes. When Mr.Valliers returned to the truck, he told Ms. Williams “that we have to get out of here.” Ms. Williams saw a male run after the truck as shedrove away. [12] In a statement to the police, Mr. Valliers admitted that he took a carving knife from Ms.

Williams’ residence at the time he wentto the convenience store. [13] The pre-sentence report does a very good job of setting out Mr. Valliers’ personal circumstances. Mr. Valliers has just turned34 years of age. He was raised in a stable home, free of any substance abuse issues. He stands alone as being the only member of hisfamily to have substance abuse issues, and to find himself in trouble with the law. Despite this, he still has a good relationship with hisfamily and they are supportive of him. Mr. Valliers’ father described his son’s behaviour as totally out of character and he attributes it to

his abuse of crack cocaine. [14] Mr. Valliers does not have a criminal record. [15] Mr. Valliers left home when he was 21 years old and spent approximately 10 years working in the oil fields of northern Alberta. [16] Mr. Valliers and Ms. William began a common law relationship in 2002. They have two children, who will be 7 and 4 yearsold this year. The children reside with Ms. William in Enderby. [17] In March 2013 Mr. Valliers returned from work in Fort McMurray to discover that Ms. William had begun an intimaterelationship with a man whom Mr. Valliers knew. The pre-sentence report indicates that this took Mr.

Valliers totally by surprisebecause he had been sending money to Ms. William, and her new partner had already moved into the family home. [18] It was at this point that Mr. Valliers downward spiral began. [19] Mr. Valliers accepts that his relationship with Ms. William is over, and that his use of crack cocaine adversely affected theirrelationship. Since separating, they have been able to work together for the benefit of their children. [20] While working in the oil fields, Mr.

Valliers built up a good work reputation, but lost some of this good will when the stresscaused by the breakup, led him to be absent from work. [21] Mr. Valliers’ reputation in the oil field was confirmed by his father, who expects his son will be able to re-establish himself,provided he remains drug free. [22] Mr. Valliers first used crack cocaine when he was 27 years old. Previously, he had never used hard drugs. His use of crackcocaine was generally when he was off shift and after having being paid. Over time, this use escalated and became problematic in bothhis relationship with Ms. William and at work.

In 2012, his father took him to the Leipzig Serenity Treatment Centre in Saskatchewan,where he successfully completed the 5 week, 12 step residential program. [23] He relapsed in April, 2013 following his break up with Ms. William. Up to that point, Mr. Valliers had been clean for almost ayear. His downward spiral very quickly led to the commission of these three offences. [24] I understand from the pre-sentence report that he does not often drink alcohol. [25] After his arrest, Mr.

Valliers spent 46 days on remand before being released on restrictive bail conditions to the Vision QuestSociety Recovery Centre in Chilliwack. He has resided there since June 13, 2013. [26] At Vision Quest, Mr. Valliers completed the 12 step program. [27] The pre-sentence report also confirms that at Vision Quest, Mr. Valliers has been cooperative, with a good attitude. Mr.Valliers has been given additional responsibilities, transporting other participants to their various meetings and monitoring theiractivities. [28] At the sentencing hearing, Mr.

O’Rourke, the executive director of the Vision Quest Society spoke in support of Mr. Valliers. Mr. O’Rourke said that he does not regularly appear in court to speak on behalf of his clients. However, Mr. Valliers’ situation isunique, because he has 10 months of clean drug tests and he is 100% accountable. Exhibit 3, the Society’s progress reports and letters ofsupport, confirm Mr. Valliers’ commendable efforts at rehabilitation. [29] Mr.

Valliers’ plan is to continue to reside at the Vision Quest Program, to complete a welding course, re-establish a residence inEnderby so he can be close to his children, and then return to work in the oil fields. [30] Mr. Bay, the probation officer who prepared the pre-sentence report, believed Mr. Valliers to be sincere in his expressions ofremorse. [31] The significant challenge in this case is to balance the sentencing principles with the seriousness of the offences and the moralblameworthiness of Mr. Valliers.

See M.(C.A.) (SCC), [1996] 1 S.C.R. 500, paras. 81 and 82. [32] In my view there are a significant number of mitigating factors, which I have already set out in these reasons. The aggravatingfactors include Mr.

Valliers’ breaching the trust of his employer, a certain degree of planning regarding the robbery, and the use of alarge knife. [33] It is also clear to me that because of the nature of the offence, robbing a young convenience store clerk with a knife, whichcarries a maximum sentence of life imprisonment, and cases such as Brogan, which stress denunciation and deterrence, that a jailsentence must be seriously considered as a fit punishment. [34] Not surprisingly, I have not been presented with any case authority which suggests that a suspended sentence is an appropriatepunishment for robbery with a knife (although I have received several cases where a suspended sentence was imposed for serious violentoffences).

It is also difficult to understand how a community-based sentence such as a suspended sentence could address denunciationand deterrence, without effectively turning it into a form of a conditional sentence order. [35] If I was only sentencing Mr. Valliers for uttering a forged document and theft over, I would likely impose a conditionaldischarge and suspended sentence, respectively, because of the mitigating factors and the subsequent steps Mr. Valliers has taken to gethis life back on track. [36] The question remains, what is the appropriate sentence for the robbery?

[37] In R. v. Koop and Stoneman, 2008 BCCA 140 , 2008 B.C.C.A. 140, the accused appealed prison sentences of twoyears less a day partly on the basis that the sentencing judge did not adequately address their efforts at rehabilitation. [38] In substituting a conditional sentence order the court said: [13] In my opinion, the sentencing judge did err as conceded by Crown counsel and failed to give sufficient weight to the factor ofrehabilitation.

The sentencing judge failed to explain why the principles of deterrence and denunciation, together with the circumstancesof the robberies, precluded a conditional sentence or, put another way, she failed to consider the principle of rehabilitation when givingeffect to these other principles. [14] The principles of deterrence and denunciation are important principles to consider when sentencing a person who has committedrobbery, and they will usually prevail over other considerations and result in a prison sentence.

However, these principles should not beconsidered to the exclusion of the principle of rehabilitation. A conditional sentence can satisfy the objectives of deterrence anddenunciation, and there will be cases where the interests of rehabilitation of the offender will outweigh the additional deterrence anddenunciation accomplished by a prison sentence. [15] This is such a case in my opinion. The appellants are young, first-time offenders who have taken positive steps towardsrehabilitation. A conditional sentence, coupled with a probation order, will permit them to become fully rehabilitated.

The extradeterrence and denunciation of a prison sentence are more than counterbalanced by the appellants' prospects of rehabilitation. [emphasis added] [39] Although a conditional sentence is not available on the theft over and robbery counts, those words are appropriate in Mr.Valliers’ situation. [40] In Brogan, the court commented that there was no explanation for the robbery, and rehabilitation could not replacedenunciation and deterrence as the primary sentencing goals. [41] In Mr. Valliers’ situation, there is a reasonable explanation for his offending.

I am satisfied that but for his marital breakdown,which involved two children, and then getting back into the use of crack cocaine, Mr. Valliers would not be standing where he is today. [42] I also believe that, like the Koop decision, the interests and good prospects of rehabilitation, when combined with the personalmitigating factors, far outweigh the need for denunciation and deterrence in this case. [43] On the robbery count, the sentence is 160 days in jail, plus a two year probation order.

It is my view that this sentence willsatisfy the requirement for denunciation and deterrence, plus set a positive course for Mr. Valliers in the community. [44] Mr. Valliers will receive pre-trial credit of 70 days, and the balance will be served by way of a 90 day intermittent jail sentence. [45] In these circumstances, which includes the sentence I have imposed on the robbery count, the sentence on both the uttering aforged document count and the theft over count will be one day in jail. [46] The terms of the probation order which will bind Mr.

Valliers while serving the intermittent sentence are as follows: • You shall report no later than May 8, 2014 to the probation officer at the probation office at Abbotsford, British Columbia, andafter that you shall report as and when directed by your probation officer. • You shall reside at Vision Quest, The Creek, located at 60550 Chilliwack Lake Road, Chilliwack, British Columbia, or any otherfacility that operates a recovery house for the Vision Quest Recovery Society and you shall not change your residence at any timewithout first obtaining the written consent of your probation officer. • You are to serve 90 days intermittently at the RCMP police lock up cells at Surrey Pre-Trial Centre, Surrey, British Columbia onconsecutive three day weekends, commencing at 6:00 p.m. on Friday, May 9, 2014, through to 4:00 p.m. on Sunday, May 11, 2014 andeach weekend thereafter until your sentence is served in full. • You shall obey the rules and regulations of your residence. • You shall obey a curfew by being inside your residence between the hours of 10:00 p.m. and 7:00 a.m. each day except with thewritten consent of your probation officer.

Such consent is to be given only for compelling, personal, family or employment reasons. • You shall not possess or consume any alcohol or any controlled substance within the meaning of s. 2 of the Controlled Drugs andSubstances Act. • You shall not enter any liquor store, beer and wine store, bar, pub, lounge or other business premise from which minors areexcluded by terms of their liquor licence. • You shall not possess any weapons as defined in s. 2 of the Criminal Code. • You shall not possess any knife outside of your residence except for the purpose of preparing or eating food, or for purposesdirectly and immediately related to your employment. • You shall attend and participate in and successfully complete any assessment, counselling or program as directed by yourprobation officer.

Without limiting the general nature of this condition such assessment, counselling or program may relate to alcohol or

drug abuse, full time attendance program for alcohol or drug abuse, and you shall comply with all the rules and regulations of any such assessment, counselling or program. [ 47 ] The terms of the two year probation order to follow the 90 day intermittent sentence are as follows: • Within 48 hours after completion of your intermittent jail sentence, you shall report in person to the probation office at Abbotsford, British Columbia, and after that you shall report as and when directed by your probation officer. • You shall reside at Vision Quest, The Creek, located at 60550 Chilliwack Lake Road, Chilliwack, British Columbia, or any other facility that operates a recovery house for the Vision Quest Recovery Society and you shall not change your residence at any time without first obtaining the written consent of your probation officer. • You shall obey a curfew by being inside your residence between the hours of 10:00 p.m. and 7:00 a.m. each day except with the written consent of your probation officer.

Such consent is to be given only for compelling, personal, family or employment reasons. • You shall not possess or consume any alcohol or any controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act . • You shall not enter any liquor store, beer and wine store, bar, pub, lounge or other business premise from which minors are excluded by terms of their liquor licence. • You shall not possess any weapons as defined in s. 2 of the Criminal Code . • You shall not possess any knife outside of your residence except for the purpose of preparing or eating food, or for purposes directly and immediately related to your employment. • You shall attend and participate in and successfully complete any assessment, counselling or program as directed by your probation officer.

Without limiting the general nature of this condition such assessment, counselling or program may relate to alcohol or drug abuse, full time attendance program for alcohol or drug abuse, and you shall comply with all the rules and regulations of any such assessment, counselling or program. • You shall pay restitution in the sum of $109 to the Clerk of the Court, Kamloops, British Columbia for the benefit of Marvin and Miles Bent, which shall be paid in full no later than July 1, 2014. [ 48 ] On the robbery count there will be an order pursuant to s. 109 of the Criminal Code prohibiting Mr.

Valliers from having in his possession any firearm, ammunition or explosive substance for a period of 10 years. On the same count there will a DNA order requiring Mr. Valliers to attend the Abbotsford RCMP station for the purpose of that sample being taken. [ 49 ] Mr. Valliers is now employed and will pay a Victim of Crime Surcharge fee on each count. __________________________ C.D.

Cleaveley Provincial Court Judge CORRIGENDUM: RELEASED MAY 7, 2014 [1] Please note the corrected change to Paragraphs 46, 47, 48 and 49 of the original Reasons for Judgment issued May 7, 2014 as per the following: [46] The terms of the probation order which will bind Mr.

Valliers while serving the intermittent sentence are as follows: • You shall report no later than May 8, 2014 to the probation officer at the probation office at Abbotsford, British Columbia, and after that you shall report as and when directed by your probation officer. • You shall reside at Vision Quest, The Creek, located at 60550 Chilliwack Lake Road, Chilliwack, British Columbia, or any other facility that operates a recovery house for the Vision Quest Recovery Society and you shall not change your residence at any time without first obtaining the written consent of your probation officer. • You are to serve 90 days intermittently at the RCMP police lock up cells at Surrey Pre-Trial Centre, Surrey, British Columbia on consecutive three day weekends, commencing at 6:00 p.m. on Friday, May 9, 2014, through to 4:00 p.m. on Sunday, May 11, 2014 and each weekend thereafter until your sentence is served in full. • You shall obey the rules and regulations of your residence.

• You shall obey a curfew by being inside your residence between the hours of 10:00 p.m. and 7:00 a.m. each day except with the written consent of your probation officer.

Such consent is to be given only for compelling, personal, family or employment reasons. • You shall not possess or consume any alcohol or any controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act . • You shall not enter any liquor store, beer and wine store, bar, pub, lounge or other business premise from which minors are excluded by terms of their liquor licence. • You shall not possess any weapons as defined in s. 2 of the Criminal Code . • You shall not possess any knife outside of your residence except for the purpose of preparing or eating food, or for purposes directly and immediately related to your employment. • You shall attend and participate in and successfully complete any assessment, counselling or program as directed by your probation officer.

Without limiting the general nature of this condition such assessment, counselling or program may relate to alcohol or drug abuse, full time attendance program for alcohol or drug abuse, and you shall comply with all the rules and regulations of any such assessment, counselling or program. [47] The terms of the two year probation order to follow the 90 day intermittent sentence are as follows: • Within 48 hours after completion of your intermittent jail sentence, you shall report in person to the probation office at Abbotsford, British Columbia, and after that you shall report as and when directed by your probation officer. • You shall reside at Vision Quest, The Creek, located at 60550 Chilliwack Lake Road, Chilliwack, British Columbia, or any other facility that operates a recovery house for the Vision Quest Recovery Society and you shall not change your residence at any time without first obtaining the written consent of your probation officer. • You shall obey a curfew by being inside your residence between the hours of 10:00 p.m. and 7:00 a.m. each day except with the written consent of your probation officer.

Such consent is to be given only for compelling, personal, family or employment reasons. • You shall not possess or consume any alcohol or any controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act . • You shall not enter any liquor store, beer and wine store, bar, pub, lounge or other business premise from which minors are excluded by terms of their liquor licence. • You shall not possess any weapons as defined in s. 2 of the Criminal Code . • You shall not possess any knife outside of your residence except for the purpose of preparing or eating food, or for purposes directly and immediately related to your employment. • You shall attend and participate in and successfully complete any assessment, counselling or program as directed by your probation officer.

Without limiting the general nature of this condition such assessment, counselling or program may relate to alcohol or drug abuse, full time attendance program for alcohol or drug abuse, and you shall comply with all the rules and regulations of any such assessment, counselling or program. • You shall pay restitution in the sum of $109 to the Clerk of the Court, Kamloops, British Columbia for the benefit of Marvin and Miles Bent, which shall be paid in full no later than July 1, 2014. [48] On the robbery count there will be an order pursuant to s. 109 of the Criminal Code prohibiting Mr.

Valliers from having in his possession any firearm, ammunition or explosive substance for a period of 10 years. On the same count there will a DNA order requiring Mr. Valliers to attend the Abbotsford RCMP station for the purpose of that sample being taken. [49] Mr. Valliers is now employed and will pay a Victim of Crime Surcharge fee on each count.