R. v. Nendick Date:, 2017 BCPC 253

Citation: R. v. Nendick Date: 20170830 2017 BCPC 253 File No: 62797-2C Registry: North Vancougver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHANE NENDICK REASONS FOR SENTENCE OF THE HONOURABLE JUDGE W.J. RODGERS Counsel for the Crown: Arlene Loyst Counsel for the Defendant: Michael S.A. Fox Place of Hearing: North Vancouver , B.C. Dates of Hearing: February 1, 3, 7, 8, 9, 14, 16, 17, 20, 21, 23 and 27, 2017 Date of Judgment: March 31, 2017

Date of Hearing of Sentencing Submissions: June 23 and August 24, 2017 Date of Sentence: August 24, 2017 Date of Written Reasons for Sentence: August 30, 2017 [ 1 ] Shane Nendick comes before the Court for sentencing following his conviction on 28 counts arising from four separate incidents. The trial required 12 days in February 2017. I adjourned Judgment until March 31, 2017 in order to provide written Reasons for Judgment. [ 2 ] Counts 1 to 24 occurred on December 4, 2014 when Nendick committed the offense of mischief by puncturing the tires of motor vehicles contrary to

Section 430 of the Criminal Code . [ 3 ] Counts 25 and 26 occurred on January 1, 2015 when Nendick committed the offense of breaking and entering into Capilano University, and committing theft and arson therein contrary to Sections 348 (1) (

b) and 434 of the Criminal Code . [ 4 ] Count 27 occurred on January 10, 2015 when Nendick committed the offense of breaking and entering into an Esso station and attempting theft contrary to Section 348 (1) (

b) of the Criminal Code . [ 5 ] Count 28 occurred on August 12, 2015 when Nendick committed the offense of breaking and entering into Henry’s Grocery Store and committing theft contrary to Section 348 (1) (

b) of the Criminal Code . [ 6 ] The circumstances of these offenses are set out in my Reasons for Judgment filed March 31, 2017 and will not be repeated here. [ 7 ] Sentencing was adjourned from March 31, 2017 until June 23, 2017 for the preparation of a Pre-Sentence Report and a report from the Forensic Psychiatric Services. Nendick did not fully cooperate in the preparation of these reports and counsel for Nendick requested an adjournment. He asked that the report of the Forensic Psychiatric Services address further issues which were not included in the first report.

I granted the adjournment requested by Nendick and sentencing was set for August 24, 2017. [ 8 ] Crown Counsel submitted that the appropriate sentence, calculated on a global basis, was a period of incarceration of 3 to 5 years in the penitentiary. [ 9 ] Counsel for Nendick submitted that the appropriate sentence was: (1) with respect to counts 1 to 24, there should be a Conditional Sentence Order of two years less one day to be served concurrently on all 24 counts; and, (2) with respect to counts 25 to 28, there should be a suspended sentence to be served concurrently on all four counts coupled with a three-year Probation Order to be served consecutively after the expiration of the Conditional Sentence Order imposed on counts 1 to 24. [ 10 ] Both Crown Counsel and counsel for Nendick referred to the principles of sentencing set out in

Section 718 of the Criminal Code . Crown Counsel submitted this Court should emphasize the principles of (1) protection of the public, (2) deterrence, both general and specific, and (3) denunciation. Counsel for Nendick agreed that protection of the public was of primary importance and further submitted that the Court should place minimum emphasis on the principles of deterrence and the denunciation. It was submitted that Nendick has a diminished moral blameworthiness because of his mental health challenges and very low intelligence. [ 11 ] The criminal record of Nendick is important.

He was born in 1982 and first came into contact with the criminal justice system in 1996 and 1997 when he was before the Youth Court on charges of theft and failing to comply with the disposition. He received a sentence of probation for 18 months. For the next 18 years, Nendick did not commit any criminal offenses. In 2015 he suddenly became a prolific offender when he was charged with obstructing a peace officer, breaching an undertaking, two counts of assault with a weapon, assault and resisting a peace officer.

All of these charges were dealt with in the summer of 2016 when he received suspended sentences and probation. [ 12 ] In addition to these offenses, Nendick committed the offenses which bring him before this Court for sentencing. It is obvious that during 2015 Nendick was completely out of control in the community. [ 13 ] What caused Nendick to become a prolific offender in 2015? The sentencing challenge before me is to find the answer to this question. [ 14 ] Nendick dropped out of school in grade 10 but subsequently obtained his Dogwood Certificate.

His father obtained employment for him at a waterfront industry as a forklift operator. He worked there for approximately 10 years although the exact duration of his employment is uncertain. While employed he successfully completed several workplace safety courses. He had stable accommodation, an RRSP account and he had been pre-approved for a mortgage. [ 15 ] Nendick and his mother reported that in approximately 2012 Nendick suffered a workplace head injury or was the victim of an assault. There is no corroborating evidence to these assertions.

Nendick left his employment and his living circumstances deteriorated. By 2015 he was homeless and living in the bush. He believed there was a conspiracy against him by his employer and the police. He had very little contact with his parents or community resources. [ 16 ] Dr. Patrick Bartel, a Registered Psychologist, prepared a pre-sentence psychological assessment of Nendick in 2016. Dr. Bartel found Nendick to be almost completely illiterate and unable to perform basic mathematical equations. His memory was poor and he was often wrong in recollecting events, dates or time periods.

A cognitive test indicated that Nendick's intellectual\cognitive functioning was in the extremely low range; below the 1st percentile (0.1 percentile). Dr. Bartel concluded " In addition to a likely intellectual disability, Nendick also presents with major mental illness in the form of psychotic disorder."

[ 17 ] Dr. Sarah Mordell, a Registered Psychologist with the BC Forensic Psychiatric Services prepared two reports for this sentencing. She concluded that Nendick suffers from a psychotic spectrum disorder and has diminished cognitive functioning. [ 18 ] Both Dr. Bartel and Dr. Mordell were very cautious in their opinions concerning Nendick. They found him to be uncooperative and lacking motivation to participate in the preparation of their reports.

He claimed that he could not remember committing any of the offenses which brought him before the Court which further complicated the assessment process. [ 19 ] Crown Counsel pointed out that the offenses of breaking and entering into the Esso gas station and Capilano University showed planning and sophistication. Nendick identified the presence of the two safes which were hidden from view, determined how to enter the buildings after they were closed and brought the necessary tools in order to open the safes.

I agree that it is difficult to reconcile the criminal activities of Nendick with his apparent lack of intellectual capacity. [ 20 ] Since his arrest in 2015, Nendick has been on bail. He has been living with his mother under strict house arrest. He cannot be absent from his mother's home save and except: (1) in her presence; (2) or in the presence of his father; (3) for two hours during the afternoon so that he may participate in physical exercise at a recreation centre.

He has been compliant with all of the terms of his bail and the police have made numerous "bed checks" to ensure this compliance. [ 21 ] I conclude Nendick presents a danger to the community. Setting fire to Capilano University Library and puncturing tires alarmed North Vancouver. They are unexplainable crimes. Both incidents received extensive press coverage and resulted in major police investigations. The damage caused to Capilano University was approximately $225,000. The cost of replacing the punctured tires was at least $24,000. [ 22 ] The damage to the Esso gas station was approximately $11,000.

The damage to Henry's Convenience Store was approximately $1000. These two commercial break-and-enter offenses did not receive media attention. [ 23 ] There is no obvious cause for Nendick to puncture the tires or set fire to the library apart from an underlying psychotic disorder. While I recognize that Nendick has already been sentenced for the assaults which took place in 2015, I cannot overlook that there was no obvious cause for those assaults apart from a psychotic disorder. [ 24 ] Nendick has been unwilling to engage in psychological assessment or counselling during the two years that he has been on bail.

His parents have been unable to convince him to do this. Both Dr. Bartel and Dr. Mordell are of the opinion that Nendick requires intensive psychological counselling in order to prevent the reoccurrence of criminal offenses. [ 25 ] I agree that protection of the public is the primary sentencing principle which I must apply. In order to prevent Nendick from committing further offenses, he must receive intensive psychological assessment and counselling. How can this goal be achieved?

If Nendick is sent to the penitentiary it is unlikely that he will participate in counselling and there are no realistic means of compelling his participation. The best chance to have Nendick engage in counselling is achieved by keeping him in a stable living environment in his community and with the assistance of his family and the supervision of his probation officer. [ 26 ] The sentencing proposal of counsel for Nendick may achieve this goal. Nendick has been on strict house arrest for two years and this has stabilized his personal living circumstances.

A Conditional Sentence Order of two years less one day will compel Nendick to undertake counselling. A Suspended Sentence for three years following the expiration of the Conditional Sentence Order will provide further community supervision.

The total duration of the CSO and Suspended Sentence is five years. [ 27 ] On August 24 I imposed the following sentence: 1) with respect to counts 1 to 24, there will be a Conditional Sentence Order of two years less one day to be served concurrently on all 24 counts; and, (2) with respect to counts 25 to 28, there will be a suspended sentence to be served concurrently on all four counts coupled with a three-year Probation Order to be served consecutively after the expiration of the Conditional Sentence Order imposed on counts 1 to 24.

With the able assistance of counsel, I set out the terms of the CSO and Probation Order. [ 28 ] This must be seen as a "last chance" sentence for Nendick. Crown Counsel's submission of incarceration for 3 to 5 years in the penitentiary was reasonable. If Nendick fails to abide by the terms of the CSO and Suspended Sentence then his incarceration may be necessary in order to protect the public. [ 29 ] I have but little hope that Nendick will comply with the terms of my Orders. At the conclusion of the proceedings on August 24, 2017 I addressed Nendick.

I told him that he must recognize that he had been given an opportunity to escape prison but if he fails to cooperate then it's almost certain that he will go to jail. He did not appear to understand what I was telling him. _______________________________ The Honourable Judge W.J. Rodgers Provincial Court of British Columbia