R. v. Andel Date:, 2017 BCPC 146

Citation: R. v. Andel Date: 20170327 2017 BCPC 146 File No: 62926-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT ANTONIN ANDEL ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: J.A. Cochrane Counsel for the Defendant: R. Androsoff Place of Hearing: North Vancouver , B.C. Date of Hearing: March 27, 2017 Date of Judgment: March 27, 2017

[ 1 ] THE COURT: This is a sentencing in the matter of Robert Antonin Andel. He is before the court having pled guilty to driving while disqualified and obstructing a peace officer. The offences arose January 9, 2016, in Squamish. Mr. Andel was subject to a plate check. He was operating a motor vehicle on Highway 99 at about 9:30 in the evening. The plate came back as invalid, in other words, unregistered to any motor vehicle. He was stopped and, at that time, he produced the driver's licence of a friend who has now provided a letter of support for him.

He persisted with the police officer in giving a false name and providing someone else's photo identification. The officer concluded that the photo did not match Mr. Andel. [ 2 ] Mr. Andel has a lengthy and very serious criminal history as well as a lengthy and serious driving history. His criminal history commences in 1975 in Edmonton, and it is best summarized by the preparer of the presentence report as follows [as read in]: Mr. Andel [omitted for publication] has been on a consistent cycle of offending spanning over 40 years with 43 convictions.

The subject has a diverse criminal history consisting of property offences, violent offences, sex offences, fraud, driving offences, and drug offences. He does not appear to specialize in one specific area and appears to be more opportunistic. The two sex offences involved similar offending patterns. Mr. Andel met young vulnerable females, plied them with alcohol and drugs, and sexually assaulted them. For the first, Mr. Andel received a three-year term and a three-year-and-six-month prison term in 1986 and he received a four-year and a consecutive two-year prison term for the second incident in 1998. Mr.

Andel takes limited responsibility for the offences. For the sexual intercourse with a female under 14 conviction, the subject blames a friend who introduced them at a party and did not inform him of her age. Mr. Andel, who was in his late 20s at the time, states he knew the girl "was too young," but did not realize "she was that young." The second offence involved Mr. Andel, 38 at the time, meeting a young female, 17, on the street. He states they drove around together until they found a secluded area to sit and drink in his car. Mr.

Andel states he took what he believed were benzodiazepine and offered some to the young woman which she took. He reports that they had a good night and, when they woke in the morning, they engaged in consensual sex, but she got upset because he did not use a condom and she feared she might get pregnant. Mr. Andel states he even called her the next day because he wanted to pursue a relationship and thought she may, as well. The victim's version of events was quite different, and that she was drugged and awoke to Mr. Andel raping her. Mr.

Andel takes very limited responsibility for his actions and all of his offending. He tends to blame the police for targeting him or taking the fall for someone else. Most of his justifications paint him to be a victim of circumstance. The report goes on to describe Mr. Andel's attitude toward his criminal history. [ 3 ] Of significance with respect to the offence before the court is Mr. Andel's driving history. It is an extremely serious one. He was convicted in March of 1986 on two counts of impaired driving and operating while disqualified.

He received a three-month sentence. [ 4 ] In 1992, he was convicted of driving while disqualified and received a 90-day intermittent sentence. In 1993, he was convicted of driving while impaired and driving while disqualified and received a three-month sentence on each charge. It appears that was concurrent. In November of 1995, he was convicted of two counts of driving while disqualified. In 1996, he was convicted of driving while disqualified. In 2012, he was convicted of dangerous operation of a motor vehicle.

On February 15, 2014 he was convicted of driving while disqualified, and then we have the offence before the court from January 9, 2016. [ 5 ] With respect to the last conviction he has received a jail sentence of nine months, which followed on a two-year sentence imposed in August of 2012 for dangerous operation of a motor vehicle. [ 6 ] Clearly, the range of sentence, as has been suggested by Crown is appropriate, given Mr. Andel's history and the circumstances of this offence. [ 7 ] It is also clear on all of the evidence that Mr. Andel had been flaunting his prohibition.

He talked about having gone all the way to Vernon to pick up a car for a friend and then having come back through the Pemberton area and down through Squamish because he said he was looking for a friend and looking for work. He also apparently lived in a car for a number of months after the end of his sentence and before moving into his sister's home in the spring. The explanation is that the car was towed to nearby his sister's and he was not actually residing in it.

However, he told the probation officer that he "was also using the car as somewhere to sleep by parking it in underground garages," which would certainly indicate that he was driving that vehicle around from place to place during that period of time. [ 8 ] The question for me is whether or not Mr. Andel should be granted a conditional sentence and it is a difficult matter to resolve at this time. Mr. Andel is now 60 years of age and has various health concerns including a gastrointestinal issue that he is struggling with.

He is now on social assistance disability. [ 9 ] Many things have apparently changed for him in terms of his chronic offending over the years. He is now residing with his sister and has been since the spring of 2016. There are no further offences before the court or contacts with the police. There are a number of materials before the court showing that Mr. Andel, despite his flaunting of his prohibition, has, in fact, been trying to turn his life around over this period of time. [ 10 ] In particular, I must consider Mr. Andel's history of offending and, in particular, his criminal offending.

He was very active in the 1990s. The sexual assaults occurred in 1998. He received a one-year consecutive sentence for a number of property offences, personation, and obstruct charges, and there were further offences and convictions over 2008 and 2009. Then in 2011, he was convicted of a number of other property offences and received credit for six months presentence custody. That was likely at that time three or four months with the credit, so about a five-month sentence. Throughout the fall of 2010 and early into 2011, he would have been spending time in custody before that sentence.

And then in September of 2011, he was again convicted and received a nine-month sentence for

possession of property. Following that, we have the dangerous operation of a motor vehicle followed by the possession of property. [ 11 ] Counsel for Mr. Andel has done a valiant job in attempting to convince the court that a conditional sentence is appropriate for Mr. Andel. I am afraid I simply cannot agree that in Mr. Andel's circumstances this is an appropriate disposition of this matter. As I have noted, there are a number of very positive things which are happening for Mr. Andel, but he has an unbroken history of offending and flaunting court orders.

At this time, he still says that his alcohol issues have not been a problem for him. However, there is a recent incident where he was dealt with by the police. Although he was in a parked car, he did have care and control of that car and he was given a 24-hour in March of 2016, so after this offence. [ 12 ] It is apparent that Mr.

Andel continues to minimize his substance abuse as a significant criminogenic factor in his life and, although it may have diminished over 20 years, he has now today given through his counsel a confusing explanation of when it was that he had his last drink. [ 13 ] He minimizes his offending behaviour and so, although he may say the words which would lead to a belief on those words alone that he had insight, it is clear from his descriptions of his past offending behaviour to his probation officer that he minimizes. I agree that he deflects blame for these offences and they are serious.

It appeared he gave inconsistent explanations about what he was doing in this car in Squamish at the time and has given inconsistent explanations about whether he was living in the car, whether that was in one location or whether it was moving around. [ 14 ] The psychological report finds that he has prominent antisocial personality traits and I agree with that conclusion. There is a passage in which he is seen to portray himself as having no problematic issues in the psychiatric report, but overall, the report, I find, is not a particular positive one. Mr.

Andel requires supports in the community in order to remain crime-free and that involves stable housing, positive supports, and avoiding future antisocial associates. [ 15 ] There are other concerns which arise in the materials before me. I think there are three different areas in the report where he talks about how he does not want to serve a house arrest/curfew while living at his sister's, which is the place where he would be living while serving a conditional sentence. Although he says he is very ill, he also says that he wants to go out and work full-time.

His counsel said that he has a shoulder injury which requires physiotherapy and cortisone injections, osteoporosis in his wrist, neck and back disc issues, as well as the GI tract issue. However, Mr. Andel in court today said that he had the opportunity to get full-time work and one wonders how, if obtained social assistance disability, he would now suddenly be in a physical condition to pursue full-time work. [ 16 ] All in all, I have difficulty accepting Mr. Andel's history as given to his counsel, as given to the presentence report, and as presented in court. I suspect that Mr.

Andel continues to minimize and deceive himself as well as others. [ 17 ] It is of great concern to me that he is in the homes of and assisting elderly defenceless people with the kind of criminal history that he has and the assessment that is before the court. Mr.

Andel is quite capable of behaving in an apparently prosocial manner and it gives me great pause that these people would be allowing him free access to their homes considering they are elderly and vulnerable, but that is an aside and has no weight in my determination. [ 18 ] I simply cannot find that in all of the circumstances that a conditional sentence would meet all of the principles of sentence for Mr. Andel. I am not even satisfied Mr.

Andel would comply with the terms of a conditional sentence and I have concerns about the safety of the public. [ 19 ] There will be a nine-month jail term imposed in this matter. That will be followed by a three-year Criminal Code prohibition under s. 259 . I pause to note that, with Mr. Andel's history of driving and driving while prohibited, had the Crown not been in a position where they could not rely on their notice of greater punishment, I certainly would have considered a lifetime prohibition from driving for Mr. Andel. Mr.

Andel should be aware that if he comes back before the courts having operated a motor vehicle over this period of time, he can expect to receive an even more lengthy sentence. I doubt very much the Crown will fail to serve a full and valid notice of greater punishment in the future. [ 20 ] THE CLERK: The victim fine surcharge. [ 21 ] THE COURT: Oh, the victim fine surcharge? [ 22 ] MR. COCHRANE: No position. [ 23 ] THE COURT: Yes, I will find he does not have the ability to pay the victim fine surcharge. [ 24 ] MR.

ANDROSOFF: Thank you, Your Honour. [ 25 ] THE COURT: Make it payable forthwith, find him in default, impose one-day concurrent. [REASONS FOR SENTENCE CONCLUDED]