R. v. Sagoo Date:, 2016 BCPC 384

Citation: R. v. Sagoo Date: 20161027 2016 BCPC 384 File Nos: 40632-1, 40455-1 Registry: Campbell River File Nos: 39966-1, 40337-2-C Registry: Courtenay File Nos: 81545-1, 81543-2-C Registry: Nanaimo File Nos: 213833-1-B, 214192-1, 214569-1, 214192-2-A, 217947-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JASBIR SINGH SAGOO REASONS FOR SENTENCE OF THE HONOURABLE JUDGE CROCKETT Counsel for the Crown: A. Venturini Counsel for the Defendant: J. R. Arndt Place of Hearing: Campbell River , B.C.

Date of Hearing: October 4, 7 and 17, 2016 Date of Judgment: October 27, 2016 [1] Mr. Sagoo came before me for sentencing on October 4, 2016, and submissions of counsel continued on October 7, 2016. Heappeared before me again on October 17, 2016 at which time Mr. Sagoo spoke directly to the Court. These are my reasons for sentence. Charges Before the Court [2] Mr. Sagoo has pleaded guilty to the following offences under the Motor Vehicle Act: • Information 214569-1, November 16, 2015, in Delta, BC, driving while prohibited pursuant to

section 99, contrary to section102(a); • Information 214192-1, November 21, 2015, in Surrey, BC, driving while prohibited pursuant to section 251(4), contrary to section95(1); • Information 214192-2-A, February 11, 2016, in Delta, BC, driving while prohibited pursuant to

section 98, contrary to section102(a); [3] He has pleaded guilty to the following offences under the Criminal Code: • Information 213833-1-B, November 21, 2015, in Surrey, BC, breaching his probation order by being found in the driver’s seat of aprivate motor vehicle, contrary to

section 733.1(1); • Information 217947-1, February 10, 2016, in Langley, BC, theft of merchandise under $5000 from Best Buy, contrary to section334(b); • Information 214192-2-A, February 11, 2016, in Delta, BC, breaching his recognizance by being found in the driver’s seat of amotor vehicle, contrary to section 145(3); • Information 39966-1, from April 17 to April 21, 2016, in Comox, BC, theft of merchandise under $5000 from Shoppers DrugMart, contrary to

section 334(b); • Information 81545-1, April 17, 2016, in Nanaimo, BC, theft of merchandise under $5000 from Shoppers Drug Mart, contrary tosection 334(b); • Information 40455-1 (Count 1), April 22, 2016, in Campbell River, BC, theft of merchandise under $5000 from Real CanadianSuperstore, contrary to

section 334(b); • Information 40455-1 (Count 2), April 24, 2016, in Campbell River, BC, theft of merchandise under $5000 from Save On Foods,contrary to

section 334(b); • Information 40632-1, April 23, 2016, in Campbell River, BC, theft of merchandise under $5000 from Home Depot, contrary tosection 334(b); • Information 81543-2-C, April 23, 2016, in Nanaimo, BC, theft of merchandise under $5000 from Real Canadian Superstore,contrary to

section 334(b); • Information 40337-2-C, (Count 2), April 24, 2016, in Courtenay, BC, by a false pretence obtained a gift card, under $5000 fromCanadian Tire, contrary to section 362(2)(b); • Information 40337-2-C, (Count 3), April 24, 2016, in Courtenay, BC, theft of merchandise under $5000 from Canadian Tire,contrary to

section 334(b); Facts [4] The circumstances of the offences were provided to me by Crown counsel, and were not disputed by the accused. The Lower Mainland Offences First Offence [5] On November 16, 2015 at approximately 11:12 a.m., the police conducted a traffic stop in Delta, BC, as a result of a hit on thevehicle’s licence from an automated reader. Mr. Sagoo was driving. He was unable to produce a driver’s licence.

He verbally identifiedhimself to the police and stated he was prohibited from driving. [6] The Crown initially sought a six month jail sentence, pursuant to instructions from Crown counsel in the originatingjurisdiction, in addition to the mandatory minimum $500 fine and a five year driving prohibition. However, Crown counsel agreed withme that on the authority of R. v. Pontes, (SCC), 1995 S.C.J. 70, the accused cannot be sentenced to jail for this MotorVehicle Act offence. [7] In Pontes, the Supreme Court of Canada ruled that because the prohibition on driving in

section 99 (then 92) is ‘automatic and

without notice’,

section 102 (then 94) prevents an accused who is unaware of the prohibition from raising the defence of due diligence. In effect, the combination of sections 99 and 102 provides for the conviction of a prohibited driver whether or not he knows that he is prohibited from driving. In these circumstances, the offence is characterized as one of absolute liability.

Section 6 of the Offence Act states that no person is liable to imprisonment with respect to an absolute liability offence. Therefore, no accused can be sentenced to jail when convicted for breaching a

section 99 driving prohibition. [ 8 ] Accordingly, the Crown changed her submission to seek the $500 fine plus a five year driving prohibition. Second and Third Offences [ 9 ] On November 21, 2015, five days after the previous driving while prohibited, Mr. Sagoo was pulled over in Surrey, BC. Mr. Sagoo was observed approaching a road block conducted by the Surrey RCMP Gang Enforcement Unit. He executed a U-turn to avoid the road block. When pulled over, he was found to be driving, while prohibited, despite the fact there were two licenced drivers in the vehicle.

In addition, he was bound by a probation order not to be found in the driver’s seat of a motor vehicle. Mr. Sagoo initially provided a false name and said he had an Alberta driver’s licence. He ultimately provided his real name when he was cautioned for obstructing a police officer. [ 10 ] For the driving while prohibited, the Crown sought an eight month jail sentence, the mandatory minimum $500 fine, and a five year driving prohibition. For the breach of probation, the Crown sought four months jail, concurrent to the eight months for driving while prohibited.

Fourth Offence [ 11 ] On February 10, 2016, the manager of Best Buy in Langley, BC called the police to report that a man had left the store with a $1200 Asus computer without paying for it. It took some time before Mr. Sagoo was identified via the video surveillance system. The computer was never recovered. [ 12 ] The Crown sought 90 days jail, plus a restitution order of $1200 to Best Buy, pursuant to

section 738 of the Criminal Code . Fifth and Sixth Offences [ 13 ] On February 11, 2016, Mr. Sagoo was once again pulled over by the police for averting a road block, this time in Delta, BC, at approximately 1:50 a.m. He identified himself and admitted being a prohibited driver. He was also breaching his recognizance, by being found in the driver’s seat of a motor vehicle. [ 14 ] For the driving while prohibited, the Crown sought the $300 mandatory minimum fine, ten months jail, plus a five year driving prohibition.

The Crown sought four months jail for the breach of recognizance, concurrent to the ten months for driving while prohibited. [ 15 ] As a more general submission, the Crown sought a total sentence of 21 months jail for the first six offences, all of which were committed in the Lower Mainland of BC. The Crown submitted that all of the sentences should be served consecutively, except as I have noted above.

The Crown also sought a two year probation order, with several conditions, including not to go to the targeted stores, not to be in the driver’s seat of a motor vehicle, not to possess or consume drugs or alcohol, and counselling. The Crown also sought a DNA order on information 214192-2-A. The Vancouver Island Offences [ 16 ] The Crown made a similar submission with respect to the Vancouver Island offences, which I summarize below, except that the total for all of these offences should be two years less one day, to keep the sentence in a range that could include probation.

The Crown’s position is that the Lower Mainland offences should be served concurrently with the Vancouver Island offences, in consideration of the totality principle, and, once again, to permit a probation order to follow. Seventh Offence [ 17 ] On April 17, 2016, Mr. Sagoo attended the Shoppers Drug Mart in Comox, BC. He filled a cart with items and left without paying. His theft was discovered sometime after the fact when an employee noticed the missing product, and reviewed the store security video. Mr. Sagoo returned to the Shoppers Drug Mart on April 21, 2016, to attempt to return some perfume.

He left the store, and an employee wrote down his licence plate attached to a Chrysler Sebring. He was ultimately identified via the security video. The items taken included baby formula and breast pumps with a total value of $780. None of the merchandise was recovered. [ 18 ] The Crown sought four months jail for this offence, plus a restitution order for $780 to Shoppers Drug Mart, pursuant to

section 738 of the Criminal Code . Eighth Offence [ 19 ] On the same date as his theft in Comox, April 17, 2016, Mr. Sagoo committed a theft from a Shoppers Drug Mart in Nanaimo, BC. He was observed by an employee leaving the store with $602.49 worth of merchandise, including a drone and a gift bag. Upon leaving the store, he entered a vehicle. He was identified by store security video. None of the merchandise was recovered. [ 20 ] The Crown sought four months jail for this offence, concurrent to the theft from Comox on the same date, but consecutive to the other Vancouver Island offences, plus a restitution order for $602.49 to Shoppers Drug Mart, pursuant to

section 738 of the Criminal Code . Ninth Offence

[ 21 ] On April 22, 2016, Mr. Sagoo entered the Real Canadian Superstore in Campbell River, BC with two boxes of diapers in his cart. He went to the customer service area, spoke to an employee there, and left the diapers on their counter. He then left the counter and took the cart in to the store. He put some black vinyl bags into his cart, and a plastic tote. He then put multiple packs of infant formula, plus diapers on top of the tote and bags. He pushed the cart near to the bank machine at the front of the store, and went back to the customer service desk. He completed his return of the diapers.

He then asked the customer service representative to assist him with taking the items in his cart to the vehicle. The theft was not discovered until the next day when the formula was determined to be missing. He was identified by police from the security video. [ 22 ] The Crown sought four months jail for this offence, consecutive to the other Vancouver Island offences. Tenth Offence [ 23 ] On April 23, 2016, Mr. Sagoo entered the Home Depot store in Campbell River, BC with an empty cart.

Seven minutes later, he went to the return desk with three items from inside the store: a double sink, a barbeque and a home security system. These items had a total value of $1171. He obtained a $530.88 gift card as a refund (without a receipt), for the stolen sink. He then left the store with the $300 home security system. He left his shopping cart with the $340 barbeque at the return desk. He then returned to the store to ask for an employee to assist him with the barbeque. He ultimately left the store, with an employee pushing his stolen barbeque for him.

He was identified by police from the security video. [ 24 ] When he was arrested the following day, the facts of which are below, the gift card and home security system were located in the Chrysler Sebring vehicle associated to him. [ 25 ] The Crown sought four months jail for this offence, consecutive to the other Vancouver Island offences, plus a restitution order for $340 to Home Depot, pursuant to

section 738 of the Criminal Code . Eleventh Offence [ 26 ] Also on April 23, 2016, Mr. Sagoo stole items from the Real Canadian Superstore in Nanaimo, BC. He used a method that was similar to that used on April 22, at the Real Canadian Superstore in Campbell River. The theft was not discovered until April 29, 2016, when a loss prevention officer reviewed security video from April 23. The video showed Mr. Sagoo enter the store with a shopping cart. He selects a plastic tote, and puts diapers and baby formula into the cart.

He parks at the back end of a check-out line, converses with a cashier, then proceeds to the customer service area. He exits the store, leaving his cart in the store. He returns inside the store, carrying a KitchenAid Mixer, worth $549.99, which he proceeds to return to customer service without a receipt. He obtains a gift card and purchases a tablet in exchange. He then departs the store, pushing his cart with the unpaid diapers and formula. He was identified by police from the security video. [ 27 ] Some of the formula was recovered when Mr.

Sagoo was arrested on April 24, 2016, but it could not be put back on the store shelf after it had been removed from the store. [ 28 ] The Crown sought four months jail for this offence, consecutive to the other Vancouver Island offences, plus a restitution order for $1227.28 to Real Canadian Superstore, for the cost of the infant formula, pursuant to

section 738 of the Criminal Code . Twelfth and Thirteenth Offences [ 29 ] The next day, April 24, 2016, Mr. Sagoo entered the Canadian Tire store in Courtenay, BC. He took a Ninja blender and a microwave off the shelves and went to the customer service desk. He presented the blender to customer service as a return with no receipt. He was issued a $267.79 gift card in exchange. He then exited the store with the microwave, worth $269.99, without paying for it.

He was identified by police from the security video. [ 30 ] The microwave was recovered in the Chrysler Sebring when he was arrested later that day in Campbell River. [ 31 ] The Crown sought four months jail for both of these offences (the fraudulent return and the theft), concurrent to each other, but consecutive to the other Vancouver Island offences. Fourteenth Offence [ 32 ] Later that day, on April 24, 2016, Mr. Sagoo’s luck ran out. He entered the Save On Foods in Campbell River, BC. He was observed by the loss prevention officer pushing a cart containing reusable bags.

He placed multiple items in the cart, including milk, chicken and infant formula, all of which totaled $1192.26. He stopped to converse with a store employee. He then left without making payment for any items. He was apprehended outside by the loss prevention officer, and escorted back inside the store. He gave a false name and did not produce identification. [ 33 ] It was the company’s policy not to search people apprehended for theft. Mr. Sagoo told the loss prevention officer that she should check him for a knife or a gun.

The loss prevention officer said she felt her safety was threatened, so she told him to put his hands behind his back. He then tried to run past her. She and her partner braced themselves so he could not get past them. They advised him to cooperate and they handcuffed him. [ 34 ] When the police arrived on the scene, they immediately recognized Mr. Sagoo from the security video of the theft from the Real Canadian Superstore on April 22, 2016. Mr.

Sagoo said his comment about the gun was just a joke, and continually asked for the handcuffs to be removed. [ 35 ] The police found the Chrysler Sebring associated to Mr. Sagoo in the parking lot. They obtained a search warrant. Inside the car they located the following:

1. multiple receipts from Canadian Tire, Real Canadian Superstore and Home Depot; 2. two cell phones; 3. the microwave from the Courtenay Canadian Tire; 4. three refund gift cards; 5. diapers; 6. infant formula; 7. three packages of LED style lights; 8. a copy of a bail order in the name of Mr. Sagoo. [ 36 ] The police reviewed the cell phones, which contained numerous messages showing that Mr. Sagoo was taking orders for merchandise, including infant formula, store credit, and other items. There were photos sent to people showing four tote bags full of formula.

There was a message stating that the car was “packed”, which included a photo of the back seat of the vehicle full of merchandise. There were messages sent to the phone placing orders for infant formula. Both Crown and defence agreed that infant formula is a common cutting agent used to process street drugs such as cocaine. Mr. Sagoo admits that he traded the formula for drugs. [ 37 ] The Crown sought four months jail for the theft from Save On Foods, consecutive to the other Vancouver Island offences. Criminal History [ 38 ] I have reviewed Mr. Sagoo’s criminal record in detail. It starts in 1998.

There are no convictions between 2000 and 2004. However, from 2005 onwards, he has convictions, usually more than one, for every year up to the present, 2016. I note there are no actual convictions in 2010, but there were four offences committed in that year, for which he was sentenced in 2011. By my count, he has 17 convictions for either theft or possession of stolen property under $5000, 5 convictions for fraud either over or under $5000, 13 convictions for driving while prohibited or suspended, and 8 convictions for breaching either bail or probation orders.

In addition, his record contains two convictions each for resisting or obstructing a peace officer and being unlawfully at large. It contains single convictions for the following offences: dealing with an identity document contrary to 56.1 of the Criminal Code , failing to appear, criminal harassment, assault, careless use or storage of a firearm, trafficking in a narcotic, and possession of a controlled substance for the purpose of trafficking. With respect to this last entry, there is a conflict in the CPIC record and the JUSTIN conviction list.

The former shows a conviction for possession for the purpose of trafficking and the latter a conviction for simple possession. Either way, the distinction is immaterial to my decision on sentence. [ 39 ] In addition, his record shows he has been given four separate conditional sentences. On three of the four, he breached conditions and the order was terminated. On the other one, he breached a condition, but the order was not terminated. [ 40 ] In short, Mr.

Sagoo has a long record for property offences, crimes of dishonesty, and breaches of court orders. [ 41 ] I note that for his most recent conviction for driving while prohibited, in December 2014, Mr. Sagoo received a six month jail sentence and five year driving prohibition. His longest sentence to this point for a theft under $5000 is a conditional sentence of nine months. His most lengthy incarceration for a theft under $5000 was sixty days. Pre-Sentence Reports [ 42 ] I have read two pre-sentence reports, which were marked as Exhibits 1 and 2 in the sentencing.

The first was prepared on March 21, 2013 by probation officer Susan McKay, for a previous sentencing in Surrey, BC. The second was prepared on September 28, 2016, by probation officer Kasia Giesbrecht, for the sentencing before me. [ 43 ] Mr. Sagoo is 46 years old. He was born in India, but immigrated to Canada with his family at the age of seven, and became a Canadian citizen in 1977. Unlike many individuals who come before the court, Mr. Sagoo grew up in a stable and loving environment. He describes his upbringing as free from any issues of substance abuse, violence, or child abuse.

He describes himself as the “black sheep” of the family. The most recent pre-sentence report states that his family members have distanced themselves from him in recent years due to his criminally-oriented and drug-entrenched lifestyle. He is divorced and has two children in their twenties. [ 44 ] The two pre-sentence reports are strikingly similar. In both reports, Mr. Sagoo presents as being forthcoming and cooperative with counsellors and psychologists while in custody. In both reports, he says he has an addiction to cocaine, and that is what fueled his offending.

He expresses remorse for his actions, and states that he is now committed to rehabilitation in a way that purports to be more genuine than his past commitment. In both, he says he has been accepted to a treatment facility. In court, defence said Mr. Sagoo has, in fact, been accepted into three different treatment centres. Of note, the 2013 pre-sentence report states that in the few years prior to the report, Mr. Sagoo had resided at six recovery houses, and completed a ninety day program at a seventh, which was the only licensed and accredited facility he had attended. While on bail for the present offences, Mr.

Sagoo resided at a recovery house, but was asked to leave when he relapsed by using drugs. Positions of the Parties [ 45 ] As stated above, the Crown submitted that the court should impose a total sentence of two years, less one day, plus two years of probation, plus the fines and a five year driving prohibition on the Motor Vehicle Act offences, a DNA order and restitution orders, and forfeiture of the two cell phones seized from Mr. Sagoo on his arrest. The Crown pointed to the commercial enterprise nature of these offences and level of sophistication as concerning features.

The Crown opposed the imposition of a conditional sentence on the basis

that he has breached his four previous conditional sentences, and three of them were terminated as a result. The Crown agreed with defence that treatment for Mr. Sagoo’s longstanding alcohol and drug issues is critical, however, she expressed concerns about whether Mr. Sagoo would actually be able to follow through with his rehabilitation given his past lack of success. [ 46 ] Defence submitted that the 21 month sentence for the Lower Mainland offences is appropriate.

He further submitted that any sentence for the Vancouver Island offences should be a conditional sentence, which should run concurrent to the Lower Mainland offences. He agreed that a two year probation order is appropriate, but that a two year driving prohibition would allow Mr. Sagoo to have some prospect of paying his fines and obtaining his driver’s licence again. Defence submitted that Mr. Sagoo was driving in order to purchase drugs to which he was addicted, in locations that could not be reached by public transit. I pointed out to defence that Mr.

Sagoo was also using a vehicle to assist with his thefts and to transport stolen merchandise. He agreed, but said that a female friend of Mr. Sagoo drove the Chrysler Sebring. [ 47 ] Defence submitted that Mr. Sagoo has entered guilty pleas, and that he has always indicated to counsel that he would plead guilty. He explained that it took some time to gather all of the outstanding charges from various jurisdictions together, and that Mr. Sagoo changed counsel, hence the delay in proceeding with the sentencing. He said Mr.

Sagoo understands that his situation is one of “now or never”, and that he has to make a break with this lifestyle. Mr. Sagoo admits his addiction to cocaine, and that he tends to become withdrawn and depressed. He maintains that he has not used drugs while in custody. He wants to be more than a “degenerate drug abuser”. [ 48 ] Defence described Mr. Sagoo as having held several jobs in the past, including managing two Subway restaurants and working as a heavy duty mechanic. However, he was terminated from most of his positions because he would show up late for work.

He maintains that his tardy behaviour was a result of his drug use. He has held no consistent employment since 2009. [ 49 ] Upon release, Mr. Sagoo intends to attend residential treatment at either Baldy Hughes Therapeutic Community and Farm near Prince George, or, in the alternative, Maple Ridge Treatment Centre. Letters and Documents in Support of Mr. Sagoo [ 50 ] Defence filed several letters and documents on behalf of Mr. Sagoo, marked collectively as Exhibit 3. [ 51 ] He submitted that Mr.

Sagoo is doing well in jail as evidenced by his Ministry of Public Safety and Solicitor General Client Log, which contains notes from Corrections staff members’ observations of him while in custody. He is described as respectful with staff and inmates. He follows rules, keeps his cell clean, and has good personal hygiene. He is further described as quiet, polite and cooperative. He socializes well with peers. He has taken on various jobs while in the institution, including working in the kitchen. [ 52 ] Mr. Kelly, an alcohol and drug counsellor who has met with Mr. Sagoo while he has been on remand, described Mr.

Sagoo as cooperative and fully engaged in counselling. He wrote two letters which formed part of Exhibit 3 in which he also describes Mr. Sagoo as a “genuine participant”, and “honest and open in his communications” and making an “honest effort to address his issues”. [ 53 ] Mr. Caulder, a counsellor who met with Mr. Sagoo in custody, also wrote a letter on his behalf. He said Mr. Sagoo “demonstrated a friendly, open and honest response” to his questions. He believed Mr.

Sagoo was “sincere in his commitment and intent to change the direction of his life”. [ 54 ] I note that the 2013 pre-sentence report indicates that Mr. Sagoo also saw a psychologist and an alcohol and drug counsellor. The psychologist, Mr. Lawson, described Mr. Sagoo as “in good spirits and motivated to seek help, showing an increased willingness to address his substance issues”. [ 55 ] As part of Exhibit 3, Mr.

Sagoo has prepared a hand-written document entitled “My Progress”, in which he lists all of the positive steps he has taken while in custody, including seeing an alcohol and drug counsellor, a psychologist, a chaplain and attending Alcoholics Anonymous meetings. He lists seven people as his supports. He lists two job leads as a mechanic: for a moving company and an excavation company. [ 56 ] Similarly, in the 2013 pre-sentence report, Mr. Sagoo said he had a list of strong, pro-social supports. Also in the 2013 report, Mr.

Sagoo said he hoped to get his previous compressor maintenance and repair company running again, and that he had been contacting customers while in custody to line up work. Mr. Sagoo’s Statement to the Court [ 57 ] On October 17, 2016, after counsel had made their submissions earlier in the month, Mr. Sagoo spoke on his own behalf to the court. He said in his past few months in jail he received help from counsellors and psychologists, and reflected on the destruction he has caused in his community and to his family. He said more than once that he has “hit rock bottom” this time.

He feels like he has lost everything. His grandmother recently passed away and he feels sad that her last memory of him was that he was a “junkie” who commits crimes. He said he does not want his parents, now in their seventies, to remember him this way. He said he tried calling his “so called friends” from jail, but they do not take his calls and no one has sent him “a penny” while he has been there. His father does not have any more time for him, and Mr. Sagoo understands that his father wants to live his own life without worrying about his son using drugs and engaging in criminal activity.

He admitted: “I’ve never followed up on anything I’ve ever done before”, and “I’ve never been honest with myself”. [ 58 ] Mr. Sagoo wants to be given a chance to prove himself to his parents and his children. He said he knows in his heart he is ready to make a change. He read from the Big Book, which contains the Twelve Steps for Alcoholics Anonymous. He said he had bought the Big Book before, but never opened it. Mr. Sagoo was tearful when he spoke to the Court. [ 59 ] Mr.

Sagoo sounded sincere, but he has been given many chances before, with, by his own admission, no real change to his behaviour, nor positive outcomes. I hope, for his sake, he can follow through with his expressed desire to change. He has many positive

qualities, and if he commits to his rehabilitation to stop using drugs and alcohol and leading a criminal lifestyle, I have no doubt he can be successful. [ 60 ] Defence made a final submission on behalf of his client, after Mr. Sagoo spoke. He said that Mr. Sagoo did not disagree with forfeiting the cell phones seized, but said that he had lists of business contacts that were important to him for running his small business. When I challenged defence with the fact that Mr.

Sagoo did not have a legitimate business when he was arrested, defence replied that he did, without providing details, and reiterated that this was a request Mr. Sagoo had made. Defence suggested that he could go through the list of contacts with Mr. Sagoo to get the required information from the phone. The Crown expressed concern, first, that she did not know what abilities the police had to extract the contacts from the phone, and second, that it would be impossible to know which contacts were related to his criminal activities.

Analysis [ 61 ] I am mindful of the purpose and principles of sentence as set out in sections 718 to 718.2 of the Criminal Code . I quote from

section 718 , in particular: 718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences ; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders ; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. (emphasis added) [ 62 ] I am mindful, as the Crown has pointed out, of the totality principle, which is contained in

section 718.2 (c): where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. [ 63 ] Denunciation and deterrence, both specific and general, are factors in this sentence. Mr. Sagoo, and others like him, need to appreciate that a persistent pattern of driving while prohibited, and stealing, will result in longer sentences. Given his extensive record for thefts and related offences, it is surprising to me that he has not received longer jail sentences in the past. [ 64 ] Rehabilitation is also a key component: the sentence should support Mr.

Sagoo in his desire to address his drug and alcohol addictions to the fullest extent possible. But I think it is important to emphasize that, in this case, rehabilitation is not just about addressing substance abuse. His sentence should also support his rehabilitation from his criminally entrenched lifestyle. I will address both rehabilitation, and the related principle, protection of the public, by way of appropriate conditions of probation. [ 65 ] It is of concern to me that Mr. Sagoo has committed offences in so many different communities in British Columbia.

His movement makes it difficult for probation and law enforcement to monitor his behaviour in the community. It also made it more difficult for police to identify and apprehend him for the crimes before the Court. In the 2013 pre-sentence report, Mr. Sagoo said he lived in Richmond, and he told the report writer he had been travelling back and forth to the Shuswap area. The offences to which that report related were committed in Delta and Enderby, BC (I note that Delta and Enderby are between Richmond and the Shuswap).

The offences before this court were committed in Delta, Surrey, Langley, Comox, Courtenay, Nanaimo and Campbell River. His JUSTIN conviction list shows convictions in Richmond, Surrey, North Vancouver, Chilliwack, Port Coquitlam, Kamloops and Abbotsford. He told the writer of the current pre-sentence report that he wants to attend a treatment centre located near Prince George, but that he plans to live on Vancouver Island following treatment. However, in court, he stated through counsel that he plans to live in Vancouver after treatment.

It is critical for his rehabilitation, and protection of the public, that Mr. Sagoo be well monitored in whatever community he chooses to reside. To that end, I will impose a curfew on Mr. Sagoo as a term of probation. This is not to be punitive, but to ensure that he remains in his community so he can be adequately supervised by probation and law enforcement. A condition that he reside at a given address is not sufficient for this purpose, since even if he were to reside at an address, he could still travel over night to other locations in the province.

With a curfew, any travelling he does will be restricted to those hours during which he is not required to be inside his residence. [ 66 ] What becomes clear upon a review of Mr. Sagoo’s history is that he can be polite, organized and engaged with other people. He is capable of working well in an institution. He has skills and he is smart.

He has undertaken all of the steps one would hope him to have done while on remand. [ 67 ] He has no difficulty in understanding what is required of him, and following through with his plans. [ 68 ] I cannot help but notice that he used the same skills when he committed many of the offences before the Court. Mr. Sagoo was organized and persistent in his crimes. He committed several thefts, from multiple locations, often in the same day.

He used his social skills to distract or convince store employees to exchange unbought merchandise for credit, and, most brazenly, to assist him in removing stolen items from the stores. While I do not doubt that he has an addiction to drugs and alcohol, his addiction did not prevent him from carefully and cleverly executing his crimes. Not only did he execute the thefts with skill, he also maintained a client base for his wares, and took orders from them for merchandise.

[ 69 ] Bearing in mind the criteria in

section 742.1 of the Criminal Code , I do not believe a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 . Given his extensive record for property offences, and offences of dishonesty, and breaches of court orders, I am not convinced that Mr. Sagoo is a good candidate for a conditional sentence.

On the contrary, it appears he has been sentenced to conditional sentences on four occasions, and he breached every one of those four conditional sentences. [ 70 ] In addition, Crown counsel brought to my attention two cases which are authority for the proposition that a traditional jail sentence and a conditional sentence cannot run concurrently, since a conditional sentence is not compatible with incarceration. I agree with those cases and am bound by one of them: R . v . Jackson 2010 BCCA 330 (para. 9 ) and R . v. Joe 2005 YKCA 9 (para. 30 ). [ 71 ] Mr.

Sagoo has been in custody on most of these matters since his arrest on April 24, 2016, which, as of today, October 27, 2016, amounts to 187 days in custody. Crown and defence agree Mr. Sagoo spent an additional 24 days in custody on the Lower Mainland offences before being released. So the total number of days he has served in custody is 211. Both Crown and defence agree he is entitled to enhanced credit pursuant to

section 719 of the Criminal Code at a rate of one to one and a half. Accordingly, he is entitled to credit for 317 days. [ 72 ] I have considered the submissions of both counsel. As stated above, a conditional sentence is not appropriate in this case. The Crown’s submission, given the number of offences over all, is fair. If the sentences were all served consecutively, the total jail sought is almost four years. But the Crown submits that several sentences should be served concurrently, in order to result in a sentence just over half of the original amount sought. [ 73 ] I am hopeful that Mr.

Sagoo will be successful with his rehabilitation this time. To that end, I considered placing him on probation for three years in order to maximize his rehabilitation through counselling, including residential treatment, and to protect the public from his thefts. However, given the positions taken by both Crown and defence, I will limit the probation to two years. [ 74 ] I have calculated the sentences to make the entire sentence 729 days, which equates to two years less one day, as sought by the Crown. I have apportioned the 317 days credit amongst the charges.

It would not normally be appropriate for many of these charges to be served concurrently, but for the totality principle, and my desire to keep the entire sentence under two years. Accordingly, I have made certain charges concurrent, and others consecutive, in order to keep the sentence at 729 days. All sentences are consecutive unless I have stated they are concurrent. Taking into account credit for 317 days, the remaining time to be served, in total, is 412 days. 1 . Information 214569-1 (Count 2), November 16, 2015, in Delta, BC, driving while prohibited pursuant to

section 99, contrary to

section 102(a): $500.00 fine and a five year driving prohibition pursuant to

section 98 of the Motor Vehicle Act . I am imposing this driving prohibition in light of his extensive history for driving while prohibited, and note that on his last such convictions in 2014 the court imposed five year driving prohibitions. 2 . Information 214192-1 (Count 3), November 21, 2015, in Surrey, BC, driving while prohibited pursuant to section 251(4), contrary to section 95(1): 240 days jail, $500.00 fine, and a five year driving prohibition pursuant to

section 98 of the Motor Vehicle Act ; 3 . Information 213833-1-B (Count 1), November 21, 2015, in Surrey, BC, breaching his probation order by being found in the driver’s seat of a private motor vehicle, contrary to

section 733.1(1): 120 days jail, concurrent to Information 214192-1 and all other sentences ; 4 . Information 217947-1 (Count 1), February 10, 2016, in Langley, BC, theft of merchandise under $5000 from Best Buy, contrary to

section 334(b): 90 days jail, granting credit for 89 days, so the sentence is 1 day ; 5 . Information 214192-2-A (Count 1), February 11, 2016, in Delta, BC, breaching his recognizance by being found in the driver’s seat of a motor vehicle, contrary to section 145(3): 120 days jail, granting credit for 119 days, so the sentence is 1 day ; 6 . Information 214192-2-A (Count 2), February 11, 2016, in Delta, BC, driving while prohibited pursuant to

section 98, contrary to

section 102(a): 300 days jail concurrent to Count 1 of the same information and Information 214192-1 (and all other sentences), $300 fine and a five year driving prohibition pursuant to

section 98 of the Motor Vehicle Act ; 7 . Information 39966-1 (Count 1), from April 17 to April 21, 2016, in Comox, BC, theft of merchandise under $5000 from Shoppers Drug Mart, contrary to

section 334(b): 120 days jail, granting credit for 109 days, so the sentence is 11 days ; 8 . Information 81545-1 (Count 1), April 17, 2016, in Nanaimo, BC, theft of merchandise under $5000 from Shoppers Drug Mart, contrary to

section 334(b): 120 days jail concurrent to Information 39966-1 (and all other sentences) ;

9 . Information 40455-1 (Count 1), April 22, 2016, in Campbell River, BC, theft of merchandise under $5000 from Real Canadian Superstore, contrary to

section 334(b): 99 days jail ; 10 . Information 40632-1 (Count 2), April 23, 2016, in Campbell River, BC, theft of merchandise under $5000 from Home Depot, contrary to

section 334(b): 120 days jail, concurrent to all other sentences ; 11 . Information 81543-2-C (Count 1), April 23, 2016, in Nanaimo, BC, theft of merchandise under $5000 from Real Canadian Superstore, contrary to

section 334(b): 120 days jail, concurrent to all other sentences ; 12 . Information 40337-2-C, (Count 2), April 24, 2016, in Courtenay, BC, by a false pretence obtained a gift card, under $5000 from Canadian Tire, contrary to section 362(2)(b): 120 days jail, concurrent to all other sentences ; 13 . Information 40337-2-C, (Count 3), April 24, 2016, in Courtenay, BC, theft of merchandise under $5000 from Canadian Tire, contrary to

section 334(b) ): 120 days jail, concurrent to Count 2 of same information (and all other sentences) ; 14 . Information 40455-1 (Count 2), April 24, 2016, in Campbell River, BC, theft of merchandise under $5000 from Save On Foods, contrary to

section 334(b): 120 days jail, concurrent to all other sentences . [ 75 ] Upon your release from custody you must comply with the conditions of a probation order for a term of two years. The conditions of the order are: 1 . You must keep the peace and be of good behaviour. 2 . You must appear before the court when required to do so by the court. 3 . You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. 4 .

You must not go inside or be within 20 metres of any Best Buy, Shoppers Drug Mart, Home Depot, Save On Foods, Real Canadian Superstore, or Canadian Tire in British Columbia. 5 . You must report in person to the probation officer nearest your place of release within 2 business days after the completion of your jail sentence. After that, you must report as directed by the probation officer. 6 .

If at any time prior to the expiration of this order, you are arrested, detained or have served a sentence for another offence, you must report to the probation officer within 2 business days of your release from custody. 7 . When first reporting to the probation officer, you must inform him or her of your residential address and phone number. You must not change your residence or phone number without written permission from your probation officer. 8 . You must obey all of the rules of your residence, so long as they do not conflict with this order or the directions of your probation officer.

If there is a conflict, you must tell your probation officer about the conflict immediately. 9 . You must not leave the Province of British Columbia unless you have the written permission of the probation officer, and you must carry the permission when you are outside the province. 10 . For the duration of this order, y ou must obey a curfew by being inside your residence, between the hours of midnight and 6:00 a.m. each day.

You must present yourself immediately at the door to your residence and you must answer the phone when any peace officer or probation officer attends at your residence or calls your phone to check your compliance with the curfew condition of this order. You are allowed to be away from your residence during your curfew: a. With the written permission of your probation officer. Such permission is to be given only for compelling reasons. You must carry the permission with you when you are outside your residence during the curfew hours. b.

While in the course of your employment, or when travelling directly to, or returning directly from, your place of employment. If requested, you must provide your probation officer with details of your employment, including location and hours of work. c. In the event of a medical emergency and then only while at a health care facility, or when traveling directly to, or returning directly from a health care facility. If requested, you must provide your probation officer with written confirmation that you went to the health care facility, signed by a representative of the health care facility to which you went. d.

In the immediate company of a person approved by your probation officer in writing. You must carry the written approval with you when you are outside of your residence during the curfew hours. 11 . You must not possess or consume alcohol, drugs or any other intoxicating substance, except in accordance with a medical prescription. 12 . Having consented, you must attend, participate in and su c cessfully complete any intake, assessment, counselling, program, treatment or residential treatment program as directed by your probation officer. 13 .

Y ou m u s t c o m p l y w i th a l l the r u l es o f any residential treatment program, so l ong as the r u l es do not co n f li ct w i th th i s o r d er or the d ir ect i ons o f your p r obat i on o f f i ce r . If there is a conflict, you must tell your probation officer about the conflict immediately. 14 . You must not possess or use any mobile communication device, except you may possess one cell phone with one phone number, which can only be used for the purposes of contacting your probation officer, legal counsel, or for lawful employment, or in an emergency.

15 . You must provide your probation officer with the telephone number and service provider and not change it without the permission of the probation officer. 16 . Upon request, you must provide your probation officer with a copy of your monthly cell phone bill with details of all phone and text message activity. A peace officer may obtain a copy of these records from your probation officer. 17 . You must not occupy the driver’s seat of any motor vehicle. 18 . You must provide a copy of this order to any peace officer who asks to see your driver’s license. 19 . You must not possess any infant formula or diapers.

You must not be in a motor vehicle that contains infant formula or diapers. 20 . You must not enter or be in any retail store unless you are in the immediate presence of another adult. You may only enter retail stores for the purposes of your personal shopping, and you must leave the store immediately upon completing your shopping. 21 . You may only enter retail stores for a maximum of two hours each week. Such two hours must be scheduled, in advance, in writing, by your probation officer, to occur on a specified day, during specified hours.

Your probation officer may grant written permission to enter retail stores for more than two hours per week, but only for compelling reasons. You must carry your

schedule and any written permissions when attending a retail store and you must provide a copy of them to any peace officer or probation officer who asks to see your identification or your written permissions. 22 . You must not return any item to any retail store without a receipt. [ 76 ] I have considered Mr. Sagoo’s request to access the contacts on the cell phones seized from him. Defence stated in his submissions that Mr. Sagoo has not had any consistent employment since 2009. He supported himself on social assistance. Mr.

Sagoo, speaking on his own behalf, said his old friends were not his friends, and they did not take his calls from jail. He said all he wanted and needed was his family. In the 2013 pre-sentence report, he claimed to have operated his own compressor maintenance company since about 1996. But also in that report, he acknowledged that he had difficulty doing so for the seven or eight years leading up to 2013, due to his substance misuse and driving prohibitions. Defence, in his submissions, said that because of incarceration and his own inconsistency, Mr.

Sagoo lost any client base he had for his compressor maintenance business. Mr. Sagoo stated in the 2016 pre- sentence report that he had a desire to seek employment in the excavating industry on Vancouver Island upon completion of treatment. In his handwritten document, he listed two possible employment prospects as a mechanic. In short, I find it hard to understand how there could be any legitimate business contacts in Mr. Sagoo’s cell phones whose phone numbers he could not locate in some other manner. I share the Crown’s concerns that there is no way to ensure Mr.

Sagoo will not be accessing his criminal contacts on his phones. Pursuant to

section 490.1 of the Criminal Code , I am satisfied on a balance of probabilities that the cell phones seized from Mr. Sagoo are offence related property, and I order that they be forfeited to Her Majesty, to be disposed of in accordance with the directions of the Attorney General, as defined in

section 2 of the Criminal Code . [ 77 ] I have considered making the restitution orders sought by the Crown. However, the pre-sentence report states that Mr. Sagoo has “incalculable” debts, and his handwritten document in Exhibit 3 states he is filing for bankruptcy. It would discourage his rehabilitation to impose further debts on Mr. Sagoo, and, realistically, there is little likelihood he could pay them.

I have imposed fines as stated above because they are the minimum mandatory fines pursuant to the Motor Vehicle Act and the Crown has proceeded by way of notice to seek greater punishment. [ 78 ] Count 1 on information 214192-2-A is a secondary offence, and I order you to provide a sample or samples of your bodily substances to be taken for the purposes of registration in the national DNA databank, in accordance with the provisions of

Part XV of the Criminal Code . This order is valid until executed. ________________________________ The Honourable Judge Crockett, PCJ