R. v. Masich, 2023 BCPC 15

Citation: R. v. Masich 2023 BCPC 15 Date: 20230109 File No: 70661-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. BRENDAN JUSTIN DAVID MASICH ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P. WHYTE Counsel for the Crown: H. Waldock Counsel for the Defendant: V. Moes Place of Hearing: Chilliwack , B.C. Date of Hearing: November 17, 2022 Date of Sentence: January 9, 2023

[ 1 ] THE COURT : On March 24, 2022, following four days of trial, I convicted Brendan Masich of breaking and entering a dwelling house with intent to commit theft, contrary to s. 348(1) (

b) of the Criminal Code and of breaking and entering into a dwelling house with intent to steal or stealing firearms located therein, contrary to s. 98(1) of the Criminal Code . [ 2 ] The matter was adjourned for sentencing and was subject to a number of delays. Mr. Masich finally appeared before me for a sentencing hearing on November 17, 2022. At the conclusion of counsel's submissions, I reserved my decision. These reasons form my decision regarding sentence. [ 3 ] At the time submissions were made on November 17, 2022 a conditional sentence order was not available.

However, Parliament had introduced Bill C5 which was expected to make conditional sentence orders available for many more Criminal Code offences. Later that same day, Bill C5 came into force. As expected, the Bill amended the Criminal Code to expand the availability of conditional sentence orders.

Section 742.1 (

c) now makes a conditional sentence order a permissible sentence for the offences for which Mr. Masich was convicted. [ 4 ] Counsel made fulsome submissions on the appropriateness of a conditional sentence order with the expectation that such an order would be available for Mr. Masich. I, therefore, will address the appropriateness of a conditional sentence order for Mr. Masich. Position of the Parties [ 5 ] The Crown seeks a term of imprisonment between three and five years for the s. 98 offence and a one to two-year term of imprisonment for the 348(1)(

b) offence to be served concurrent to the s. 98 offence. The Crown also seeks ancillary orders for the provision of a DNA sample, a s. 110 firearms prohibition and an order for restitution. [ 6 ] The defence submits that the appropriate disposition is a conditional sentence order in the upper range for a provincial jail term. By necessary implication, the defence argues for a term of imprisonment of less than two years. Circumstances of the Offences [ 7 ] I found after trial that Mr. Masich broke into the Chilliwack residence of Russell and Diane Knutson at some point between the 12 and 15 day of September, 2019.

I found that Mr. Masich, likely in concert with unknown accomplices, stole a number of firearms that were located in a locked gun locker in the Knutson's locked gun room. [ 8 ] The Crown's case against Mr. Masich was circumstantial and was predicated upon the finding of Mr. Masich's DNA on the outer rim of a bottle of cranberry juice that had been left in the gun room adjacent to the gun locker. Both the gun room and the gun locker had been pried open and the firearms taken. [ 9 ] Other items were also taken from the home.

A fulsome list of stolen items was tendered during the trial; it included a Winchester 300 bolt action rifle, a Winchester 30-30 model 94 lever action rifle, a Mossberg 16 gauge bolt action shotgun, a .22 calibre bolt action rifle, passports in the name of Russell and Diane Knutson, three laptops, many pieces of jewellery, a large number of other household possessions, a Toyota Corolla and a 2010 Kawasaki all-terrain vehicle. The Corolla and the ATV were both located days later in Chilliwack. [ 10 ] On February 25, 2020 the .22 calibre rifle was found at a residence occupied by David Geoghegan and Miranda Jones.

The court has heard that Mr. Geoghegan, a violent offender, pleaded guilty to possessing the rifle. Mr. Geoghegan currently faces a charge of murder involving a firearm. No connection has been made between the alleged murder and the rifle stolen from the Knutson's residence as far as I am aware. [ 11 ] Finally, Mr. Masich admitted at trial that the stolen items were valued at over $40,000. The ATV was valued at $4,734; the Toyota Corolla's insurance deductible was $300. The Knutson's insurance company reimbursed them $41,661.93 for their stolen property. Both the Knutsons and their insurer seek restitution.

The Crown submits that a restitution order of $53,497.33 is appropriate in favour of the Knutsons and their insurer. Circumstances of the Offender [ 12 ] The court had the benefit of reading a pre-sentence report prepared in advance of the sentencing hearing. Mr. Masich is now 33 years of age. He described his upbringing as "normal". He was raised in a family with some means, as his parents owned a successful jewellery store in Cranbrook, British Columbia. Mr. Masich's sister described their childhood as privileged. [ 13 ] Mr.

Masich indicated that his father disciplined him physically for reasons he described as minor. This apparently instilled a sense of rebellion in Mr. Masich, causing him to act out. Mr. Masich's mother and sister denied that excessive physical punishment was used at home. Regardless, Mr. Masich was kicked out of the family home initially at age 14. He appears to have been directed to leave the home permanently at age 18 due to his substance misuse. [ 14 ] Mr. Masich has one daughter. She was removed by the Ministry of Children and Family Development and eventually adopted. [ 15 ] Mr.

Masich reports that he experienced trauma in the past. He was diagnosed with depression at age 16. Mr. Reveley, in his submissions, related that Mr. Masich suffered emotionally and physically from several car accidents including one where a friend of his was struck by a car and died in Mr. Masich's arms. As a result, Mr. Reveley said that his client also suffers from PTSD, post-traumatic stress disorder.

He is reportedly prescribed a variety of medications to assist him, including Kadian, a slow-release opiate to assist with managing his addiction, Citalopram, an SSRI antidepressant, and Seroquel, an antipsychotic medication that is also used to treat

depression and anxiety. [ 16 ] Mr. Masich has been employed previously in various capacities in the oil fields in Alberta but appears not to have been gainfully employed since 2015. He candidly asserted in the PSR that he subsidized social assistance benefits with criminal activity. Substance Misuse [ 17 ] Mr. Masich's history of substance use is a primary concern, one that has underscored much of his offending behaviour. He began using marihuana at age 14 and cocaine at age 15, in addition to daily alcohol use. He started using crystal methamphetamine and fentanyl at age 25 in addition to cocaine. Mr.

Masich further reported active daily fentanyl use at the time the PSR was drafted. I understood this was still the case at the time he appeared before me for sentencing. He has attempted to reduce his illicit drug use by willpower and previously with the Kadian prescription. He acknowledged being under the influence of fentanyl at the time of these offences. [ 18 ] Mr. Masich has reportedly attended treatment facilities at various times in his 20s and was able to maintain sobriety for between five and nine months. His family believes he remained active in addiction even when attending these programs. [ 19 ] Mr.

Masich's substance use was clearly a factor in the commission of the offences. It has underscored the majority of his offending behaviour. He continues to use substances. He has not, as far as I am aware, taken steps to enrol in any organized treatment programs since these convictions. Criminal History [ 20 ] Mr. Masich's JUSTIN conviction report was tendered at the sentencing hearing. At age 33 he has eight adult convictions; among them is a 2015 conviction for break and enter and disguising his face with intent to commit an offence.

These convictions related to an incident wherein he broke into a Subway Restaurant to obtain money from the cash register. He received an effective 120-day sentence. Otherwise, Mr. Masich's record is for property or drug possession offences and breaches of court orders. It is a limited yet related record. It is the record of an addict. [ 21 ] His performance on bail has been less than ideal, although no breaches were submitted. Mr. Masich attended late to various court appearances related to this matter and received warnings to show up on time. Attitude Toward Offences [ 22 ] Mr.

Masich reported feeling "sick to his stomach" because he was going to go to jail for something he did not do. He told the PSR author that he attended the residence because he believed his friend was housesitting and left immediately once he realized a theft was occurring inside the home. He further said that he did not take any of the items that were stolen but did not implicate anyone else for fear of being labelled a rat. [ 23 ] Nonetheless, Mr. Masich expressed remorse at the damage and loss suffered by the Knutsons, whom he described as seeming to be good people.

He reported during the sentencing hearing that in addition to coming off of Kadian, he had found his own housing and had made changes regarding the people with whom he chose to associate and in general was trying to change his ways and better his life. [ 24 ] Mr. Reveley submitted that it is not possible to precisely attribute Mr. Masich's degree of participation in what was a serious break and enter and theft. There was no indication that Mr. Masich was the operating mind behind the incident which likely included other individuals. Nor was there evidence that Mr.

Masich benefited financially from the theft. [ 25 ] Mr. Masich's active addiction and use of fentanyl during the offences was alleged as a mitigating factor that operated to reduce his moral blameworthiness. Mr. Masich has been attempting to reduce his opiate usage but acknowledged that he was still using substances. He expressed interest in further treatment but to date, that interest has not crystalized into a plan for treatment. [ 26 ] Mr. Masich has the support of an intensive case management team. Mr.

Reveley supplied an email from Rylee Wepryk (phonetic) Housing First outreach coordinator with the Chilliwack Intensive Case Management team. Ms. Wepryk co nfirmed that Mr. Masich successfully transitioned from an emergency shelter placement into independent living. This was considered to be a positive development in his life which has been punctuated by chaos and instability brought about primarily by substance abuse. He has access to services, including a family doctor, psychiatrist and counselling if he wishes, as well as an outreach worker. [ 27 ] Mr. Reveley submits that Mr.

Masich need not be warehoused in an institution to meet the needs for denunciation and deterrence or to protect society.

However, if the court were to sentence him to incarceration, a direction to refer him to the Guthrie House program in Nanaimo would be appropriate. [ 28 ] From the Provincial Court website: Guthrie House is a 55-bed therapeutic community located at the Nanaimo Correctional Centre separate from the rest of the correctional centre that combines work, treatment, counselling and around the clock behavioural modelling to address the root causes of addiction and give residents a chance at a new beginning. Individuals participating in this program are called residents.

Residents demand accountability from one another and will challenge insincerity. The progress they see in each other and in themselves fosters a positive environment and dedication to the program. At the end of their custodial sentences, residents are transitioned into the community, provided with assistance to find work and housing and monitored for up to six months following their release. [ 29 ] Impact analysis of the therapeutic community has demonstrated that it helps individuals make changes in their lives with reductions of reoffending of up to 44 percent. Considerations for a Conditional Sentence

[ 30 ]

Section 742.1 of the Criminal Code lists criteria a judge must consider before imposing a conditional sentence, including the following: The court must impose a term of less than two years. The offence must not be punishable by a minimum term of imprisonment. The offence must not be an offence found in s. 239 , 269.1 , or 318 . The offence must not be a terrorism offence or a criminal organization offence.

The safety of the community must not be endangered by the offender serving his or sentence in the community and a conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in s. 718 through 718.2. [ 31 ] There is no minimum term of imprisonment for either of these offences.

The convictions were not for offences found in s. 239, 269.1 or 318, nor were they convictions for terrorism or criminal organization offences. [ 32 ] I will address the issues of length of sentence, community safety, and whether a conditional sentence is consistent for the purpose and principles of sentencing. THE PURPOSE, OBJECTIVES AND PRINCIPLES OF SENTENCING [ 33 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is the fundamental principle of sentencing for s. 718.1.

The fundamental purpose of sentencing is 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: s. 718. [ 34 ] When considering a sentence, I must be mindful of the objectives of sentencing as outlined in s. 718 of the Criminal Code . Particular to Mr.

Masich, the objectives of sentencing in this case include denouncing unlawful conduct, deterring the offender and other persons from committing offences, to separate offenders from society when necessary, assisting with the rehabilitation of offenders and promoting a sense of responsibility in the offender and acknowledging the harm done to victims or to the community. [ 35 ] A judge is also guided by a number of principles set out in s. 718.2 of the Criminal Code , including the following which I consider relevant to Mr. Masich.

A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or to the offender. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances and all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention paid to the circumstances of aboriginal offenders. [ 36 ] In cases of this nature, it is clear that the primary factors to be punctuated on sentence are denunciation and deterrence. Rehabilitation, while relevant, is a secondary consideration in sentencing Mr. Masich.

As noted recently by the Court of Appeal in R. v. Robertson , 2020 BCCA 65 at paragraph 79 : …There is no doubting that stolen firearms pose a risk to the community. It is well known that firearms used by criminals are often stolen from lawful owners and then traded or sold in the underground market. Accordingly, priority must be given to deterrence and denunciation in sentencing an offender who participates in that market. Victim Impact [ 37 ] Russell Knutson filed a victim impact statement which was tendered as an exhibit on the sentencing hearing.

He described how his lifestyle has been affected by the uncertainty of future break-ins. He said he experiences greater anxiety when he and his wife go away and they have to be more vigilant about the possibility of being targeted as they were by Mr. Masich. Additionally, Mr. Knutson reported feeling angry. It was a lot of work to catalogue all of the items that were stolen for purposes of their insurance claim. Mr. Knutson reported being out approximately $5,234 for items not covered by their home or vehicle insurance policies. He seeks restitution in this amount.

Aggravating and Mitigating Factors [ 38 ] I find the following to be relevant mitigating factors. Firstly, it is relevant that Mr. Masich was actively engaged in his addiction at the time of the offence. As noted recently by our Court of Appeal, the impact of mental health and addictions issues on moral culpability is a complicated question. While self-induced intoxication that leads to criminality is typically the product of intentional risk taking which conduct itself is dangerous, irresponsible and blameworthy.

A co-occurring mental health issue underlying that addiction can be viewed as a mitigating factor: see R. v. Forner , 2020 BCCA 103 at paragraphs 26 through 28. [ 39 ] In R. v. Badhesa , 2019 BCCA 70 at paragraph 42 , the Court of Appeal determined that where mental illness causes or contributes to the commission of an offence, it is a mitigating factor because the offender's moral culpability is attenuated.

In such circumstances, general deterrence is a less weighty consideration. [ 40 ] Here I recognize both the presence of drug addiction and the likelihood of an indirect link to underlying mental health issues, likely depression. I ultimately determine that Mr. Masich's moral culpability is slightly attenuated. His actions are undoubtedly the product of his use of illicit substances, although I do not lose sight of the fact that his intoxication was self-induced.

In these circumstances, I view efforts made at dealing with an active addiction to be a prominent factor in the sentencing analysis. [ 41 ] Additionally, Mr. Masich apologized for his conduct. He expressed remorse for the way the offences impacted the victims, Mr. and Mrs. Knutson. He said the victim impact statements had a noted effect on him. He was sorry for what happened as they seem like good people. Mitigating Factors That Were Absent [ 42 ] Mr. Masich did not enter a guilty plea. This is not an aggravating factor on a sentence but it is an absence of a mitigating factor.

Further, he has not taken recent concrete steps to address his addiction. Had he done so, I would have considered those efforts to be a

significant mitigating factor. [ 43 ] I find the following to aggravating factors: [ 44 ] Mr. Masich's criminal record, although not lengthy, is an aggravating factor. As already noted he was convicted of a break and enter offence in September 2015 and received an effective 120-day sentence. [ 45 ] The number of firearms stolen in this break and enter is aggravating. Of the four firearms stolen, one was recovered, one seized from Mr. Geoghegan and Miranda Jones on February 25th, 2020. The other three firearms have not been recovered. [ 46 ] Mr.

Geoghegan is a violent offender currently charged with murder involving a firearm. It is not possible to determine what role, if any, Mr. Masich played in getting the firearm into Mr. Geoghegan and Ms. Jones' hands. Nonetheless, without Mr. Masich's involvement in the break and enter and theft, the firearm would not have gotten to Mr. Geoghegan and Ms. Jones. [ 47 ] The amount of damage to the home and the number of other items stolen is aggravating. The Knutson's home was effectively ransacked.

They lost tens of thousands of dollars in lost items and damage although they were reimbursed for much of their losses by their insurance company. Analysis Is a conditional sentence a fit and appropriate sentence? [ 48 ] In order to consider a conditional sentence I must impose a term of imprisonment of less than two years. A variety of sentencing precedents were provided in support of the Crown's position that the appropriate disposition is between three and five years' incarceration. The defence tendered two cases where break and enter offences garnered a conditional sentence or a shorter jail term.

I will review these precedents below. A Note on Sentencing Precedents [ 49 ] Sentencing precedents are, of course, guidelines. They do not bind the sentencing judge to a particular disposition. This is because sentencing is in all cases an individualized process. Sentencing ranges are merely a

summary of the case law that reflects the minimum and maximum sentences imposed by trial judges in the past. They provide structure and guidance, while allowing the sentencing judge to consider the effect of mitigating and aggravating factors. In this sense, a range of sentence reflects individual cases but does not govern them: see R. v.

Parranto , 2021 SCC 46 at paragraph 17 . [ 50 ] Nonetheless, a consideration of previous sentences for similar offences is in keeping with the sentencing principles established in 718.2(b): a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The Crown's Cases R. v. Burnett , 2017 MBCA 122 [ 51 ] Burnett was an appeal of a sentence of a 90 day intermittent sentence and two years' probation for a s. 98 offence. The offender in Burnett was paid to break into a residence and steal a handgun and ammunition from a locked gun safe.

Nothing else was stolen from the home. The offender was 23 years of age. He had one prior criminal conviction for a drug offence. He had issues with alcohol at the time of the offence but was sober at the time of sentencing. He had strong community, family and employment support. He pleaded guilty to the offence. [ 52 ] The Manitoba Court of Appeal recognized s. 98 offences as a more aggravated form of break and enter, in part because the purpose of the crime is to acquire a dangerous item that can be used to facilitate violent crimes. I reiterate that one of Mr.

Knutson's guns ended up in the hands of a violent offender currently charged with murder involving a firearm. [ 53 ] As the court noted in Burnett , guns kill, maim, terrorize and intimidate. They are sought after by criminals for this purpose.

The availability of guns and the devastating impact they have on victims in society must be considered when addressing appropriate sentences for offenders who use or obtain them illegally. [ 54 ] The Court of Appeal determined that a starting point for s. 98 offences for breaking and entering and stealing a restricted firearm by a mature offender who pleaded guilty and had no prior criminal record was 30 months imprisonment. [ 55 ] The court ultimately found that an 18-month jail term may have been justified.

However, based on the time already served and the concern that re-incarceration would interfere with rehabilitative steps the offender had taken, the court ultimately stayed any further jail time. [ 56 ] The offender in Burnett was a younger man with a minimal criminal record. He pleaded guilty to the offence and had taken steps to deal with his addiction. Mr. Masich's circumstances do not reflect these mitigating factors. [ 57 ] On the other hand, the subject weapon in Burnett was a restricted firearm whereas the firearms stolen from the Knutson's residence were neither restricted nor prohibited. R. v.

Brick , 2019 ABCA 351 [ 58 ] The offender in Brick broke into a home with three others and stole 28 firearms, ammunition, and other valuables. In the process, they ransacked the home, causing $56,000 in damage. The 53-year-old offender had a "lengthy and sustained criminal record", Brick at paragraph 4 . He pleaded guilty and had taken positive steps toward rehabilitation. Gladue factors were also noted to be present. The home was rural and considered by the court to be more vulnerable, an aggravating factor on sentence. The three-year sentence imposed

at trial was upheld. [ 59 ] Mr. Masich, in contrast, has a limited criminal record and stole only four guns. The home broken into by Mr. Masich was in an urban rather than rural area. Conversely, Mr. Masich has not taken appreciable steps toward rehabilitation. Nor are Gladue factors at play. [ 60 ] The Crown argues that a consideration of these various factors suggests that a three-year term would fall below what was appropriate for Mr. Masich based on the absence of a guilty plea, the inapplicability of Gladue principles and no significant steps taken by him toward rehabilitation. R. v.

Johnson , 2014 BCSC 2226 [ 61 ] The offender in Johnson pleaded guilty to break and enter and theft of firearm, attempted robbery and attempted theft of firearm and possession of a prohibited weapon, a Taser. Johnson and his co-accused broke into a hotel room to steal four long guns. They were confronted by the victim in the parking lot and a struggle ensued. Ultimately the guns were recovered. The offender was 47 years of age. He has an extensive criminal history with noted breaks in between blocks of offending.

The court determined his offending behaviour was related to ongoing substance abuse issues. [ 62 ] The court endorsed the Crown's position of two years less a day for the s. 98 offence and in so doing stated that had the offender not taken significant steps to rehabilitate himself, the sentence would have been "much higher than suggested by the Crown": Johnson at paragraph 27 . [ 63 ] There are distinguishing features between the offender in Johnson and Mr. Masich. Mr. Masich's record is limited and he was convicted neither of possessing a weapon nor of attempted robbery. Conversely, Mr.

Masich did not plead guilty. He caused significant damage and loss to the Knutson's residence. He has not taken meaningful steps toward rehabilitation and the guns stolen by Mr. Masich were mostly unrecovered, with the one recovered gun found in the possession of a violent criminal. [ 64 ] Generally, Mr. Masich's personal circumstances are more aggravating than those of Johnson which would support a longer sentence. R. v. Dyck , 2015 BCSC 1937 [ 65 ] The offender in Dyck , a Mr. Martin, was sentenced to a lengthy conditional sentence for possession of stolen property.

Mere hours after the sentencing, he and others, including Mr. Dyck, broke into a rural property in Kamloops and stole a variety of items including guns, ammunition, a television and an ATV. He pleaded not guilty and was convicted after trial. Mr. Martin was 40 years old. He had 52 prior convictions, including 16 property related offences. He had served lengthy prison terms in the past. He had taken some steps toward rehabilitation while in custody. He had family and community support.

He suffered from addictions issues. [ 66 ] Justice Donegan considered a four-year sentence to be appropriate but reduced it to three years because Mr. Martin was serving a sentence for robbery at the time; as such, the sentence was consecutive. The reduction was to account for the totality principle. [ 67 ] The Dyck case is instructive because the circumstances bear resemblance of those of Mr. Masich. However, Mr. Masich has far fewer criminal convictions and was not bound by a conditional sentence at the time of these offences. Conversely, Mr. Masich stole four firearms, twice the number of Mr.

Martin. [ 68 ] The Crown argues that the differences between Mr. Masich and Mr. Martin roughly balance out and, therefore, suggest a four- year sentence would not be inappropriate. R v. Sawatsky , 2022 BCSC 625 [ 69 ] This recent B.C. Supreme Court decision involved sentencing for an offender who was convicted of stealing six firearms, possession of breaking instruments, mischief by damaging a wall at the Powell River RCMP detachment and simple possession of cocaine. Five of the six weapons stolen by the offender were non-restrictive long guns and one was a restricted handgun.

The guns were stolen when the offender broke into a residence where he used a pry bar to break into a locked gun cabinet. Crown and defence jointly proposed a five-year term of imprisonment for Count 1, the s. 98 offence, with the other counts to be served concurrently. The offender had 25 prior convictions including eight for break and enter. The court determined that the proposed sentence was within the range established in R. v. Burnett and R. v. Powis , 2007 BCCA 108 . [ 70 ] The offender in Sawatsky had many more convictions than Mr. Masich. Additionally, his theft included a restricted handgun; however, Mr.

Masich's break and enter involved theft of many more items. One of the firearms made its way into the hands of a violent offender, and none of the other guns was recovered. [ 71 ] The case is ultimately of limited utility as the basis for the joint submission is not explained in the judgment. Nonetheless, the similarities between Mr. Sawatsky and Mr. Masich suggest that the sentence imposed is within what might be considered appropriate for this offence committed by this offender. R. v.

Bartholomew , 2019 ONSC 245 [ 72 ] The offender in Bartholomew was found guilty after trial of a large number of offences related to his involvement in a residential break and enter, theft and possession of four firearms. Four other individuals were involved in the break and enter. The offender was judged to be an “aider” rather than an instigator. His involvement was limited to assisting by acting as a getaway driver, as well as being in possession of four of the firearms. The offender was 22 at the time of the offences; he had no prior criminal record. He expressed some remorse for his conduct.

His participation was not part of a pattern of criminal behaviour. He had family support. He worked for his father 10 to 12 hours a day while on bail. The court ultimately imposed a sentence of two years less a day.

[ 73 ] The Crown argues that the offender in Bartholomew was in a considerably better position that Mr. Masich given the former's mitigating factors which are absent in Mr. Masich's case. I agree with this assessment. [ 74 ] The Crown tendered a further four cases in support of its position that a sentence of one to two years jail was appropriate for the break and enter offence. These cases were as follows: R. v. Bornyk , 2017 BCSC 850 [ 75 ] A sentence of 21 months jail plus two years' probation was deemed appropriate for an offender who ransacked a house and stole $30,000 in personal property.

The offender had a lengthy criminal record and a terrible upbringing but had made significant strides toward rehabilitation. R. v. Mattoon , 2020 BCSC 2088 [ 76 ] The court handed down an 18-month jail term plus one year probation for an offender who broke into a residence and stole nearly $12,000 in property. The offender confessed, entered a guilty plea and had taken positive steps toward rehabilitation. He had a lengthy criminal record but a notable gap in offending prior to the break and enter offence. R. v.

Groleau , 2010 BCCA 363 [ 77 ] Groleau was an appeal of a three-year sentence for an offender who broke into a stranger's home and stole $3,000 worth of property. He was stopped by neighbours in the middle of the offence and waited for police to arrive. The offender had a lengthy criminal history. He entered a guilty plea; suffered from addictions issues and had a difficult background. The Court of Appeal upheld the trial judge's sentence. R. v. Izzard , 2013 NSCA 88 [ 78 ] Izzard, the final case for the Crown, was an appeal of a three-year jail term for a break and enter and a breach.

The offender broke into a cottage and removed its contents to a vehicle. The offender had 34 prior convictions and was on probation at the time of the offence. His pre-sentence report was not considered to be positive. [ 79 ] The defence tendered two cases in support of its submission that a conditional sentence was within the range of appropriate sentences for Mr. Masich. R. v. Josephee , 2020 NUCJ 40 [ 80 ] The offender in Josephee was sentenced to break and enter and commit theft, discharging a firearm and four counts of breach court orders.

He and another person broke into a commercial building and stole a Savage .223 rifle which was a non-restricted long gun and some other items, including sneakers (which factor in the circumstances). He was seen on video with the firearm. The next day an employee of the organization went to his house and asked for the gun back. The offender returned it to him. Later he was confronted by another employee who aggressively grabbed him by the throat and demanded he return the sneakers. The offender was left in his stocking feet on the street.

The offender returned later and shot into the building where the second employee was working. The Crown sought a sentence of five years and 30 days with one year being allocated to the break and enter. The defence argued that with time served of 655 days, the resulting sentence ought not to exceed two years less a day. [ 81 ] Gladue factors were significant in this decision. The offender had a troubled and chaotic upbringing. He was young and had no criminal history.

The court determined that the one-year term sought by the Crown for the break and enter was excessive and instead, sentenced the offender to 90 days. The sentence for discharging a firearm was four years served consecutive to the break and enter offence. This case bears almost no resemblance to Mr. Masich's circumstances. Its many distinguishing features makes it unsuitable as a sentencing precedent. R. v. Smith , 2014 NSPC 72 [ 82 ] The offender in Smith pleaded guilty to theft of a motor vehicle, evading peace officers, failing to stop when being pursued, break and enter and a breach of s. 810 recognizance.

The Crown sought a sentence in a three year range for the break and enter following a suggested benchmark for such offences established by the Nova Scotia Court of Appeal. The defence sought a conditional sentence of two years less a day to be followed by three years of probation. [ 83 ] The offender acknowledged that he broke into a vacant residence and stole some cash and household items while the owner was out of town.

The homeowner's vehicle was stolen and later driven by the offender during the driving offences. [ 84 ] The court placed great import upon the individualized nature of sentencing in rejecting the benchmark or starting point of three years for the break and enter offence.

The offender's role was determined to be limited, being a lookout for others who entered the residence. [ 85 ] While the offence was considered grave and the offender's role did not reduce his degree of responsibility, the court found that the constellation of unique aspects and personal circumstances were sufficient to reduce the range of sentence to 21 to 24 months. The court went on to endorse a 23-month conditional sentence order. [ 86 ] Similar to Josephee , this case is non-instructive.

The circumstances of the offences and the offender are too dissimilar to be of assistance in determining a fit and appropriate sentence for Mr. Masich. Analysis Safety of the Community

[ 87 ] In order to consider a conditional sentence, I must also be satisfied that serving the sentence in the community would not endanger the safety of the community. It is the risk posed by the specific offender that I must consider and not the broader risk of whether a conditional sentence would endanger the safety of the community because it would not provide sufficient deterrence or would undermine general respect for the law. I must consider the risk of the offender reoffending and the gravity of the damage done in the event of a repeat of the offence, [ 88 ] Mr.

Masich has a previous conviction for break and enter. He continues to use illicit substances which is a primary factor underpinning his offending behaviour according to his counsel, which I accept is the case. I cannot conclude that he has control over his substance use. Absent that control, I conclude he possesses a continued risk to the community. [ 89 ] The offences were grave. A private residence was ransacked and four firearms were stolen. One found its way into the hands of an offender who is now facing a charge of murder. I do not know if the stolen firearm played a role in that event or not.

Regardless, the fact that the firearm was found in possession of a violent offender provides some insight into the kind of risk posed by Mr. Masich were he to repeat this kind of behaviour. [ 90 ] I have no confirmed information regarding Mr. Masich's degree of involvement in this offence; at the very least he aided and abetted others. He stated in the pre-sentence report that he was uninvolved in any theft and left once he realized he had entered the residence unlawfully. [ 91 ] I signalled my rejection of that position by convicting Mr. Masich of these offences.

He happened to be the one implicated in the break and enter and theft, although it is highly likely the others were also involved. He may not have been the principal or operating mind behind it, or he may have been. Regardless of his role, I find no basis to conclude that Mr. Masich was any less culpable for these offences than anyone else. [ 92 ] Although much of the submissions of counsel were directed towards the severity of the theft of firearms, the circumstances surrounding this residential break and enter offence also deserve comment. [ 93 ] A residential break and enter is an insidious crime.

It has the effect of robbing homeowners not only of their personal possessions but also the sense of safety and security to which they are entitled in their own homes. The former can often, but not always, be replaced. The latter may be lost forever. I recognize the lingering psychological and emotional impact that resulted from Mr. Masich's conduct. I recall Ms. Knutson's palpable upset at trial as she looked over the pictures of her ransacked home. [ 94 ] While the break and enter is arguably the less serious of the offences, it remains grave criminal conduct and it must be sanctioned accordingly.

Having regard to the circumstances of these offences, including the gravity and Mr. Masich's degree of responsibility, the aggravating and mitigating factors and Mr. Masich's personal antecedents, I cannot conclude that a conditional sentence order would meet the primary need for denunciation and deterrence. Such a sentence would be entirely out of step with the sentences garnered by similar offenders in similar circumstances. [ 95 ] Mr. Masich's mitigating factors are limited and insufficient, in my view, to pave the way to consideration of a conditional sentence.

Accordingly, I reject the defence's submission for sentence as being insufficient to denounce Mr. Masich's conduct or to deter him or others from offending similarly in the future. I base this decision largely on the nature of the offences themselves which are especially grave. [ 96 ] However, it is also Mr. Masich's lack of progress toward rehabilitation that causes me great concern. He was convicted of a similar yet less serious break and enter offence over seven years ago. He appears not to have made any great strides since then towards managing his addiction.

He continues to use illicit substances which has underscored most of his offending behaviour. He has not taken concrete steps toward treatment despite having a variety of community resources available to assist him. He has no real prospect of employment unless or until he deals with his addiction. Simply put, he has not turned his life around. Regrettably, at this stage, I do not consider Mr. Masich's prospects for rehabilitation to be particularly strong. [ 97 ] For these reasons, I cannot conclude that sentencing Mr. Masich to a conditional sentence would not endanger the safety of the community.

This pre-condition is therefore not met. Even if I had found that Mr. Masich did not pose a risk to the community, I am of the view that a conditional sentence order is inconsistent with the fundamental purpose and principles of sentencing set out in s. 718 through 718.2. The serious nature of these offences, coupled with the pressing need to punctuate denunciation and deterrence, as well as my concerns regarding Mr. Masich's lack of progress toward rehabilitation, leads me to conclude that a conditional sentence order is not available.

I find that a significant period of incarceration is the only suitable way in which to express society's condemnation of this conduct and to deter similar conduct in the future. [ 98 ] I find the appropriate sentence to be 42 months incarceration for Count 2 and 18 months incarceration for Count 1 to be served concurrent to one another. The sentence could well have been longer. However, I accept that Mr. Masich expressed legitimate remorse. He is trying to make changes. His offending was the product of his out of control substance use. His record is related but limited.

It is hoped that this sentence will not foreclose the prospect of rehabilitation. [ 99 ] Further, to the extent that I can, I recommend that Mr. Masich be considered for the Guthrie House program in Nanaimo. As substance use appears to underlie his offending behaviour, it follows that treatment of his addiction would go a long way towards assisting this still relatively young man in rehabilitation. Ancillary Orders [ 100 ] Count 1 is a primary designated DNA offence. Accordingly, pursuant to s. 487.051(2), I order that Mr. Masich provide a sample of his DNA to be registered in the DNA National Data Bank.

The samples will be taken from him while he is in custody and he must submit to the taking of those samples. [ 101 ] I further order a weapons prohibition for 10 years from the date of his release from imprisonment, the maximum period allowed

under s. 110(2) of the Criminal Code . [ 102 ] As regards to restitution, any order of restitution must take into account the offender's present and future ability to pay: see R. v. Sawchuk , 2021 BCCA 74 at paragraph 16 . Mr. Masich has no current ability to pay a restitution order. Nor does he have any legitimate prospects of employment. He has not had lawful employment for over seven years. He will be incarcerated for a significant period of time as a result of this sentence.

While I accept that restitution is indicated, in this case any order would be entirely hollow in the hands of either the Knutsons or their insurer. For these reasons I decline to order restitution. [ 103 ] CNSL V. MOES: Your Honour, would you be willing to waive the victim fine surcharge as well? [ 104 ] THE COURT: Yes. The victim fine surcharges are mandatory; however, I have discretion to waive them when I view they would be an undue hardship on an offender. That is the case for Mr. Masich. Mr. Masich has no current ability to pay; he is going to be incarcerated.

There is no realistic prospect of paying those victim fine surcharges in the foreseeable future. [ 105 ] CNSL V. MOES: Thank you, Your Honour. [ 106 ] THE COURT: Good luck to you, sir. [ 107 ] CNSL J. WALDOCK: Your Honour, there's an oversight. I'm sorry, I should have popped up earlier but I'm glad we've mentioned before Madam Clerk has entered the order.

And it's -- it's an oversight on a matter on which there was no disagreement between counsel and -- and, therefore, I take the position that whether or not you're functus, we can correct the record because it was a matter that wasn't at issue, it's just an oversight. And the rule against -- the rule about functus permits the correction of a matter that was a matter of oversight. That is the time served. And we -- we calculated it as 78 actual days which Mr. Masich -- [ 108 ] THE COURT: Sorry, 78 real days? [ 109 ] CNSL J. WALDOCK: Seventy-eight real days for which Mr.

Masich should receive credit and the multiplier factor with which the Crown takes no issue, 117 days. So the 42 months should be reduced by that -- that 117 and the 78 actual days reflect them. [ 110 ] THE COURT: Mr. Moes, I'll assume you take no issue with me not considering myself functus of this matter. [ 111 ] CNSL P. MOES: No, Your Honour. [ 112 ] THE COURT: No. This is clearly an oversight. It is one perhaps I should have asked more questions about prior to determining the total sentence for Mr. Masich. I do not consider myself functus of the decision I rendered literally five minutes ago. [ 113 ] Mr.

Masich, I am told you have served 78 real days in custody. You will receive credit at a rate of one and a half days for every day time served, that results in 117 days. I accept the math that has been provided to me by the lawyers. That sentence of 42 months will be reduced by 117 days. Because I have expressed it in terms of months, counsel, and we have days as the [indiscernible] four months, one option, it would seem to me would be to express the 42 months as days and remove from that 117 days with a total amount remaining. [ 114 ] CNSL J.

WALDOCK: I think if you say it's 42 months less 117 days, the Corrections will do the math. If you express it as four months less, let's see, 120 divided by 30 gives us four months -- no 42 months minus four months is 38 months plus three days. So that's another way of saying it. [ 115 ] THE COURT: Let's leave it as I pronounced it, 42 months minus 117 days for time served. If Corrections has any issue with that they can alert the court to that fact. Thank you, Counsel. [ 116 ] CNSL J.

WALDOCK: And the record will reflect 78 days of actual time served. [ 117 ] THE COURT: Seventy-eight days' time served, credited 117 days. Thank you. (ORAL REASONS FOR SENTENCE CONCLUDED)