R. v. Recknagel Date:, 2012 BCPC 544

Citation: R. v. Recknagel Date: 20120201 2012 BCPC 0544 File No: 70811-2-C Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MATTHEW ROBERT GORDON RECKNAGEL ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.D. COWLING Counsel for the Crown: T. Morgan Counsel for the Defendant: S. Gosh Place of Hearing: Nanaimo , B.C.

Date of Judgment: February 1, 2012 [ 1 ] THE COURT: The defendant, Mr.

Recknagel, is before the court for sentencing on a three-count Indictment, to which he has entered guilty pleas. [ 2 ] On Count 1, he has entered a plea of guilty to a charge that on or about the 4th day of June 2010 at or near the City of Nanaimo in the Province of British Columbia he did unlawfully possess a controlled substance, to wit: Cocaine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . [ 3 ] In Count 2, at the same date and place he entered a plea of guilty to knowingly utter a threat to Michelle Wilson, to cause death or bodily harm to Michelle Wilson, contrary to s. 264.1(1) (

a) of the Criminal Code . [ 4 ] On Count 3, a guilty plea was entered to the common assault of Michelle Wilson, contrary to s. 266 of the Criminal Code , again on June 4th, 2010 at Nanaimo, British Columbia. [ 5 ] With respect to these offences, the circumstances have been reviewed in detail by counsel in their respective very able submissions, and I will just summarize them briefly in these reasons. [ 6 ] Mr. Recknagel was arrested on June the 4th and shortly thereafter had a bail hearing.

He was released on very strict terms of the recognizance with $50,000 surety bail, which I believe may have been provided by his grandparents. There has been no problem with Mr. Recknagel while on his bail. [ 7 ] The matter came before me for sentencing with respect to a pre-sentence report initially on December 22nd, 2011.

At that time, Crown counsel indicated that their sentencing position was that there should be a jail sentence of two years less a day followed by three years' probation, while the defence requested that consideration be given towards a conditional sentence order with probation. [ 8 ] The court had the benefit of a relatively positive pre-sentence report prepared by Ms. Cantelon. [ 9 ] The court indicated to counsel for Mr.

Recknagel that, given the aggravated circumstances that were present in this case, the court would consider the granting of a conditional sentence order to be somewhat exceptional, and the defence was granted time to provide further and additional information. [ 10 ] The matter was rescheduled and came back before me on this date.

Exhibit 4 represents some of the additional material that has been filed. [ 11 ] Counsel have also had an opportunity to make some further submissions and refer to some further cases in the course of their respective positions. [ 12 ] On each occasion when the matter has been set for sentencing, Mr. Recknagel's family has appeared in support of him, including his mother, his sister, his stepfather, and his grandparents. [ 13 ] The circumstances indicate that, as a result of the RCMP receiving a request from the building manager of the apartment where Mr.

Recknagel was residing in Nanaimo, of a letter that was surreptitiously given to the manager from Ms. Wilson, indicating concerns by Ms. Wilson that Mr. Recknagel was going to kill her and indicating that Mr. Recknagel had a substantial quantity of drugs and money, that the police obtained a search warrant and arranged a traffic stop of Mr. Recknagel while Ms. Wilson was present with him. [ 14 ] Ms. Wilson presented to the police as very fearful and confirmed that she had written the letter that had been passed to the building manager. The letter also mentioned concerns that Ms. Wilson expressed about Mr.

Recknagel talking about going after her father. [ 15 ] Money and drugs were found, as indicated by Ms. Wilson. [ 16 ] She indicated that Mr. Recknagel had threatened to shoot her up with heroin in her sleep and enforced his threats by holding a knife to her and that he had beat her with his fists on her back and buttocks. A victim impact statement was filed on behalf of Ms. Wilson, and it was very evocative in its terms. [ 17 ] Some $51,260 were seized from Mr.

Recknagel's apartment; also seized were 18.2 ounces of powder cocaine and 16.7 ounces of crack cocaine; also seized were five cellular phones and two scales. The complete list of items which were seized has been filed as Exhibit 5 in the form of a major incident exhibit flow chart.

A number of those items have been circled in black ink, and it has been agreed by counsel that there will be an order for forfeiture of all of those items, which includes syringes, cellphones, the money, and the cocaine, and the scales, and other items, including a certain amount of steroids. [ 18 ] The pre-sentence report indicates that Mr. Recknagel was abusing steroids at the time that he had been working as a personal trainer and had moved on from steroid abuse to the involvement with cocaine. [ 19 ] In the pre-sentence report Mr. Recknagel at Page 2 indicated to Ms.

Cantelon that [as read in]: ... regarding the relationship between Matthew and the victim Michelle Wilson, Matthew is adamant there was no intimate relationship. They had met at a bar, had a few dates, then a couple of weeks later she stated she needed somewhere to stay for a few weeks and Matthew offered her his place. Matthew asserts it was only to be for a few weeks and she ended up staying for two months. During those months Matthew alleges she was sleeping on the couch. She had initiated a relationship; however, he claims he was not interested.

Both Carissa [phonetic], Matthew's sister, and Tanya [phonetic], Matthew's mother, confirm those details.

[20] Mr. Recknagel was born on May 28th, 1985, and would have been 25 at the time of these offences. He is presently living withhis parents in the Lower Mainland, and at the suggestion and with the assistance of his grandfather, while he has been on bail he took acourse to secure a specialized driver's licence, and with that licence, in May of 2011 he obtained employment with GFS British Columbiaas a delivery driver. The company was formerly known as Neptune Food Services. He has provided confirmation of that employmentand a letter of his direct supervisor Mr.

Main, indicating that he is well regarded in his employment and has prospects to move up in thebusiness. [21] Mr.

Recknagel registered for, prior to the sentencing hearing, and completed it during the adjournment of the sentencinghearing, a course at the Justice Institute with respect to leadership issues, which material is also in Exhibit 4. [22] He also completed drug testing to confirm negative results with respect to cocaine, opiates, amphetamines, and cannabinoids,and Phencyclindine. [23] The letters of reference from friends and family indicate that there is ongoing support for him in what is described as aturnaround in his life from a 19-month period where he very much lost his way and went a very, very long way down a very dark road. [24] From his employment in 2011, which commenced in May, he had earnings of approximately $40,000.

He is employed full-time. He works 10 hours on for four days and then has four days off.

He normally works from 8:00 p.m. at night to 6:00 a.m. in themorning. [25] This is the type of case where Crown and defence can have very disparate positions and yet each position is fundamentallyjustifiable. [26] The courts have always wrestled with how to emphasize the balance between deterrence, denunciation, and rehabilitation,particularly with younger offenders with the lack of any prior record. [27] The matter of the debate over conditional sentence orders has provided the most recent focus for that debate, but one can goback in the jurisprudence to cases such as R. v.

Harrison and Garrison, (BC CA), [1978] 1 W.W.R. 162 (B.C.C.A.). They were two young men, Harrison and Garrison, who were 18 and 21, participated in two separate robberies with masks and sawed-offshotguns and yet received suspended sentences. The comments of Mr. Justice Farris in that decision spoke about the conflict betweenrehabilitation and incarceration. I note that specifically in his comments Mr.

Justice Farris mentioned apart from drug cases, and alsomentioned that the utmost caution should be reserved and that would involve exceptional cases. [28] The jurisprudence for conditional sentence orders does not rule out drug cases from qualification, but certainly the case lawindicates that there are types of offences, and the drug cases may be well amongst them, where denunciation is very, very high on the listof priorities. [29] Mr. Morgan, in his very able submission, has referred to a number of cases, particularly perhaps R. v. Huber, 2004 BCSC, andin submissions today with some emphasis on R. v.

Ramazani, 2010 BCPC 440, where a conditional sentence order was declined infavour of a four months' jail sentence. [30] Mr. Gosh, in his very able submission, has referred the court to R. v. Kreutziger and R. v. Duong. [31] I have also reviewed the decisions in R. v. Schneider, 2007 BCCA 560, and R. v.

Rastgoei, 2008 BCCA 242, and also the otherdecisions that counsel have referred to. [32] There are various considerations that the courts have looked to amongst the cases in trying to distinguish where a jail sentencegives over to a conditional sentence order or vice versa and how to integrate jail versus conditional sentence orders with s. 718 of theCriminal Code. There is no exhaustive list of such factors.

The age of the offender can be a factor, family support can be a very strongfactor, whether there are indications of gang involvement, and use of weapons, particularly firearms, existence of a prior record,behaviour while on bail, employment, family considerations in terms of family obligations, whether there is a positive or not positivepre-sentence report, sometimes perhaps even local conditions may be a factor, in the sense that a court feels that the situation in theirlocal community requires certain things to happen. [33] In a quantitative sense in terms of harm reduction and the greater good for the greatest number, there is no scientific data thatone can turn to say that a jail sentence of a certain duration will provide better protection to the public than a conditional sentence orderof another duration, and it is inevitable that there will be differences between different courts throughout the province. [34] With respect to Mr.

Recknagel, the circumstances present at the higher end of what I have been prepared to grant a conditionalsentence order for but are not outside the purview of that, and based on the information available to me, I am prepared to consider aconditional sentence order. It would be of a lengthy duration, and I think it can be, and the Supreme Court of Canada has indicated that aproperly crafted conditional sentence order has to be considered as effective as a jail sentence. [35] So with respect to Count 1, there will be -- thank you for currently standing, Mr.

Recknagel, but just have a seat for a moment,because this might go on for a while - there will be a conditional sentence order for a period of two years less a day, followed by a three-year probation order, and a victim fine surcharge of $100. [36] There will a DNA order. [37] There will a s.109 weapons prohibition, for a period of 15 years with respect to the items mentioned in s.109(2)(

a) and alifetime prohibition with respect to the items mentioned in 109(2)(b). Mr. Recknagel may have 72 hours to arrange for the disposition ofany such items to the Langley RCMP detachment.

[ 38 ] With regards to Count 2, there will be a fine of $1,000 and a $150 victim fine surcharge, and Mr. Recknagel may have six months' time to pay that. [ 39 ] With regards to Count 3, there will be a fine of $1,000 and a $150 victim fine surcharge, and Mr.

Recknagel may have nine months' time to pay that. [ 40 ] Also on Count 2, there will be a DNA order. [ 41 ] I will not make a probation order with respect to Counts 2 and 3, but will build the necessary conditions with respect to what might ordinarily arise from those counts into the conditional sentence order and probation order that regards to Count 1. [ 42 ] With respect to the DNA orders on both Count 1 and Count 2, I take it there is an RCMP detachment in Langley, Mr. Recknagel? [ 43 ] THE ACCUSED: Yes. [ 44 ] THE COURT: All right.

You are to report to the Langley RCMP detachment on a week day during February of 2012 during normal business hours to provide a suitable DNA sample. You are to attend at such times for the providing of a sample as may be directed by the RCMP detachment there. [ 45 ] The terms of the conditional sentence order will be the statutory conditions, including that Mr. Recknagel is to keep the peace and be of good behaviour.

He is to attend court when required to do so. [ 46 ] He is to report to the conditional sentence supervisor for Langley Community Corrections within 72 hours and thereafter as directed. [ 47 ] He is to reside at 4456 - 222A Street in Langley, British Columbia and is not to change his place of residence unless with the prior permission of his conditional sentence supervisor or the court. [ 48 ] He is to seek and maintain full-time employment and notify his conditional sentence supervisor of any changes in employment status. [ 49 ] You are to perform 200 hours of community work service.

You are to complete 100 hours within the first nine months of the conditional sentence order and the balance of the community work service within the next nine months of the conditional sentence order. [ 50 ] You are not to have in your possession any syringes or other drug paraphernalia.

You are not to consume or possess any illicit substances defined under the Controlled Drugs and Substances Act , including anabolic steroids, except pursuant to a valid medical or dental prescription. [ 51 ] You are not to have in your possession any firearms or ammunition or any weapons defined under the Criminal Code . [ 52 ] You are to have no contact, directly or indirectly, with Michelle Wilson, except through your probation order by way of a letter of apology or as part of a restorative justice program.

You are not to knowingly attend at any place of residence, place of education, or place of employment where Michelle Wilson from time to time be located.

You are not to approach at any time within 25 metres of Michelle Wilson or any member of her family, including her mother, father, or children, except in the presence of a peace officer. [ 53 ] You are to participate in and complete counselling or other similar programming as directed by your conditional sentence supervisor. [ 54 ] You are to be subject to house arrest for the first year of the conditional sentence order from 4:00 p.m. to 5:00 a.m. daily and for the second year of the conditional sentence order from 11:30 p.m. to 5:00 a.m. daily, except

a) for reasons of medical emergency,

b) while driving directly to or from your place of work or while during your work with GFS British Columbia,

c) while driving directly to or from and while attending any appointment with your conditional sentence officer or a counselling session ordered by your conditional sentence officer or for performing your community work service,

d) at such other times with the written permission of your conditional sentence officer, such written permission to be carried on your person and presented to a peace officer on demand. [ 55 ] Upon the attendance of any peace officer, conditional sentence officer or designate to your residence during house arrest times and making their presence known, you must report in person within five minutes to confirm your compliance with the house arrest conditions. [ 56 ] You are also not to be found upon the premises of any establishment where the primary commodity for sale is alcohol, except in the course of your employment or except with the written permission of your conditional sentence supervisor. [ 57 ] The terms of the probation order are the statutory terms, including you must keep the peace and be of good behaviour, you must attend court when required to do so, you must report within seven days of the completion of your conditional sentence order to the Langley Community Corrections Adult Probation Office and thereafter as directed.

You are to notify the probation office of your current residential address and you are to notify the probation office prior to any change of your place of residence. [ 58 ] You are to perform 200 hours of community work service at the direction of your probation officer and complete such

community work service to the satisfaction of your probation officer, and such community work service is to be completed within the first year of the probation order. [ 59 ] You are not to consume or possess any illicit substances defined by the Controlled Drugs and Substances Act except pursuant to a valid medical or dental prescription.

You will be subject to the same condition as to no drug paraphernalia as set forth in the conditional sentence order. [ 60 ] You will be subject to the same weapons conditions, and you will be subject to the same no contact and not attend and not approach conditions as in the conditional sentence order with the appropriate modifications. [ 61 ] You will be subject to the same counselling provisions. [ 62 ] I am sorry, Madam Clerk, but there is also as part of the conditional sentence order a term that you are to write a letter of apology to Michelle Wilson in a form suitable to your conditional sentence supervisor and arrange for that to be sent to Ms.

Wilson in a manner directed by your conditional sentence officer. [ 63 ] You also are to participate in a restorative justice program if directed to do so by your conditional sentence officer. [ 64 ] With respect to the $100 victim fine surcharge, you may have three months' time to pay that on Count 1. [ 65 ] Are there any other conditions? [ 66 ] MR. MORGAN: Your Honour, could I just get the times that the house arrest is to run in the second year, please, I missed that. [ 67 ] THE COURT: From 11:30 p.m. to 5:00 a.m. [ 68 ] MR. MORGAN: Thank you. No, I think that's got it. [ 69 ] THE COURT: All right. Mr.

Recknagel, I could have put you on tighter house arrest, but I think it is better if you go out there and take courses and do your counselling and do community work service, keep occupied. [ 70 ] THE ACCUSED: Yes. [ 71 ] THE COURT: Mr. Gosh will explain the rest of it to you. [REASONS CONCLUDED]