R. v. Starr, 2013 MBPC 55

CITATION: R. v. Starr , 2013 MBPC 55 Date: 2013 10 17 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Nicole C. Roch ) for the Crown ) and ) ) ) Clay Byron Starr ) Jay C.

Prober ) for the Accused ) ) ) ) Reasons for Decision delivered: ) October 17, 2013 STEWART P.J. [ 1 ] The accused, Clay Byron Starr, has pled guilty to the following Criminal Code of Canada charges; kidnapping 279.2, sexual assault 272(1)(A), robbery 343, flight from police officer/motor vehicle 249.1(1) and fail to comply with probation order 733.1(1) as a result of a series of acts which occurred on June 22, 2011. [ 2 ] The issue for me is to determine under all circumstances what is a just sentence for this offender and for these offenses. The Crown's position with regard to recommendation is for 14 years.

The defense indicates that a more appropriate sentence is six years. The principle legal issue for me relates to the determination whether these offences occurred as a spree and thus must have sentence calculated on a concurrent basis or as separate acts capable of consecutive sentences. [ 3 ] The facts of this case are disturbing. On June 22, 2011 at 10:00 p.m. the young victim, R.D., and her cousin were waiting in a Chevrolet Lumina in front of an Elgin Street address for a family member. The vehicle was running. R.D. was in the front seat and her cousin in the rear driver side seat. The offender, Mr.

Starr, jumped in the driver’s seat and stole the Lumina. R.D.’s cousin jumped out of the backseat and R.D. attempted to do so as well but was unable to as a result of her being previously injured and being in a leg cast from hip to foot. The offender drove erratically through Winnipeg at high speeds (in excess of 180 kilometers per hour) and left the city to Highway 26.

The victim, despite being terrified by the ongoing threats of the offender, concealed her cell phone from him and dialed 911 leaving the phone line open to allow the Winnipeg Police Services to trace and follow the path being taken by the offender. The most audible statement heard on the 911 call was the victim begging the offender not to do her harm as she repeated that she didn’t want to die. Throughout this race the offender repeatedly told the victim that he was going to rape her, drown her and that she was going to die.

He also stated throughout these events that he had a gun. [ 4 ] On Highway 26 the offender forced the young victim out of the car. As he began to drive away the victim waved down a passing car driven by Mr. Poneira. Mr. Poneira stopped to assist at which stage the offender pulled over and approached the second victim stating “I am a Manitoba warrior. I got a 9 mm. I'm taking your car.” The offender threatened to kill Mr.Poneira. At that stage, Mr. Starr ordered both victims to get into Poneira’s 1999 Sunfire car. As Mr. Poneira attempted to enter the car Mr. Starr quickly accelerated dragging Mr.

Poneira several meters and causing him injury prior to Mr. Poneira freeing himself. Unfortunately as a result of

R. D.’s immobility she was unable to exit the vehicle. For the next several miles the offender continued to threaten R.D. with perverse demands of a sexual nature. [ 5 ] The Sunfire broke down two miles east of Highway 248. At that stage Mr. Starr forced the victim, R. D., out of the car and began walking down the path towards a nearby house. On the way, Mr. Starr forced the young victim to the ground and sexually assaulted her. Thereafter, as they continued towards the house he continued to sexually abuse the victim until he broke away to attempt to steal a truck located in the farm yard.

At this point, the young victim ran to the house for help but the door was locked and her calls for help were not answered. She quickly ran into the bushes and hid and only came out after Mr. Starr unsuccessfully tried to find her. Thereafter, Mr. Starr drove away in the stolen farm truck and drove to Enns Brothers Ltd. in Rural Municipality of Portage La Prairie. There he broke into a locked compound and stole a Yamaha dirt bike and a Polaris quad off road vehicle. Taking the quad off road vehicle in place of the stolen truck he then went to an Esso gas station in Portage la Prairie and stole gasoline.

A fortunate break in the case came when the Winnipeg Police Services patrol car stopped for gasoline and was told of the theft. With the assistance of the Winnipeg Police Service helicopter, Air One, Mr. Starr was located and a high-speed chase followed that included travelling through heavily treed areas, roadways, mud trails, and paths that ran along the Portage water diversion. This chase lasted approximately one hour and ended with the assistance of the canine unit and their dog, Judge, who brought Mr. Starr to ground.

He was charged and cautioned at that time. [ 6 ] The Criminal Code of Canada sets out the principles on which a sentencing judge should rely. Under

section 718 the purpose and principles of sentencing is annunciated. Under this

section I take special note of

section 718.01 where relating to an offense that involves the abuse of the person under 18 years of age, the primary consideration of the court should be denunciation and deterrence of such conduct. Likewise it is a fundamental principle that a sentence must be proportionate to the gravity of the offense and the degree of responsibility of the offender. [ 7 ]

Section 718.2 sets out other sentencing principles including 718.2(

b) where a sentence should be similar to sentences imposed on similar offenders for similar offenses committed in similar circumstances. It also provides (

c) where consecutive sentences are imposed the combined sentence should not be unduly long or harsh; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 8 ] In light of these principles of which I am governed, it goes without saying that the sentence should be shaped based on the circumstances of the offence and background of the offender. I am guided by our Court of Appeal when it comes to the approach of sentencing for multiple offences.( R.v.P.K. 2012 MBCA 69 ; R. v. Kozussek 2013 MBCA 52 ; R. v.

Wozny 2010 MBCA 115 ) The principles set out in these cases provide; 1. First I must determine whether any or all of the sentences are to be served concurrently or consecutively or a combination of both. 2. If treated as concurrent, then although all circumstances of the offender and the offense must be taken into account in arriving at a sentence, the final sentence for multiple concurrent offenses should, absent exceptional circumstances, be higher than the sentence the judge would have awarded that offender for one count of that offense. This has come to be known as the no free ride principle. 3.

If treated as consecutive offenses, after assigning a sentence to each offense, the judge must take one last look at the total given as to the length of the sentence with a view to determining whether the total sentence is not a crushing punishment on this offender. This is often referred to as the totality principle. It must be remembered that the totality principle considerations under s.718.2 (

c) of the Criminal Code of Canada apply only when consecutive sentences are imposed. When a judge sentences an accused to concurrent sentences, no such considerations arise. 4. If the judge is of the view that the overall sentence is too high, it is within their discretion to reduce the sentence by using a variety of techniques. One of those techniques is to make some of the multiple offenses concurrent to each other. This use of the concurrency principle is for the sole purpose of reducing excessive sentence as a result of that “last look”. [ 9 ] R. v.

Wozny 2010 MBCA 115 ; 262 Man.R. (2D) 75 provides the framework as to whether a sentence should be concurrent or consecutive or both. Justice MacInness (par. 45) in his review of the three factors to consider when determining and imposing sentence in respect of multiple offences stated that firstly should any or all of the sentences be served concurrently or consecutively; 45 The first step a sentencing judge must take when required to sentence on multiple offences is to determine whether any or all of the sentences are to be served concurrently or consecutively.

This question and the decision does not relate to the overall length of sentence. Rather, they pertain to the nature and circumstances of the criminal activity under consideration and the connectedness of two or more offences to each other. As Steel J.A. wrote in Maroti (at para. 22 ): First, the courts use a multitude of phrases to express the same concept.

See, for example, Ruby et al. [ Sentencing , 7th ed. (Markham: LexisNexis Canada Inc., 2008)], at para. 14.10 - " 'a break in the transaction'; 'really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent'; 'one multi-faceted course of criminal conduct'; 'one transaction'; 'part of the same transaction or endeavour'; 'closely linked together'; 'one continuous criminal act'; 'one single enterprise'; 'single criminal adventure'; and 'reasonably close nexus' ".

Although different courts have at different times used each of these phrases, I believe that they were all attempting to answer the same question - Is the connection between two offences sufficiently close to order the sentences imposed to be served concurrently as opposed to consecutively? 46 While this is often not a simple issue to decide, the general rule is that if the offences are sufficiently interrelated to form part of one single, continuous criminal transaction, a concurrent sentence is called for. However, if the offences are separate and distinct, then a consecutive sentence is to be imposed.

Many of the aforementioned cases ( Grant , Golden , Draper , and Maroti ) make this clear. But this is only the general or basic rule. [ 10 ] If the offences are separate and distinct then a consecutive sentence is to be imposed.

[11] In the case at hand then, it should be noted that the offences took place within a three hour period on June 22, 2011. Unlike thespree type of cases, the offender is charged with a group of serious violent offences committed on principally one young girl andsecondarily on a Good Samaritan passerby. The Crown has argued that the events require a consecutive sentence and that there wereseveral stages within the evening that amount to separate and distinct acts and offences. Unfortunately, on a whole, and despite thehorrific events of that evening, I cannot completely agree.

The intent of the accused is not clear as to his motive of stealing the victim’ssister’s car with the victim trapped inside. However, as the events unfolded, his actions and comments made it clear that he not only wasgoing to steal the car in question but had decided to kidnap and do harm to this young 16 year old girl. In doing so, the incident with Mr.Poniera naturally flows from the kidnapping where an innocent third party tries to help is assaulted, injured and has his vehicle stolen.All of these events are directly connected and interrelated.

After the vicious sexual assault on the victim and her fortuitous escape, theattempted flight and various thefts were in my opinion similar to R. v. Arbuthnot (S.M.) 2009 MBCA 106 , 2009, 245 Man. R.244, that being separate and distinct events subject to a consecutive sentence. Clearly upon the young victim’s escape the events take ona different nature completely as from that point forward, Mr. Starr’s purpose was that of escape and eluding any police chase whichmight happen. As such, several vehicle thefts and theft of gasoline occur prior to the wild chase which ended in the marshes along thePortage diversion.

This I take as quite distinct action, separate from the vicious attacks on the two victims. [12] The second stage of my sentencing process must thereafter be the determination of a sentence which is fair and just consideringthe principles of proportionality, totality and transparency. (par. 44 R. v. Wozny). [13] In examining the offences of this case, I am of the view that this is one of the most serious cases of kidnapping which our courtshave seen.

I say that keeping in mind that here we have an innocent young girl who is simply waiting for her sister to drive her homewhen the accused, unknown to all, takes her and her sister’s vehicle on a high speed trip through urban Winnipeg and into the country forin excess of an hour, threatening to kill and sexually assault this poor youngster, while continually indicating that he was armed with agun. The incident is further aggravated by the youth being immobile as a result of her prior injury which has her in a leg cast from hip tofoot.

This circumstance made her handicapped to the point that she could not run or walk away from the accused and in fact could noteasily remove herself from the car seat she was in during the drive. She was initially dragged from the scene of the theft of her sister’scar with the door slamming so hard on her injured leg that people in the area reported a gunshot as a result of the door coming intocontact with her leg. Later on, the country road when the first vehicle which was stolen ran out of gas, she was unable to escape thevehicle due to her immobility despite the intervention of Mr.

Poneira, who himself was injured after being dragged yet was able toescape from the interior of his car. [14] The wisdom and common sense of the victim’s actions gives us a chilling insight into the psychological terror that the accusedput the victim through thanks to her being wise enough to turn on and direct thru conversation with the offender the location of travel ofthe vehicle to the police dispatcher.

Her pleas “I don’t want to die” resonated thru this courtroom during the sentencing hearing. [15] Secondly, the most troubling aspect of this case was the savage sexual assault by the accused on this little girl despite her fullleg cast. Clearly at this stage she must have believed that he was going to carry out all of his threats including raping her and ultimatelykilling her. Fortunately the accused underestimated both the victim’s courage to survive and her ability to hide in the darkness of thenight and thus escape.

Had she not, it is unclear as to what else might have transpired. [16] The details of the attempted escape that evening reflects a sophisticated attempt to elude police by use of a quad over terrain thatis only suitable at that time for light vehicles capable of overcoming water, bog and sand. Without the use of “Air One” and its searchcapabilities, Mr. Starr would never have been found. This search and the resources put into it reflected the concern and determination ofthe police services to catch this offender and I suspect their outrage at the offences in question.

The Crown has made commentsregarding the costs of this search and ultimate chase however those costs cannot go into any consideration on sentence. What does is theencounter which occurred immediately after Mr. Starr pulled off the main highway onto a dirt bush road. At this stage three police carswere alongside the slow moving quad and this is where one would suspect the accused to give up. Not only did he not, he led the policecars on a chase through the bush/dirt trails which were little more than bog conditions as a result of the spring runoff.

A secondopportunity occurred to give himself up after a near head on with one of the pursuing police cars however, after the near miss, Mr. Starrtook off down almost impassable trails running north along the overfilled Portage diversion. Some 15 minutes after leaving severalpolice cars in the soupy mud approximately 1 kilometer behind, Mr. Starr once again came upon two police units at a roadblock but uponseeing them, he headed north until driving into a ditch and becoming stuck. Even with this occurring without the Air One trackingsystem, the darkness which was so significant would have hid Mr.

Starr, who in the opinion of Patrol Sgt. Scott Taylor, the canineofficer, was laying in wait for his pursuers. Fortunately with the canine assistance Mr. Starr was taken into custody without harm done toany police officer. No gun was found in this bog area despite all of the reports the police received which had the accused armed with agun. It is given that as no gun was seen by the witnesses throughout, that the many statements by Mr. Starr that he was armed is not afactor to consider. As an aside, the Crown has not proceeded by the most serious

section of kidnapping, 279 1.1(a), which would haveallowed a life sentence due to not finding or having evidence of an actual gun present during this incident. The Crown has agreed to aguilty plea to the charge of 279(2) which carries a maximum sentence of 10 years. [17] In examining these events, the proportionality aspect of sentencing allows me to look at three points prior to arriving at a propersentence. These are the gravity of the offence, the harm done and the accused’s blameworthiness with respect to the offences committed.(par. 56 R. v.

Wozny) [18] As to the gravity of the offence, the aggravating factors that I rely on are the age, size and disability of the victim. She was ayouth, 16 years old, who was in a full leg cast and thus immobile and was at least 100 to 150 pounds smaller in weight compared to theaccused. Kidnapping this young girl, threatening her life and body throughout the ordeal and ultimately savagely sexually assaulting hercalls for denunciation at the highest level.

As stated before, I believe this to be one of the most grave kidnapping and sexual assaults thecourts in this jurisdiction has seen. [19] The harm done is apparent to even those who have not suffered such horrific physical and mental trauma. The victim impactstatement (s.7) reflects the long standing damage done to this young teenager both physically and mentally.

I am not going to recite thedetails of this other than this intelligent young lady has been through so much physical and psychological harm that her prospects forreaching her life goals remain limited by anxiety, memory flashbacks, trust issues and failing self esteem all caused by Clay Byron

Starr’s actions of June 22, 2011. [ 20 ] The final issue in this sentencing deals with the degree of guilt and moral blameworthiness of Clay Bryon Starr as it relates to these offences. In order to appreciate this factor, a Gladue Pre-Sentence Report was completed which gives an insight into the offender (s.1). Being raised in Sandy Bay First Nation, a community north west of Portage La Prairie, Manitoba, placed Mr. Starr in a disadvantaged position from the start. As in many of our First Nation communities, employment, housing and education are lacking throughout the community.

His parents, however, appeared to have had full time employment outside of their homes and the accused as a child had opportunity to hunt and attend traditional activities and had the benefit of their full employment. [ 21 ] Unfortunately at the early age of six, Mr. Starr in the shadow of his older brother, Lewis, began breaking into homes in the community and began his official criminal career at age 12. His record, which is exhibit s. 6, reflects 11 youth convictions and six prior adult convictions.

Of these, two of the youth convictions are for violence (assault with a weapon) as well as an adult conviction for robbery with an imitation weapon. The report further indicates that while in custody as a youth, and while on remand waiting for this sentencing, his period of custody was problematic and filled with Correctional Services in house punishments (s.2). It must be noted that the offender names his older brother, Lewis, as being present when he took the vehicle in which the victim was found. It is this family member who still to this day has the most influence upon Mr.

Starr despite the fact that his sister and other family have been in attendance for this sentencing and stand up for him. [ 22 ] It appears from the report that the offender is deeply entrenched in procriminal activities when not incarcerated. When last released from custody in 2010, the offender self reported that he worked for various crack houses in Winnipeg “to ensure things went relatively smooth in the home and deal with the property owners”, whatever that means. Despite this and the fact that his brother, Lewis, and many friends are members and associates of the gang Manitoba Warriors, Mr.

Starr denies he is involved. The corrections system however has him as an associate Manitoba Warrior. It is of note that in the confrontation with Mr. Poneira, Mr. Starr’s threats were prefaced with him being a Manitoba Warrior. This is probably a more accurate reflection of his relationship to the Manitoba Warriors gang. The Gladue Pre-Sentence Report indicates that the offender has a history of being supportive of crime and continues to have pro criminal thoughts. [ 23 ] As to the events of this June 22, 2011 evening, the offender says he has little recollection as a result of alcohol and drugs consumed.

His history with drug and alcohol use dates back to his childhood and apparently continues even into custody. In his defense, the offender states that he was inebriated and this was a spontaneous act. I take that to mean the theft of the victim’s sister’s vehicle was such however that logic does not hold when there were at least two occasions where he could have left the victim on the roadside without any bodily harm. Likewise he could have quickly given himself up at the first stage in which the police cars attempted to pull him over while on the highway.

Finally I must say that observing the offender’s attempt to elude the many police cars involved in the chase, his consumption was not reflected in his dexterity while driving the quad in his getaway. As well I conclude that the offender has a selective memory as to these events and his lack of memory must be taken with a grain of salt in light of those details he has given as to the evening in question. [ 24 ] Another factor which I wish to consider is his desire to change.

Since being in remand custody the offender has taken no programs offered for those with addictions or any other resources offered by the institutions in which he was housed. His position is he will take them later after sentencing. Likewise even being on probation for his last offence did not see him attend any programming which would reflect his attitude of wanting to change. I suspect that he must have been too busy at his place of work to take

part in these. This seems to reflect his cavalier attitude towards these proceedings, which attitude I observed in the courtroom during the sentencing hearing and indicative in my view of his overall pro criminal slant on life. [ 25 ] Finally, the defense has submitted that the offender has shown remorse by pleading guilty and saving the victims from testifying. It should be noted though that the guilty plea came less than 30 days prior to the preliminary hearing of this matter which would require significant stress on the victim to prepare for testimony. Likewise the strength of the Crown’s case had to be a deterrent to taking this matter to trial. [ 26 ] In

summary then, the only mitigating factor that I find is his youthful age. This, in some cases, would lead me to consider future rehabilitation as a factor to be considered in sentencing, however, the seriousness of these offences and the violence of his acts lead me to conclude the overriding principle that I should consider is the protection of the public and denunciation. I am of the view that as reflected in the Gladue Pre-Sentence Report, Mr.

Starr is not a suitable candidate for community supervision and that rehabilitation can only come in the corrections system, if at all. [ 27 ] In the end therefore I believe a fit and proper sentence for Mr. Starr for the kidnapping on June 22, 2011 to be 10 years which is the maximum sentence for this pleaded offence. As it relates to the sexual assault I believe the Crown and defence place this as a serious sexual assault worth six years. I believe this to be a low end of the range under these facts but will sentence him to six years begrudgingly. As to the robbery of vehicle from Mr.

Poneira, there will be a sentence of two years concurrent to the kidnapping and sexual assault sentence. As a result of my previous finding these sentences will be served concurrently to each other. [ 28 ] As to the flight from police, which carries with it a maximum sentence of five years, due to the extensive chase involved and the offender’s several opportunities to give himself up but refusal to do so, I sentence him to 36 months in jail.

This takes into consideration the theft of the vehicle from the farmhouse, the theft of the ATV and theft of gas during this attempted flight, which is part and parcel of the flight. As to the breach of probation by his failing to abstain from alcohol or drugs, there will be a sentence of six months to be served concurrently to the flight from police charge, however, both of which are to be served consecutively to the kidnapping charge and sexual assault charge. [ 29 ] The final stage in sentencing relates to a last review of the overall sentence to ensure the sentence is not crushing to the offender.

Upon a review of the moral blameworthiness and chance of future rehabilitation for the offender, I believe this sentence serves the purpose of providing sufficient time for serious counseling and reflection should the offender so wish, at the same time as serving the general principles of the Criminal Code of Canada as outlined. It is not crushing in my mind on these specific facts and considering Mr. Starr’s moral blameworthiness. It will, however, provide safety to the public which is the chief concern I have, while at the same time

providing Mr. Starr with specific deterrence and denunciation. [ 30 ] Mr. Starr it is now up to you to change the direction of your life and to break from your lifestyle of procriminal behavior. You will be given an opportunity to have counseling and direction within the institution in which you will be serving and should you be proactive in that regard, positive change will happen in your life. That will be up to you sir. [ 31 ] Finally as to ancillary relief, there will be a DNA order which is mandatory and a lifetime weapons prohibition under s. 491 of the Criminal Code of Canada . _________________________ STEWART P.J.