R. v. R.H.B Date:, 2012 BCPC 499

Citation: R. v. R.H.B Date: 20121206 2012 BCPC 0499 File No: 73133-2-C Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.H.B. SANDEEP SINGH SANDY MANHAS SHANE DONALD LONG REASONS FOR SENTENCE (RE ACCUSED R.H.B.) OF THE HONOURABLE JUDGE J.P. MacCARTHY Crown Counsel: K. Paziuk Defence Counsel: M. Munro

Place of Hearing: Nanaimo , B.C. Date of Hearing Submissions: November 29, 2012 Date of Sentence: December 6, 2012 [ 1 ] THE COURT (orally): R.H.B. has been tried on two charges contained within an Information under which Crown proceeded by way of Indictment. [ 2 ] Count Number 1 alleged that he, along with Sandeep Singh Sandy Manhas and Shane Donald Long, on or about the 31st day of March 2011, at or near Nanaimo, in the Province of British Columbia, did break and enter a place, a dwelling house situate at 2580 Departure Bay Road, with intent to commit an indictable offence therein, contrary to s. 348(1) (

a) of the Criminal Code . [ 3 ] Count 2 of that same Information alleged that the same Messrs. Manhas, R.H.B. and Long, on or about the 31st day of March 2011, at or near Nanaimo, in the Province of British Columbia, did commit aggravated assault of Willard Glover, contrary to s. 268(2) of the Criminal Code . [ 4 ] The matter proceeded to trial of R.H.B and Mr. Long between the days of April 26th, 2012, May 30th, 2012, September 12th, 2012, September 19th, 2012.

On September 19th, 2012, I rendered reasons for judgment and convicted R.H.B of offences as alleged in Count 1 and convicted him on Count 2 of simple assault. [ 5 ] I heard submissions with respect to sentencing on November 29, 2012. This matter comes before me today in order to provide my reasons on the sentencing. [ 6 ] The circumstances giving rise to the convictions were outlined in my reasons for judgment on September 19, 2012. However, it is useful to provide a brief

summary of those circumstances as they do relate to the submissions that I heard with respect to sentencing. [ 7 ] The circumstances based upon my finding of facts were that the complainant Glover was a tenant occupying a cabin for about six months in a property complex owned by the co-accused Manhas' mother on Departure Bay Road, Nanaimo, British Columbia. The cabin was very rudimentary, contained a living room area and a kitchen area. There was a lack of a complete or adequate bathroom facility and there was no laundry facility.

The cabin had a locking door including a deadbolt lock to which Glover had a key, and there was also a keypad system for the only door to the cabin. Only Glover knew the keypad combination. [ 8 ] There was a two-week ongoing landlord/tenant dispute that had arisen between Glover and Manhas as agent for his mother, the landlord. There had been an attempt by Manhas to evict Glover by way of an eviction notice.

Glover had disputed the eviction. [ 9 ] So far as I was able to determine, there was no Order for Delivery of Possession granted through the Residential Tenancy Branch or a writ of possession under s. 57 of the Residential Tenancy Act that would have obliged Glover to give up possession. Emotions were running high between Glover and Manhas. [ 10 ] Manhas had been attempting to personally confront Glover at another unit in the complex on the day in question, namely March 31st, 2011. Glover fled to his cabin which he was renting in order to avoid dealing with Manhas. He was afraid for his safety.

Glover locked the only door to the cabin once he was inside. At the time that the offences occurred, two guests of Glover were also occupying the cabin with him at his invitation. These occupants, a Mr. Dunn and a Ms. Stanley, were in the premises without the knowledge or the consent of Manhas. [ 11 ] The RCMP had visited the property to check on Dunn and Stanley due to their involvement with the police. The police presence was of particular concern to Mr. Manhas and caused a great deal of unhappiness. [ 12 ] Having sequestered himself in the cabin, Glover then heard a banging at the door.

That was also heard by Ms. Stanley, who was the other main witness for the Crown. Mr. Glover heard shouts from R.H.B from outside demanding that the door be opened. He recognized the voice of R.H.B. There was a refusal on the part of Glover to acknowledge his presence in the cabin or to open the door or to allow his guest to open the door. As a result of his safety concerns, he placed a call to 9-1-1. [ 13 ] The banging of the door continued. The door was broken down. Three individuals who were outside entered into the cabin. R.H.B was the first to enter. The evidence is that Mr.

Long followed R.H.B into the cabin but remained behind R.H.B and did not engage with Glover. Manhas remained at the door shouting at Glover. [ 14 ] Glover had retreated away from the door towards the kitchen area. Glover had picked up his baseball bat in order to defend himself. Glover was cornered in the area adjacent to the kitchen by R.H.B. R.H.B was holding a knife in his gloved hand with a blade that was approximately five or six inches long. It was being held by him in a manner that was lower down by his left side, but which was clearly visible to both Glover and to Stanley.

R.H.B demanded that Glover leave the residence; Glover indicated that he was not about to leave and kept demanding that R.H.B put down the knife. R.H.B refused to put down the knife, notwithstanding these pleadings from Glover. Glover then retreated down a couple of stairs into the kitchen area. Glover was fearful that R.H.B was threatening to apply force to him by the way he was holding the knife in these circumstances. [ 15 ] R.H.B was approaching Glover to confront him further with the knife still down at his side while Glover was in the kitchen area.

Glover moved towards R.H.B as he came down the stairs into the kitchen area. R.H.B stumbled backwards on the stairs and fell back onto a computer chair. Glover was able to push by R.H.B, Long and Manhas and to get outside the cabin. In the course of doing so, he lost the baseball bat. [ 16 ] While on the stairs outside of the cabin, Mr. Glover realized that he had been injured by way of a stab in the back. He did not

know who stabbed him or who caused him the injury. Glover, as a result of sustaining that stab, had problems with his leg and lost bladder control. Glover fled from the cabin area. [ 17 ] Manhas pursued Glover outside of the cabin. Manhas at that point had a baseball bat in his hand. Glover and Manhas ended up face-to-face. Manhas dropped the bat in the back of a pick-up truck.

Manhas and Glover then squared off, and attempts to exchange blows were unsuccessful as each of them missed the other. [ 18 ] Glover indicated that he neither invited R.H.B or Manhas or Long into the cabin and he also testified that he did not want to fight with any of these individuals. I accepted that testimony. [ 19 ] Glover did not engage physically or verbally with Long, nor did Long appear to be following any of the orders that were being shouted by Manhas. Glover said that Long had nothing to do with what had happened to Glover that evening. [ 20 ] Having escaped from Mr.

Manhas, Glover ended up asking for assistance from a neighbour. He ended up in the hospital where he was treated for a three centimetre wound at the L3. The wound was sutured, and he was released without surgery. [ 21 ] A knife was found in the bed of the pick-up truck with Glover's blood on it, in the location where the pick-up truck was found by the RCMP. There was no evidence at trial that linked the knife which contained Glover's blood with the knife being held by R.H.B while he confronted Glover. [ 22 ] Manhas was dealt separately at a different time before a different judge.

He entered a plea of guilty to an offence under s. 348, that is breaking and entering with intent. It is agreed as between Crown and defence that as a result of that plea and conviction Mr. Manhas received a conditional sentence of 12 months. At the same time, as I understand it, he entered a plea of guilty and obtained a conviction for breaking and entering and committing an indictable offence on November 6th, 2010. He also received a conditional sentence of 12 months at the same time as he was sentenced on the charges that were on the same Information that was before me for the trial of Mr. Long and R.H.B.

It was acknowledged as between Crown and defence that Mr. Manhas had two prior convictions for the purposes of trafficking and four other convictions for possession of a controlled substance. [ 23 ] In the trial of the matter before me, I acquitted Mr. Long on both charges. My reason for doing so was that the Crown had failed to prove the case against Mr. Long beyond a reasonable doubt. As I indicated at the outset, R.H.B was not convicted on Count 2, being the aggravated assault. However, he was convicted on Count 1 being the breaking and entering with intent to commit an offence contrary to s. 348(1) (a).

The lesser included offence of assault simplicitor was found to have been proven and in contravention of ss. 265(1)(

b) and (c). The assault simplicitor occurred on the basis of the use of the knife by R.H.B and in the circumstances in which he was using the knife, which I found to be an offence under subsection (

b) and the manner in which R.H.B accosted Mr. Glover while R.H.B was carrying a weapon, which is an offence under subsection (c). [ 24 ] Crown's sentencing position was provided to me on November 23rd, 2012. Crown is seeking a period of incarceration of three- and-a-half to four years for the break and enter. This would be new time to be served and would be consecutive to the terms of incarceration presently being served by R.H.B. Crown is also seeking a one year sentence on the assault.

That is to be served concurrently with the break and enter offence’s sentence, and it would be of course consecutive to the present term of incarceration. Although R.H.B has been in jail, it is agreed that there is no credit for dead time. That dead time is being credited to another offence for which R.H.B is serving jail time. [ 25 ] As part of the sentence Crown also seeks a DNA order, the offence being a primary designated offence, and a s. 109 lifetime ban on weapons. Crown notes that pursuant to s. 266(

a) assault is an indictable offence, therefore the accused is liable to imprisonment for a term not exceeding five years. [ 26 ] Crown characterizes this as a home invasion as contemplated by s. 348.1 of the Criminal Code which is an aggravating circumstance for a conviction under s. 348(1)(

a) of the Code . Crown says that the essential elements of a home invasion are present in this situation, namely the occupation of a dwelling at the time that the offence under s. 348(1) was committed. That occupation in this case was by Mr. Glover and his guests. [ 27 ] The offence also requires knowledge on the part of R.H.B that the dwelling house was occupied at the time that he broke in. Crown says that this element is satisfied by the evidence of the shouts of R.H.B at Mr. Glover and obviously the fact that R.H.B was able to view clearly Mr. Glover once he broke in.

The third aspect of the aggravating circumstances to be met under s. 348.1 is the threatened use of violence. That was determined based on the evidence regarding the method and the circumstances of the use of the knife by R.H.B. Crown says that the cabin was a dwelling house as defined in s. 2 of the Code . Crown further says that no robbery or theft need occur for s. 348.1 to apply. I found on the circumstances in this case that there was no robbery or theft. [ 28 ] Crown points to R.H.B's lengthy and very unenviable record which contains some crimes of violence.

His record starts back in 2001 and continues through to 2012. The record itself is set out in a 12-page conviction

summary report. I had the opportunity of reviewing that record carefully. I noted that there were 13 offences which could be characterized as violence related. The first was a youth conviction for assault causing bodily harm with an offence date of March 24th, 2001. There was a sentence on October 24th, 2001 for a one-year period of probation. Next there was an assault with an offence date of November 17, 2002. R.H.B was sentenced as an adult on that matter on April 24th, 2003. There was a suspended sentence and a probation order for a period of one year.

The next matter was a youth conviction for wilfully resisting or obstructing a peace officer on June 2nd, 2002 for which he received a sentence on July 31st, 2003, for 60 days secured custody and a two year probation order. Next was a wilfully resisting or obstructing a peace officer with an offence date of January 1st, 2004, for which he was sentenced to 60 days in jail. Next was a dangerous driving causing bodily harm. The offence date was May 12, 2004. He was sentenced on November 10, 2004, to a jail term of 13 months with one year probation and a one year driving prohibition.

The next was an assault causing bodily harm on August 19, 2006. He was sentenced on February 5th, 2007 to time served. From the conviction

summary report it is not quite clear how long that sentence was actually for. The next was an assaulting a peace officer on March 19, 2007. He was sentenced on June 13th, 2007 to 45 days and jail time served of 90 days.

[ 29 ] The next offences were three offences, being assault with a weapon and assault causing bodily harm and uttering threats. The offence dates were January 27th of 2008. He was sentenced on July 22nd, 2009 to nine months of jail. There is a two year probation order, a DNA order, and a s. 109 ten year firearm prohibition. This was a global sentence for these offences and various breaches of undertaking or a recognizance and a failure to appear. [ 30 ] The next was a wilfully resisting or obstructing a police officer. The offence date was April 14, 2008 and the sentence date was July 22nd, 2008.

There was a six month jail term imposed. Then at the same time there was an offence of a dangerous operation of a motor vehicle on April 28, 2008; that was also dealt with and there was a six month jail term to be served concurrently. [ 31 ] The record also discloses that there was one prior break and enter offence that was on May 16, 2003.

The sentence was given on June 25th, 2003, for a period of jail time of four months and an 18-month probation order to be served concurrently with some theft charges which were dealt with at that time. [ 32 ] R.H.B has 32 convictions for theft or possession of stolen property or mischief. The first was on November 24, 2001, for which he received a sentence on March 12th of 2002 for possession of stolen property of less than $5,000. He received a one year probation order and 30 hours of community work service.

His next was an adult conviction for an offence on November 17, 2002, for which he was sentenced on April 24th, 2003, for a theft under $5,000. The next was a theft under and possession of stolen property. It was an offence which occurred on May 12, 2003, and the sentence given on June 25th, 2003, was 30 days in jail and a probation order of one year on each of the two counts of theft under and possession of stolen property. [ 33 ] Then there were seven offences for mischief, theft under, between May 16 to May 28, 2003, and the sentence imposed was jail time up to four months and an 18-month probation order.

There was another youth conviction for theft under which was, as I read it, occurred June 2nd of 2003 and for which he was sentenced on July 31st, 2003, to two years' probation and a secured custody order for 60 days. He has 13 charges of possession of stolen property with offence dates from March 19th. He was sentenced on June 13, 2007, for a global sentence, jail time of 45 days plus the time served of 90 days and a probation order of 18 months. [ 34 ] The next are five charges of possession of stolen property under $5,000 from a December 15th, 2011, offence date.

He was sentenced on June 5th, 2012, to 120 days in jail and that was a global sentence with time credited. Then there were three charges of possession of stolen property under $5,000. The offence date was January 4th, 2012. It was disposed of by way of sentence on September 27, 2012. It was part of a global sentence at which time he was also sentenced for a drug offence.

He received 180 days' jail time. [ 35 ] R.H.B's record also indicates that he has 20 offences for either a breach of undertaking or recognizance, or a failure to appear, or failure to comply with a disposition, or for operating a motor vehicle while disqualified. Those offences start as a youth back in April 18th of 2004 up to present time. The sentences imposed range from community work service and probation up to six months of jail time. [ 36 ] He also has on his record three drug offences. The first was on August 19, 2007, of a simple possession. He was sentenced March 10th of 2008 to jail time served.

He has another conviction for an offence on September 25th, 2010, for simple possession. He was sentenced on July 7, 2011, to a $500 fine. Then on January 4th, 2012, he was charged with an offence for possession for the purposes of trafficking and he was sentenced on September 27th, 2012, to 360 days in jail less time served. [ 37 ] At the time of these offences for which he has been convicted, being March 31st, 2011, R.H.B was out on a recognizance dated September 26th, 2010.

That recognizance was entered into with respect to possession for the purpose of trafficking charges, with an offence date of September 25th, 2012. That matter was ultimately disposed of by way of a conviction for simple possession. The relevant term of the recognizance of bail is a prohibition from possessing any weapons. [ 38 ] Crown referred me to several cases. I will provide the citations for those cases. The first is R. v. Bernier . It is a decision of the British Columbia Court of Appeal. The citation is 2003 BCCA 134 or [2003] B.C.J. No. 466 (QL). The second case is R. v. Vickers .

Again, that is a decision of our British Columbia Court of Appeal. The citation is 2007 BCCA 554 , [2007] B.C.J. No. 2471 (QL). The third decision is R. v. Whitford . This is a decision of our British Columbia Supreme Court; the citation is 2005 BCSC 1110 and [2005] B.C.J. No. 1707 (QL) . The fourth case is R. v. Brace . This is a decision of the Yukon Territorial Court. The citation is 2008 YKTC 41 and [2008] Y.J. No. 30 (QL) . The fifth case is R. v. Armstrong . This is again a decision of our British Columbia Court of Appeal. The citation is 2010 BCCA 451 , [2010] B.C.J.

No. 2372 (QL), at para. 5 . [ 39 ] The Bernier case is relied upon not necessarily for the factual similarity to the matters before me. But it is cited on the basis that it was an appeal of a sentence imposed at trial for 14 years on a breaking and entering with intent charge. The Court of Appeal reduced the sentence to a period of six years and noted that in the original trial decision the trial judge had indicated at that time that he was imposing a sentence of 14 years which he acknowledged to be a departure from the standard range of between four and nine years.

The decision in Bernier deals with a number of the factors which relate to any sentencing but pays particular attention to the operation of s. 348.1 , that is the aggravating feature of a home invasion. [ 40 ] Mr. Bernier at the time of sentencing was a 21-year-old offender. He had one conviction for a violent crime of assault on April 24th of 1996. He had received a sentence of six months.

He also had convictions for breaking and entering and possession of break-in instruments and carrying a concealed weapon. [ 41 ] In the reasons of the Court of Appeal the following passages were referred to me by Crown, starting at paragraph 37; these deal with the use of the term "home invasion" and also with the term of what a "range" is in sentencing. The Court of Appeal at paragraph 37 says as follows: As to the first, the Criminal Code does not speak of "home invasion" crimes. The phrase is useful for the press.

It is not useful in the administration of the criminal law because it lacks precision as to the exact crime committed. Paragraph 38 :

But the criminal law has long considered that breaking and entering an occupied dwelling house is more heinous than breaking and entering an unoccupied dwelling house. Paragraph 39: Parliament gave statutory recognition to this concept when, by S.C. 2002, c. 13, s. 15, it added s. 348.1 to the Criminal Co de: If a person convicted of an offence under any of subsection 279(2) or sections 343, 346 and 348 in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence (

a) knew that or was reckless as to whether the dwelling-house was occupied; and (

b) used violence or threats of violence to a person or property. At paragraph 40 the court says as follows: As to the term "range", in sentencing cases its proper use, in my opinion, is only as a short way of describing what the court has done in previous appeals in which the offence and the offender were similar to those in the case at bar. The reason is this: no division of this Court has the power to bind other divisions on future sentence appeals. Paragraph 41: While the past is prelude to the present, the past cannot always govern the present, nor can what we say now determine the future.

Paragraph 42: A "range" does not preclude on grounds of deterrence or denunciation or the gravity of the particular offence a sentence different from that "range". Nor does a "range" preclude a lesser sentence if some special circumstances warrant such a course. When considering any particular case similar to R. v. D.A.W. or to R. v. N.P.D. or to this case, trial judges and this court will have in mind those sentences as part of the "range".

The "range" is not conclusive. [ 42 ] At the end of the day the Court of Appeal imposed a sentence for the break and enter with intent, with an aspect of home invasion, of six years. [ 43 ] The next case referred to me by Crown is R. v. Vickers . This decision rendered in 2007 by the court with Mr. Justice Frankel delivering the reasons deals with a 24-year-old offender. That offender had as a youth a substantial criminal record. Of the 20 previous convictions of Mr. Vickers, some involve violence, some involve drugs, and some involve property offences.

The sentencing judge had noted that the level of violence that Mr. Vickers was prepared to use had increased over time. He had been convicted of two counts of assault in 1996, an assault with a weapon in 2002, and assault causing bodily harm in 2004. [ 44 ] In that matter Crown sought a sentence of 11 to 13 years. Defence sought a sentence of six to eight years. The court imposed a ten year sentence. That was upheld by the Court of Appeal. In the reasons for judgment Mr. Justice Frankel indicated as follows, and I quote paragraph 21: Given all of the circumstances, including Mr.

Vickers' previous criminal history, and in light of the home invasion sentencing decisions of this Court to which counsel have referred, I am of the opinion that the ten-year sentence imposed is neither unfit nor unreasonable. To the extent that a range is helpful, this sentence is at the mid-point of the range articulated in this Court's recent decisions. [ 45 ] Crown then referred me to a decision in R. v. Whitford . The decision of Mr. Justice Halfyard was rendered prior to the Vickers decision of the Court of Appeal. In Whitford , the Crown was seeking eight years. Defence was seeking less than two years.

It was a situation where there was no weapon involved, although there was a lengthy record for violent offences. Mr. Justice Halfyard sentenced Ms. Whitford to a term of incarceration of three years and six months. He noted that she had taken some rehabilitative steps but could find little in the way of mitigating circumstances. One of the aggravating circumstances in Whitford was that it involved an elderly victim. It was also an aggravating circumstance that the accused was on probation. [ 46 ] The case of R. v. Brace is cited by Crown as being at the lower end of the range.

This decision of the Yukon Territorial Court dealt with an aboriginal offender. Defence was seeking time served, which was in the range of about six months, and Crown was seeking three years less time served. The court placed considerable emphasis on deterrence and denunciation of the conduct which involved a home invasion. The offender in this case had a lengthy criminal record. There was violence associated with the home invasion. [ 47 ] The fifth case referred to me is R. v. Armstrong . In that particular decision, again of our Court of Appeal, the imposition of sentence was for three years plus time served.

Based on the calculation that Crown here has done, they say that worked out to an overall sentence equating to four-and-a-half years. The decision was decided prior to the change in the credit available for time served. [ 48 ] In the matter before me, defence is seeking a six month global sentence. They are saying six months on each count for which R.H.B has been convicted and that those should run concurrently, but of course consecutively to the existing sentence which R.H.B is serving.

[ 49 ] Defence has provided me with some personal information relating to R.H.B. He is aged 28. He has an extensive criminal record. I do not have a pre-sentence report or anything otherwise which provides me with much in the way of background information about R.H.B. However, defence has indicated that R.H.B has been taking steps to rehabilitate himself. He has completed two courses while he has been at Vancouver Island Regional Correctional Centre. Both of these as I recall were completed in and around November 21st, 2012.

One is a violence prevention course and the other is a substance abuse management course. [ 50 ] On behalf of R.H.B, Mr. Munro indicates that the facts in this matter as I have found them really can be characterized as a misguided impromptu attempt to evict Mr. Glover. It is suggested by counsel for R.H.B that R.H.B was there as part of a show of force on the part of Mr. Manhas and it was Mr. Manhas who was actually the individual directing the attempted eviction.

It is contended on behalf of the defence that at best this is only what could be regarded as a technical home invasion; given the actual circumstance it really falls outside of that categorization. In that regard it is suggested to me that this is really not a case that would normally fall within an offence of this nature. [ 51 ] In that regard, by way of contrast, defence has referred to me to the case of R. v. Peynado , [2011] B.C.J. No. 2448 . This decision of our Court of Appeal deals with a home invasion that went terribly wrong with the death of an individual in the house.

In that particular case the Court of Appeal set aside the original sentence and imposed and substituted a sentence of nine years less the credit for the time served with a resulting sentence of three years imprisonment. That is cited to me as an example of where the actual range that Crown is suggesting or the decision in Vickers placing it at nine or ten years applies.

Those are the sort of circumstances which, as I understand the submission, would attract the application of the aggravating factors found in the so-called home invasion provision of the Code . [ 52 ] It is also pointed out to me and some reliance is placed upon the fact that Mr. Manhas, who was characterized as the guiding influence in the matters which occurred on this particular date, only received a 12-month conditional sentence order.

In that regard, reliance is placed by the defence on s. 718.2(b), which indicates that sentences should be of a similar length for similar offenders and similar offences. [ 53 ] The analysis that I have applied to this matter first of all obliges me to take a look at the relevant sections of the Code . First of all, s. 266 of the Criminal Code provides: Everyone who commits an assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or (

b) an offence punishable on

summary conviction. [ 54 ]

Section 267 provides: Every one who, in committing an assault, (

a) carries, uses or threatens to use a weapon or an imitation thereof, or (

b) causes bodily harm to the complainant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months. [ 55 ] Section 348(1) provides: Every one who (

a) breaks and enters a place with intent to commit an indictable offence therein, (

b) breaks and enters a place and commits an indictable offence therein, or (

c) breaks out of a place after (

i) committing an indictable offence therein, or (ii) entering the place with intent to commit an indictable offence therein, is guilty (

d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and ...

[ 56 ] I must of course take into account the purposes and principles of sentencing set out in s. 718 of the Code .

Section 718 provides: 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 that have one or more of the following objectives: (

a) to denounce 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 and to the community.

Section 718.1: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 says as follows: A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing; (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner or child, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (

v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

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

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; 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. [ 57 ] I agree with Crown that the cabin that was being occupied by Mr. Glover at the time that the door was broken down and which R.H.B entered is a dwelling-house within the meaning of s. 2 of the Criminal Code .

Accordingly, I find that the statutory aggravating factors set out in s. 348.1 , that is the so-called home invasion section, do apply. [ 58 ] I also find as a further aggravating factor is the possession and the use of the knife by R.H.B in these circumstances. This was a landlord/tenant dispute. There was, so far as the evidence indicates, no threatening behaviour on the part of Mr. Glover to precipitate the type of intrusion into the premises as was evident here. Although it is being characterized on behalf of R.H.B as a show of force in order to obtain compliance from Mr.

Glover, it really amounts nothing more than a form of bullying. [ 59 ] I must also take into account the very lengthy record of R.H.B and the nature of those offences including the violence offences

which form part of that record. I also take into account that he has one prior breaking and entry. [ 60 ] From a mitigation point of view, I do acknowledge that R.H.B did express remorse through his apology directed to the court. I take that to be a genuine expression of his remorse. I do acknowledge that he has taken courses to rehabilitate himself.

I do acknowledge that he has expressed a desire to seek rehabilitation which may be available to him by entering into a program that has proven to be very successful for many offenders known as the Guthrie House program, which is offered through the jail facility here in the Greater Nanaimo area. I do acknowledge that R.H.B appeared more in the role of a follower rather than a leader in this situation. [ 61 ] I do observe, but not strictly as a mitigating factor, and take into account that there was no robbery component or theft component in this particular matter.

It does not appear from the evidence that I heard that it was based on any financial gain that was being derived by R.H.B in these circumstances. [ 62 ] Taking into account the cases that have been presented to me and relied upon by Crown, I am of the view that denunciation and deterrence and protection of society are the factors that I must take into account and must rely upon most significantly in this matter in terms of dealing with a sentence for R.H.B. [ 63 ] I note that although I applaud his wish to follow through with rehabilitation through the Guthrie House program, which as I indicated has proven itself to be very successful for many offenders, that simply by imposing Provincial jail time on him does not necessarily guarantee that he would be first of all accepted into the program or secondly that he would be able to take full advantage of the programs being offered by Guthrie House. [ 64 ] Based on all of the circumstances, I am of the view that a period of incarceration for a period of three years is an appropriate sentence.

I consider the home invasion that occurred in this case to be towards the lower end of the range in the cases. There is of course the fact that Mr. Glover, the complainant, was injured and did sustain a stabbing wound. I am making my decision not based on any presumption or inference that it was caused by R.H.B; but rather simply that it was something that occurred during the events that took place at that time. I am not in any way imputing the violent attack on Mr. Glover as being attributable to R.H.B.

I am relying strictly on my findings of fact that came out from the evidence at the trial of the matter. [ 65 ] That concludes my reasons for judgment. [ 66 ] The Crown is also seeking the DNA order. I will grant that order. [ 67 ] Crown is also seeking the s. 110 lifetime ban on weapons, and I will grant that order. [ 68 ] Is there any other matter that I have to deal with? [ 69 ] MR. MUNRO: Is that three years then jail consecutive to any sentence he is currently serving? [ 70 ] THE COURT: That is correct, yes. It is consecutive to the existing time that he is serving. [ 71 ] MR.

MUNRO: And is that three years on the B and E count then? [ 72 ] THE COURT: That is a good point. I have considered Mr. Munro's issue with respect to Kienapple . I am of the view that the Kienapple principle in these circumstances is not applicable. Accordingly, it will be three years on the B and E with intent. It will be one year on the simple assault. Those two periods of time are running concurrent with each other, but consecutive to the jail time that he is presently serving. [ 73 ] THE CLERK: And wea pons was lifetime? [ 74 ] THE COURT: Yes. [ 75 ] MR.

MUNRO: Thank you, Your Honour. [ 76 ] THE COURT: Victim surcharge applies in the circumstances. I am waiving that. [ 77 ] MR. PAZIUK: Sorry, you said waive? [ 78 ] THE COURT: Waiving the victim surcharge. [ 79 ] MR. PAZIUK: Thank you, Your Honour. [ 80 ] MR. MUNRO: Thank you, Your Honour. (REASONS CONCLUDED)