R. v. Chudley Date:, 2012 BCPC 30

Citation: R. v. Chudley Date: 20120120 2012 BCPC 0030 File No: 75274 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KENNETH WILLIAM CHUDLEY REASONS FOR SENTENCE OF THE HONOURABLE JUDGE B.G. HOY Counsel for the Crown: S. Quendack Counsel for the Defendant: J. Reveley, articled student Place of Hearing: Abbotsford, B.C. Dates of Hearing: December 5, 21,2011, January 13, 2012 Date of Judgment: January 20, 2012 [ 1 ] THE COURT : On December 21st, 2011 the defendant was found guilty of a variety of very serious offences.

They stem from what has been coined as a "home invasion grow rip". [ 2 ] The Crown's position on sentencing is seven to nine years, while the defence says the range is five to six years. THE FACTS: [ 3 ] The facts of this case were thoroughly canvassed on the last date. Briefly reviewed, the defendant was one of a group of five men who stormed into a rural residence of Mission in the evening hours of December 14th, 2010. As they burst in the home owner, Griffin, tried to fend him off with a spear. Within moments of their entry he was shot three times in both legs with a .32 calibre pistol.

He was also struck with a bat. The assailants duct-taped his hands, feet and mouth and for the most part kept him face-down. They demanded the location of money and a safe. Later, they wanted to know where the marihuana plants were located. Taken were firearms, $2300, Christmas presents and marihuana. This ordeal lasted for about one-and-a-half hours. Chaos was evident throughout the household with blood on the floors, walls and steps. [ 4 ] A neighbour assisted Griffin, after being called by one of the assailants and told, "He's been hurt. Trust me. He's been hurt."

[ 5 ] It was the defendant's fingerprints on duct tape that linked him to the crimes. For clarity, he was found guilty as a party on Count 1, use of a firearm in a robbery, and Count 4, assault with a bat, and as a principal on Count 2, break and enter and commit robbery, and Count 5, unlawful confinement. [ 6 ] He also pled guilty to escape. The Crown had proceeded on this count by indictment. This occurred on December 21st, 2011 when he fled the Abbotsford Courthouse at the conclusion of having been found guilty of the substantive offences. Later the same day he was apprehended.

He received treatment for puncture wounds from a police dog. THE DEFENDANT: [ 7 ] The defendant is 26 years old. He is in a common-law relationship and they have a newborn child, six months old. The defendant was raised in Toronto. Both of his parents have their own life challenges. He describes himself as growing up on the streets. His criminal record reflects a very chaotic lifestyle. He came to B.C. in search of a better life for himself. His primary employment is logging; he recently acquired a log salvage contract for shake blocks. [ 8 ] The defendant has multiple convictions [text removed for posting].

They span from 2001 until 2009. They include breach of court orders, possession of stolen property, trafficking, assault, assault causing bodily harm, break and enter, dangerous driving, flight from police, drive while prohibited, possession of firearms and ammunition, possession of firearm obtained by crime, possession of counterfeit money, take auto without consent, and robbery. As an adult he has accumulated 25 convictions. [ 9 ] No expressions of remorse were made with respect to the substantive offences, but he did apologize for his escape and the disruption that he caused.

Counsel explained that he made an irrational decision which was motivated by the prospect of not being with his family during the Christmas season. THE AUTHORITIES: [ 10 ] Counsel have referred to a number of authorities for offences of this nature. In R. v. Bernier, the sentence at appeal was varied from 14 to six years. The court sat as a five-member panel in order to address perceived conflicts in some of the other authorities. The facts involve a 21-year-old First Nations offender. After inquiries with others, a residence was targeted as the site of a marihuana grow operation.

Three or four person broke down the front door and entered the residence, claiming to be the police. The victim was handcuffed and told to face the wall. One had a rifle or a shotgun and struck the victim with the butt end of the weapon which caused his head to bleed. They demanded marihuana or money. The resident said there was no marihuana, but money was on a dresser. The intruders left with the money. Of note, the defendant's participation in the offence was some degree of planning and a significant role in the selection of the house to be invaded. He was not a principal but rather a party to the offence.

The defendant had a prior conviction of assault approximately one year prior to this offence. For this he received a sentence of six months. His criminal record also included break and enter, possession of break-in instruments and carrying a concealed weapon. [ 11 ] Referred to in Bernier is the earlier decision of R. v. D.A.W . 2002 BCCA 336 . Two men entered a residence through an unlocked door. The occupants, a husband and wife in their 70s, were watching TV at the time. A knife was brandished. As demands for money were made, the telephone lines were cut.

In the course of a physical altercation with the wife she bit one of the assailants. She was then sexually assaulted while her husband was confined in a nearby chair with a knife held against him. The threats of death were made to each of them if they called the police. $300, jewellery and the female victim's wallet were taken. The female suffered bruises and loosened teeth. At appeal, the court noted that instances of violent and planned break and enters requires deterrence in view of their increased incidences.

The court discussed a range of eight to 12 years and confirmed the ten years sentence that had been imposed. [ 12 ] Also referred to in Bernier is R. v. N.P.D. There, two men entered a residence through a bathroom window. Their faces were masked and each was armed with handguns. Initially they zap-strapped the victim and his 21-year-old son and then held them at gunpoint while they lay on the ground. Subsequently the victim's wife and her four-year-old daughter entered the house. They were also secured. Their residence was searched, but they fled after receiving a message over their walkie talkie.

A watch was later noted to be missing. The accused pled guilty. He was 19 years old when the offences occurred. He had a prior youth history which included convictions for aggravated assault and three break and enters. Five-and-a-half years was determined to be the appropriate sentence. [ 13 ] In R. v. Leggo 2003 BCCA 392 , the court confirmed a sentence of nine years ten months. There the defendant and another planned a break-in of a residence. Their objective was theft of marihuana and money. They kicked in the front door.

The co-accused had an imitation handgun with which he struck the victim on the back of the neck. There was as well a bat. The victim was bound with duct tape and a shoelace and was ordered to the ground, face-down. He was also kicked. Demands were made for marihuana and money. $7800 and drugs were taken. The defendant had a record of six prior break and enters. Additionally, there were convictions for theft under, trafficking, possession for the purposes of trafficking, mischief, failing to attend court, unlawfully at large, possession of stolen property and seven false pretence convictions.

His history also includes parole violations. From the PSR his historical background indicates a normal, supportive upbringing and the ability to obtain employment. [ 14 ] R. v. A.J.C. and Joseph 2004 BCCA 268 is a case where the defendants planned to terrorize a family who owned a jewellery store in order to force them to pay $50,000. Three were involved but only two were identified. They were armed with two shotguns, pepper spray and a knife. After gaining access to the house a 76-year-old grandmother, her 15-year-old grandson and his 13-year-old friend, and later the mother, were bound with duct tape.

The grandmother was also gagged. Weapons were pointed to the heads of the victims. In pursuit of the plan for $50,000, the 15-year-old was blindfolded, removed from the residence and placed in the trunk of the family car as security. The court noted that the kidnapping was more impulsive than part of the initial plan. The mother was told to call her husband home while a gun was pointed at her head. On the father's arrival, further threats were made that his son would be killed if he did not come inside the house. He did not enter and the perpetrators fled.

At appeal, A.J.C.'s sentence was varied from 14 to 11 years. For Joseph, his sentence was varied from 16 to 13 years. These defendants had pled guilty. A.J.C. was 19. He was raised in a dysfunctional family and went into foster care. He did poorly at school. Addiction became problematic. He had numerous convictions as a youth and adult. His record included various property offences, breaching court orders, assaulting a police officer and aggravated assault. At the time of these offences he was on probation for assault and mischief. For Joseph, he was 22 years old. He had the benefit

of a supportive family in his youth but he later dropped out of school. He associated himself with a negative peer group. His record included obstruction of a peace officer, use of an imitation firearm, and possession of drugs. At the time of this offence he had just completed a two-year sentence for two counts of robbery. Both defendants expressed their remorse and there were favourable indications of rehabilitation. [ 15 ] In R. v. Lebrun 2001 BCCA 42 , the facts of this case are not in the nature of a home invasion, but a review of such authorities gave guidance to the court.

Here the victims were tenants to one of the co-accused. He alleged they had stolen drugs from him. In the course of their dispute, the defendant was enlisted to act in the role as an enforcer. Duct tape was used on both victims and they were confined in the bathroom. The male victim was stomped on his neck, earrings were torn from his ear, he was struck with the butt end of a shotgun and his life was threatened. Lebrun had a dated criminal record; it was not considered for sentencing purposes. He was 43 years old. His background reveals a man with solid connections to his family, children and community.

The offence seemed to be out of character. Denunciation and general deterrence was the focus of the court. Balanced against the defendant's positive attributes was the extreme degree of violence which had occurred. Six years was confirmed at appeal. [ 16 ] R. v. Monteiro and Ford 2005 BCSC 1201 , the defendants entered the victim's house for the purposes of collecting a debt. One had a gun which was pointed at the victim's head. A knife was used to cut two of the victim's fingers to the bone. The intruders pointed the gun at the victim's wife and she was struck as she tried to call 911.

Their two children were also taken to the basement recreation room. Ford was 23 years old. He has the support of his mother and his spouse. He does not have any addiction issues or a criminal record. Monteiro is 24 years of age. He was viewed positively by others. His upbringing was not marred and he seems to be well- motivated in positive life pursuits. His objective is to return to school for a nursing career. He does not have substance abuse issues and has no criminal record. Both defendants have entered guilty pleas, accepted responsibility for their conduct and expressed their apologies.

The sentence imposed on Monteiro was three-and-a-half years, Ford received four years. The difference between the two men was the charge of aggravated assault which elevated his degree of culpability. [ 17 ] In the course of my review of the authorities I have also considered R. v. Grossman 2004 BCPC 236 , and R. v. Potgieter 2007 BCSC 1867 . ANALYSIS AND CONCLUSIONS: [ 18 ] From R. v. Bernier, the court notes that there is no offence of home invasion, per se. It is, nonetheless, a class of offending that is an aggravating factor.

It is not a simple break-in of a residence, but rather has a heightened degree of culpability given the disregard for the presence of occupants and the wanton use of violence that ensues.

Section 748.1 mandates that these are aggravating factors in sentencing. [ 19 ] The Court of Appeal was also careful to state that there is no range of sentences for these types of offences, but only that a variety of conclusions can be reached depending on the sentencing principles that take greater or lesser prominence when evaluating them against the facts of each case.

Furthermore, while deterrence, society's protection and denunciation are significant factors, it must also be measured against previous sentences in similar circumstances. [ 20 ] In evaluating this matter, I am mindful of the codified provisions for sentencing as set out in s. 718, 718.1 and 718.2 of the Code. [ 21 ] In review of the particular character of offending that occurred, the defence commented this was a grow rip and is different from other situations where the victims are not involved in some illegal activity. Furthermore, there was no intent to kill when the shots were fired.

The use of a firearm was in response to being caught off-guard when the spear was produced. The suggestion is that they were not prepared for such an outcome. The submission is that given these aspects of the offence they result in neither mitigating nor aggravating factors for the purposes of sentencing. [ 22 ] With respect, I disagree. From the facts there is indeed no evidence to say there was any intention to kill. However, they certainly came prepared for resistance and responded to the spear with reckless force. It is luck that the victim was not more seriously injured.

As for the aspect of the victim himself was participating in an illegal activity, this does not relegate this offence to some special category. The violence which occurred must be firmly addressed, regardless of the victim's own illegal conduct; otherwise society's social order stands the risk of unravelling into lawlessness. [ 23 ] From my decision upon conviction, I restate a portion of my reasons concerning the nature of the offending: This was a well-planned, coordinated effort by various offenders.

In coming to this conclusion I note a number of facts: They burst into the residence at night as a group; they came prepared for violence as evidenced by a gun and bat; they responded immediately to Griffin's attempts to fend off the intruders with a spear by shooting him three times and striking him with a bat; the duct tape is evidence that planning included its use with the objective to control and subdue Griffin, which indeed occurred. After he was placed under control their first demand was the location of money and a safe. By this they clearly had prior knowledge of valuables in the house.

They also demonstrated they knew the existence of a marihuana grow operation when they demanded its whereabouts. As further evidence of a coordinated effort the victim was watched by others as the safe was initially attempted to be opened, and later as the grow was harvested. [ 24 ] From these facts I conclude the offence was a home invasion which is an aggravating circumstance for the purposes of sentencing pursuant to the provisions of s. 348.1 of the Criminal Code .

The defendant either knew or was reckless whether the house was occupied, and violence had occurred. [ 25 ] Furthermore, the facts establish a greater depth of culpable conduct given the high degree of organized and risky conduct they undertook in order to accomplish their objective of quick monetary gain. For the defendant, this was not an offence driven by addiction. [ 26 ] Another aggravating element is the fact this offence involved the use of a firearm and a bat which caused injury to the victim.

I am mindful that some sense of compassion was exhibited after the defendants departed when a call was made to a neighbour to give

assistance to the victim. [ 27 ] Upon review of the defendant's criminal record it is prodigious, especially for a young adult. This is a further aggravating feature in sentencing. The pattern of offending shows a marked increase over the years, as well, the types of offences demonstrates repetition in relation to drug trafficking and weapons. His recent record trends towards violence. [ 28 ] His last most significant offence was a combination of trafficking, weapons and robbery for which he received 13 months time served for trafficking, one year for weapons and one year for robbery.

While he was granted statutory release for these offences on December 31st, 2008, he was re-committed on June 2nd, 2009 due to a violation of his statutory release. His entire criminal record is based in Ontario. Approximately one-and-a-half years elapsed until he committed the offences for which he now faces.

His assertion of a quest for a new life in B.C. belies the reality of his lifestyle which is entrenched in crime. [ 29 ] In relation to the escape charge, counsel have agreed that a consecutive six-month sentence is appropriate. [ 30 ] Given the various aggravating features of the offence and the offender, deterrence, denunciation and society's protection are the paramount sentencing objectives. As I measure this matter against previous sentences of similar circumstances, I conclude the appropriate global period of incarceration is ten years. Added to this is a further six months for the charge of escape.

He is entitled to credit for dead time which amounts to approximately six months. [ 31 ] As between the various counts, the sentence is as follows: Count 1, use of a firearm in a robbery, four years concurrent; Count 2, break and enter with intent to commit robbery, ten years; Count 4, use of a weapon, a bat, in committing an assault, two years concurrent; Count 5, unlawful confinement, five years concurrent. For the charge of escape lawful custody, bearing in mind his dead time of about six months which is deducted from this sentence, the new time I impose on this count is one day concurrent.

Total time imposed, ten years. [ 32 ] This is a primary designated offence. Pursuant to s. 487.051 the defendant shall supply a sample of his DNA. [ 33 ] As well by s. 109 I impose a mandatory firearms prohibition of ten years. [ 34 ] Surcharge is waived. _______________________ B.G. Hoy Provincial Court Judge