R. v. Howitt Date:, 2016 BCPC 368

Citation: R. v. Howitt Date: 20160513 2016 BCPC 368 File Nos: 50244-1-A, 50269-1, 50270-1, 203354-1, 203354-2-S, 206760-1, 206760-2-S Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANTHONY ROBERT HOWITT REASONS FOR SENTENCE OF THE HONOURABLE JUDGE HEWSON Counsel for the Crown: K. Dodds Counsel for the Defendant: C. Simmons

Place of Hearing: Vernon , B.C. Date of Hearing: May 13, 2016 Date of Judgment: May 13, 2016 [ 1 ] THE COURT: Mr. Howitt has pled guilty to uttering a threat to Connie Roseberry on May 16, 2015, and to failing to report as required by a recognizance of bail on May 28, 2015. In addition, he has pled guilty to committing the robbery of Nicole Dandeneau on June 28, 2015. That offence took place in Ms. Dandeneau's hotel room where Mr. Howitt was one of three guests. He threatened her with a knife and stole her purse before fleeing the scene. [ 2 ] Both counsel have made submissions and I have invited Mr.

Howitt to make any statement he wished to make. He declined to make a statement. [ 3 ] The issue I am asked to determine is whether Mr. Howitt's circumstances are the sort of exceptional circumstances that can call for a sentence below the low end of the accepted range of sentence. [ 4 ] Crown counsel submits that the appropriate penalty in the circumstances is a sentence totalling two years. In her submission, the sentence for uttering threats and failing to comply with the recognizance should be seven days on each count.

She is not opposed to granting the offender credit for the time spent in custody awaiting sentencing. The Crown is also seeking a firearms prohibition under s. 109 of the Criminal Code , a DNA order, and a victim surcharge. [ 5 ] Counsel for Mr. Howitt takes the position that the appropriate penalty is a sentence of 15 months' incarceration to be followed by one year of probation. She recognizes that the sentence of 15 months falls below what the Court of Appeal has described as the range of sentence for robbery, but submits that, in Mr.

Howitt's life history, there can be found the sort of exceptional circumstances that would justify a sentence falling below that range. She says that those circumstances include his low IQ, foetal alcohol syndrome, addictions to alcohol and crystal methamphetamine, the efforts that he claims he is prepared to make upon his release regarding treatment and recovery, and the efforts that he has made while he has been in custody. [ 6 ] Because of the position taken by Mr. Howitt on the sentence hearing, the circumstances of the offence and his own personal circumstances are very important. On May 16, 2015, Mr.

Howitt and his girlfriend became engaged in a loud argument at the door of their apartment unit. Connie Roseberry attempted to intercede. Mr. Howitt threatened her and she withdrew. Ms. Roseberry was the daughter of the manager of the apartment building. Mr. Howitt was arrested and then released on a promise to appear and on the conditions in an undertaking. [ 7 ] On May 28, 2015, when Mr. Howitt was reporting to a bail supervisor on three different recognizances of bail, he failed to report to his bail supervisor. [ 8 ] On June 10, 2015, Mr. Howitt was sentenced on two separate matters.

He received two concurrent conditional sentence orders. Eighteen days later, on June 28th, while he was serving his sentence in the community under the supervision of the conditional sentence supervisor, he, his girlfriend, and two other women were together in a hotel room in Vernon. The four of them were drinking alcohol. One of the other women was Nicole Dandeneau. It was her hotel room. [ 9 ] After some time, Mr. Howitt decided to rob Ms. Dandeneau of her purse. He produced a knife and brandished it towards her. He took her purse. The victim was struck by punches. Mr.

Howitt ran from the room as did the other two women leaving the victim behind. Mr. Howitt had the purse. The police found some handwritten notes inside the hotel room which might have permitted an inference that Mr. Howitt and the two other women planned to rob the victim, but the Crown did not press that point. [ 10 ] Mr. Howitt is 27 years old. He has some connection with a sister in Surrey who at one time was not prepared to have him live with her because of the instability that he would bring to her family, but she now appears to have had a change of heart.

He also has some connection with his mother's sister. His mother passed away when he was 20. His father has played no role in his life. [ 11 ] Mr. Howitt's mother was Métis and suffered from severe alcoholism. Both his mother and his aunt grew up in foster care. Mr. Howitt himself has spent a significant part of his youth in foster care. He has never enjoyed a stable home. [ 12 ] Mr. Howitt has a grade 10 education that he completed through an alternative education program. [ 13 ] Mr. Howitt is the father of two children. His oldest child is seven years of age and he has limited contact with her.

The Ministry of Children and Family Development took his second daughter into care. The plan of care for that child appears to be leading towards an adoption by a family member. [ 14 ] I have had the benefit of a presentence report prepared by Mr. Gurak. The presentence report is bleak. Except for the two years prior to his arrest in June 2015, Mr. Howitt had lived in Surrey. According to his sister, all of his associates in Surrey are involved in that city's criminal drug subculture. Information received by the author of the presentence report indicated that Mr.

Howitt's school years were marked by behavioural management problems related to impulsivity, anger management, and aggression. [ 15 ] Mr. Howitt has a criminal record including convictions in youth and adult court for assault causing bodily harm, robbery, aggravated assault, carrying a concealed weapon, possession of a prohibited or restricted weapon, possession of a scheduled substance for the purpose of trafficking, breaking and entering, and theft from the mail.

[16] Mr. Howitt has almost no work experience. He told the author of the presentence report that he was last employed seven yearsago. In 2009, he was found to be eligible for a disability pension and would be able to resume receiving this assistance should he applyupon his release from custody. [17] Mr. Howitt recalls that he has been addicted to crystal methamphetamine since he was 18 years old. He said that he wasconsuming crystal meth at the time of the offences before the court. He told the author of the presentence report that he had no idea whyhe used crystal meth other than to ward off boredom.

On two occasions in the past, he has entered recovery or treatment centres, but onboth occasions, he left the programs prior to completion. [18] Mr. Howitt told the author of the presentence report that he had no interest in pursuing treatment. However, he has instructedhis counsel that he would engage in residential treatment if so ordered and, most significantly, while he has been in custody on thesecharges, he has completed the substance abuse management program and has attended nine sessions of a weekly cognitive behaviourgroup treatment program. The facilitator of that group reported that Mr.

Howitt was attentive in group and completed all work asrequested. That bit of information is the single point of light on a horizon that is otherwise exceptionally dark. [19] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender.

Section 718 of the Criminal Code says that the fundamental purpose of sentencing is to contribute torespect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more of thestated objectives. [20] The objectives that are important in Mr. Howitt's case are, firstly, denunciation. Denunciation is a statement of ourcommunity's condemnation of conduct that has encroached on our basic code of values and for that reason should be punished. It isimportant to note that the victim of the robbery came to Mr.

Howitt's attention because she invited him to be a guest in her hotel room. [21] Another important objective in this case is general deterrence. This is an attempt to discourage other potential offenders and toeducate the general public. [22] A third important objective is specific deterrence. This is an attempt to discourage Mr. Howitt, in particular, from committingoffences in the future through the fear of further punishment. [23] A fourth objective is the objective of rehabilitation. This can be the best protection society has and is usually the mainobjective for youthful offenders.

However, it will not normally be the primary objective where the offender lacks significant remorse ordenies responsibility for the offence. [24] There are other factors that are relevant to Mr. Howitt's sentencing.

Section 718.2(

e) of the Criminal Code requires a court thatimposes a sentence to take into consideration that all available sanctions other than imprisonment that are reasonable in thecircumstances should be considered for all offenders with particular attention to the circumstances of Aboriginal offenders. [25] Examining the sentences imposed in other cases is basic to determining the appropriate sentence in a particular case.

This ishow a suggested range of sentence may be determined in an attempt to achieve the principles of proportionality and parity, but othercases and the range derived from them are not determinative of the sentence to be imposed. Each case is determined on the particularfacts and circumstances of the offence and the offender. The range derived from other cases provides guidance, but not boundaries. [26] I am grateful for the assistance of counsel in referring me to several helpful cases. The decision of R. v.

Brogan (1999), 1999BCCA 278 , 125 B.C.A.C. 310, suggests that the range of sentences for robbery where an imitation firearm is used is betweentwo and nine years. In this case, of course, it was not an imitation firearm, but a knife that Mr. Howitt used. In the Brogan case, MadamJustice Ryan made these helpful remarks at paragraph 10: An analysis of the range produced by these cases is that the sentencing range is somewhere between 2 and 9 years.

The age of theoffender, his previous criminal experience, the level of violence, the number of offences, the level of premeditation, whether theperpetrator was disguised or not, the type of weapon used and how it was used, the possibility of rehabilitation, the requirement ofdeterrence in a particular community, are some of the factors which serve to distinguish one fact pattern from another. [27] After reviewing a number of cases, both counsel appeared to accept that the low end of the range, at least, is about two years foran offence like Mr.

Howitt has committed. [28] With respect to the law regarding Aboriginal offenders, it is clear that s. 718.2(e), which requires me to pay particular attentionto the circumstances of Aboriginal offenders, requires me to consider any unique, systemic, or background factors that brought thisoffender before the court and the types of sentencing that might be appropriate because of his Aboriginal heritage or connection.

Theseare sometimes referred to as Gladue factors after one of the leading cases in this area. [29] At the same time, though, the case law is clear that these factors are not to be considered an automatic race-based deductionfrom an otherwise fit sentence, and the Gladue factors must be tied to the offender and to the offence. One case that was particularlyhelpful in this regard was the decision of the Yukon Court of Appeal in R. v. Charlie, 2015 YKCA 3. The court said at paragraph 42: Mr. Charlie presents a serious challenge to the sentencing process.

He is seriously compromised, but has the potential to do well in acontrolled community environment. Although he is the author of his misdeeds, they flow from his inability to control himself when heconsumes alcohol or drugs. This inability derives from his FAS, which, in turn, originated from problems flowing from his Aboriginalbackground. Without rehabilitation, his pattern of offending clearly will continue. With rehabilitation, he has a chance to lead an effectivelife.

Society is best served if that were to occur. [30] That decision also makes it clear that a sentence falling outside the regular range of appropriate sentences is not necessarilyunfit.

[ 31 ] I return to the question that I posed at the commencement of these reasons. Do Mr. Howitt's circumstances, including his Aboriginal heritage, amount to the sort of exceptional circumstances that would justify a sentence falling below the low end of the range? [ 32 ] There is little evidence before me of Mr. Howitt's Aboriginal heritage. His mother was Métis and she suffered from alcoholism. His family background has been fragmented and he himself suffers from substance abuse problems and FAS.

I am prepared to take judicial notice of that fact that the historical treatment of Aboriginal people by Canada has had numerous pernicious results including a higher incidence of alcohol and drug abuse within Aboriginal communities and a greater number of broken families. Those facts are similar enough to the circumstances of Mr. Howitt that I am prepared to draw a connection. [ 33 ] That is not the end of the question, though. Mr. Howitt's personal circumstances extend beyond his Aboriginal heritage. His history demonstrates only a limited potential to do well in a community environment.

Even that may be putting it too highly. Unlike Mr. Charlie, he has never demonstrated the potential to do well in a controlled community environment. The Court of Appeal was prepared to give Mr. Charlie what was effectively his last change by imposing a sentence that fell below the accepted range. [ 34 ] Mr. Howitt, despite all that has been said for him by his counsel, has simply not demonstrated a willingness or inclination to live within our community without breaking our laws. There is no reason in his case to impose a sentence below the accepted range. The robbery committed by Mr.

Howitt was calculated, violent, and committed in a place in which the complainant should have expected to be safe. His compliance with court orders has been abysmal. [ 35 ] Despite all that Ms. Simmons has said on behalf of her client, I find that the appropriate sentence is a global sentence of two years. [ 36 ] Mr. Howitt was arrested on June 30, 2015. He has been in custody since that date. The two concurrent conditional sentences were suspended or should have been under s. 742.6(10) of the Criminal Code .

I presume that he was detained in custody on the allegation of conditional sentence breach under s. 515(6) and that therefore the concurrent conditional sentences began to run again. In any event, I am told that the conditional sentence orders expired on December 24, 2015. Mr. Howitt is not entitled to have any part of the period between June 30, 2015 and December 24, 2015 considered as presentence custody. [ 37 ] The period of time from December 24, 2015, to today's date can be considered as presentence custody.

This represents a period of 141 days which would attract a credit of 212 days if credit was granted at the rate of 1.5 days' credit for every day of presentence custody. Accordingly, I will impose sentence as follows. [ 38 ] On Information 50270, the robbery of Nicole Dandeneau, had this matter come before the court without consideration of presentence custody, I would have found that the appropriate sentence would have been a sentence of 22 months or 670 days. I will apply the 212 days of presentence custody with the effect that Mr.

Howitt will serve 458 days of new time on Information 50270. [ 39 ] With respect to Information 50269, the threat to Connie Roseberry, I will impose a sentence of 30 days' incarceration. [ 40 ] With respect to the offence of failing to report to the bail supervisor, I will impose a sentence of 30 days' incarceration. [ 41 ] The three jail sentences will run consecutively to each other with the effect that, after the application of the credit for presentence custody, Mr. Howitt will serve 518 days from today's date. [ 42 ] In addition to the jail sentences, Mr. Howitt will be placed on probation.

The term of the probation order will be 12 months. [ 43 ] The conditions of the probation order will include the compulsory conditions, Madam Clerk. [ 44 ] 2001, you must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 45 ] 2002, except as contemplated by this order, you must have no contact or communication directly or indirectly with Nicole Dandeneau or Connie Roseberry without further approval of the court. [ 46 ] 2004, you must not go to any place known to you to be the residence, school, or workplace of Nicole Dandeneau or Connie Roseberry without further approval of the court. [ 47 ] 2601, you must attend, participate in, and successfully complete any intake assessment, counselling, or program as directed by the probation officer. [ 48 ] 2104, you must report by telephone and speak to a probation officer at the Vernon Community Corrections office within two business days after the completion of your jail sentence.

After that, you must report as directed by the probation officer. [ 49 ] 2201, when first reporting to the probation officer, you must inform him or her of your residential address and phone number. You must not change your residence or phone number without written permission from your probation officer. [ 50 ] Those are the conditions of the probation order. [ 51 ] In addition, there will be a firearms prohibition under s. 109 of the Criminal Code . [ 52 ] To the best of my recollection, this is the first time that he has been prohibited under s. 109, Ms. Dodds; is that correct? [ 53 ] MS.

DODDS: I think so, Your Honour. I think -- my note says that it is a mandatory lifetime prohibition. He did have one prior robbery on his record.

[ 54 ] THE COURT: Then it would be life. The prohibition is that he is prohibited from possessing any firearm, crossbow, restricted weapon, prohibited weapon, prohibited device, ammunition, and explosive substance for life. [ 55 ] There will be a DNA order. [ 56 ] The firearms prohibition, the DNA order, and the probation order are all going to apply to the robbery Information which is 50270, Madam Clerk. [ 57 ] The robbery count is a primary offence and I order that Mr.

Howitt attend within the institution in which he is in custody by May 30, 2016, and thereafter as may be necessary in order for a sample or samples of his bodily substances to be taken for purposes of registration in the national DNA databank in accordance with the provisions of

Part XV of the Criminal Code . This order is valid until executed. [ 58 ] There are victim surcharges payable on each of the three offences before the court. Mr. Howitt has had no employment for seven years and has been supporting himself on a disability pension. There is no -- it appears to me that there is no prospect of him having the resources to pay a victim surcharge.

I will order that the victim surcharges be payable forthwith and that he serve one day in default, each day concurrent to the others, and all three days concurrent to the penalty to be imposed on Information 50270, the robbery charge. [ 59 ] I believe that is everything. [ 60 ] MS. DODDS: Thank you, Your Honour. Crown will direct a stay of proceedings on all the remaining counts and remaining Informations. (REASONS FOR SENTENCE CONCLUDED)