2011 MBPC 59, 2011 MBPC 59

Citation # 2011 MBPC 59 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Elizabeth K.J. Laite, for the Crown ) - and - ) ) Nathan Campbell ) Taralee D. Walker, for the Accused ) ) Judgment delivered: ) July 29, 2011 KELLY K. MOAR, P.J. [ 1 ] On June 15, 2011, the accused appeared before me for sentencing on a number of offences that he had previously entered guilty pleas. At the conclusion of the hearing, I reserved my decision to consider the submissions of both counsel. [ 2 ] This is my decision on sentence. OFFENCES [ 3 ] The offences to which the accused has admitted guilt are straightforward.

During the dates of July 19, 2009 – July 26, 2009, the accused has acknowledged that on two occasions he was the operator of a motor vehicle while under a prohibition order not to do so. [ 4 ] Specifically, on July 19, 2009, the Royal Canadian Mounted Police received information that the accused was operating his vehicle in a reckless manner within the town of Ashern, in Manitoba. Police conducted an investigation and vehicle in question was found parked at the Interlake Motel. [ 5 ] On July 26, 2009, I am advised that the accused had attended to a party in the Steep Rock area.

While on his way back to Ashern, he got a flat in one of the tires on his truck. The accused pulled into the Roy’s Tire parking lot in the town of Ashern and proceeded to kick in the door of the said business. He then entered the store and stole two tires. [ 6 ] Although it is not clear what happened with the tires, the accused managed to get his truck back onto the road and very quickly ran into further trouble when he drove his vehicle through the ditch, entering onto the Rona parking lot and into a brand new display shed.

He continued driving and eventually the vehicle got stuck in the back of the Rona business. [ 7 ] The accused was arrested the next morning and gave a full statement admitting to the offences. As a result of this incident the Crown has accepted guilty pleas to: • mischief for damaging the business door; • theft for stealing the tires; and, • mischief for damaging property of Rona, namely, the shed. This is in addition to the one inclusive count of driving prohibited. [ 8 ] While the subject of release on those matters, the accused became re-involved in an incident that occurred on June 26, 2010.

I am advised that on that date, members of Natural Resources were on patrol and had their attention drawn to the sound of a vehicle. The officers pulled in behind the vehicle, noted that it did not have a rear licence plate, and initiated a traffic stop using the emergency lights. [ 9 ] Upon approaching the vehicle, the officers immediately noted an open box of Labatt Light beer. The officers proceeded to remove the three occupants and noted the accused, Nathan Campbell, was the driver.

A further look into the vehicle revealed two additional cases of beer along with three open cans of beer. [ 10 ] During this traffic stop, the accused soon became uncooperative and somewhat aggressive. At one point he stopped his interaction with the officers and proceeded to re-enter the driver`s side of the vehicle. Both officers responded with the use of sufficient force to remove the accused from within the vehicle and take him to the ground. Once on the ground the accused continued to resist the directions of the officers who, at the time, were trying to place him under arrest.

The accused was eventually subdued and handcuffed by the officers. During this time he gave a false name in an attempt to hide the fact that he was the subject of a number of release conditions. [ 11 ] The Royal Canadian Mounted Police were called for assistance and did attend to the scene. They took custody of the accused and transported him back to the Ashern Detachment. Once at the Detachment, he provided two samples of his breath, the first sample

registered a reading of 60-milligram percent while a second sample revealed a reading of 50-milligram percent. [ 12 ] As a result of this incident, the accused has pled guilty to the offences of obstruct a peace officer, personation and three counts of breaching his recognizance. Those breaches were for being outside of his 9:00 p.m. curfew, failing to abstain from the consumption of alcohol and occupying the driver seat of a motor vehicle. [ 13 ] The accused was detained in custody on these matters and remanded to appear in Winnipeg.

An application for judicial interim release was subsequently brought and the accused was ordered to be released on a recognizance with a surety. I am told that not only did his employer post the surety but they also agreed to have the accused reside with them while these matters remained before the court. [ 14 ] The total amount of pre-trial detention is 30 days. [ 15 ] I am further advised that the accused has no prior criminal record. CROWN POSITION [ 16 ] The Crown has suggested that the Court ought to consider a total period of incarceration in the area of 4 – 6 months for these matters.

I think it would be safe to characterize the Crown as somewhat offended by the brazen activity of this accused while he was the subject of a release order. [ 17 ] The Crown points out that upon reading the PSR, which was filed as Exhibit S1, alcohol is specifically noted as an ongoing issue for this accused. Of concern to the Crown is the fact that this accused has not taken any proactive steps to begin to deal with the issues that have brought him before the court and suggest that it is only his constant work

schedule that has kept him from becoming re- involved again. DEFENCE POSITION [ 18 ] Counsel for the accused suggests that if the court feels a period of incarceration is warranted, then the 30 days of pre-trial custody served to date should be sufficient. If the court is leaning towards that suggested by the Crown, Ms.

Walker asks the court to consider a conditional sentence to permit the accused to serve the sentence in the community. [ 19 ] I am advised by counsel that although the PSR speaks of little done by the accused to address the alcohol issue, it is not fair to say that he has made no effort to right his wrongs. Counsel described the accused as being embarrassed by his actions and to that end; he has approached those in the community where he has caused damage.

He has apologized to those he harmed and in cases where his offer has been accepted, the accused has financially reimbursed those for the repairs occasioned because of his actions. [ 20 ] Since the accused has been released back into the community, I am advised that he has not consumed any alcohol. He has continued with his current employer who he has worked for since the age of sixteen (16) years. After his last release it appears the accused was sent out to a work site in Saskatchewan and but for the occasional travel back to the community for court purposes he has remained there until very recently.

He has been back in the Ashern, Manitoba area since late April 2011 working with the emergency flood relief. It is this period of time that counsel for the accused suggests demonstrates that the accused can manage himself within the community. [ 21 ] As a further example of his change in attitude, counsel for the accused points out that the accused has attended court when required to do so and in fact has sought many variations of his release to permit him to work, doing so per the Order he is currently bound.

It is suggested that the accused is now well aware that if you breach the court ordered conditions you go to jail. [ 22 ] As for his addictions issue, the PSR points out that the accused has struggled in this area since he was 13 years of age. He quit school at the age of 16 and has been working since that age, being with his current employer for some 5 years. He recognizes that he has an issue and although he has not sought out any treatment to date, he has been able to remain sober.

He now recognizes when cravings occur and with the imposition of a period of probation, counsel suggests that the accused can begin to address the outstanding addictions issues. ACCUSED COMMENTS TO THE COURT [ 23 ] The accused did address the court and acknowledged that he has made some bad mistakes. He recognized that his actions were inappropriate and that he has caused a lot of trouble for people. Those actions have also caused him to lose a number of people he had previously identified as friends. [ 24 ] As I had indicated to Mr.

Campbell at the conclusion of submissions by counsel, I was not sure what the appropriate disposition ought to be for this matter.

That being said, there is absolutely no doubt in my mind that a period of incarceration is warranted but what I needed to consider was whether the time served to date was sufficient to address the appropriate principles of sentencing contained within the Criminal Code of Canada of which I will speak of in a moment. [ 25 ] Further factors complicating this matter are this accused’s youthfulness and lack of prior criminal record, both being factors that must be considered in determining the fit sentence to be imposed.

PRE-SENTENCE REPORT [ 26 ] At the outset, I will point out that based on the information contained within the report it is unfortunate that no further assessments were conducted. [ 27 ] Within the presentence report (“PSR”), it appears that this accused is an aboriginal person from the Valley River First Nation. [ 28 ] His early childhood appears to be populated with excessive alcohol consumption by his mother, episodes of domestic related

violence and general instability within the home. Although there appears to be no Child and Family Service involvement, the accused did go and reside with individuals that he identified as his grandparents. [ 29 ] Although this was a noticeable period of stability during which the accused appeared to be making strides, that growth dropped off when he moved out of the home of his grandparents. [ 30 ] As for family, this accused has very sporadic contact with his biological father, while his relationship with his mother is not a close one.

As noted, the accused is currently residing with Melissa and Glen Hartman who are his sureties and employers. [ 31 ] There is some notation that this accused may have been subjected to potential devastating effects by his mother continuing to drink alcohol while she was pregnant.

That fact will need to be explored further by Probation Services as it may help explain the difficulties he had in school that led to him eventually dropping out prior to completing his high school education. [ 32 ] On a positive note, this accused has worked for Hartman Construction since dropping out of school and has achieved the status of a heavy equipment operator. [ 33 ] A significant issue identified within the body of the report is the accused’s use of alcohol. It appears he began drinking at the age of thirteen and he now considers “this to be a normal part of life”.

His employer and grandparents have previously raised that very issue with him and he acknowledges that he needs help to overcome this problem. Despite that acknowledgement, he has not sought out any support programs nor has he changed his lifestyle to any significant degree to support sobriety. [ 34 ] The writer of the report has identified this accused as a high risk to re-offend.

ANALYSIS [ 35 ] In any sentencing decision, the court is to be guided by s. 718 of the Criminal Code of Canada which generally states that the fundamental purpose of sentencing is to contribute 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 acknowledgement of the harm done to victims and to the community. [ 36 ] The sentence to be imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender ( s. 718.1 of the Criminal Code of Canada ). [ 37 ] The determination of an appropriate sanction requires a court to balance such things as denunciation, deterrence, both specific and general along with the rehabilitation of the offender.

The sentence imposed must promote a sense of responsibility in the offender and provide reparation to the victims of the crimes. [ 38 ] The sentence has to be one proportionate to the moral blameworthiness of this offender and consistent with other sentences that have been imposed upon other like offenders of like background.

That being said, sentencing is still to be an individualized process. [ 39 ] As is outlined within 718.2(a), the sentence should be increased or reduced to account for any aggravating or mitigating factors that relate to the offence or offender. [ 40 ] There are a number of aggravating factors which can be summarized as follows: 1. The accused was a prohibited driver and disregarded that order. 2. The accused showed a complete lack of regard for his release conditions as is evident from his last arrest. 3.

As has been suggested by Crown counsel, and is supported within the body of the pre-sentence report, this accused has shown no motivation to begin to address his problematic use of alcohol. 4. As per the pre-sentence report, this accused has been assessed as a high risk to reoffend. [ 41 ] In mitigation I note the following: 1. The accused has no prior criminal record. 2. The accused has accepted responsibility for his criminal offending and entered guilty pleas without the need of a trial. 3.

I am prepared to accept the comments of counsel that the accused has approached the various victims of his actions and offered financial assistance to cover the damage he caused. 4. The accused has a steady work history having been with Hartman Construction for approximately five (5) years to date.

[ 42 ] I have taken the opportunity to reconsider the PSR that has been filed. To put it succinctly, it is apparent that this accused did not have a stable upbringing as an infant and toddler. It was only as a teenager when he moved in with his pseudo-grandparents that he then began to experience a level of stability. [ 43 ] The report itself suggests, as did counsel for the accused, that there may be concerns with FASD related issues as his mother drank while pregnant. It appears that Mr. Campbell did come into contact with a child psychologist in his early years and was diagnosed with ADHD.

It also appears he was prescribed Ritalin but there is no further information as to the length of time he was on the medication or whether it had a positive effect on him and his behaviour. That being said, it is apparent from the report that the accused continued to experience difficulty in his school age years and ultimately left prior to the completion of a high school education. [ 44 ] The author of the PSR suggests that the accused has demonstrated behaviour indicative of underlying emotional issues, poor impulse control and a lack of self-management skills.

To that end, the writer does note that the accused seems genuine in his commitment to start recognizing his criminal thinking errors. [ 45 ] That being said I do recognize that this accused pled guilty without the need of a hearing and by that has shown a level of remorse. Despite his earlier difficulties in complying with court orders, he has not become re-involved since his last release, now being about a year. [ 46 ] I am prepared to accept that he has made some amends on his own that are not detailed in the PSR. It is apparent he has the ability to work and has done so with the same company for 5 years.

I also note that it is those who own the company that have posted the surety to secure this accused’s release in Winnipeg and they continue to support this accused during his involvement in the criminal court process. [ 47 ] I think it is important to say that the people of Ashern are entitled to be able to live their lives and run their businesses without fear of loss or destruction.

There is absolutely no doubt that the sentencing principles of concern to this court are that of deterrence, that is, specific deterrence, and rehabilitation. [ 48 ] The sentence to be imposed has to send the appropriate message to Mr. Campbell that his continued defiance of various court orders will not go unanswered. His continued path of bad choices will not be tolerated by both the people of Ashern and by this court.

It is not surprising that the Crown is advocating that a further period of incarceration ought to be imposed, followed by a period of probation. [ 49 ] It is well settled that the use of incarceration as a sentence ought to be done with restraint and in the absence of all other available sanctions. That is a principle that I accept and have considered in determining the fit and proper sentence to be imposed on this offender. [ 50 ] With that, I am of the view that the youthfulness of Mr.

Campbell, the lack of a prior criminal record, the fact he has an extensive period of employment and perhaps most important the presence of ongoing positive community support tilt the pendulum. [ 51 ] I am hopeful that the short sharp shot of jail that this accused experienced provides the necessary glimpse of his potential future should he fail to address his ongoing issues that led him into the criminal justice system. That along with the imposition of a series of fines will hopefully have the desired effect of sending the necessary message to Mr.

Campbell and others who may commit similar offences. [ 52 ] The sentences to be imposed will be as follows: 1) On the offence of driving prohibited, I recognize that it entails more than one instance of driving. I also note for the record that although Mr. Campbell has a prior HTA conviction for driving suspended, the sentencing was imposed after the date of the matters now before the court. Nonetheless, given this repetitive behaviour of driving in contravention of the prohibition, he will be fined in the amount of $900.00 with costs and surcharge to apply. Any further action on Mr.

Campbell`s license will be left to the discretion of the Manitoba Public Insurance Corporation. 2) As for the three property related offences on July 26, 2009, the passing of sentence will be suspended for a period of 24 months and Mr. Campbell will be placed on supervised probation with the following conditions: - Keep the Peace and be of Good Behaviour.

In other words, follow the law in general along with the conditions of any court orders, including this one, which you are specifically bound by. - Report to a probation officer within 7 days of the passing of this sentence and thereafter, report as directed and in the manner directed. - Attend, participate in and complete any anger management counselling with a mental health therapist as directed to do so by your probation officer. - Attend, participate in and complete the Adult Intensive Support Supervision Program (I.S.S.P.) as you are directed to do so by your probation officer. - Attend, participate in and complete an addiction assessment as you are directed to do so by your probation officer.

Thereafter you will fully comply with whatever treatment recommendations come as a result of that assessment. - Attend, participate in and complete any other counselling or programming as directed to do so by your probation officer. - Abstain absolutely from the use, possession or consumption of alcohol, non-prescribed medication or intoxicants.

- You will not attend into any premise whose primary purpose is the sale of liquor. Costs and surcharge are waived for this matter. 3) With respect to the offence of obstruct a peace officer, there will be a fine of $600.00 plus costs and surcharge that is consecutive to the earlier fine imposed. 4) On the offence of personate, there will be a fine in the amount of $200.00, once again consecutive to the earlier imposed fines.

In this case, costs and surcharge will be waived. 5) Finally, on each of the three breaches the sentence will be one (1) day reflecting the appearance in court today with time in custody of 30 days noted on a day for day basis. Costs and surcharge will be waived in this matter. [ 53 ] Mr. Campbell, I think it is important for you to recognize that I have chosen to use the imposition of fines on top of your pre- trial custody to answer the issues of denunciation and specific deterrence.

I have also given credence to the issue of rehabilitation through the imposition of a lengthy period of probation. [ 54 ] The rest is in your hands and I am hopeful you will take the necessary steps to address the issues that have brought you before this court.

I say that as I want you to consider that should you become involved in further criminal activity, your rehabilitation may take a back seat at any future disposition hearings. [ 55 ] As for time to pay the fines, given the information I received during defence counsel’s submissions on sentencing, you will be given until April 1, 2012 to make full payment. [ 56 ] This is the disposition of the court. Original signed by: KELLY K. MOAR, P.J.