R. v. Loucks Date:, 2016 BCPC 363

Citation: R. v. Loucks Date: 20161031 2016 BCPC 363 File No: 77102-2-C Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KEVIN DOUGLAS DEMMONS PIERRE GINO GUIDOTTI DUSTIN HAROLD HAGG COLIN DANIEL CRISP RYAN LOUCKS REASONS FOR SENTENCE (RE: ACCUSED LOUCKS) OF THE HONOURABLE JUDGE MacCARTHY

Counsel for the Crown: N.P. Barber Counsel for the Defendant: M.B. Munro Place of Hearing: Nanaimo, B.C. Date of Hearing: October 31, 2016 Date of Judgment: October 31, 2016 INTRODUCTION [1] THE COURT: Ryan Loucks (the "Offender") was convicted after a six-day trial before me of the following indictable offencesas set out below. He was charged and Crown proceeded against him and three other accused on a total of six charges. Each of theco-accused were dealt with separately. [2] On Count 2, the charge was that that Mr.

Loucks, together with the other co-accused, on or about the 14th of July 2013 didbreak and enter a place, namely a dwelling house, situate in a location at Nanaimo, British Columbia, and committed an indictableoffence therein, contrary to s. 348(1)(

b) of the Criminal Code. [3] On Count 3, he and the other named co-accused were charged with unlawfully confining the three complainants, RichardPayne, Style Payne or Radu Mircea contrary to s. 279(2) of the Criminal Code. [4] On Count 4, the Offender, Mr. Loucks, together with the other co-accused, were charged that they did commit assault ofanother person, namely Richard Payne, contrary to s. 266 of the Criminal Code. [5] These convictions arise out of what is commonly called a home invasion, which was both planned and during which violenceoccurred.

As the perpetrators were fleeing, one of the victims discharged a firearm at the fleeing pickup truck occupied by theperpetrators. It was owned by the Offender. The vehicle was hit by bullets and one of the co-accused, Dustin Hagg, was struck in theear. [6] My reasons for judgment rendered June 1, 2016, relating to the conviction of the Offender are reported under the followingneutral citation: R. v. Demmons, [2016] B.C.J. No. 1403; 2016 BCPC 197 . [7] Crown argues that a fit and appropriate sentence is in the range of five years to seven years of custodial time less credit for timeserved.

Defence counsel argues that a fit and appropriate sentence is in the range of between two and three years of custodial time, lesscredit for time served. [8] The task before me is to impose a sentence that is fit and appropriate.

SUMMARY OF CIRCUMSTANCES SURROUNDING THEOFFENCES [9] The decision rendered by me on June 1, 2016, provides all the circumstances. I do not intend on repeating the findings of factthat gave rise to the conviction, but I will summarize some important facts that are essential in considering an appropriate sentence. [10] Originally five individuals were charged on the same indictment. Crown stayed charges against Kevin Demmons. PierreGuidotti was acquitted at his separate trial. Dustin Hagg pled guilty on Count 2 and was sentenced to three years in custody at hisseparate sentencing hearing.

Colin Crisp pled guilty to Count 2 and was sentenced at his separate sentencing hearing. He served asentence of two years. Colin Crisp testified against the Offender at his trial. [11] The offences took place in the early morning of July 14, 2013, between approximately 4:30 and 5:00 a.m. The location atwhich the offences took place was a residence owned by Richard Payne. Richard Payne is a self-professed, well-known marihuanaactivist.

He has a background in both producing and more recently in distributing medical marihuana from a dispensary that he operatedat his residential dwelling. [12] Richard Payne and his son, Style Payne, and his tenant, Radu Mircea, all testified at the Offender’s trial. In the case of bothRichard Payne and Radu Mircea, they provided descriptions of being awakened, in the early morning by a number of individuals whoconfronted them in the residence. Style Payne, the teenage son of Richard Payne, heard the intruders coming into the house.

He wasawake at that time in his room playing videogames. [13] Richard Payne was confronted by a masked individual holding what he recognized from his background with firearms as a9-millimetre handgun. However he conceded and it was determined that it could not be proven that it was an actual operative handgun,but rather could have been a toy or a replica. [14] As a result of that confrontation, Richard Payne was ordered to go down on the floor. He was then assaulted several times andhe had his hands tied with duct tape. At that point, he became aware that his bedroom was being ransacked.

As I understand, what wastaken were some personal items, including two bottles of liquor and between one and two pounds of marihuana stored in his room. It

appears that there were firearms apparently taken from a firearms safe in the dwelling. Mr. Payne did suffer some injuries as a result of this incident. [ 15 ] His roommate, Mr. Mircea, was ripped awake from his sleep. He was confronted by an individual who ordered him into a compliant position. He was considerably shaken by the events. He said it was like a nightmare. He personally had taken from him approximately $100 in cash. [ 16 ] Style Payne, the teenage son of Richard Payne, was also was confronted by an individual who came into his room. He overheard his father being assaulted.

He testified that he was distraught and traumatized by the events that took place on that evening. However as the intruders were leaving the residence, his response was to take what I understand to be an SKS rifle, and go outside of the residence. Then he discharged the rifle at a vehicle that was fleeing with the perpetrators in it. The result of that was that a number of bullets hit the vehicle and that caused the injuries to Mr. Hagg. [ 17 ] The evidence at trial which I accepted was that the events giving rise to the offences were planned.

The planning involved the convicted co-accused and in particular for the purposes of this sentencing hearing, it involved the Offender. This planning included a scouting visit to the residence of Richard Payne where the offences took place. Preceding the actual events, it also involved the Offender attending at a local convenience store and buying duct tape. [ 18 ] It also involved each of the individuals, who attended at the residence to participate in the home invasion, arming and masking themselves. In the case of the Offender, it is clear that what he had was a pistol of some sort.

Whether it was operative or not, or whether it was simply a toy or a model is unknown, but that was the weapon which the Offender utilized in this particular home invasion. [ 19 ] In addition to the items that were taken from Richard Payne and Mr. Mircea, the perpetrators took other things including a laptop computer, cash and other personal items. [ 20 ] At paragraph 334 of my reasons rendered on June 1, 2016, I stated as follows: I am satisfied that the important part of Mr.

Crisp's evidence does support the conclusion that the [Offender] was present with Colin Crisp at the Apartment during the planning of the home invasion, that the[Offender] drove the Pickup Truck to the Dwelling in the presence of Colin Crisp, that the[Offender] was present with Colin Crisp at the Dwelling when the home invasion took place, that the [Offender] did duct tape and thereby confine Richard Payne during the course of the home invasion, and at that same time he assaulted Richard Payne.

Further, that he was with Colin Crisp at the Dwelling as the home invaders fled the scene in the Pickup Truck, which was damaged by gun fire, and that the [Offender] was with Colin Crisp in Chemainus up to the time that Mr. Crisp hurriedly departed. [ 21 ] It was following Mr. Crisp's departure from the scene in Chemainus that he was subsequently arrested by the RCMP for breach of a condition involving no contact with his former domestic partner. Mr. Crisp gave a number of statements to the police that eventually led to the swearing of the Indictment and the subsequent arrest of the individuals named therein.

CIRCUMSTANCES OF THE OFFENDER [ 22 ] I have before me, for assistance, information about the Offender and his circumstances contained in a Gladue report for Ryan Loucks. The Gladue report was prepared by Stewart Cadwallader. Mr. Cadwallader is a recognized and highly respected author of Gladue reports.

According to his curriculum vitae , which is not in dispute, he has written well over 750 Gladue reports; he has been an educator for aboriginal legal education issues, both at professional meetings of lawyers and of court officials, including judges of this particular court. [ 23 ] The Gladue report prepared by Mr. Cadwallader on the 10th of October 2016 is comprehensive in nature, it is detailed, and it is useful. [ 24 ] From the Gladue report and from submissions provided by defence counsel, it is apparent that Mr. Loucks is 42 years of age, having been born in 1973. He is a product of a broken home.

His parents separated at a fairly early age, resulting in the Offender, being without a male figure in his life for an extended period of time. [ 25 ] It is interesting and perhaps somewhat unique that the Offender was not substantially aware of his indigenous background, and he never self-identified as being aboriginal while growing up. In fact he was of the belief that he was a person who qualified as Métis and was able to solicit and obtain a membership card with an Ontario Métis organization.

He subsequently found out, through recent investigations that took place, that the recounting by his father's side of the family about the Métis heritage to his more immediate family was incorrect. It turns out that his grandmother was a member of the Hiawatha Ojibway First Nation situated outside of Peterborough, Ontario. [ 26 ] This further background knowledge described in the Gladue report about the Offender's aboriginal heritage, as I previously indicated, is a recently known event for him.

However as noted in both in the Gladue report and in counsel’s submissions late identification of aboriginal heritage is not as uncommon as one would think. As set out in the Gladue report is the fact that lack of knowledge of one's aboriginal community resulted from the various levels of government's policies of colonization and of aboriginal people, encouraging them to abandon their own cultures and to adopt what is referred to as a “settler identity”. Accordingly this undermined the aboriginal people's cultural and social relationships to their traditional territories, colonial governments.

This policy is stated to have been crafted in hopes of weakening the aboriginal people's resistance to the colonization movement. [ 27 ] There are descriptions in the Gladue report that individuals of aboriginal heritage were “disenfranchised” by government policy. Then a government policy of assimilation was used through what is referred to as “enfranchisement”, it being a legal process for terminating a person's Indian status and thus conferring “full Canadian citizenship enfranchisement”.

[ 28 ] This policy often had the consequences of individuals losing not only their native rights but also losing the ability to identify and understand their aboriginal heritage. [ 29 ] In the Gladue report, other personal background information of importance is provided about the Offender. The Offender in this case does have an educational background whereby he was able to go through and gain qualifications as a welder.

He gained several levels of certification and from submissions received from defence counsel, I understand that he has attained a high level of structural steel welding which permits him to work on oil and gas pipelines and in other high responsibility-type jobs in the welding field. [ 30 ] Notwithstanding an earlier number of criminal convictions which I will refer to shortly, the Offender in this case maintained a relatively stable level of employment, apparently earning as much as $8,000 per month, as I understand it, in the oil fields while pursuing his trade. [ 31 ] It was in the beginning of this decade, which I understand to be starting around the year 2000, that the Offender became heavily involved in drug use.

In particular he became very highly addicted to heroin, but that is not to say that it was his sole drug of choice. In 2010, he entered into an addictions recovery program. He commenced methadone maintenance and he was able to taper off; however, he soon fell back into the grips of illicit drugs. [ 32 ] He was released on bail on these charges on May 13, 2014, after a contested bail hearing, to a program known as the VisionQuest Program, which is located on the Lower Mainland. He stayed in that program and apparently was participating in that program until October 2, 2014.

During that day in question, he was required to provide a sample for a urinalysis test to detect any drugs in his system. He immediately left the VisionQuest premises without any authorization and he was then absent without leave or, in the common vernacular, on the lam for a considerable period of time. A warrant was issued for his arrest. His whereabouts unknown the trial dates in this matter were caused to be adjourned.

He was taken back into custody, as I understand it, on August 12, 2015. [ 33 ] As a result of thereby being at large and associated with his subsequent arrest, he faces other charges which are not before this court and are not taken into account in dealing with the sentencing on this matter. [ 34 ] Besides a challenging upbringing and problems within his family, he still has very strong support from both a mother and a sister who are in court today in support of him. [ 35 ] The Crown alleges and no issue is taken with the fact that the Offender in this case does have a criminal record.

The criminal record dates back to 1997 with some earlier assault charges in 1997 and 2003. The charges in 2003 arising out of an incident in November of 2000 included convictions for assault with a weapon, uttering threats to cause bodily harm, and unlawful confinement or imprisonment. That resulted in a jail sentence of 30 months plus a firearms prohibition for a mandatory ten years. [ 36 ] In 2003, arising out of a charge from 2001, the Offender was convicted for possession of a controlled substance for which he received a jail sentence of three days.

In October 2008, he was sentenced with respect to an offence occurring on the 8th of October 2008, and that was possession for the purposes of trafficking, for which he received a jail sentence of seven months, which ran consecutively to a separate offence; he was also placed on a probation order for two years. [ 37 ] On the same day, he was sentenced to eight months for a break and enter and committing an indictable offence, for which he received a jail sentence of eight months that was running on a consecutive basis to the previous conviction I just mentioned.

Then in June of 2010, he was charged with a theft over $5,000.

That matter was dealt with, with what appears to be a conditional sentence for a period of one year. [ 38 ] So far as I understand, the Offender in this case does not have close ties with any domestic partner or children. [ 39 ] The Gladue report indicates that with respect to the various criminal offences, that the Offender self-reported that his criminal involvement arose out of unaddressed childhood emotional traumas, addictions, poor decision-making and ongoing involvement with others who were engaged in substance abuse and criminal activity. [ 40 ] Although it is not clear as to the actual timing, but certainly since his time spent at VisionQuest and during the subsequent periods of incarceration, it is clear that the Offender has started to take some measures in order to deal with his drug addiction issue.

He reports to the author of the Gladue report that he no longer feels any cravings for opiates or other drugs, and has a post-release planning strategy of continuing to be involved with counselling sessions, including while in custody with the institutional aboriginal cultural liaison and addictions and mental health counsellors at the Surrey Pretrial Centre. [ 41 ] The Gladue considerations are summarized on the eighth page of the Gladue report. It states in part as follows: First that the Offender is a 42-year-old Ojibway First Nations man.

Second, that he is an aboriginal offender with a serious criminal record which requires a consideration of available rehabilitation and reintegration factors. Third, that he has expressed a willingness to address the underlying factors that contribute to the matters before the court by seeking therapeutic support as part of his institutional post-release planning, and which he has done while serving time at the Surrey Pretrial Centre. [ 42 ] A number of adverse factors that affect aboriginals in general are present in this Offender's personal life, and they include the following.

First, familial dislocation fragmentation and breakdown, noting specifically that at age four, the Offender's father abandoned the family. This resulted in him reporting emotional trauma, feelings of lack of self-worth, and later a pattern of compensation and self- medication through substance use. Second, an early introduction to and subsequent chronic personal history of substance abuse. Third, his childhood poverty and general lack of stability in the home. Fourth is a lack of positive parental role models and mentoring. Fifth is criminal involvement and incarceration.

Sixth is alienation from his indigenous family and (aboriginal) community of origin. Seventh is dislocation from his aboriginal community, loneliness and community fragmentation. CASE AUTHORITIES

Case Authorities Submitted and Relied Upon by Crown [ 43 ] Crown has referred this court to a number of authorities. They are as follows:

(1) R. v. Bernier , 2003 BCCA 134 ;

(2) R. v. Chudley , 2016 BCCA 90 ;

(3) R. v. Soderstrom ; 2016 BCSC 303 ;

(4) R. v. Leggo , 2003 BCCA 392 . Case Authorities Submitted and Relied Upon by Defence

(1) R. v. Eakins , 2016 BCCA 194 ;

(2) R. v. Scott , 2013 BCCA 397 . [ 44 ] I have read each of these cases. I have considered them in coming to a determination of the sentence. I may not necessarily refer to each of these cases but the principles outlined in them and the guidance that they provide with respect to a fit sentence in this case have been taken into account. I have also considered and referred to other cases that I have noted in these reasons. POSITION OF CROWN IN SENTENCING OF THE OFFENDER [ 45 ] As noted above, Crown is seeking a custodial sentence in the range of five to seven years.

Crown emphasizes that the factors of deterrence and denunciation for these types of offences and in these circumstances are necessary and submits that there must be less emphasis on rehabilitation. [ 46 ] The sentencing range outlined by Crown is supported by a number of the decisions cited by Crown. R. v. Bernier is a case in which our Court of Appeal was dealing with what was described as a home invasion and the accused was a 21 year old aboriginal offender.

The sentence in that case that was being appealed, following a trial was a 14-year sentence for a break and enter, six years concurrent for a robbery with a firearm, four years concurrent for assault with a weapon and one year concurrent for a possession of stolen property charge. The sentencing judge emphasised necessary deterrence beyond the range of four to nine years for home invasion. The Court of Appeal allowed the appeal, noting that the Criminal Code does not speak of home invasion as a specific crime.

However criminal law has long considered that breaking and entering an occupied house to be more heinous than break and entering an unoccupied dwelling. [ 47 ] The court noted that the range of sentences that may be appropriate does not prevent making of a sentence or the rendering of a sentence that is outside of that particular usual range, especially where there are reasons for deterrence, denunciation or the gravity of the offence is warranted, nor does it preclude a lesser sentence if warranted by special circumstances.

Ranges were merely suggestions and not rules. [ 48 ] The court in Bernier went on to determine that the appropriate sentence for the offender in that case was a six-year sentence and that was imposed in substitution for the original trial decision. [ 49 ] The second decision referred to by Crown is R. v. Chudley . This is a very recent decision of our Court of Appeal. The decision in Chudley was an appeal from a ten-year sentence imposed following convictions for breaking and entering with intent to commit robbery, forcible confinement, and being a party to armed robbery and assault with a weapon.

The factual situation outlined by the court in that case points to a very serious home invasion, with some of the hallmarks of the home invasion in the matter presently before me; however, I would say on balance the circumstances in Chudley appear to be much more violent and serious in their nature. The Court of Appeal upheld the ten-year sentence that was imposed upon Mr.

Chudley and special mention is made of the criminal record and a lack of remorse which was not considered an aggravating factor, but eliminated any mitigating factor to be taken into account. [ 50 ] The Chudley case is useful because of the court's review of the general sentencing principles applicable to home invasion cases. This is found at paragraphs 22 to 27. [ 51 ] In particular, commencing at paragraph 22, the following passages are apposite to the matter before me: [22] There is no single offence of "home invasion".

Instead, the term is used as a shorthand expression describing a combination of offences involving breaking and entering a dwelling with the intent to commit a robbery, with knowledge or recklessness as to whether the dwelling is occupied. They also often involve the confinement, terrorizing or assault of the occupants: Bernier at paras. 81, 97 .

This Court has held that caution is required in suggesting a general range of sentences for home invasions because the term lacks precision and the combination of crimes changed in each individual case will vary: Bernier at paras. 37, 81-82 . [23] That being said, s. 348.1 of the Criminal Code deems a home invasion to be an aggravating circumstance for certain offence in relation to a dwelling. It reads: If a person is convicted of an offence under

section 98 [break and enter during which a firearm is stolen] or 98.1 [robbery during which a firearm is stolen], subsection 279(2) [unlawful confinement] or sections 343 [robbery], 346 [extortion] or 348 [break and enter with

intent] in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance thefact 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. [24] Further, this Court has recognized several sentencing principles that are normally engaged in home invasion type cases. First, inR. v. Vickers, 2007 BCCA 554, the Court held that deterrence and denunciation are the primary factors in sentencing for violent crimes,especially when these crimes violate the safety and security of a person's home: para. 12.

As Madam Justice Saunders observed in R. v.Meigs, 2007 BCCA 394 at para. 25: ... it is a grave offence to enter another person's home without permission, and graver to enter the home and violate the occupant. Thecourts must and do impose stern sanctions for such crimes -- [25] Second, with respect to rehabilitation, this Court in Vickers stated that while it cannot be overlooked, it is of secondaryimportance.

This is particularly true when there is no indication that the offender is a good candidate for rehabilitation or when he or shehas demonstrated a history of violence: Vickers at paras. 13, 15. [26] Third, the "step principle" - the idea that sentences should only be increased in moderate steps to avoid an adverse impact on theoffender's chances of rehabilitation - is generally not helpful when the dominant sentencing factor is protection of the public: Vickers atpara.16. Also, the "step principle" generally only applies when rehabilitation is a significant sentencing consideration: R. v.

McCallum,2004 BCCA 341 at para. 10 [27] Fourth, higher sentences are appropriate when serious injuries are inflicted: Vickers at para. 19.

In A.J.C. at para. 42, then ChiefJustice Finch stated that a 14 or 15 year sentence may be appropriate in "the most aggravated circumstances where a 'home invasion'involves not only a break and enter to commit robbery, the terrorizing and confinement of victims, and the use of weapons to achievethese objectives, but also the infliction of serious injuries, sexual assault or death." [52] In Chudley , unlike the Bernier case, the court was not dealing with an aboriginal offender. In the Chudley case, the defencesubmission was made that Bernier should not be distinguished on the basis of Mr.

Bernier's aboriginal heritage claiming that aboriginalstatus of an offender becomes "virtually irrelevant" in the context of serious violent offences.[See paragraph 34]. [53] That argument was specifically rejected in Chudley at paragraph 35, where the court says: I would reject this argument. In R. v. Ipeelee, 2012 SCC 13, the Supreme Court observed that "numerous courts" had erroneouslyinterpreted passages from R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 and Wells as an indication that the Gladueprinciples do not apply to serious offences: Ipeelee at para. 84.

The Court affirmed that an "application of the Gladue principles isrequired in every case involving an Aboriginal offender": Ipeelee at para. 87. [54] The Crown also relied on R. v. Soderstrom. In that case, Justice Joyce of the Supreme Court held that a sentence forMr. Soderstrom to a total of seven years' imprisonment was a fit sentence, and an eight year sentence for Mr. Vidal was appropriatebased on their respective circumstances and their levels of participation in the home invasion offences that took place in that matter. [55] The final decision to be relied upon by Crown is R. v. Leggo. In that case, Mr.

Leggo was sentenced to seven and a half yearsfor break and enter and robbery, five years concurrent for unlawful confinement, eight months concurrent for possession of marihuanaand cocaine, and one year consecutive for using a firearm during a robbery. The total sentence was eight and a half years. Mr. Leggoappealed.

The global sentence was upheld by the Court of Appeal to be a fit sentence in all the circumstances of the offence and theoffender. [56] Accordingly, the Crown says that on these circumstances that given the aggravating and mitigating circumstances that this is acase that falls within the range as suggested and that notwithstanding the fact that the Offender in this case is of aboriginal heritage andthat Gladue factors are in play, there must be due consideration given to deterrence and denunciation.

Accordingly a sentence within therange of five to seven years that has been proposed by Crown is sought. [57] Crown is also seeking a number of ancillary orders which, as I understand it, these are not necessarily opposed by defence inthis particular situation. DEFENCE POSITION ON SENTENCING OF THEOFFENDER [58] In this case, defence says that the appropriate range that they have suggested is in fact proportionate because it is within therange which the co-accused Mr. Crisp and Mr. Hagg received.

The suggestion is that those sentences should at least establish a suitablerange to be looked at for sentencing of the Offender in this case. [59] The defence says that the parity principle is met by a sentence in that particular range.

Consideration of an early plea as amitigating factor, that may have been a consideration for each of the co-accused Crisp and Hagg, while not present in this case, certainlycan be dealt with by this court’s consideration of the various Gladue factors that apply to the Offender and that have been outlined above. [60] Accordingly, in that context the decisions that have been relied upon in this particular case point to a lower range than is beingsuggested by Crown. See in particular R. v. Eakins where a two year global sentence for participation in a home invasion was held not tobe demonstrably unfit.

In fact it is pointed out that much of the Offender’s incarceration time in this case has served has been on

remand. He has taken active steps to the extent that he can to get the necessary treatment. However, again not only are the Gladue factors in play, but we are dealing with an accused person, the Offender in this case, who has fallen within the grips of opiate addiction and that has had a particularly negative consequence on his life. [ 61 ] It is pointed out in the Gladue report that the Offender reports that he is entitled to a very substantial refund from federal taxes; this says defence is as an indication of the fact that Offender can serve and has in the past served a productive life.

Accordingly, I am being asked to accede to the defence position for a much lesser sentence, within a suggested range of between two and three years of custodial time, less credit for time served, being mindful of the various cases that have considered the necessity of looking at individualized sentences rather than depending on what a range of sentences may look like for any particular offence. [ See R. v. Scott paragraphs 38 to 41] PURPOSES, OBJECTIVES AND PRINCIPLES OF SENTENCING [ 62 ] The purpose and principles of sentencing are found at ss. 718 - 718.2 of the Criminal Code .

These sections codify the purposes, objectives, and principles of sentencing and plainly state the intention and rationale for imposing particular sentences. [ 63 ]

Section 718 of the Code outlines the fundamental purpose of sentencing in the following terms as: 718 The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 or to the community. [ 64 ]

Section 718.1 directs that a sentence must be proportionate to the gravity of the offence and the degree of the offender's responsibility. [ 65 ]

Section 718.2, under the heading "other sentencing principles", states in part that: 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, ... (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, ... 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 and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. AGGRAVATING CIRCUMSTANCES [ 66 ] In my view, the aggravating circumstances in this case are as follows. [ 67 ] First of all, the statutory aggravating circumstances set out in s. 348.1 (

a) and (b). [ 68 ] Second, the planned nature of this offence and the method in which it was implemented, namely by barging into a dwelling house in the early time of the morning when it was pretty clear that there would be a maximum amount of fear instilled into the

occupants. [ 69 ] Third, the violence that accompanied the intrusion. [ 70 ] Fourth, the fact that each of the individuals who were the perpetrators, and specifically the Offender, apparently came prepared for violence and with weapons in their possession. [ 71 ] Fifth, that the Offender in this case had in his possession what appeared to be either a replica, a toy or possibly an actually real handgun. [ 72 ] Sixth, the fact that there is a previous record for the Offender in this case with similar type of offences, although somewhat dated in nature.

MITIGATING CIRCUMSTANCES [ 73 ] I have received a direct submission from the Offender in this case expressing remorse and regret for the fact that not only has he negatively impacted on other individuals by his participation in these offences, but he has also very negatively impacted his own family members and specifically his mother, to whom he acknowledges considerable disappointment in his own behaviour and how it has impacted on her. [ 74 ] Second, I am mindful of the Gladue factors that are in play here. Those have to be taken into account and into consideration.

Although they are not specifically mitigating in nature having regard to the circumstances of these offences, they certainly are active mitigating factors for consideration in sentencing. [ 75 ] Third is the apparent change of direction of the Offender in this case. He has indicated a commitment to curing himself to the extent that he can or managing to control his addictions which have led him to a life of crime, and which have detracted from his ability to maintain good employment in the skilled trade with which he has equipped himself.

His addiction has eroded what I consider to be an historical mitigating factor for him, namely that he has been able to maintain good employment for significant periods of time, that is until his addiction and criminal lifestyle overtook him. ANALYSIS [ 76 ] Our Court of Appeal has set out what I consider to be an appropriate sentencing range with respect to these types of offences. The Crown, in my view, is correct with respect to an appropriate range.

However, as the Court of Appeal has indicated, in certain circumstances it is open to trial judges and sentencing judges to deviate from that range having regard to special circumstances. [ 77 ] Special circumstances that I accept in this case are the aboriginal history of the Offender, his form of disenfranchisement, namely: his lack of communication and contact with his aboriginal community, and his lack of knowledge about his aboriginal background.

I agree with defence's submission, that this has led to a significant disruption in his life which is clearly laid out in the Gladue report. [ 78 ] However, weighed against that, of course, is the necessity that there be denunciation and adequate deterrence, both specific and general.

In this situation, I am of the view that the Offender's role in the home invasion and the fact that he has been convicted of two additional serious offences must be taken into account. [ 79 ] I am of the belief that he does seek to obtain rehabilitation but, in order to obtain rehabilitation, he has to make both a commitment to himself as well as to his family and others who are here to support him to buttress words with actions.

CONCLUSION AND SENTENCING [ 80 ] In that regard, having taken into account all of the circumstances of this case, and having taken into account the purposes, principles, and objectives of sentencing and the fundamental principles of sentencing and the other relevant sentencing principles noted above, including the Gladue factor, I am of a view that a relatively lengthy custodial sentence is appropriate. [ 81 ] I am going to get Mr. Loucks to stand, please. [ 82 ] Having regard to all of the circumstances, Mr.

Loucks, I will be sentencing you in the following fashion. [ 83 ] With respect to Count 2, being an offence contrary to s. 348(1) (

b) of the Criminal Code , the sentence I am going to impose upon you is 48 months less credit of 25.8 months, such that the resulting custodial time you will serve will be 22.2 months. [ 84 ] On Count 3, being an offence contrary to s. 379(2), the sentence will be 36 months, to be served concurrently, less credit of 22.8 months, so there is concurrent time equalling 10.2 months. [ 85 ] With respect to Count 4, the assault of Richard Payne, the sentence will be 12 months, to be served concurrently, less time served, and so I think that that will be recorded as one day. [ 86 ] With respect to the additional orders being sought by Crown in this case, I will make the ancillary order.

There will be a DNA order under s. 487.051. There will be a mandatory -- is it a mandatory order?

[ 87 ] MR. BARBER:

Section 109 is a minimum 10 years, and we are seeking a lifetime ban at this point, Your Honour. [ 88 ] THE COURT: So it will be -- it is mandatory, is that correct? [ 89 ] MR. BARBER: It is, yes. [ 90 ] THE CLERK: Is that on all counts or just two -- [ 91 ] THE COURT: I am going to attach it to the first and second convictions, which I believe to be Count 2 -- sorry, yes, Count 2 and to Count 3. So it will be a mandatory order under s. 109 for firearms and weapons and the other items set out therein for the Offender's lifetime. [ 92 ] That leaves the question of the victim fine surcharge. Mr.

Munro, any submissions on that? [ 93 ] MR. MUNRO: No, not given what I have said about employment. He will be entitled to the statutory 60 days following his release. [ 94 ] THE COURT: I will make that order. He will have the maximum permitted under the regulation, which I think is 60 days or two months in order to pay the victim fine surcharge. [ 95 ] Mr. Loucks, you have made a very direct plea to the court in terms of saying what you want to do to get back into the life of your family and to rehabilitate yourself and to get back to earning a very good living, which someone with your skill set can earn.

The economy may be down, but you have got the skill set, and I wish you well. [ 96 ] I will make a recommendation, if it is of any value to Mr. Loucks, if it is possible, he could be considered by the Guthrie Program, but that will be dependent upon dealing with other matters which may be before the court -- [ 97 ] MR. BARBER: Your Honour, if I might -- because probation is available, the Crown would seek an order of no contact, at least with Mr. Crisp. I would also suggest -- [ 98 ] THE COURT: Yes. Okay. I am going to impose -- in addition to that custodial sentence, I was going to impose some conditions.

I am going to add some probation conditions the availability of which was discussed during submissions; but I am going to keep them fairly straightforward. [ 99 ] I am going to include a counselling provision; there will be a probation order for a period of 18 months.

The conditions will be Number 200: you shall keep the peace and be of good behaviour, you shall appear before the court when required to do so by the court, you shall notify the court or your 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. [ 100 ] Number 202: within 72 hours after completion of your jail sentence, you shall report in person to the probation office nearest the place of your release from custody within -- I think I said 72 hours, and after that you shall report as directed. [ 101 ] Number 205: -- when first reporting to the probation officer, you shall inform him or her of your residential address and telephone number. [ 102 ] Number 206: -- you shall not change your address or telephone number without first obtaining the written consent of the probation officer. [ 103 ] Number 208: -- you shall obey all rules and regulations of your residence. [ 104 ] Number 219: -- you shall have no communication or contact, directly or indirectly, with Colin Crisp. [ 105 ] Number 223: -- you shall not attend at any place which you know to be the residence, school, or workplace of Colin Crisp. [ 106 ] And Number 251: -- you shall attend, participate in, and successfully complete any assessment, counselling or program as directed by the probation officer which may include alcohol or drug abuse -- be a full-time attendance program for alcohol or drug abuse. [ 107 ] THE CLERK: Your Honour, what number was that you were referring to? [ 108 ] THE COURT: 251 -- I'm sorry -- 251. [ 109 ] THE CLERK: Okay. [ 110 ] THE COURT: -- full-time attendance for alcohol or drug abuse, and you shall comply with all rules and regulations of any such assessment, counselling, or program.

I am hopeful that that will open further doors for Mr. Loucks in terms of getting his counselling and continuing with his program for dealing with his drug addiction issues. [ 111 ] MR. MUNRO: Thank you, Your Honour. [ 112 ] THE COURT: Anything further? Standing down. [REASONS FOR SENTENCE CONCLUDED]