R. v. Hogan Date:, 2015 BCPC 351

Citation: R. v. Hogan Date: 20151112 2015 BCPC 0351 File No: 78443-3C Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HARVEY PETER HOGAN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE ALEXANDER Counsel for the Crown: L. Yip Counsel for the Accused: J. Allingham Place of Hearing: New Westminster , B.C. Date of Hearing: November 12, 2015 Date of Judgment: November 12, 2015

[ 1 ] THE COURT : The defendant, Harvey Peter Hogan, has entered guilty pleas on Counts 1, 2, 4 and 11 on Information number 78443-C3. Crown has proceeded by indictment. [ 2 ] The pleas are as follows: Count 1, B and E to the 22nd Street Skytrain Station on March 15th, 2015, contrary to s. 348(1) (

a) of the Criminal Code ; Count 2, B and E to Braid Street Skytrain Station on March 3rd, 2015, contrary to s. 348(1)(

a) of the Criminal Code; Count 4, theft of money from an ATM, the property of DC Bank, of a value in excess of $5,000 on March 1st, 2015, contrary to s. 334 (

a) of the Criminal Code; Count 11, mischief by wilfully damaging a ticket vending machine, property of BC Transit, contrary to s. 430 of the Criminal Code. [ 3 ] This matter is before the court for sentencing.

It was adjourned to today's date to allow me to reflect on the authorities cited by counsel, and on their respective submissions. [ 4 ] The defendant himself has made an impassioned plea for help as opposed to further jail time. [ 5 ] The Crown seeks a federal sentence in the range of three to four years, given the defendant's record and the nature of the offences. [ 6 ] Defence seeks provincial time; two years less a day with the usual credit for time served, eight months, which would be the equivalent of 12 months at 1.5 as set by the Supreme Court of Canada in R. v. Summers .

The defence proposes a period of probation to monitor the defendant in the community and to assist him in his rehabilitation. [ 7 ] The circumstances can be summarized as follows: In the pre-dawn hours on March 1st, 2015, the defendant and another, broke into the 22nd Street Skytrain Station at approximately 3:42 a.m. and then broke into an ATM at the station using electric tools and a large pry bar. The sum of $18,340 was stolen from the ATM and the unit sustained damage in the amount of $2,794 from the break-in. The incident was captured on video surveillance.

The defendant and the accomplice fled the scene at 4:27 a.m. The intrusion and the damage was not discovered until around 7:00 a.m. when the station opened for business. [ 8 ] Two days later, on March 3rd, 2015, the defendant broke into the Braid Street Skytrain Station in the early morning hours. Surveillance cameras activated when an alarm sounded. The video captured the defendant, this time alone, using a power tool on a ticket vending machine.

He was unable to gain access to the inside of the machine, but his attempts caused damage to it. [ 9 ] The police attended at approximately 4:34 a.m. in response to the alarm, and they eventually located the defendant inside the station. The defendant tried to flee, running down the Skytrain track in the direction of Lougheed Station. The defendant was ultimately captured 300 metres along the guideway. He was not able to run any further. He was taken to the Royal Columbian Hospital for observation, apparently due to chest pains.

The Skytrain system at Braid was shut down for approximately 45 minutes as a result of the incident and to the significant inconvenience of hundreds of public commuters. [ 10 ] A vehicle registered in the name of the defendant's fiancée was parked near the Braid Station. A large metal crowbar, grinder, tools and gloves were located in the vehicle. The same vehicle had been reported outside the 22nd Street Skytrain Station two days earlier. After obtaining a search warrant, the police located a child's puzzle box inside the vehicle containing $6,100 in $20 bills.

The defendant also had 45 $20 bills in his wallet which the police noticed while the defendant was at the hospital. [ 11 ] The defendant is now 50 years old. He has a record which begins in 1984. That year he was convicted of five separate counts of break and enter, contrary to what was then s. 306(1) of the Criminal Code , and one count of theft under, contrary to then s. 294 (

b) of the Criminal Code. [ 12 ] There is a gap in the defendant's record until 1997 when criminal activity recommenced. Some of those offences are not related to matters before this court but are reflective of possible underlying issues.

July 19th, 1997, which was ultimately dealt with in July of 2002, a conviction for failure or refusal to provide a sample, contrary to s. 254(5) of the Criminal Code , and trafficking in a controlled substance on April 19th, 2000 where the sentence was imposed in March 2002. [ 13 ] Drug use has continued to be a problem for the defendant, and counsel says he was under the influence of illicit substances at the time of these offences.

He has been clean, apparently, since he has been in custody. [ 14 ] There is a further gap until 2007 when the defendant was then convicted of eight counts of break and enter and two counts of possession of stolen property over $5,000 for a spree of offences between September and December in 2006.

He was sentenced to jail, 20 months, two months time served and two years probation. [ 15 ] He has further convictions in 2008 including dangerous operation of a motor vehicle; 2009, possession of stolen property over $5,000, two counts of that; 2012, possession of stolen property over $5,000, flight from a peace officer and mischief under $5,000. [ 16 ] The Crown maintains that the appropriate range of sentence in this matter is a sentence in the range of three to four years in custody. The Crown submits that the primary focus should be deterrence, denunciation and protection of the public.

It relies on the following authorities in support of this position: R. v. Robinson, R. v. Kelter, R. v. Kendall, R. v. Herceg , R. v. Campaner, R. v. Mozylisky, R. v. Dieter and R. v. Wakeham . [ 17 ] The defence maintains that the Crown's position is too harsh, given this defendant's antecedents. Defence counsel submits that the defendant is a product of the foster care system and a victim of abuse during his incarceration at Oakalla when he was only 17.

He submits that the defendant is only now coming to terms with his past and, in his own final statement to the court, the defendant seeks assistance and a focus on rehabilitation in order to move forward. He says he has the support of his fiancée, a woman with a similar background who understands his challenges. She is prepared to stand by him and has written a letter of support which has been filed in these proceedings.

[ 18 ] The defence relies on the following authorities in support of its position: R. v. Kennedy, R. v. Gould, R. v. Singh, R. v. Matychuk and R. v. Powis . [ 19 ] I have read all of the authorities provided by counsel, and they are helpful and instructive. [ 20 ] The Crown has proceeded by indictment and the maximum penalty prescribed by the Criminal Code for break and enter other than a dwelling house is ten years, and ten years for theft over. As I have said, I have read and considered all of the authorities, and though none are on all fours with this case, they do offer useful guidance.

These are serious offences and the cases indicate a range from provincial time and probation to a federal penitentiary sentence. [ 21 ] The principles of sentencing are set out in s. 718 to 718.2 of the Criminal Code . I do not propose to read them in the record.

There are broad statements of purpose, proportionality and other principles that are set out, and I am alive to the principle of restraint in considering all other options before incarceration. [ 22 ] The mitigating factors in this case include the defendant's guilty plea, his remorse, his insight into his need to address the underlying basis for his offending through counselling and other programming. It is also noteworthy that he has no record for breach of court-imposed conditions. [ 23 ] Aggravating factors include the defendant's significant record for identical offences; 13 past break and enters.

It is noteworthy that he was released from a federal sentence for related offences within two years of the matter presently before the court. The sophistication and planning involved in these matters is apparent and is obvious, and there is an apparent indifference to the danger to first responders and the inconvenience to the greater public. [ 24 ] I do not accept that these were spontaneous crimes.

It requires planning to break into a public transit station in the middle of the night with heavy power tools and electrical cords and an acquired familiarity with the physical layout of the premises to simply know where to plug in the tools that were to be used, and also how to access internal parts of the station; for example, like the attendant's room where a window was removed. The defendant also attempted to conceal his activity from surveillance cameras, putting a sign in front of the ATM machine as he attempted to break it open in an attempt to obstruct any view.

He wore a dark hoody throughout, making it difficult to identify him on camera or otherwise. The second break and enter was perpetrated by the defendant alone, using the same method as the one from two nights before when $18,000, in round numbers, was successfully removed from the ATM at the 22nd Street Station.

He wanted to try to do it alone, and I find that the defendant was motivated by greed, buoyed by the perceived success of two days previous. [ 25 ] The actions of the defendant at the Braid Street Station caused risk to the responding police officers as the defendant fled down the track toward the Lougheed Station.

The ultimate shut-down of the Skytrain track caused inconvenience to the general public, commuters on their way to work or simply carrying out their day-to-day activities. [ 26 ] The primary principles to be addressed in this case, and considering the case law, are denunciation, deterrence and protection of the public.

Rehabilitation of the defendant is still an element to consider given his plea for help in wrestling with his underlying demons. [ 27 ] Given the defendant's record and his degree of moral culpability in the commission of two break and enters within 48 hours on public property, the danger to responding peace officers and the inconvenience to the public, a sentence in the range sought by the defence will not adequately address the principles of sentencing set out above.

The range sought by the Crown in the circumstances of this case and of this defendant, are more appropriate. [ 28 ] I am mindful of the time that the defendant has spent in custody prior to sentencing, and I have considered that time in crafting this sentence. (See R. v. Mizen, decision of the British Columbia Court of Appeal.) I am equally mindful of his difficult background, his challenges with addiction and his inability to deal with abuses while suffered in foster care.

I agree that he needs assistance to address these underlying issues. [ 29 ] I sentence the defendant to two years in custody, concurrent on Counts 1, 2 and 4, and five months concurrent on Count 11, followed by three years' probation. [ 30 ] The terms of that probation will be as follows: To keep the peace and be of good behaviour; to report within 24 hours of release from custody to a probation officer, and thereafter as and when directed; to reside where directed; to attend any counselling as may be directed by the probation officer, including any assessments to assist the defendant with his rehabilitation; not to possess any tools outside his place of residence or place of lawful employment; not to possess or consume substances listed in the Controlled Drugs and Substances Act , save and except as authorized by law. [ 31 ] There will be a forfeiture of the puzzle box and the money inside that was seized. [ 32 ] Are there any other terms that I am missing counsel? [ 33 ] MR.

YIP: Also the $900 in the wallet that was seized by the police as well in $20 bills. [ 34 ] THE COURT: Yes, that will also be forfeited. [ 35 ] MR. YIP: And with respect to a DNA order with respect to -- [ 36 ] THE COURT: Is there already one that has been done? [ 37 ] MR. ALLINGHAM: Yes, Your Honour. I spoke to Mr. Hogan, he said it's already been taken, so there's no privacy issue involved in this case.

[ 38 ] MR. YIP: I know that they -- in the past where ones have been done, but certainly in terms of, in case -- and we don't have a notation that -- [ 39 ] THE COURT: All right. I will order another DNA sample. It is not an intrusive procedure. [ 40 ] MR. ALLINGHAM: No. [ 41 ] MR. YIP: And then in terms of the victim fine surcharge, custody is being implemented, so in terms of -- [ 42 ] THE COURT: Payable forthwith. [ 43 ] MR. ALLINGHAM: Thank you. [ 44 ] THE COURT: In default one day. [ 45 ] MR. ALLINGHAM: Yes. Thank you, Your Honour. [ 46 ] MR.

YIP: And the -- just for certainty with respect to -- I know that my friend had noted that we're, I guess, exactly eight months and nine days. [ 47 ] THE COURT: I am not giving credit in that way, and I would suggest that you look at a Supreme Court of Canada decision call R. v. Mathieu and another decision of our Court of Appeal called R. v. Mizen . So that time, I have taken it into account, it is not forming part of this sentence, and that is so that he has the benefit of a probation order which is to assist him. [ 48 ] MR. ALLINGHAM: Thank you. [ 49 ] MR. YIP: Thank you.

The Crown enters a stay of proceeding with respect to the remaining counts on the indictment. (REASONS FOR SENTENCE CONCLUDED)