R. v. Marks Date:, 2016 BCPC 230

Citation: R. v. Marks Date: 20160713 2016 BCPC 230 File No: 79857-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. LORREN WILSON LEWIS MARKS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D.R. GARDNER Counsel for the Crown: A. Read Counsel for the Accused: D.H. Silverman Place of Hearing: Abbotsford , B.C. Date of Hearing: July 8, 2016 Date of Judgment: July 13, 2016

[ 1 ] THE COURT: The accused, Lorren Marks, has pleaded guilty to Count 1 on the indictment 79857-1, in that he stole cigarettes from two individuals while armed with an imitation weapon, contrary to s. 344(1) (

b) of the Criminal Code . He was 18 at the time of the offence. [ 2 ] The facts are that on September 9, 2013, the owner of the Petro-Can gas station, along with his son, were present around 10:00 p.m. The accused entered and says, "Give me your money." He pulls out what appears to be a black handgun which turned out to be an imitation. The owner's son, Riaz Qureshi, told him all the money was in the deposit safe. The accused then states, "Give me the cigarettes. Hurry up. Hurry up. I'm going to kill you." One of the victims put the cigarettes in some bags.

The accused gets into a vehicle and drives away. [ 3 ] A civilian who was nearby observed a partial licence plate number which was associated to an address in Langley. Shortly after that, the police attend that address and speak to the accused and explain why they were there. Mr. Marks asked, "What if it wasn't a real gun?" The police answered that question and then quickly after that, Mr. Marks confessed to being involved in the robbery, although he made it clear that it was an imitation gun. [ 4 ] The accused has entered an early guilty plea.

This was his intention from the outset, but he was originally represented by G. Jack Harris who tragically passed away suddenly, causing the accused to retain other counsel. So, I accept his explanation that he intended to plead guilty from the outset, even though this matter is just less than three years old. [ 5 ] The Crown and defence have taken markedly different positions on sentencing. The Crown is seeking 18 months imprisonment, to be followed by a period of probation which would include counselling or, in the alternative, an intermittent sentence of 90 days. [ 6 ] The Crown has cited R. v.

Brogan , a 1999 decision of our Court of Appeal. In Brogan , the accused, while wearing a stocking mask and carrying a pellet gun, robbed the lone employee of an all-night gas station in Victoria. Brogan brandished the gun and demanded money. The employee gave him $200 from the till. Brogan and his accomplice then drove to a nearby Chevron station where Brogan, still wearing a mask and carrying a pellet gun, entered and demanded money from the cashier who initially thought he was joking. He struggled with the till.

The accused then grabbed hold of a female customer, placed the weapon against her head and told the cashier if he did not have the money in five seconds, he would kill the customer. He began to count down from five. The customer was terrified and pleaded with him to let her go, even offering to take money out of her own account at a nearby ATM. The cash registered opened as the appellant reached the count of one. He took a few hundred dollars and fled. He was apprehended shortly afterward. The trial judge imposed a global sentence of eight years.

Brogan was 30 at the time. [ 7 ] Crown acknowledged here that the facts are far more aggravated in Brogan , but submits the sentencing range for cases of this kind is between two and nine years. [ 8 ] The court must consider the age of the offender; his previous criminal experience; the level of violence; the number of offences committed; the level of premeditation; whether the perpetrator was disguised or not; the type of weapon he used and how it was used; the possibility of rehabilitation; the requirement of deterrence in a particular community, all are factors which distinguish one fact pattern from another.

In Brogan , the court upheld the eight year global sentence. [ 9 ] The accused's counsel, Mr. Silverman, has pointed to the mitigating factors in this case. First of all, there was a very early admission of guilt on the part of the accused. He has written a letter of apology to the victims. At the age of 13, Mr. Marks was diagnosed with a medical condition which caused him to lose all his hair at the age of 15. He was described as having dark hair by one of the Crown witnesses. As I said, the video equipment was not working. Mr.

Silverman commented on that, in that there may very well have been a triable issue, perhaps even leading to the acquittal of the accused, but he has chosen to plead guilty. As a result of his medical condition, I am told that he was bullied at school to the point where he withdrew from school and then became home schooled. [ 10 ] He eventually became involved in selling drugs. When he tried to get out of that business, the drug dealers threatened him and his family if he did not rob the store and get some money to pay them. After the offence they continued to harass him and his family members.

He is still receiving threats via text messages. [ 11 ] He has completed his high school education. He has post-secondary training and his ultimate goal is to become a heavy- equipment operator. [ 12 ] He has also received counselling since committing this offence and he is involved in a group that builds or renovates homes for people in difficult financial circumstances. [ 13 ] The defence has suggested that there are exceptional circumstances that would allow the court to impose a sentence outside the usual range for robbery. [ 14 ] I've been referred to a number of cases. In R. v.

Chand and Lal , a Supreme Court decision dated January of 2015, after committing a robbery, Mr. Chand received 18 months probation and Mr. Lal received 90 days intermittent. [ 15 ] I have also been referred to the case of R. v. Christy Mariash , a decision of Madam Justice Fitzpatrick in the Supreme Court of British Columbia dated February 18, 2016. In that case, the accused pled guilty to one count of robbery contrary to s. 344 of the Criminal Code . The circumstances are that the victim was at his home. The accused knocked on his front door and asked to use the phone, claiming car trouble.

Shortly thereafter two men forced their way into Mr. Khan's home. Ms. Mariash also entered Mr. Khan's home. She did not participate in confining the victim or threatening him with violence, but she did help herself to a beer and assisted the two men in gathering various stolen items. [ 16 ] She was 34 at the time of sentencing. The most significant aspect of her personal history is that she had a longstanding

substance abuse problem, and after being arrested and spending 16 days in jail, she was released into a residential treatment centre whereshe remained drug free for ten months. [17] In April 2015, unfortunately she had a relapse and returned to a life of drugs, but the relapse lasted approximately a month and ahalf, until she secured a spot at another treatment centre here in Abbotsford. She stayed there for approximately 40 days, until it wasdetermined that her need for certain treatments arising from her injuries from the kidnapping was not consistent with that home's policy,and she left.

But, she had engaged in an ongoing drug free status and the establishment of a relationship with her children, and the courtpointed to other positive changes in her life. [18] Since August of 2015, she had been employed as a part-time clerk at New Visions Recovery Home where she works from 11:00a.m. to 5:00 p.m., five days a week. [19] Unfortunately, that was not the accused's first contact with the criminal justice system.

The Pre-Sentence report recounts thatthere was an incident in Edmonton, Alberta, in April, 2005, where she failed to attend court when required, resulting in a fine of $150. [20] In addition, and more relevant to the sentencing issues before the trial judge, in November of 2015, she was convicted of arobbery in Edmonton and defence counsel advised that this conviction involved the stealing of a wallet for which she received a nine-month conditional sentence.

The Crown in that case sought a jail sentence of two years less a day, plus time served, and the defenceasked the court to consider a 90-day intermittent jail sentence or a suspended sentence with a number of conditions attached to probation. [21] The mitigating factors that were found by Madam Justice Fitzpatrick in that case were the fact that she had pled guilty and thatshe had cooperated in the proceedings against the two co-accused. She had also made statements of remorse.

The court also citedaggravating factors which included the severity of the consequences of home invasions, and that this type of crime involved a morerigorous response from the courts in terms of the need for denunciation and deterrence. However, this aggravating factor, she said, mustbe tempered to some degree by the fact that Ms. Mariash was not personally involved in the planning of the robbery and violence againstthe victim. She found at paragraph 45: In my view, the circumstances of Ms.

Mariash and this offence are such that the sentencing objectives of denunciation and deterrence areequally balanced against the objective of rehabilitation. [22] She emphasized the accused's efforts at being committed to continuing her efforts to turn her life around. [23] As defence had argued, the difficulty of the court's task in terms of giving heed to such statements is often complicated by thefact that many offenders will attempt to convince the sentencing judge that they are on the road to a drug/crime free lifestyle, and,therefore, should be granted a more lenient sentencing. This was discussed by Mr.

Justice Wood in R. v. Preston, a 1990 decision of theCourt of Appeal, (BC CA), 79 C.R. (3d) 61, which was quoted by the sentencing judge in Cain: There can be few tasks more difficult than that of assessing the sincerity of an offender's stated desire to rehabilitate. Those who offerthe assertion are often masters of deception and manipulation. All available evidence, including personal observations of the individualin question, must be carefully sifted.

Sometimes the opportunity to look at the claimant in the eye will prove the decisive clue. [24] The court went on to say that sentencing is a highly-individualized process; every case brings a different set of circumstancesthat require consideration. She ultimately imposed a 90 day jail sentence to be served on weekends, coupled with a number of terms ofprobation. [25] Against that, I have a Court of Appeal decision where the principles of denunciation and deterrence have been emphasized. InR. v.

Reedel a decision of our Court of Appeal dated November 10, 2015, they referred to the sentencing judge noting the mitigatingfactors present included the guilty plea, the accused's age and the fact he had no criminal record. In her view, however, the aggravatingcircumstances of the robberies, in particular, called for a sentence that emphasized protection of the public.

She noted the fact thatweapons were involved in both offences, although they were carried by the accused's accomplice, that masks were worn which indicateda degree of planning and deliberation, and that the victims were vulnerable young women, working at night in convenience type outletswhich were particularly susceptible to robberies. Further, Mr. Reedel committed both robberies while he was on bail and at large.

In theresult, the sentencing judge felt that the protection of the public in general and specific deterrence required a significant provincialsentence. [26] I have also been referred to the Court of Appeal case in R. v. Carrillo, which was a case involving a trafficking in narcotics. The court noted that in crimes that would normally call for a period of incarceration, if there are exceptional circumstances it is open tothe trial judge to impose a suspended sentence and a period of probation. The facts in Carrillo were, in my view, distinguishable. Hewas 51 years of age. He had no criminal record.

He had immigrated to our country and had two young adults, being his children, that hewas supporting financially and he had made impressive efforts to turn his life around. [27] I note that even though rehabilitation is a very important factor in sentencing, it is not the only factor for the court to consider. [28] As stated in several of the cases, people working at gas stations and/or convenience stores that are open 24 hours a day areinvariably staffed by young people that have just entered the job market and invariably paid at or slightly above the minimum wage andthey are particularly vulnerable in this situation. [29] The accused, in his own mind, when he initially spoke to the police seemed to think there was a major distinction because thefirearm that he brandished was an imitation.

As to my expectation of victims in those circumstances, when somebody points a gun at anindividual, I do not expect that individual to say, "Before I hand over the goods, there is a very important point that I wish to clarify. Areyou able to say whether or not that is a real gun?" No. They did not ask any questions. They did what any reasonable person would doin that circumstance, they handed over the cigarettes. [30] I have considered the facts of this case, the cases that I have been referred to. I have considered the personal circumstances of

the accused being that he had just turned 18 when this offence was committed.

I have considered the relevant case law and the submissions of counsel, and I have concluded that a fit and proper sentence is 12 months incarceration, to be followed by two years of probation. [ 31 ] The terms of the probation are: you will keep the peace and be of good behaviour. [ 32 ] You shall report to a probation officer within 72 hours of your release and, thereafter, as and when directed. [ 33 ] You shall provide a residential address to your probation officer and not change that address without prior written approval of your probation officer. [ 34 ] You shall attend for, participate in, and successfully complete such counselling as directed by your probation officer. [ 35 ] You shall have no contact directly or indirectly with the two named victims and you shall not attend within a 200 metre radius of the service station at -- and perhaps Madam Registrar could provide that address to -- Ms.

Read, you could -- [ 36 ] MS. READ: Yes. [ 37 ] THE COURT: -- supply that address to Madam Registrar. [ 38 ] There is one other item I need to -- Ms. Read, I forgot to double check before I came into court. This requires a firearms -- [ 39 ] MS. READ:

Section 109, a ten-year firearms prohibition, as well as DNA. [ 40 ] THE COURT: There will be a ten-year prohibition under s. 109 of the Criminal Code . You shall not possess any firearm, ammunition or explosive substance for ten years. [ 41 ] I am also going to direct you to provide a sample of your DNA for inclusion into the national DNA databank. [ 42 ] The victim fine surcharge is payable forthwith, in default one day concurrent. [ 43 ] Any other terms that the Crown is seeking on probation? [ 44 ] MS. READ: No, Your Honour. [ 45 ] UNIDENTIFIED SPEAKER: Excuse me.

Can I say something? [ 46 ] THE COURT: No, you cannot. Thank you, counsel. [ 47 ] MS. READ: The Crown will enter a stay of proceedings on Count 2. (REASONS FOR SENTENCE CONCLUDED)