R. v. Weber Date:, 2015 BCPC 431

Citation: R. v. Weber Date: 20150928 2015 BCPC 0431 CA43203 File No: 80546-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHADWICK MARCUS WEBER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE W.G. MacDONALD Counsel for the Crown: R. Gunnell Counsel for the Accused: J. Banks Place of Hearing: Abbotsford , B.C. Dates of Hearing: June 12, July 22, 23, 24, Sept 16, 25, 2015

Date of Sentence: September 28, 2015 [ 1 ] THE COURT : The matter has gone on for a considerable period of time. I am not sure how many days in court but probably 15 or 16. I went over the number of witnesses. On Friday last week, the 25th of September, I rendered a decision in this case and in a written decision gave my reasons and findings of fact in considerable detail.

For that reason, I do not intend to go over those findings of fact in any detail at all today other than to comment on factors which may be aggravating or mitigating circumstances. [ 2 ] The accused was convicted only on the robbery charge and not on the possession of imitation weapon or using a weapon or imitation weapon during the course of the robbery for the reasons which I gave on September 25th so I am dealing only with a robbery today. [ 3 ] The Crown has, and defence, made submissions this afternoon on an appropriate sentence.

The words "home invasion" always end up in cases similar to the fact situation in the case at bar but, as the cases point out by numerous judges, there is really no such offence as a home invasion. It is a term that has been used by the courts to describe robberies basically that take place in a home. Often, but not always, those robberies involve breaking into the residence. The robberies also involve, by definition, violence or threats of violence, and sometimes but not always involve either weapons or injuries or unlawful confinements.

Not all of those elements are present in the case at bar, but some are. [ 4 ] When looking at the facts in this case and how they are either aggravating or mitigating, with respect to the facts at all, there actually are some mitigating facts in the sense that it takes it out of what might be described as a normal home invasion, if there is such a thing.

The facts in all these cases are different and neither the Crown nor the defence was able to put before the court a very similar fact pattern to the case at bar but related fact patterns. [ 5 ] The accused in this particular case, I find and did find, attended that residence for the purpose of looking at or perhaps purchasing marihuana. He took with him, however, an accomplice, if you will, or the "muscle", to assist him.

He said he did that because he is always cautious when doing drug transactions and that is certainly possible but he knew and was involved in the purchase of bear spray, which was taken by the accomplice, McClinton (phonetic), into this residence. One wonders, if his only purpose was going in there to have a look at marihuana, why he would have to take somebody else with him as protection, and why they would have to take bear spray with them.

Having said that, I was unable to conclude on the facts before me that the robbery was premeditated. [ 6 ] Part of the reason why I came to that conclusion was that I found that the accused would be unlikely to know that the marihuana was not just sitting in plants in the basement somewhere, but had actually been packaged up and sitting in the living room, to use the words of defence counsel, "on display" at the time they walked into the residence. That may well have been a surprise. That is at least as likely as not.

That, in my view, is what turned this whatever it was going to be, whether it was a viewing or a purchase, into a robbery because Weber soon realized that the marihuana was there for the taking. All he had to do was take it and that is what he did. He used threats and intimidation to take it. It became a robbery, as that term is defined. [ 7 ] I find on the evidence, and did find, that he threatened to shoot McLean. He said he was not going to hurt Weston but clearly he was intimidating McLean so that McLean would not resist. He told him how the thing was going to go down.

He basically said, "for these reasons" and he gave some reasons which made little sense but for these reasons, basically, "I'm taking your marihuana. You're not going to do anything about it. Don't you dare rat or you'll be killed." He and McClinton then gather up all the marihuana and may have been ready to leave but McLean, thinking that they want more marihuana because they are asking about what else they have, takes the opportunity to try and bolt from the residence and leave the house. He believed that he was going to be either beaten or killed and that is why he left.

He was obviously intimidated, scared. [ 8 ] I find on all of the evidence that Weston was certainly in the same position. She was terrified and, by her own definition, it takes quite a lot to terrify her; she does not scare easily. She commented one time that she could walk down a dark alley in downtown Vancouver and not be frightened because of the lifestyle she lives. She was almost embarrassed by that fact.

Despite that, I have no doubt that she was terrified on this occasion and it was the beating -- I will call it a beating although it was not severe -- of McLean at the front door which causes Weston to sneak away and call 9-1-1. If one listens to the 9-1-1 tape, one can hear activity in the background and Weston is screaming for them to stop and is trying to communicate to the operator on the telephone, again clearly indicative of the fact that she is terrified. [ 9 ] The long-term effects on both McLean and Weston, I have not heard specifically.

No victim impact statements were placed before me but by law I am obliged to consider the victims and the effect on the victims and I have no doubt that at the time they were terrified and in this ongoing process continue at the very least to remain afraid because they were coming in, giving evidence against someone who described himself as the head of the U.N. basically, a gang, and obviously was an intimidating factor, well-known in this area. Weston knew him to be in shooting wars with her old boyfriend. Her old boyfriend, she described as a gangster.

This is a person that they would have every reason in the world to be afraid of, not only at the time that they were being robbed but later, as they were required to attend court and give evidence over a considerable protracted period of time and were cross-examined at length. Nonetheless, they held up to that and gave their evidence and a conviction was ultimately entered. [ 10 ] The Crown, in their submissions on sentence, say that there is no minimum punishment for this offence, that the maximum punishment for robbery is life imprisonment.

The Crown, not surprisingly, is not seeking a life imprisonment sentence in this case but in fact suggest that the range of sentence in the case should be in the six-to-eight-year range and they are asking the court to impose a sentence towards the upper end of that range because of all the aggravating circumstances, namely, a sentence of seven or eight years less credit for time served. [ 11 ] The Crown provided the court with a number of cases and, as I said earlier, they are not on all-fours on the fact with the case at bar.

All four could be described as being more aggravated offences than the circumstances here. I will just touch on some of the reasons why that is true.

[12] The Court of Appeal decision in R. v. Greaves, [2005] BCCA 401, is a decision from 2005. It was a robbery. In one case, theaccused got into the house by invitation; in the other case, he forced his way in so one of them was more a traditional home invasion butat least one of them was. The victim had a knife held to his throat. In the case at bar, no weapons were actually used and the onlyweapon seen was a can of bear spray, although certainly the accused and his accomplice indicated that they had guns and made motionsas if they had guns. Whether or not they did, I am unable to say.

I can say that they never produced a gun while in the residence. That isdifference in the Greaves case. There was a weapon. The person was tied up and threatened, threatened to kill him while he was tiedup. A fair amount of goods were taken, about $15,000 worth, and that is not too different from the value of the goods taken in the caseat bar. He was tied up and left in the bathroom and the incident, the threatening and the violence, lasted between two and two-and-a-halfyears described by the court as a very lengthy time for any victim.

That is very different from the case at bar in which the entire incidentfrom the time the accused entered the house until he left the house was five minutes and a few seconds and the actual violence wouldhave been a very small portion of that. It ended, of course, because of the 9-1-1 call but nonetheless it ended and the parties left. [13] The victim in the case at bar was not seriously injured. He did have some scrapes and bruises on him. Those are shown in thephotographs.

None of them could be described as serious and that also differs from many home invasion cases. [14] In Greaves, the court considered that the circumstances of that event were parallel to a home invasion and they used the rangeof sentencing for home invasions, in part, in order to come to a decision as to the appropriate sentence. [15] Also, when one looks at the criminal record of the accused in Greaves, he had four prior robbery convictions and these offenceshe was convicted of were two separate robberies.

In the case at bar, Weber only has one attempted robbery as a youth many, many yearsago and no robbery convictions, although he certainly does have a very serious criminal record. [16] In any event, I think that the fact pattern in Greaves is different from the fact pattern in the case at bar. The sentence, of course,was lengthy. Crown, presumably by the fact that it was a ten-year sentence, the equivalent of ten years, seven years plus credit for three,acknowledges that it is more serious than the case at bar in which they are asking for six to eight years. [17] In the case of R. v.

Clark and Bowser, there was a sentence of eight years imposed by Judge Brecknell. In that case, it truly wasa home invasion in that there was a break-in. They broke a window and forced their way into the residence. There was bear spray,interestingly in that case as well, but it was deployed on the occupants of the residence and their faces were either masked or a bandana, amask or a bandana, two of the accused. All of those things are more aggravated than in the case at bar.

The judge referred to a range ofsentences for home invasions of six to 13 years in imposing that eight-year sentence. [18] In the case of R. v. Campo Alegre, a Supreme Court of B.C. decision from 2010. The two accused forced their way in when thedoor was opened for one person and one of the persons had a gun. That is, again, different and more aggravated than the case at bar. Ashot was fired actually in the direction of the victim in that case. The accused had a lengthy criminal record and the sentence imposed,as I say, is six years' imprisonment. [19] In the case of R. v.

Vickers, a Court of Appeal decision from this province, cited as [2007] BCCA 554, that is thecitation, again considerably more serious than the case at bar in that it was a home invasion, it was a situation in which three men werethere, two carried handguns, one brandished a pole, the victim was actually shot during the event and hit with a pipe wrench knockingout several teeth. Crown counsel sought a sentence of 11 to 13 years and a ten-year sentence was imposed and ruled to be not excessivein the circumstances.

However, not only were the use of the handguns actually used in the robbery, but also it was an aggravated andpremeditated offence. As I have said, in the case at bar, it is unlikely. I cannot say there was no premeditation but it is unlikely. It is notan aggravating factor, in my view. [20] Defence counsel produced a case, R. v. Quaye, a 2012 decision of the B.C. Supreme Court. That is a decision, which, again, inmy view, does not really meet a similar-fact situation from the case at bar in that it is not a home invasion at all. It is basically just arobbery of car keys and a cell phone.

Ultimately, they took the car and there was a very short, low-speed police chase and they wereapprehended right after that. As I say, that is a robbery and the same type of any sort of street robbery and that is different from aninvasion of somebody's house where the crime takes place inside someone's home whether you forced your way in or not and it is adifferent kind of a crime. The accused in that case had a record nowhere near as serious at the criminal record of the accused in the caseat bar.

A sentence in that case was two-and-a-half years in jail and then extra time for evading the police, which is irrelevant to the caseat bar. [21] One of the major aggravating factors, frankly, in the case at bar, is the criminal record of the accused. It is impossible to ignorethat record. He has a youth record which is extremely lengthy and serious. He had 22 convictions as a youth prior to the year 1995. Heis currently 37 years of age and although that is young by some measures, I really cannot describe him today as a youth or a youngperson at that age.

Nonetheless, he did have these 22 convictions as a youth, including the attempted robbery and many other seriousoffences including break and enter, assault causing bodily harm on more than one occasion and, in 1995, he started his adult convictionsand by my count on the record provided he has 34 adult convictions for a total of 56 convictions when we add in his youth convictions. His adult convictions are also serious.

They do not include the crime of robbery but they do include crimes of violence, including assaultbodily harm in 1995, threatening in 1996, assaulting a peace officer in 1998, assault in 2000, another assault in 2003, an assault andthreatening in 2006, possession of a prohibited or a restricted firearm in 2008 and another assault in 2013. He received jail sentences formany of those crimes. [22] In fact, if you look at the sentences that he received, his longer sentences are in 1997 in Regina which was a sentence of twoyears less a day for drug offences basically and proceeds of crime.

Then, in 2000, also in Regina, Saskatchewan, a sentence of five yearsand nine months in jail, a substantial sentence. In addition to those periods of time in jail, if you add up the other time he has beensentenced to and jail for in his adult convictions alone, one comes to close to four years in additional time. He spent a large part of hislife in jail or before the courts. There is not much different in this particular case. He was, at the time, banned from possessing anyweapons or firearms. He was, at the time of the incident, on a recognizance under s. 810 to keep the peace and be of good behaviour.

Hewas the instigator and the person in charge of this entire robbery that takes place inside the residence. I am not going to go over it againbut I did not find that his accomplice, McClinton, did any of this on his own; this was all under the direction of Weber.

[ 23 ] The Crown suggests that the range of sentence that they are seeking, six to eight years, is, in part, because of the principles of sentencing.

Section 718 of the Criminal Code sets out the various things that the court has to consider in sentencing and, although I am not going to read it out in its entirety, I will at last touch upon it.

Section 718.2 says that a court imposing a sentence shall consider various things and, that is, under (a): A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender... Then they go into things that can be aggravating circumstances. First is related to race, which does not apply here. Under (iii.1): Evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances... Under (b), (c), (

d) and (e), it talks about sentences being similar to sentences imposed for similar offenders for similar offences. [ 24 ] Under s. 348.1 of the Criminal Code , with respect to this particular offence, the

section reads: If a person is convicted of an offence under

section 98 or 98.1, subsection 279(2) or

section 343, 346 or 348 in relation to a dwelling- house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact 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. [ 25 ] In the facts of the case at bar, the accused obviously knew there were people there; that is why he was going there and violence and threats of violence were used. [ 26 ] In determining an appropriate range of sentence, I am satisfied that defence counsel is correct that the range suggested by the Crown, in my view, is a little bit high and that the cases they have provided are more serious than the case at bar. On the other hand, this is a crime which is more serious than the Quaye case referred to by defence counsel.

I also have to consider the fact that the accused has been in custody for a period of time in excess of 20 months in jail. He was detained. At the time of his detention, I was the judge at the bail hearing. At the conclusion of the bail hearing, I stated that the primary reason for his detention was his criminal record. His criminal record was terrible.

As I have described it today, nothing has changed from that day to this. [ 27 ] As a result of that finding that I was detaining him for his criminal record, a note is made in the record of proceedings that that is, in fact, what has occurred and I am then governed by the provisions of the Criminal Code with respect to the credit that I can give him for the time he spent in custody. [ 28 ] Defence counsel argues that because it says that the judge shall say on the record in writing basically the reason for detention, that that requires a signature of the judge, the record of proceedings does not have a signature.

It is the record of proceedings and it is the standard record of proceedings but I concede that there is no judge's signature. However, nothing in the section, in my view, requires the signature of a judge, merely that it be in writing and it is. Crown referred to the definition of "writing" in the Criminal Code and that would include typing, printing, that sort of thing, in a form and that is what has occurred in this particular case. [ 29 ] I am satisfied that I can, by law, only give credit to the accused for the time he has actually spent in custody.

Having said that, I acknowledge that he has done harder time, if you will, than if he was in a jail where he might get programming. He has been in a remand centre and although I cannot specifically give him credit, I will at least take that into account in arriving at what I consider to be an appropriate sentence in this case. [ 30 ] I would otherwise, if he had not been in custody, sentenced the accused to five years' imprisonment in this matter. I am going to give him credit for the 20 months that he has served in custody.

Five years is 60 months so the sentence today would be 40 months in addition to credit for 20 months' time served. In arriving at the 60 months, I have given him some credit for the fact that he has served this sentence so far entirely in a remand facility. [ 31 ] I also am required by law to impose a victim fine surcharge of $200 which is payable forthwith.

He will do the one day in default or two days or whatever it is. [ 32 ] THE ACCUSED: I understand. [ 33 ] THE COURT: I will just make it payable forthwith and I am sure the accused is electing to serve that time in default. [ 34 ] There's no need for the Crown, I don't think, to ask for lifetime firearms bans because they already exist. [ 35 ] My guess is that DNA already exists but I don't know if the Crown is seeking that or if you know if it exists. [ 36 ] MR. GUNNELL: Yes, please, Your Honour. [ 37 ] THE COURT: You're asking that I include it? [ 38 ] MR. GUNNELL: Yes. [ 39 ] THE COURT: Okay.

I will make an order that the accused supply a sample of bodily substance suitable for DNA analysis, and that will be taken while he is in custody. [ 40 ] THE CLERK: So it's mandatory, Your Honour?

[ 41 ] THE COURT: It is mandatory, I'm sure; robbery. Anything further? [ 42 ] MR. GUNNELL: No, Your Honour. [ 43 ] MR. BANKS: No. W.G. MACDONALD Provincial Court Judge