R. v. Jandrew Date:, 2014 BCPC 317

Citation: R. v. Jandrew Date: 20140725 2014 BCPC 0317 File No: 80919 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. COLBY DREW JANDREW REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K.D. SKILNICK Counsel for the Crown: A. Read Counsel for the Accused: D. Schultz Place of Hearing: Abbotsford , B.C. Date of Hearing: July 3, 2014 Date of Sentence: July 25, 2014

[ 1 ] THE COURT : Colby Drew Jandrew has pled guilty to four counts of arson; three of those counts are under s. 434 of the Criminal Code , and one is under s. 433 , the difference being that the charge under s. 433 involved the endangerment of life, although all of these charges can be said to do that to some extent. [ 2 ] The maximum penalty under s. 433 is a life sentence, and the maximum penalty under the three other counts is a sentence of 14 years, and that just illustrates how severely arson is looked upon because, of course, it does endanger innocent individuals, and the potential for loss of life is the most serious and the loss of property is secondary, but nevertheless not unimportant. [ 3 ] It is fortunate in this case that there was no loss of life recorded, but as Crown indicates, in one case the property was in fact occupied, and in other cases there was danger of the fire spreading to adjacent buildings. [ 4 ] In sentencing Mr.

Jandrew for these offences I am taking into account a number of things. The Criminal Code says the purpose of sentencing is: …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...

Denouncing unlawful conduct, deterring this offender and other persons from committing offences, separating offenders from society where necessary, assisting in rehabilitating offenders, providing reparation for harm done to victims or to the community, and promoting a sense of responsibility in offenders and acknowledgement of the harm that they have done. [ 5 ] There are other Code sections that apply.

Section 718.1 of the Code says that "a sentence must be proportionate to the gravity of offence and the degree of responsibility of the offender." These are very serious offences and Mr. Jandrew has acknowledged his responsibility. The responsibility for these offences are entirely his. [ 6 ] Other factors that I have to take into account are any aggravating and mitigating circumstances.

A sentence that I impose should be "similar to sentences imposed on similar offenders for similar offences committed in similar circumstances." The Code says that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances." I think both counsel acknowledge by their position on sentencing that there are no less restrictive sanctions that would be appropriate in these circumstances.

I am to look at "all available sanctions other than imprisonment that are reasonable in the circumstances" with particular attention to the circumstances of First Nations offenders, and I take that into account here as well. [ 7 ] Crown and defence have pointed out a number of aggravating and mitigating circumstances. In mitigation, Mr. Jandrew has pled guilty, and that is not an insignificant thing because he has spared the requirement of trials for all of these counts.

Arson can be a very difficult offence to prove, it involves a lot of expert witnesses and a lot of court time, and by pleading guilty his acceptance of responsibility can be taken in mitigation. He has also accepted responsibility very early. I am told that he gave a statement to police admitting commission of these offences. I am also told that he has tried to plead guilty to these offences before today and I take that into account. Mr. Schultz also points out Mr.

Jandrew's unfortunate background, the fact that there are some health issues that he has had to deal with that have put a number of very significant challenges in his life. [ 8 ] In aggravation, the Crown points out the tremendous risk of life and tremendous damage caused by these offences. This was not one single, solitary arson but it was a spree of offences. There was a tremendous draw on the resources both from the fire department and the police that were required for these offences. There was significant property loss and Mr. Jandrew will not be able to make good that property loss.

It is not a situation where he can make restitution to the victims of these offences. [ 9 ] Because of Mr. Jandrew's circumstances, rehabilitation is not going to be an easy prospect. The Crown also notes the significant record. I note since 2007 there has been a pattern of virtually uninterrupted offending. There are a number of serious offences with his most recent conviction being a conviction for break and enter, and there are a number of property offences.

So I am not sentencing someone who is a first offender, but I am sentencing someone who has been quite busy in the commission of offences in his young life. [ 10 ] In balancing all of those factors, there is somewhat of a disparity in the range for sentencing. Crown suggests a sentence in the range of four years, counsel for the accused suggests something in the range of two to two-and-a-half years. I think both counsel concede that because of the circumstances that Mr.

Jandrew has, a significant program of rehabilitation is going to be required, and a sentence is also going to be required that protects the public by having Mr.

Jandrew in a structured environment, both for the purposes of his rehabilitation and for protection of the public. [ 11 ] When I weigh all those factors and I take into account what the maximum penalties for this offence are, what the risk is to the public, and the fact that I am not sentencing someone who has no previous record, but balancing that as well with the mitigating circumstances that I have mentioned, and I repeat, his early guilty plea, his early acceptance of responsibility have considerable significance because of the fact that he spared a considerable amount of court time and investigation time. [ 12 ] I also take into account that by my count he has served 76 days in custody.

I am counting that as 21 days in May, 30 days in June and now 25 days in July, so I add that up to 76 days.

I am prepared to credit him with having served the same amount of time as if he had been given a sentence and earned a period of remission, and so I am going to credit him with a day-and-a-half for each of those days, for a total of 114 days. [ 13 ] When I balance all of those factors, as I say I think the range of sentence that the Crown has proposed for the multiple number of offences, especially for someone with the record that the accused is presenting, is not out of line, and I also take into account that in this case, while there are mitigating factors, there is a need for protection of the public and there is a need for rehabilitation because there are some difficulties in self-control that have to be addressed before the public is put at further risk.

[ 14 ] I am going to accede to the sentencing position of the Crown for those reasons. All sentences will be concurrent. I will treat these as a spree of offences as suggested by Mr. Schultz. I am going to structure the sentence as follows: On Count 1, the sentence will be one of two-and-a-half years; Count 2, the sentence will be one of four years; Count 3, the sentence will be two-and-a-half years; Count 4, the sentence will be two-and-a-half years.

All of those sentences will be concurrent, one with the other, meaning that the net sentence will be four years. [ 15 ] As against those times I will credit him with having served 114 days, and so the net sentence will be a further sentence of three years and eight months in addition to the time served. [ 16 ] Are there any ancillary orders that come along with this? I would imagine the DNA order would be primary? [ 17 ] MS. READ: DNA is primary, yes, and I would be seeking that. [ 18 ] THE COURT: Yes.

In respect of all counts I will make an order directing that a sample of his DNA be taken forthwith for inclusion into the National DNA Databank. That is to be taken by a person authorized to take that sample at law, and that sample is to be taken in one of the methods prescript by the Criminal Code . [ 19 ] I will also make an order that the victim fine surcharge in each of these matters be paid forthwith, given that Mr.

Jandrew will not have the ability to pay the victim fine surcharge, and in default he can serve one day on each of those victim fine surcharges, to be served concurrent with any other sentence that he is serving. K.D. SKILNICK Provincial Court Judge