R. v. Herft Date:, 2016 BCPC 393

Citation: R. v. Herft Date: 20161020 2016 BCPC 393 File No: 81490-3C Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ALEX CHRISTOPHER HERFT REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G.J. BROWN Counsel for the Crown: C. Lawlor Appearing for the Accused: C. Elden Place of Hearing: Abbotsford , B.C. Date of Hearing: September 15, 2016 Date of Sentence: October 20, 2016

[ 1 ] THE COURT : These are my Reasons for Sentence in the matter of R. v. Alex Christopher Herft, file 81490-3C. Introduction [ 2 ] Mr. Herft has pled guilty to the following three counts which proceeded by indictment: [ 3 ] Count 1, on October 13th, 2014 Mr. Herft and others did break and enter John Rak's home in Abbotsford, B.C. having stolen, or with the intent to steal a firearm located in that place, contrary to s. 98(1) (

b) of the Criminal Code ; and [ 4 ] Count 5, on October 15th, 2014 at Surrey, B.C., Mr. Herft possessed loaded or unloaded prohibited and/or restricted firearms with readily accessible ammunition without being the holder of the proper authorizations, licences or certificates for the firearms, contrary to s. 95(1) of the Criminal Code ; and [ 5 ] Count 6, on October 15th, 2014 at Vancouver, B.C. Mr. Herft did commit extortion of John Rak, contrary to s. 346(1) of the Criminal Code . [ 6 ] By way of overview, Mr. Herft with at least three or four other individuals broke into Mr.

John Rak's home in Abbotsford, B.C. at about 11:30 p.m. on October 13th, 2014. Mr. Herft stayed in the Rak residence until the morning of the next day. During that time, Mr. Herft put a firearm to Mr. Rak's forehead and then shot it into the fireplace. Mr. Herft took money from Mr. Rak's wallet and he took many items from the house, including over 100 firearms, cameras, ammunition, jewellery, furnishings and cash. [ 7 ] Over the next two days, Mr. Herft extorted $215,000 from Mr. Rak. Mr. Herft received $15,000 on October 14th, 2014 and $200,000 on October 15th, 2014. [ 8 ] Shortly thereafter, Mr.

Herft was arrested by the police and was found to be in possession of most of the cash, some of the firearms, ammunition, jewellery and other items. [ 9 ] These are serious offences. The Crown is effectively seeking a six-year global jail sentence, less credit for time served and allowance for the mitigating factor that Mr. Herft was later under strict bail conditions. The Crown submits that Mr. Herft should serve a further five years' jail taking into account these factors, and ancillary relief is also sought. [ 10 ] Defence counsel points to the fact that Mr.

Herft has been a model citizen since these offences occurred, and other mitigating factors. Defence counsel submits that any jail time for Counts 1 and 6 should already be satisfied by pre-custody credit of about four months and by the fact that Mr. Herft was on strict bail conditions thereafter for over 21 months. A conditional sentence order is proposed for the firearms offence under Count 5 and a lengthy probation order is suggested to follow all the jail and conditional sentence orders.

If defence counsel's above position is not accepted, the defence submission is for two years' further jail. [ 11 ] My task is to determine a fit sentence for Mr. Herft looking at all the sentencing principles and the aggravating and mitigating factors in this case. Circumstances of the Offences [ 12 ] I should say at the outset that an agreed statement of facts was made an exhibit in this proceeding pursuant to s. 655 of the Criminal Code . My

summary here contains less detail and takes into account some further submissions made by counsel. I will deal with these offences day-by-day. Events of October 13th, 2014 [ 13 ] Mr. Rak is a businessman and he has no connection to criminal activity. His home is on rural property in Abbotsford, B.C. At about 11:30 p.m. on October 13 th 2014, four or five men wearing balaclavas and gloves kicked in Mr. Rak's door. The men carried weapons including a baseball bat, but Mr. Rak could not say if any of the men carried handguns. Defence counsel submits Mr. Herft himself did not bring a weapon. [ 14 ] Mr.

Rak believed a man other than Mr. Herft to be the boss. Mr. Herft was described as originally being agitated but then he became polite. Mr. Rak was ordered to open his six gun safes and he was taken to a room and confined to a seat. Mr. Herft held him there while the other men removed over 100 guns, ammunition, jewellery, camera equipment, cash and other items. Mr. Rak was told that there was a contract out on him and that if he did not give the men $3,000,000 he would be shot, his family would be shot and his fingers would be cut off. Mr.

Rak believed these threats because the men brought in bolt cutters and other tools from the garage. [ 15 ] Mr. Rak was struck in the mouth by an angry man and that man and Mr. Herft pointed handguns at Mr. Rak's head. Mr. Herft discharged his firearm into the floor or a fireplace two feet from where Mr. Rak was sitting. Mr. Herft admits to pulling the trigger but he says he did not know the gun was fully loaded. [ 16 ] The angry male did not believe Mr.

Rak was being truthful about what was in the home and he kept saying, "If we do find something we're going to shoot you, put some lead in your chest, shoot you in the kneecaps." [ 17 ] The men used Mr. Rak's Mercedes to remove items from the house and they took his Jeep Cherokee when they left the next morning. The keys to the Mercedes were also taken but were returned during the first money drop of $15,000 on October 14th, 2014.

[ 18 ] Originally the men kept asking Mr. Rak for $3,000,000 but it became clear Mr. Rak could only access $200,000 from his bank. Mr. Herft then said he wanted another $15,000 to be given October 14th and $200,000 to be provided October 15th once Mr. Rak had that money from the bank. [ 19 ] Mr. Rak confirmed with the men that he would not go to the police but would make an insurance claim after he provided the money. All of Mr. Rak's cash in the house was taken, with Mr.

Herft having taken about $1,000 Canadian and some U.S. cash from the safe. [ 20 ] Throughout the events on October 13th, 2014, the males made comments about having been flown in by helicopter and that they had been watching Mr. Rak's family for days. There was some talk of taking Mr. Rak's son hostage, but Mr. Rak talked them out of that idea. [ 21 ] Mr. Herft agreed to call Mr. Rak on October 14th, 2014, to arrange to pick up the $15,000, and further arrangements were made to pick up the $200,000 on October 15th, 2014. Mr. Herft and the man perceived to be in charge shook Mr. Rak's hand. Mr. Rak provided Mr.

Herft with his cell phone number and Mr. Rak's passport and his Jeep Cherokee were taken. In total, the men were in the house ten hours. Events of October 14th, 2014 [ 22 ] Mr. Rak contacted his family at their business and told them he needed $15,000. Mr. Rak did not want to involve his family, but he eventually advised them why he needed the money. Mr. Rak's sons obtained the money, photographed it and gave it to Mr. Rak. [ 23 ] Mr. Herft called Mr. Rak on October 14th to arrange to meet to pick up the $15,000. Eventually they met in Burnaby, B.C. and Mr. Rak gave Mr.

Herft the $15,000. [ 24 ] Shortly thereafter, Mr. Rak received a call from Mr. Herft at his office and all of the Rak family heard the call on speakerphone, with part of the call being recorded. Arrangements were made about the drop of $200,000 for the next day. Mr. Rak did not want to involve the police because he believed his family would be in danger. However, the family were afraid of what could happen to Mr. Rak so the police were contacted.

Events of October 15th, 2014 [ 25 ] On October 15th, 2014, the Abbotsford Police Department received an emergency intercept under s. 184.4 of the Criminal Code for both Mr. Herft's and Mr. Rak's phone. During the monitoring of the wire intercepts, the police heard a number of communications about the $200,000 and where Mr. Rak should meet Mr. Herft. The police also heard who would be driving Mr. Herft to the drop site and how the money would be split. [ 26 ] After Mr. Rak had given Mr. Herft the $200,000 the Abbotsford Police met the Rak family.

The cash was in 20 bundles of $10,000 in $100 bills which had been photographed. Mr. Rak met Mr. Herft at the Century Plaza Hotel. Mr. Herft got out of the passenger side of his vehicle and went into Mr. Rak's vehicle. Mr. Herft made Mr. Rak sign over transfer papers for the Jeep Cherokee with Mr. Herft saying that his boss liked the car. Mr. Rak placed the $200,000 in a duffle bag which he gave to Mr. Herft with the transfer papers. Much of this exchange was caught on surveillance cameras at the hotel. [ 27 ] Mr.

Rak estimated the value of all the property that was stolen, including the $215,000 to be approximately $350,000 or more. [ 28 ] Using surveillance and by obtaining other information, the Abbotsford Police located the stolen Jeep in the parking lot of a kitchen cabinet business operated by Mr. Herft's brother. Mr. Herft, his brother and Mr. Chaudhrey were arrested at the business. [ 29 ] Ultimately, the police located Mr. Herft's vehicle in the same parking lot for the kitchen cabinet business.

Inside the car was a Halloween candy bag containing bundles of new $100 bills, a silver or beige semiautomatic handgun which was not loaded and a black Glock handgun with a magazine and other ammunition. The total cash in the vehicle was $170,000. The firearms found in Mr. Herft's vehicle were not brandished during the exchange of cash. [ 30 ] On arrest, Mr. Herft also had $1,270 Canadian and $300 American. [ 31 ] The following property belonging to Mr.

Rak was found at the kitchen cabinet business: $20,000 cash, 89 firearms, eight gun cases and bags, the key for the Jeep, 19 gun magazines, 19 other types of ammunition, jewellery, perfume and cameras. Some of Mr. Rak's cash, jewellery and watches were also found in Mr. Herft's home. [ 32 ] Mr. Herft gave a number of warned statements confirming much of Mr. Rak's version of the offences. Mr. Herft said he had been planning this robbery for a number of weeks. The original intention was to get $3,000,000. Defence counsel points out that Mr.

Herft had been hanging out with people with a criminal lifestyle for a few months and he has not associated with them since that time. Mr. Herft had been told that Mr. Rak was a drug dealer trafficking in illegal firearms, and that was erroneous information. Mr. Herft was impecunious and desperate and he felt compelled to participate in what turned out to be a disorganized and poorly-planned crime. [ 33 ] Mr. Herft was originally detained and he was in custody from October 15 to December 23rd, 2014. He was placed in protective custody due to risks he faced.

When he was released in late December of 2014 he was placed on strict bail conditions, which included house arrest with exceptions. Victim Impact [ 34 ] Given the circumstances outlined above, it goes without saying that these offences have had a significant impact on the Rak family. The Rak family is now scared to visit their Abbotsford property and they plan to sell it. All family members have increased their security systems and protection methods. Their trust in hiring people is shattered.

[35] In his victim impact statement, Mr. Rak briefly recounts how he was terrorized over a three-day period. He was assaulted. Hewas threatened with bodily harm including dismemberment. He was told he was under surveillance. A firearm was discharged very nearwhere he was sitting. He heard threats to his entire family. [36] These offences have adversely affected the Rak family. Quite simply, they have lost their peace of mind. The slightest noise inthe night causes them worry. Furthermore, Mr. Rak was robbed of many items which he spent years accumulating.

As of the time hewrote his victim impact statement the insurance claim had still not completed. Mr. Rak is genuinely concerned that some of his firearmshave landed in the hands of people with ill intent. The Offender Mr. Herft [37] Mr. Herft is now 43 years of age. He was 41 years old when the offences occurred. He was born in Sri Lanka and has eightsiblings. Five of these siblings now live in Canada. [38] Mr. Herft had a difficult childhood in Sri Lanka. His father died when he was 15, his mother was unable to work, so he took onthe role of breadwinner for the family. When Mr. Herft was 18, he moved to Canada.

He married at age 26. [39] Mr. Herft has been employed for most of his time in Canada. He has worked as a courier driver, a factory worker, a countertopinstaller and an usher. He became a bodyguard but lost that employment because his criminal record prevented him from going to theUnited States. I am told he was effectively unemployed when these offences occurred. [40] Since being released on bail, Mr. Herft has worked as a subcontractor for a flooring company and as also a fitness coach andbodybuilding instructor. He now regularly attends church.

Also since he has been released, he has been treated for depression. He hascut off any associations with those leading a criminal lifestyle. [41] I was impressed with Mr. Herft's letters of support from friends and family. He has a lot of community support. Generallyspeaking, Mr. Herft's friends and family find the criminal charges to be completely out of character for the person they know. A Mr.Rowe described Mr. Herft as a person with an intimidating appearance, however once you get to know him you realize he is a veryreligious, caring and generous individual. [42] Mr.

Ostanski of KAD Quality Floors referred to Mr. Herft as a "gentle giant" who was reliable, honest and hardworking. [43] Mr. Herft's wife also wrote a heartfelt letter outlining how her husband has changed since being out on bail. She is worriedabout how incarceration would affect the family. [44] Mr. Herft himself wrote a letter to the court expressing remorse for his actions. He also explains how he has changed andrehabilitated himself. Mr. Herft's Criminal Record [45] Mr.

Herft has a criminal record as follows: 1) In 1997 he received a suspended sentence for an assault; 2) also in 1997 hereceived a suspended sentence for making harassing telephone calls; 3) in 2000 he received a fine and driving prohibition for an impairedconviction; 4) also in 2000 he received a fine for causing a disturbance; 5) in 2008 he received a suspended sentence for uttering threats;6) in 2010 he received a suspended sentence for an assault. [46] While it is true that Mr. Herft's last conviction was over six years ago, I am concerned that his record includes offences forassault and uttering threats.

Time in custody and time on strict bail conditions [47] Mr. Herft was in pre-trial custody from October 15, 2014 until December 23, 2014. I calculate that to be 70 days. Mr. Herft isentitled to enhanced credit of 1.5 days to one day, so his total enhanced credit time served is 105 days or three-and-a-half months. I notethat Mr. Herft spent some of his time in segregation or protective custody due to threats made against him. [48] Since December 23rd, 2014, Mr. Herft has been on bail under strict conditions for close to 22 months.

He was under housearrest save for certain exceptions, and the bail terms also require participation in the electronic monitoring program. I am told he hasbeen fully compliant with his terms of bail and he has been a model client. [49] Both Crown and defence have provided numerous case authorities as to how to deal with the restrictive bail conditions onsentencing. While some cases suggest that an offender can actually be given credit for his time on strict bail conditions, I am satisfiedthe best approach is to treat such circumstances as a mitigating factor. In R. v. Locke, [2012] B.C.J.

No. 1751, our Court of Appeal ruledat paragraph 3 that time spent under [strict] bail conditions may not be credited in the same manner as pre-trial custody, although it maybe treated as a mitigating factor or in the context of sentencing objectives when imposing sentence. [50] Very recently, our Court of Appeal in R. v. Plowman, 2015 BCCA 423 , [2015] B.C.J.

No. 2167 said the following atparagraph 28: Whether restrictive bail conditions should be treated as a mitigating factor is a matter of discretion that depends on several factors,including the length of time spent on bail, the stringency of the conditions, and their impact on the offender’s liberty and ability to carryon normal family and business relationships. A flexible approach is required, with the focus being the degree to which the objectives ofsentencing have already been accomplished through the restrictive conditions . . .

These words very much echo the words said by the Ontario Court of Appeal in R. v. Downes, (ON CA), [2006] O.J.No. 555 in paragraph 37, although the court in Ontario appears to treat the restrictive bail as an actual credit. [51] In Mr. Herft's case, I have no difficulty finding that Mr. Herft was under strict bail conditions for 22 months and thiscircumstance is a mitigating factor. He was and still is under house arrest with certain exceptions and this has impacted his liberty.

Hisability to engage in normal relationships was somewhat restricted, and he was required to move because his landlord felt it too difficult tohave a tenant under house arrest. [52] All that being said, Mr. Herft has obtained from his bail supervisor permission for exceptions on many occasions. He has beenable to work at various locations and he has been able to attend doctor and veterinary appointments, church, fitness sessions and familyoutings. [53] The Crown submits that Mr. Herft should be given an eight-month reduction in his sentence due to his bail conditions. Thedefence submits that Mr.

Herft should effectively be credited with as much as 22 months, and this credit combined with pre-custodycredit should be sufficient to constitute a time served sentence for counts 1 & 6. [54] I conclude that Mr. Herft's time spent under strict bail conditions is a mitigating factor. When I consider that factor with theother sentencing principles discussed below, the reduction in sentence ought to be in the range of eight-and-a-half months. Mr. Herft'stime on bail has been restrictive, but not overly so. Sentencing Principles and Sentencing Range [55] As I said earlier, Mr.

Herft has committed serious crimes over a span of three days. Count 1, the break and enter to steal afirearm offence, has a maximum punishment of imprisonment for life. Count 6, the extortion offence, also has a maximum punishmentof imprisonment for life. Consequently, a conditional sentence is not available for either Count 1 or Count 6, as set out in s. 742.1(

c) ofthe Criminal Code. [56] Count 5, the firearm offence under s. 95(1) had a mandatory minimum sentence, which has been held unconstitutional. Accordingly, a conditional sentence is possibly available and I will discuss that aspect further below. [57] When sentencing Mr. Herft, I must bear in mind the general sentencing principles as set out in s. 718 of the Criminal Code. These principles include denunciation, general and specific deterrence and rehabilitation of the offender.

In cases such as this whereextortion and a form of home invasion are involved, denunciation and deterrence feature prominently. [58] I must also take into account that Mr. Herft's sentence must be proportionate to the gravity of these offences, as outlined in s.718.1. Other sentencing principles such as aggravating and mitigating factors as set out in s. 718.2 must also be considered. [59] It is always difficult to obtain guidance from the case authorities as to the range of sentence because the facts of each case areunique. Mr.

Herft's offences involved extortion, a form of home invasion and the use of a firearm so both counsel have provided caseswith some or all of these elements. [60] In R. v. Lebrun, [2011] B.C.J. No. 603 our Court of Appeal upheld a global sentence of six years for charges of forcibleconfinement and illegal use of a firearm while committing forcible confinement. At paragraph 30 of that case it was noted that the rangefor a serious home invasion was nine to ten years and even higher.

When looking at home invasion scenarios it is important to look atthe length of time that the complainants were confined, the violence that was perpetrated upon them, as well as the threats to their lives. (see para. 31) [61] In R. v. Saumier, 2008 BCCA 473 , [2008] B.C.J. No. 2305 our Court of Appeal upheld a total five-year sentence forextortion and two firearm offences. At paragraph 11 there was a discussion about cases which tended to show that a three-year sentencewas the starting point for extortions that involved violence or organized crime.

Our Court of Appeal upheld the longer sentence,notwithstanding the absence of direct violence in part because: The crime of extortion has become the subject of increased societal concern in recent years, as reflected the fact that the maximumsentence is now life imprisonment. [62] In R. v. Leggo, [2003] B.C.J. No. 1529 our Court of Appeal upheld a cumulative sentence of eight-and-a-half years for breakand enter, robbery, unlawful confinement, drug offences and the use of a firearm during a robbery. [63] In R. v. Dukeshire, 1999 BCCA 484 , [1999] B.C.J.

No. 1984 our Court of Appeal increased the sentence to five yearsfor Mr. Dukeshire for break and enter, two counts of unlawful confinement, possession of a weapon dangerous to the public peace,having face masked and robbery.

The court noted that sufficient emphasis must be given to the sentencing objectives of denunciationand general deterrence and to the aggravating factors of the "premeditated, terrifying, and intrusive activity" engaged by the accused. [64] The Crown provided many other lower court decisions involving extortion, firearms and home invasions. [65] Defence counsel also provided a number of authorities from our Supreme Court and Provincial Court concerning the range ofsentence for offences somewhat similar to those committed by Mr. Herft. In R. v.

Dhaliwal, 2007 BCSC 1936 two accused weresentenced to two years less one day for a break and enter and robbery. These offences involved the use of a taser some ten times and thecomplainant was kicked in the head several times. However, I do note that the two accused had no records and they were considerablyyounger than Mr. Herft. The crimes were also described as a "one-off" and they did not take place over several days.

[66] In R. v. Sherwin, 2012 BCSC 2008 the accused was convicted of break and enter and assaulting the complainant with a baseballbat, together with an assault of a peace officer. The sentence was three years and three months, notwithstanding Crown's submission fornine years. Mr. Sherwin was again much younger than Mr. Herft, but Mr. Sherwin did have an extensive record. Mr. Sherwin was drugaddicted when he committed his crimes and his crimes did not occur over several days. [67] In R. v.

Stewart, 2014 BCSC 1770 the offender was sentenced to three years total for a break and enter and the use of animitation firearm. I note this was a joint submission and there were weaknesses in the Crown's case. The court there said a six-yearsentence would have been appropriate but for the joint submission. [68] In R. v. D.R.U., 2015 BCPC 209 , 2015 BCPC 0209 an accused did receive a two-year less one day sentence for breakand enter, robbery and unlawful confinement. The unlawful confinement in that case was quite brief, though violence was involved.

The accused was also aboriginal and had substance abuse issues. [69] In R. v. Porter and Turner, 2001 BCPC 191 , 2001 BCPC 0191 the two offenders were involved in the home invasionof a marihuana grow operation. They were charged with robbery. A conditional sentence was granted, plus three years of restrictiveprobation. The sentence took into account the fact that the offenders were in pre-trial custody and under house arrest for ten months.

These two offenders were 21 years old and were not as heavily involved in the offence as another co-accused. [70] When I consider the body of case law as a whole, I am inclined to most closely follow the general principles set out by ourCourt of Appeal. Many of the cases cited by defence counsel are useful, but can be distinguished from Mr. Herft's case. Aggravating Factors [71] I consider the following to be aggravating factors: 1) The break and enter and extortion involved a fair degree of planning. Mr.Rak was specifically targeted and there was knowledge of the guns and valuables in his home. Mr.

Herft may have not been the boss,but he was a primary participant in these crimes. 2) The extortion took place over three days. For that period, Mr. Rak felt his life andthe lives of his family were at risk. On the first day of the offences Mr. Herft and other invaded Mr. Rak's home for about ten hours. 3)Mr. Herft and others committed the break and enter with faces masked. 4) Mr. Rak was assaulted and threatened despite beingcooperative. He was struck in the face and threatened. Two men pointed firearms at him and Mr. Herft discharged a bullet not far fromMr.

Rak's head. 5) Over $350,000 in cash and valuables were taken from Mr. Rak's home; over 100 firearms were among the itemstaken. 6) The threats to Mr. Rak included threats to his family; there was talk of taking his son hostage. 7) Mr. Herft has a criminalrecord, although his prior offences do not approach the seriousness of the offences committed in this case. Mitigating Factors [72] I consider the following to be mitigating factors: 1) Mr. Herft pled guilty at a relatively early stage; the Rak family was notrequired to testify. 2) Mr.

Herft was cooperative with the police and he provided a full confession. 3) Mr. Herft is very remorseful forhis crime. 4) Mr. Herft spent 70 days at Surrey Pretrial in difficult circumstances and he has been on fairly stringent bail conditionssince that time. As discussed earlier, I am prepared to reduce his sentence by eight-and-a-half months for his almost 22 months onrestrictive bail conditions. 5) Mr. Herft has fully complied with his bail terms and he has taken steps to rehabilitate himself since hisrelease. 6) Mr.

Herft comes from a disadvantaged background, but nevertheless he has good family and community support. Is a conditional sentence appropriate for Count 5? [73] Defence counsel submits that the sentence for Counts 1 and 6 can be satisfied with a time served sentence, taking into accountpre-trial custody and Mr. Herft's time under restrictive bail conditions, followed by a restrictive probation order.

Defence counsel furthersubmits that the appropriate sentence for Count 5, the firearms offence under s. 95(1) of the Criminal Code is a conditional sentenceorder, again followed by a probation order. [74] In certain respects, a conditional sentence order appears available for Mr. Herft for a s. 95(1) offence.

Section 742.1 of theCriminal Code sets out the preconditions for a conditional sentence order. There is no longer a mandatory minimum punishment for s.95(1) so s. 742.1(

b) poses no impediment. The maximum term of imprisonment is ten years, so s. 742.1(

c) poses no impediment. I alsobelieve that Mr. Herft's service of a sentence in the community would not endanger the safety of the community under s. 742.1(a). Hehas fully complied with his bail conditions. [75] I have some doubt about the availability of a conditional sentence order here, given the requirement in 742.1(e). That sectionrequires that the offence prosecuted by indictment not be one that "involved the use of a weapon". I hasten to point out that Mr. Herft'sfiring of a gun earlier on October 13th, 2014 is not relevant. That event relates to Count 1 only.

The firearm offence under s. 95(1)relates to events on October 15th, 2014. But even on that day, Mr. Herft was in a vehicle which contained a silver semi-automatichandgun which was not loaded, and a black Glock handgun with a magazine and ammunition. Mr. Herft brought these firearms to thehotel where he was picking up the $200,000 extorted from Mr. Rak. The Crown submits this activity constitutes use of a weapon,whereas defence counsel says it is no more than possession. [76] In R. v. Sears, 2016 BCSC 965, a conditional sentence was ordered for a s. 95(1) offence, but s. 742.1(

e) does not appear tohave been considered. [77] I do not need to decide the narrow issue under s. 742.1(

e) because I have concluded that a conditional sentence order is notappropriate when looking at the general principles of sentencing under s. 718 to 718.2. Moreover, I am satisfied that the sentence ofimprisonment for this offence under s. 95(1) ought to be more than two years. [78] Mr. Herft possessed the guns on October 15th, 2014, in connection with his extortion of $200,000 from Mr. Rak at the CenturyPlaza Hotel. This is a serious matter. The Supreme Court of Canada in R. v. Nur, 2015 SCC 15, did hold that the mandatory minimumsunder s. 95(1) were unconstitutional, but that court also said at paragraph 82 that:

Section 95(1) casts [a wide] net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. The court went on to say, and I am paraphrasing here, that the outlaw who carries a loaded prohibited or restricted firearm as a tool of his criminal trade poses a real danger and a three-year sentence may be appropriate. [ 79 ] In my view, Mr. Herft had these guns as a potential tool in the extortion. He may have planned to sell many of the guns, but they featured in the extortion.

What is the appropriate sentence overall? [ 80 ] Looking at this case more broadly, I have concluded that Counts 1 and 6 cannot be satisfied by a time served sentence or probation. A time served sentence would, according to my analysis, only amount to one year if I include both the time served credit of three-and-a-half months and a restrictive bail time reduction of eight-and-a-half months. That is wholly inadequate for the break and enter and extortion which occurred here.

Even a two-year less one day sentence is an insufficient sentence for Counts 1 and 6. [ 81 ] When I look at the three counts globally, a federal custodial sentence is required. I appreciate that Mr. Herft has changed for the better and he has performed well under house arrest. He has also entered a guilty plea and shown remorse. I also appreciate that his brother received a conditional sentence, but his brother had limited involvement, by allowing stolen items to be stored at his business. [ 82 ] Alex Herft, on the other hand, was a primary actor in the home invasion, extortion and firearms offences.

On October 13th, 2014 he put a firearm to Mr. Rak's forehead and later shot it into the fireplace. He arranged for the extorted monies. He is found with cash and guns on October 15, 2014. [ 83 ] Although Mr. Herft's rehabilitation is a consideration, the principles of denunciation and general deterrence for these serious offences require a global sentence greater than two years. I must follow the considerations set out by our Court of Appeal in cases like Lebrun cited above. First, there was a lengthy period of confinement of Mr. Rak, followed by two more days of extortion. Few cases are as egregious as that.

Secondly, the violence was not as great as some cases but Mr. Rak was struck in the face and Mr. Herft fired a bullet within feet of where Mr. Rak was sitting. Finally, Mr. Rak faced serious threats of bodily harm and harm to his family. [ 84 ] As well, Mr. Herft is not some young, drug-addled offender. He is a 43-year-old man with a fairly dated criminal record that includes assaults and uttering threats. This offence was also planned, although it was executed with a measure of stupidity.

The Crown has a strong case, based on surveillance and all the real evidence found. [ 85 ] When I look at all the sentencing principles and the case law, the Crown's position of six years is not unreasonable. However, it needs to be tempered by the fact that Mr. Herft has made remarkable strides since October of 2014. He has been cooperative with the police and his bail supervisor. Rehabilitation is a factor. [ 86 ] In my view, the appropriate global sentence for all three counts is five years less a one-year reduction to account for enhanced pre-trial custody and Mr.

Herft's time under bail conditions. [ 87 ] Mr. Herft, I am going to ask that you please stand up. [ 88 ] For all three counts there is going to be a global sentence of four years, three-and-a-half months, less enhanced credit of three- and-a-half months, leaving a remaining federal jail sentence of four years. [ 89 ] There will be the following ancillary orders: 1. There shall be an order that you submit to the taking of samples of your DNA. That attaches to all counts. 2. Pursuant to s. 109(3) there will be a lifetime firearms prohibition. That attaches to all counts. 3.

There will be a forfeiture of all exhibits. [ 90 ] Unless I hear submissions otherwise, my plan would be that the victim fine surcharge would be payable forthwith; having found Mr. Herft to be in default he would serve two days for each count, for a total of six days to be concurrent to his jail sentence. Is that acceptable to defence? [ 91 ] MS. ELDEN: Yes, Your Honour. Thank you. [ 92 ] THE COURT: Thank you. G.J. BROWN Provincial Court Judge