R. v. Wollmann Date:, 2017 BCPC 130

Citation: R. v. Wollmann Date: 20170323 2017 BCPC 130 File No: 82592-5C Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHAWN MICHAEL WOLLMANN REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G.J. BROWN Counsel for the Crown: D. Tsui Counsel for the Accused: H. Gawley Place of Hearing: Abbotsford , B.C. Date of Hearing: March 2, 2017 Date of Sentence: March 23, 2017

[ 1 ] THE COURT: These are my reasons for sentence in the matter of Regina versus Shawn Michael Wollmann, file 82592-5C. INTRODUCTION [ 2 ] Mr. Wollmann has pled guilty to two counts of robbery which occurred at fast-food outlets on April 29th, 2015. The charges proceeded by indictment. The maximum sentence for robbery is imprisonment for life, so a conditional sentence order, sometimes known as jail in the community, is not available. [ 3 ] The Crown seeks a global sentence of 12 months jail, to be followed by two to three years of probation, as well as other ancillary relief.

Defence counsel submits that a suspended sentence with strict conditions is appropriate in these circumstances. Alternatively, an intermittent sentence is suggested. CIRCUMSTANCES OF THE OFFENCES [ 4 ] At about 2:10 p.m. on April 29th, 2015, Mr. Wollmann robbed a Domino's Pizza store in Abbotsford, B.C. Mr. Wollmann entered the store with his hand in the pocket of his hoodie jacket, as if he had a weapon. He yelled at Mr. Collins, an employee, to open up the till. According to the defence, Mr. Wollmann took about $65 from the till, and fled after Mr.

Collins produced a pocket knife. [ 5 ] At about 10:22 p.m. the same day, Mr. Wollmann robbed a Quizno's restaurant in Abbotsford. He approached a female employee, Ms. Dhat, as he held his hand in his pocket. Mr. Wollmann went behind the counter where he held Ms. Dhat by the arm and pushed her to one side. Mr. Wollmann opened the till and took $200 before fleeing. Ms. Dhat was visibly upset. [ 6 ] Mr. Wollmann was later arrested and he admitted to the robberies during interviews. His motive was to obtain money for drugs. [ 7 ] In the Pre-Sentence Report, Mr.

Wollmann thinks he committed these crimes as a "cry for help." Mr. Wollmann recalled how scared the girl was during the Quizno robbery and he thought about the impact it had on her. [ 8 ] I do agree that these two offences fall on the lower end of the robbery spectrum in terms of level of violence and planning. However, I am mindful of the words of a Court of Appeal in R. v. Webber

(2008) BCCA 371 at paragraph 18, when it is said: The court has to denounce and deter the robbery of small convenience stores where the employees are frequently young people and easy targets for criminals. I would add that these young employees are also lowly paid and often work alone. VICTIM IMPACT [ 9 ] Mr. Collins, the employee involved in the first robbery, says the offence has made him more cautious. He never felt in danger, but was worried and confused. Ms. Dhat could not be contacted by the Pre-Sentence Report writer, but it is clear she was upset following the Quizno robbery.

CIRCUMSTANCES OF THE OFFENDER [ 10 ] Mr. Wollmann is now 24 years old. He was 22 at the time of the robberies. Mr. Wollmann has no criminal record. He has also had employment with his father's construction company and he has the support of his family. [ 11 ] Unfortunately, Mr. Wollmann struggled with insomnia from a young age, and he was prescribed sleeping pills. He became addicted to these sleeping pills and began trying other drugs, such as cocaine, alcohol and opiates. Since Mr.

Wollman was 18 years old, his father has spent nearly $60,000 for his son's treatment to address addiction. [ 12 ] In May of 2015, Mr. Wollmann was released on a recognizance of bail with conditions to reside at VisionQuest Recovery Society. I have just heard today that he has returned to VisionQuest Recovery Society at this time. [ 13 ] On September 10th, 2015, he failed a urine screen and he went back into custody. However, he was again released to VisionQuest on October 2, 2015, and he remained clean until his release from the treatment centre on April 25th, 2016.

The director of VisionQuest saw considerable improvement in Mr. Wollmann's attitude, and Mr. Wollmann eventually managed to comply with all the expectations of the program. Mr. Wollmann was a resident of VisionQuest for about one year in total, under strict conditions. [ 14 ] However, after Mr. Wollmann returned to his father's home in June of 2016, he did overdose on opiates and nearly lost his life. Mr. Wollmann was at his parents' home, at least at the time I was writing this decision, and now I understand he is at VisionQuest. He did have work available at his father's company, but his father suspects Mr.

Wollmann still continues to struggle with drug use. SENTENCING PRINCIPLES [ 15 ] I must take into account the purpose and principles of sentencing as set out in s. 718 and following in the Criminal Code . The caselaw suggests that deterrence and denunciation are at the forefront where robbery is involved. [ 16 ] In R. v. Brogan

(1999) BCCA 278, our Court of Appeal has said that the sentencing range is somewhere between two and nine years where robbery with violence has been committed. I hasten to add that the violence in this present case was minimal - a gesture in one robbery, and a push in the other robbery - so I am satisfied that the sentence here will be well below the usual range. [ 17 ] At paragraph 10, the Brogan case also sets out some useful factors to consider in sentencing for a robbery. I apply those factors

as follows. Number 1, age of the offender: Mr. Wollmann was only 22 when the offences occurred. Number 2, previous criminalexperience: Mr. Wollmann has no record. Number 3, level of violence: as stated above, the level of violence was minimal. Number 4,number of offences: Mr. Wollmann did commit two robberies on the same day. Number 5, the level of premeditation: in my view, theplanning here was virtually non-existent. Mr. Wollmann was caught on video and his actions were driven by addiction. Number 6,disguise: there was none.

Number 7, use of a weapon: there was no weapon, but there was the gesture as if he had a weapon. Number 8,possibility of rehabilitation: Mr. Wollmann has had some success with treatment, but his road to sobriety is a work in progress. Number9, the need for deterrence in a particular community: Abbotsford has a little more than its fair share of crime, but the major problems aregang-related. Of course robbery is a concern whenever it occurs. [18] Crown counsel has provided cases where an offender for a robbery received a relatively low sentence due to certain exceptionalcircumstances. For example, in R. v. Marks

(2016) BCCA 480, our Court of Appeal upheld a 12-month sentence for an offender whorobbed a gas station at night, using what appeared to be a black handgun. The offender also threatened to kill the victim. I point out thatthose facts are more egregious than the ones at bar. The Court of Appeal in Marks did speak of exceptional circumstances, which couldeven allow for a non-custodial sentence. [19] The court adopted the definition of "exceptional circumstances" from the case of R. v. Voong

(2015) BCCA 285. I read fromparagraph 59 of Voong: Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towardsrehabilitation for the drug addict, gainful employment, remorse, and acknowledgement of the harm done to society as a result of theoffences, as opposed to the harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day,there must be circumstances that are above and beyond the norm to justify a non-custodial sentence.

There must be something thatwould lead a sentencing judge to conclude that the offender had truly turned his life, or her life, around, and that the protection of thepublic was subsequently better served by a non-custodial sentence... [20] In the present case, Mr. Wollmann has met some of the criterion for "exceptional circumstances." He has no record, he hastaken steps towards rehabilitation, and he has had gainful employment at times when he is sober. He has shown remorse andacknowledged the harm caused, especially to Ms. Dhat. I cannot say that Mr. Wollmann has truly turned his life around.

He had arelapse while at VisionQuest and he has relapsed since his first time at VisionQuest. His father has spent a lot of money on treatment,and Mr. Wollman's sobriety is still a work in progress. The best I can say is that Mr. Wollmann is making strides in trying to turn his lifearound. [21] I also bear in mind the words said by our Court of Appeal in R. v. Hansen

(2012) BCCA 142: Drug addiction is an illness. For an addict, using drugs is not a simple choice to be either made or not made, but an illness characterizedby a loss of control over the need to consume the substance to which the addiction relates. [22] Defence counsel has referred to some authorities where the court has granted non-custodial sentences for robbery. In R. v.Nakamura (2012) 2012 BCSC 327 , BCJ 437, Mr. Nakamura stabbed a complainant in the face and stomach during a robberycommitted with two co-accused. Mr. Nakamura received a suspended sentence, which included 500 hours of community work service.

The Nakamura case has been cited before me in the past, and it is an unusual case. Mr. Nakamura was only 18 years old, and the courtwas faced with the fact that a third co-accused youth, who carried out a clubbing of the complainant, had received a sentence of deferredcustody and supervision. [23] In R. v. Jodoin

(2015) OJ 2149, Mr. Jodoin robbed a pharmacy and he told the employees he had a knife. He received a six-month conditional for possession, a suspended sentence for the theft and robbery, and three years probation. I do note that this was onerobbery only and the court was able to combine a conditional sentence order with a suspended sentence in these unique circumstances. [24] Before uttering sentence, I also consider the following mitigating factors to apply to Mr. Wollmann. Number 1, he has pledguilty. Number 2, he has no criminal record. Number 3, he is a young man.

Number 4, he has taken steps towards rehabilitation. Number 5, he was under strict bail conditions through VisionQuest, and I now understand he is back at VisionQuest. Number 6, he hasexpressed remorse previously and in open court. [25] Having taken into account the above sentencing principles and the caselaw, I reiterate that Mr. Wollmann's case contains someexceptional circumstances. I look especially at his youth, the lack of record, his attempts at rehabilitation and a low level of violenceinvolved in the robberies. Mr.

Wollmann's circumstances are exceptional enough to warrant a sentence well below the low end of theusual range for robbery; i.e. well below a two-year jail sentence. [26] That being said, I must refuse a suspended sentence because the principles of public safety, denunciation and general deterrenceare at the forefront here. Again, these offences involve two robberies of fast-food outlets with vulnerable employees.

This case hassome similarity to the Marks case where a 12-month jail sentence was upheld, but the facts in Marks were more egregious. [27] When I take into account all sentencing factors, I conclude that an eight-month jail sentence is appropriate. A 90-dayintermittent sentence is insufficient to meet the principles of denunciation and deterrence. I realize addiction is an illness. Mr.Wollmann's addiction caused him to commit the serious offence of robbery two times in one day. A jail sentence may not necessarilyinterrupt Mr.

Wollman's rehabilitation, as there usually are addiction programs available in custody; however, the two-year probationorder I will be making should sufficiently address the goals of rehabilitation. [28] So Mr. Wollmann, I am going to ask that you please stand up. [29] On Counts 1 and 2, I am sentencing you to a global sentence of eight months jail, less one month time served, through enhancedcredit, which leaves seven months remaining to be served. [30] The jail sentence will be followed by a two-year probation order, and the following will be the terms of that probation order.

[ 31 ] You shall keep the peace and be of good behaviour, you shall appear before the court when required to do so by the court, you shall notify the court or your probation officer in advance of any change of name or address, and properly notify the court or the probation officer of any change of employment or occupation. [ 32 ] You shall report in person to a probation officer within 72 hours of your release at the office of Abbotsford Community Corrections, 2865 Cruickshank Street, Abbotsford, B.C., and you shall thereafter report as and when directed by your probation officer and in the manner directed by your probation officer.

You shall inform your probation officer of your present residential address and telephone number and not change that address or telephone number without prior written notice to your probation officer. [ 33 ] You shall not possess any weapon as that term is defined in s. 2 of the Criminal Code . [ 34 ] I will adopt the counselling term as worded in the PSR: you shall attend, participate in and successfully complete any assessment, counselling or program as may be directed by the probation officer, which may include alcohol or drug counselling, or a residential treatment centre, and you shall comply with all rules and regulations of any such assessment, counselling or program. [ 35 ] You shall not go to any Quizno or Domino restaurants in the Province of British Columbia. [ 36 ] I am not going to put in the abstinence clause or the AA.

I think those would be in your best interests, but I do not want to set you up for a breach, and I take into account that I am making a jail sentence here. [ 37 ] In addition to the jail sentence and the probation order, you shall provide a sampling of your DNA while in custody, pursuant to s. 487.05(1). That is mandatory. [ 38 ] Under s. 109(1)(a), there will be a mandatory firearms prohibition, ten years for the items referred to in 109(2)(a), and life for the prohibited firearms and other items referred to in 109(2)(b). [ 39 ] That is my sentence. G.J. BROWN Provincial Court Judge