R. v. S.A.T. Date:, 2011 BCPC 48

Citation: R. v. S.A.T. Date: 20110207 2011 BCPC 0048 File No: 83257-2C Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SAT ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE de COUTO Counsel for the Crown: J. Dickie Counsel for the Defendant: R. Browning Place of Hearing: Port Coquitlam , B.C. Date of Hearing: February 2 & 7, 2011 Date of Judgment: February 7, 2011 [ 1 ] THE COURT : SAT, this was put over to today for sentencing following my judgment finding you guilty on both counts back on January 7th of this year.

Submissions were heard on February 2nd. [ 2 ] SAT, I do not propose to review extensively the facts in the matter because I have reviewed them at length in my judgment of January 7th, and they certainly form the background upon which this sentence is based. [ 3 ] I will, however, briefly summarize the facts in a nutshell which in essence is that I found that on October 18th, 2009 you were the driver of a vehicle and your then co-accused Brian Hester was the front passenger. You invited the victim, Terry Desroche, into your car on the basis that you offered to drive him home.

He accepted and got into the vehicle. [ 4 ] A short while later, you stopped on what was in essence a side street in a residential area and I accept the fact that what appeared to be a gun was produced, pointed at him, money and an iPod Touch and a cell phone was demanded of him, which he turned over to you. [ 5 ] You struck him in the mouth with the butt of the gun causing injury and blood to flow. The blood was quite profuse and at that time you told him not to bleed onto the carpet. He took both his hands and cupped them underneath his chin so as to prevent the blood from dripping onto the carpet.

[ 6 ] In the victim's evidence, he said that he asked to be let off, and according to your evidence you told him to get out of the car, but in any event he exited the vehicle.

You took off without any care and with a total disregard as to the extent of his injuries or how he was treated. [ 7 ] There was some reference to this being a crime of opportunity and Crown counsel said it was more than that because it involved some small measure of planning and deliberation. [ 8 ] It seems to me any criminal offence of which an accused is found guilty does involve a measure of planning and deliberation in the sense that intention is required to commit the crime which I found to be in your case.

Having said that, it seems to me that it was more a crime of opportunity than any kind of planning and deliberation in terms of a predator type or style of behaviour. [ 9 ] As was mentioned in the course of submissions last time, clearly determining an appropriate sentence involves consideration of a number of factors and principles.

Those principles are set out in the Criminal Code and I will refer to them shortly, but of significance is not just the nature and circumstances of the offence but the background information of the individual offender: in your case, yourself. [ 10 ] From what I was told by your counsel, you had a difficult upbringing. It was a troubled family. I am told that you were in and out of foster homes by age 15; you were separated from your parents at a very young age; you had no contact with your father through your formative years. You have been in touch with your mother in Alberta lately.

I am told you were raised to a large degree on social assistance. [ 11 ] According to your lawyer, you have had a substance addiction since age 16 starting with alcohol and marihuana and going on to cocaine and heroin; that in your early teens you were diagnosed with Attention Deficit Disorder; that you have a grade eight education, but that you have expressed interest in taking courses lately, as I understand it, in carpentry and in particular fine carpentry, which seems to me certainly to have potential for a future for you.

So those are the background factors which were referred to that I certainly do take into consideration here. [ 12 ] I should say, as was pointed out, you do have a criminal record and your background was provided to the courts in the past when you were sentenced.

That criminal record is quite extensive, but much of it relates, it seems to me, to drug-related charges and property- related offences, which is consistent with what was said of you by your lawyer, that is, that you have an addiction to drugs. [ 13 ] I do note that your record started off in Youth Court in 1997 with a conviction for assault causing bodily harm and as was mentioned by the Crown you have in the past had three convictions for offences involving violence, that being one of them, although quite dated. [ 14 ] There was also a conviction in 2003 -- amongst other things -- for uttering threats and possession of a weapon, and most recently in February of 2009, once again, a conviction for assault causing bodily harm.

I might point out from what I see with respect to that offence that on the date you were convicted you were given time credit of 30 days and a further sentence of 75 days, plus probation for one year.

If my calculations are correct, at the time of the commission of this particular offence on the 18th of October, 2009 you were on probation. [ 15 ] So that is certainly another aspect of your background that I do take into consideration -- your criminal record -- but also important are the kinds of convictions you have had in the past. [ 16 ] Also relevant in determining what is an appropriate sentence is the impact that this offence has had on the victim, and it was significant. The injury was significant as was described.

He bled profusely in the car, so much so that he cupped his hands to prevent the blood from dripping onto the carpet of the vehicle. In addition to that, he was hospitalized that day and required stitches. [ 17 ] With respect to impact on the victim, I also go back to how the attending officer, the first officer on the scene, described finding the victim's condition. She described him as looking very frightened, very agitated and fearful for his safety.

I think that is certainly a consideration and a factor to bear in mind and it goes back to what I said at the very beginning when I said you drove off with a total disregard to the condition he was left in. [ 18 ] It seems to me that we heard evidence that he was hospitalized within a few days and there were certainly a number of issues that he had to resolve which resulted in his hospitalization. Clearly, one of those factors and perhaps most significant is that it was only a few days after this incident which he has found very traumatizing.

Perhaps the robbery was, as they say, "the straw that broke the camel's back" that caused him to end up in hospital. [ 19 ] So those are the background circumstances that I certainly take into account in terms of relevancy. Your background, your upbringing, your criminal record, and the lifestyle you engaged in, the nature and circumstances of the offence, and the impact that this had on the victim.

Those factors were presented as either aggravating or mitigating circumstances. [ 20 ] As was pointed out by the Crown and certainly as I have just mentioned, the mitigating circumstance here is your troubled background and that this was more a crime of opportunity rather than a crime of deliberate commission. [ 21 ] It seems to me that the aggravating circumstances here are several. One is the criminal record that I have just referred to and the three previous convictions for crimes of violence, the most recent of which was in February 2009 and for which you were placed on probation.

It was while you were on probation for that crime of violence -- and I know that your counsel described the background of it - - but nonetheless the offence itself was violent, and while on probation you committed this very violent crime. [ 22 ] Another aggravating and significant circumstance in my view is the fact that you had been released from an institution just hours before it occurred. [ 23 ] Another aggravating circumstance is the fact as I have already referred to that this was a violent crime in which a weapon was produced and used which resulted in serious physical injuries that had a significant impact on the victim.

[24] When one looks at those two, that is, the aggravating versus the mitigating circumstances, in your particular case SAT, it seemsto me that the aggravating circumstances or factors far outweigh the mitigating circumstances. [25] Your counsel mentioned that the possibility of rehabilitation is still there and one should not give up on you. That may well betrue, but I also look at it realistically here. As was pointed out by counsel you are now 29 years old. You have had in the past numerousorders of probation. Most recently was that which I have just referred to in February of 2009.

It seems to me that each one of those wasan opportunity for rehabilitation. Did it happen? No. In fact, within hours of your release as I have just said you committed anotherviolent crime. So, how realistic is rehabilitation? [26] If there is a prospect for rehabilitation, how realistic is it in the sense of what are the definite and concrete plans that you intendto take towards such rehabilitation?

What changes have you made from the date of offence to the present from which someone could say"Yes, there is a real, good, viable chance here" and that it remains a significant factor? [27] It seems to me that when one considers all of those issues rehabilitation does remain questionable. Having said that though, I donot think that it has reached the point at age 29 where we can say there is absolutely no opportunity for rehabilitation because when onereaches that point then the alternative is to warehouse a human being.

I would be very hesitant to say we have reached that point in yourcase where we just put you away from society, remove you and basically warehouse you. I would hope that we have not reached thatpoint, although realistically that point may really not be that far off for you. You are quickly reaching that point. [28] So when I look at all these different considerations, it seems to me that in your particular case the aggravating circumstances andfactors outweigh that of rehabilitation although there is still that flicker of possibility that is not yet totally extinguished.

It may soon be,but that will be your call. [29] So, given all of what I said, what would be a fit sentence here? We have heard mention by both counsel of numerous cases, oneof which was R. v. Brogan, 1999 BCCA 278 , [1999] B.C.J. No. 1011 out of our Court of Appeal in which one of the judgeswho wrote for the three judges on the panel said this about sentences for robbery and I refer to paras. 10 and 11: [10] We have been given a number of cases where robbery with violence has been committed by young men such as Mr. Brogan.

Ananalysis of the range produced by these cases is that the sentencing range is somewhere between 2 and 9 years. The age of the offender,his previous criminal experience, the level of violence, the number of offences, the level of premeditation, whether the perpetrator wasdisguised or not, the type of weapon used and how it was used, the possibility of rehabilitation, the requirement of deterrence in aparticular community, are some of the factors which serve to distinguish one fact pattern from another. None of the cases drawn to ourattention fits Mr. Brogan's situation exactly, none could. [11]

Section 718.2(

b) provides that: ... sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This

section imposes the principle of consistency. Since no two offences are ever entirely the same, the

section mandates that the courtdetermine a general range for similar offences for similarly situated offenders. Offences and offenders can be generally categorized but amultitude of factors, as I have mentioned, will distinguish the details.

Thus, in this case the range can at best be said to be between 2 and9 years. [30] I think that case analyzed a number of scenarios in which the sentence was within that scale as being an appropriate sentencefitting the circumstances of the crime and the background of the offender and all those various other factors that Madam Justice Ryanmentioned in para. 10. [31] In fact, the other cases referred to by counsel at the last appearance clearly reflect that each case is dependent on thecircumstances: the nature of the case, background of the individual, et cetera, and the more serious or worse the individual is, thelengthier the sentence.

It is not necessarily confined to the range of two to nine years bearing in mind the maximum sentence for theworst case scenario for robbery is imprisonment for life.

Generally speaking, the range of sentence has been from two to nine yearsdepending on those various factors that I have just mentioned. [32] In your case, I also take into consideration, as I have been told, that you have spent 15 months in custody on what wouldcommonly be referred to as "dead time" and I think that is appropriate to consider in your case. [33] Of the 15 months, two of those months were a sentence that was imposed on you on an unrelated matter in May of last year thatyou spent while awaiting the disposition of this case. [34] I do note that as the offences occurred prior to the Truth in Sentencing Act, you are eligible for a consideration of the applicationof the two-for-one principle, that is, credit of two days for each one day spent in custody -- dead time.

It certainly seems to me to beappropriate in your case to apply that formula in calculating the amount of time you should serve and what should be credited towardsthat sentence. [35] As I have mentioned, of the 15 months you spent in custody, two of those months were spent serving a sentence on an unrelatedmatter. In my view as that was a sentence as opposed to dead time, I do not think it appropriate to give you the two-for-one credit.

However, I am told that the sentence you served was on remand status while you were in fact awaiting the trial of this matter so thatwhile it was a sentence, your status remained unchanged. That was your environment at the time and I think that that is a situation totake into consideration. With respect to those two months, rather than go and take it on a two-for-one credit, I will give credit on a one-to-one basis. [36] When I take that in consideration, it seems to me that the time you have served in custody is a total of 15 months less the twomonths you served on a sentence, leaving 13 months.

I think it appropriate to credit you on a two-for-one basis with respect to the 13months which would make that the equivalent of 26 months, and as I have said for the remaining two months, I will give you credit of

one-for-one so that is another two months, which equals a total of 28 months. [ 37 ] Now, with respect to a sentence on the first count of robbery, taking into account all of what I have said it seems to me it is within the mid-range of that scale of between two and nine years.

After giving it some thought, giving some thought to the case law and authorities, the aggravating circumstances versus the mitigating circumstances, what I have said about your prospects of rehabilitation, the nature of the offence, its impact on the victim, your background, I have concluded that in fact a fit sentence is one of four years.

So that will be the sentence on count 1. [ 38 ] I will as I have said, credit you a total of 28 months from the four years which will leave you a balance to be served of one year and eight months or 20 months. [ 39 ] In addition to that, with respect to count 2 as was mentioned by the Crown it is a sentence that is going to be consecutive and that is a one year consecutive sentence for a total of two years and eight months or 32 months. [SUBMISSIONS] [ 40 ] THE COURT: I will make a lifetime firearms prohibition pursuant to s. 109 of the Criminal Code . [ 41 ] I will make an order that a suitable sample of the accused's DNA be provided for the DNA Databank. [ 42 ] I waive the victim fine surcharge. (ORAL REASONS FOR SENTENCE CONCLUDED)