R. v. Campbell Date:, 2018 BCPC 29

Citation: R. v. Campbell Date: 20180125 2018 BCPC 29 File No: 83267-2C Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KEVIN RICHARD CAMPBELL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G.J. BROWN Counsel for the Crown: D. Tsui Counsel for the Defendant: J. Oppal (agent for D. Ferguson) Place of Hearing: Abbotsford , B.C. Dates of Hearing: December 12, 2017, January 22, 2018 Date of Sentence: January 25, 2018 [ 1 ] THE COURT : These are my reasons for sentence in the matter of R. v. Kevin Richard Campbell, file 83267-2C. INTRODUCTION [ 2 ] Mr. Campbell has pled guilty to attempted robbery of Daniel Louie Lajeunesse, Sandra Mcsweyn and Justin Mcsweyn using a

restricted or prohibited firearm contrary to s. 344(1) (

a) and s. 463 (

a) of the Criminal Code . His plea is to Count 4 which proceeded by indictment. [ 3 ] I should say at the outset that s. 344(1)(

a) stipulates that everyone who commits robbery using a restricted or prohibited firearm is liable to imprisonment for life and to a minimum punishment of five years in the case of a first offence. However, the mandatory minimum in s. 344 does not apply to attempted robbery as neither s. 24 nor s. 463 refer to anything about mandatory minimum sentences. See also the reasoning of our Court of Appeal at paragraph 13 of R. v. Beattie , 2015 BCJ 1559 . Accordingly, I do not consider myself bound by any mandatory minimum in this case. [ 4 ] On September 19th, 2015 in Mission, B.C., Mr.

Campbell was involved in a home invasion of a residence which had an adjoining garage used as a licenced medicinal marihuana grow operation. This offence which could be termed a "grow rip" was carried out by a trio of masked men who brandished and pointed weapons at the victims. Mr. Campbell was one of the masked men and he was the only one to be caught. [ 5 ] Due to the serious nature of this offence, the Crown is seeking five years jail less enhanced credit of 1,014 days or almost 34 months. This offence occurred at a residence with the use of masks and firearms, and Mr.

Campbell has a considerable criminal record. [ 6 ] Defence counsel submits that a three-and-a half-year sentence less enhanced credit is a fit sentence here, taking into account mitigating factors. Furthermore, this lower jail sentence would better address rehabilitation because it would allow for a lengthy probation order. [ 7 ] I must determine a fit and just sentence for Mr. Campbell looking at all the sentencing principles applicable to this case.

CIRCUMSTANCES OF THE OFFENCE [ 8 ] An Agreed Statement of Facts was filed as Exhibit 1. [ 9 ] In the early hours of September 19th, 2015, Daniel Lajeunesse was exiting the garage used to house a licenced medicinal marihuana grow operation. Mr. Lajeunesse was one of the licensees. He encountered three masked males and one of the males, other than Mr. Campbell, pointed a shotgun at Mr. Lajeunesse's face and said, "You're coming with me". [ 10 ] Mr. Lajeunesse was forced to walk with the masked men to the house and once inside, the trio of masked men encountered Justin Mcsweyn and Zeth Brady.

Justin Mcsweyn is the 26-year-old son of the owners, and Mr. Brady was his friend. The individual wielding the shotgun then pointed at Justin Mcsweyn's face and demanded to know where "the stuff" was stashed. [ 11 ] One of the masked men banged on the bedroom door of Sandra Mcsweyn, and as Justin Mcsweyn yelled, "It's a home invasion," Mr. Lajeunesse was able to escape, enter his truck, honk his horn and yell that the police were on their way. The three masked men ran out of the house. Mr.

Brady said that one masked man had a shotgun, one had a handgun, and one had a knife. [ 12 ] In the meantime, Sandra Mcsweyn was able to lock her bedroom door, call 9-1-1 and alert her husband, Jeffery Mcsweyn. Sandra and Jeffery Mcsweyn then walked towards the garage and encountered a masked man holding some marihuana plants. Jeffery Mcsweyn, who is some 490 pounds, tackled the masked man to the ground and detained him until the police arrived. Of course, the tackled masked man ended up being Mr. Campbell. [ 13 ] Of significance, Jeffery Mcsweyn saw that Mr. Campbell was carrying a handgun.

When Jeffery Mcsweyn tackled Mr. Campbell, he was able to remove the handgun from him. [ 14 ] The Mission RCMP arrested Mr. Campbell at the scene. The search of Mr. Campbell revealed that he had the following items on his person: $3,511.10 in Canadian currency; a Samsung cell phone; drug paraphernalia; and a small amount of methamphetamine and heroin. The police also located a Browning 9mm handgun close to where Mr. Campbell was being held by Jeffery Mcsweyn. The Browning had one round in the chamber and no rounds in the magazine. [ 15 ] Mr. Campbell did provide a sworn statement to the Mission RCMP.

He stated he was directed to "rip off" a marihuana grow operation alongside two other men he had just met earlier that day. Mr. Campbell had a drug debt he needed to repay. Mr. Campbell was driven to the Mission residence by one of the other men and he recounted essentially what has been described above. He did not know how the other two masked men got away. Mr. Campbell denied knowing that the handgun was loaded. He was simply given a handgun and did not check the weapon to confirm it was empty. He intended to use the handgun solely for intimidation.

VICTIM IMPACT [ 16 ] Sandra Mcsweyn provided a Victim Impact Statement. She is married to Jeffery Mcsweyn and is the mother of Justin Mcsweyn. Since the incident, she finds herself "scared a lot". She has nightmares seeing her son with guns to his head. She fears this could happen again and she is extremely nervous to have her granddaughter over to her place. Her youngest daughter moved out because she did not feel safe. Simply put, Ms. Mcsweyn does not feel safe in her own home. THE OFFENDER MR. CAMPBELL [ 17 ] Mr. Campbell is only 30 years old, and he has struggled with addiction for much of his life.

He has a most unenviable criminal record which I will discuss below. Unfortunately, the root of his problems appears to be his very difficult upbringing. [ 18 ] Mr. Campbell's mother had male companions involved in a criminal lifestyle, and Mr. Campbell was encouraged to commit thefts from stores at an early age. From ages 8 to 18, Mr. Campbell was in foster care and he suffered both neglect and even sexual abuse. He had learning disabilities and dropped out of school at age 14. By then he was actively using illegal drugs and he was later drawn to negative peers involved in criminal behaviour. At age 18, Mr.

Campbell left foster care without any supports.

[ 19 ] Mr. Campbell used methamphetamine after dropping out in Grade 9 and then turned to alcohol. He later regularly used crack cocaine and ended up living in a tent in the east side of downtown Vancouver. When he stopped using cocaine, he turned to heroin. [ 20 ] Mr. Campbell also has been diagnosed with post-traumatic stress disorder because of the abuse he suffered as a youngster. Recently he has been in segregation due to his decompensating mental state. [ 21 ] On the positive side of the ledger, Mr. Campbell does have the support of his mother and a stepfather.

The stepfather has First Nations heritage and he has introduced Mr. Campbell to powwows and sweat lodges. Although Mr. Campbell is not himself an indigenous person, I do take into account this indigenous connection he has, and I bear in mind the sentencing principles under 718.2(

e) requiring me to consider all available sanctions other than imprisonment that are reasonable in the circumstances. [ 22 ] Mr. Campbell has also taken certain courses while in pre-trial custody and he attends NA and AA. He has completed Respectful Relationships, Essential Skills to Success and a violence prevention program. He also hopes to obtain his Dogwood Certificate while in custody. [ 23 ] Mr. Campbell apologized in open court for his involvement in this home invasion, yet he acknowledged that the apology was "just words". [ 24 ] His counsel pointed out that the offence was an unsophisticated one, and Mr.

Campbell was very candid with the police when he was caught. He had just met his accomplices the very day of the offence and he was given a firearm by someone else. He committed a crime in a foolish effort to repay a drug debt and he ended up being the only one caught. Mr. Campbell was surprised to learn his handgun was loaded. MR. CAMPBELL'S CRIMINAL RECORD [ 25 ] Mr. Campbell's criminal record dates back to 2005 and it is an unenviable one. He committed the serious offence of robbery in 2005, twice in 2006, in 2010 and in 2012.

For his last robbery, he received a 32-month jail sentence less seven months credit. [ 26 ] Mr. Campbell also has numerous property offences including 10 theft unders. Perhaps most disturbing, he committed a break and enter on September 17th, 2015, just two days before this robbery/home invasion. SENTENCING PRINCIPLES [ 27 ] Mr. Campbell is being sentenced for a serious robbery using a handgun. I must bear in mind the general sentencing principles set out in s. 718 and following in the Criminal Code .

These principles include denunciation, general and specific deterrence and separation of the offender from society where necessary. [ 28 ] Although denunciation and deterrence must come to the forefront in a robbery involving a firearm, I still must consider the rehabilitation of the offender and other factors such as s. 718.2(

e) discussed above. [ 29 ] I must also take into account that Mr. Campbell's sentence must be proportionate to the gravity of the offence as outlined in s. 718.1 and I must weigh aggravating and mitigating factors as set out in s. 718.2. [ 30 ] The case authorities provide some guidance as to the range of sentence but as I have said many times in many other cases, the facts of each case and for each offender are unique. [ 31 ] In the case of R. v. Beattie , cited above, the appellant pointed a sawed-off shotgun at two employees while attempting to commit a robbery of a 7-Eleven store. The shotgun was not loaded.

Our Court of Appeal reduced a five-year jail sentence to three and a half years given the unsophisticated nature of the offence, the fact that the robbery was only attempted and the offender's alcohol addiction and cognitive difficulties. [ 32 ] Like Mr. Campbell, Mr. Beattie had a difficult upbringing and he had a sizeable record. In my view, however, Mr. Campbell's offence is somewhat more serious. Although unsophisticated, the offence at bar involved some rudimentary planning with the use of masks and firearms. Also, Mr. Campbell's firearm was loaded although he says he was not aware of that fact.

I would further note that Mr. Beattie's longest prior sentence was seven months for a robbery whereas Mr. Campbell had been sentenced to 32 months for his fifth robbery. [ 33 ] In R. v. Davidson , 2009 BCJ 2463 , the appellant robbed a Shoppers Drug Mart while pointing what appeared to be a firearm tucked into his shorts. Our Court of Appeal reduced a four-year sentence to three years taking into account the young age of offender (25), the possibility of rehabilitation and the fact that the longest previous sentence was nine months. This case can also be partially distinguished from the case at bar. Mr.

Davidson did not use a disguise whereas Mr. Campbell was masked. Also Mr. Campbell had served much longer sentences than Mr. Davidson and he is somewhat older. [ 34 ] In R v. Elliott , 2010 BCJ 1893 , Mr. Elliott was sentenced to 58 months, i.e. four years, 10 months, less time served, for an attempted robbery of a pharmacist using a knife. This offender was 38 years old with an extensive criminal record including four prior robberies. The court did structure a sentence which included probation so as to address Mr. Elliott's mental health and addiction issues. [ 35 ] In R. v.

G.P.N. , 2017 BCJ 1298 , the offender attempted to rob a liquor store wearing a face covering and wielding a small pickaxe. The Provincial Court judge imposed a three-and-a half-year sentence less time served, together with two years' probation. Again, the sentence was structured to allow for probation to assist with rehabilitation. [ 36 ] In my decision of R. v. Herft , 2016 BCJ 2623 , I sentenced Mr. Herft to a global sentence of four years, three and a half months, for his role in a home invasion where he did put a firearm to the victim's forehead and then shot it into a fireplace.

That Herft home invasion involved more planning than the offence at bar but Mr. Herft had less of a criminal record. The Herft case involved a fairly

unique set of circumstances, because I reduced what would have been a five-year total jail sentence by one year to account not only for three-and-a-half months of enhanced credit, but also eight-and-a-half months time spent under very strict bail conditions. AGGRAVATING FACTORS [ 37 ] The following are aggravating factors in this home invasion involving the use of a firearm: 1) The offence occurred at a family residence occupied by a husband, a wife, a son and others; 2) Mr. Campbell's face was masked; 3) Mr. Campbell was at one time holding a handgun. There was one bullet in the chamber but, again, Mr.

Campbell says he was unaware of that fact. MITIGATING FACTORS : [ 38 ] The following are mitigating factors: 1) There was a guilty plea in October, 2017, thereby preventing the victims from having to testify. Mr. Campbell was also very candid with police once caught; 2) Mr. Campbell has expressed remorse in open court and he realizes there is no excuse for his criminal behaviour; 3) Mr. Campbell has had a very difficult upbringing and he suffered from historical abuse and addiction. He now has greater supports and has taken some positive steps while in pre-trial custody. THE SENTENCE FOR MR.

CAMPBELL [ 39 ] I have taken into account all the case law and sentencing principles discussed above in arriving at what I consider to be a fit sentence for Mr. Campbell. Although I have empathy for Mr. Campbell due to his difficult upbringing, I must consider that the attempted robbery was a serious one involving the use of a handgun. Moreover, this offence was committed by a man who has five convictions for robbery, as well as a recent break and enter. [ 40 ] Deterrence and denunciation come to the forefront in these circumstances. Mr.

Campbell received a 32-month sentence for his last robbery in 2012, yet he has once again at least attempted a robbery, this time with a firearm. He also committed a break and enter two days before this serious offence. This attempt at robbery was carried out by a trio of masked men in someone's home, and a strong message must be sent to dissuade these ugly acts of violence and aggression. [ 41 ] I am also of the view that there is only a subtle distinction between Mr. Campbell's attempted robbery and a fully completed robbery. A mask was worn, a firearm was brandished and victims were threatened and traumatized.

It is an attempted robbery only because Mr. Campbell is tackled before he can make off with a number of marihuana plants. [ 42 ] I also bear in mind that Mr. Campbell can make real progress even with a federal term of incarceration. He can take advantage of more courses and perhaps even get his Dogwood Certificate. Most importantly, there are programs available to address his addiction issues. [ 43 ] I have considered a lesser sanction with probation but I find that such a sentence would not be fit and just in the circumstances. [ 44 ] Mr.

Campbell will be sentenced to four years, 10 months or 1,760 days of total jail less 1,014 days of enhanced credit, which leaves a remaining jail sentence of 746 days which just exceeds two years. [ 45 ] There will be the following ancillary orders: 1) Pursuant to s. 109, there will be a lifetime firearms prohibition. 2) Pursuant to s. 487.051, as attempted robbery is a primary designated offence, Mr.

Campbell shall submit to the taking of samples of his DNA for the purpose of registration in the DNA Databank. 3) There will be a forfeiture order of the handgun, the bullet, the drugs and the drug paraphernalia. [ 46 ] I will order that the victim fine surcharge be payable forthwith and given that Mr. Campbell has no ability to pay it, he will serve two days concurrent to satisfy the victim fine surcharge. [ 47 ] That is my decision unless there are any questions. (DISCUSSION) [ 48 ] THE COURT: So I have signed the Forfeiture Orders. [ 49 ] MS.

TSUI: Thank you, Your Honour, and Crown directs a stay on the outstanding counts, Count 1, 2, 3 and 5. [ 50 ] THE COURT: Thank you. G.J. BROWN

Provincial Court Judge