R. v. McDougall Date:, 2017 BCPC 372

Citation: R. v. McDougall Date: 20171010 2017 BCPC 372 File No: 84099-1, 84602-1 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. FRASER ALLAN McDOUGALL ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HEWSON Counsel for the Crown: A. Vandersluys Counsel for the Defendant: G. Jones Place of Hearing: Kelowna , B.C. Date of Judgment: October 10, 2017 [ 1 ] THE COURT: Madam Clerk, these are reasons for sentence with respect to two related Court files. [ 2 ] On Kelowna File Number 84602, Fraser Allan McDougall has plead guilty to two counts of robbery committed on December

23, 2015, contrary to s. 344(1) (

b) of the Criminal Code . On Kelowna File Number 84099, Mr. McDougall has plead guilty to one count of theft under committed about two weeks later on January 8, 2016, contrary to s. 354 (

b) of the Criminal Code . The Crown proceeded by indictment with respect to the two counts of robbery. Mr. McDougall elected to have a trial in this Court and entered his guilty pleas on the first date set for trial. As a result of representations made in advance on his behalf by Mr. Jones, his counsel, the Crown witnesses have been denotified. [ 3 ] Mr. McDougall is 30 years old with no criminal record. On the afternoon of December 23, 2015, within the span of about two hours, he robbed two different Subway Restaurants of small amounts of cash. He was armed with a knife.

He entered a third restaurant, but left quickly apparently after finding that other customers were inside. A police officer approached him and, after finding the knife, placed Mr. McDougall under arrest. Mr. McDougall fled the police on foot and then in his car until the police terminated the pursuit because of high speeds. Mr. McDougall was ultimately identified, rearrested, and released on bail. [ 4 ] On January the 8th, 2016, he stole about $120 worth of food items from a grocery store. The store's loss prevention officer arrested him after he left the store without paying. Mr.

McDougall's three-year-old son was with him during this offence. [ 5 ] Mr. McDougall's crimes are out of character. He has no criminal record and does not associate with others involved in criminal lifestyles. Until shortly before he committed these crimes, he had enjoyed a stable and relatively comfortable life. Although separated, he is committed to being actively involved in the lives of his two children and to support both them and his former partner. He has worked as a server and in the oil fields.

His younger son is autistic and requires special care. [ 6 ] The issue before me is the determination of a fit sentence for this offender and these crimes. The Crown takes the position that the principles of denunciation and deterrence are paramount. Employees in stores dealing directly with the public are vulnerable. One of the employees robbed by Mr.

McDougall was completely alone at the time of the robbery and, therefore, deserving of special consideration from the Court. [ 7 ] There is no Victim Impact Statement before me, but the Crown says that the victims found the incidents very frightening and I accept that. Mr. McDougall had armed himself with a knife, menaced the employees by approaching them behind the counter of the restaurants and grabbed one of the employees by the arm. When first stopped by the police, Mr.

McDougall fled and the subsequent pursuit created danger for the police and all other members of the community. [ 8 ] The range of sentence in this province for robbery when the offender is armed starts at around two years' incarceration and, depending on circumstances, may be as long as nine years. [ 9 ] On behalf of Mr. McDougall, Mr. Jones argues that this is one of the very rare cases of robbery in which an offender might be sentenced outside the normal range. He suggests that suspending the passing of sentence and placing Mr.

McDougall on a lengthy term of Probation would have a sufficient denunciatory and deterrent effect, but at the same time further Mr. McDougall's prospects of rehabilitation. In the alternative, Mr. Jones asks that Mr. McDougall be sentenced to a term of incarceration of such a length that it could be served intermittently. [ 10 ] Mr. Jones cites the decision of the British Columbia Court of Appeal in R. v. Cain , May 31st, 1993, Victoria Registry Number VI01834, at paragraph 11, where Mr.

Justice Toy said for the Court: I do not believe that incarceration is a prerequisite in any case of convictions for serious crimes even as serious as this one was, namely, robbery, where there are real and substantial grounds to believe a person of previously bad character has and can affect his own rehabilitation. [ 11 ] Mr. Jones' argument was thoughtful and carefully made and deserves serious consideration. It is centred on the expressions of remorse that Mr. McDougall has made since the crimes were committed over two years ago.

When he was released by the police on December 24, 2015, after making a voluntary inculpatory statement, Mr. McDougall told the police that he was ashamed and sorry for scaring the victims of the robbery. He told the police, "I am not this guy." [ 12 ] Mr. McDougall has met twice with a Clinical Counsellor employed at the Starbright Children's Development Centre which his younger son attends. Mr. McDougall suspects that he suffers from undiagnosed depression and says that he is willing to pursue any form of counselling ordered by the Court. [ 13 ] Remorse can spring from many sources.

Some people experience remorse after an accident when they have done nothing criminally wrong because their sense of empathy leads them to feel another's person's loss. Some offenders experience remorse because they recognize that their crime is a violation of the community's code and norms of conduct. Other people feel remorse only because they have been caught doing something wrong in fear of future punishment. [ 14 ] Some forms of remorse should be given significant weight in mitigation of sentence.

When an offender recognizes that his or her conduct has violated community standards and suffers remorse because of it, there is little to be gained from further punishment in the way of specific deterrence. However, if the source of the remorse felt by the offender is simply the fear of future punishment, failing to impose the punishment feared might actually encourage criminal conduct in the future. The challenge is to distinguish remorse arising from one source from the remorse arising from others. [ 15 ] The offender's self-assessment is not particularly reliable.

The assessments of family and friends who know the offender well are better, but might also be coloured by bias. The assessment of people at arm's length from the offender, Counsellors, Presentence Report Authors, and others, may be more reliable, but those people may have had insufficient opportunities to observe the offender. It seems to me that the key is to look for a change in the offender's conduct. I think that this is what the Honourable Judge Filmer who imposed sentence on Mr. Cain in the Court of first instance was referring to in a passage emphasized by Mr. Justice Toy.

Judge Filmer looked to evidence of the offender's character, conduct, and attitude as evidence of what he called a major change in philosophy. [ 16 ] In this case, Mr. McDougall has done a number of things which I must consider. He has said repeatedly that he is remorseful.

He said this to the police at the time of his arrest and release, through his counsel here in Court and to me when he spoke to me himself. He has engaged a Counsellor and has attended for two sessions. With the obvious exception of the theft under committed on January 8, 2016, he has complied with his bail conditions faithfully. [ 17 ] However, I must also consider the things that Mr. McDougall has not done. He has not pursued counselling beyond the two sessions and he has not pursued a diagnosis for what he suspects is depression. He has made no arrangements for restitution.

While he deserves some credit for pleading guilty and saving the witnesses from the strain of testifying, I also have to recognize that he waited to plead guilty until the eve of trial. Most significantly to me, after being released on bail for the robberies, he committed the theft under while caring for his three-year-old child.

In these circumstances, I am not satisfied there is sufficient evidence of a change in conduct or what Judge Filmer might have referred to as a change in philosophy to conclude that there is such remorse here that a suspended sentence would be a fit sentence. [ 18 ] I am well aware of Mr. McDougall's family responsibilities and the importance of his support to his former partner and their two young children. I am also well aware that he is still a young man and has great potential to return to a stable productive life. [ 19 ] Would you stand, please, Mr.

McDougall. [ 20 ] In taking all of these matters in account, I am satisfied that it is appropriate to order that you be incarcerated for 12 months on each of the two robberies to be served concurrently, and to a 14 day jail sentence for the theft under to be served consecutively to the sentences for the robberies. [ 21 ] Following your release from custody, you will be placed on probation.

The term of the Probation Order will be 12 months. [ 22 ] The conditions of the Probation Order will be drawn from the Provincial Standard Picklist, Madam Clerk. [ 23 ] THE CLERK: Mm-hmm. [ 24 ] THE COURT: 2001 - You must keep the peace and be of good behaviour. You must appear before the Court when required to do so by the Court.

You must notify the Court or the Probation Officer in advance of any change of name or address, and promptly notify the Court or the Probation Officer of any change of employment or occupation. [ 25 ] 2002 - You must have no contact or communication directly or indirectly with Jagpreet Kaur or Karyn Robinson. [ 26 ] 2005 - You must not go to any residence, school, or workplace of Jagpreet Kaur or Karyn Robinson. [ 27 ] 2301 - You must not go to any Subway Restaurant or any Real Canadian Superstore, Madam Clerk, in the Province of British Columbia. [ 28 ] 2104 - You must report in person to a Probation Officer at the Kelowna Community Corrections Office within two business days after your release from custody, unless you have obtained, prior to your release, written permission from the Probation Officer to report elsewhere or within a different timeframe.

After that, you must report as directed by the Probation Officer. [ 29 ] 2201 - When first reporting to the Probation Officer, you must inform him or her of your residential address and phone number.

You must not change your residence or phone number without written permission from your Probation Officer. [ 30 ] 2501 - You must attend, participate in, and successfully complete any intake, assessment, counselling, or program as directed by the Probation Officer. [ 31 ] 2616 - You must not possess any knife, except for the immediate preparation or eating of food or for purposes directly and immediately related to your employment. [ 32 ] In addition to the Probation Order, there will be Ancillary Orders. The first will be the DNA order. Counts 1 and 2 on Information 84602-1 are primary designated offences.

Pursuant to s. 478.051, I make an order authorizing the taking of samples of bodily substances from you for the purposes of registration in the national DNA databank. The samples will be taken from you while you are in jail and you must submit to the taking of samples. [ 33 ] There will be a s. 109 Weapons Prohibition.

You are prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substance for a period of 10 years, and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. [ 34 ] The victim surcharge will be payable in the amounts and at the time set by regulation. [ 35 ] The outstanding counts? [ 36 ] Mr. Vandersluys: Stay of proceedings, Your Honour. [ 37 ] THE COURT: Thank you very much, Mr.

Vandersluys. [ 38 ] THE CLERK: Quickly, Your Honour, could I just clarify the Probation Order covers just the robbery charges or all files? [ 39 ] THE COURT: The Probation Order is on both Informations. (REASONS FOR SENTENCE CONCLUDED)