R. v. M.S.B. Date:, 2011 BCPC 238

Citation: R. v. M.S.B. Date: 20110829 2011 BCPC 0238 File No: 85571-2C Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M.S.B. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE BULLER BENNETT Counsel for the Crown: K. Boland Counsel for the Accused: H. Stevenson Place of Hearing: Port Coquitlam , B.C. Date of Hearing: August 29, 2011 Date of Judgment: August 29, 2011 [ 1 ] THE COURT : In June 2011, we started M.S.B.'s trial on Information 85571-2C.

Partway through his trial he changed his pleas and he pleaded guilty on count 1 that on or about the 5th day of September, 2010, at or near Anmore, in the Province of British Columbia, he did commit robbery of Paul Baldassarre, contrary to s. 344(1) (

b) of the Criminal Code . [ 2 ] He pleaded guilty also to count 2 that on the same date and place, he did use an imitation firearm while committing or attempting to commit the indictable offence of robbery, contrary to s. 85(2) of the Criminal Code . [ 3 ] The evidence and circumstances are as follows. [ 4 ] Back in September 2010, Mr. Baldassarre lived in Anmore, British Columbia. His house was on a cul-de-sac. In the early afternoon Mr. Baldassarre was at home. He was 17 years old at the time. He was waiting for his friend, Conor Finding, to come to his house for a visit. [ 5 ] Mr.

Baldassarre heard a knock at the door, went to the front door thinking it was his friend Conor, and saw two men there. One of the men asked for a person who did not live in the house. Mr. Baldassarre said words to the effect that no one by that name lived there and the two men left the house. [ 6 ] Shortly thereafter, Conor Finding arrived. He went to the front door of Mr. Baldassarre's house and as Mr. Baldassarre let Mr.

Finding in, the two men who had been at the front door previously pushed their way inside the house. One of these men was M.S.B. [ 7 ] M.S.B. produced a handgun which in the end turned out to be an imitation, but nonetheless a handgun. He told Mr. Baldassarre and Mr. Finding to be quiet and he pointed the gun at Mr. Baldassarre's chest. M.S.B. asked if anyone else was in the house and he also asked how to get to the basement of the house. The second man there told the two young men to be quiet and kept them in the foyer. [ 8 ] M.S.B. then went downstairs to the basement. Downstairs was a family safe.

Inside of that family safe, Mr. Baldassarre, Sr., who is in construction, kept amongst other things, large amounts of cash. M.S.B. was able to open the safe and he removed approximately $13,000 to $15,000 in cash. He did not take any of the firearms or ammunition that were also stored in the safe. [ 9 ] M.S.B. then came back upstairs into the kitchen of the residence and he left the residence by the back door. [ 10 ] The man who was upstairs with the two young men, Mr. Finding and Mr. Baldassarre, then left out the front door. [ 11 ] Mr.

Baldassarre called the police and some family members and the police did attend the residence. [ 12 ] M.S.B.'s fingerprints were found inside some of the items that were in the safe. M.S.B. had never been inside the home before. [ 13 ] I understand that this was a traumatic event for Mr. Baldassarre, the complainant, Conor Finding, and the Baldassarre family. Mr. Baldassarre, Sr. lost between $13,000 and $15,000; that money has not been recovered.

Of course the family feels less secure in their own home and I understand they feel as though they have been victimized. [ 14 ] Those are the circumstances of the offences before me. [ 15 ] Turning now to the circumstances of the offender. [ 16 ] M.S.B. is 22 years old now. He was 21 years old at the time of the offences. He has a record, all of which arises out of Youth Court. [ 17 ] He was given a conditional discharge for offences in October of 2005. [ 18 ] In December of 2006, he was convicted of robbery.

He was given a sentence of 13 days jail, an intensive support and supervision order for six months and probation for 18 months. On the same date, he was convicted of breach of undertaking. He was given two days jail and probation for 12 months. [ 19 ] On April 4th, 2007, he was convicted of uttering threats and an offence under the Controlled Drugs and Substances Act . The global sentence was community supervision, two days; open custody, four days; and probation for 18 months. [ 20 ] On May 21st, 2008, he was convicted of manslaughter.

He was given secure custody of one year and a conditional supervision order for two years. [ 21 ] So M.S.B. was still on his conditional supervision order when he committed the offences before me. [ 22 ] M.S.B. grew up in Coquitlam with his mother and stepfather. He has had very little contact with his biological father. M.S.B. has two brothers. M.S.B.'s mother and stepfather both had substance abuse problems and there was violence in the home. M.S.B. spent four-and-a-half years in foster care because of the substance abuse in the family. He was in care from age eight to 12. He was returned to his mother's care.

However, when he was 15 years old, as both his mother and stepfather had relapses, at that point M.S.B. went to live with one of his brothers. [ 23 ] M.S.B. was able to stay out of trouble for quite some time and I understand from the pre-sentence report his record is due to his association with negative peers. [ 24 ] M.S.B. has finished his GED while he was in custody. He has worked as a construction labourer. M.S.B. has used alcohol and marihuana in the past, however the problem that he had at the time of this matter before me is an oxycontin addiction.

He had been using oxycontin for about six months prior to committing these offences. In fact, he committed these offences to pay off a drug debt. He believed that he and his family would be in danger if he did not do as he was told and that meant these offences, what I would characterize as a home invasion. He did not choose the victims. [ 25 ] M.S.B.'s mother is M é tis. M.S.B. has had some contact, although limited contact, with his aboriginal heritage. [ 26 ] Institutional reports describe M.S.B. as being respectful and polite. M.S.B. has expressed his sorrow for what he did do and he is remorseful.

He seems to have an understanding of what he did, why he did it, and the impact that his actions have had on the Baldassarre family. [ 27 ] As a result of the offences before me, M.S.B.'s conditional supervision order was revoked and that ended on or about March 25th, 2011, so M.S.B., who was arrested in October for these offences, has spent approximately five months in custody on these offences only. [ 28 ] Crown suggests that there be a penitentiary sentence of four years less time served as a global sentence.

The Crown is seeking DNA and firearms orders as well and those are not disputed. [ 29 ] Crown has referred me to two decisions. The first one is R. v. Ralph James Moore , 2008 BCCA 129 which is a decision of our Court of Appeal. Mr. Moore is a much older and much more experienced criminal than M.S.B. Mr. Moore sought leave to appeal and did appeal his sentence of approximately eight years for a home invasion. At para. 13 of the decision, the Court stated:

[13] This Court has said that the sentencing principles of denunciation and deterrence must be given preferred attention with respect to these offences committed in circumstances involving violent entry into residential premises. Most recently, Frankel J. in R. v. Vickers , [2007] B.C.J. No. 2471 , 2007 BCCA 554 , at para. 12 , put it this way: [12] This Court has repeatedly stated that deterrence and denunciation are the primary factors in sentencing for violent crimes, particularly when these crimes violate the safety and security of a person's home. As Madam Justice Saunders recently stated in R. v.

Meigs , [2007] B.C.J. No. 1659 , 2007 BCCA 394 at para. 25 , "it is a grave offence to enter another person's home without permission, and graver to enter the home and violate the occupant. The courts must and do impose stern sanctions for such crimes." [ 30 ] Going on at para. 14: [14] The various home invasion cases to which we have been referred seem to establish a range of six to 13 years.

The total sentence for a particular individual will depend on the degree of violence involved, the offences committed in the invaded premises and the extent of the offender's involvement. [ 31 ] The Court goes on to state: After a proper consideration of all the circumstances of this case it cannot be said that an effective global sentence of eight years was unfit. [ 32 ] I just repeat that the circumstances of the offence and the offender in the Moore , supra , decision are quite distinguishable from the case before me. [ 33 ] Crown also referred to R. v.

Brossoult, Lagimodiere and Tait , 2009 BCSC 464 which is a decision of Mr. Justice Joyce.

Again, the circumstances of the offence and the three offenders are somewhat distinguishable, but at para. 86 of the decision, Justice Joyce wrote: [86] What I take from all of this [and that is after referral to a variety of decisions] is that the Court of Appeal has suggested that the majority of cases of "home invasion" will fit somewhere in the range of five to eight years, depending upon the circumstances of the particular offences said to constitute home invasion and the circumstances of the particular offender but that there will be cases that fall on either side of that general range.

A case may warrant a sentence in excess of that range because of particularly egregious circumstances concerning the offence or a particularly high moral blameworthiness on the part of the offender, and the lack of any mitigating circumstances.

Other cases may warrant a sentence under the usual range because the circumstances of the offence are not egregious, and/or the circumstances of the offender are exceptional, such as the lack of any significant record, the youth of the offender, aboriginal status, evidence of remorse, and a clear potential for the rehabilitation of the offender. [ 34 ] Defence counsel suggested a slightly different type of sentence. Defence counsel said in submissions that a global sentence of two years plus three years probation in these unusual circumstances is appropriate.

In the end, M.S.B. would be under Court orders longer than if I impose the four year sentence suggested by Crown. Such a sentence, two years plus three years as I call it, would adequately address protection of the public, deterrence and denunciation, but especially rehabilitation, given M.S.B.'s young age. [ 35 ] What is the fit sentence in these circumstances? [ 36 ] There are aggravating circumstances. M.S.B.'s record comes entirely from Youth Court, but it is a serious record. There is a prior conviction for robbery in 2006 and of course there is the very serious offence of manslaughter in 2008.

Particularly aggravating is that M.S.B. was bound by a conditional supervision order at the time that he committed these offences and of course that conditional sentence was revoked. These will be M.S.B.'s first adult convictions. [ 37 ] The circumstances of the offences before me are serious. The offences involved a handgun, albeit an imitation one, but the handgun nonetheless had the desired effect. Two 17-year-olds were essentially held hostage in Mr. Baldassarre's home. Robbery of course, and weapons offences, are serious in and of themselves.

I think that goes without saying. [ 38 ] There are mitigating circumstances. There were no masks, no shots fired, and only the safe was opened. There was no damage done to the house, there was no physical injury. Mr. Baldassarre and Mr. Finding were not tied up and there do not appear to be any threats of death made. [ 39 ] Mr. Baldassarre and Mr. Finding were held hostage, but briefly. Only so long as it took for M.S.B. to enter the residence, find the basement, find the safe, open it, remove he funds and leave by way of the back door. [ 40 ] Of course, M.S.B. was very young at the time of the offence.

He was 21 years old. [ 41 ] Institutional records show M.S.B. is polite and respectful. He does have insight into the nature of his offence and the effects of his offences on the people involved. He is very sorry for what he did do. I understand from defence counsel that M.S.B. wanted to plead guilty from a very early time however prior counsel determined that a trial would be appropriate. [ 42 ] I note also that M.S.B. has spent about five months in custody on the matters before me. [ 43 ] I am mindful of the sentencing principles set out in s. 718 and sections following.

The principles of sentencing that I take are paramount in the matters before me are both deterrence and denunciation, and given M.S.B.'s rather young age, the principle of rehabilitation is also important. Sentencing is always a very individualized process. [ 44 ] Defence counsel's submissions or what I call a two and three sentence: two years jail and three years probation, though attractive and with certain merits, especially regarding rehabilitation, in my view would not adequately address deterrence and denunciation which in view are paramount in home invasion cases.

[ 45 ] Rather, in my view, the sentence suggested by the Crown is indeed a fit sentence because it acknowledges M.S.B.'s youthfulness, his insight and his remorse. [ 46 ] Therefore, M.S.B. on count 1 the sentence will be three years less time served of five months for a sentence of two years and seven months. On count 2, there will be a consecutive one year sentence. There will be a DNA sample and that can be done by the deputies I believe before M.S.B. leaves the building, and there will be a s. 109 firearms prohibition for a period of ten years. [ 47 ] I will waive any surcharges if there are any. (ORAL REASONS FOR SENTENCE CONCLUDED)