R. v. Busby Date:, 2011 BCPC 331

Citation: R. v. Busby Date: 20111109 2011 BCPC 0331 File Nos: 54357-2-C 54357-3-A Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOHN RYANE BUSBY ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: K. Bryson Counsel for the Defendant: N. Adams Place of Hearing: North Vancouver , B.C. Date of Judgment: November 9, 2011 [ 1 ] THE COURT: Mr. Busby was convicted of robbery after a trial. A charge of aggravated assault was conditionally stayed.

He is before me for sentencing. [ 2 ] On January 21st, 2010, in the context of what I will call a planned shakedown of the victim, Abbid Jaffer, for money, Mr. Busby pulled a knife when Mr. Jaffer resisted his demands. Mr. Jaffer defended himself by striking blows and Mr. Busby struck or attempted to strike Mr. Jaffer back. Mr. Busby then swiped or thrust the knife toward Mr. Jaffer hitting him in the side and puncturing his lung. Mr. Busby, aware that Mr. Jaffer had been cut, fled the scene. [ 3 ] Mr. Jaffer made his way to a nearby restaurant.

There, an off-duty police officer, Corporal Aitken, provided first aid and called an ambulance. He recognized that Mr. Jaffer's lung had collapsed and was able to maintain a seal to prevent air going into the lung. The Crown takes the position that Mr. Jaffer may have died were it not for the fortuitous presence of Corporal Aitken at the restaurant. The evidence does not go quite that far, however, the wound was clearly life-threatening. [ 4 ] Mr. Busby testified that the robbery was set up by him and a mutual friend of his and Mr. Jaffer's. The two were aware that Mr.

Jaffer would be coming to meet with their friend to go to the casino and would likely, or did, have money on him. Mr. Busby said he thought Mr. Jaffer would give up the money, but when he demanded it, Jaffer resisted physically and Busby fought back.

[ 5 ] My findings of fact are detailed in reasons for judgment filed previously. It is sufficient to reiterate here that I found that Mr. Busby brought the knife with the intention of using it if he had to and that he flailed at Mr. Jaffer with it, with force, in circumstances where he could not be said to have been acting in self-defence. [ 6 ] The Crown seeks a sentence of three to five years. Defence submits that the facts justify a sentence of two years less the time served, in the high provincial range. The maximum sentence for robbery is life imprisonment.

A conditional sentence order is precluded by the Criminal Code because the offence is a serious personal injury offence. While a suspended sentence is not precluded, it would be wholly outside the range dictated by the case law and inconsistent with the principles pursuant to which the legislators have precluded a conditional sentence order, in my view. [ 7 ] Mr. Jaffer did not provide a victim impact statement, but he testified at the trial. He said he thought he was going to die. He was admitted to hospital and endured being intubated without anaesthetic. He had surgery to repair his lung.

He was in bed for three days and in hospital for most of a week. After that, he stayed with his mother in her small apartment so that she could care for him. He has scars from the wound and the surgery and still feels some pain as of the trial date. [ 8 ] Mr. Jaffer was 29 at the time of the offence. He was a student at Capilano University. His education was delayed for a term by his injury. Mr. Jaffer is a diagnosed schizophrenic and takes prescribed medication. There is no evidence Mr. Busby knew this, but Mr. Jaffer is obviously unsophisticated. He met Mr. Busby through a friend at his mosque.

There is some suggestion in the evidence that Mr. Jaffer may have indulged in the use of non-prescription drugs from time to time, but he was not a person engaged in a criminal lifestyle. [ 9 ] From Mr. Busby's testimony, I note the following. He was 32 at the time of the trial. He was adopted into a good supportive family. Despite this, he started doing drugs at age 13, unbeknownst to his parents. He lived for a time in Penticton with one or both of his parents. He did not do particularly well in school. By his 20s, he had become somewhat estranged from his family. [ 10 ] When arrested on this offence, Mr.

Busby's car was impounded and he lost it because he was unable to pay the fee to pick it up. After breaching his bail in July 2010, he left his girlfriend's residence where he had been staying and went to the Lookout shelter in North Vancouver. He breached again at Christmas and moved to a Vancouver shelter still not choosing to turn to his family for support. [ 11 ] After his arrest in March of 2011, Mr. Busby was released to Vision Quest and made some good progress until his relapse in the fall after the trial. He had reengaged with his family who perceived a change in attitude and willingness to make amends.

They were obviously upset with the knowledge that he had relapsed and breached again after that release. [ 12 ] This is Mr. Busby's first offence of violence, though he has a record for breaches of his bail order on this matter and other minor entries. He had trouble maintaining sobriety and complying with his curfew. [ 13 ] While awaiting sentence on this matter, he left his treatment program. The matter was set to be scheduled for sentencing and he left his treatment program and stayed at his father's residence, not returning there.

He did, in fact, turn himself in on the warrant that was issued for the breach of his bail conditions. [ 14 ] Mr. Busby has been struggling with addiction and has made some progress and had some setbacks. The offence occurred when he was significantly intoxicated or at least in the context of a day when he was drinking heavily which was at the time not out of character for him. Most recently, it appears, he has been struggling with heroin and I am told he tested positive while at Vision Quest which is why he left there. [ 15 ] Mr.

Busby spent 19 days in custody in the early part of 2010 for which he will receive double credit in accordance with the law prevailing at that time, or 38 days. He has now spent another 42 days since his arrest on September 29th. He is entitled to credit for a total of 80 days of presentence custody. [ 16 ] Counsel referred to a number of cases in submissions which I will not list here. The cases set out a wide range of sentence for offences involving the infliction of life-threatening wounds, ranging from two years to six years.

Generally, the sentences are in the federal range except for situations involving consensual fights or provocation. The cases I found of most assistance were Perreault , Flores , Craig , and Dankewich . [ 17 ] The factors of general deterrence and denunciation, parity with similar offenders, and the need to impose a sentence commensurate with the seriousness of the offence and the degree of responsibility of the offender are the principles that need to be emphasized in these circumstances. For Mr.

Busby, who does not have a history of violence before this unfortunate occasion when his substance abuse issues overrode his better judgment, specific deterrence centres on his ability to maintain sobriety. That would arguably be achieved by a sentence emphasizing rehabilitation. However, that is not the primary focus at this time. [ 18 ] The offence, as I have found the facts, involves a deliberate decision to use a knife in committing a robbery, resulting in a significant wound. Mr.

Busby fled the scene after the incident knowing that the complainant had been injured and not knowing whether he would receive assistance. The physical consequences to Mr. Jaffer were severe and lasting. [ 19 ] It is said that Mr. Busby was not aware of the seriousness of the wound. However, he was aware there was one, and he cannot lay claim to any belief that the victim was less injured than he was, because he did not stay to find out.

Any time a knife of the kind admittedly used here is wielded toward an individual even in the sideways fashion the defendant described, the wielder must anticipate that he may be the author of grievous or serious bodily harm as indeed did occur here. [ 20 ] On the mitigating side, Mr. Busby is a first-time violent offender and has not served a jail sentence before, though he has spent some time in remand. His record is minor apart from this offence.

He was unsuccessful in stealing from the victim and the incident involved only one thrust or swipe with the weapon. [ 21 ] It is less serious than an intentional series of blows or thrusts inflicted with intent to wound. This amounts more to recklessness

as to the consequences of an intentional assault. That may be a feature that distinguishes this case from some of those at the higher end of the range in terms of aggravated assault, but it must be borne in mind, as well, that this stabbing took place in the context of a planned robbery. [ 22 ] Although Mr. Busby maintained for some time to the police that he was acting in self-defence, he never denied that he wounded Mr. Jaffer. In his testimony, he was forthright about his involvement in the robbery.

Although I rejected a portion of his version of the events, that does not detract from a conclusion he was upset about the consequences of his actions and he is truly remorseful, as he has indicated in his remarks to me this morning. [ 23 ] Stand up if you would, please, Mr. Busby. [ 24 ] Considering all of the circumstances and relevant factors, I am of a view that the appropriate sentence for you at this time is one of three years.

From that, I will deduct the 80 days that you have already served and it will be the balance of that that you will serve in a federal penitentiary. [ 25 ] You have indicated that you intend to make use of programs.

You will find that there are good programs available for you there and I suggest or encourage you to make the best use of them that you can so that you come out a better person than are you going in. [ 26 ] You will also provide a DNA sample pursuant to s. 487.051(1). [ 27 ] You will be prohibited from possessing firearms and related items pursuant to s. 109 for 10 years and restricted weapons for life. [ 28 ] The victim fine surcharge will be waived. [ 29 ] Were there other ancillary orders? [ 30 ] MS. BRYSON: No, that was everything, Your Honour. [ 31 ] THE COURT: Okay. That is the sentence on the robbery, Mr.

Busby. With respect to the breach, I will just have regard to the record I have here. In respect of other breaches, it appears you have received a sentence of seven days. For this particular breach, in all the circumstances, there should be a sentence of 30 days concurrent to the sentence I have just imposed. [ 32 ] I wish you luck, Mr. Busby. I expect we will not see you back in the courts again. [REASONS FOR SENTENCE CONCLUDED]