R. v. Barnett Date:, 2011 BCPC 320

Citation: R. v. Barnett Date: 20111110 2011 BCPC 0320 File Nos: 183927-1; 183501-3-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RYAN SCOTT BARNETT REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. RAVEN Counsel for the Crown: Provincial Crown: W. Sayson Counsel for the Crown: Federal Crown: K. MacWilliam Counsel for the Defendant: D. Gable Place of Hearing: Surrey, B.C. Dates of Hearing: September 29, 30; November 4, 2011 Date of Judgment: November 10, 2011 [ 1 ] Following a trial, Mr. Barnett was convicted on September 30, 2011 of the following offences: 1.

On Court Information No. 183927, one count of possessing a firearm, a handgun, while prohibited from doing so, contrary to

Section 117.01(1) of the Criminal Code ; 2. On Court Information No. 183501-3-C, one count of possessing a firearm, a .32 caliber Colt Firearms handgun, while not being the holder of a licence or registration certificate for the firearm, contrary to Section 91(1) of the Criminal Code , and one count of possessing a controlled substance, methamphetamine, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act . [ 2 ] He was acquitted of the offence of possessing a loaded prohibited firearm.

Circumstances of the Offences [ 3 ] On August 18, 2010, Constable Sandback of the Integrated Homicide Investigation Team in Surrey, was in plain clothes, driving an unmarked vehicle westbound on 110 th Avenue at 11:40 a.m., when his attention was drawn to a male riding a bicycle on the sidewalk approximately 20 feet to his right. As he observed the male, the man’s shirt lifted about 12 inches, revealing the grip and part of the frame of an object Constable Sandback believed to be a handgun.

The Constable followed the male into a nearby McDonalds Restaurant parking lot, where the male got off of his bicycle, and entered the McDonalds Restaurant. At 11:47 a.m., the male exited the restaurant and was followed by Constable Sandback, who had called for assistance. The male was stopped in the intersection of 120 th Street and 110 th Avenue shortly after he left the McDonalds Restaurant. The male was the accused, Ryan Scott Barnett. He was searched incidental to arrest and a black automatic pistol was located in the back of his pants, between his left hip and spine.

Eight baggies containing a total of 84.7 grams of methamphetamine were found on Mr. Barnett’s person, along with $90.00 in denominations of 5, 10 and 20 dollar bills, and $5.94 in change. Circumstances of the Offender

[4] Mr. Barnett is 31 years old. He has a long history of substance abuse, which he attempted to address in the past by completingthe Substance Abuse Management program in Prince George Regional Correctional Centre in 2001 and by entering the Luke 15 Houseresidential treatment centre on August 26, 2010. He remained at Luke House until October 5, 2010. He re-entered Luke House onDecember 4, 2010, remaining until January 25, 2011. His intention is to re-enter Luke House on his release from prison. Mr.

Barnettwas initially released on bail pending a trial on the charges arising from the August 18, 2010 incident; however, he was ultimatelydetained in custody on May 2, 2011 due to breaches of his bail order. [5] Mr. Barnett has support from his sister who lives in Maple Ridge and a friend Dave Cooper, both of whom are in recovery andsupport Mr. Barnett’s return to Luke House. Mr. Barnett’s partner, Amanda Chamberlain, is expecting their child on December 28,2011. Ms. Chamberlain also struggles with drug addiction. [6] Mr.

Barnett has a criminal record dating back to 1995, for several property offences, one impaired driving conviction, one priorconviction for drug trafficking and numerous convictions for breaches of bail orders, probation orders and conditional sentence orders. As indicated in the pre-sentence report, “Mr. Barnett’s response to previous supervision and interventions has been poor. He routinelyfailed to comply with supervision requirements, rejected rehabilitative interventions, and committed new offences while bound bysupervision terms.” [7] Mr.

Barnett’s underlying problem that causes him to come into contact with the criminal justice system is long-term substanceabuse. When he is not using drugs, he is able to work and maintain healthy family relationships. He is also motivated to stop usingdrugs and has insight into how his addiction has resulted in a criminal lifestyle. Therefore he has the capacity for rehabilitation, which isa factor to consider in crafting an appropriate sentence. Legal Parameters of the Sentence for Weapons Offences [8] The maximum sentence for an offence under s. 91 of the Code is five years in prison.

The maximum sentence for an offenceunder s. 117.01 of the Code is 10 years in prison. Sentencing Principles [9] As set out in

Section 718 of Code, the purpose of sentencing is as follows: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [10] Sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. (S. 718.1 of thecode) [11] Sentences must take into account aggravating and mitigating circumstances relating to the offence and the offender, and impose asentence that is similar to sentences imposed on similar offenders for similar offences in similar circumstances. (S. 718.2 of the code). Mitigating Circumstances [12] Mr.

Barnett has supportive family, insight into how his drug addiction has affected his criminal lifestyle, a willingness to addresshis addiction, a plan to deal with his substance abuse, and an offer of employment once he has completed residential drug treatment. Aggravating Circumstances [13] Mr. Barnett has eleven prior convictions for breaches of court orders and is therefore a poor candidate for communitysupervision. He has a high degree of moral culpability, in particular with respect to the offence of possessing a firearm while prohibitedfrom doing so.

There is a serious impact upon the community of possessing restricted firearms. This has led to serious injury and deathon the streets of Greater Vancouver, in particular Surrey, placing innocent bystanders at risk of injury or death. In this case, Mr. Barnettentered a family restaurant, McDonalds, at lunch time when families are known to frequent this type of restaurant, possessing aprohibited, restricted firearm. He has also previously been convicted of drug trafficking. In this case, the combination of weapons anddrug trafficking offences is a serious aggravating factor.

The quantity of drugs seized indicates an involvement in the drug trade abovethe street trafficking level. Reasons for Sentence [14] A just an appropriate sentence must reflect the gravity of the offences committed and the moral blameworthiness of the offender.R.v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500 (S.C.C.). [15] The sentencing principles to be emphasized in cases involving drug traffickers carrying restricted firearms are the principles ofgeneral and specific deterrence, and denunciation. R. v. Murphy 2007 Ontario Superior Court of Justice 2010 CarswellOnt 2088.

[ 16 ] The range of sentence imposed on similar offenders for similar offences of possessing a prohibited firearm is three to four years of custody. R. v. Murphy, supra; R. v. Cuthbertson 2009 B.C. Supreme Court 2009 Carswell BC 3751; R. v. Thurston 2004 B.C. Provincial Court 2004 Carswell BC 2767 , and R. v. McAnuff 2011 Ontario Superior Court of Justice 2011 CarswellOnt 6052 . [ 17 ] Crown and Defence agree that a custodial sentence is an appropriate part of the sentence to be imposed on Mr. Barnett.

Provincial Crown Counsel argues a three to four year custodial sentence to be served in a federal penitentiary is a fit sentence for the conviction on possessing a firearm while prohibited from doing so. In the alternative, the Crown suggests the Court may consider a thirty month sentence, with six months’ credit given for time already served, resulting in a sentence of two years less a day, with three years of probation to follow. This sentence allows Mr.

Barnett to access substance abuse programs in a provincial institution and to be further monitored in the community upon his release from custody. [ 18 ] Defence Counsel urges the Court to consider a Provincial sentence in a lesser range, taking into consideration the fact that Mr. Barnett always intended to plead guilty to the charges on which he was convicted, but was forced to a trial on the charge of possessing a loaded firearm, an offence on which he was ultimately acquitted. It was also pointed out that the longest custodial sentence Mr.

Barnett has served to date is eight months; therefore the range sought by Crown is significantly greater than the longest term served by Mr. Barnett. In addition, Mr. Barnett has been on remand for just over six months, without access to substance abuse programs awaiting a disposition of this matter. With respect to these defence arguments, I note that Mr. Barnett was initially released on bail, but was detained on or about May 2, 2011 because he breached his bail order. Therefore the time he has spent on remand, not accessing programs, is due entirely to his non-compliance with his bail order.

Although the sentence sought by the Crown is a significantly longer jail term than Mr. Barnett has served for prior convictions, the weapons offences he has been convicted of are significantly more serious than his prior convictions and warrant a much longer jail term. [ 19 ] Taking into consideration the principles of deterrence, both specific and general and society’s denunciation of crimes involving possessing restricted weapons, I find a sentence of thirty months in custody a fit sentence for the offences of possessing a firearm, a handgun, while prohibited for doing so, contrary to

Section 117.01(1) of the Criminal Code , and possessing a firearm, a .32 caliber Colt Firearms handgun, while not being the holder of a licence or a registration certificate for the firearm, contrary to Section 91(1) of the Criminal Code . These sentences are to be served concurrently. Mr. Barnett is entitled to six months’ credit for time served.

The sentence to be recorded is therefore six months time served and two years less a day to be served concurrently on each of these offences. [ 20 ] The Federal Crown seeks a one year sentence on the conviction of possession for the purpose of trafficking, to be served consecutively to the other sentences. The argument for a consecutive sentence is based on the fact that the weapons offences are separate and distinct from the drug offence. I have considered this argument but have decided the sentence served for the drug offence should be served concurrently, not consecutively for the following reasons.

The offences all arise from the same incident and stem from Mr. Barnett’s underlying substance abuse problem. Mr. Barnett is motivated to seek treatment for his substance abuse which will likely require long-term supervision once he is released from prison back into the community. This can be effected by attaching a probation order to a provincial sentence, but is not available with a federal sentence. The long-term interests of Society and the rehabilitation of Mr. Barnett are best met by supervising Mr. Barnett for a lengthy period of probation once he is released from prison. Therefore Mr.

Barnett is sentenced to one year in custody, on the offence of possession of a controlled substance, methamphetamine, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act , to be served concurrently with the balance of his custodial sentence. [ 21 ] In order to ensure Mr. Barnett receives the long-term treatment he requires for substance abuse and to ensure his good behavior in the community once he is released from prison, he will be placed on probation for a period of three years, on the following terms and conditions: 1.

To keep the peace and be of good behavior. 2. To report to a Probation Officer within twenty-four hours of the next working day following release from custody and to report thereafter as and when directed. 3. To reside where directed by the Probation Officer which may include a residential substance abuse facility and to obey the rules and regulations of any such facility. 4. Attend for, participate in, and complete counseling and/or programs for substance misuse as directed by a Probation Officer. 5.

If directed by a Probation Officer, to attend for, participate in, and complete assessments at Forensic Psychiatric Outpatient Services as directed. 6. To not be found within the city limits of New Westminster except while carrying the prior written permission of your Probation Officer specifying the purpose and duration of your attendance there. 7. To not be found within the area of Surrey that is north of 100 th Avenue and west of King George Blvd. except while carrying the prior written permission of your Probation Officer, specifying the purpose and duration of your attendance there. 8.

Abstain absolutely from the consumption of alcohol and controlled substances defined by the Controlled Drugs and Substances Act , except for those drugs prescribed specifically for you by a doctor. 9. You are not to own, possess, or carry a weapon with the exception of: (

a) Tools legitimately required for your employment while engaged in your employment. (

b) A knife used for the immediate preparation and consumption of food. [ 22 ] This probation order is attached to all three custodial sentences imposed on Mr. Barnett.

[ 23 ] The following ancillary orders are attached to the conviction of possessing a firearm, while prohibited from doing so, contrary to

Section 117.01(1) of the Code: (

a) A lifetime firearms prohibition, pursuant to

Section 109 of the Criminal Code . (

b) An order that the firearm seized, including magazines and ammunition be forfeited to the Surrey R.C.M.P. for destruction, pursuant to Section 491(1) (

b) of the Criminal Code . (

c) Mr. Barnett is ordered to provide a DNA sample to a peace officer within seven days of this Order. [ 24 ] With respect to the conviction of possessing a firearm contrary to Section 91(1) of the Criminal Code , the following ancillary orders are made: (

a) A lifetime firearms prohibition, pursuant to

Section 109 of the Criminal Code . (

b) Forfeiture of the cash found on Mr. Barnett’s person at the time of his arrest. An automatic forfeiture of the gun and ammunition seized from Mr. Barnett, attaches to this conviction. [ 25 ] As Mr. Barnett will be serving a lengthy prison sentence and has no financial means at the present, I waive any requirement for Mr. Barnett to pay victim surcharge fees with respect to all the offences on which he has been sentenced in this order. [ 26 ] A copy of the pre-sentence Report dated November 1, 2011 will be attached to the Warrant of Committal, with a recommendation from this Court that Mr.

Barnett receive programming and treatment for addictions. [ 27 ] A transcript of these Reasons for Sentence is to be provided to Corrections Canada. ________________________________ The Honourable Judge R. Raven Provincial Court of British Columbia