R. v. H-C Date:, 2013 BCPC 127

Citation: R. v. H-C Date: 20130423 2013 BCPC 0127 File No: 89658-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Z.E. H-C ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE BULLER BENNETT Counsel for the Crown: E. Lehrer Counsel for the Accused: M. Swartz Place of Hearing: Port Coquitlam , B.C. Date of Hearing: April 23, 2013 Date of Judgment: April 23, 2013

[1] THE COURT: Mr. H-C has pleaded guilty to two counts on Information 89658-1. [2] Count 1 is a charge that on or about the 27th day of March, 2012, at or near Maple Ridge, in the Province of British Columbia,he did steal jewellery from James Douglas for the purpose of extorting what was stolen, and using violence to a person, James Douglas,contrary to s. 344(1)(

b) of the Criminal Code. [3] He pleaded guilty also to Count 3, that on the same date and at that same place with the intent to commit an indictable offence,he did have his face masked, contrary to s. 351(2) of the Criminal Code. [4] The circumstances are that on March 27th, 2012, Mr. H-C went to a store called the "Common Exchange Pawn Shop" in MapleRidge, B.C. He was wearing a balaclava over his face and was also wearing a hoodie and the hood was up. It was about 4:15 in theafternoon and there were several people inside of the store, including a young woman with her four children. When Mr.

H-C entered thestore obviously in disguise, it was fortunate that the young woman and those four children fled the store immediately. [5] Mr. H-C used bear spray and sprayed one of the employees of the store in the face with the bear spray. With a tire iron that hehad brought with him, Mr. H-C smashed some glass counters and stole some jewellery. The estimate of the jewellery taken is aminimum of $10,000.

I note that in the victim impact statement filed, the owner places the loss closer to $50,000, although most of thatwas covered by insurance, fortunately. [6] There was a customer in the store who was alert to what was going on. That customer threw a drill at Mr. H-C's back. Mr. H-C tried to spray that customer in the face with the bear spray. Fortunately for everyone, Mr. H-C missed because that customer hasemphysema and would have been in a very critical state had he actually been sprayed. The customer was able to throw another drill atMr. H-C's back and Mr. H-C fell down. Mr.

H-C was able to get back up again and he ran and fled the area. Because of the amount ofbear spray that was discharged, the occupants in the store were in quite a state of distress. [7] Sometime later Mr. H-C was arrested, primarily through DNA and fingerprints. [8] So, those are the circumstances of the offence. [9] I have the benefit of a victim impact statement and I understand from Ms. Thon that the business is family owned and operatedand from time to time she even has her own children in the store. She does not do that anymore because of the incident.

She also writesin the victim impact statement that she has a hard time dealing with young men that come into the store because of course she thinks thatthese young men are going to rob the store. [10] The display cabinets had to be replaced and they were replaced with Lexan which Ms. Thon describes as “unsmashable” and forwhich there was an additional cost. Also, they had to close the store for three days to clean the bear spray. So, she estimated that theloss of business was around $5,000.

Some carpeting had to be replaced because of the bear spray and also a guitar was a loss because itwas soaked with bear spray as well. [11] Insurance did cover the cost of the jewellery but did not cover the profit lost so Ms. Thon described a “major hit” on theirbusiness. She thinks that the total theft was about $51,000 most of which was covered by insurance. The grand total for everything shesays was $57,980. Again, that is the total loss incurred however I understand most was covered by insurance. [12] I have the benefit of a pre-sentence report that includes Mr. H-C's criminal record.

It goes back to Youth Court in 2010 inKelowna. [13] In 2010 alone, there were convictions for theft over, obstruction of a peace officer, assault and assault causing bodily harm. The final convictions in 2010 of obstruct, assault, and assault causing bodily harm, were in adult court. There were brief jail sentencesimposed for those offences. [14] In 2011, there are convictions for break and enter and commit indictable offence, trafficking in a controlled substance timesthree, theft under $5,000 and possession of a controlled substance.

There were jail sentences imposed on all of those matters, the longestbeing 69 days. There was also probation imposed on those matters. [15] In 2012, on June 25th, there is a conviction for assault. The sentence was jail of one day and probation for 12 months. OnAugust 7th, 2012, there are convictions for possession of a controlled substance and breach of probation for which short jail sentencesimposed. [16] Then from a printout, there is a conviction I believe it is March 12th, 2012 for breach of probation and again a short jailsentence.

On September 13th, 2012, theft over $5,000 and there was a short jail sentence as well followed by probation for 12 months. The theft over $5,000 in September of last year also involved jewellery. [17] Crown suggests a federal sentence on the robbery of two and a half to three years, less time served, and for Count 3, the facemasked, one year concurrent. Crown is also seeking a stand-alone restitution order and a DNA sample. [18] In support of that position, Crown has referred to three cases specifically. They are R. v. Brogan, 1999 BCCA 278 ,[1999] B.C.J. No. 1011 a decision of our Court of Appeal.

This was a sentence of eight years that was appealed. At para. 10 the Courtof Appeal wrote: [10] We have been given a number of cases where robbery with violence has been committed by young men such as Mr. Brogan. Ananalysis of the range produced by these cases is that the sentencing range is somewhere between 2 and 9 years. The age of the offender,his previous criminal experience, the level of violence, the number of offences, the level of premeditation, whether the perpetrator was

disguised or not, the type of weapon used and how it was used, the possibility of rehabilitation, the requirement of deterrence in a particular community, are some of the factors which serve to distinguish one fact pattern from another. None of the cases drawn to our attention fits Mr. Brogan's situation exactly, none could. [ 19 ] I should just point out for the record that this case involved a hostage-taking and that the sentence was upheld on appeal. [ 20 ] In R. v. Kim , [1996] B.C.J.

No. 1103 , this was an appeal of sentence for convictions for robbery, use of a weapon while committing an indictable offence, and being masked with intent to commit an indictable offence. It was a robbery of a fast food restaurant. There was a six month sentence imposed using pepper spray. Apparently one of the employees was severely injured by the spray. Mr. Kim was a drug addict and committed the offence in order to support his drug habit. He had a record as a young offender but no adult record. The sentence was upheld on appeal. [ 21 ] Crown also referred to R. v. Lowe , [1998] B.C.J.

No. 737 , a decision of the Court of Appeal again. The accused Lowe pleaded guilty to robbery and a charge of having his face masked. The Crown appealed the sentence of five years plus a two year concurrent sentence for the face masking. Mr. Lowe had a lengthy criminal record, certainly longer than Mr. H-C's, but ultimately the five-year and two-year concurrent sentences were upheld on appeal. [ 22 ] Defence counsel seeks a lower sentence of two years plus one day less time served for the robbery on Count 1 and a six-month current sentence on Count 3. Both counsel have submitted that as Mr.

H-C has been in custody since November 29th, 2012, that is the equivalent of about 145 days in custody or four months and 24 days. [ 23 ] Defence counsel referred to the pre-sentence report and I suppose in some respects it is not entirely surprising that Mr. H-C is in court. [ 24 ] Mr. H-C now is 20 years old and he had what I would call a very unfortunate upbringing. He has two sisters, both of whom are adults now. They managed somehow to grow up in a very dysfunctional family. Mr. H-C's mother was essentially non-functioning as a parent. She was a drug addict and in fact introduced Mr.

H-C to drugs when he was 12 years old. It started with marihuana and continued on to crack cocaine. [ 25 ] Mr. H-C's father did his best to keep the family together. He passed away in 2006 unfortunately, and really the family disintegrated after that. [ 26 ] Mr. H-C spent some time in foster care and was very fortunate to have two years with a family who really provided him with the only stability that he has had in his life. Although Mr. H-C's mother is still alive, she continues to struggle with substance abuse. [ 27 ] Because of this dysfunctional and entirely non-existent parenting, Mr.

H-C was left to raise himself in many respects with a mother who helped him develop his drug addiction. Mr. H-C went from marihuana to crack cocaine and then on to heroin. All of this occurred between the ages of 12 and 18. Of course, he did not do particularly well in school and dropped out at Grade 11. He has really had no stability in his life since other than as I have stated the time that he spent with a family in his teens and some time that he spent in the recovery home. [ 28 ] From time to time, Mr. H-C has been able to spend some time upgrading his schooling and he now has GED.

That is very much to his credit. Also, I understand that from time to time he has been able to remain clean and sober. [ 29 ] Mr. H-C has had some labouring jobs but they have not been particularly long-lasting and he does not have many vocational skills to offer. [ 30 ] However, very much to his credit, Mr. H-C takes responsibility for what he did do, he is sorry for what he did do even though he was entirely high at the time and was committing the offence to support is habit. [ 31 ] The author of the pre-sentence report writes at the bottom of p. 3 of the report going over to p. 4: Ms.

Petrie who was the – I would say foster mother for lack of a better word – and Mr. Don Raleda (phonetic) of a Better Place Recovery, both indicate they are willing to support [Z.E. H-C] in his recovery following his release. [Z.E. H-C] has not formulated any structured plans stating he does not anticipate he will be released in the short term. He currently presents as sincere in his intentions to address his substance misuse issues whether it be in custody or in the community.

He expresses that should the court impose a lengthy custodial sentence that is close to federal duration he would prefer to serve a federal term due to the availability of intensive programming. [ 32 ] Defence counsel referred to three cases. [ 33 ] The first is R. v. Bell , 2005 CarswellBC 1878 a decision of our Court of Appeal. In that particular matter there were convictions for two counts of robbery and two counts of using an imitation firearm in the commission of the robberies of two service stations.

The offender Bell had a long criminal record and she was on a s. 810 peace bond at the time of committing the robberies. There was no face masking as such but Ms. Bell had her face covered with sunglasses and a hoodie. She used a pellet gun that was sawed off so it would look real and she pointed it at a person's stomach in order to get her point across. She had a lengthy criminal record and she was a drug addict. That was a two year sentence that was upheld on appeal. [ 34 ] I have also been referred to a decision of my colleague, Judge Challenger, in R. v. S.M.S. , 2011 CarswellBC 2007 .

This involved two youthful offenders robbing a jewellery store. In my view this case is quite distinguishable on the facts. There was no covering of faces, there was no violence actually used, and the young people involved were not the masterminds for lack of a better word for this particular robbery. There were sentences of less than two years. Although it is helpful in some respects I do find that it is distinguishable on the facts.

[ 35 ] Then I have R. v. Jeff , 2010 CarswellBC 3993 a decision of Justice Willcock. This was a sentencing for a 19-year-old convicted of possession of stolen property under $5,000, robbery, having his face masked in the commission of an offence, and there was an earlier guilty plea to possession of a weapon being bear spray. The robbery in question took place in broad daylight in the middle of the day. Mr. Jeff had a criminal record similar to that of Mr. H-C.

There was a starting point of two years less one day but credit was given for time served so that the warrant of committal showed a further sentence of six and a half months. Mr. Jeff was an aboriginal offender so the analysis of the substance abuse is a little different for him. [ 36 ] There are mitigating circumstances. Mr. H-C pleaded guilty early on. He is very sorry for what he did do and although he does not remember the incident in particular, he takes responsibility for what he did do. Mr. H-C is only 20 years old. [ 37 ] There are aggravating circumstances. These are serious offences to start with.

They involve violence in two forms: the use of bear spray, and it was used in the course of the robbery, and there was violence in the sense of broken glass. Of course someone could have been easily injured because of what I gather from Crown's submissions, was a significant amount of broken glass. [ 38 ] Also, for such a young man, Mr. H-C has a lengthy criminal record and I note that the level of violence is increasing or escalating to robbery with a weapon. The spray as I have already stated was discharged. Also, the tire iron that Mr.

H-C brought with him was used to break the glass and must have been readily apparent to everyone in the store. There were vulnerable people present at the time of the robbery, both young people and old people. There was a significant amount of jewellery taken in the course of the robbery. [ 39 ] Further, Mr. H-C was on at least one probation order at the time of committing the offence and I do note that the September 2012 conviction was for theft over $5,000 of jewellery as well. [ 40 ] Given the aggravating and mitigating circumstances, it is not a matter of whether or not Mr.

H-C will go to jail, it is for how long. How long should the jail sentence be? [ 41 ] It has to be a sentence that will hopefully deter Mr. H-C and others from committing these sorts of offences. It has to protect the public. Also, I note that the sentence has to denounce these sorts of acts that threaten the safety of the public. The sentence also has to assist Mr. H-C with his rehabilitation.

He is a young man and there is hope in my view for rehabilitation. [ 42 ] When I consider all of the principles of sentencing, the cases that are before me, the submissions of counsel, and the mitigating and aggravating circumstances, Mr.

H-C, it is my view that the sentence proposed by Crown counsel is a fit sentence for these reasons: this was a serious offence, it involved not only the bear spray but a tire iron so there was some premeditation, innocent people were involved, there was a large amount of money involved, and you have a significant criminal record and the violence is escalating, but I think that the sentence suggested by Crown recognizes your early guilty plea, your young age, your good chances, in my view, of rehabilitation, and also for the fact that you take responsibility for what you did do. [ 43 ] So, as to the sentence for Count 1, the starting point, in my view, should be three years less time served of four months and 24 days.

There will be a concurrent sentence for Count 3, that is having your face masked, with a starting point of one year less time served of four months and 24 days.

That leaves, by my calculations, about roughly just over two-and-a-half years in total to be served, of course, in a penitentiary where, sir, you will have the intensive programming available for your rehabilitation. [ 44 ] There will be, on Count 1, a DNA sample and under s. 728 of the Criminal Code , there will be a $600.00 restitution order for the benefit of the Common Exchange Pawn Shop and also under s. 110 there will have to be a lifetime weapons prohibition. [ 45 ] I will waive any victim fine surcharges if there are any. [ 46 ] MS.

LEHRER: Thank you, Your Honour, and thank you also for reminding me about the weapons. The Crown directs a stay of proceedings on Count 2, Your Honour. (ORAL REASONS FOR SENTENCE CONCLUDED)