R. v. Hipkin, 2019 BCPC 243

Citation: R. v. Hipkin 2019 BCPC 243 Date: 20190823 File No: 91048-1 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DYLAN JACK HIPKIN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE BURDETT Counsel for the Crown: J. Deschamps Counsel for the Defendant: K. Newby Place of Hearing: Kelowna , B.C. Date of Judgment: August 23, 2019 [ 1 ] Dylan Jack Hipkin has entered a guilty plea to Count 1 on Information 91048, that on or about February 14, 2019, he did intentionally or recklessly cause damage by fire explosion to an apartment building at 1980 Pandosy Street in Kelowna, British

Columbia. [ 2 ]

Section 434 of the Criminal Code is an indictable offence punishable by a maximum sentence of life in prison. [ 3 ] Mr. Hipkin has been in custody for 190 days and is entitled to credit at the enhanced rate of 1.5 times or 285 days. The Crown seeks a sentence of two years less a day and a lengthy period of probation. Mr.

Hipkin seeks a sentence of time served, or approximately nine and a half months, and probation. [ 4 ] I have considered the following which have been marked as exhibits in this proceeding: Exhibit 1, which is a series of photographs of damage caused to the apartment; Exhibit 2, a breakdown of costs of the expense incurred to repair the apartment; Exhibit 3, the Forensic Psychiatric report in which Mr. Hipkin's criminal responsibility and mental fitness was assessed, and a series of clinical notes of Dr. Woodward who is Mr.

Hipkin's treating psychiatrist. [ 5 ] The legal principles at play in this case are as follows:

Section 718 of the Criminal Code sets out the fundamental purpose of sentencing, and that is to protect society and to contribute, along with crime prevention initiatives, a respect for the law and the maintenance 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 and the harm done to victims or to the community caused by the unlawful conduct; (

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

c) to separate the offender from society where necessary; (

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders and an acknowledgement of the harm done to victims or the community. [ 6 ] Pursuant to s. 718.1, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I must also take into account aggravating and mitigating circumstances. Any sentence I impose must be similar to sentences imposed on similar offenders for similar offences.

An offender must not be deprived of liberty if less-restrictive sanctions are appropriate, and all available sanctions other than imprisonment that are reasonable in the circumstances must be considered. [ 7 ] The circumstances of the offence are these: At approximately 4 p.m. on February 14, 2019, the Kelowna Fire Department responded to a fire at 1980 Pandosy Street. Located at that address is a large apartment block which contains 30 units. The RCMP also attended. A fire was damaging a ground-level suite. A number of the apartment's occupants had been evacuated and were standing outside in the cold.

The fire had extinguished itself by the time the firefighters entered the suite. That suite had been occupied by Mr. Hipkin. [ 8 ] Mr. Hipkin approached the police and said he heard voices, he had set the fire, and he poured something on it to accelerate it. It appears it was rubbing alcohol he poured on an upholstered chair which he set fire to. Mr. Hipkin was arrested and has been in custody since that time, either at the Forensic Psychiatric Institute undergoing a fitness assessment or at the correctional institution. [ 9 ] Exhibit 1 shows the extensive damage to the apartment suite.

It was completely destroyed by the fire. I understand there was also further smoke damage to the common area hallway. The damage has been repaired at the cost of $89,951.68. Although the Crown has not detailed the loss of any rental income, it is apparent from the invoices that it took about four months to complete the repairs, so one anticipates that the owner sustained those additional losses. [ 10 ] I will turn now to the circumstances of Mr. Hipkin. Mr. Hipkin is 21 years old. He is single, and was living in the unit which was damaged. At the time he was receiving help from Community Living B.C.

He was also receiving help from the John Howard Society by way of a worker and the ACT Team which assists mentally ill individuals in the community. Mr. Hipkin was also being treated by Dr. Woodward, his psychiatrist, and appears to have been meeting with her in person every two weeks on an outpatient basis. [ 11 ] Mr. Hipkin has been diagnosed with high-functioning autism spectrum disorder, borderline personality disorder and crystal- methamphetamine-induced psychosis. The symptoms of that psychosis often result in self-harming acts and violence towards others. He also has epilepsy and gender dysphoria.

Exhibit 3 notes that Mr. Hipkin has a long history of assaulting his caregivers, including his parents. [ 12 ] Mr. Hipkin had a difficult childhood, given his autism disorder. He was frequently bullied in school and had difficulty managing his behaviour. This resulted in changing schools often. He eventually was home schooled for much of his high school education. At 17 he began using street drugs and became emotionally volatile and aggressive. He left his mother's home and eventually entered the Foundry Program and moved to South Hills, a psychiatric residence in Kamloops.

While a resident there, he bought crystal methamphetamine while out on various day passes, and eventually assaulted a nurse. Consequently, he had to leave that facility. [ 13 ] He returned to Kelowna, and at the time of the offence, as I mentioned earlier, he was being assisted by John Howard, Community Living, the ACT Team and a treating psychiatrist. It appears that John Howard or Community Living secured the apartment he was living in about a month or two before the arson. [ 14 ] Mr.

Hipkin told the Forensic psychiatrist that a few days before he set the fire he was using crystal methamphetamine daily and was staying awake day and night. He began to experience auditory hallucinations. He does not experience those when he is not intoxicated or withdrawing from crystal meth. When he is withdrawing he becomes short-tempered and ruminates about his past. He releases his anger either by hitting others or himself, burning himself with cigarettes or damaging property in a state of rage. He told Dr.

Widajewicz, the Forensic psychiatrist, that setting a blaze to everything around him is just another form of his venting his anger.

[ 15 ] On February 14th he suddenly began to feel angry with himself. He pulled out some matches, poured some rubbing alcohol he normally uses for cleaning his crack pipe, on his chair and set the fire. He then went and confessed to the police. [ 16 ] Dr. Widajewicz, the Forensic psychiatrist, stated at page 2 of his report [as read in]: The auditory hallucinations are entirely a product of crystal meth use. There has not been any thought disorder which could possibly negatively affect Mr. Hipkin's appreciation of what he was doing. [ 17 ] He further opined that Mr.

Hipkin knew that setting a fire in the chair could result in a serious fire in the building and endanger others. [ 18 ] Defence counsel indicated that Mr. Hipkin's release plan is to live at Gospel Mission, which is a homeless shelter in Kelowna. His mother has offered that he can stay with her until a space in some sort of supportive housing is obtained but Mr. Hipkin is not interested in that suggestion. It is hoped that he will again receive services from John Howard and the ACT Team but that appears not to have been confirmed as yet. Defence counsel submitted that Mr.

Hipkin is now sober, having been in custody for some time, and he wants to abstain from further use of crystal methamphetamine. [ 19 ] The aggravating circumstances are these: Mr. Hipkin’s actions caused a serious risk of harm when he set the fire. There are 30 units in this building and his actions were dangerous. There were a number of residents who had to be evacuated. He caused a significant amount of damage, and further he put emergency responders’ lives at risk when they had to attend to put out the fire. [ 20 ] The mitigating circumstances are these: He quickly admitted his involvement to the police.

He has entered an early guilty plea. No one was physically hurt. Further, his personal circumstances and his autism spectrum disorder must be considered. Defence counsel argued that Mr. Hipkin’s mental illness mitigates his moral blameworthiness. However, it is clear that it was drug use, not his mental illness, which caused him to set the fire. [ 21 ] I note in her clinical notes, which are Exhibit 4, Dr. Woodward discussed Mr. Hipkin’s use of crystal meth with him a number of times.

He was well aware of the potential of the deterioration in his behaviour which resulted from his use of crystal methamphetamine. [ 22 ] A further mitigating circumstance is that Mr. Hipkin’s parents are here today and they continue to be supportive of him. [ 23 ] The actions of Mr. Hipkin require denunciation. Parliament has reflected the gravity of this offence by providing for a maximum sentence of life in prison. However, I do note that no one was injured, and the property damage was not as substantial as it could have been. Mr. Hipkin’s degree of responsibility is high.

I have concluded he would not have committed this offence had he not been using crystal methamphetamine. [ 24 ] Mr. Hipkin’s sentence should be similar to sentences imposed on similar offenders for similar offences. Crown counsel has provided the following cases which provide a range of sentences for arson. R. v. Powell 2018, BCPC 295 ; R. v. Dennis 2018, BCPC 270 ; and R. v. Berg 2016, BCPC 379 . In both Dennis and Berg the decisions also set out a number of other authorities which provide more examples of sentences. [ 25 ] In Powell , Judge Meyers imposed a sentence of 15 months with three years' probation. Mr.

Powell set a fire in his rooming house. There were no injuries, but a substantial amount of property damage. Mr. Powell had mental health problems and addiction issues. He had no criminal record, but had accumulated two convictions while awaiting sentence. [ 26 ] In R. v. Dennis , Judge Armstrong imposed a sentence of two years with three years' probation. Mr. Dennis was an indigenous offender who set fire to his grandmother's suitcase when they were both staying at the Sandman Inn. The hotel was almost full at the time. There were no injuries, but about $25,000 worth of damage was incurred. Mr.

Dennis had a criminal record and had recently completed a federal sentence. There were substantial Gladue factors as well as mental health problems, addiction issues, and he was deemed a moderate to high risk to reoffend. Judge Armstrong provided a useful review of nine sentencing authorities in coming to her decision. Those authorities set forth the range of sentences of nine months to two years. [ 27 ] In R. v. Berg , Judge Gaffar imposed a sentence of three and a half years. Mr. Berg threatened to burn down the house of his ex- girlfriend if she did not speak to him.

She refused, and he eventually set fire to the residence. It was occupied by his ex-girlfriend and two other people. The fire destroyed the home and damaged adjacent properties, some of which were occupied by families with children. Berg was intoxicated when he set the fire. [ 28 ] The matter went to trial and Judge Gaffar noted the lack of any insight by Mr. Berg into his behaviour. Berg had a criminal record, mental health difficulties, addiction issues, and a head injury which may have contributed to his behaviour. He was deemed to be a high risk for future violent behaviour.

Judge Gaffar reviewed a number of authorities and concluded for Mr. Berg's offence the range of sentence was between 18 months and five years. I agree with Judge Gaffar’s comments at paragraph 39 of her decision that the principle of general deterrence is an important one in an arson case, as is denunciation and specific deterrence. [ 29 ] Defence provided the cases of R. V. Bogue 2017 BCPC 58 ; R. v. Hemmerling 2017 BCPC 10 ; and R. v. Edwards , a decision of the Ontario Superior Court of Justice 2014 OSC 6703. [ 30 ] Mr. Bogue was sentenced by Judge Merrick.

He received a suspended sentence and probation for setting four fires to houses he was occupying. He caused $315,000 worth of damage. He was in a drug-induced psychosis when he committed the offences. Judge Merrick found that Mr. Bogue had made significant steps towards rehabilitation including an eight-week treatment program. Bogue was described as a model patient by his psychiatrist and was in full remission of his drug-induced psychosis and substance abuse. Judge Merrick also found Mr. Bogue was at an extremely low risk to reoffend. He was gainfully employed and could eventually pay restitution.

Based on all of these circumstances, Judge Merrick found there existed exceptional circumstances, and instead of imposing an 18-month sentence, he imposed a suspended sentence and lengthy probation.

[ 31 ] R. v. Edwards provides some interesting comments about autism disorder, but I find they are not particularly applicable to the facts in this case. [ 32 ] R. v. Hemmerling is a decision of Judge Morgan. Mr. Hemmerling was intoxicated and was threatening to hurt someone. The police were called, and there ensued a police standoff with Mr. Hemmerling taunting the police to kill him and threatening to kill the police. He eventually started a fire. When the police tried to rescue Mr. Hemmerling, he assaulted a police officer. Eventually he was rescued before the house burned down. [ 33 ] He was 47.

He had mental illness with suicide attempts, hospitalizations and psychiatric care in the past. However, the psychiatrist determined that he did not have a major mental disorder. His behaviour was fueled mostly by immaturity and an alcohol disorder. He had significant volunteer experience with the Salvation Army and had a number of supportive reference letters, as well as having a release plan that included residential treatment.

Judge Morgan specifically found that the accused could be a significantly contributing member of society when his alcohol use disorder was in remission, and found that he was a good candidate for community supervision. He sentenced Mr. Hemmerling to two years less a day and probation. [ 34 ] I am satisfied that after reading all of the decisions provided by counsel that there is a rough range of nine months to five years for arson of occupied property in the courts of British Columbia. I am mindful of Mr. Hipkin’s young age, his lack of criminal record, and sentencing principle of restraint. I have considered Mr.

Hipkin’s circumstances and have to find that it was not his mental illness that caused his actions, but rather binging on crystal methamphetamine. [ 35 ] The clinical notes of his treating psychiatrist show that Mr. Hipkin had a fair degree of insight into his mental health challenges and had, as I mentioned earlier, twice a month discussions with his treating psychiatrist. He did relatively well when he took his medication as prescribed. However, he had a dispute with Dr. Woodward leading up to this incident.

She had prescribed the stimulant Dexedrine for him because of his complaints that his medication caused him to be sluggish and sleepy. In early January he stored up his Dexedrine and then used it all at once and became psychotic. As a result, Dr. Woodward discontinued that drug. Mr. Hipkin was not happy with this action and at that point decided to recommence self-medicating using crystal methamphetamine. [ 36 ] I find that he had been warned on more than one occasion by Dr. Woodward that he should not use crystal methamphetamine.

In particular, February 4th, 10 days before the arson, she had a specific discussion with him about that. On that day, Mr. Hipkin and Dr. Woodward discussed his use of crystal methamphetamine and how he had a tendency to become psychotic when he uses it. Dr. Woodward noted that Mr. Hipkin acknowledged this, however, he continued to feel that he was likely to keep using methamphetamine and, as I mentioned earlier, this was not the first time such a discussion took place. [ 37 ] I also note that it is unlikely that Mr. Hipkin, unlike Mr. Bogue, will ever be gainfully employed and be able to pay restitution.

He has not been active in volunteering in the community like Mr. Hemmerling. It is difficult to determine if he has gained any insight into how the use of crystal methamphetamine affects his behaviour and, regrettably, apart from his parents and the community services, he does not appear to have any other relatives or friends in the community who can provide support. [ 38 ] Apart from specific and general deterrence, and denunciation, my sentence must protect the public. I have to assess Mr. Hipkin’s risk of future criminal behaviour as relatively high.

The clinical psychiatric notes indicate a longstanding non-compliance with his medication, and his use of street drugs, even when he is being assisted by the John Howard Society, Community Living and the ACT Team. [ 39 ] Mr. Hipkin has no real plan for reintegration into the community.

The suggestion that he stay at Gospel Mission, a homeless shelter in the epicentre of the drug culture in Kelowna, does not bode well for someone who has the tendency to use crystal methamphetamine. [ 40 ] In my view, a sentence of time served and nine and a half months would not satisfy the principles of denunciation, deterrence, nor protect the public. After considering the mitigating and aggravating factors, and all the principles of sentencing, I am imposing a sentence of two years less a day, which is 729 days.

He has credit for 285 days leaving 444 days of future incarceration. [ 41 ] Following his imprisonment there will be a probation order for three years. In my view, the maximum period of probation is appropriate for Mr. Hipkin, given his difficulties in the community. He requires lengthy supervision to assist him to connect with community services for his rehabilitation as well as for the protection of the public. [ 42 ] The terms of the probation are as follows: Condition 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. [ 43 ] Condition 2104, you must report in person to a probation officer at 1355 Water Street 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 time frame.

After that, you must report as directed by the probation officer. [ 44 ] Condition 2105, if at any time prior to the expiration of this order, you are arrested, detained or have served a sentence for another offence, you must report to the probation officer within two business days of your release from custody. [ 45 ] Condition 2203, you must reside at a residence approved in advance by the probation officer.

You must provide your probation officer with your phone number, if you have one, and you must not change your residence or your phone number without written permission from your probation officer. [ 46 ] Condition 2205, you must obey all of the rules of your residence, so long as they do not conflict with the terms of this order or the directions of your probation officer. If there is a conflict, you must tell your probation officer about the conflict immediately. [ 47 ] Condition 2301, you are not go to 1980 Pandosy Street, Kelowna, British Columbia.

[ 48 ] Condition 2401, you are not to possess or consume drugs except in accordance with a medical prescription. [ 49 ] Condition 2507, having consented, you must do the following at the direction of your probation officer: 1. Report to the Forensic Psychiatric Services or elsewhere for any intake, assessment, counselling or treatment. 2. Attend all scheduled appointments with your doctor, psychiatrist and counsellor. 3. Take all medications prescribed to you. 4. Give your doctor, psychiatrist, and counsellor a copy of this order. 5.

You must provide your probation officer with the names, addresses, and phone numbers of your doctor, psychiatrist, and counsellor. 6.

Tell your doctor, psychiatrist, and counsellor that, if you do not follow any terms of this order, he or she is to inform your probation officer. [ 50 ] If you decide not to follow these directions, you must immediately report to your probation officer when his or her office is open and tell your probation officer. [ 51 ] Condition 2610, you are not to possess, either personally or through another person, any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance, anything that resembles a weapon or a firearm, any weapon as defined in

section 2 of the Criminal Code , or any related authorizations, licences or registration certificates. [ 52 ] You are not to possess any incendiary device, flammable product or explosive substance. This prohibition includes, but is not limited to, lighters, matches, jerry cans, fire accelerant and fireworks, except with the written permission of your probation officer. If you are granted permission, you must carry a copy of the permission when you possess any of these items. [ 53 ] Pursuant to s. 109, Mr. Hipkin is banned for life from possessing any firearms. [ 54 ] This is a secondary designated offence.

I have determined it is in the best interests of the administration of justice to make an order in Form 5.04 authorizing the taking of bodily substances for the purpose of registration in the DNA National Databank. [ 55 ] Finally, although I do not think it is likely that Mr. Hipkin will ever be able to pay restitution, I will make the order so pursuant to s. 738 of the Criminal Code . Restitution payable to the clerk of the court for the benefit of Bakonyi Holdings Ltd., in the amount of $89,951.68. [ 56 ] MR.

DESCHAMPS: Your Honour, regarding the conditions, I know you ordered a Rogers order, but should we add in conditions to obtain counselling or any assessments, probation? [ 57 ] THE COURT: Well, he has got a treating psychiatrist. I do not think he needs to go see a counsellor, no. [ 58 ] MR. DESCHAMPS: Thank you. (REASONS CONCLUDED)