R. v. Graham, 2022 BCPC 72

Citation: R. v. Graham 2022 BCPC 72 Date: 20220422 File No: 92947-1/94205-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PEYTON JACKSON GRAHAM REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G.J. BROWN Counsel for the Crown: J. Boxall Counsel for the Defendant: D. Schultz Place of Hearing: Abbotsford , B.C. Date of Hearing: February 9, 2022 Date of Judgment: April 22, 2022 INTRODUCTION

[ 1 ] Under file 92947, Peyton Graham pled guilty to a robbery of an employee at a Petro-Canada in Abbotsford, B.C., on December 29, 2020. He also pled guilty to using an imitation firearm while committing that indictable offence, contrary to s. 85(2) of the Criminal Code . As well, he pled guilty to attempting to rob a pizza outlet nearby just after the first robbery. [ 2 ] Under file 94205-1, Mr. Graham pled guilty to possessing a weapon contrary to his release order on October 21, 2021, and to causing mischief to a motor vehicle the same day using pepper spray. [ 3 ] Mr.

Graham is only 20 years old, but he has an extensive youth and adult record given his young age. He struggled with drug addiction and almost died from a drug overdose 12 days before committing the robbery offences. In 2021, he underwent treatment for essentially the first time at Vision Quest. [ 4 ] The Crown seeks a jail sentence of 12 to 14 months for each of the two robbery offences, concurrent, plus a one year mandatory minimum jail sentence for the firearm offence, consecutive to any other sentence. This amounts to a 24 to 26 month jail sentence, and Mr.

Graham’s counsel agrees with the lower end of that range. These are serious offences. Because the jail time will be under two years considering time served, Crown submits all jail sentences should be followed by an 18-month probation order. [ 5 ] The Crown seeks a 30-day consecutive jail sentence for the breach and a 60-day consecutive jail sentence for the mischief. Mr. Graham had been in custody for 146 actual days as at February 18, 2022, which amounts to 219 days of enhanced credit or just over seven months.

Consequently, the Crown’s position is for a total of 27 to 29 months of jail less enhanced credit, leaving 20 to 22 months to be served. [ 6 ] Mr. Graham’s counsel submits that a more appropriate jail sentence is 24 months for the robbery and firearms offences, consecutive to 30 days for both the breach and mischief. The 25-month total sentence less enhanced credit leaves about 18 months of jail to be served, a long time for a very young man. [ 7 ] I was originally going to sentence Mr. Graham on February 18, 2022, but I learned the sad news that his father had recently died.

I structured a release order with electronic monitoring and a form of house arrest to allow Mr. Graham to attend the funeral and be with his family until the date of sentencing. This sentencing process will have meaningful consequences for Mr. Graham, with jail time, but I did not want to leave Mr. Graham a bitter and angry young man. [ 8 ] I must impose a sentence taking into account the sentencing principles in sections 718 to 718.2 of the Criminal Code , balancing the need here for denunciation and deterrence with the prospect for rehabilitation.

CIRCUMSTANCES OF THE OFFENCES December 29, 2020 [ 9 ] On December 29, 2020 at 10:30 in the evening, Mr. Graham entered a Petro-Canada on Immel Street in Abbotsford wearing a balaclava. His actions were captured on camera. Three employees were then working at the store. [ 10 ] Mr. Graham produced a small black pistol, went to the side of the counter and demanded money from the employees while pointing the gun at them. The gun was an imitation, but the employees did not know if it was real or not and they were scared. [ 11 ] Mr. Graham got $350 from the till.

He demanded that the employees open the safe, but they explained they could not access it. On his demand, they did give him some lottery tickets. As he was leaving, he said that if they called the police, he would shoot them. One of the employees thought Mr. Graham was intoxicated. [ 12 ] An employee hit the panic button, and a person outside the store called the police. [ 13 ] Some 200 metres south, two employees of J’s Pizza were closing the store when Mr. Graham came in, again masked. Initially Mr. Graham asked for a bag which the employees provided. Mr. Graham then pointed a gun and demanded money.

The two employees indicated they had nothing as they were closing. [ 14 ] Abbotsford Police arrived en masse and saw the robbery through the window of the pizza business. The police had their firearms drawn and told Mr. Graham to drop his gun. Mr. Graham threw the gun in a bush but walked away from the police. He was shot with a bean gun and was apprehended. Quite frankly, he was extremely lucky things ended as they did. [ 15 ] Cash, bear spray, a folding knife, and a baton were located on Mr. Graham. The imitation gun and a bag of lottery tickets were found in a nearby bush. [ 16 ] Mr.

Graham said he had consumed drugs and was not feeling well, so he was initially taken to the hospital before going into police custody. To place matters in context, on December 17, 2020, Mr. Graham overdosed on drugs, had to be revived and was placed on life support. On December 24, 2020, and against medical advice, Mr. Graham was discharged from the hospital to go home to be with family. On December 29, 2020, the day of the robbery offences, he was not thinking clearly. His counsel appreciates this background does not absolve Mr.

Graham of responsibility for these crimes, but it provides some explanation for his brash and foolish actions. October 21, 2021 [ 17 ] Mr. Graham stayed in custody until he was released on January 22, 2021, under a strict release order requiring him to reside at VisionQuest in Logan Lake. He did fairly well there until some issues arose in April of 2021, and he returned to his family in Abbotsford with the knowledge of his bail supervisor. Mr. Graham went back to VisionQuest briefly but was expelled due to drug use.

He returned to his parents again, and under a new release order on April 26, 2021, he went to Maple Ridge Treatment Centre. He successfully completed that programme, and then returned to his parent’s home under conditions including no weapons.

[ 18 ] On October 21, 2021, a Mr. Nordin was in Mr. Graham’s neighbourhood putting up Telus signs. He was in a vehicle with no Telus markings, but there had been a mail-out earlier about the erection of the signs on the property of Telus customers. [ 19 ] Mr. Graham’s mother said she noticed a vehicle blocking her driveway, and enquired with Mr. Graham as to who this person could be. Her other son had been viciously attacked in the past, so the family had heightened concern. [ 20 ] Mr. Graham went out and opened the passenger door of Mr. Nordin’s vehicle, and Telus signs fell out. Mr.

Graham was bending over when Mr. Nordin kicked the door into Mr. Graham. Mr. Nordin believed Mr. Graham was stealing things. [ 21 ] Mr. Graham pulled out a knife and brandished it. He then pulled out pepper spray and sprayed the interior of Mr. Graham’s vehicle. Mr. Graham fled into the woods, and his mother called the police. Mr. Graham did turn himself in, and when he did so, the police observed him to be intoxicated. Using a tracking dog, the police located two folding knives and a canister of bear spray. [ 22 ] Defence counsel points out that his mother and sister witnessed the incident, and Mr.

Graham was not at Mr. Nordin’s vehicle to start trouble. His mother was surprised when the door was kicked into Mr. Graham, and he claimed to have a bruise on his back. Mr. Graham had stayed out of trouble for 10 months, but nevertheless, he was possessing weapons contrary to the release order and he caused mischief to the vehicle. [ 23 ] Mr. Graham was detained after this incident and was in custody until February 18, 2022. CRIMINAL RECORD [ 24 ] Mr. Graham has a youth record starting when he was 15 years old in 2015.

His youth offences include arson, two break and enters, assault with a weapon, two assaults, assault police officer and a weapons offence. [ 25 ] I will not dwell on the youth record, as mistakes made by the very young should not necessarily haunt them going forward. However, I point out that since Mr. Graham was convicted of an adult offence while the access period to his youth record was open, the fact that he committed offences as a young person can be referred to and published. (See s. 119(9)(

b) of the Youth Criminal Justice Act [YCJA] .) Under s. 119(2) of the YCJA , the access period is within three years from the time a young person completes the sentence on a

summary conviction offence, or five years from the time the youth completes a sentence on an indictable offence. [ 26 ] Mr. Graham was convicted of his first four adult offences on July 9, 2020, and his last youth conviction was on May 9, 2019, for an assault resulting in a 12-month probation order. These adult convictions are well within the access period, so his youth record is not shielded. [ 27 ] But I will focus on his adult record. He was convicted of theft and assault causing bodily harm on July 9, 2020. That conviction related to events in June of 2019, when Mr.

Graham assaulted another young person with a baton and took their belongings, and he received a 270-day total sentence for the assault. [ 28 ] He was also convicted of a break and enter committed in March of 2020, and an assault with weapon committed the same month. He threw a knife at someone but missed, and received a 300-day sentence, less time served, for that crime. He was released from custody on November 8, 2020, less than two months before he committed the robbery offences. He was on probation at the time.

VICTIM IMPACT [ 29 ] The Crown was unsuccessful in obtaining victim impact statements from the employees of the Petro-Canada or the pizza store. It was clear that the robbery and attempted robbery left those employees scared; they did not know if the gun was real or not. I have seen a picture of the handgun and it is difficult to discern that it is an imitation. I also bear in mind that these employees are not highly paid, and they deserve to feel secure when carrying out their employment. [ 30 ] Regarding the weapons and mischief offences, Mr. Nordin did provide an impact statement.

He was so emotionally affected by the incident that he discontinued his job. He has a fear of walking alone and he has a fear of Abbotsford. He has engaged in counselling. His vehicle remains “unfixable” due to the smell from the pepper spray. He has insurance but had to pay a $500 deductible, and he lost three weeks of wages. CIRCUMSTANCES OF THE OFFENDER [ 31 ] It bears repeating that Mr. Graham is only 20 years old, and he has struggled with drug addiction.

His youth record started when he was 15, and he has committed offences of violence, an offence with a weapon and several break and enters. [ 32 ] When the October 2021 offences were committed, Mr. Graham was living at home with his mother, father, and six siblings. Defence counsel submitted that his parents are not blindly supportive of him; they do not put up with unlawful behaviour. [ 33 ] As mentioned above, one of Mr. Graham’s brothers was viciously attacked in the past and suffered a brain bleed.

Consequently, the mother was concerned about a vehicle blocking her driveway. [ 34 ] Concerning the mischief offence, Mr. Graham’s mother is troubled because if she had not asked her son about the vehicle blocking the driveway, he would still be at home. [ 35 ] According to Mr. Graham’s mother, while he was at home, he matured. He was better able to control his anger. He opened up and was happier, and he showed love to his younger siblings. He repaid some money he owed to his sister. He was trying hard to stay away from drugs. [ 36 ] Prior to the robbery offences on December 29, 2020, Mr.

Graham had been working for Coast Form Rentals. He went Christmas shopping with his family and appeared to have money. He overdosed on December 17, 2020, and was on life support for 72 hours

thereafter. He wanted to be with his family on Christmas Eve, so he was discharged from the hospital against medical advice. He committed the robbery offences five days later when he was still not well and not thinking clearly. He continues to have heart and other organ issues. [ 37 ] Mr. Graham is sorry for what he has done, and he wants to be a good person. Whenever he is released from custody, he plans on talking to a counsellor and working at his father’s construction company. He is a hard worker and enjoys lacrosse. [ 38 ] Mr. Graham’s counsel indicates that, in the past, Mr.

Graham would have little to say prior to his sentencing hearings. He would rather go to jail than go to treatment. In jail, sports were possible, but people just sat around watching TV in treatment. [ 39 ] Mr. Graham’s three month stay at VisionQuest in early 2021 was his first real effort to undergo treatment. He enjoyed the woodshop but not the food. Things became more difficult when the VisionQuest counsellor left. Mr. Graham struggled with an addiction to Xanax. Mr. Graham did complete the programme at Maple Ridge Treatment Centre in the Spring of 2021. [ 40 ] Mr.

Graham’s grandmother wrote about her grandson, the offender in this case. He is always the first to offer help to his immediate and extended family. He enjoys hard work and is a quick learner. He shows patience and tenderness, especially to children. The grandmother realizes Mr. Graham has had a rough start, but he has great potential. [ 41 ] I heard from Mr. Graham himself in court over video. He was very sorry for what he had done and took full responsibility. He is striving to be a better person. [ 42 ] As discussed above, I recently learned that Mr.

Graham’s father died, and I structured a strict release order to allow him to be with family during this difficult time. Mr. Graham’s large family will also have to move from their home, as the landlord is selling their dwelling. [ 43 ] As well, I was recently advised that Mr. Graham’s maternal grandfather had indigenous heritage. This grandfather played no significant role in Mr. Graham’s life, but I must consider the Gladue factors,

section 718.2 (

e) of the Criminal Code and all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to the victims and the community in this case. PRINCIPLES OF SENTENCING [ 44 ] When offences involve robbery, attempted robbery, and use of an imitation firearm, it should go without saying that the sentencing principles of deterrence and denunciation are forefront. Applying s. 344(1)(

b) of the Criminal Code , the robbery of the Petro- Canada carries a maximum sentence of life imprisonment, and the attempted robbery of the pizza outlet carries a maximum sentence of 14 years imprisonment under s. 463(a). [ 45 ] The use of an imitation firearm while committing the robbery carries a mandatory minimum jail sentence of one year under s. 85(2) of the Criminal Code , consecutive to any other punishment for an offence arising out of the same event. Counsel advise that this

section has not yet been struck down. Mandatory minimums are regularly being struck down, but even if there was no mandatory minimum here, I am satisfied Mr. Graham should serve a consecutive year of jail for using the imitation handgun while committing the robbery. The employees of both places did not know if the gun was real or not, and the Petro-Canada employees were threatened with being shot. [ 46 ] The breach and mischief charges are

summary conviction offences carrying a maximum two year sentence. [ 47 ] Of course, Mr. Graham is still a very young man making some recent efforts at drug treatment, so his rehabilitation must not be overlooked in the sentencing analysis. [ 48 ] The well-known case of R. v. Brogan , 1999 BCCA 278 states that the sentencing range for a robbery with violence committed by a young man is between two and nine 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 to consider. [ 49 ] This is a general range, and in my experience, Brogan has been honoured more in the breach than in the observance. As indicated in R. v.

Parranto , 2021 SCC 46 , sentencing ranges are guidelines and not hard and fast rules, and judges have discretion to individualize sentencing both in method and outcome. AGGRAVATING AND MITIGATING FACTORS [ 50 ] The mitigating factors are as follows: 1. The guilty plea. Mr. Graham pled to these offences early, and no trial dates were ever set; 2. He is a young man, 20 years of age; 3. There are prospects for rehabilitation, and he did spend several months at both VisionQuest and Maple Ridge Treatment Centre. He is no longer resistant to treatment; 4. As stated above, I have recently learned that Mr.

Graham has some indigenous heritage through his maternal grandfather. Mr. Graham himself has a very supportive family, but his grandfather played no significant role in his life and I do not have a Gladue report. I have considered s. 718.2 (

e) of the Criminal Code and the Gladue factors, including Mr. Graham’s unique background and the sentencing sanctions available with an emphasis on restorative justice. I have tempered the jail sentence for the robbery offences and imitation firearm offence in that I have applied the very low end of the Brogan range. Moreover, the probation order has a focus on rehabilitation

with a counselling term. [ 51 ] The aggravating factors are as follows: 1. Mr. Graham’s criminal record, including violent offences; 2. Mr. Graham committed these robbery offences within two months after he finished his last jail sentence; 3. Mr. Graham committed many of these offences using weapons at a time when he was prohibited from possessing them. The robberies involved an imitation gun, and the mischief involved bear spray and a knife; 4. Mr. Graham pointed an imitation firearm during the robberies and made threats. The employees did not know if the gun was real or not.

SENTENCE [ 52 ] For the reasons outlined below, I would not in this case go below the low range of two years for the robbery offences, taking into account the firearm offence. [ 53 ] Mr. Graham was masked, albeit during a pandemic, and he brandished a gun. He robbed or attempted to rob two stores. He was suffering from addiction, and his level of premeditation was low. He is young but comes before me with a concerning record. [ 54 ] The robbery and attempted robbery should be concurrent sentences as they were a spree, one after the other.

A 25-month total jail sentence for the two robbery offences using an imitation firearm is appropriate, if not low. [ 55 ] I agree that the facts here somewhat mirror those in R. v. Ignacio, 2016 BCPC 225 . The offender there was also young, and he used an imitation gun in two robberies. Mr. Ignacio ran a trial and was convicted of two counts of robbery, two counts of using an imitation firearm, and two counts of being masked. However, Mr. Ignacio had no criminal record.

He received a sentence of six months concurrent for two robberies, two months concurrent for being masked on both occasions, and one year consecutive for the use of a firearm in both robberies. The net total jail sentence was 18 months. Due to his record, Mr. Graham must face a higher jail sentence. [ 56 ] Regarding the weapons breach and the mischief, I agree with the Crown that those offences are distinct enough to warrant consecutive sentences. Mr. Graham was on bail with a no weapons term, yet he was found with a knife and bear spray.

He has a number of breaches on his record. [ 57 ] There were some extenuating circumstances with the mischief because the car door was kicked into him, but Mr. Graham again made a bad and rash decision to bear spray the vehicle. Intoxication explains but does not excuse his actions. Mr. Nordin was greatly affected by the incident. [ 58 ] Mr. Graham should serve a 30-day sentence for the breach and a 30-day sentence for the mischief, consecutive to each other and any other sentence. [ 59 ] I bear in mind the submission of both counsel that the net jail sentence for Mr. Graham ought not result in federal time.

He is too young a man to be doing harder time in a federal institution. His total sentence will be over two years, but with time served, he will be able to serve the sentence in a provincial institution. If he ever commits further serious offences, he will likely face federal time. [ 60 ] The total jail sentence for Mr. Graham is 27 months, less time served of just over 7 months. Looking at the totality principle, this is a just and fit sentence. [ 61 ] Mr.

Graham please stand up. [ 62 ] Based on the above analysis, your sentence is as follows under file 92947-1. [ 63 ] For Count 1, the Petro-Canada robbery, your jail sentence will be 13 months (or 390 days) less enhanced credit of 219 days, leaving a remaining jail sentence of 171 days or nearly 6 months. All the jail sentences will be followed by 18 months of probation on terms pronounced below. [ 64 ] For Count 3, the attempted robbery of the pizza outlet, your jail sentence will be 13 months (390 days) less enhanced credit of 219 days, leaving a remaining jail sentence of 171 days.

This sentence is concurrent to Count 1. Eighteen months of probation to follow. [ 65 ] For Count 2, the use of the imitation firearm, your jail sentence will be 12 months consecutive to any other sentence. Eighteen months probation to follow. [ 66 ] Your sentence under file 94205-1 is as follows. [ 67 ] For Count 3, the weapons breach, your jail sentence is 30 days, consecutive to any other sentence. Eighteen months probation to follow. [ 68 ] For Count 4, the mischief, your jail sentence is 30 days, consecutive to any other sentence.

Eighteen months probation to follow. [ 69 ] The 18-month probation order has the following conditions: 1. You must have no contact or communication, directly or indirectly, with Tanner Nordin. 2. You must not go to the Petro-Canada at 3027 Immel Street, Abbotsford, BC or J’s Pizza at #101 - 2955 Immel Street, Abbotsford,

BC. 3. You must report in person to a probation officer at 32375 Veteran’s Way, Abbotsford, BC within two business days after your release from custody unless you have obtained, before your release from custody, written permission from the probation officer to report elsewhere or within a different time frame. After that, you must report as directed by your probation officer. 4. When first reporting to your probation officer, you must provide them with the address where you live and your phone number. You must not change your address or phone number without prior written permission from your probation officer. 5.

You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer. 6.

You must not possess, directly or indirectly, any weapon as defined by the Criminal Code , including: a. firearms and ammunition; b. cross-bows, prohibited or restricted weapons or devices, or explosive substances; c. anything used, designed to be used or intended for use in causing death or injury to any person, or to threaten or intimidate any person; d. any imitation of all the above, including any compressed air guns or BB/pellet guns; or e. any related authorizations, licences and registration certificates, and you must not apply for any of these. 7.

You must not possess any knife outside your residence, except for the immediate preparation or eating of food. The exceptions are as follows: a. while on your property; b. while at work, or going directly to and from work. If asked, you must provide your probation officer with the details of your location and hours of employment. [ 70 ] For the robbery offences in file 92947-1, pursuant to

section 109 of the Criminal Code , you are prohibited from possessing: a. any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance for life, and; b. any prohibited firearm or restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 71 ] On the robbery offences under file 92497-1, there will be a mandatory DNA order under s. 487.051 of the Criminal Code . _____________________________ The Honourable Judge G.J. Brown Provincial Court of British Columbia