R. v. Hirata, 2023 BCPC 281

Citation: R. v. Hirata 2023 BCPC 281 Date: 20230825 File No: 95644-2C, 95644-4A Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. KIYOSHI JUSTIN BOYD HIRATA ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE S. MENGERING Counsel for the Crown: R. Macgowan Counsel for the Defendant: P. Johnston Place of Hearing: Abbotsford , B.C. Date of Hearing: August 25, 2023 Date of Sentence: August 25, 2023

[ 1 ] THE COURT : Mr. Hirata appears before me for sentencing, having entered guilty pleas to breaking and entering an occupied residence with his face masked with intent to commit an indictable offence therein, on October 4, 2022, and, on December 11, 2022 having breached his release order by not being home at 3:00 a.m. when the police did a curfew check. [ 2 ] The primary issue before me is whether the sentence should be served in jail or in the community by way of a CSO.

POSITION OF THE PARTIES [ 3 ] The Crown seeks a two-year jail sentence globally, that being 18 to 24 months for the B and E, six months concurrent for having his face masked and one day for the breach. [ 4 ] The defence seeks a Conditional Sentence Order of two years less time served. [ 5 ] Both parties agree that the jail sentence, whether served in jail or in the community, should be followed by a year of probation and also agree to ancillary orders including a firearms prohibition and DNA order. CIRCUMSTANCES OF THE OFFENCES 95644-2-C [ 6 ] Exhibit 1 is an Agreed Statement of Facts signed by Mr.

Hirata as well as counsel. As we just heard the circumstances I will be brief. In the fall of 2022, Mr. Hirata was hanging out with some negative associates including his co-accused and the victim, Tre Pitamber, who had probably stolen an expensive gold necklace from Mr. Pierce, one of the co-accused. The Accused and Mr. Pierce had been looking for Mr. Pitamber on October 2 nd to get that necklace back. Also at some point, Mr. Hirata had been branded with the word "GOOF" on his back although he has not spoken to anyone about how that came about. [ 7 ] In any event, Mr.

Pitamber was having a sleepover at the home of his girlfriend, Ms. Alex Smith, the night of October 3 to 4, despite being on release conditions prohibiting contact between them. That is where Mr. Hirata and his four friends found Mr. Pitamber. They attended Ms. Smith's home, kicked in the door and entered wearing masks. Someone other than Mr. Hirata deployed bear spray. Ms. Smith, then nine months pregnant, fled the house naked. All five masked men went into Mr. Pitamber's bedroom and, while Mr. Hirata looked around for something to steal, the others beat him up.

The Crown is specifically noting that there is no evidence that Mr. Hirata used bear spray or had any weapon and that he did not participate in the assault. He was eventually handed a backpack which belonged to Ms. Smith, before everyone fled the residence. [ 8 ] Mr. Hirata fled into a neighbouring yard, failed to come out when commanded by police and was pulled out by the dog, still wearing his balaclava, suffering superficial wounds in the process. [ 9 ] One of the other accused bear sprayed the first attending member of the APD but there is no reason to believe that Mr.

Hirata was aware he was going to do so or involved in any way in that. [ 10 ] Mr. Hirata received medical care for the dog bite injuries, then returned to the detachment, where after speaking to counsel, confessed to his involvement. He described being picked up by someone driving a van, going to a place in Abbotsford where Mr. Pitamber was believed to be and going in. [ 11 ] All charges against the other four masked men have been stayed. 95644-4- A [ 12 ] Having been released on October 20 th with a curfew condition of 11:00 p.m. to 6:00 a.m., Mr.

Hirata was not at home at 3:00 a.m. on December 11 th when the police came to check on him. I am told he had fallen asleep while watching a movie, woke up and freaked out, and called the police and his lawyer to find out what to do. Police then did a curfew check and found out he was not in fact at home. CIRCUMSTANCES OF THE OFFENDER [ 13 ] I have the benefit of a Presentence Report, now Exhibit 2. Mr. Hirata is now 36. He has no criminal record although was subject to a peace bond in 2016 which I mention only in reference to his apparent ability at the time to comply with conditions.

It is not a criminal conviction. [ 14 ] He enjoyed a good childhood, free of abuse. His parents separated when he was about four and both established new relationships. He continues to enjoy a good relationship with his mother and father, although it suffered in 2022 when he was hanging out with people like his co-accused. He thinks he has a good relationship with his brother who lives next-door, but his brother says that they are not as close as they were, in large part because of these charges. [ 15 ] Everyone agrees that he has cut off contact with pro-criminal individuals.

He has been in a romantic relationship with his girlfriend for some 15 years. She is prosocial and supportive. [ 16 ] He did not complete Grade 12 but has worked for most of his life in rebar or roofing. At the time of these offences he was unemployed and I am told he is scheduled to start a new job on Monday if he is not in jail. [ 17 ] Mr. Hirata may suffer from undiagnosed depression but is willing to attend counselling. He has demonstrated some insight into the offence, describing it as “a low point in his life” and his actions as being “brutal” (p. 6).

He told the PSR author that he thought he would be assaulted if he did not go along with the group to retrieve the stolen jewellery from Mr. Pitamber.

THE LAW [ 18 ] In instances of a serious and violent nature the primary sentencing principles are denunciation and deterrence, both specific and general. While “home invasion” is not a term that appears in the Criminal Code , it is used loosely to flag those situations where there is a B and E into an occupied residence knowing that someone is home, for the purpose of committing an offence. [ 19 ] Sentences for such offences often, but not always, fall in the range of five to eight years. Ranges are, of course, mere guidelines: sentencing is always an individualized process.

But it is a grave offence to enter someone else's home without permission, in the middle of the night, and violate the occupant. In addition to the effect on the occupants of the home, home invasions make the entire community feel unsafe. [ 20 ] In this case, I am prepared to accept counsel's mutual submission that a sentence of two years or less is appropriate. [ 21 ] In considering whether a CSO is appropriate I must consider: i. The nature and extent of Mr. Hirata's involvement: he was picked up in Mission to retrieve the stolen jewellery from Mr. Pitamber in Abbotsford.

He was present when one of the co-accused kicked in the door and he entered the house at 3:30 in the morning with four other masked men. He looked around for items to steal while the others assaulted Mr. Pitamber. ii. The use of a weapon: Mr. Hirata did not personally have a weapon or know that the others did, but he continued with the enterprise even after discovering the presence of Ms. Smith, the deployment of bear spray and the start of the assault. iii. The extent of the violence; and, iv. That Mr. Hirata lacks a criminal record. [ 22 ] In mitigation I note that, at 36, Mr.

Hirata has no criminal record; he entered a very early guilty plea in April of 2023 and was cooperative with the police at the time of his arrest; and he has otherwise, but for these offences, enjoyed a prosocial life. [ 23 ] The aggravating factors include his knowledge that the house was occupied, pursuant to s. 348.1; that he was one of multiple masked men who kicked in the door and went in at 3:30 in the morning; and one of the victims was nine months pregnant and fled naked from the house.

While neither victim provided a Victim Impact Statement, I am certain that it was a frightening incident for them and would tend to have a negative effect on the community and the public perception of their safety. DECISION [ 24 ] I am positively impressed by the following confluence of facts: Mr. Hirata is 36 and has no criminal record; he was cooperative as to his own involvement, giving a warned statement upon his arrest; he entered a very early guilty plea; until October 2022 he was living a largely prosocial life with the only pitfall being that he was hanging out with people like his co-accused and Mr.

Pitamber. He has now cut off communication with them and people like them and has lots of positive supports including his mother, a former CO, his long-term girlfriend and his dad. He starts a new job next week. He was not the instigator of this offence and appears to have participated at the direction of others. [ 25 ] That being said, the circumstances are terrible - a home invasion by five masked men at 3:30 in the morning causing Ms. Smith to flee naked from the home. I appreciate that Mr. Hirata did not have a weapon, did not know anyone else did, and did not take

part in any discussions about assaulting Mr. Pitamber, but surely all of the circumstances must in fact, if not in law, have led Mr. Hirata to the inescapable conclusions that they were going to that house to not just retrieve the jewellery but to hurt someone and not get caught.

He got caught up in something that had nothing to do with him and continued looking for stuff to steal, despite the assault happening around him. [ 26 ] The Crown seeking an actual custodial sentence – it is very reasonable in the circumstances. [ 27 ] Nevertheless, I am satisfied that in the circumstance, a CSO does accord with the principles of sentencing, and in particular that it can adequately address both denunciation and deterrence.

Accordingly, there will be a CSO of two years less credit for time served followed by a period of probation for one year. [ 28 ] I will therefore seek counsel's direction as to how the CSO time should be apportioned as between the counts as I appreciate that consecutive CSOs are impractical, and ask for Crown's input on conditions before I start reading in the conditions. [ 29 ] THE COURT: On Information 95644-C2 Count 1 there will be a sentence of 730 days less 17 days credit, giving him 713 new days, which is basically 24 months less your 17 days. That is going to be served by way of a CSO.

I will go through the conditions in a moment. On Count 2 of the C2 Information there will be a concurrent six-month Conditional Sentence Order, concurrent with Count 1. [ 30 ] On 95644-A4 there will be a sentence of one day time served. [ 31 ] There is also going to be probation that attaches to the C2 Information as well as some ancillary orders, but I will go through those after. [ 32 ] THE COURT: I think the PSR mentioned that he smoked some weed to help him sleep or whatever, but there is going to be a no alcohol, drugs including marihuana unless he has a prescription for it.

So he will have to address sleep aids through a doctor. [ 33 ] THE COURT: As I understand it alcohol is not an issue for him, so it can be in the house, you are not drinking it. [ 34 ] Madam Clerk, it is going to be the same conditions for each of the CSOs, on Counts 1 and 2 with minor tweaking with respect to the house arrest. So the conditions will be as follows.

[ 35 ] THE COURT: The CSO, the probation and the ancillary orders will all attach to the dash 2. [ 36 ] 3001: You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court and you must notify the court or your conditional sentence supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation.

You must remain in British Columbia unless you have prior written permission from the court or your conditional sentence supervisor to leave the province. [ 37 ] 3101: You must report in person to a conditional sentence supervisor at Abbotsford Community Corrections at 1400-32375 Veterans Way, Abbotsford, BC by three o'clock on Monday, August 28 th . You are still bound by the conditions, you just do not have to report until Monday afternoon.

After that you must report as directed by your conditional sentence supervisor. [ 38 ] 3105: If you are arrested, detained or serve a jail sentence for another offence you must report in person to your conditional sentence supervisor within two business days of your release from custody so that your conditional sentence supervisor can give you further direction to report. [ 39 ] 3002: You must have no contact or communication directly or indirectly with Tre Pitamber, Alex Smith, Jacob Beck or Clayton Pierce. [ 40 ] THE COURT: 3005: You must not go to any place where Tre Pitamber, Alex Smith, Jacob Beck or Clayton Pierce lives, works, attends school, worships or happens to be.

If you see any of them you must leave their presence immediately without any words or gestures. [ 41 ] 3301: You must not go to or be within 100 metres of 2831 McCrimmon Drive in Abbotsford, B.C. [ 42 ] 3203: You must live at an address approved in advance by your conditional sentence supervisor and you must provide your supervisor with your phone number if you have one. You must not change them without the prior written permission of your conditional sentence supervisor.

Here I am assuming that they will continue to approve where you’re living now, which is with your mom. [ 43 ] 3205: Having consented in court, you must obey the written rules of your residence as long as the rules do not conflict with the terms of this order or the directions of your conditional sentence supervisor. If there is a conflict, you must tell your conditional sentence supervisor about the conflict immediately. You are going to be in your mom's space all the time unless you are at work.

If she has a rule that, for example, there is no smoking in the house, that you are doing the dishes, that you have to vacuum, whatever, that is a rule of the house and you have to follow it. If you have a problem with it, you talk to your CSO supervisor. [ 44 ] 3209: The only difference between the two CSOs is that on Count 1, which is the 24-month CSO, it is going to say for the first 18 months of this order it will be house arrest. But on Count 2, which is the six months concurrent, it is going to say you must obey house arrest.

So on Count 1, for the first 18 months of this order you must obey house arrest by being inside the place where you live and regularly sleep, 24 hours per day except, and I will go through those in a moment. On Count 4 it will just say you must obey house arrest by being inside the place where you live and regularly sleep, 24 hours a day except, and then it will be the same exceptions: (

a) if you have the prior written permission of your conditional sentence supervisor, such permission is given only for employment or other reasonable purposes including counselling; or (

d) if you are going directly to or returning directly from a healthcare facility because of a medical emergency. I gather he has no problem providing proof of his attendance at the ER if he needs to take himself off to a walk-in clinic or the emergency room? [ 45 ] CNSL P. JOHNSTON: None that I can foresee, Your Honour. [ 46 ] THE COURT: You have consented in court to providing proof of your attendance at the healthcare facility if requested by your conditional sentence supervisor. [ 47 ] CNSL P.

JOHNSTON: The contemplated wording for exceptions to the house arrest includes permission given by the conditional sentence supervisor for the purposes of employment or I believe there was language to the effect of medical appointments, perhaps. [ 48 ] THE COURT: Other reasonable purposes, yes. There is employment or other reasonable purposes, including counselling. You can talk to your CSO supervisor about that and if it turns out they say no and it becomes a problem, bring an application to the court and we can specifically carve out some sort of an exception.

Maybe she can get her prescriptions adjusted so that they are all being picked up at the same time. [ 49 ] On Count 1, for the last six months of this order you must obey a curfew by being inside the place where you live and regularly sleep, from 9:00 p.m. to 6:00 a.m. except: (

a) if you have the prior written permission of your conditional sentence supervisor, such permission is given only for employment or other reasonable purposes; or (

d) if you are going directly to or returning directly from a healthcare facility because of a medical emergency. So your first 18 months you are on house arrest. The last six months you are on a curfew of 9:00 to 6:00.

Bear in mind that if you were in jail it could very well have been more than two years and you would not be going anywhere at all. [ 50 ] 3209: You must present yourself immediately at the door to the place where you are living, or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the curfew. [ 51 ] If you are given permission by your conditional sentence supervisor you must carry it with you in paper or electronic format at all times when you are away from the place there you live and regularly sleep. [ 52 ] THE COURT: I am satisfied that you are going to comply with my order.

If you do not comply with the order, if you are found outside or if you commit a substantive offence, you have got bigger things to worry about than just what happened to the EMP, you will be spending the rest of your sentence in custody. So I am not going to require you to wear the bracelet, simply because I believe that you

are going to comply. [ 53 ] 3400: You must not possess or consume alcohol, illegal drugs, intoxicating substances, marihuana or prescription medication except in accordance with a medical prescription. [ 54 ] 3501: You must attend, participate in and complete any intake, assessment, counselling or education program as directed by your conditional sentence supervisor. [ 55 ] 3610: You must not possess directly or indirectly any weapon as defined by the Criminal Code , including firearms and ammunition, cross-bows, prohibited or restricted weapons or devices or explosive substances, 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, any imitation firearms or weapons including any compressed air guns, BB or pellet guns or any related authorizations, licenses and registration certificates, and you must not apply for any of these. [ 56 ] 3616: You must not possess any knives or axes or any other sharp-bladed instrument used, designed to be used or intended to be used to cut things except that you can possess a knife when preparing and eating food. [ 57 ] THE COURT: or (

b) For the purposes of lawful employment while at your place of lawful employment. [ 58 ] So those are all of the conditions of the CSO. [ 59 ] THE COURT: You must not possess bear spray, pepper spray or any kind of incapacitating spray. Do you understand all the conditions of your Conditional Sentence Order? [ 60 ] THE ACCUSED: Yes. [ 61 ] THE COURT: At the conclusion of your Conditional Sentence Order you are going be bound by a period of probation for one year. It is on both counts of the C2 Information. The conditions will be as follows. [ 62 ] 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 and you must notify the court or your probation officer in advance of any change of name or address and promptly notify the court or the officer of any change in employment or occupation. [ 63 ] 2002: You must have no contact or communication directly or indirectly with Tre Pitamber, Alex Smith, Jacob Beck or Clayton Pierce. [ 64 ] 2005: You must not go to any place where Tre Pitamber, Alex Smith, Jacob Beck or Clayton Pierce lives, works, attends school, worships or happens to be.

If you see any of them you must leave their presence immediately without any words or gestures. [ 65 ] 2301: You must not go to or be within 100 metres of 2831 McCrimmon Drive in Abbotsford, B.C. [ 66 ] 2104: You must report in person to a probation officer at Abbotsford Community Corrections within two business days after completion of your conditional sentence, unless you have obtained before completion of your conditional sentence written permission from a probation officer to report elsewhere or within a different timeframe.

After that, you must report as directed by your probation officer. [ 67 ] 2202: When first reporting to a probation officer you must provide them with your address or the location where you live and regularly sleep, and your phone number if you have one.

You must not change them without notifying your probation officer before making the change. [ 68 ] 2501: You must attend, participate in and complete any intake, assessment, counselling or education program as directed by your probation officer. [ 69 ] 2610: You must not possess directly or indirectly any weapon as defined by the Criminal Code including firearms and ammunition, cross-bows, prohibited or restricted weapons or devices or explosive substances, 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, any imitation firearms or weapons including any compressed airguns, BB or pellet guns or any related authorizations, licences and registration certificates, and you must not apply for any of these. [ 70 ] With respect to firearms, Count 1 on Information 95644-C2 attracts a mandatory weapons prohibition.

Pursuant to s. 109 of the Criminal Code you are prohibited from possessing any firearm other than a prohibited firearm or restricted firearm and any cross-bow, restricted weapon, ammunition, explosive substance for a period of 10 years from today, as well as any prohibited firearm or restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 71 ] THE COURT: Count 1 on Information 95644 is a primary designated offence.

Pursuant to s. 487.051(1) of the Criminal Code I authorize the taking of samples of bodily substances from you, you must attend at the Mission RCMP in Mission, B.C. [ 72 ] THE COURT: I am going to give you a month, but you are going to have to go to the Mission detachment any Thursday between 8:00 a.m. and 12 o'clock p.m. after getting permission from your CSO supervisor to do so, and they will take the DNA sample. So attend there on or before September 28 th of 2023 and submit to the taking of the samples.

The order is valid until executed. [ 73 ] THE COURT: There will be forfeiture of the exhibits that were seized and Crown can draft that order and provide it. [ 74 ] THE COURT: I will give you a year to pay the victim fine surcharge that is going to attach to each of those convictions.

(ORAL REASONS FOR SENTENCE CONCLUDED)