R. v. G.P.N. Date:, 2017 BCPC 200

Citation: R. v. G.P.N. Date: 20170629 2017 BCPC 200 File No: 95675 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. G.P.N . REASONS FOR SENTENCE OF THE HONOURABLE JUDGE McQuillan Counsel for the Crown: Jay Fogel Counsel for the Defendant: David Ferguson Place of Hearing: Port Coquitlam , B.C. Date of Hearing: June 19, 2017 Date of Judgment: June 29, 2017

[ 1 ] On April 13, 2017, following a trial, G.P.N. was convicted of the following: 1. One count of attempted robbery on April 11, 2016 contrary to sections 344(1) (

b) and 463 of the Criminal Code . 2. One count of having his faced masked with intent to commit an indictable offence, contrary to section 351(2) of the Criminal Code . 3. One count of possessing a pickaxe for a purpose dangerous to the public peace or for the purpose of committing an offence, contrary to section 88(1) of the Criminal Code . [ 2 ] During the sentencing hearing on June 19, 2017 the crown advised that based on the principles in R. v. Kienapple [1975] 1 SCC 729, count 3, that of possessing a pickaxe, should be stayed. As such there will be a conditional stay of that charge.

Circumstances of the offence [ 3 ] The circumstances of the evidence are set out in reasons for judgment delivered on April 13, 2017. In

summary, G.P.N. attempted to rob a liquor store in Pitt Meadows B.C. on April 11, 2016. He entered the store wearing a face covering and wielding a small pickaxe. He approached the store manager, Mr. Sobieski and demanded the money from the store. He was offered the money in the cash register but said that he wanted the money from the back room that he presumably believed had not yet been deposited from the weekend. When they went to the safe in the back office of the store it was apparent that there was no money in the safe. Mr. Sobiesky then ran from the store and G.P.N. fled, without obtaining any money.

Circumstances of G.P.N. [ 4 ] G.P.N. is 33 years old. He is of aboriginal heritage on his mother’s side, descended from the Tr’odeck Hwchi’in First Nation in the Yukon. His parents separated when he was 8 years old and he then lived with his father. He describes his father as being abusive towards him and his mother. He moved in with his mother when he was 14 years old and thereafter lived with her and her partner. He remains close to his mother and sister. [ 5 ] G.P.N. has a significant criminal record.

His first convictions began as a youth when he was convicted of a number of property crimes, including two counts of possession of stolen property, two counts of break and enter and one count of theft under $5000. As an adult, his criminality continued with a series of property offences and breaches during 2003. In 2004 he was convicted of robbery for the first time. He was subsequently convicted of several further counts of robbery, the most recent one being in May 2013. He has 26 convictions as an adult, prior to his conviction in this trial. Of those adult convictions 8 have been for robbery.

His conviction for 2 counts of robbery and one count of disguising his face with intent to commit an offence in 2008 led to a jail term of 4 years and 2 months. His most recent conviction for robbery in May 2013 led to a sentence of 2.5 years incarceration. Both involved completed robberies rather than attempts. [ 6 ] I have reviewed the pre-sentence report which was prepared on June 1, 2017. That indicates that G.P.N. did not graduate from high school. While incarcerated he obtained his GID as well as various trade certificates.

His employment history has been sporadic due to his addiction issues as well as lengthy periods of incarceration, and he has limited job skills. He has some landscaping training and hopes to start a landscaping business once he is released from custody. [ 7 ] G.P.N. began drinking and using drugs at the age of 12. He began using heroin when he was 18. When he was 27 he went on the methadone program and in 2015 he switched to suboxone for ongoing treatment of his opioid addiction. At the time of committing the robbery in 2016 he indicates that he had gotten past the issue of his drug addiction.

As such, addiction issues do not appear to have been the motivation for committing that crime. Indeed, to a large extent, and to his credit, G.P.N. appears to have been successfully managing his addiction since 2011. Thus both the present conviction and the previous one in 2013 appear to have occurred while his addiction was under control. [ 8 ] I note that the Pre-sentence report mentions that G.P.N. tends to shift the blame for his criminal behaviour to his addiction and to whomever he was associating with at the time of the offence.

He told the PSR writer that he never enjoyed doing crime but rather it was a necessity in order to buy heroin to avoid becoming dope-sick. That was not however, an issue with respect to this offence. His explanation for committing the present offence was that the one time co-accused had contacted him telling him that he had a debt to a drug dealer that he needed help with. G.P.N. was on social assistance and struggling financially as well so agreed to commit the robbery in order to help out both of them. [ 9 ] There has clearly been a pattern of G.P.N. surrounding himself with criminally involved peers.

He says that he is tired of the negative lifestyle and is ready to build a pro-social network of friends, get a job and start a family. His former parole officer indicates that he has made similar statements during each of his federal custody terms as well. [ 10 ] G.P.N. provided an undated supportive letter from his fiancé, Crystal Thompson, whom he has been in a relationship for the past year. The letter was evidently written prior to his conviction on these charges. I note however that the PSR indicates that numerous and varied attempts were made by the writer to contact Ms. Thompson but were unsuccessful. Ms.

Thompson also failed to return a voice mail message to G.P.N.’s parole officer in September 2015. As such, her support remains uncertain. For the purposes of sentencing however I am prepared to accept that she is a support for him, along with G.P.N.’s mother and sister. [ 11 ] The pre-sentence report also indicates that G.P.N.’s behaviour while in custody has required ongoing intervention and that he has breached every form of provincial or community supervision.

It states that when released on parole, his pattern is to use drugs, disappear, and have his parole revoked and that he re-offended one week after his release from his first federal sentence. The defence takes issue with that characterization of his custodial time and says he was largely able to stay out of trouble while in custody. I believe that the pattern referred to by his parole officer likely relates to a period when G.P.N. was in active addiction rather than in stable treatment as he appears to be now.

[ 12 ] Although G.P.N. is of aboriginal heritage, he has had little connection with that part of his identity. His mother learned from a young age that it was easier to hide her aboriginal heritage to avoid being subject to negative stereotypes and racism. Consequently, she lost all connection to and knowledge of her culture and was unable to pass on any cultural knowledge to her children.

It was only through the research conducted by the PSR writer that G.P.N. learned of the name and location of his maternal aboriginal band. [ 13 ] Notwithstanding this lack of connection to his aboriginal ancestry, I accept that many of the issues that G.P.N. has faced, including family dysfunction, substance abuse and involvement with the criminal justice system are the same issues faced by aboriginal peoples resulting from the intergenerational effects of the legacy of colonialism and residential schools. Impact on the victim [ 14 ] Mr. Sobiesky was interviewed for the PSR. He states that “there was no victim”.

He stated that because there was no damage to the store, G.P.N. got no money and he felt no psychological impact from the crime. Ironically, he advises that the attempted robbery taught him that the store security measures were lacking and he has since taken steps to improve store security. Mr. Sobiesky expresses empathy for G.P.N. and wishes him the best. Positions of crown and defence [ 15 ] The crown submits that a fit sentence is 3.5 to 4 years, to be reduced by time served credited at 1.5 to 1. He has been in custody for 416 days, which at time and a half, equates to 624 days.

This would leave 22 to 28 months left to serve in custody. If the remaining sentence is less than 24 months, the crown seeks a period of probation following his release. [ 16 ] The defence submits that a fit sentence is 24 to 30 months, less the pre-sentence custody at 624 days. This would be followed by a 2-3 year period of probation. The Law [ 17 ] Robbery is an indictable offence for which there is a maximum sentence of life imprisonment. Because the offence was attempted and not completed, s. 463 applies, and provides a maximum sentence for attempted robbery of 14 years.

The difference in the maximum sentences between the two implies that completed robberies are generally more serious and deserving of a longer sentence. [ 18 ] Here the crown takes the position that little if anything should turn on the distinction between this being an attempt rather than a completed robbery since G.P.N. did not accept the modest amount from the cash register that he was offered and instead sought the greater amount he thought was in the back room. However, I do not believe it is appropriate to ignore that distinction even where the robbery could quite easily have been successful.

The code creates a distinction and I should factor that into the sentence. [ 19 ] Both the crown and defence submit that denunciation and deterrence are the overriding factors in a case such as this. However, the defence submits that the principle of rehabilitation should still be an important consideration, despite G.P.N.’s lengthy criminal record and the fact that he has taken many programs in the past aimed at his rehabilitation. The defence refers to the case of R. v.

Elliott 2010 BCSC 1354 where Madam Justice Griffin states at paragraph 40: [40] But of course, many addicts do fail several times, but sometimes they do eventually succeed in sticking with treatment.

Just because rehabilitation has not worked in the past does not mean it should be discarded as a goal of the criminal justice system, especially when dealing with an offender whose motivation for crime has been drug addiction as opposed to a psychopathic personality. [ 20 ] While G.P.N., according to his own assertions, appears to have gotten his addiction issues reasonably managed and thus cannot blame his addiction for this offence, rehabilitation clearly goes beyond drug treatment.

Given his still relatively young age, the fact that he has managed to tame his addiction, his family support, and his expressed desire to rehabilitate, I agree that rehabilitation needs to be a factor in the sentence that I impose. [ 21 ] The crown relies on two cases. The first is the aforementioned case of R. v. Elliott . In that case the 38 year old offender attempted to rob a pharmacy of drugs. He threatened the pharmacist with something that looked like an imitation gun. When the pharmacist resisted he showed him a knife.

The pharmacist refused to cooperate and the offender left the pharmacy without completing the robbery. The offender had a lengthy criminal record with his criminal activity motivated by his drug addictions. The offender was sentenced to 58 months before pre-sentence custody. [ 22 ] The second case relied on by the crown is R. v. Beattie 2015 BCCA 335 . That case involved a 22 year old offender who pled guilty to using a restricted firearm in an attempted robbery, as well as possessing a prohibited firearm while prohibited.

The offender used a concealed and unloaded sawed off shotgun which he pointed at two employees in a 7-11 in a botched robbery attempt. The offender had a very difficult childhood, spending periods of time in foster care. He was addicted to alcohol and had serious cognitive deficits such that the PSR writer indicated that it could be a challenge for him to successfully live independently. The offender had a significant record of 26 convictions, with the longest previous period of incarceration being nine months for robbery.

He had some aboriginal heritage, although he did not grow up with any connection to aboriginal culture. The trial judge sentenced him to 5 years. However, on appeal, the sentence was reduced to 3.5 years for the attempted robbery plus an additional 6 months consecutive for the breach of the firearms prohibition, for a total sentence of 4 years. [ 23 ] The defence relies on two cases. The first is R. v. Davidson 2009 BCCA 485 . In that case the 25 year old offender had pled guilty to a daytime robbery of a pharmacy where an imitation firearm was used.

He was a drug addict and the robbery of drugs occurred while he was under the influence of drugs. He had a lengthy criminal record, including prior convictions for robbery when he was still a youth. The trial judge sentenced him to 4 years. On appeal the sentence was reduced to 3 years. [ 24 ] The 2 nd case relied on by the crown is R. v. Bajwa 2016 BCPC 445 . The offender here was 22 years old and had no prior record. As

an act of revenge against his employer gas station he planned to rob it. He wore a hoodie and a mask and approached the employee on duty and threatened to stab them if they did not give him the money. He was given $1462 in cash and left. He was

subsequently apprehended, and pled guilty. He was seen to be a low risk to reoffend and was sentenced to 6 months in custody and 12 month probation. The defence acknowledges that the facts of that case are somewhat dissimilar from the case before me. Application to this case [ 25 ] In the present case the aggravating factors are G.P.N.’s lengthy criminal record, including several convictions for robbery, as well as the fact that he has previously been sentenced to lengthy periods of incarceration for robberies.

I do note however, that the record does not disclose offences of violence, although robberies are clearly threatened violence. In the present case the threat of violence is somewhat muted by Mr. Sobieski’s stoic response to that threat. [ 26 ] In mitigation, I also accept that there is some level of remorse indicated by G.P.N. (although it could more properly be characterized as regret than remorse). I am also taking into consideration the fact that G.P.N. appears to have strong family supports through his mother and sister, and possibly his fiancé.

Although again that factor is tempered with the reality that this offence occurred while those supports were in place. I am also mindful of the fact that while in custody G.P.N. has apparently taken steps to address his addiction by engaging with drug and alcohol counsellors at NFPT. [ 27 ] I am also required to consider G.P.N.’s aboriginal heritage as a factor in sentencing, notwithstanding his lack of connection with that culture. That lack of connection no doubt relates to the intergenerational effects of colonialism, racism and residential schools.

G.P.N. has expressed an interest in pursuing First Nations restorative justice. While it is too late in the court process to engage in restorative justice with the Tr’ondek Hwechi’in Nation, G.P.N. still has the opportunity, if he wishes, to engage with them following the completion of his custodial sentence. [ 28 ] In accordance with s. 718.2(

b) the sentence that I impose should be similar to sentences imposed for similar offences committed in similar circumstances. [ 29 ] The cases relied on by the crown are very similar to the one before me. R. v. Elliot is perhaps somewhat more aggravating given the offender’s threat to start shooting if drugs were not handed over. This contrasts with G.P.N. who was described as being polite during the offence rather than menacing. Mr. Elliott was not aboriginal. [ 30 ] R. v.

Beattie had somewhat more egregious facts insofar as an unloaded sawed off shotgun was pointed at employees, and the fact that the employee was significantly traumatized by the incident. However, Mr. Beattie also pled guilty which was a mitigating factor that was not present in the case before me. [ 31 ] The defence case of R. v. Davidson is also very similar and led to a 3 year sentence.

However, that case also had the tempering factors of a guilty plea, a younger offender, no robberies having been committed as an adult, and the offender’s longest previous custodial sentence having been 9 months. [ 32 ] Taking into consideration all of the above factors, including giving some weight to the principle of rehabilitation, the sentence that I impose is 3.5 years, which will be broken down into 3 years for the attempted robbery and 6 months consecutive for having your face masked during the offence. [ 33 ] From that sentence will be deducted pre-sentence custody of 624 days or 20 months and 19 days, leaving an effective sentence of 21 months and 11 days. [ 34 ] Following your release from custody I would impose a period of 2 years of probation, with a view to assisting with your rehabilitation.

The terms of that probation will be: 1. Report in person to a probation officer at 4610 Mary Hill Road, Port Coquitlam, B.C. within 2 business days of your release from custody, unless you have obtained, prior to your release, written permission from your probation officer to report elsewhere or within a different time frame. After that, you must report as directed by your probation officer. 2. When first reporting to the probation officer you must inform him or her of your residential address and phone number.

You must not change your residence or phone number without written permission from your probation officer. 3. You must attend, participate in and complete any intake, assessment counselling or program as directed by your probation officer. 4.

You must not possess any knife, except for the immediate preparation or eating or food, or for purposes directly and immediately related to your employment. [ 35 ] There shall also be a lifetime firearm prohibition under s. 109. [ 36 ] As count #1 (attempted robbery) is a primary designated offence, pursuant to s. 487.051, I make an order in Form 5.03 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA national Databank .

The samples will be taken from you while you are in jail and you must submit to the taking of the samples. [ 37 ] There shall also be an order that the exhibits filed in this trial be forfeited to the crown.