R. v. Allen Date:, 2015 BCPC 226

Citation: R. v. Allen Date: 20150730 2015 BCPC 0226 File No: 98095 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JEREMY ROBERT ALLEN REASONS FOR SENTENCE OF THE HONOURABLE JUDGE S.R. HARRISON Counsel for the Crown: Mr. T. Livingston Counsel for the Accused: Mr. M.J. Stephenson Place of Hearing: Merritt , B.C. Dates of Hearing: June 5, 2015 and June 25, 2015 Date of Judgment: July 30, 2015

[ 1 ] Jeremy Robert Allen was found guilty on June 5, 2015 after trial of two counts of breach of recognizance for failing to abide by no contact terms with the named complainant, Laura Dinwoodie.

The Information was proceeded with by indictment. [ 2 ] The two counts relate to two separate recognizances but the acts alleged in breach of those recognizances were the same in each case. [ 3 ] The counts, as amended, read as follows: Count 1 Jeremy Robert Allen, from the 24 th day of May, 2014 to the 5th day of June, 2014 inclusive, at or near West Kelowna, Vancouver and Merritt, in the Province of British Columbia, being at large are recognizance entered into before a Justice or Judge and being bound to comply with a condition of that recognizance as directed by a Justice or Judge, did fail without lawful excuse to comply with the following condition or direction: to have no contact or communication, directly or indirectly, with Lauren Dinwoodie or John Aronson, contrary to section 145(3) of the Criminal Code .

Count 2 Jeremy Robert Allen, from the 24 th day of May, 2014 to the 5th day of June, 2014, inclusive, at or near West Kelowna, Vancouver and Merritt, in the Province of British Columbia, being at large on a recognizance entered into before a Justice or Judge and being bound to comply with a condition of that recognizance as directed by a Justice or Judge, did fail without lawful excuse to comply with the following condition or direction: You must have no contact directly or indirectly with Lauren Dinwoodie, including by social media, twitting, tweeting, texting, email, Facebook or any other means except through legal counsel, contrary to section 145(3) of the Criminal Code . [ 4 ] At the trial of this matter, Mr.

Allen faced five counts. The trial also resulted in acquittals on Counts 3, 4 and 5 which charged Mr. Allen with an attempt to obstruct, pervert or defeat the course of justice by uttering threats, uttering threats to cause death or bodily harm, and assault, all in respect to Ms. Dinwoodie. [ 5 ] At trial I found Mr. Allen to be an untruthful witness. He was at times transparently false in his evidence. Nonetheless, I was left with a reasonable doubt as to his guilt on Counts 3, 4 and 5 and he was acquitted on those counts.

The Recognizances [ 6 ] The recognizance referred to in Count 1 was entered into on Kelowna case no. 79586 on October 15, 2013 in the amount of $1,500 with a cash deposit. This recognizance was granted after Mr. Allen’s arrest in relation to charges arising out of events on October 12, 2013. Those charges included breaking and entering with intent at the home of Ms. Dinwoodie’s mother, theft and uttering threats. The charges all related to Ms. Dinwoodie or those close to her. This matter was tried June 19, 2014. Mr. Allen was convicted on the charge of breaking and entering with intent.

On July 22, 2014, he received an effective sentence of 70 days in jail. [ 7 ] A month after that break-in, on November 14, 2013, Mr. Allen was arrested again. He was charged with new offences arising that day under Kelowna case no. 79776. The charges included breach of the no contact provisions of the October 15 recognizance, assault, and uttering threats to cause death or bodily harm. The November 14 charges all related to Ms. Dinwoodie. [ 8 ] The next day, November 15, 2013, Mr. Allen was released on a further recognizance in the amount of $1,500, also with a cash deposit.

This is the recognizance referred to in Count 2. The no contact term with respect to Ms. Dinwoodie contained in condition 4 of that recognizance is set out in Count 2. [ 9 ] On July 24, 2014, Mr. Allen pleaded guilty to the breach of the no contact condition on the November 14 offences. Mr. Allen was sentenced to 14 days on the no contact breach and an effective sentence of 60 days for uttering threats to cause death or bodily harm to Ms. Dinwoodie. The Circumstances of the Current Offences [ 10 ] Despite being bound by two recognizances which required him to have no contact with Ms.

Dinwoodie, over the period May 24 through June 5, 2014 Mr. Allen subjected Ms. Dinwoodie to a virtual barrage of communications by text, email and telephone. There is no doubt that the communications attributed to Mr. Allen were his. [ 11 ] Mr. Allen embarked on a campaign to win back Ms. Dinwoodie, in spite of the no contact conditions in both recognizances. This commenced a few weeks prior to his June 19, 2014 trial date. The messages were calculated to persuade Ms. Dinwoodie to reconcile with Mr. Allen. [ 12 ] Ms. Dinwoodie was the complainant and an important witness in the forthcoming case against him.

The benefits to Mr. Allen of having Ms. Dinwoodie “on side” at his trial were obvious and potentially significant. [ 13 ] Mr. Allen’s communications to Ms. Dinwoodie over this period were unrelenting. The exhibited print-outs of his text and email communications run to many pages. His words were in turns flattering, apologetic, pleading or ingratiating and at other times coarse and insulting. He conveyed the truth, as he put it, that no one loved her as he did. Her silence was torturing him. He couldn’t eat

or sleep. He was shattered. He asked why she was, destroying him, killing him. He told her at one point he had nearly committedsuicide the previous night. He repeatedly pleaded with her to come home, to help him mend his broken heart. He asked her again andagain to stop ignoring him. [14] In some messages his words and tone were bullying and abusive. He told Ms. Dinwoodie she was vindictive. He cursed andaccused her of cheating on him, though he said he still loved her. On May 24, 2014, while Ms. Dinwoodie was preparing to attend herfather’s funeral, Mr.

Allen called and told her that her father had thought she was a whore and said that he, her father, never loved her. [15] These conversations in breach of bail terms occurred against a background where Mr. Allen’s long relationship with Ms.Dinwoodie began when she was a young teenager. She is about ten years younger than Mr. Allen. They had a child together andmarried when she was still a teenager and a second child followed. The relationship was notable for frequent moves, Ms. Dinwoodie’ssocial isolation and the presence of family violence. The couple broke up in 2013 when Ms. Dinwoodie was 24 years old.

Circumstances of the Offender [16] Mr. Allen’s only criminal convictions are those set out in these reasons. They were recorded after the offence dates charged inthe present Information. To be clear, this offender had no prior criminal convictions when the offences here were committed, though hewas on bail for breaching his bail terms when he committed these further bail breaches. [17] When he has been employed, Mr. Allen has worked as a subcontractor in the Alberta oil fields. He hopes to return to that workor to go back to school.

He is in a new relationship and enjoys supervised parenting time with his children. [18] The offender has asserted that he has become a changed man since the offence dates. He was drinking then but is now clean andsober nine months. He attends both Alcoholics Anonymous and Narcotics Anonymous programs. [19] Mr. Allen was enrolled in the Relationship Violence Program and provided confirmation of his attendance and participation inthat program. He had completed a Nurturing Fathers Program and commenced volunteer work in the kitchen of the Kelowna GospelMission in January, 2015. [20] Mr.

Allen spoke at length in his allocutus and said that he has recently found redemption in his faith. Positions on Sentence [21] The maximum sentence available for breach of recognizance is two years when proceeded with by indictment. [22] Crown counsel, Mr. Livingston, takes the position that the circumstances of this case are sufficiently aggravated that theoffender should receive an effective sentence in the range of six to eight months in jail. [23] In support of this position, the Crown relies on the following cases: R. v. Bates, (ON CA), [2000] O.J. No.2558 (Ont. C.A.); R. v. J.F., [2001] O.J. 2054 (Ont.

S.C.J.); R. v. Seaward, [2003] N.J. No. 307 (N.L.P.C.); R. v. Wood, [2007] B.C.J.1785, 2007 BCPC 257; and R. v. Billotta, [2015] B.C.J. No. 209, 2015 BCSC 181. [24] Counsel agreed that Mr. Allen has been in pre-trial custody attributable to these charges for a period of 51 days. If entitled toenhanced credit of 1.5 days for each day served in pre-trial custody, Mr. Allen’s credit for time served would amount to 77 days. [25] However, the Crown submits on the strength of R. v. Summers, [2014] S.C.R.

No. 26, 2014 SCC 26, that the offender wasdetained as a result of repeated breaches of his bail conditions and is not entitled to enhanced credit. It is the position of Crown that theoffender should receive one day’s credit for each day served in pre-trial custody. [26] Counsel for the offender, Mr.

Stephenson, submitted that there is no statutory bar to enhanced credit in these circumstances, butwhether credit was given on a one to one basis or a 1.5 to one basis, no further incarceration was required by the applicable principles ofsentencing. [27] The offender did not plead guilty to Counts 1 and 2 but did not dispute his guilt on those counts at trial. The case against him onCounts 1 and 2 was very strong. Mr. Allen’s contest was on the remaining three counts of which he was acquitted. [28] Mr.

Stephenson urged that this case is distinguishable from some of the cases cited, in that the offender’s contact with Ms.Dinwoodie was not unwanted by her. If not a mitigation, it is an absence of a common aggravating feature. I do not accept thissubmission as being factually accurate or otherwise a persuasive argument. In this case, the offender was bound by two bail orders andwas deliberate and calculating in his decision to breach the orders repeatedly. These are serious breaches. Sentencing Principles [29] The Criminal Code sets out principles of sentence for the guidance of the courts.

Some of those provisions applicable in thiscase are set out below: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance 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; (

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

c) to separate offenders from society, where necessary;

(

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. … 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, … shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 30 ] In R. v. Bates , the Ontario Court of Appeal emphasised the importance of the paramount principles of general deterrence, specific deterrence and denunciation in cases involving predatory abuse in domestic relationships. See paragraphs 28 - 30.

The court approved the use of the same principles in dealing with breaches of court orders where the breaches were related to the very conduct for which the offender had been arrested. [ 31 ] To paraphrase the court in Bates (at paragraph 30 ), the law must do what it can to protect people who wish to break off relationships. The concern for protection must be all the greater when those same people are also vulnerable witnesses.

No contact bail orders are intended to provide that protection and when those orders are rendered ineffective by the cynical and deliberate actions of an offender, deterrent and denunciatory sentences are to be expected. [ 32 ] The cases cited by the Crown and set out above reinforce the importance of the principles of deterrence and denunciation in such cases. An Appropriate Range of Sentence [ 33 ] Accepting at face value the expressions of regret offered by Mr. Allen in court, the steps he has taken towards rehabilitation are to his credit.

He did not contest at trial the charges of which he has been convicted. At the time these offences were committed he was without a record of criminal convictions. [ 34 ] However, the mitigation urged on behalf of Mr. Allen does not off-set the need for a sentence which will emphasise denunciation and deterrence and which will help to dissuade Mr. Allen and others who may be in a like situation from committing similar offences. Mr. Allen is still currently bound by probation conditions. [ 35 ] The cases cited by the Crown vary according their facts and the circumstances of each offender.

In consideration of these cases, this offender, the principles of sentencing and the circumstances before me, I am satisfied that an effective sentence in the range of four to six months or 120 to 180 days in jail would be a just sanction here. Pre-sentence Credit [ 36 ] In calculating the credit to be granted for the 51 days served in pre-trial custody, Criminal Code subsections 719(3) and (3.1) have application:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unlessthe reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custodyunder subsection 524(4) or (8). [37] In this case, the statutory bars to enhanced credit (s. 515(9.1), s. 524 (4) and (8)) have no application. In R. v. Summers, theSupreme Court of Canada found that the loss of access to parole and early release were circumstances capable of justifying enhancedcredit. This

interpretation ensured that a detained offender convicted of offences would not generally serve a longer period in custodythan a bailed co-accused receiving the same sentence. This approach is also in conformity with the sentencing principles of parity andproportionality set out in sections 718.1 and 718.2. [38] Justice Karakatsanis, speaking for the court, stated the following at paragraph 48: Moreover, enhanced credit need not be granted in every case. For example, when long periods of pre-sentence detention are attributableto the wrongful conduct of the offender, enhanced credit will often be inappropriate.

Section 719(3) continues to exist for such cases. [39] At paragraph 70, Justice Karakatsanis endorsed the analytical approach laid out in R. v. Wust 2000 SCC 18 , [2000] 1S.C.R. 455, as modified by the statutory maximum credit permitted by subsection 719(3) and the statutory exceptions mandated by (3.1). [40] There is no evidence or submissions before me regarding deficits in the qualitative aspects of the time served on remand by Mr.Allen at the Kamloops Regional Correctional Centre.

As to the issue of the enhanced credit for time served, it has long been part of thequantitative analysis to consider the extent to which and offender’s bad conduct, such as bail breach, militates against enhanced credit. See R. v. Summers, paragraph 31. [41] In the case at bar, Mr. Allen served 51 days on remand, substantially because he breached his bail terms and did so in anegregious manner. In these circumstances, the ratio of one day’s credit for one day served set out in s. 719(3) is appropriate.

The Sentence [42] Taking all of these matters into account, I’m satisfied that an appropriate effective sentence for Mr. Allen on these matters willbe 140 days, less credit of 51 days for 51 days served in pre-trial custody. [43] The result will be that Mr. Allen will be required to serve a further 89 days in jail. He has requested that he be allowed to serveany further sentence intermittently, if possible, in order to allow parenting time with his children to continue and to reduce interferencewith the progress he has been making in his various programs.

I will grant that request. [44] There was brief discussion in submissions regarding the possibility of a conditional sentence order, however I agree withcounsel that given Mr. Allen’s recurring inability to comply with court orders, he is not a good candidate for a CSO. I would not havesufficient confidence in Mr. Allen’s ability to abide by the conditions of any such order to grant him a CSO. Nor, in my view, wouldsuch a sentence adequately address the principles of denunciation and deterrence. [45] Mr.

Allen will be required to attend on weekends to the lock-up at the Kelowna Detachment, RCMP, at the address which willbe provided to him. He will be subject to a probation order until that sentence has been served in full. [46] The sentence, including the probation order, will go in respect of Count 1 only. I will add that although I found Mr. Allen guiltyof both Counts 1 and 2, on application of R. v. Kienapple (1974), (SCC), [1975] 1 S.C.R. 729, and upon the indication ofCrown counsel, I directed the entry of a conviction on Count 1 only.

On Count 2, I directed a conditional judicial stay of proceedings onCount 2. If I was in error in that regard, I would have imposed the same sentence on both counts to be served concurrently. _________________________________ S.R. Harrison Provincial Court Judge