R. v. Sinclair, 2013 NSSC 86

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Sinclair, 2013 NSSC 86 Date: 20130225 Docket: CRH 393623 Registry: Halifax Between: Her Majesty the Queen v. Barry Edward Sinclair LIBRARY HEADING Restriction on publication:

Section 486.4(1)(a)(i) - Ban on Publication of any information that could disclose the identity of the complainants. Judge: The Honourable Justice Michael J. Wood Heard: February 25, 2013, in Halifax, Nova Scotia Decision: February 25, 2013 (Orally) (Sentencing) Written Release of Decision: March 7, 2013 Subject: Criminal Law - Sentencing

Summary: Mr. Sinclair was convicted of break and enter with the intent to commit an indictable offence, contrary to section 348(1) (

a) of the Criminal Code . Crown called a forensic psychologist to provide an opinion on risk of re-offending and whether crime was of a sexual nature. Mr. Sinclair had a lengthy criminal record. Issue: What is a proper sentence? Result: The Court did not put significant weight on the expert opinion due to the lack of current information about Mr. Sinclair. Her opinion on the nature of the offence was not accepted. The Court imposed a sentence of five years incarceration in light of the lengthy record of prior convictions. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION.

QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: R. v. Sinclair, 2013 NSSC 86 Date: 20130225 Docket: CRH 393623 Registry: Halifax Between: Her Majesty the Queen v. Barry Edward Sinclair

Restriction on publication:

Section 486.4(1)(a)(i) - Ban on Publication of any information that could disclose the identity of the complainants. Judge: The Honourable Justice Michael J. Wood Heard: February 25, 2013, in Halifax, Nova Scotia Decision: February 25, 2013 (Orally) (Sentencing) Written Release of Decision: March 7, 2013 Counsel: Denise Smith, for the Crown Luke A. Craggs, for the Defence By the Court : (Orally) [ 1 ] Barry Sinclair is fifty years old and has a lengthy criminal record. He was convicted after trial of one count of break and enter with intent to commit an indictable offence, contrary to s. 348(1) (

a) of the Criminal Code . [ 2 ] The circumstances of the offence are set out in my decision following trial which was given on November 27, 2012 ( 2012 NSSC 408 ). Mr. Sinclair entered a residence on Shirley Street, in Halifax in the early morning of September 15, 2011. He did so without the knowledge or permission of the occupants. [ 3 ] One of the residents awoke when she heard her bedroom door opening. The shadowy figure she observed left quickly.

This woman did not realize there had been a stranger in the apartment until she discussed the incident with her roommates later that day. [ 4 ] Earlier today, the sentencing hearing for Mr. Sinclair took place. At that time, the Crown called Dr. Michelle St. Amand- Johnson as an expert witness. With the agreement of defence counsel, Dr. Amand-Johnson was qualified as a forensic and clinical psychologist, able to give opinion evidence with respect to management and treatment of recidivism risk, sexual deviancy and criminogenic variables. Her report was entered as exhibit #2. [ 5 ] Dr.

Amand-Johnson was asked to provide her opinion on two questions: - First, the level of risk posed by Mr. Sinclair. - Secondly, whether the break and enter was for a sexual purpose (i.e. voyeurism). [ 6 ] On the risk issue, her opinion was based on a review of various files and reports concerning Mr. Sinclair. Unlike other forensic risk assessments which she carried out, she did not interview Mr. Sinclair or any collateral sources of information.

[ 7 ] In her opinion, Mr. Sinclair ’ s baseline or static risk of re-offending was moderate for violent offences and moderate to high for offences involving a sexual component. [ 8 ] Dr. Amand-Johnson described this as the risk level for any individual with Mr. Sinclair ’ s history of offences. She also described the concept of dynamic risk, which assesses the specific ability of an individual to manage the factors that may cause them to re-offend. This would assess a person ’ s risk of re-offending, taking into account their personal circumstances. [ 9 ] Dr. Amand-Johnson was not able to assess Mr.

Sinclair ’ s dynamic risk factors because she did not have the necessary data - in particular, she did not have current information with respect to Mr. Sinclair and his situation. [ 10 ] With respect to the nature of the offence in question, Dr. Amand-Johnson gave the opinion that in light of Mr. Sinclair ’ s history, it was more likely that the intent of the break and entry was to engage in voyeurism, as opposed to theft or some other offence. [ 11 ] Ms. Smith, on behalf of the Crown, argued that the evidence of Dr. Amand-Johnson established a degree of risk of Mr.

Sinclair re-offending, and also that the break and enter was another example of him engaging in sexual (i.e. voyeuristic) activities.

She noted his lengthy criminal record, including ten convictions for break and enter, with his sentence on the last such offence being four years incarceration. [ 12 ] She says that keeping in mind the principles of protection of the public and general deterrence, the appropriate sentence would be six years imprisonment, with credit for time spent in remand since March 1, 2012. [ 13 ] The Crown also seeks an order authorizing the taking of a DNA sample, pursuant to s. 487.051 of the Criminal Code . [ 14 ] For the defence, Mr. Craggs says that Dr. Amand-Johnson ’ s report is of marginal relevance.

He says this because: 1) It was a paper review, with much of the significant data coming from the 1990's. 2) Although it assesses the static risk of an offender with Mr. Sinclair ’ s history, it does not provide an opinion of Mr. Sinclair ’ s dynamic risk - i.e. whether he is effectively managing his risk factors. 3) There was no evidence at trial with respect to the intent of the break, and enter and Dr. Amand-Johnson ’ s opinion on this does not meet the required evidentiary burden. [ 15 ] Mr. Craggs acknowledges the lengthy record, but suggests that it is somewhat dated.

The offences in the 1990's were more frequent and serious than those in the last decade. He says that the pre-sentence report indicates that Mr. Sinclair has some employment skills and has been successful in earning income. [ 16 ] Mr. Craggs categorized the break and enter as being at the low end of the scale, with no aggression or violence. Mr. Sinclair left quickly once he was discovered. [ 17 ] In these circumstances, Mr. Craggs says that an 18 month period of imprisonment is appropriate, with credit for remand time from March 1, 2012. [ 18 ] He takes no position on the request for a DNA order.

[ 19 ] In addressing what would be a fit and appropriate sentence, I must first consider the opinion evidence given by Dr. Amand- Johnson. [ 20 ] I accept her conclusions with respect to the risk of re-offending arising from Mr. Sinclair ’ s history and, in particular, his criminal record. Although Mr. Craggs pointed out the dated nature of some of her sources, Dr. Amand-Johnson says that once the baseline risk is established, it rarely changes. [ 21 ] What is missing from the equation is any quantification of Mr. Sinclair ’ s dynamic risk - i.e. how he may be managing his risk factors.

That would indicate the likelihood of Mr. Sinclair, in particular, re-offending. As Dr. Amand-Johnson properly acknowledged, she did not have access to enough current data to express an opinion on this. That is not in any way a criticism of Dr. Amand-Johnson in the work that she did in preparing her report. [ 22 ] I agree with Mr. Craggs that common sense dictates that a person with a lengthy record is more likely to re-offend than someone without that history. Dr. Amand-Johnson quantifies and explains the risk but, in my view, does not significantly change the approach I would take in determining Mr.

Sinclair ’ s sentence. [ 23 ] On the question of whether the break and enter was intended to be for voyeurism, I am not prepared to accept Dr. Amand- Johnson ’ s opinion. She clearly stated that “ on balance ” she believed it was for that purpose, in light of Mr. Sinclair ’ s background. In cross-examination, she seemed somewhat unsure - in one case saying she suspected that voyeurism was the motivation. [ 24 ] If the Crown had wanted to establish the offence which Mr. Sinclair intended to commit, they must do so beyond a reasonable doubt.

At trial, they were prepared to rely on the presumption in s. 348(2) and did not call evidence on the intended purpose of the break and enter. They cannot do so on the sentencing unless they meet the same burden of proof that they would have had to at trial. [ 25 ] In considering the nature of the offence, I note that there was no evidence of particular trauma or upset to the victims who lived in the apartment. There was uncertainty about whether a stranger had been there at all. There was no violence, threat or aggression. [ 26 ] However, I do not agree that this was at the low end of the break and enter scale.

Any time someone breaks into a dwelling when it is occupied, it is a very serious breach of personal integrity. It also carries significant risk of personal harm if the intruder is discovered - there is no way to predict the reaction of someone awakened by an intruder. Serious personal injury is a distinct possibility. [ 27 ] This is not the same as someone breaking into a dwelling when they know it is empty or a cottage that is closed for the season. [ 28 ] Residents of Halifax are entitled to the security of their own homes. As in this case, we have many students living in apartments in south-end Halifax.

They are entitled to be protected from strangers sneaking into their dwellings at night. [ 29 ] The reason why the Nova Scotia Court of Appeal in R. v. Adams . 2010 NSCA 42 and other decisions set a three year benchmark for incarceration in break and enter cases is because of the serious nature of offences involving the invasion of property. [ 30 ] I will start with that three year baseline and consider factors that might justify moving it up or down in this case. [ 31 ] I am strongly influenced by Mr. Sinclair ’ s criminal record - 10 prior convictions for break and enter, along with other property offences.

His last sentence for a break and enter was four years in jail.

[ 32 ] Mr. Craggs says that Mr. Sinclair ’ s record shows improvement over the last decade - fewer convictions and less serious crimes. That is certainly true, but there are convictions nonetheless. These include criminal harassment, theft, trespass at night and possession of controlled substances. [ 33 ] Mr. Sinclair ’ s pre-sentence report does include some positive information relating to his employment skills and prospects. [ 34 ] With his prior convictions and his last sentence of four years for a break and enter, the submissions of Ms.

Smith on behalf of the Crown for a six year sentence is understandable and reasonable. [ 35 ] I am prepared to recognize that perhaps Mr. Sinclair had begun to manage his recidivism risk in recent years and may have a chance to live a productive life. For this reason, I will fix the sentence at five years incarceration, with credit for remand time from March 1, 2012. [ 36 ] I will also grant the Crown ’ s request for the DNA order under s. 487.051(1) of the Criminal Code . I waive the victim surcharge. [ 37 ] Mr. Sinclair: I did not put much weight on the opinion of Dr.

Amand-Johnson for purposes of determining an appropriate sentence. However, it is clear that you have risk factors that you need to manage. I would encourage you to take advantage of any treatment or programs that might assist you. [ 38 ] Once you are released from prison if you re-offend, the punishment will simply increase, and I wish you luck, Mr. Sinclair. _______________________________ Wood, J.