R. v. Stacey, 2019 NLSC 45

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation: R. v. Stacey, 2019 NLSC 45 Date: February 21, 2019 Docket: 201801G6249 Her Majesty The Queen v. Raymond Stacey Before: Justice Donald H. Burrage Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: February 5, 2019 Appearances: Michael G. Murray Appearing on behalf of the Crown Karen E. Rehner Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Nasogaluak, 2010 SCC 6; R. v. Lundrigan, 2012 NLCA 43; R. v. Cluney, 2013 NLCA 46; R. v. Kane,2012 NLCA 53; R. v. Antle, [2012] N.J.

No. 458, 1030 A.P.R. 228; R. v. Tilley, ; R. v. Clarke, ; R.v. Chad, 2009 ABCA 48; R. v. Bell, 2006 ONCJ 452; R. v. McCrea, 2007 BCPC 258; R. v. Friday, 2010 SKPC 30; R. v. Glasco, 2009CarswellNfld 24, [2009] N.J. No. 19 (Prov. Ct.); R. v. Smith, 2011 NLTD(G) 123; R. v. Banville, 2014 ABCA 228; R. v. Biwer, 2017BCCA 424; R. v. Mahamud, 2017 CarswellOnt 11057, 141 W.C.B. (2d) 364; R. v. Barrett, 2012 ONSC 82; R. v. Hutchings, 2012 NLCA2; R. v. Safarzadeh-Markhali, 2016 SCC 14; R. v. Summers, 2014 SCC 26

STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Burrage, J. : INTRODUCTION [ 1 ] Raymond Stacey entered pleas of guilty, and on 5 February 2019, based on an Agreed Statement of Facts, was convicted of assault, assault with a weapon, robbery of a motor vehicle, theft of a motor vehicle, and breach of recognizance. The formal charges as they appear on the Indictment read, as follows: THAT on or about the 5 th day of May, 2018, at or near Paradise in the Province of Newfoundland and Labrador, did unlawfully commit an assault upon Alexandra Stacey thereby committing an Indictable offence contrary to

section 266 (

a) of the Criminal Code . THAT on or about the 5 th day of May, 2018, at or near Paradise in the Province of Newfoundland and Labrador, did unlawfully assault Alexandra Stacey, and in committing said assault, did use a weapon, to wit: a knife, thereby committing an Indictable offence contrary to

section 267 (

a) of the Criminal Code . THAT on or about the 5 th day of May, 2018, at or near Paradise in the Province of Newfoundland and Labrador, did rob a motor vehicle from Carrie Bradbury thereby committing an Indictable offence contrary to

section 343 of the Criminal Code . THAT on or about the 5 th day of May, 2018, at or near Paradise in the Province of Newfoundland and Labrador, did commit theft of a motor vehicle, the property of Sherry Grewol, thereby committing an Indictable offence contrary to

section 333.1(1) of the Criminal Code . THAT on or about the 5 th day of May, 2018, at or near Paradise in the Province of Newfoundland and Labrador, being a person at large on his Recognizance entered into before a Justice and being bound to comply with a condition of the Recognizance directed by a Judge, on the 26 th day of April, 2018, did without lawful excuse fail to comply with a condition of the Recognizance, to wit: keep the peace and be of good behaviour, thereby committing an Indictable offence contrary to section 145(3) (

a) of the Criminal Code . [ 2 ] It now falls to the court to impose a just and appropriate sentence for these crimes, while taking into account the circumstances of the offences, the offender, and applicable principles of sentencing. Circumstances of the offences [ 3 ] The circumstances of the offences are set forth in the Agreed Statement of Facts. It reads: On May 5, 2018 RNC Communications received a call from Alexandra Stacey at 1257hrs advising that she was assaulted by her husband Raymond Stacey. Alexandra was at 7 Cloudberry Drive, Paradise when officers arrived.

She was only wearing a tank top and underwear and was upset. She told officers that while she was collecting the baby’s belongings at Ray’s house, at 5a Cloudberry Drive, he became upset. Cst. Burton noticed that Alexandra had a bump on her head and cuts on her elbows. Alexandra said that he assaulted her while she was at Raymond’s residence on 5A Cloudberry Drive. Alexandra Stacey was taken to the Health Science Centre via an ambulance to be treated for her injuries. Ident attended the hospital and took photos of the injuries.

Alexandra had numerous abrasions on her arms, and bruises and abrasions on her thighs, knees and calves. She also had a red mark on her chest, bruising to her left clavicle, red marks on her face and a small hematoma on the right side of the back of her head. X-rays and a CT scan were performed and Alexandra had no fractures, no spinal injury or acute head injury. Alexandra Stacey told police in a statement and later testified at a Preliminary Inquiry that she met Raymond Stacey in January 2017 through a mutual friend. She became pregnant with Raymond’s child and they married in June of 2017.

Their child was born on February 15th, 2018. She said their relationship initially was strong, and that throughout the pregnancy and the first month of their child’s life Raymond was supportive and engaged in parenting their son. When Raymond’s Grand Father died in March she said his mental health quickly deteriorated and he became a different person. At the end of March Alexandra and the baby moved into Iris Kirby House. At approximately 10:00am on May 5, Alexandra Stacey called Raymond from the shelter where she was currently staying.

Raymond sounded normal on the phone and she said she was going to go to his residence at 5A Cloudberry Street to get items for their baby. She dropped the baby off with a friend and then took a cab to Raymond’s.

When Alexandra Stacey arrived at the residence, she noted that Raymond’s behavior was “off” and she suspected he was under the influence of drugs. She had taken her flip flops off when she arrived at the home, when she went to put them back on she noted they had been moved. She asked Raymond where they were he said he did not know. Alexandra called her friend to advise she would be leaving shortly. After the call ended she said Raymond became extremely upset. He called his mother, Joan Stacey, and told her that Alexandra was setting him up and was going to accuse him of rape.

Alexandra said that while Raymond was on the phone, she was screaming that she was not setting him up. Alexandra testified that Raymond went to the kitchen and got a knife. She described the knife as a red “Betty Crocker” kitchen knife with a plastic sheath which they had purchased at Dollarama. She said it was the only knife they had with a sheath. Alexandra indicated that Raymond took the knife out of a kitchen drawer and took the sheath off in the living room. She testified that he said he was going to kill her and told her to go to the bedroom.

When she got to the bedroom she grabbed a baseball bat that was on the bed and swung it at him and hit him in the right side temple. She and Raymond struggled for the bat. She said that during the course of this altercation he kicked her in the chest trying to get the bat from her. At this point Alexandra testified that she managed to get out of the living room/kitchen area and to the door of the residence. Then Raymond dragged her back in by the by the ankles and back of her head. She testified that when she tried to get out of the house a second time Raymond grabbed her pants and they came off completely.

When Alexandra got outside she knocked on the neighbour’s door at 7 Cloudberry where she was let inside and police were called. At Approximately 13:05hrs Cst. Manuel and Cst. Burton cleared the residence of 5A Cloudberry Drive, they did not locate Mr. Stacey, and he could not be located in the area of Cloudberry Drive. Staff at Coffee Matters on Topsail Rd in Paradise (approximately 450m from 5A Cloudberry Drive) stated that Raymond Stacey came into the store around 1300hrs and told staff that he was hit with a bat by his girlfriend. Staff at Coffee Matters called 911 because Mr.

Stacey was agitated and scared the patrons. He wasn’t wearing shoes or a shirt. He told staff that he was already on the phone with police but she could hear him say “mom” on the phone. Staff observed that he was not making any sense and was hard to understand. When Mr. Stacey heard the police sirens, he exited the store. Mr. Stacey walked to the Lawton’s on the other side of Topsail Road and attempted to steal a vehicle (Audi SUV) that was running in the parking lot with a female in the passenger seat. Nicole Grewol advised that she was sitting in the front passenger seat of the Audi.

Her mother, Sherry Grewol, the owner of the vehicle, had just exited the vehicle to go into Lawton’s, the vehicle was left on. She said about 5 minutes later a male, not known to her, opened the driver’s door and said words to the effect “I need this.” He then jumped into driver’s seat. Nicole described the male as having tattoos on his arms, skinny build with blond hair. She also noted that he had no shirt on. After Mr. Stacey entered the vehicle he put it in drive. Mr. Stacey made a right turn but went up over a curb colliding with the lamp post. He then fled the vehicle.

Nicole Grewol, who was still in the vehicle, did not report any injuries. Witness Brandon Hayes told police he was travelling west on Topsail Road in Paradise and turned into Lawton’s parking lot. At this time Hayes observed a silver Audi SUV travelling at a high rate of speed in the parking lot coming from the front east side of the building. To avoid a collision Hayes quickly turned left. The vehicle couldn’t make the turn and it began to skid on the pavement, over the curb onto the grass and into a light pole on the east side of the parking lot.

The male jumped out of the front driver side of the vehicle and ran toward Dairy Queen. Hayes described the male as a Caucasian male, darker hair, green/blue tattoo on his neck. The male was shirtless wearing blue jeans and blue underwear. Hayes advised the female in the Audi kept saying “He stole the vehicle.” Witness Carrie Bradbury told police she got lunch at 12:45pm from Dairy Queen on Topsail Road in Paradise. Bradbury parked her car, a 2014 silver Dodge Journey, on the farthest west side of the parking lot. At about 1300hrs Ms.

Bradbury saw a male who she described as tall and skinny with colourful tattoos. The male was not wearing a shirt, his pants were torn and she could see that he was wearing blue underwear. The male was running from Lawton’s toward Bradbury’s vehicle yelling “help me, help me. I am being raped” Bradbury put the front passenger side window down and the male tried to get into the vehicle by putting his arm into the vehicle and pressing the unlock button. The male unlocked the car door and got into the front passenger side of the vehicle. The Male appear

distressed and Ms. Bradbury was attempting to calm him down. The male continued to yell things along the lines of “help me, help me” , “I am being raped” ; and “ I gotta get out of here”. The male tried to reach over to start the car and then started to climb over the console of the vehicle and into the driver’s seat, pushing on Bradbury’s right side in the process. Ms. Bradbury got out of the vehicle and the male got into the driver seat. After some difficulty the male was able to start the car.

At this time Bradbury heard sirens and the male got out of the driver’s door of the vehicle and ran east in the Dairy Queen parking lot. Bradbury saw police and pointed to where the male went. Bradbury advised she was not injured and there was no damage to her vehicle. At 1305hrs Cst. Jason Nixon was dispatched to Coffee Matters at 1-1429 Topsail Road, Paradise, NL regarding a report of an assault where a male had said he was assaulted with a bat. When Cst. Cst. Nixon arrived on scene, he was advised by staff and customers inside Coffee Matters that the male had left on foot and headed east on Topsail Road. Cst.

Nixon headed east on Topsail Road and was in the area of Lawton’s, Paradise when he noted multiple people trying to flag him down. Cst. Nixon entered the lot and observed a silver coloured Audi SUV which had collided head on with a light/utility pole on the parking lot of Lawton’s. People on scene advised the male was shirtless and was headed toward Irving, just east of Lawton’s. It was at this time that Cst. Nixon observed a male who appeared to enter the passenger side of a vehicle behind Dairy Queen immediately adjacent to Irving. By the time Cst. Nixon pulled into the parking lot and located Mr.

Stacey, he was on the side of the Irving. Cst. Nixon instructed him to get on the ground and he was arrested without incident. Raymond Stacey was given rights & caution and the arrest was without incident. On March 6, 2018 RNC Forensic Identification Services attended the residence at 5A Cloudberry Drive and recovered “Betty Crocker” knife with a sheath.

Two photographs of this knife are attached hereto as exhibit “A” On May 5, 2018, Raymond Stacey was bound by a Recognizance dated April 26, 2018, requiring him to keep the peace and be of good behavior and not to operate a motor vehicle. circumstances of the ofFender [ 4 ] Mr. Stacey is presently 27 years old. He is married to the complainant, Alexandra Stacey, and together they have a one-year- old child. In the Agreed Statement of Facts, Ms. Stacey reports that initially their relationship was strong, and that throughout her pregnancy and the first month of their child’s life, Mr.

Stacey was supportive and engaged in parenting their son. However, after Mr. Stacey’s grandfather died in March 2018, Mr. Stacey’s mental health quickly deteriorated and he became a different person. As a consequence, at the end of March, Ms. Stacey and the baby moved into Iris Kirby House. [ 5 ] Mr. Stacey has an unrelated criminal record dating from 2011. Included is one count of mischief to property under $5,000 (in 2011), three counts of breaches of court orders, two counts of theft under $5,000, resisting or obstructing a peace officer and possession of a weapon.

His longest period of incarceration for these offences was 90 days. There are no prior convictions for robbery, or assault. [ 6 ] Mr. Stacey has been on consent remand since his arrest on 5 May 2018. His defence counsel submits that in the normal course Mr. Stacey would have undergone addictions counselling and availed of other counselling services at Her Majesty’s Penitentiary (HMP). However, certain services are not available to those on remand and, in any event, Mr.

Stacey was unable to participate in group programs, as corrections personnel expressed concern for his safety. [ 7 ] During his sentencing hearing Mr. Stacey was given an opportunity to address the court. He did so by apologizing for his actions, stating that he takes full responsibility for his behaviour. He expressed the desire to obtain help with his addictions and improve his education. principles of Sentencing [ 8 ] The Court’s decision on a just and appropriate sentence must be guided by the principles codified in sections 718 to 718.2 of the Criminal Code , R.S.C. 1985, c. C-46 . [ 9 ] In R. v.

Nasogaluak , 2010 SCC 6 the Supreme Court of Canada summarized these principles, as follows (at paragraphs 39 – 40): 39. … The objectives and principles of sentencing were recently codified in ss. 718 to 718.2 of the Criminal Code to bring greater consistency and clarity to sentencing decisions. Judges are now directed in s. 718 to consider the fundamental purpose of sentencing as that of contributing, along with crime prevention measures, to "respect for the law and the maintenance of a just, peaceful and safe society".

This purpose is met by the imposition of "just sanctions" that reflect the usual array of sentencing objectives, as set out in the same provision: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation, and a recent addition: the promotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and to the community.

40. The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be "proportionate to the gravity of the offence and the degree of responsibility of the offender". Thus, whatever weight a judge may wish to accord to the objectives listed above, the resulting sentence must respect the fundamental principle of proportionality.

Section 718.2 provides a non-exhaustive list of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity and totality, and the instruction to consider "all available sanctions other than imprisonment that are reasonable in the circumstances", with particular attention paid to the circumstances of aboriginal offenders. [ 10 ] The primary consideration in sentencing for offences such as those before the court is general deterrence and denunciation. At the same time the rehabilitation prospects of the offender are not to be ignored [ 11 ] As the Supreme Court of Canada observed in Nasogaluak ,

section 718.1 of the Criminal Code sets out that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It is an expression of the principle that a fit sentence is one that takes into account the circumstances of the offence(

s) and of the offender ( R. v. Lundrigan , 2012 NLCA 43 ). [ 12 ] Indeed, proportionality is central to the sentencing process, as a sentence which properly respects this principle will at the same time ensure that the secondary goals of denunciation, restraint, promotion of justice for victims, and the maintenance of public confidence in the administration of justice, are met. The principle of proportionality applies to sentencing for all criminal offences ( R. v. Cluney , 2013 NLCA 46 ). [ 13 ]

Section 718.2 of the Criminal Code provides that a sentence should be increased, or reduced, to account for any relevant aggravating or mitigating circumstances relating to the offence, or the offender. [ 14 ] Pursuant to subsection 718.2 (

d) of the Criminal Code , incarceration is used as a last resort, where less restrictive sanctions are not appropriate. Pursuant to subsection 718.2 (

e) of the Criminal Code , all non-custodial sentences should be considered, provided they are reasonable and consistent with the harm caused. position of the Crown and defence [ 15 ] The Crown submits that taking totality into account, a global sentence of 6 – 7 years’ imprisonment would be just and appropriate. As Mr. Stacey has been on consent remand, the Crown does not take issue with the defence request for enhanced credit of 1.5 days for each day in pre-sentence custody. This credit would be deducted from the foregoing global sentence in calculating Mr.

Stacey’s time remaining to be served. [ 16 ] In arriving at the global sentence the Crown argues for a sentence of 5 – 6 years’ imprisonment for each of the robbery and theft, 18 - 24 months for assault and assault with a weapon and four months consecutive for the breach of recognizance.

The global sentence is reached by making the sentences for the other offences concurrent to that for the robbery. [ 17 ] Finally, the Crown observes that a DNA Order is mandatory, as is a firearms’ prohibition. [ 18 ] The defence submits that an overall sentence of 2 – 3 years’ imprisonment is just and appropriate, from which should be deducted a credit of 1.5 days for each day in pre-sentence custody. With credit for time served, the defence thus submits that Mr. Stacey should receive a sentence of two years, commencing 5 February 2019. [ 19 ] The defence observes that while Mr.

Stacey has a limited criminal record, his longest continuous time spent in prison was 90 days. Applying what is sometimes called the “jump principle”, the defence argues that the sentence recommended by the Crown would have a crushing effect on Mr. Stacey. [ 20 ] The defence submits that the global sentence is reached with a sentence of 24-30 months for robbery, 3 to 6 months for theft and 3 – 6 months for assault and assault with a weapon, with all sentences concurrent to the robbery.

As for the breach of recognizance, the defence position is 30 days’ imprisonment, to run consecutive. [ 21 ] The DNA order and firearms’ prohibition are acknowledged. mitigating and aggravating factors [ 22 ] The mitigating factor in this instance is Mr. Stacey’s guilty plea and acceptance of responsibility for his behavior. The plea avoided the necessity of a trial and saved his victims the additional trauma of having to appear in court. [ 23 ] In the case of the assault and assault with a weapon, the fact that the victim was Mr. Stacey’s spouse is a deemed aggravating factor.

In the case of the robbery and theft, both involved what is commonly referred to as a “carjacking”, an aggravating consideration on sentencing. Case Law [ 24 ] The principle of parity, that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances” (

section 718.2 (

b) of the Criminal Code ) is a fundamental principle of sentencing ( R. v. Kane , 2012 NLCA 53 ). Accordingly, the Court was referred to a number of prior sentencing decisions for, assault, assault with a weapon, and robbery. Assault/Assault with a Weapon [ 25 ] In R. v. Antle , [2012] N.J. No. 458, 1030 A.P.R. 228 , the offender received a sentence of 7 months’ imprisonment for assault and six months’ imprisonment for assault with a weapon. He was convicted following a trial. The facts were summarized by the

sentencing judge, as follows (at paragraph 3): 3. … The charges resulted from one evening when both the complainant and the offender had been drinking. A verbal argumentbegan which escalated into violence and threats of violence by the offender. A knife was held close to the complainant's face and throat.She was not permitted to leave the residence for several hours. She was choked, bruised and some of her hair was pulled out. She was nothospitalized. The complainant and the offender had been cohabiting for approximately two weeks before this incident occurred.

Prior tothat time they had been in a romantic relationship for several months. [26] The offender was 50 years old with a criminal record, consisting primarily of driving related offences. [27] The sentencing judge observed that the knife was large, with a five-inch hook blade and had been held close to thecomplainant’s face. As for the assault, the sentencing judge found the choking to be particularly aggravating. [28] In R. v. Tilley, 2012 NLPC 0111A04L035, the offender was sentenced to 12 months’ imprisonment for assault with a weaponon his former girlfriend.

The offender terrorized her, destroying most items of monetary value in her residence and threatening her with aknife. He had a substantial criminal record, which included assault, break and enter and uttering threats. [29] In R. v. Clarke, (NLPC), after pleading guilty the offender received a sentence of six months’ imprisonmentfor assaults committed on his partner over a two day period. Following an argument the offender grabbed her hair, pushing her. He thenstruck her in the head with a bottle, knocking her out. On the second day, he pushed and struck her in the head.

He took out a knife andtried to force it in her hand, cutting her in the process. The offender was 25 years old with a criminal record which included assault. Robbery (Carjacking) [30] In R. v. Chad, 2009 ABCA 48, the Alberta Court of Appeal increased a sentence of 18 months to three years for carjacking. The offender jumped into a vehicle at a gas station and instructed the driver to take off. When the driver refused, the offender pushedhim out of the vehicle and drove away. The vehicle was found damaged a few days later.

The Court of Appeal noted the offender’smaturity, lengthy criminal record, seriousness of the offence, lack of a weapon and the guilty plea. In imposing sentence the Courtreferred, in particular, to R. v. Bell, 2006 ONCJ 452 and R. v. McCrea, 2007 BCPC 258. [31] In Bell the offender approached a female sitting in her vehicle at a drive through, opened the door and demanded that she getout. The offender pled guilty, but had a lengthy record.

A sentence of four years’ imprisonment was imposed. [32] In McCrea, while fleeing from another robbery, the offender stopped a pickup truck in a store parking lot, ejected the femaledriver, threw her to the ground and then sped off. He had a related record and was convicted following a trial. A sentence of 3-1/2 years’imprisonment was imposed. [33] In R. v. Friday, 2010 SKPC 30, the offender was convicted of a number of driving related offences, the most serious of whichwas attempted theft of a motor vehicle and assault causing bodily harm.

After successfully evading police the offender drove his vehicleinto a ditch. While walking along the road the complainant stopped to lend assistance. The offender responded by ordering thecomplainant out of his vehicle. A fight ensured during which the complainant was stabbed in the hand and ankle with a pen and struck inthe head with a mirror.

Fortunately, none of the injuries were serious. [34] In imposing a sentence of 30 months’ imprisonment the Court referred to Chad, observing that “…carjacking is by its nature aserious kind of robbery as it will involve violence or threats thereof in very intimate circumstances” (at para.39). While the offender’sactions were not premeditated, he used violence against the complainant to achieve his goal of stealing the vehicle. Further, the offendershowed no remorse. He had multiple convictions for driving while over .08, dangerous driving and leaving the scene of an accident. [35] In R. v.

Glasco, 2009 CarswellNfld 24, [2009] N.J. No. 19 (Prov. Ct.), Orr, Prov. J. imposed a sentence of three years forrobbery. The offender had been released on other charges just two days prior and was on an undertaking at the time of the offence. Thevictim was an 81-year-old lady, who was parked in the handicapped parking spot next to a department store. The offender suddenlyentered her vehicle on the passenger side, closed the door and grabbed her by the shoulder. He pushed her two or three times and sheeventually fled the vehicle, after grabbing her purse.

While not physically injured she was traumatized by the event. [36] The offender had a lengthy criminal record which included 35 previous convictions for theft and related offences, 32convictions for breaches of court orders and two convictions for assault. Orr, Prov. J. observed that while the offender did not use aweapon, the attack was on a “very vulnerable person” (at para. 27). [37] In R. v. Smith, 2011 NLTD(G) 123, the offender faced numerous charges, the most serious of which was robbery withviolence. While fleeing from the police the offender ran in front of his victim’s car, forcing her to stop.

He opened the driver’s door andordered her out. When she refused, he grabbed her by the hair, pulled her from the vehicle and threw her to the ground. She sufferednumerous scrapes on her hands, arms and legs and tenderness to her head. [38] The offender had a lengthy criminal record, which included convictions for assaults causing bodily harm, accessory after thefact to murder and robbery. He expressed remorse and was making efforts to address his addiction to drugs. He was sentenced to 48months’ imprisonment for the robbery, less credit for time served.

Stack, J. observed that while the offender had a history of suchoffences, in this case the offence was rash, not for material gain and no weapon was used. Nevertheless, the victim was lucky that shewas not more seriously injured. [39] In R. v. Banville, 2014 ABCA 228, the Alberta Court of Appeal imposed a sentence of five years concurrent for two charges ofrobbery and attempted robbery of a motor vehicle. The offender entered the garage of a woman’s home, ordered her out of the vehicle atgunpoint and drove away with the vehicle.

In the second incident, the offender grabbed a woman’s purse while at an automated teller ata gas station knocking her to the ground. He then demanded at gunpoint that the woman give him the keys to her car, or he would shoother. The offences took place while the offender was on probation.

[ 40 ] In R. v. Biwer , 2017 BCCA 424 , the British Columbia Court of Appeal upheld a ten-year global sentence which included two violent robberies of motor vehicles. [ 41 ] In the first, the offender entered the vehicle while a lady, who was 22 months pregnant, sat in the passenger seat waiting for her husband. The vehicle was running. He drove way while the lady attempted to stop him. The offender threw her small dog out the window and headed onto the highway, where he lost control, and struck three vehicles before rolling over. The offender punched and kicked his victim.

She sustained multiple contusions, a fractured right pelvis, mild neck symptoms and mild back pain. [ 42 ] The accident was witnessed by a husband and wife who stopped to assist. The offender then robbed their vehicle with their seven-week-old daughter in the back seat. He ignored pleas of “My baby’s in the car. Please, let me take my daughter.” Some 40 minutes later the vehicle was found abandoned with the child in the back seat. It was only 2° Celsius outside. [ 43 ] The offender, a person of aboriginal descent was 24 years old with 27 prior offences, including 10 robberies.

The offences in this case were committed less than two weeks after his release from custody on robbery convictions. His childhood was marred by alcohol addiction and domestic violence. He experienced a long-term struggle with substance abuse. [ 44 ] In R. v. Mahamud , 2017 CarswellOnt 11057 , 141 W.C.B. (2d) 364 , the offender was sentenced to three years’ imprisonment for carjacking. He used violence in punching the owner of the vehicle and pulling him out of the car. The car was in gear and started driving away unattended, thereby creating a danger to others.

The incident ended when the offender was involved in a head-on collision. Fortunately, nobody was seriously injured, but both vehicles were written off and the offender just walked away. At the time of the offence the offender was unlawfully at large from the federal correction system. [ 45 ] The mitigating circumstances were the young age of the offender (26), there were no weapons used and there was no evidence of threats. [ 46 ] In Mahamud , P. D. Griffiths, J. quoted with approval the words of Locke, J. in R. v. Moore , “I see little difference between a home invasion and a carjacking invasion.

In the reality of the present day life in this country, our cars are extensions of our homes" (at paragraph 14). I agree with this sentiment. [ 47 ] In R. v. Barrett , 2012 ONSC 82 , the offender was given a global sentence of six years, from which was deducted credit for time served, for offences which included two carjackings . The two carjackings occurred within a month of each other. In both cases the offender and his accomplice abducted the vehicle operator by forcing him into the trunk at gunpoint.

They robbed the victims of money and used their bank card to make withdrawals. [ 48 ] The offender was 18 years old at the time of the offences with no prior criminal record.

He expressed remorse, but did not enter a plea of guilty. [ 49 ] Based on the case law I distill the following non-exhaustive list of considerations in relation to the circumstances of the offence: ➢ Was a weapon used? ( Banville , Barrett ) ➢ Did the offender threaten the victim? ( Banville ) ➢ The degree of violence involved? ( Friday , Biver , Smith ) ➢ The degree of vulnerability of the victim ( Glasco , Biver ) ➢ Were others placed at risk? ( Biver , Mahamud ) ➢ Duration of the incident? ( Barrett ) ➢ Was the offender on probation etc. at the time? ( Banville , Mahamud ) ➢ Was the offender masked? ➢ Was the incident premeditated or spontaneous? ( Barrett ) [ 50 ] As noted, these considerations are non-exhaustive.

Others may arise depending on the factual circumstances. ANALYSIS AND DISPOSITION [ 51 ] The initial sentencing step in the context of multiple convictions is to determine the appropriate sentence for each individual offence. The sentence arrived at should presumptively be imposed consecutively (see R. v. Hutchings , 2012 NLCA 2 , paragraph 20 ). Assault and Assault with a Weapon [ 52 ] The assault and assault with a weapon were committed by Mr. Stacey on his spouse, a deemed aggravating factor on sentencing. [ 53 ] Photographs of Ms. Stacey’s physical injuries were entered at the sentencing hearing.

Fortunately, they were not serious. However, they reveal, as indicated in the Agreed Statement of Facts, numerous abrasions on her arms, bruises and abrasions on her thighs, knees and calves, red mark on her chest, bruising to her left clavicle, red marks on her face and a small hematoma on the back of

her head. [ 54 ] It would appear that Mr. Stacey’s behavior was influenced by drugs, or so Ms. Stacey believed. He dragged her by her ankles and the back of her head, culminating with him pulling her pants off completely. At one point, he took a knife from the kitchen drawer and removed its sheath. While Ms. Stacey was not hurt by the knife and there is no evidence that he pointed it at her, she was understandably terrified when he threatened her by telling her to go to the bedroom and that he was “going to kill her”. Mr. Stacey did not stop the assault. It only ended when Ms.

Stacey made her escape and ran to a neighbour’s house. [ 55 ] Unlike the cases of Tilley (12 months for assault with a weapon) and Clarke (six months), Mr. Stacey does not have a criminal record which includes crimes of violence. He also pled guilty, thus sparing Ms. Stacey the trauma of a trial. The circumstances of Mr. Stacey’s behavior are closer to that in Antle (seven months), although unlike Antle , there is no evidence of choking. [ 56 ] Respecting the principle of parity, the need for general deterrence and the antecedents of Mr.

Stacey, a just and appropriate sentence is six months’ imprisonment for the assault and eight months’ imprisonment for the assault with a weapon. Robbery and Theft [ 57 ] One can only imagine the terror that Ms. Grewol must have felt upon the entry of Mr. Stacey into her vehicle, shirtless. The terror continued as Mr. Stacey drove this vehicle at what one witness described as a high rate of speed across the parking lot. In doing so, he not only placed Ms. Grewol’s life at risk, but also the lives of anyone else in the area. The incident ended when Mr. Stacey lost control and rammed the vehicle into a light pole.

While not physically injured, it is not an incident that one could easily forget. [ 58 ] The robbery of a vehicle in circumstances such as that described above is commonly referred to as a “carjacking” in the case law. [ 59 ] While any carjacking remains a serious offence, for which general deterrence and denunciation are the primary sentencing goals, in this case no weapon was used. Ms. Grewol was not threatened and not physically assaulted by Mr. Stacey.

However, the fact that he drove away with her in the vehicle is an aggravating factor on sentencing. [ 60 ] As it relates to the subsequent incident involving Ms. Bradbury, Mr. Stacey was not charged with robbery, but theft of a motor vehicle contrary to

section 333.1(1) of the Criminal Code . The defence correctly observes that theft carries a lower maximum sentence than robbery. [ 61 ] For its part, while acknowledging that the offence provisions are different the Crown submits that on the facts, when it comes to sentencing, the distinction is without a difference. [ 62 ] After crashing Mr. Grewol’s vehicle, Mr. Stacey ran to Ms. Bradbury’s parked vehicle, yelling, “help me, help me. I am being raped.” He was not wearing a shirt, his pants were torn and Ms. Bradbury noticed that he was wearing blue underwear. Mr.

Stacey put his hand through the open front passenger window, unlocked the door and got into the front seat. While Ms. Bradbury tried to calm him down, he was irrational. He climbed over the driver’s console and got into the driver’s seat after Ms. Bradbury exited the vehicle. After some difficulty he got the car started, but when he heard sirens he got out and fled on foot. [ 63 ] To the extent there is a distinction in the facts between Mr. Stacey’s robbery of Ms. Grewol’s vehicle and theft of Ms. Bradbury’s, it lies in Mr. Stacey’s operation of Ms.

Grewol’s vehicle with her in the passenger seat and collision a short distance later. The endangerment of Ms. Grewol’s life and the lives of others is an aggravating factor not present in the case of Ms. Bradbury. However, in neither case were Mr. Stacey’s action premeditated or otherwise planned by him. In both instances he appeared irrational and panicked in an effort to avoid the police. [ 64 ] In Chad , the offender pushed the driver from his vehicle and drove away. He pled guilty and the Court of Appeal observed that no weapon was used. The offender was running from the police.

The facts are similar to those involving Ms. Bradbury and Ms. Grewol with the exception that in Chad the victim did not remain trapped in the vehicle. However, in Chad , the offender had a lengthy criminal record whereas Mr. Stacey does not. An 18-month period of incarceration was increased to three years. [ 65 ] In Friday , the offender used considerable violence in robbing the vehicle during an altercation that lasted ten minutes. A pen was used to stab the driver. The degree of violence was greater than that involving Ms. Grewol, or Ms. Bradbury.

It was an aggravating factor that the driver stopped as a Good Samaritan to assist the offender. The offender pled guilty and had an unrelated criminal record. Thirty months incarceration was imposed. [ 66 ] The facts in Glasco are similar to those involving Ms. Grewol, as in both cases the victim was forced from her vehicle, although the vehicle was not driven. However, in Glaso the offender had a lengthy criminal record, which included theft and assault. A sentence of three years was imposed. [ 67 ] In Smith the female driver was violently removed from her vehicle before it was driven away.

Further, the offender had a lengthy record which included crimes of violence and robbery. A sentence of 48 months was imposed. [ 68 ] The facts in Banville , where the offender received a five-year sentence are far more egregious than the case before me. The offender entered the garage of his victim’s home and ordered her out of her vehicle at gunpoint.

The offender was on probation at the time. [ 69 ] The same may be said for Biwer where the offender drove off with a pregnant woman and crashed the vehicle, injuring her, and then took a vehicle with a seven-month baby in the back and abandoned the child both in cold temperatures.

[ 70 ] Considering the circumstances of the foregoing cases (the parity principle), the need for general deterrence and denunciation and the antecedents of Mr. Stacey, I am satisfied that a just and appropriate sentence for the robbery is 33 months’ imprisonment and for the theft is 30 months’ imprisonment. Breach of Recognizance [ 71 ] At the time of the offences Mr. Stacey was bound a recognizance, dated 26 April 2018, requiring him to keep the peace and be of good behavior and not to operate a motor vehicle. [ 72 ] As already noted, this was not Mr. Stacey’s first failure to abide by a court order.

He was convicted of breach of probation and failure to attend court in 2014 and breach of recognizance in 2011.

These are dated convictions, however, particularly the breach of recognizance. [ 73 ] For the breach of recognizance, I would impose a sentence of one month imprisonment. [ 74 ] At this stage in the Hutchings approach consecutive sentences could result in the following: Assault 6 months Assault with a weapon 8 months Robbery 33 months Theft 30 months Breach of Recognizance 1 month TOTAL 78 months [ 75 ] The foregoing sentence, were it imposed, would total 78 months. [ 76 ] The second step is to consider whether some or all of the offences are so related that they can be considered to constitute a single criminal adventure (see Hutchings , paragraph 21 ).

If so, those that are so regarded are generally made concurrent to the heaviest sentence arising from that single criminal adventure. As the Court observed in Hutchings, it is not always easy to determine which offences constitute a single criminal adventure (at paragraph 22): 22. In some cases, separate offences of a similar type, though committed at separate times can be considered to constitute a single event for the purpose of this principle. In Crocker, Goodridge referred, for example, to a “single rampage”.

In other cases, separate offences amounting to a repetition of the same behaviour towards the same victim have been described as a “single transaction” and have likewise been regarded as sufficiently interrelated to attract the application of the principle. See R. v. Arbuthnot, 2009 MBCA 106 (Man. C.A.) at para. 22 . In still other cases, separate offences committed on what has been described as a “crime spree” have likewise been regarded as sufficiently interrelated to attract the application of principle. See R. v. Wozny, 2010 MBCA 115 (Man.

C.A.) at paras. 42 , 50 and 78. [ 77 ] Where a single criminal adventure is shown to exist concurrent sentences may, but are not required to be imposed. There are recognized exceptions, such as breaches of court orders. The sentence for breach of recognizance, or breach of probation, for example, will generally be served consecutive to the sentence for its related offence. [ 78 ] The assault and assault with a weapon amounted to repetition of the same behavior towards the same victim and ought to be considered as part of a single transaction.

The sentence for assault should therefore run concurrent to the sentence for assault with a weapon. [ 79 ] The robbery and theft occurred within minutes of each other, while Mr. Stacey was attempting to evade police.

While different victims were involved, I would regard both as part of a single criminal adventure, such that the sentence for theft should run concurrent with the sentence for robbery. [ 80 ] The sentence for breach of recognizance should remain consecutive, in keeping with previous decisions of this court. [ 81 ] While an argument might be made for treating the assaults and carjacking sentences as concurrent, in that the carjackings arguably arose in response to Mr. Stacey’s efforts to avoid being arrested for the assault, I do not agree that these events for part of a single criminal adventure.

They involve different victims and engage different societal interests.The sentence of imprisonment to be imposed following this second stage in the Hutchings approach is, as follows: Assault 6 months concurrent to assault with a weapon Assault with a weapon 8 months Robbery 33 months consecutive Theft 30 months concurrent to the robbery Breach of Recognizance 1 month consecutive TOTAL 42 months [ 82 ] The third and final step in context of multiple offences, where there are consecutive sentences, involves the application of the totality principle. [ 83 ] In Mahoney , our Court of Appeal recently addressed this principle, as follows (at para. 28):

28. … if there remain two or more sentences to be served consecutively, the judge is to take "one last look at the combined sentence to determine whether it is unduly long and harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender" taking into account, and balancing the following factors: (

a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved; (

b) the number and gravity of the offences involved; (

c) the offender's criminal record; (

d) the impact of the combined sentence on the offender's prospects for rehabilitation, in the sense that it may be harsh or crushing; (

e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender's degree of responsibility. After consideration of the factors, another adjustment can be made if appropriate in order to achieve a proper totality. [ 84 ] While Mr. Stacey does not have a related criminal record, I am satisfied that the combined sentence is not such as to impair Mr. Stacey’s prospects for rehabilitation.

Considering the factors in Mahoney I am satisfied that the overall sentence of forty-two (42) months’ imprisonment is not disproportionate to the gravity of the offences and degree of responsibility of Mr. Stacey. Credit for Time Served [ 85 ] The Supreme Court of Canada observed in R. v. Safarzadeh-Markhali , 2016 SCC 14 , citing its earlier decision in R. v. Summers , 2014 SCC 26 that a credit of one day for every day of pre-trial custody will "almost never" put the person on equal footing with those denied bail (at paragraph 1).

Time spent in pre-trial custody does not count for the purposes of parole eligibility, earned remission and statutory release. [ 86 ] Mr. Stacey was arrested on 5 May 2018 and remained on consent remand until his conviction on 5 February 2019. He has been awaiting sentence for an additional 16 days, including today. I can think of no reason, in principle, to treat his pre-sentence custody any different than his initial remand following arrest. He will therefore receive a credit of 1.5 days for each of the 293 days he has been in custody to date, for a total credit of 440 days.

For ease of calculation I have equated 42 months to 1,260 days. When the credit of 440 days is deducted from his sentence of 1,260 days, Mr. Stacey has 820 days remaining to be served [1] . A warrant of committal will thus issue for 820 days. Ancillary Orders Weapons’ Prohibition [ 87 ] Section 109(1) (

a) of the Criminal Code requires that the court prohibit an offender from possessing firearms and other related items if the person has been convicted of an "indictable offence in the commission of which violence against a person was used, threatened or attempted..." This criteria has been met in this case. Therefore, I order that Mr.

Stacey is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for a period of ten years after his release from imprisonment and from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. DNA Order [ 88 ] Robbery is a "primary designated offence." [ 89 ] Therefore, it is hereby ordered that samples of bodily substances be taken from Mr. Stacey for DNA analysis in accordance with

Part XV of the Criminal Code . ___________________________ DONALD H. BURRAGE Justice