R. v. Duerksen, 2012 MBCA 41

Citation: R. v. Duerksen, 2012 MBCA 41 Date: 20120424 Docket: AR 11-30-07665 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Scott Madam Justice Freda M. Steel Mr. Justice Richard J. Chartier BETWEEN : ) A. Y. Kotler and HER MAJESTY THE QUEEN ) N. P. Steen ) for the Appellant Appellant ) ) E. J. Sloane and - and - ) C. S.

Scott ) for the Respondent JAMES ALAN DUERKSEN ) ) Appeal heard and (Accused) Respondent ) Decision pronounced: ) April 23, 2012 ) ) Written reasons: ) April 24, 2012 PER CURIAM 1 The Crown sought leave to appeal a conditional sentence of two years less a day imposed on the accused for 92 counts of residential break and enter and theft. The Crown argued that the sentencing judge erred in principle and moreover that the sentence imposed was clearly unfit. 2 We were all of the view that the sentence was wholly unfit. After granting leave, we imposed a total sentence of four years, with brief reasons to follow.

These are those reasons. 3 The 92 infractions occurred in three different communities and spanned over 21 years. The facts surrounding all of these offences are strange and disconcerting because of the intrusive and sexualized nature of the accused’s behaviour. The accused would identify a home inhabited by a woman, wait until the residents were at church and then enter the home to steal the woman’s lingerie. In some cases, he masturbated with the undergarments while still in the home.

Moreover, the psychological report done on the accused postulated that his acts arose from a desire for power over the women whose undergarments he stole. 4 We have repeatedly held that, absent exceptional circumstances, someone who breaks into another’s home once should generally expect a sentence in the range of two years.

While we are all in agreement that there are significant mitigating circumstances, the number, duration and seriousness of the offences committed in this case require a denunciatory and deterrent sentence of incarceration of over two years in length. 5 As this court has said, it would be an error in principle for a sentencing judge to fail to take into account the fact that an accused has committed multiple offences (see R. v. Wozny (C.P.) , 2010 MBCA 115 at para. 70 , 262 Man.R. (2d) 75 ).

A sentencing judge must ensure that “ while maintaining the essential principle of proportionality, the accused does not get a ‘ free ride ’” ( R. v. Lagimodiere (S.M.E.) , 2008 MBCA 137 at para. 26 , 231 Man.R. (2d) 261 ). See also R. v. N.A.S. , 2007 MBCA 97 , 220 Man.R. (2d) 43 , where Freedman J.A. explained (at para. 20): … .

If all offences after the first one are punished by sentences which are concurrent to the first, it will soon be observed by offenders that, once one offence has been committed, there is nothing to deter them from subsequent offences. … . 6 In our view, the sentencing judge failed to properly consider these multiple-offence sentencing principles. This error led him to impose the unfit conditional sentence of two years less a day. As a result, appellate intervention is justified. 7 The Crown had asked for a ten year period of imprisonment.

In our opinion, such a sentence would be crushing for this first-time, 38-year-old offender. He has been on judicial interim release for almost three years under strict conditions, with no breaches. His own community has shunned him and he is not allowed to attend church or participate in the community. 8 Taking all of the facts into account, and after taking the mandatory last look to address totality concerns, we believe a fit sentence would be one of four years.

Two years of that sentence will be assigned to the Manitoba offences, to be served concurrently, while the remaining two years will be allocated to all of the Alberta counts, also concurrently. The Manitoba sentence will be served consecutively to the Alberta one, for a total sentence of four years.

The accused will receive credit for the time he has already served on his conditional sentence. 9 The DNA and weapons prohibition orders imposed by the judge remain unchanged. 10 We note that the above-mentioned psychological report stated that: If [the accused]’s disposition were to include a period of incarceration, it is not recommended that he participate in the institutional sex offender programs currently available as they would not appropriately address factors relevant to his offending.

Additionally, participation in a transitional institutional sex offender treatment program would expose him to a broader range and more severe forms of inappropriate sexual behaviours, which could result in more harm than benefit. Specialized therapy attending to [the accused]’s treatment and risk management needs is available in the community. 11 We are all of the view that this recommendation makes eminent sense. C.J.M. J.A. J.A.