R. v. Dyck, 2014 MBCA 51

Citation: R. v. Dyck, 2014 MBCA 51 Date: 20140502 Docket: AR 13-30-07948 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Marc M. Monnin Mr. Justice William J. Burnett BETWEEN : ) HER MAJESTY THE QUEEN ) D. M. Sawchuk and ) T. D. Walker Respondent ) for the Appellant ) - and - ) R. N. Malaviya ) for the Respondent ) RONALD DYCK ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) May 2, 2014 ) STEEL J.A. (for the Court): [ 1 ] This is an appeal as to sentence.

The conviction appeal originally filed by the accused has been abandoned. [ 2 ] The accused was convicted after trial of two counts of breaking and entering into a dwelling-house with intent. The sentencing judge imposed a sentence of one year incarceration with respect to the first offence and five years’ incarceration, consecutive, in respect of the second offence for a total of six years’ incarceration.

He gave the accused credit for the two years and 31 days of pre- sentence custody on a 1:1 basis, and ordered that the accused comply with the Sex Offender Information Registration Act ( SOIRA ). [ 3 ] The accused seeks leave to appeal his sentence and raises four grounds of appeal; namely, that the judge erred: 1. in failing to consider totality when imposing a consecutive sentence; 2. in imposing a sentence of six years that was harsh and excessive in the circumstances; 3. in not awarding 1.5:1 credit for the pre-sentence custody on the basis outlined in R. v.

Stonefish (S.T.) , 2012 MBCA 116 , 288 Man.R. (2d) 103; and 4. in determining that the break and enter with intent offence mandated an order under SOIRA . [ 4 ] There is no question that the sentencing judge was correct to impose a consecutive sentence in this case.

Although the break and enter involved the same house and the same complainant, the incidents were quite different and were separated by four months. [ 5 ] Having imposed a consecutive sentence, the sentencing judge then correctly assigned a sentence to each offence, taking into consideration the various aggravating and mitigating circumstances when imposing that sentence. He should then have taken “one last look” and considered whether the totality of the sentence was crushing. See R. v. Reader (M.) , 2008 MBCA 42 at paras. 26 , 29, 225 Man.R. (2d) 118. [ 6 ] It is true that he did not do so.

Whether that is an error justifying a change in sentence depends on whether, at the end of the day, the sentence was fit and just. “What matters ultimately is the fitness of the sentence, not the route taken” (see R. v. Draper (T.G.) , 2010 MBCA 35 at para. 28 , 251 Man.R. (2d) 267). A trial judge may apply faulty methodology and yet still impose a sentence that is fit. See R. v. Traverse (L.) et al. , 2008 MBCA 110 at para. 40 , 231 Man.R. (2d) 123. [ 7 ] The circumstances of these break and enters are very disturbing.

With respect to the first one, the accused broke into the victim’s unoccupied bedroom during the night and stole her underwear, some clothes, her wallet and purse and several pictures. He

then left most of these items to be found the following day in an alley behind her place of work. He later mailed the stolen pictures to the victim’s employer, who then turned them over to the victim. By these deliberate and planned actions, the accused let the victim know that, he not only knew where she and her family members lived, but also knew where she worked. [ 8 ] During the second break and enter, the accused was waiting for the same victim in her garage with a knife. He held the knife to her throat and threatened that if she was not quiet, he would slit her throat.

The circumstances of these offences are made more disturbing because the accused, who lived down the street from the victim, has no prior criminal record, steady employment and there is nothing in the pre-sentence report to indicate a rationale for such behaviour.

The pre-sentence report assesses the 28-year-old accused as a low risk to reoffend and describes him as having a pro-social attitude, which I find to be at odds with the serious and disturbing facts of these offences. [ 9 ] The sentencing judge found that, not only were both break-ins planned and deliberate, but he also found that the accused intended his actions to traumatize the complainant. In that, the accused succeeded, as the complainant has moved away from her home and the community she grew up in because of the attack.

In each instance, the accused removed fence boards in the backyard of the home to gain access to the yard. The sentencing judge found that, had the victim not fought back and escaped from the accused during the second break-in, she would have been violently assaulted and physically harmed. [ 10 ] We agree that the sentence of one year for the first break-in is fit. With respect to the sentence of five years for the second break-in, it is on the high side.

However, in coming to his sentence, the sentencing judge not only took into account the aggravating factors pursuant to s. 348.1 of the Criminal Code (the Code ), including the fact that the accused broke into a home with a weapon, knowing that the victim was home and with the intention of assaulting her, but also took into account the mitigating factors mentioned above.

In the end, we do not find that the sentence is so unfit as to be the subject of appellate intervention. [ 11 ] Neither count of break and enter into a dwelling-house with intent specified the indictable offence that the accused committed during the break-ins. The sentencing judge found, based on the evidence, that in the first break-in, the accused committed the indictable offence of theft and in the second break-in, the accused committed the indictable offences of assault with a weapon and uttering threats.

Pursuant to s. 490.012(2) of the Code , a SOIRA order may be made where the trial judge finds that an offence, such as breaking and entering into a dwelling-house to commit an indictable offence, was committed with the intent to commit a designated offence such as sexual assault. [ 12 ] The sentencing judge concluded that, in the second break-in, the accused intended to sexually assault the complainant and that this was prevented only because she was able to escape from him.

This is a finding of fact which the judge was entitled to make based on the evidence and which can only be overturned if there is palpable and overriding error. We find no such error. [ 13 ] In addressing the issue of credit for pre-sentence custody, the sentencing judge stated the following: The accused will be given credit for the two years and 31 days served on a one for one basis.

I am not satisfied that the circumstances in this case justify granting to the accused credit of one and one-half days for each day spent in pre-sentence custody. [ 14 ] This court in Stonefish and more recently, the Supreme Court of Canada in R. v. Summers , 2014 SCC 26 , and R. v. Carvery , 2014 SCC 27 , confirmed that exceptional circumstances do not need to exist for the accused to be awarded enhanced pre- sentence credit and, in fact, loss of eligibility for early release and parole may be circumstances justifying such enhanced credit depending on the individual case.

The evidence indicates that there were no incidents involving this accused while on remand, that he had a pro-social attitude, that he had taken some programming and that he maintained a job as a cleaner on the unit. His good behaviour in the institution combined with the assessment of low risk to reoffend and lack of a criminal record would have made him a candidate for earned remission. [ 15 ] Although the issue of pre-sentence credit is discretionary, adequate reasons must be given for the decision reached.

Here, the sentencing judge does not explain why these circumstances would not justify the granting of such enhanced credit in this case. As such, we would allow the appeal to that extent, and order that the accused receive credit for the 25 months he was incarcerated at a 1.5:1 rate, which would be equivalent to 37.5 months of pre-sentence custody. [ 16 ] Leave to appeal is granted. The appeal is dismissed, except for the issue of pre-sentence custody. The accused will be given 1.5:1 credit for his pre-sentence custody. J.A. J.A. J.A.