R. v. Pollock, 2011 NLPC 111

IN THE PROVINCIAL COURT OF NEWFOUNDLAND AND LABRADOR JUDICIAL CENTRE OF ST. JOHN ’S Citation: R. v. Pollock 2011 PCNL 0111A00659 Date : July 15, 2011 Docket : 0111A00659 HER MAJESTY THE QUEEN V. RICHARD R. POLLOCK _____________________________________________________________ Before : The Honourable Associate Chief Judge R. B. Hyslop _____________________________________________________________ Place of Hearing: St. John’s , NL Case heard: July 7, 2011 Sentence imposed: July 8, 2011 Reasons filed: July 15, 2011

Summary : Sentence. First time offender pleads guilty to assaulting police with a pellet gun contrary to s. 267(

a) and resisting arrest contrary to s. 129 Criminal Code of Canada punishable by indictment. Accused is 25 year old first offender involved in a standoff with police lasting over two hours. Weapon discharged at police. Accused taking prescription medication and alcohol. Principles of sentence – General and specific deterrence and public protection to be given precedence but proportionality a valid consideration. Held: Accused sentenced to 10 months imprisonment less time served and supervised probation for two years with mandatory counselling. Appearances:

Dana Sullivan Counsel for Her Majesty the Queen Michelle Coady Counsel for the Accused CASES CONSIDERED: R. v. Whitten, (NL SC), 1993 CarswellNfld 185, 112 Nfld. & P.E.I.R. 144 (NLSCTD); R.v. Peter, [2009] Y.J. No. 17 (Yukon Terr. Ct.); R. v. S. (A.T.) (2004), 182 C.C.C. (NLCA) STATUES CONSIDERED: Criminal Code of Canada R.S.C., 1985, c. C-46. REASONS FOR SENTENCE HYSLOP, ACJ: Introduction [1] Mr. Pollock has pleaded guilty to one count of assault with a weapon, a pellet gun, upon officers of the Royal NewfoundlandConstabulary, contrary to s. 267(

a) of the Criminal Code of Canada (Criminal Code). He also pleaded guilty to one count of resistingarrest by officers of the same police force, contrary to s. 129 of the Criminal Code. The events occurred on March 4, 2011 and theaccused has consented to a remand in custody since that date. As of today’s date (July 8, 2011), he has been in custody for 128 days. The Crown elected to proceed by way of indictment. [2] The accused is 25 years old and has no record. He lives with a common law wife and has three children.

His guilty plea andthe absence of a prior record are both mitigating factors that I will take into account in the imposition of a fit sentence. [3] While he was on remand status, the accused has taken advantage of some counseling to deal with family and alcohol issues. This is to his credit. [4] Both counsel have asked the court to apply pretrial custody credit on the basis of a 1.5 days per day served because this was aconsent remand, he is a first offender and that a considerable period of time was spent in the less amenable lockup facility.

Based on theformula requested, I will give him credit for 192 days served. The Facts [5] At the time of these events, the accused had been under stress due to family issues and the illness of a child. He was placedon medication by his physician. According to his counsel, the medication had possible side effects including depression and suicidalideation.

No expert evidence was called on this point, but in addition to whatever effect the medication may have had, the accusedvoluntarily consumed a considerable amount of alcohol immediately prior to the events for which he has pleaded guilty. [6] His common law partner, Ms. Barbour, telephoned the police from the family home in Chamberlains around 4 p.m. andcomplained that the accused was drunk and refused to leave the house. By the time the police responded, the accused had left thehouse. The complainant told them she thought he had barricaded himself in the shed and that he had taken a pellet gun with him.

Thepolice went to the shed and asked to speak to him. He stated he was not coming out and asked the police to shoot him. He used variousobscenities. By then the police realized they were facing a serious problem. Mr. Pollock had indeed barricaded himself inside the shed. He had also placed cardboard over the windows but left a peephole so that he could see and discharge his pellet gun. More policeofficers arrived. The accused discharged the pellet gun several times. He did discharge the gun directly at two officers. Of course thenumber of officers steadily increased as the standoff continued.

A police dog was brought in. A negotiator arrived and also the tacticalresponse team arrived on site.

[7] The standoff took nearly two and a half hours. Towards the end, the accused threw his pellet gun out into the snow and beganwaving a hammer at the police. At one point pepper spray was unsuccessfully used to try and disable him and in the end, the shed wasbreached with the use of a battering ram. During the episode, one of the officers was bitten by the police dog, but fortunately, there wereno other injuries. [8] These events required a significant expenditure of police resources.

It would seem that the police acted with the utmostrestraint and professionalism in trying to defuse this situation without the loss of life or serious injury. I find that the need for such asignificant police response is an aggravating factor, as is the length, place and time of the standoff. The court was told that the four yearold daughter of the accused was at home when the incident began. Crown counsel also emphasized the time of day, and the fact that thisoccurrence took place in a built up neighbourhood where there was the risk of harm to innocent people.

The behaviour of the accusedwas irrational and the entire episode was tense and volatile. Counsel suggested to the court that this matter had the earmarks of a pleafor “suicide by cop”. [9] Clearly this was an isolated event in this man’s life. The behaviour had its roots in stress exacerbated by an unhealthycocktail of prescription drugs and copious amounts of alcohol. The situation represented a very real danger to the public, the accused,and to the police. Position of the Parties [10] Crown counsel suggested a sentence in the range of two years less credit for time served.

Defense counsel came armed with aconsiderable amount of information about her client and recommended a sentence of time served. The accused is employable, and hasstarted counseling while in custody. His common law partner read a letter into the record attesting to his good qualities as a father andasked that he be allowed to return home to the family. No doubt these events have been upsetting and stressful for everyone concerned. [11] Crown counsel has argued that nearly everyone involved in a confrontation with the police of this nature is mentally disturbedand in need of treatment and professional intervention.

Having said this, however, she has suggested that the courts, knowing this to bethe case, still impose sentences beginning at the lower range of about six months to ensure that the principles of deterrence, denunciationand protection of the public are properly considered. The challenge is to find a proper balance that is loyal to the principles of sentenceand yet takes into account in this case that the court is dealing with a troubled young man serving his first time in prison. [12] None of the authorities presented by Crown counsel is exactly on point, but the applicable principles are clear.

Many of thecases are fuelled by alcohol and/or drugs. Many of the offenders have mental health issues. Pellet guns may not be as lethal asconventional firearms but they are capable of considerable damage and serious bodily harm. (There was some question as to whether allof the officers were aware that they were dealing with a pellet gun as opposed to a real firearm.) The accused was out of control for aconsiderable amount of time and discharged, as described by Crown Counsel, “several shots”. The Law [13] In R. v. Whitten, (NL SC), 1993 CarswellNfld 185, 112 Nfld. & P.E.I.R. 144 (NLSCTD), Mr.

Justice Barrysentenced a man to one year in prison for using a shotgun in a careless manner, possessing a weapon for a purpose dangerous to thepublic peace and violation of a firearms prohibition order. The case involved a several hour drunken standoff with the police, threats toshoot them, and the discharge of a firearm that involved property damage. Three guns were involved and the accused was already undera weapons prohibition. [14] At paragraph 24 Mr.

Justice Barry said: “I conclude that not only is a period of incarceration necessary for general deterrence, to deter others from shooting up their homes andneighbourhoods in drunken states, it is also necessary for specific deterrence …” [15] This case is different in that it involved a pellet gun, but that the weapon was deliberately aimed at the officers. The policewere obligated to use nearly every tool in their arsenal short of firearms to effect an end to this situation.

[ 16 ] In R. v. Peter , [2009] Y.J. No. 17 ( Yukon Terr. Ct. ) , an aboriginal offender with mental health issues brandished a rifle which he had originally intended to use on himself, from a verandah. He discharged the weapon at a police car. He also fired the weapon inside the house and, while outside the house, fired a few shots towards an area where there were no people. The RCMP Emergency Response Team was called from Prince George . Judge Lilles imposed a 10 month sentence of imprisonment less credit for time served.

The judge expressed a concern for community safety, acknowledged a broad range of sentence and suggested in paragraph 15 of the reported judgment that this was a “highly dangerous situation” and expressed concern that something like this “should not happen again”. I believe that this was a reference to general and specific deterrence. [ 17 ] In this particular case, the Crown proceeded by indictment.

It is legitimate for me to consider that this elevates the matter by increasing the maximum sentence contemplated by Parliament. [ 18 ] In the end, as sympathetic as I am towards the accused and his family, I think that denunciation, deterrence, both general and specific, coupled with the need to protect the public (including the police) have to be the principles most heavily weighted by the trial court in the imposition of a fit sentence. Sentence [ 19 ] As a result of the 2007 amendment to the Criminal Code , a conditional sentence is no longer an option.

Nor do I believe in all the circumstances that a sentence of “time served” is a realistic option. However, the principle of proportionality is very much alive pursuant to s. 718.1 of the Code . See also R. v. S. (A.T.) (2004), 182 C.C.C. (NLCA). I have considered that this is a first time offender struggling with serious issues and this moves me away from a consideration of a two year sentence more to a sentence in the range of 10 months. That period, from the time of his arrest, would amount to 302 days.

Given credit for 192 days pretrial custody on a one to one and a half basis, this would leave a sentence of 110 days in Her Majesty’s Penitentiary to be served for the breach of s. 267 (a). Using the same calculation, I would impose a concurrent sentence of 110 days on the count of resisting arrest. I will waive the victim fine surcharges based on his financial situation. Ancillary Orders [ 20 ] On Count 1, the accused will be the subject of a mandatory Firearms Prohibition Order as contemplated by s. 109 of the Criminal Code .

The prohibition commences today and expires 10 years from the expiration of the prison sentence imposed today. [ 21 ] The conviction for a breach of s. 267(

a) registers a conviction for a primary designated offence for purposes of DNA forensic analysis. Mr. Pollock is ordered to supply a sample of bodily substance to a peace officer for inclusion in the DNA National Data Bank as soon as practicable, in hygienic conditions, and in a room not accessible to public view. [ 22 ] He will be placed on probation for two years upon release. In addition to the statutory conditions, he will:

(1) Report to a probation officer within three working days of his release and thereafter as required,

(2) Attend and participate actively in such counseling programs as may be recommended by his probation officer for substance abuse, mental health issues or adjustment problems. [ 23 ] The Court Clerk will ensure that the provisions of s. 732.1(5) are complied with. [ 24 ] Crown counsel indicated that the pellet gun was thrown by the accused into the snow immediately before he began waving the hammer at the police. She did not advise whether it had been seized by the police as evidence although that would be a reasonable expectation.

If it is in police custody, I order that it be forfeited to Her Majesty to be disposed of as the Attorney General directs pursuant to s. 491 (1) of the Criminal Code .

[ 25 ] Sentence accordingly. ______________________________ R.B. Hyslop, Associate Chief Judge