R. v. Brannan, 2013 NSSC 413

IN THE SUPREME COURT OF NOVA SCOTIA Citation: R. v. Brannan, 2013 NSSC 413 Date: December 11, 2013 Docket: CRP No. 415422 Registry: Pictou Between: R. -versus- Shane Brannan Judge: The Honourable Justice N. M.

Scaravelli Heard: October 29, 2013, in Pictou, Nova Scotia Oral Decision: December 11, 2013 Counsel: Patrick Young, for the Crown Stephen Robertson, for the Defence By the Court (Orally) : [ 1 ] Michael Brannan appears for sentencing following a guilty plea to a charge of break and enter and theft contrary to s. 348(1) b of the Criminal Code . [ 2 ] On November 30, 2007, while the victim was away from home, the offender entered her dwelling house through an unlocked back door. Items stolen from the house included: a digital camera, a DVD player, power drill, and jewellery.

The offender also stole a gun cabinet attached to the wall containing six rifles. The offender broke into an outside shed and stole a table saw. The victim estimated the value of stolen property to be approximately $10,000. [ 3 ] I have reviewed the pre-sentence report. I have also reviewed correspondence from his parole officer and employer. Mr. Brannan is currently 30 years of age. He has been in a common-law relationship for the past three years. He and his spouse are raising three children. Mr. Brannan works regular part-time as a dishwasher at a local restaurant.

He admits to regular use of marijuana to deal with anxiety and stress. [ 4 ] The offender has one conviction for break, enter and theft as a young offender in 1999. The offender’s criminal record also indicates convictions for four counts of break and enters in 2011. As the current offence occurred in 2007, he would be considered a first time adult offender for the purposes of sentencing.

[5] Although no victim impact statement was provided to The Court, the crown advises the victim subsequently installed a securitysystem, obtained a dog and eventually moved out of the home as a result of the break and enter. [6] In determining the appropriate sentence, I must consider the purpose and principles of sentencing as set out in s. 718 to s. 718.2of the Criminal Code. The Courts have consistently confirmed that the principles of deterrence and denunciation are of primeimportance in cases of this nature, in particular, break and enter into dwelling homes.

The sentence must also be proportionate to thegravity of the offence and the degree of the responsibility of the offender. Aggravating and mitigating circumstances are to beconsidered by The Court. I am also required to consider the rehabilitation of the offender. A sentence should be in a range imposed onsimilar offences and similar circumstances. [7] Mitigating factors are the offender entered an early guilty plea. He is gainfully employed in a part-time position and, at the timeof the offence, was a first time adult offender. Aggravating factors are the break and enter was planned and committed for profit.

Thevalue of the property stolen was high and included firearms. The offender denied involvement in the offence in a statement given topolice in 2012. [8] The defence submits a conditional sentence is a proper sentence in this case. The offence predates the amendments to theCriminal Code which disallow the imposition of a conditional sentence order for the offence of break and enter. [9] The crown referring to the benchmark of three years of imprisonment as prescribed by the Nova Scotia Court of Appeal,recommends a sentence of imprisonment of between two and three years. [10]

Section 742.1 of the Criminal Code authorizes The Court to make an order for a conditional sentence when the offender issentenced to imprisonment of less than two years. The conditional sentence can be imposed where The Court is satisfied that serving thesentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose andprinciples of sentencing set out in s. 718 to s. 718.2. An offender serving a sentence in the community is subject to conditions set out ins. 742.3. In R. v.

Proulx 2000 SCC 5 , [2000] 1 SCR 61, the Supreme Court of Canada details a procedure to be followed by ajudge considering a conditional sentence. At the first stage, the judge must be satisfied that the appropriate sentence is a custodial one ofless than two years. Secondly, The Court must be satisfied that having the offender serve the sentence in the community would notendanger its safety. If so, The Court considers whether a conditional sentence would be consistent with the fundamental purpose andprinciples of sentencing as set out in s. 718 to s. 718.2. [11] Under s. 348(1)(

d) of the Code the offence of break and enter into a dwelling house carries a maximum term of life imprisonment,while a break and enter into other premises involves a lower maximum penalty of 10 years. The statutory maximum reflects the extremeseriousness with which Parliament regards the offence of home invasion. It is a crime that violates the sanctity of the home and itsoccupants. In this regard, our Court of Appeal has repeatedly stated that a single break and enter offence attracts a benchmark sentenceof three years. R. v. Zang (NS CA), [1986] NSJ 207; R. v. McAllister,

(2008) NSSA 103. This benchmark can beoffset one way or another according to mitigating or aggravating circumstances. In R. v. Adams,

(2010) NSCA 42, Bateman J. stated: [42] . . . the absence of a prior record might warrant a reduction from the benchmark to two years. [12] Defence counsel referred The Court to a number of cases predating R. v. Zang where more lenient sentences have been imposed. For recent cases, the defence cited R. v. Perrin,

(2012) NSCA 85 and R. v. Best [2012], NSJ 175, (NSCA) 34. In R. v. Perrin the 21year old accused participated in break and enter and theft of copper piping and speakers from a cottage. He gave police a full confessionand showed police items he had taken. He had a prior criminal record and was serving a conditional sentence at the time of the offence. The Court of Appeal upheld the sentence of 30 days imprisonment and 18 months’ probation in addition to his requirement to serve theremaining 34 days of his conditional sentence.

In describing the “short sharp” sentence as lenient, The Court found that the sentencingjudge did not err in principle. In R. v. Best the Court of Appeal dismissed an appeal from sentence of 90 days intermittent plus twoyears’ probation for an offence of break and enter and aggravated assault, however, The Court found the sentencing judge erred inprinciple by not emphasising denunciation and deterrence.

Although the sentence was demonstrably unfit, The Court found it was not inthe interest of justice to re-incarcerate the offender following completion of his sentence and portion of his probation without incident [13] In the present case the offender shoulders a high degree of responsibility. His level of intrusion into the home was extensive in thathe stole the items from various rooms and levels in the house. A vehicle was backed to the outside shed where a table saw was loadedand removed indicating that an extended period of time was involved. A crowbar was found outside the dwelling. The Court is of the

view that in order to adequately address the need for denunciation and deterrence, a penitentiary sentence is necessary in this case. This excludes the consideration of the possibility of a conditional sentence. I am also mindful that the offender has a heightened prospect for rehabilitation. He is only 30 years of age, in a stable marriage relationship, and has obtained regular employment. He would have been 24 years of age at the time of the offence. In my view the circumstances warrant a reduction from the bench mark of three years. [ 14 ] It is the sentence of The Court that Mr. Brannan serve two years in a federal institution.