2017 BCCA 299 R. v. Patrick

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	R. v. Patrick,
	2017 BCCA 299

Date: 20170814

Docket: CA44292

Between:

Regina

Respondent

And

Miles David Patrick

Appellant

Before:

The Honourable Mr. Justice Goepel

The Honourable Mr. Justice Fitch

The Honourable Mr. Justice Hunter

On appeal from: an order of the Provincial Court of British Columbia, dated
August 8, 2016 (R. v. Patrick, Salmon Arm Docket No. 23135-1)

Oral Reasons for Judgment

Counsel for the Appellant:	J. Mangat
Counsel for the Respondent:	M. Scott
Place and Date of Hearing:	Vancouver, British Columbia August 14, 2017
Place and Date of Judgment:	Vancouver, British Columbia August 14, 2017

Summary:

Appeal from a sentence of nine months’ imprisonment imposed following a plea of guilty to the attempted robbery of a gas station/convenience store. Held: application for leave to appeal granted; appeal dismissed. The sentencing judge did not err in principle by unreasonably exercising his discretion in assigning the weight he did to the principles of general deterrence, denunciation and rehabilitation. The sentence is not demonstrably unfit.

[1] FITCH J.A.: This is an application for leave to appeal and, if leave be granted, an appeal from a sentence of nine months’ imprisonment to be followed by 12 months’ probation imposed on Miles David Patrick on January 3, 2017, following his plea of guilty to attempted robbery.

[2] The appellant submits that the sentencing judge erred in principle by: placing too much emphasis on the objectives of general deterrence and denunciation; failing to consider the rehabilitative goals of sentencing; and, imposing a sentence that was disproportionate to the gravity of the offence and the degree of moral culpability that attached to its commission. He invites this Court to allow the appeal and substitute a sentence of three months’ imprisonment to be followed by two years’ probation.

[3] The circumstances of the offence, described by the sentencing judge as “disturbing”, may be briefly stated. On March 18, 2015, at approximately 8:00 p.m., the appellant entered the Husky gas station in Salmon Arm. He was intoxicated. He produced a steak knife, twirled it in his hand and said to the female clerk, “Open the till. I need money”. The clerk pretended that she did not understand what the appellant said. At that point, another customer entered the store and the appellant hid the knife. He then made off on foot. He was located by the police about 20 minutes later. He was arrested for being intoxicated in a public place. The appellant was not arrested for the attempted robbery because he had changed some articles of clothing between the offence and the time of his arrest and could not immediately be identified as the perpetrator.

[4] The sentencing court made an order for the preparation of a presentence report and psychiatric assessment.

[5] The motivation for the offence is unclear. The appellant was employed on a full-time basis when the attempted robbery was committed and he denies that the crime was financially motivated. The appellant told the probation officer who prepared the presentence report he was intoxicated and suicidal the night of the offence. He denies that he planned the commission of the offence.

[6] At the time of sentencing, the appellant was 30 years of age. He has a minor criminal record for mischief and taking an automobile without the owner’s consent. He had never before been sentenced to a term of incarceration.

[7] The appellant had an appalling upbringing. He was physically abused by his mother’s partner and exposed to alcohol abuse and violence in his childhood home. Between the ages of six and 15, the appellant lived in foster care homes. He completed Grade 9 before quitting school to pursue employment. The appellant has struggled with alcohol and drug abuse, and with periodic depression, for most of his adult life. He attended what appears to be an in-patient substance abuse program in Salmon Arm in 2015 but left the facility after two weeks. He told the probation officer that he left because others at the treatment facility were commanding more attention than he was, and that his treatment providers were minimizing the extent of his problems as compared to those of other residents.

[8] For the last 10 years, the appellant has been in an “on and off” relationship with a woman who has three children between the ages of six and 12.

[9] At the time of sentencing, the appellant was unemployed but had been working for a company that constructs modular homes.

[10] He advised the probation officer that he has not used cocaine since 2014 and has not consumed alcohol since the date of the offence.

[11] The appellant attended the psychiatric intake assessment, but did not attend for the psychiatric assessment ordered by the sentencing court and did not advise the Salmon Arm Health Centre that his appointment time was unsuitable. On the sentencing hearing, the appellant’s counsel explained that the appellant could not get to Kelowna for the scheduled appointment and tried to rearrange it, evidently after the fact.

[12] The brief psychiatric report before the judge indicated that the appellant had contact with emergency mental health services in 2015. He was coming off a drinking binge at the time and reported thoughts of self-harm. He was referred to an out-patient psychiatric service for further assessment but failed to attend for that appointment, and did not seek to cancel or reschedule it. On the basis of the scant material before the psychiatrist with whom the appellant was supposed to meet, it was determined that the appellant was not in need of psychiatric care.

[13] The appellant provided the sentencing judge with a six line letter dated July 11, 2016 – six months before the date of sentencing – that is signed by his family doctor. The doctor reported that the appellant no longer meets the diagnostic criteria for a major depressive disorder, is currently doing well, and has been gainfully employed over the last few months. The doctor also reported that the appellant was making impressive efforts to improve his life. I note that this letter was written before the appellant failed to attend for the court-ordered psychiatric assessment.

[14] No victim impact statement was before the sentencing court as the female clerk left the community of Salmon Arm after the offence and could not be contacted.

[15] The appellant expressed remorse to the sentencing judge for his involvement in the offence and the impact it likely had on the emotional well-being of the victim.

[16] The Crown sought a sentence in the range of 9 to 12 months to be followed by a one-year probationary period. The appellant sought a suspended sentence with a lengthy term of probation. In making this submission, his counsel noted that the appellant “does need…continued help when he has these episodes.”

[17] The appellant was released on bail pending appeal on March 20, 2017. Accordingly, he has now served approximately 2½ months of the sentence that was imposed.

[18] In sentencing the appellant, the judge noted the generally positive presentence report and the encouraging note from the family doctor. He made reference to the applicable objectives of sentencing set out in s. 718 of the Criminal Code, R.S.C. 1985, c. C-46, including rehabilitation. He noted that attempted robbery is a serious offence and that “some emphasis” had to be placed on general deterrence and denunciation. He noted the existence of a variety of what he considered to be mitigating factors including: the plea of guilty; the appellant’s expression of remorse; the appellant’s compliance with the terms of judicial interim release pending trial; that there was no actual violence associated with the commission of the offence; that the appellant had taken positive steps to deal with the drug and alcohol problems he has struggled with in the past; and, the robbery was an impulsive act.

[19] The sentencing judge also considered a variety of what he considered to be aggravating factors including: the appellant produced a knife in the commission of the offence and made it visible to the clerk; the prevalence of offences like this in the community of Salmon Arm and the surrounding area; and, the fact that the offence targeted a vulnerable victim working in the evening hours as a clerk in a gas station/ convenience store.

[20] The judge considered the range of sentence proposed by the Crown to be lower than the bottom end of the generally applicable range. He referenced two judgments in support of this observation: R. v. Gill, 2006 BCCA 127 and R. v. MacDonald, 2006 BCCA 535. He considered the sentence of nine months’ imprisonment to be giving the appellant what he described as “a fairly significant break”. The authorities cited by the judge, and subsequent decisions of this Court (see R. v. Marks, 2016 BCCA 480) suggest that the low end of the generally applicable range for the offence of robbery in relation to a gas station where violence is used or threatened is two years’ imprisonment. As I have noted, the appellant in this case pleaded guilty to attempted robbery.

[21] Turning to the grounds of appeal, I cannot accept that the judge erred in principle by unreasonably exercising his discretion in assigning weight to the applicable sentencing objectives. On well-established authority, denunciation and general deterrence are important sentencing objectives in cases of this kind: R. v. Webber, 2008 BCCA 37 at para. 18. I do not read the judge’s reasons as emphasizing these two objectives to the exclusion of other considerations, including rehabilitation. As I noted earlier, the judge said only that “some emphasis” had to be accorded the principles of general deterrence and denunciation. He was not wrong in saying this.

[22] Further, it is apparent from the reasons as a whole that the judge imposed the sentence he did in recognition of the rehabilitative strides taken by the appellant, and to encourage the appellant to continue in these efforts. The judge expressly considered the circumstances the appellant says ought to have been emphasized in relation to rehabilitation. There was very little, and no up-to-date, evidence on the steps actually taken by the appellant towards his own rehabilitation. Even so, it was open to the sentencing judge to reduce the sentence he might otherwise have imposed to credit the appellant’s rehabilitative efforts. He certainly made no error in principle in doing so, and none that gives the appellant cause for complaint.

[23] The essence of the appellant’s complaint is that the judge ought to have weighed the applicable sentencing factors differently and imposed a shorter period of incarceration. As noted in R. v. Lacasse, 2015 SCC 64 at paras. 48-49, 54, 77-78, assigning relative weight to these factors in the circumstances of a particular case falls within the broad discretion of the sentencing judge. It is not open to an appellate court to intervene simply because it might have weighed the relevant factors somewhat differently. I am not persuaded that the judge erred in principle by unreasonably exercising his discretion in assigning the weight he did to the objectives of general deterrence, denunciation and rehabilitation.

[24] The appellant also submits that the sentence is demonstrably unfit. He cites R. v. Miller, 2015 BCPC 0202 and R. v. Fleming, 2013 CanLII 75 (NLPC) in aid of an argument that the nine month custodial sentence imposed in this case is “clearly unreasonable” or a “substantial and marked departure” from sentences imposed on similarly-situated offenders for similar offences. In Miller, a three month sentence of imprisonment was imposed for the attempted robbery of a retail outlet. In Fleming, a three month sentence of imprisonment was imposed for the attempted robbery of a pharmacy. The appellant relies on these two authorities in support of his position that a similar sentence ought to have been imposed in this case.

[25] Sentencing is an inherently individualized process and it will always be possible to identify cases in which lenient sentences have been imposed in response to particularly sympathetic circumstances. Doing so does not establish that a higher sentence imposed in another case is demonstrably unfit. Further, the two authorities relied on by the appellant are trial judgments and, in my view, both of them are distinguishable.

[26] In Miller, the offender, a drug addict, used a plastic toy pistol in the course of the attempted robbery. The cashier knew that the “pistol” was a plastic toy and did not take the offender’s conduct seriously. No one was at risk of harm from the offender’s conduct which can fairly be described as pathetic. I note, as well, that the offender was the mother of two children, aged 9 and 12. The judge proceeded on his understanding that the normal range of sentence for attempted robbery starts at two years. Further, the offender was credited for 221 days of pre-trial custody attributable to this offence. Assuming the offender was granted credit at the rate of 1.5:1 for the time she spent in pretrial custody, she would already have served the equivalent of between 4½ and five months in custody before sentence was imposed. Taking the presentence custody into account, the sentence imposed in Miller was the equivalent of between 7½ and eight months incarceration.

[27] In Fleming, a drug addict who had been unable to get his methadone prescription transferred to Newfoundland, passed a note to a pharmacist saying he had a gun and wanted Oxycontin. He fled the scene before obtaining any drugs. He contacted the police a few days later and confessed to the attempted robbery. He had no criminal record. There is no evidence that he was in possession of a weapon when the offence was committed. His addiction to prescription painkillers arose after he suffered a shoulder injury preventing a family member from committing suicide by jumping from a bridge. The sentencing judge recognized that armed robberies generally attract significant periods of incarceration, but was motivated by the exceptional circumstances of this case to depart from the generally applicable range.

[28] Thus, in both Miller and Fleming, the exceptional circumstances of the offence and offender warranted a departure from the generally applicable sentencing range.

[29] In this case, the appellant possessed a knife and brandished it in the course of the attempted robbery. He was not a first offender. He created a real risk of injury. He took steps to change his appearance after the robbery. These factors distinguish the case at bar from Miller and Fleming.

[30] At the end of the day, the sentencing judge weighed the applicable sentencing objectives and took into account all of the factors unique to this case in fashioning a sentence that fit the offence and offender: see R. v. Brogan, 1999 BCCA 278. I cannot say that he erred in principle in his approach to this case or that he imposed a demonstrably unfit sentence.

[31] For these reasons, I would grant leave to appeal, but dismiss the appeal.

[32] GOEPEL J.A.: I agree.

[33] HUNTER J.A.: I agree.

[34] GOEPEL J.A.: Leave to appeal is granted. The appeal is dismissed.

“The Honourable Mr. Justice Fitch”